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https://www.courtlistener.com/api/rest/v3/opinions/2626100/ | 230 P.3d 181 (2010)
154 Wash.App. 907
In re Personal Restraint Petition of Ernest CARTER, Petitioner.
No. 37048-4-II.
Court of Appeals of Washington, Division 2.
March 9, 2010.
*182 Jeffrey Erwin Ellis, Ellis Holmes & Witchley PLLC, Seattle, WA, for Petitioner.
Michelle Luna-Green, Pierce Co. Pros. Attorney, Tacoma, WA, for Respondent.
ARMSTRONG, J.
¶ 1 Ernest Carter[1] contends in this personal restraint petition that his rights to due *183 process and a fair trial were violated during his 1998 trial on two counts of first degree robbery when he appeared in shackles visible to at least one juror. He also contends that his persistent offender sentence is unlawful because his California assault conviction is not comparable to a Washington "strike" offense. We agree that Carter's California assault is not a strike offense, therefore, we vacate Carter's persistent offender sentence and remand for resentencing. We reject the shackling challenge as untimely.
FACTS
¶ 2 When tried in Pierce County for first degree robbery in 1998, Carter had prior convictions in California and Oregon for assault with a firearm on a peace officer and attempted murder. Consequently, he was eligible for life imprisonment without the possibility of parole under the Persistent Offender Accountability Act (POAA), former RCW 9.94A.120 (1994), if found guilty of one or both robbery counts. On the first day of trial, the State noted for the record that Carter had chosen to wear shackles instead of a stun belt and that the parties had located a garbage can so that the jury could not see his restraints. Two days later, defense counsel asked to be heard during a recess. He informed the court that when his client was being taken out of the courtroom, a juror saw him shackled. The defense moved for a mistrial. A police officer explained that it was jail policy to apply leg restraints or a stun belt in three strikes cases. After confirming that the policy was legitimate because of the potential for escape, the trial court questioned the juror implicated.
¶ 3 The juror admitted to seeing Carter under escort but not in restraints, and he added that he had not discussed the matter with any other jurors. The juror volunteered, however, that he had seen Carter's leg restraints on the first day of voir dire. He denied saying anything about the restraints to his fellow jurors but added that the restraints "were plainly visible from where I was sitting in the pew there. I didn't think anything of it because it's rather common to have." Report of Proceedings (RP) at 355.
¶ 4 After the court excused the juror, the defense renewed its motion for a mistrial, contending that if one juror saw the shackles, others might have seen them, and adding that Carter had a constitutional right not to be seen in shackles. The court denied the motion. The jury convicted Carter on both counts. The trial court concluded that Carter's California assault and Oregon attempted murder convictions were comparable to most serious offenses in Washington and sentenced him to life in prison.
¶ 5 Carter appealed, and two of the issues he raised concerned his shackling and the comparability of his California conviction. In an unpublished opinion, this court held that Carter had not shown prejudice as a result of his shackling because a defendant is not prejudiced by his mere appearance in restraints during jury selection. State v. Carter, 100 Wash.App. 1028, 2000 WL 420660, at *5. Consequently, the trial court did not abuse its discretion in denying Carter's motion for a mistrial. This court also rejected Carter's contention that his California assault conviction was comparable to third degree assault of a police officer in Washington and thus not a most serious offense. Carter, at *12-13.
¶ 6 Carter petitioned the Washington Supreme Court for review, arguing that his California assault conviction was not comparable to Washington's assault statute because the California statute did not require the specific intent the Washington statute required. Our Supreme Court denied his petition for review, and we issued our mandate on October 18, 2000. When Carter filed a habeas petition raising the comparability issue, a federal district court dismissed it as procedurally barred on March 29, 2002.
¶ 7 Carter filed this personal restraint petition on October 3, 2007. He again seeks relief on the shackling and comparability issues.
ANALYSIS
I. Timeliness
¶ 8 Personal restraint procedure has its origins in the state's habeas corpus *184 remedy. In re Pers. Restraint of Hagler, 97 Wash.2d 818, 823, 650 P.2d 1103 (1982). Fundamental to the nature of habeas corpus relief is the principle that the writ will not serve as a substitute for appeal. Hagler, 97 Wash.2d at 823, 650 P.2d 1103. A personal restraint petition, like a petition for a writ of habeas corpus, is not a substitute for an appeal. Hagler, 97 Wash.2d at 824, 650 P.2d 1103. On collateral review, the burden is on the petitioner to establish either constitutional error that caused actual and substantial prejudice to his case or nonconstitutional error resulting in a complete miscarriage of justice. In re Pers. Restraint of Cook, 114 Wash.2d 802, 810-12, 792 P.2d 506 (1990).
¶ 9 Personal restraint petitions generally are prohibited if not filed within one year after the judgment and sentence becomes final. RCW 10.73.090(1). The petitioner bears the burden of proving that an exception to the RCW 10.73.090 statute of limitation applies. State v. Schwab, 141 Wash.App. 85, 90, 167 P.3d 1225 (2007), review denied, 164 Wash.2d 1009, 195 P.3d 86 (2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1348, 173 L.Ed.2d 614 (2009).
¶ 10 Carter filed his petition almost seven years after his judgment and sentence became final. See RCW 10.73.090(3)(b) (judgment and sentence becomes final when this court files its mandate disposing of direct appeal). He claims, however, that his petition is exempt from the time limit because he did not receive notice of the one-year statute of limitation from the trial court. See RCW 10.73.110 (trial court shall advise defendant of one-year statute of limitation when it pronounces judgment and sentence). When a statute requires notice, the failure to comply creates an exemption to the time bar. In re Pers. Restraint of Vega, 118 Wash.2d 449, 451, 823 P.2d 1111 (1992).
¶ 11 After hearing oral argument, we remanded for a reference hearing on the notice issue. The superior court found that the sentencing court did not orally inform Carter of his collateral attack rights at any time during sentencing and that Carter did not receive a copy of the "Advice of Collateral Attack Time Limit" form filed in his case until 2007. Findings of Fact 3, 8, 11. The superior court also found, however, that Carter received a copy of his judgment and sentence at sentencing and from his habeas attorney in 2002. Carter argues that the finding stating that he received a copy of his judgment and sentence at sentencing lacks evidentiary support. He contends further that he did not read the page of his judgment and sentence containing the collateral attack information when he received it in 2002, and that even if he did, the language was insufficient to provide him proper notice.
¶ 12 We need not review the evidence supporting the challenged finding. Even if the superior court incorrectly found that Carter received a copy of his judgment and sentence at sentencing, Carter acknowledges receiving a copy in 2002. Carter's judgment and sentence states that "[p]ursuant to RCW 10.73.090 and RCW 10.73.100, the defendant's right to file any kind of post sentence challenge to the conviction or the sentence may be limited to one year." Petition, App. A, at 7. Carter claims that he did not read this information until 2007, but receipt of the judgment and sentence is sufficient to constitute notice. See In re Pers. Restraint of Runyan, 121 Wash.2d 432, 453 n. 16, 853 P.2d 424 (1993) (sentencing documents containing notice of time limit are sufficient to meet State's burden of showing notice); State v. Robinson, 104 Wash.App. 657, 661, 669-70, 17 P.3d 653 (2001) (statement in judgment and sentence that any collateral attack on the judgment would be subject to RCW 10.73.090 and RCW 10.73.100 was sufficient to give defendant notice of one-year statute of limitation applicable to collateral attacks). Insofar as Carter challenges the language in the judgment and sentence, we find it sufficient to convey the requisite notice. Robinson, 104 Wash.App. at 669-70, 17 P.3d 653; see also Payne v. Mount, 41 Wash. App. 627, 635, 705 P.2d 297 (1985) (holding that a notice citing the relevant statute for appeal time limit was adequate under due process). Having received notice of the one-year time limit in 2002, Carter's petition is untimely unless he can establish that an exception to that time limit applies.
*185 II. Shackling
¶ 13 Carter argues that a recent change in the law justifies this court's reconsideration of the shackling issue. See RCW 10.73.100(6) (time limit does not apply to petition if significant change in the law is material to the conviction or sentence and applies retroactively).
¶ 14 A defendant in a criminal case is entitled to appear at trial free from all bonds or shackles except in extraordinary circumstances. State v. Finch, 137 Wash.2d 792, 842, 975 P.2d 967 (1999). Generally, when a jury views a shackled defendant, that defendant's constitutional right to a fair and impartial trial is impaired. State v. Elmore, 139 Wash.2d 250, 273, 985 P.2d 289 (1999). In rejecting Carter's appeal, however, we stated that when the jury's view of a defendant in shackles is brief or inadvertent, the defendant must make an affirmative showing of prejudice. Carter, at *5 (citing Elmore, 139 Wash.2d at 273, 985 P.2d 289). Because Carter failed to show any prejudice resulting from his appearance in restraints during jury selection, the trial court did not abuse its discretion in denying his motion for a mistrial. Carter, at *5.
¶ 15 Carter now argues that the United States Supreme Court changed the legal standard to apply in assessing the potential harm from shackling in Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). Deck held that where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the sentencing jury, the defendant need not demonstrate actual prejudice to make out a due process violation. Deck, 544 U.S. at 635, 125 S.Ct. 2007. Rather, the State must prove beyond a reasonable doubt that the shackling error did not contribute to the verdict. Deck, 544 U.S. at 635, 125 S.Ct. 2007. According to Carter, the Deck decision thus changed the harmless error standard applicable to shackling issues. Instead of placing the burden on the defendant to prove prejudice, the burden is on the State to prove an absence of prejudice. Carter contends that this change in the law applies retroactively to his case.
¶ 16 Deck applied clearly established law relevant to the guilt phase of a trial to the capital sentencing context. Lakin v. Stine, 431 F.3d 959, 963 (6th Cir.2005). Prior Supreme Court precedent did not involve the penalty phase of a capital trial but involved only shackling before a determination of guilt. Marquard v. Sec'y for the Dep't of Corrs., 429 F.3d 1278, 1311 (11th Cir.2005). Insofar as Deck changed the law applicable to the penalty phase of a trial, it does not apply retroactively. Marquard, 429 F.3d at 1311-12.
¶ 17 Thus, under federal law, Deck imposes a new rule applicable to the penalty phase of a trial that is not retroactive. Consequently, it did not significantly change the law material to Carter's conviction. See RCW 10.73.100(6). Furthermore, we noted in 2002 that although a claim of unconstitutional shackling is subject to harmless error analysis, it is unclear whether shackling in the courtroom creates a presumption of prejudice that the State must overcome or whether the defendant must demonstrate that the shackling was prejudicial. State v. Jennings, 111 Wash.App. 54, 61, 44 P.3d 1 (2002). To illustrate, Jennings cited Washington Supreme Court decisions issued in 2001 and 1984 that placed the burden on the State, and other decisions from the same court issued in 1999 and 1998 that placed the burden on the defendant. Jennings, 111 Wash.App. at 61 n. 2 & 3, 44 P.3d 1. Thus, Carter could have raised in his direct appeal, his petition for review, or a personal restraint petition filed before Deck, the same point of law he raises now. Carter does not succeed in showing that a significant change in the law renders the shackling issue exempt from the one-year bar. See In re Pers. Restraint of Lavery, 154 Wash.2d 249, 258-59, 111 P.3d 837 (2005) (one test to determine whether intervening case represents a significant change in the law is whether the defendant could have argued this issue before publication of the decision). Because he does not argue that any other exception applies to this issue, we do not discuss it further.
III. Sentencing
A. Time Bar
¶ 18 Under the "mixed petition" rule, a court may not consider a petition filed *186 after the one-year deadline where only some of the issues fall within an exception in RCW 10.73.100. See In re Pers. Restraint of Hankerson, 149 Wash.2d 695, 702, 72 P.3d 703 (2003) (court will not decide claims under RCW 10.73.100 that are not time barred if some issues are untimely). Where a remaining issue rests on a different exception, however, it may be reached. See In re Pers. Restraint of Stoudmire, 141 Wash.2d 342, 350-51, 5 P.3d 1240 (2000) (court can decide facial invalidity claims after dismissing untimely claims). We therefore address Carter's sentencing issue because recent case law demonstrates that he is actually innocent of the life sentence he received.[2]
B. Actual Innocence Exception
¶ 19 Carter argues that the one-year time limit in RCW 10.73.090 should be tolled under the "actual innocence" exception. The federal courts have applied this exception under limited circumstances to grant habeas relief where review ordinarily would be barred because of a procedural default in state court. See Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 170 (2nd Cir.2000). In an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a writ of habeas may be granted even in the absence of a showing of cause for the procedural default. Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). The Supreme Court has "transported" the actual innocence concept to the sentencing phase of capital trials, and some lower federal courts have applied it to noncapital sentencing as well. Spence, 219 F.3d at 170-71 (citing Smith v. Murray, 477 U.S. 527, 537-38, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986)); see also United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir.1999) (limiting actual innocence exception in noncapital cases to review of eligibility for career offender or other habitual offender guideline provisions); United States v. Maybeck, 23 F.3d 888, 892-94 (4th Cir.1994) (holding that defendant was actually innocent of being career offender because his predicate offenses did not qualify him for that status). The Supreme Court has not addressed whether the actual innocence exception can be applied to sentencing outside the capital context, and this question has divided the Courts of Appeals. See Dretke v. Haley, 541 U.S. 386, 392-93, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) (recognizing divergence of opinion in Courts of Appeals regarding availability of exception in noncapital sentencing context but declining to reach issue); see also United States v. Richards, 5 F.3d 1369, 1371 (10th Cir.1993) (person cannot be actually innocent of a noncapital sentence).
¶ 20 The Eighth Circuit applied the actual innocence exception where a defendant was sentenced under a habitual offender statute that was not in effect when he committed his offenses. Jones v. Arkansas, 929 F.2d 375, 380-81 (8th Cir.1991). This application allowed him to obtain relief in a habeas corpus proceeding even though he had not raised the same claim of error previously in state court. The Jones court cited the United States Supreme Court's statement, in the capital sentencing context, that if one is "actually innocent" of the sentence imposed, a federal habeas court can excuse a procedural default to correct a fundamentally unjust incarceration. Jones, 929 F.2d at 381 (citing Smith, 477 U.S. at 537, 106 S.Ct. 2661). "It would be difficult to think of one who is more `innocent' of a sentence than a defendant sentenced under a statute that by its very terms does not even apply to the defendant." Jones, 929 F.2d at 381 (emphasis in original). The court concluded that manifest injustice would occur if it were to adhere rigidly to the procedural default rule. Jones, 929 F.2d at 381 n. 16; see also Smith v. Collins, 977 F.2d 951, 959 (5th Cir.1992) (assuming without deciding that actual innocence exception applies to noncapital sentencing procedures; such application would require defendant to show that, absent alleged error, he would not have been legally eligible for his sentence).
*187 ¶ 21 The Washington Supreme Court has recognized that the actual innocence exception is "`extremely rare'" and applicable in "`extraordinary case[s].'" In re Pers. Restraint of Turay, 153 Wash.2d 44, 55, 101 P.3d 854 (2004) (quoting Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). The court declined to apply it to excuse Turay's failure to raise an issue in a previous petition, finding that there was no issue of innocence to consider because Turay, who was civilly committed as a sexually violent predator, was not confined for a criminal conviction. Turay, 153 Wash.2d at 56, 101 P.3d 854. Turay's claim that he was confined in violation of due process was insufficient to find an exception under state law comparable to the actual innocence exception under federal law. Turay, 153 Wash.2d at 56, 101 P.3d 854. "Instead, to avoid dismissal of this petition on abuse of the writ grounds, he must, at the least, show that when the State confined him he was not presently dangerous. He has not done so." Turay, 153 Wash.2d at 56, 101 P.3d 854. Thus, the Turay court did not reject the actual innocence exception completely but declined to apply it where the petitioner failed to prove that he was actually innocent of his sexually violent predator status.
¶ 22 We recognize that neither Turay nor the federal decisions cited above address the actual innocence exception in the context presented here; that is, where the petition is otherwise untimely. But see Souter v. Jones, 395 F.3d 577, 599 (6th Cir.2005) (actual innocence exception applies to one-year limitation period for habeas corpus petitions). We also recognize that none of these decisions apply the actual innocence exception to an untimely petition raising a sentencing challenge. All of these decisions deal with procedural bars, however, and the one-year statute of limitation in RCW 10.73.090 is a procedural, rather than jurisdictional, bar that may be overcome in certain instances. See State v. Littlefair, 112 Wash.App. 749, 757-59, 51 P.3d 116 (2002) (RCW 10.73.090 is statute of limitation, or procedural bar, to which equitable tolling may apply). Our Supreme Court has allowed equitable tolling of the one-year statute of limitation where the filing of a timely petition was barred by bad faith, deception, or false assurances. In re Pers. Restraint of Bonds, 165 Wash.2d 135, 141, 196 P.3d 672 (2008). In so holding, the court reasoned that equitable tolling permits a court to allow an action to proceed when justice requires it, even though a statutory time period has passed. Bonds, 165 Wash.2d at 141, 196 P.3d 672.
¶ 23 Carter makes no showing of bad faith, deception, or false assurances and thus cannot take advantage of the equitable tolling exception heretofore established under Washington law. We apply the exception here based on our conclusion, explained below, that Carter is "actually innocent" of his persistent offender status. We emphasize that this exception applies only in extremely rare instances, as where a petitioner is "actually innocent" of his persistent offender status.[3] Justice requires, however, that we apply the actual innocence exception in this instance to overcome the one-year statute of limitation in RCW 10.73.090.
C. Comparability Analysis
¶ 24 To determine whether a foreign conviction should count as a strike offense, the court employs a two-part comparability analysis. State v. Johnson, 150 Wash. App. 663, 676, 208 P.3d 1265, review denied, 167 Wash.2d 1012, 220 P.3d 208 (2009). The court first determines whether the elements of the foreign offense are substantially similar to the Washington offense. Johnson, 150 Wash.App. at 676, 208 P.3d 1265. If the elements of the foreign offense are broader, the court must determine whether the offense is factually comparable; i.e., whether the conduct underlying the foreign offense would have violated the comparable Washington statute. Johnson, 150 Wash.App. at 676, 208 P.3d 1265. If a factual analysis is necessary, the court considers only facts admitted or stipulated by the defendant, or *188 proved beyond a reasonable doubt. Johnson, 150 Wash.App. at 676, 208 P.3d 1265. If a foreign conviction is neither legally nor factually comparable, it does not count as a most serious offense under the POAA. Johnson, 150 Wash.App. at 677, 208 P.3d 1265.
¶ 25 There is no dispute that Carter's Oregon convictions for attempted murder and attempted first degree assault counted as a strike offense.[4] When we previously assessed the comparability of his 1983 California conviction for assault on a peace officer with a firearm, we first looked to the underlying facts. In a type of Newton plea[5] in which Carter agreed to the use of what in Washington would be an affidavit of probable cause, Carter accepted that the facts would show that he shot at a police car as it was driving away after his brother's arrest. We then turned to the 1983 California statute defining the crime of assault with a firearm on a peace officer:
Every person who commits an assault with a firearm upon the person of a peace officer. . . and who knows or reasonably should know that the victim is a peace officer . . . engaged in the performance of his or her duties, when the peace officer. . . is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years.
Former Cal.Penal Code § 245(c) (Deering 1983). California defines assault as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Cal.Penal Code § 240 (Deering 1983).
¶ 26 In 1983, Washington law defined the offense of second degree assault with a weapon as follows:
Every person who, under circumstances not amounting to assault in the first degree shall be guilty of assault in the second degree when he . . . [s]hall knowingly assault another with a weapon or other instrument or thing likely to produce bodily harm.
Former RCW 9A.36.020(1)(c) (1983), repealed by Laws of 1986, ch. 257, § 9. Washington defines assault as "`an attempt, with unlawful force, to inflict bodily injury upon another, accompanied with apparent present ability to give effect to the attempt if not prevented.'" Carter, at *12 (quoting State v. Jimerson, 27 Wash.App. 415, 418, 618 P.2d 1027 (1980)). We reasoned that the 1983 Washington offense most comparable to Carter's California assault was second degree assault because both offenses shared the common element of assault with a dangerous weapon. Carter, at *13.
¶ 27 Other Washington decisions have held that California assault convictions are comparable to first or second degree assault in Washington and thus count as strike offenses. See, e.g., State v. Wheeler, 145 Wash.2d 116, 119, 34 P.3d 799 (2001) (conviction of assault with a firearm in California is equivalent to assault with a deadly weapon in Washington); State v. Berry, 141 Wash.2d 121, 132, 5 P.3d 658 (2000) (stayed California convictions for assault with intent to commit murder and assault with a deadly weapon counted as strikes under the POAA). These opinions did not discuss the fact that assault in California is a general intent crime while assault in Washington is a specific intent offense.
¶ 28 Specific intent to either create apprehension of bodily harm or cause bodily harm is an essential element of second degree assault in Washington. State v. Byrd, 125 Wash.2d 707, 713, 887 P.2d 396 (1995); State v. Welsh, 8 Wash.App. 719, 724, 508 P.2d 1041 (1973). Therefore, the defense of intoxication is available to a defendant charged with that offense. Welsh, 8 Wash. App. at 723, 508 P.2d 1041. Assault in California requires only the general intent to willfully commit an act, the direct, natural and probable consequences of which, if successfully completed, would be the injury to *189 another. People v. Colantuono, 7 Cal.4th 206, 214, 26 Cal.Rptr.2d 908, 865 P.2d 704 (1994). Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm. Colantuono, 7 Cal.4th at 214, 26 Cal.Rptr.2d 908, 865 P.2d 704. The intent to cause any particular injury, to severely injure another, or to injure in the sense of inflicting bodily injury is not necessary. Colantuono, 7 Cal.4th at 214, 26 Cal. Rptr.2d 908, 865 P.2d 704. Consequently, a jury may not consider evidence of the defendant's intoxication in determining whether he committed assault in California. People v. Williams, 26 Cal.4th 779, 788, 111 Cal. Rptr.2d 114, 29 P.3d 197 (2001).
¶ 29 Carter rests his argument on the different intent elements and points out that our Supreme Court found this distinction dispositive in In re Pers. Restraint of Lavery, 154 Wash.2d 249, 111 P.3d 837 (2005). At issue was whether Lavery's federal conviction for bank robbery was comparable to the Washington crime of second degree robbery and counted as a strike under the POAA. The court held that the two offenses are not legally comparable because the crime of federal bank robbery is a general intent crime and the crime of second degree robbery in Washington requires specific intent to steal as an essential, nonstatutory element. Lavery, 154 Wash.2d at 255-56, 111 P.3d 837. The Washington definition thus was narrower than the federal crime's definition. A person could be convicted of federal bank robbery without being guilty of second degree robbery in Washington because of the defenses that would be available only to a specific intent crime, including the defense of intoxication. Lavery, 154 Wash.2d at 256, 111 P.3d 837.
¶ 30 The court then turned to the factual comparability of the federal and state offenses. Where the foreign statute is broader than Washington's, a factual comparison may not be possible because there may have been no incentive for the accused to have attempted to prove that he did not commit the broader offense. Lavery, 154 Wash.2d at 258, 111 P.3d 837. Lavery would have had no motivation in the earlier conviction to pursue defenses that would have been available to him under Washington's robbery statute but unavailable in the federal prosecution. Lavery, 154 Wash.2d at 258, 111 P.3d 837. "Furthermore, Lavery neither admitted nor stipulated to facts which established specific intent in the federal prosecution, and specific intent was not proved beyond a reasonable doubt in the 1991 federal robbery conviction." Lavery, 154 Wash.2d at 258, 111 P.3d 837. Therefore, his federal robbery conviction was neither legally nor factually comparable to Washington's second degree robbery and was not a strike under the POAA. Lavery, 154 Wash.2d at 258, 111 P.3d 837.
¶ 31 Carter's California assault is not legally comparable to second degree assault in Washington because of the different intent elements. In assessing factual comparability, we observe that Carter merely conceded that the facts were sufficient to convict him of assault of a peace officer with a firearm in California. The facts were silent as to Carter's state of mind during the shooting, and Carter had no incentive to introduce any such facts. The facts do not show that Carter acted with the specific intent to injure a police officer or create an apprehension of injury. Consequently, under the reasoning in Lavery, Carter's California assault is not comparable to second degree assault in Washington and should not have been counted as a strike. Carter is "actually innocent" of being a persistent offender.[6]
¶ 32 Although we reject Carter's shackling challenge as untimely, we vacate Carter's persistent offender sentence and remand for resentencing.
I concur: HOUGHTON, J.
PENOYAR, A.C.J.
¶ 33 Relying on the federally-created actual-innocence doctrine, the majority finds this *190 case comparable to "an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Majority at 186. (citing Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). I disagree that this is such a case.
¶ 34 I agree with the majority's analysis that it is impossible to determine the factual comparability of Carter's California assault conviction with a Washington second degree assault conviction. But to say this means that Carter is actually or even probably innocent of having had two strikes in 1998 seems to me to be a bridge too far. What we do know from common sense and experience is that it is quite likely that someone firing a gun at a police car is intending to harm the police officer in the vehicle. While a petitioner who can affirmatively demonstrate actual innocence could well succeed, Carter has not shown that he lacked the requisite intent and that his offense is therefore not factually comparable.
¶ 35 Carter has not shown, and the burden is his, that the one-year time bar should not apply to him. RCW 10.73.090. To hold otherwise, as the majority does, is to employ an exception for "extremely rare instances" in which the petitioner is "actually innocent" to a case where there is no such showing, rather only an inadequate record to review the claimed error. Majority at 12. Opening the door to cases in which the exception is rooted in the record's weakness and not on actual innocence not only ignores the exception's purpose of providing relief to those actually innocent without legal recourse but will invite a flurry of cases where defendants pleaded guilty to strike offenses in other states before committing their last strike here. I would deny the petition.
NOTES
[1] Carter changed his name to Le'Taxione after his conviction. Because his court documents use his former name, this opinion does so as well.
[2] Because of the mixed petition rule and our holding that Carter's shackling issue does not satisfy the exception in RCW 10.73.100(6), we do not address his arguments that the sentencing issue can be considered under RCW 10.73.100(5) and (6). The exception in RCW 10.73.100(5) applies if the sentence imposed exceeded the trial court's jurisdiction.
[3] To the extent that Carter's argument is successive, the ends of justice clearly warrant reconsideration of this issue. See In re Pers. Restraint of Jeffries, 114 Wash.2d 485, 487, 789 P.2d 731 (1990) (argument rejected on merits in direct appeal will not be re-evaluated in personal restraint petition unless ends of justice are served thereby).
[4] Because the Oregon convictions occurred at the same time, they constituted only one most serious offense. See former RCW 9.94A.030(25)(b) (1994).
[5] When a defendant enters a Newton plea, he does not admit guilt but acknowledges that the State has enough evidence to find him guilty. State v. Newton, 87 Wash.2d 363, 552 P.2d 682 (1976).
[6] Having granted Carter sentencing relief under the actual innocence exception, we do not address his alternative claim for relief under facial invalidity exception. In re Pers. Restraint of Banks, 149 Wash.App. 513, 517, 204 P.3d 260 (2009) (one-year time limit does not apply to judgment and sentence that is invalid on its face). | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2626101/ | 230 P.3d 965 (2010)
235 Or. App. 307
In the Matter of E.C., a Child.
DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
B.J.W., Appellant.
07409J; A143593.
Court of Appeals of Oregon.
Argued and Submitted March 10, 2010.
Decided May 12, 2010.
*966 James J. Spindor, Klamath Falls, argued the cause and filed the brief for appellant.
Harry B. Wilson, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.
Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Judge.
SCHUMAN, P.J.
Father appeals from a judgment that authorized the Department of Human Services (DHS) to change its plan for his child, E., from reunification to adoption. He argues that the trial court erred by admitting certain hearsay evidence that did not fall within the exception for evidence "relating to the ward's mental, physical and social history and prognosis[.]" ORS 419B.325(2).[1] He also argues that, without the allegedly inadmissible evidence, the state did not establish that the permanency plan should be changed. We affirm.
Father argues that we should exercise de novo review. ORS 19.415(3)(b); see also Or. Laws 2009, ch. 231, §§ 2, 3 (establishing the effective date for the change in the standard of review). However, this case does not involve disputed facts. The only issues on appeal are whether the court committed legal error by admitting certain exhibits and whether, purged of those exhibits, the evidence supports the court's disposition. Those are both purely legal issues. Our standard of review, therefore, is for errors of law. State ex rel. Juv. Dept. v. G.L., 220 Or.App. 216, 218, 185 P.3d 483, rev. den., 345 Or. 158, 190 P.3d 379 (2008).
Father has one child, E. At the time of the hearing, E. was three years old and living in foster care. Father and mother ended their relationship shortly after E. was born, and mother is not a party to this appeal. DHS filed a dependency petition in July 2007. In the petition, DHS alleged that E. was within the juvenile court's jurisdiction because of mother's and father's history of engaging in domestic violence, father's use of alcohol and controlled substances, his chronic instability, chaotic lifestyle, and involvement in criminal activities, all of which endangered the welfare of E. Based on the state's evidence in support of these allegations, the court took jurisdiction of E. and ordered that father:
"1) Participate in and successfully complete a drug and alcohol evaluation with a DHS/CWP approved provider, follow any and all recommendations and demonstrate a drug-free lifestyle.
"2) Sign all necessary releases of information.
"3) Submit to urinalysis as requested by DHS/CWP and/or any treatment provider.
"4) Participate in and successfully complete domestic violence counseling with a DHS/CWP approved provider and demonstrate a violence-free lifestyle.
"5) Participate in and successfully complete a comprehensive psychological evaluation, if requested, with a DHS/CWP approved provider and follow services recommended from the evaluation.
"6) Participate in and successfully complete a DHS/CWP approved parent training program and demonstrate skills learned in the program."
Father was sent to prison shortly after the juvenile court's order. In October 2008, the juvenile court continued the petition, renewed the order set out above, and further ordered father, when he was released from prison, to maintain safe and stable housing and meet all his parole requirements. After *967 his release from prison in late December 2008, father engaged in services with DHS, but soon dropped out and stopped visitations with E.
In August 2009, DHS requested that the juvenile court change E.'s permanency plan from reunification to adoption. Mother did not contest DHS's request. During the permanency hearing, the trial court admitted numerous reports regarding father's criminal, psychological, and substance abuse history. Most of those reports stated that father has a personality disorder, significant authority problems and general antisocial personality traits, difficulty managing his anger, recurring substance abuse problems, and a general unawareness that he has any of these problems. Father objected to the admission of some of the reports, arguing that, although ORS 419B.325(2) allows hearsay evidence "relating to the ward's mental, physical and social history and prognosis," the disputed reports related only to father and not to child. The trial court disagreed, admitted the reports, and allowed the change of the permanency plan to adoption.
On appeal, father renews his objection to the admission of certain exhibits and argues that the record, purged of that evidence, does not establish by a preponderance of the evidence that the change in plan is in the child's best interest. The dispute requires us, as an initial matter, to construe ORS 419B.325(2):
"For the purpose of determining proper disposition of the ward, testimony, reports or other material relating to the ward's mental, physical and social history and prognosis may be received by the court without regard to their competency or relevancy under the rules of evidence."
(Emphasis added.) The disputed evidence in this case consists entirely of "reports or other material," and it focuses primarily on father's mental, physical and social history and prognosis. Some of the reports focus entirely on father; one, for example, is a collection of documents involving father's arrest, plea, conviction, and sentence for criminal mischief in 1997, over two years before E. was born. The state contends that father's history and character have an obvious, if indirect, bearing on the degree to which child might or might not be harmed by reunification, and therefore to child's "prognosis." Father maintains that the statute applies only to material that deals directly with E. We conclude that an all-purpose bright line rule defining what "relating to the ward's * * * prognosis" means is not necessary in the present case.
Some preliminary observations based on the text of ORS 419B.325(2) are in order. State v. Gaines, 346 Or. 160, 172, 206 P.3d 1042 (2009). First, the statute refers to "report[s] or other material[s]"; it does not refer to portions or particular statements in reports or other materials. We therefore reject, for most purposes, the suggestion that the court must parse materials in order to redact information in them that does not relate to the ward.
Second, for "the purposes of determining proper disposition of the ward" we note that the term "prognosis" in ORS 419B.325(2) is problematic. In one sense, the term presupposes a pathological medical or psychological condition and refers to its course into the future: "the prospect of survival and recovery from a disease as anticipated from the usual course of that disease or indicated by special features of the case in question." Webster's Third New Int'l Dictionary 1812 (unabridged ed. 2002) (emphasis added). In another sense, however, it refers more generally to any prediction: "FORECAST, PROGNOSTICATION." Id. In the context of ORS 419B.325(2), only the second meaning makes sense. That is so for two reasons. First, the word is paired with "history," which is retrospective and nonmedical, and we have no reason to believe that the legislature would authorize the admission of relevant past facts in general, but relevant facts regarding the future only insofar as they deal with medical or psychological pathology. Second, "prognosis" is modified not only by "mental" and "physical," but by "social" as well, and although it makes perfect sense to speak of a cultural, national or other collective social pathology, the idea of an individual's social pathology makes little sense.
Further, a person's prognosis or forecast, although grounded in facts in existence at *968 the time it is rendered, also takes into account future contingencies. In the medical context, whether a particular patient's prognosis is negative or positive can depend on whether the patient follows a particular course of treatment, takes particular precautions, or adopts particular habits. Information about those future contingencies, in other words, "relates to" the prognosis. Likewise, a prognosis or general forecast regarding a ward's physical, mental, or social condition depends to some extent on the environment in which the ward is placed. Thus, information about that environment including possible caretakers"relates to" the ward's prognosis.
In sum, we conclude that evidence relates to a ward's "mental, physical and social * * * prognosis" if it provides information that is relevant to a forecast or prediction of how the ward will fare in the future, and it necessarily includes information about the ward's future potential caregivers. We therefore reject father's contention that ORS 419B.325(2) encompasses material only if its direct and exclusive subject is the ward.
That rejection, however, does not necessarily mean that ORS 419B.325(2) allows the court to receive any and all evidence that has a relationship, no matter how tenuous, with any of the ward's past, present, or potential future caregivers. In this case, however, we need not define a precise line between admissible and inadmissible. Material that deals expressly with E.'s history is admissible. Additionally, the statute allows the admission of material in reports that either the court or DHS ordered for the purpose of evaluating whether, or to what extent, father can maintain his relationship with E. Of the 11 exhibits to which father objects, eight fall within one or another of those categories. The remaining exhibits, some of which are of dubious relevance to E. or her prognosis, provide no information that was not properly before the court in either the contested but clearly admissible exhibits as described above, or exhibits to which father did not object. Thus, if admitting any or all of the more dubious exhibits was error, it was harmless. We therefore reject father's first assignment of error.
In his second assignment of error, father maintains that, in presenting the properly admitted evidence, the state did not meet its burden of proving that the plan for E. should be changed from "return to parent" to adoption. Perhaps because we disagree with father about what evidence was admissible, we also disagree about what the admissible evidence establishes. The admissible and undisputed evidence in the record discloses that father and mother began their relationship when mother was 15 and father was in his mid-twenties. Both parents had substance abuse problems throughout their relationship. Father harassed and physically abused mother before and after their relationship ended, and the court placed a no-contact order between them, which both mother and father violated. Father has criminal convictions dating back to 1996 for a variety of crimes including assault, menacing, intimidation, criminal mischief, failure to appear, and felon in possession of a firearm. He was incarcerated repeatedly, most recently from October 2007 until December 2008, or more than one third of E.'s lifetime. In addition, father has a history of substance abuse stretching back to his early teens; he reported using alcohol, marijuana, methamphetamine, Vicodin, and hallucinogenic mushrooms, and has been convicted of possession of marijuana (1996) and methamphetamine (1998, 2005, and 2008after the birth of E.). At one point, he was intoxicated at a party, with E. in attendance; two days later, he was intoxicated again while E. was under his care. A witness also reported to DHS that she saw him smoke marijuana from a marijuana pipe and then hand the pipe to E. In short, we conclude that the court did not err in determining that the state proved by a preponderance of evidence that changing E.'s plan from reunification to adoption was in E.'s best interest.
Affirmed.
NOTES
[1] The proceeding before the juvenile court was a permanency hearing governed by ORS 419B.476(1). That statute provides, "[T]he court may receive testimony and reports as provided in ORS 419B.325." | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1789755/ | 362 So. 2d 204 (1978)
Frank PRICE, III
v.
STATE of Mississippi.
No. 50624.
Supreme Court of Mississippi.
August 23, 1978.
J.W. Kellum, Sumner, for appellant.
A.F. Summer, Atty. Gen. by Billy L. Gore, Spec. Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, WALKER and BOWLING, JJ.
PATTERSON, Chief Justice, for the Court:
Frank Price, III, appeals a conviction of capital murder pursuant to a bifurcated trial and jury sentence to life imprisonment by the Circuit Court of Coahoma County. The sole issue is whether a peremptory instruction requested by the defendant was properly refused.
At approximately 9:30 p.m. on March 3, 1975, appellant and another black male identified as Andrew Lee Henderson, entered the lobby of the Southern Inn Motel in Clarksdale. The desk clerk, Mrs. Marie Furniss, testified that appellant requested a room and began to scribble something on a registration card. Mrs. Grace Green, the 63-year-old manager of the motel, was seated at the corner of the desk. Appellant threw a $20 bill on the counter and while Mrs. Furniss was getting change, Mrs. Green suddenly exclaimed, "Oh, look out, Mrs. Furniss." Mrs. Furniss then observed the appellant pointing a pistol at her. He grasped Mrs. Furniss' left wrist, jerked her across the counter and struck her with the weapon. Dazed by the blow, Mrs. Furniss dropped behind the counter while appellant continued to clutch her by the arm. She was released after the appellant grabbed the money from the cash drawer.
*205 Mrs. Furniss testified she remained behind the counter, hoping to escape and summon Mr. Green, who had retired for the evening. Immediately thereafter she heard a shot and Mrs. Green began screaming. Another shot was fired and the men left. Mrs. Furniss called Mr. Green who came to aid his wife and who then called the police. Mrs. Green expired from a bullet wound a short time later.
The perpetrators of the crime wore no masks, and Mrs. Furniss positively identified the appellant as the individual signing the registration card. However, she was unable to say who fired the fatal shot. It was determined that the sum of $150 had been taken.
The pathologist who performed the autopsy testified that Mrs. Green suffered several lacerations to the head as well as a gunshot wound which caused her death. A Federal Bureau of Investigation fingerprint specialist testified that the appellant's fingerprints matched those on the registration card signed at the motel.
Appellant's signed statement to a police officer was admitted into evidence without objection. He claimed he had driven Andrew Henderson and Bay Jerry Williams to the motel and remained in the automobile while they entered the premises. According to him, when he heard a shot, he entered the building and observed a lady on the floor. He stated that Henderson had shot her.
At trial defense counsel moved for a directed verdict at the conclusion of the state's evidence and presented no evidence on its own behalf. The jury found appellant guilty of murder and at the second phase of the trial sentenced him to life imprisonment. At the sentencing determination, evidence was presented that appellant had been convicted of an armed robbery which occurred on March 12, 1975.
Appellant argues that the trial court improperly refused his motion for a peremptory instruction, but fails to assert in what regard the state's proof was deficient. Of course, peremptory instructions are properly refused if there is sufficient evidence to support the verdict. Daniels v. State, 312 So. 2d 706 (Miss. 1975).
It is also familiar law that when two or more persons act in concert, with a common design, in committing a crime of violence upon others, and a homicide committed by one of them is incident to the execution of the common design, both are criminally liable for the homicide. McNeer v. State, 228 Miss. 308, 87 So. 2d 568 (1956). The fact that the accused did not fire the fatal shot does not relieve him from criminal responsibility for the death of Mrs. Green who was slain by the accused's confederate in carrying out the common design to rob. Carrol v. State, 183 Miss. 1, 183 So. 703 (1938).
The evidence is overwhelming that Mrs. Green was killed in the commission of a crime of robbery in which Price was an active participant. Therefore, the conviction and sentence are affirmed.
AFFIRMED.
SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1808489/ | 969 F. Supp. 135 (1997)
TOWER INTERNATIONAL, INC., Plaintiff,
v.
CALEDONIAN AIRWAYS, LIMITED, Defendant.
No. CV93-1122 (CPS).
United States District Court, E.D. New York.
February 26, 1997.
*136 John Shutty, III, New York City, for Plaintiff.
Avram S. Fischer, Brooklyn, NY, for Defendant.
ORDER
COOK, District Judge.
This matter comes before the Court on post trial motions by the Plaintiff, Tower International, Inc. (Tower) and the Defendant, Caledonian Airways, Limited (Caledonian). On December 13, 1996, Caledonian filed a motion for the entry of a judgment as a matter of law, or alternatively, for a new trial. Three days later, Tower filed a motion which, if granted, would oblige the Court to set aside the verdict and conduct a new trial on the issue of damages.[1] For the reasons that are stated below, Caledonian's motion for a judgment as a matter of law is granted, and Tower's motion is denied.
I.
This action arose out of the charter of a Lockheed L-1011 aircraft by Caledonian to Air Algerie in March 1990. In its Complaint, Tower claimed that it was entitled to a "finder's fee" of 5% of the charter amount for its role in representing the interests of Caledonian and procuring the lease agreement. It was Tower's specific contention that (1) it had an express brokerage agreement with Caledonian during all of the times that are relevant to this controversy, and (2) its unrewarded efforts to broker the lease agreement with Air Algerie had resulted in an unjust enrichment to Caledonian. Caledonian rejected these arguments, insisting that Tower had neither been hired to broker the lease agreement with Air Algerie nor was it the procuring cause of the lease. A jury trial ensued.
On November 27, 1996, the jury concluded that Tower, despite not having been specifically hired by Caledonian as a broker, was the catalyst for the charter agreement between Caledonian and Air Algerie. Thereafter, the jury returned a verdict in the sum of *137 $64,500 in favor of Tower on the basis of its unjust enrichment claim.
II.
In deciding a motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b), the Court must inquire if the evidence presented a sufficient disagreement which would require its submission to the jury or whether the facts were so heavily weighted that one party must prevail as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986); Malarkey v. Texaco, Inc., 983 F.2d 1204, 1213 (2d Cir.1993). The court in Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C.Cir.1988), cert. denied, 493 U.S. 882, 110 S. Ct. 218, 107 L. Ed. 2d 171 (1989), relying on Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), explained:
[T]he question for us is not whether there was some evidence, but whether in terms of "the actual quantum and quality of proof necessary to support liability," there was sufficient evidence upon which a jury could properly base a verdict for the [plaintiffs].... To survive a motion for judgment n. o. v., the evidence [plaintiffs] introduced had to be more than merely colorable; it must have been significantly probative if the jury's verdict is to stand.
857 F.2d at 828-829 (footnotes omitted); accord Metromedia Co. v. Fugazy, 983 F.2d 350, 359 (2d Cir.1992).
In its motion, Caledonian submits that this Court erred in its determination as a matter of law that Tower need not produce legally sufficient signed writings in order to sustain a claim for unjust enrichment. According to Caledonian, the jury in the case at bar was erroneously instructed as follows:
In the Plaintiff's second cause of action, it claims that even if there was no contract between the parties, the Defendant was unjustly enriched by the Plaintiff's services. Unjust enrichment is an equitable remedy that is designed to ensure a just result where there is no contract and none was intended.
In order to recover under a theory of unjust enrichment, the Plaintiff must show that:
(1) a benefit was conferred upon the Defendant; and
(2) as between the two parties, enrichment of the Defendant was unjust.
Thus, if you find that there was no contract between the parties, but that the Plaintiff was the procuring cause of the Defendant's charter to Air Algerie, and that the Defendant was unjustly enriched by the Plaintiff's actions, you must find for the Plaintiff.
In retrospect, the instructions relating to the Statute of Frauds issue, which were issued to the jury and have been challenged by Caledonian in the instant motion, are contrary to the prevailing law of New York. Hence, Caledonian's motion for a judgment as a matter of law must be granted.
A. Unjust Enrichment
Tower's second cause of action is best described as one for quantum meruit or a restitutionary action to prevent unjust enrichment. See New York v. SCA Services, Inc., 761 F. Supp. 14, 15 (S.D.N.Y.1991). It does not arise from the breach of a written contract, but rather from a "quasi" or an "implied in law" contract:
A quasi or constructive contract rests upon the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another. In truth, it is not a contract or promise at all. It is an obligation which the law creates, in the absence of any agreement, when and because the acts of the parties or others have placed in the possession of one person money, or its equivalent, under such circumstances that in equity and good conscience he ought not to retain it, and which Ex aequo et bono belongs to another. Duty, and not a promise or agreement or intention of the person ought to be charged, defines it. It is fictitiously deemed contractual, in order to fit the cause of action to the contractual remedy.
Bradkin v. Leverton, 26 N.Y.2d 192, 196, 309 N.Y.S.2d 192, 257 N.E.2d 643 (1970). See also Saunders v. Kline, 55 A.D.2d 887, 888, *138 391 N.Y.S.2d 1, 2 (1977), quoting, Miller v. Schloss, 218 N.Y. 400, 407, 113 N.E. 337, 339 (1916).
This theory of recovery is founded upon unjust enrichment rather than a contractual duty. Thus, a plaintiff need not produce evidence of a written agreement:
[A] quasi-contractual obligation is one imposed by law where there has been no agreement or expression of assent, by word or act, on the part of either party involved. The law creates it, regardless of the intention of the parties, to assure just and equitable results.
Bradkin, 26 N.Y.2d at 196, 309 N.Y.S.2d 192, 257 N.E.2d 643 (citations omitted). A plaintiff, who seeks recovery pursuant to a quasi contract, must establish (1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation, and (4) the reasonable value of the services. Longo v. Shore & Reich, Ltd., 25 F.3d 94, 98 (2d Cir.1994). Not only is the production of a written agreement unnecessary, "[t]he pre-requisite for [a quasi contract] is that there be no express agreement dealing with the same subject matter." Julien J. Studley, Inc. v. New York News, Inc., 70 N.Y.2d 628, 629, 518 N.Y.S.2d 779, 512 N.E.2d 300 (1987).
The standards, which have been set forth above, formed the basis of the instructions to the jury relating to the unjust enrichment issue.
III.
Caledonian maintains that the Statute of Frauds precludes Tower's unjust enrichment cause of action because the alleged brokerage agreement had not been memorialized in a legally sufficient writing. In its verdict, the jury found, in part, that Tower had not produced a sufficiency of writings which would establish an employment relationship with Caledonian prior to the formalization of the lease agreement with Air Algerie. Thus, it was the conclusion of the jury that there was no written agreement between the parties to this controversy.
Hence, the issue to be resolved is whether a claim for unjust enrichment may stand in the absence of a writing or a collection of writings that would establish the essential terms of the contract between the parties.
Notwithstanding the common law elements which apply to claims for unjust enrichment, the New York legislature has delineated unique standards for agreements that involve claims for finder's fees. In recommending an amendment to N.Y. Gen. Oblig. L. § 5-701(a)(10), the New York Law Revision Commission characterized it as a clarification of the original intent of the statute. Minichiello v. Royal Business Funds Corporation, 18 N.Y.2d 521, 523, 277 N.Y.S.2d 268, 223 N.E.2d 793 (1966). The Commission stated that its purpose was to make clear that "the contracts required to be evidenced by a writing include a contract or agreement for the compensation of a business broker for acting as a `finder,' `originator' or `introducer,' or for assisting in the negotiation or consummation of the transaction, and that the requirement cannot be avoided by an action for compensation in quantum meruit." Id. at 525, 277 N.Y.S.2d 268, 223 N.E.2d 793, quoting N.Y.Legis.Doc., 1964, No. 65(F).
N.Y. Gen. Oblig. L. § 5-701(a)(10), as amended in 1964, reads as follows:
§ 5-701. Agreements Required to Be In Writing
a. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking:
* * * * * *
10. [This section applies to any] contract to pay compensation for services rendered in negotiating a loan, or in negotiating the purchase, sale, exchange, renting or leasing of any real estate or interest therein, or of a business opportunity, business, its goodwill, inventory, fixtures or an interest therein, including a majority of the voting stock interest in a corporation and including the creating of a partnership interest. "Negotiating" includes procuring an introduction to a party to the transaction or assisting in the negotiation or consummation of the transaction. This provision *139 shall apply to a contract implied in fact or in law to pay reasonable compensation but shall not apply to a contract to pay compensation to an auctioneer, an attorney at law, or duly licensed real estate broker or real estate salesman. (emphasis added).
Thus, according to New York law, a "contract to pay a finder's fee must, of course, be in writing and obviously, this requirement may not be avoided by an action for compensation in quantum meruit." Bradkin v. Leverton, 26 N.Y.2d 192, 309 N.Y.S.2d 192, 257 N.E.2d 643 (1970). See also Minichiello v. Royal Business Funds Corporation, 18 N.Y.2d 521, 525, 277 N.Y.S.2d 268, 223 N.E.2d 793 (1966) (recovery in quantum meruit by finders or brokers precluded by statute); Philo Smith & Co., Inc. v. USLIFE Corporation, 554 F.2d 34 (2d Cir.1977) (absence of effective written note or memorandum of agreement generally fatal to action for finder's fee on basis of express, implied or quasi contract theories); Davis & Mamber, Ltd. v. Adrienne Vittadini, Inc., et al., 212 A.D.2d 424, 622 N.Y.S.2d 706, 707 (statute of frauds bars quantum meruit claims where writing insufficient to establish contract to procure services of broker).
In summary, while a plaintiff may ordinarily recover for services that were rendered in the absence of a contract under a theory of unjust enrichment, the New York legislature specifically restricted such a claim when the services are rendered by a broker. In so doing, it sought to reduce the amount of unfounded and multiple claims for commissions that are frequently asserted. Minichiello v. Royal Business Funds Corporation, 18 N.Y.2d 521, 526, 277 N.Y.S.2d 268, 223 N.E.2d 793 (1966).
In the case at bar, Tower's claim for unjust enrichment against Caledonian is based upon writings which the jury found insufficient to establish an employment relationship. Under New York law, this claim cannot stand. Thus, Caledonian's motion for judgment as a matter of law must be granted.
IV
For the reasons that are stated above, Caledonian's motion for a judgment as a matter of law is granted. Tower's motion for a new trial is denied.
IT IS SO ORDERED.
NOTES
[1] In its motion, Tower contends that "the jury verdict on the issue of damages was against the weight of the evidence and that the jury did not follow the Court's instructions." (Tower's Memorandum at 1). Tower argues that "[p]ursuant to this Court's instructions and Rule 36 of the Fed. R. Civ. Proc. the jury was required to find that the reasonable value of the benefit conferred on Caledonian Airways by the Plaintiff Tower International was $160,280.88, five percent of the amount Caledonian Airways received from Air Algerie." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2570585/ | 7 P.3d 708 (2000)
169 Or. App. 157
STATE of Oregon, Appellant Cross-Respondent,
v.
Evahn G. PAETEHR, Respondent Cross-Appellant.
(970131CR; CA A100478)
Court of Appeals of Oregon.
Argued and Submitted October 29, 1999.
Decided July 12, 2000.
*709 Timothy A. Sylwester, Assistant Attorney General, argued the cause for appellant cross-respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Daniel Q. O'Dell, Deputy Public Defender, argued the cause for respondentcross-appellant. With him on the brief was David E. Groom, Public Defender.
Before De MUNIZ, Presiding Judge, and HASELTON and WOLLHEIM, Judges.
WOLLHEIM, J.
The state appeals from a judgment imposing a sentence for a crime category 4 and seeks a remand to the trial court to resentence defendant to a crime category 8. Defendant cross-appeals his conviction. We conclude that the state did not demonstrate that the grand jury intended that defendant's action be classified as a crime category 8 on the crime seriousness scale of the sentencing guidelines grid and affirm on the appeal. We also affirm on the cross-appeal.
The Hood River County Sheriff executed a search warrant at defendant's residence. The sheriff discovered and seized numerous live, drying, and dried marijuana plants, and assorted paraphernalia. The amount of marijuana seized was well in excess of 150 grams.
A grand jury indicted defendant for manufacture of a controlled substance, ORS 475.992(1), possession of a controlled substance, ORS 475.992(4), attempted assault of a public safety officer, ORS 163.208, and harassment, ORS 166.065. The first two counts of the indictment read:
"COUNT I
MANUFACTURE OF A CONTROLLED SUBSTANCE
ORS 475.992 Class A Felony
"The said defendant, on or about July 10, 1997, in the County of Hood River and State of Oregon, then and there being, did unlawfully and knowingly manufacture marijuana, a controlled substance.
"The State further alleges that the defendant knowingly possessed 150 or more grams of marijuana substance.
"COUNT II
POSSESSION OF A CONTROLLED SUBSTANCE
ORS 475.992 Class B Felony
"As part of the same act and transaction as alleged in Count I, the said defendant, on or about July 10, 1997, in the County of Hood River and State of Oregon, then and there being did unlawfully and knowingly possess marijuana, a controlled substance.
"The State further alleges that the defendant knowingly possessed 150 or more grams of marijuana substance."
*710 Prior to trial, counts II, III, and IV were dropped and defendant was tried only for manufacture of a controlled substance. The state proceeded to trial on a theory that defendant's manufacturing activities "involved" over 150 grams of marijuana and should be classified as a crime category 8 pursuant to ORS 475.996(1)(a).[1] The trial court gave the jury the following instruction on the elements of the manufacture of a controlled substance count:
"Oregon law provides that a person commits the crime of Manufacture of a Controlled Substance if that person unlawfully manufactures a controlled substance. In this case, to establish the crime of Unlawful Manufacture of a Controlled Substance, the State must prove beyond a reasonable doubt the following four elements: The act occurred in Hood River County; the act occurred on or about July 10, 1997; [defendant] unlawfully and knowingly manufactured a controlled substance listed in Schedule I; and the manufacture involved 150 or more grams of marijuana." (Emphasis added.)
The verdict form given to the jury posed two questions. The first asked whether defendant was guilty or not guilty of the crime of manufacture of a controlled substance. The jury responded by marking the "guilty" blank. The second asked, if defendant was guilty, whether or not "the manufacture involved 150 grams or more of marijuana." (Emphasis added.) The jury responded by marking the "yes" blank. Neither party objected to the form or the sufficiency of the verdict.
Before sentencing, defendant moved for an order in arrest of judgment regarding the jury's verdict on the aggravating factor or, in the alternative, for an order placing defendant's manufacture of a controlled substance conviction in crime category 4 of the felony sentencing guidelines grid. Defendant argued that the jury returned a verdict on an aggravating factor not alleged in the indictment, e.g., that the jury found that the manufacture involved 150 grams or more of marijuana, while the indictment merely alleged that defendant possessed 150 grams or more. At sentencing, the state argued that the "possession" language in the indictment was surplusage and that the court should place defendant's sentence in crime category 8. The court ruled that, while the verdict for the underlying manufacture of a controlled substance conviction was proper, possession of 150 grams or more of marijuana was not relevant to the manufacture count and aggravating subcategory factors. The court then ranked defendant's manufacture of a controlled substance conviction as a crime category 4 pursuant to ORS 475.996(3)(a)[2] and imposed a sentence of 24 months probation as prescribed by the sentencing guidelines.
The state appeals the trial court's crime seriousness ranking of defendant's conviction for manufacture of a controlled substance. That ranking is significant. Taking into account defendant's lack of criminal history, the presumptive sentence for a crime category 4 conviction is 24 months probation. OAR XXX-XXX-XXXX(1)(b). The corresponding presumptive sentence for a crime category 8 conviction is 16 to 18 months imprisonment. OAR ch. 213, app. 1. We review to determine whether the sentencing court committed an error of law when it ranked defendant's conviction as a crime category 4 offense. ORS 138.222(4)(b).
ORS 135.711 provides that "the accusatory instrument shall allege facts sufficient to constitute a crime or a specific subcategory of a crime in the Crime Scale * * *." That requirement is reiterated by ORS 475.996(4), which requires the state to *711 "plead in the accusatory instrument sufficient factors of a commercial drug offense under subsection (1) and (2)."
The relevant portion of ORS 475.996(1) provides:
"A violation of ORS 475.992 shall be classified as crime category 8 of the sentencing guidelines grid * * * if:
"(a) The violation constitutes delivery or manufacture of a controlled substance and involves substantial quantities of a controlled substance. For purposes of this paragraph, the following amounts constitute substantial quantities of the following controlled substances:
"* * * * *
"(E) One hundred and fifty grams or more of a mixture or substance containing a detectable amount of marijuana[.]" (Emphasis added.)
At issue is the meaning of the word "involves" in paragraph (1)(a). The state argues that the term "involves" includes possession and, therefore, the state properly pled sufficient factors of a commercial drug offense. Accordingly, the state argues, the conviction constituted a crime category 8 offense and the trial court erred when it classified the violation as a crime category 4 offense. Defendant responds that the statute uses the term "involves" only so that it can accommodate the alternate types of antecedent actsmanufacture or deliveryand alternate substances listed. Therefore, possession of marijuana in excess of 150 grams is not a subcategory enhancement for the manufacture of marijuana. Defendant further argues that in State v. Griffen, 131 Or.App. 79, 883 P.2d 1315 (1994), rev. den. 320 Or. 567, 889 P.2d 1300 (1995), we interpreted ORS 475.996(4) to constitute a strict pleading requirement. Consequently, under defendant's reasoning, because the state pled possession of 150 grams or more of marijuana, the trial court properly classified defendant's manufacturing conviction as a crime category 4 offense. ORS 475.996(3)(a).
Whether the term "involves" includes the act of possession presents an issue of statutory construction. To interpret the legislature's intent, we follow the familiar methodology established by PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). We begin with the text and context of the statute, giving words their plain, natural and ordinary meaning. Id. at 610-611, 859 P.2d 1143.
The relevant portion of ORS 475.996(1)(a) contains a single subject"the violation [of ORS 475.992]." The remainder of the sentence modifies that subject. First, the violation must constitute delivery or manufacture of a controlled substance. Second, the violation must involve a "substantial quantity" of a controlled substance as defined by the subsequent subparagraphs. A plain reading of that sentence suggests that the act constituting the violationdelivery or manufacturemust itself involve a substantial quantity. Furthermore, nowhere is it stated or implied that any act, other than the act constituting the violation of ORS 475.992, can satisfy the requirements of ORS 475.996(1)(a). That interpretation, however, is not conclusive.
The other provisions of the statute provide insight into the legislative scheme established by ORS 475.996. Paragraph (2)(b) addresses situations where a violation constitutes possession of a substantial quantity of a controlled substance. It states:
"(2) A violation of ORS 475.992 shall be classified as crime category 6 of the sentencing guidelines grid * * * if:
"* * * * *
"(b) The violation constitutes possession of:
"* * * * *
(E) One hundred and fifty grams or more of a mixture or substance containing a detectable amount of marijuana[.]" ORS 475.996 (emphasis added).
In that paragraph, no mention is made of manufacture or delivery of controlled substances. Thus, paragraph (2)(b) is similar to paragraph (1)(a) in that the substantial quantity that satisfies the (2)(b) requirement must be related to the actpossessionthat constitutes the violation.
By comparison, ORS 475.996(1)(b) addresses situations where possession, delivery or manufacture of a controlled substance occurs *712 under factors that may indicate other commercial drug activity. Pursuant to that paragraph, a violation of ORS 475.992 is classified as a crime category 8 when:
"(b) * * * A possession, delivery or manufacture is a commercial drug offense for purposes of this subsection if it is accompanied by at least three of the following factors:
"[(A)-(K) * * * listing factors.]"
Some of those factors are related to possession, others to delivery activities, and still others to manufacturing activities. ORS 475.996(1)(b) permits factors that are different in kind from the act constituting the violation to raise that violation to a crime category 8. For example, pursuant to paragraph (1)(b), a person could be convicted for possession of a controlled substance and, because that possession occurred under circumstances also constituting or implicating delivery and manufacture factors, that violation would be classified as a crime category 8.
The provisions of ORS 475.996(1) and (2) represent a complex legislative scheme. That scheme distinguishes between situations that involve delivery or manufacture only (paragraph (1)(a)), situations that involve possession only (paragraph (2)(b)), and situations that involve possession, delivery or manufacture of a controlled substance under circumstances that also constitute the other offenses (paragraph (1)(b)). When those provisions are examined together, the legislature's intention is unambiguous. We conclude that the legislature did not intend for ORS 475.996(1)(a) to apply to circumstances where the violation of ORS 475.992 constitutes manufacture of a controlled substance and the defendant merely possesses 150 or more grams of marijuana.
Because we reach that conclusion, we must also conclude that the state did not meet the requirement in ORS 475.996(4) that it plead facts sufficient to prove a commercial drug offense and raise defendant's conviction to a crime category 8. Despite the fact that the state proved at trial that the manufacture "involved" 150 grams or more of marijuana, it did not plead that fact. The state merely pled that defendant "possessed" 150 grams or more of marijuana. To satisfy the pleading requirements, the state should have pled that defendant "manufactured" 150 grams or more of a controlled substance or that the manufacture "involved" 150 grams or more. See State v. Strandquist, 57 Or.App. 404, 644 P.2d 658, rev. den. 293 Or. 483, 650 P.2d 928 (1982) (a pleading is sufficient if stated in the language of the statute). The state's pleading was insufficient.
However, our analysis does not end there. ORS 135.715 provides:
"No accusatory instrument is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of a defect or imperfection in a matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits."
The state argues that defendant had actual knowledge that the prosecution was seeking a subcategory enhancement to crime category 8 for the manufacturing count. Furthermore, because the state properly tried and convicted defendant, the state contends that the pleading error was one of form only and defendant was not prejudiced by that error. The state concludes that the trial court should have ordered that defendant serve a sentence prescribed by the sentencing guidelines for crime category 8. Defendant reiterates his Griffen argument that ORS 475.996(4) constitutes a strict pleading requirement and that any deficiency in the pleading was one of substance and not of form.
Article VII (Amended), section 5(3), of the Oregon Constitution, provides, in part, that "a person shall be charged in a circuit court with the commission of any crime punishable as a felony only on indictment by a grand jury." (Emphasis added.) The dissent in State v. Wimber, 315 Or. 103, 118-19, 843 P.2d 424 (1992) (Unis, J., dissenting), noted that indictments satisfy four objectives: (1) a notice function; (2) a double jeopardy function; (3) a judicial review function; and (4) a jurisdictional function. It is the last that is most relevant here. The jurisdictional function requires that the indictment is the product of a grand jury and ensures that the defendant is tried only for *713 an offense that is based on facts found by the grand jury indicting him. Id. at 119, 843 P.2d 424. Any amendment to the indictment must "not impermissibly circumvent or supersede the constitutional function of the grand jury by subjecting defendant to trial and conviction based on facts materially different from those presented to the grand jury." State v. Delaney, 160 Or.App. 559, 567, 984 P.2d 282, rev. den. 329 Or. 358, 994 P.2d 124 (1999). The same holds true for claims that a defect in the indictment constitutes "harmless error."
Here, we cannot determine whether the grand jury intended that the manufacturing conviction should be classified as a crime category 8. Although defendant was tried on the manufacture of a controlled substance count only, the grand jury indicted defendant on four counts. The state contends that the grand jury intended that a conviction on Count I would lead to a crime category 8 sentence for defendant. However, the same language"possession of 150 or more grams of marijuana"was included as an aggravating factor for both the first and second counts. Because the second count charged unlawful possession of a controlled substance, the grand jury could have reasonably intended that a sentence for the manufacturing violation be classified as a crime category 4 and that a sentence for the possession violation be elevated from a crime category 1 to a crime category 6 due to the enhancement factor. ORS 475.996(2)(b). The state submitted no evidence at trial, nor any on appeal, that the erroneous indictment was the result of a scrivener's error, that the grand jury was actually presented with evidence that the manufacturing (as opposed to possession) violation involved 150 or more grams of marijuana, or that the state even argued to the grand jury that it was seeking an enhancement of the manufacture of a controlled substance count from crime category 4 to crime category 8. In the absence of such evidence proving the grand jury's intent, we cannot conclude that the pleading error was a harmless defect in form.
We note that the facts here are distinguishable from those of Delaney, State v. Long, 320 Or. 361, 885 P.2d 696 (1994), cert. den. 514 U.S. 1087, 115 S. Ct. 1803, 131 L. Ed. 2d 729 (1995), and State v. Woodson, 315 Or. 314, 845 P.2d 203 (1993). In each of those cases the defendant challenged the adequacy of the indictment and, in each, the court noted the jurisdictional function of indictments. Yet each reached a result different from ours here. In Delaney, we held that there was no material difference between the conduct alleged in the indictment and the state's proof at trial. 160 Or.App. at 567, 984 P.2d 282. In Long and Woodson, the Supreme Court held that an amendment to an indictment was a permissible alteration in form. Long, 320 Or. at 370, 885 P.2d 696; Woodson, 315 Or. at 320, 845 P.2d 203. However, in each case, the prosecution bore its burden to submit evidence establishing that the jury intended to indict the defendant for a crime that was consistent with the evidence submitted at trial or with the amended indictment. Long, 320 Or. at 370-71, 885 P.2d 696; Woodson, 315 Or. at 316-17, 845 P.2d 203; Delaney, 160 Or.App. at 567, 984 P.2d 282. Here, the prosecution submitted no similar evidence.
Because the state did not demonstrate that the grand jury intended that defendant's violation be classified as a crime seriousness category 8 on the sentencing guidelines grid, the trial court properly classified defendant's violation as a crime seriousness category 4. We affirm on the appeal.
Defendant cross-appeals and his counsel filed a brief consistent with State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991). We affirm, without discussion, on the cross-appeal.
Affirmed on appeal and on cross-appeal.
NOTES
[1] A conviction for manufacture of a controlled substance is normally sentenced at crime category 4 of the sentencing guidelines. ORS 475.996(3). Certain subcategories of manufacturethose involving substantial quantities or that constitute a commercial drug offenseare sentenced at a crime category 8. ORS 475.996(1). The relevant statutory provisions are provided below.
[2] ORS 475.996(3) provides, in part:
"Any felony violation of ORS 475.992 not contained in subsection (1) or (2) of this section shall be classified as:
"(a) Crime category 4 of the sentencing guidelines grid * * * if the violation involves delivery or manufacture of a controlled substance[.]" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454884/ | 480 S.W.2d 623 (1972)
E. R. JONES, Appellant,
v.
The STATE of Texas, Appellee.
No. 44867.
Court of Criminal Appeals of Texas.
April 19, 1972.
Rehearing Denied June 21, 1972.
Dan J. Anderson, Richardson, for appellant.
Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
This is an appeal from a conviction for assault with a prohibited weapon where the punishment was assessed at 5 years.
The sufficiency of the evidence is not challenged. Suffice it to say that the evidence shows that on October 15, 1969 at approximately 2 a.m., Dallas Police Officer Health observed a car driving on a public street without lights. The car stopped in a parking lot and two figures jumped from the car. As he approached, one of the figures [whom he testified was the appellant] grabbed him around the neck and began to strangle him and stuck a .22 pistol in his stomach. As another officer approached, he testified he was finally able to free himself and disarm the appellant.
Testifying in his own behalf, the appellant, an escaped convict, made a judicial confession.
In his sole ground of error, he contends the court erred in admitting evidence of an extraneous offense. The contention is rather novel.
At the commencement of the jury trial, appellant and his counsel expressly agreed that the instant indictment and one charging the felony theft of an automobile could be tried together in one trial before the same jury. While this procedure is not normally utilized, it is not unauthorized where the appellant either does not object or expressly agrees to use such procedure. See Royal v. State, 391 S.W.2d 411 (Tex.Cr.App.1965).
During the trial, the State offered the testimony of the complaining witness in the theft case. While it is not altogether clear, the automobile in question apparently was the one in which appellant was a passenger shortly before his assault upon Officer Health.
*624 Before other evidence as to the theft was presented, the court granted appellant's motion for a mistrial as to the theft case.[1] The only case submitted to the jury was the assault with a prohibited weapon. No request for limiting instructions was made.
On appeal, appellant contends the introduction, without objection, of evidence as to the theft case was the improper introduction of an extraneous offense. Under the circumstances, we clearly cannot agree.
The judgment is affirmed.
NOTES
[1] While it is not clear from the record, it appears the mistrial was granted due to the unavailability of a defense witness for whom the court had issued a bench warrant, and the court's promise that if the witness could not be secured, he would entertain a motion for mistrial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1368818/ | 793 F. Supp. 251 (1992)
Richard J. LIVINGSTON and Chantiva Livingston, Plaintiffs,
v.
UNITED STATES of America, Defendant.
No. CIV 91-0001 S MJC.
United States District Court, D. Idaho.
February 6, 1992.
Thomas G. Walker, Jr., Boise, Idaho, for plaintiffs.
Maurice O. Ellsworth, U.S. Atty., D. Idaho, Boise, Idaho, Thomas Moore, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., for defendant.
MEMORANDUM DECISION.
CALLISTER, Senior District Judge.
The Court has before it cross-motions for summary judgment. The motions are fully briefed and at issue. Counsel have informed the Court that they desire to waive oral argument, and request the Court to *252 rule on the pleadings submitted. The Court will resolve the motions after reviewing the background of this litigation.
The plaintiffs, Richard and Chantiva Livingston, entered into a partnership in 1985 with Thomas and Sumalee Sharp to operate the Gold Rush Inn in Mountain Home, Idaho. There is no dispute that the partnership failed to pay over certain federal employment-related taxes in 1986 and 1987. Plaintiffs assert that in 1987, the Internal Revenue Service (IRS) collected $13,041.43 in funds belonging to the plaintiffs from a real estate closing escrow, and applied these funds to the employment taxes owed by the Gold Rush Inn partnership. Plaintiffs further allege that the IRS confiscated an additional $9,367.93 that was likewise applied to the tax deficiency.
On September 20, 1989, the plaintiffs filed a refund claim with the IRS. When that claim was denied on February 14, 1990, the plaintiffs filed this suit seeking $22,409.35 and a ruling that the plaintiffs are not responsible for the partnership's unpaid employment taxes. Both sides have now filed motions for summary judgment. The Court must determine whether there exist any genuine issues of material fact. See Fed.R.Civ.P. 56(c).
The issue here is whether the plaintiffs are liable for their partnership's tax deficiency simply because the plaintiffs were partners, or whether the IRS must go further and establish that the plaintiffs were the partners with the responsibility for remitting the taxes. While state law appears to make partners liable simply because they are partners, there is a federal statute requiring a finding that the partner be "responsible" for remitting the taxes. To resolve what might appear to be a conflict, the Court will discuss first the state law, and then address the federal statute and its relationship to state law.
It is undisputed that plaintiffs were partners in a partnership that owes employment-related taxes. The Ninth Circuit has held that partners are "liable for the debts and liabilities of the partnership, including its tax liability ... until the taxes are paid or otherwise discharged...." Young v. Riddell, 283 F.2d 909, 910-11 (9th Cir. 1960). Because there is no specific reference in the IRS Code to the liability of partners as individuals for partnership tax obligations, the Circuit in Young must have been relying on state law establishing the joint and several liability of partners. Such liability is commonly found in state codes across the country, and is usually adopted from the Uniform Partnership Act. Idaho has a similar provision in Idaho Code § 53-315 which states:
All partners are liable: (1) Jointly and severally for everything chargeable to the partnership ...; [and] (2) [j]ointly for all other debts and obligations of the partnership....
This reference to state law to establish the individual liability of partners for the deficient taxes of the partnership has been adopted by other courts. United States v. Hays, 877 F.2d 843, 844 at n. 3 (10th Cir. 1989) ("Courts have assumed that the liability of a general partner for the tax obligations of the partnership is determined by state law rather than federal law."); Calvey v. United States, 448 F.2d 177, 180 (6th Cir.1971) ("[T]he Federal Revenue Code makes no specific reference to the liability of partners as individuals [for partnership tax obligations].... The governing law pertaining to the instant case is represented by two sections of the Uniform Partnership Act adopted by Michigan in 1922....").
But as alluded to earlier, this state-law imposition of liability on partners is not the last word on the subject. There is also a federal statute 26 U.S.C. § 6672 that appears to impose the same individual liability but only after a more stringent test has been met. That statute provides that a person responsible for remitting the federal employment taxes may be individually liable if he fails to satisfy his duty.[1] Individual *253 liability under § 6672 requires a finding that the individual was "responsible" for remitting the taxes.
The plaintiffs have submitted evidence indicating that their co-partners, the Sharps, were responsible for remitting the taxes, and that the plaintiffs had no managerial authority. The IRS responds that it is not using § 6672 as a defense, but is instead relying on 26 U.S.C. § 3403[2] and state law to hold plaintiffs liable. The IRS asserts that the partnership, as the employer, is liable for the taxes under § 3403, and state law makes the individual partners liable for partnership obligations regardless of responsibility or managerial authority.
The plaintiffs assert, however, that § 6672 sets forth the exclusive test for determining the individual liability of partners for the failure to remit employment-related taxes. The plaintiffs argue that this federal statute preempts state laws holding that partners are generally liable for the partnership debts. In essence, the plaintiffs' argument is that the Government must prove that the plaintiffs are "responsible persons" under § 6672 to impose personal liability on the plaintiffs.
The Code gives the IRS two options to collect deficient employment-related taxes. The IRS could sue either the entity/employer (corporation, partnership, etc.) under § 3403 or the individual responsible for remitting those taxes under § 6672. United States v. Huckabee Auto Company, 783 F.2d 1546 (11th Cir.1986). While the IRS could pursue either the entity or the individual, its policy is to collect only once. Id. at 1548. This scheme makes perfect sense in a corporate setting, especially where the delinquent corporation is a shell and the individual officers responsible for remitting the taxes have assets. An IRS suit against the corporation under § 3403 would be a waste of time and would not expose the individual officers to liability. That is the classic case where § 6672 comes into play to allow the IRS to collect the delinquent taxes from the officers who failed in their duty to remit the taxes over to the Government.
When partnerships are involved, however, the bright line between § 3403 and § 6672 blurs somewhat. If the IRS successfully pursues a partnership under § 3403, state law provisions making individual partners liable for partnership debt will mean that the partners are individually liable for the delinquent taxes. Thus, the IRS has exposed the partners to individual liability without being required to meet the more stringent standard of § 6672 requiring that the partners be shown to be persons responsible for remitting the taxes. The question arises: Did Congress intend § 6672 to preempt state laws and to require the IRS in every circumstance to prove that a partner is a "responsible person" before exposing that partner to individual liability? Asking the same question in a slightly different way, is § 6672 rendered superfluous in partnership cases because § 3403 is an easier route to the same goal?
It is well-established that the words of a statute are to be given meaning and not regarded as mere surplusage. In this regard it is important to note that § 6672 applies to far more than just partnerships, and in fact extends well beyond even the employer/employee relationship:
When § 6672 was enacted, its sweep was deliberately widened and generalized so that it embraced every one of the infinite variety of taxable situations encompassed by Title 26 in which some individual or entity was placed under a duty to collect and remit a tax to the Government.
Regan & Co. v. United States, 290 F. Supp. 470, 480 (E.D.N.Y.1968).
*254 The application of § 6672 to partnerships is just one of a myriad of applications of that statute. If the IRS started using § 3403 exclusively when partnerships were involved, § 6672 would certainly gather no dust: Its wide applicability would ensure its vibrancy. Even more important, it is easy to conceive of situations where state law might provide no individual liability for a partner under certain circumstances, and thus § 6672 would be the only means of recouping the taxes. This is the "backstop" or "catch-all" function that Congress envisioned for § 6672:
The legislative history of these provisions leads to the conclusion that § 6672 is a catch-all provision, applicable to a multitude of various code provisions, thus explaining its overlap with § 3401. It is not, as plaintiffs suggest, specifically designed to provide the only means by which an individual may be assessed for taxes owed by a defunct corporation, partnership, etc.
Baily v. United States, 355 F. Supp. 325, 330 (E.D.Pa.1973).
Taxes withheld from the wages of employees constitute a special fund held in trust for the benefit of the United States. Howard v. United States, 711 F.2d 729 (5th Cir.1983). The whole intent behind § 6672 is to facilitate, not restrict, the collection of these important trust fund taxes: "The primary purpose of this section is the protection of government revenue." United States v. Huckabee, supra, at 1548. Two other courts have examined directly the question whether § 6672 sets the exclusive standard for establishing the individual liability of partners, and both courts concluded that § 6672 was not exclusive but was intended to be used together with § 3403 and state law. Baily v. United States, supra, at 330; In re Ross, 122 B.R. 462 (Bkrtcy.M.D.Fla.1990). Given these circumstances, this Court finds that Congress did not intend to preempt state laws and make the collection of these taxes more difficult. See California v. Arc America Corp., 490 U.S. 93, 109 S. Ct. 1661, 104 L. Ed. 2d 86 (1989).
The plaintiffs argue next that they are not "employers" under 26 U.S.C. § 3401(d). But the partnership itself is clearly an "employer." 26 C.F.R. § 31.401(d)-1(c). That is all that is needed. Buckley v. United States, 76-1 U.S.T.C. ¶ 9473 (W.D.Texas 1976).
Plaintiffs also complain that no assessment was made against them individually as partners, but the assessment was only made against the partnership. Plaintiffs cite no authority indicating that such an assessment is insufficient. In the face of the absence of such authority, the Court finds that the assessment is sufficient.
Finally, the plaintiffs argue that the Government is estopped from asserting that § 6672 is not the exclusive means for the IRS to recover its tax. Plaintiffs assert that the IRS never revealed until February 14, 1990, that it was proceeding under § 3403 instead of § 6672. Plaintiffs' counsel has filed his own affidavit alleging that on numerous occasions prior to February 14, 1990, he had conversations with IRS officials concerning the liability of the plaintiffs and that these officials never once mentioned that liability could be imposed under a section other than § 6672.
In the Ninth Circuit, estoppel will apply against the Government "where justice and fair play require it." Watkins v. United States, 875 F.2d 699, 706 (9th Cir. 1989) (en banc). In addition, the plaintiffs must establish affirmative misconduct by the Government. Id. at 707. Mere negligence is not enough. Id. at 707.
Accepting plaintiffs' allegations as true, the IRS failed to advise plaintiffs of all the legal theories upon which the IRS intended to rely until February 14, 1990, a date well in advance of the present round of motions. The plaintiffs fully briefed the § 3403 issue, and make no claim that their argument was impaired in any way by delay or concealment on the part of the IRS. The plaintiffs have not established any prejudice from the Government's conduct. The Court therefore can find no merit in the plaintiffs' estoppel claim.
*255 In sum, the Court finds that it will grant the motion for summary judgment filed by the Government and deny the motion for summary judgment filed by the plaintiffs.
The Court notes also that the Government has filed a motion to file a sur-reply memorandum. The plaintiffs have objected to the filing of the memorandum and have moved to strike it. The Court finds that there is no need for the sur-reply memorandum and will therefore deny the Government's motion for filing and will grant the plaintiffs' motion to strike.
JUDGMENT
The Court has examined the entire record concerning the cross-motions for summary judgment. In accordance with the views expressed in the memorandum decision accompanying this judgment,
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the motion for summary judgment filed by the defendant United States be, and the same is hereby, GRANTED.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the motion for summary judgment filed by the plaintiffs be, and the same is hereby, DENIED.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Government's motion for consideration of sur-reply memorandum be, and the same is hereby, DENIED, and plaintiffs' motion to strike be, and the same is hereby, GRANTED.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant United States shall have judgment against the plaintiffs for its costs incurred herein, to be determined by the Clerk of Court after proper submission of cost bills.
NOTES
[1] 26 U.S.C. § 6672(a) reads as follows:
Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over....
[2] 26 U.S.C. § 3403 reads as follows:
Liability for tax: The employer shall be liable for the payment of the tax required to be deducted and withheld under this chapter, and shall not be liable to any person for the amount of any such payment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627204/ | 197 P.3d 905 (2008)
WHEELER
v.
FELECIANO.
No. 100478.
Court of Appeals of Kansas.
December 19, 2008.
Decision without published opinion. Reversed and remanded. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627207/ | 197 P.3d 1152 (2008)
223 Or. App. 761
STATE
v.
BARKER.
Court of Appeals of Oregon.
November 12, 2008.
Affirmed without opinion. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2075841/ | 98 N.Y.2d 575 (2002)
780 N.E.2d 174
750 N.Y.S.2d 573
RHONDA WEINGARTEN, as President of United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO, et al., Respondents,
v.
BOARD OF TRUSTEES OF THE NEW YORK CITY TEACHERS' RETIREMENT SYSTEM et al., Appellants.
Court of Appeals of the State of New York.
Argued September 5, 2002.
Decided October 22, 2002.
*576 Michael A. Cardozo, Corporation Counsel, New York City (Alan Beckoff, Stephen J. McGrath, Anshel David, Susan *577 Sanders and Jay Douglas Dean of counsel), for appellants.
Stroock & Stroock & Lavan LLP, New York City (Charles G. Moerdler, Alan M. Klinger and Faith A. Kaminsky of counsel), and Carol L. Gerstl for respondents.
Chief Judge KAYE and Judges SMITH, LEVINE, WESLEY and ROSENBLATT concur; Judge CIPARICK taking no part.
*578 OPINION OF THE COURT
GRAFFEO, J.
The issue presented by this appeal is whether certain hourly compensationknown as "per session" compensationearned by teachers in New York City public schools can be added to their base annual salaries for the purpose of calculating their retirement benefits. Under the statutory scheme governing pensions, we conclude that these earnings can be added to the teachers' pensionable salary base.
New York City teachers can earn additional compensation beyond their base annual pay by voluntarily engaging in what is referred to as "per session" employment, which is paid on an hourly or sessional basis. The collective bargaining agreement between the teachers and defendant New York City Board of Education (BOE) specifies the nature of per session work and sets the applicable rates of pay. In the contract, per session work is described as including such assignments as teaching summer school, evening or adult education classes, or working with various athletic and non-athletic extracurricular programs. Teachers must apply annually for these positions, and the BOE restricts their participation to only one designated activity,[1] establishes a compensation ceiling for each activity, mandates the submission of separate time sheets for per session work and compensates teachers for these services by issuing *579 checks separate from the teachers' regular payroll checks. While per session educational programs, particularly summer school sessions, have long been offered, the BOE's use of such employment has dramatically increased in recent years. The record in this case reveals that per session expenditures by the BOE exceeded $190 million in 1998 and grew to more than $232 million by 1999.
Plaintiffs are a group of New York City public school teachers and the president of their labor union. As salaried employees appointed to regular pedagogical positions, the teachers are members of the New York City Teachers' Retirement System (NYCTRS). Although the terms and conditions of per session employment are negotiated through collective bargaining, the determination of New York City teachers' retirement benefits is governed by articles 11, 14 and 15 of the Retirement and Social Security Law and title 13 of the Administrative Code of the City of New York. A significant component in the computation of their retirement benefits is the average salary received during the final years of service.
Beginning in the late 1990s, the teachers began to submit notices of claim demanding that their per session earnings be treated as pensionable compensation, which NYCTRS refused to do. Plaintiffs commenced this action in 1998 seeking a declaration that defendants' exclusion of this income from teachers' base salary calculations for retirement purposes was contrary to section 13-554 of the Administrative Code and sections 443 (a), 504 and 604 of the Retirement and Social Security Law.[2] Eventually both sides moved for summary judgment. Supreme Court ruled in plaintiffs' favor and ordered defendants to credit all per session compensation earned by NYCTRS members since the inception of the action in the formulation of the teachers' retirement benefits. The Appellate Division affirmed, finding no basis in the administrative and statutory framework to exclude per session compensation from the computation of pensionable salary. We granted leave to appeal and now affirm.
Defendants initially contend that NYCTRS' interpretation of the Retirement and Social Security Law, the Administrative Code of the City of New York and the relevant regulations is entitled to deference because it is not irrational and is based upon well-established BOE practices. We reject this *580 assertion. Determining the intended statutory meaning of "salary" in this case does not require "`knowledge and understanding of underlying operational practices or entail[] an evaluation of factual data and inferences to be drawn therefrom'" (Matter of Gruber [New York City Dept. of PersonnelSweeney], 89 NY2d 225, 231 [1996], quoting Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]). Rather, we are asked to resolve a question "of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent" (Matter of Guido v New York State Teachers' Retirement Sys., 94 NY2d 64, 68 [1999] [internal quotation marks omitted]). Consequently, de novo review is appropriate.
Defendants argue that per session compensation has been outside the scope of the definition of "annual salary" since the inception of teachers' retirement plans, and that subsequent legislative modifications of the retirement systemwhich have not specifically addressed per session compensationdid not adjust benefits to include this type of income. In contrast, plaintiffs contend that per session compensation is a form of regular compensation and therefore pensionable, primarily because per session income is not covered by the exclusions from "annual salary" set forth in the applicable statutes.
Our analysis begins with an overview of the administrative and statutory provisions controlling teachers' retirement. A system for providing teachers with pensions has existed for almost a century (see e.g. L 1917, ch 303; Matter of Katz v New York City Teachers' Retirement Bd., 291 NY 360, 367 [1943]). The Legislature has periodically amended the eligibility requirements for retirement benefits, the extent of monetary contributions by members to the retirement system and the method used to determine the amount of a teacher's pension upon retirement (see e.g. L 1973, ch 382; L 1976, ch 890; L 1983, ch 414). In evaluating whether per session compensation is pensionable, we are guided by several considerations, including the use of the term "salary" in the progression of NYCTRS statutes and regulations, the legislative intent evidenced in the modifications to the programs and the public policy that precludes artificial inflation of income before retirement.
The Legislature substantially revamped public employment retirement benefits on several occasions since 1971, thereby creating a four-tiered retirement system based on the date an employee joined a particular retirement system (see L 1973, ch 382; L 1976, ch 890; L 1983, ch 414). Tier I is the original membership category, dating back to 1917 (see L 1917, ch 303). *581 It is found in title 13, chapter 4 of the Administrative Code of the City of New York (see Administrative Code § 13-501 [52]). Membership is restricted to teachers who joined the NYCTRS prior to July 1, 1973 (see Retirement and Social Security Law § 440 [a]). Retirement benefits for Tier I members are calculated using the member's years of service and the "annual salary earnable" during the year preceding retirement or the "average annual salary earnable during any five consecutive years" selected by the member (Administrative Code § 13-501 [18-a] [b] [1]).
Article 11 of the Retirement and Social Security Law created Tier II (see L 1973, ch 382; Retirement and Social Security Law § 440 et seq.), open to teachers who began teaching on or after July 1, 1973 but prior to July 1, 1976 (see Retirement and Social Security Law § 440 [a]; § 500 [a]). Tier II pensions are based on years of service and a member's "final average salary," defined as "the average salary earned by such a member during any three consecutive years which provide the highest average salary" (Retirement and Social Security Law § 443 [a]). However, if the "salary or wages earned during any year included in the period" exceeds the average of the previous two years by more than 20%, that excess amount must be excluded from the salary computation (id.).
Tiers III and IV came into existence by the enactment of articles 14 and 15 of the Retirement and Social Security Law (see Administrative Code § 13-501 [54], [55]; L 1976, ch 890; L 1983, ch 414); Tier III covers members who joined the system between July 1, 1976 and September 1, 1983, and Tier IV covers those who joined after September 1, 1983 (see Retirement and Social Security Law § 500 [a]; § 600 [a]). Both tiers utilize the same formula for determining pensions, incorporating a "final average salary" component, that is, "the average wages earned * * * during any three consecutive years" (Retirement and Social Security Law § 512 [a]; § 608 [a]). The term "wages" is defined as "regular compensation earned by and paid to a member" (Retirement and Social Security Law § 501 [24]; § 601 [l]). Among its restrictions, a Tier III member's pension is reduced by 50% of the member's Federal Social Security benefit (see Retirement and Social Security Law § 511 [a]) and any single year salary year increase greater than 10% over the previous two years is excluded from the calculation of "final average salary" (see Retirement and Social Security Law § 512 [a]). Tier IV restrictions impose a similar 10% cap on compensation increases (see Retirement and Social Security Law § 608 *582 [a]). Tiers III and IV members make a monetary contribution to the retirement system through payroll deductions of a prescribed percentage of annual salary (see Retirement and Social Security Law § 517 [a]; § 613 [a]) for a requisite number of years (see e.g. Retirement and Social Security Law § 911 [b] [1] [contributions terminate after 10 years of eligible membership]).
Our task is complicated by the fact that the statutes creating Tiers I and II do not define "salary."[3] It is therefore helpful to examine the legislative history of the relevant provisions. The use of the phrase "annual salary" predates the adoption of the NYCTRSit appears in the predecessor statute establishing the New York City Public School Teachers' Retirement Fund in 1917 (see e.g. L 1917, ch 303). Both the Fund and the NYCTRS were "designed to provide an income related to actual earnings during employment" (Budget Report, Bill Jacket, L 1971, ch 503, at 10 [emphasis added]), indicating pensionable income was intended to include more than just anticipated base salary.
The practice of including certain one-time or lump-sum items of compensation, such as sick leave payments, termination pay and credits for unused vacation, to enhance final salary prior to retirement, led to legislative action curbing such perceived abuses. In 1971, the Legislature explicitly excluded certain types of payments from a member's salary base (see L 1971, ch 503, § 19; Retirement and Social Security Law § 431).[4] Retirement and Social Security Law § 431 provided that "the salary base for the computation of retirement benefits" for all publically funded retirement systems shall not include:
"1. lump sum payments for deferred compensation, sick leave, accumulated vacation or other credits for time not worked,
*583 "2. any form of termination pay,
"3. any additional compensation paid in anticipation of retirement, or
"4. that portion of compensation earned during any twelve months included in such salary base period which exceeds that of the preceding twelve months by more than twenty per centum."
Per session compensation is unlike exclusions one through three since those categories of payment are generally associated with service termination. Category four would, however, limit pensionable compensation to the extent that the addition of per session income exceeds the statutory cap.
Because these exclusions and the use of the term "salary" in section 13-501 (18-a) of the Administrative Code and section 443 (a) of the Retirement and Social Security Law address the same subject matterthe types of compensation and payments that are includable in the computation of retirement benefitsit is necessary to construe these provisions in a manner that "accord[s] respect to the[ir] interlocking and interrelated features" (Anglin v Anglin, 80 NY2d 553, 558 [1992]; see e.g. Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 91 [2001]). The Legislature's exclusion of particular forms of compensation or payments from the pension calculus implicates a long-settled principle of statutory construction: where the Legislature lists exceptions in a statute, items not specifically referenced are deemed to have been intentionally excluded (see Matter of Jewish Home & Infirmary of Rochester v Commissioner of N.Y. State Dept. of Health, 84 NY2d 252, 262-263 [1994]). Applying this canon of construction in these circumstances, we conclude that by failing to exclude per session compensation when it enacted Retirement and Social Security Law § 431, the Legislature evidenced an intent to allow per session compensation to be includable for pension purposes.
A similar intent can be discerned in the statutes creating Tiers III and IV. They define "final average salary" as "wages" (Retirement and Social Security Law § 512 [a]; § 608 [a]), which in turn means "regular compensation" (Retirement and Social Security Law § 501 [24]; § 601 [l]). Two common meanings of "regular" are "recurring or received at stated, fixed or uniform intervals" and "constituted, selected, conducted, made, or otherwise handled in conformity with established or prescribed usages, rules, or discipline" (Webster's 3d New Intl Dictionary *584 1913). Under these definitions, the nature and implementation of per session activities (see New York City School Chancellor Reg C-175) can be deemed "regular."[5] Moreover, because the BOE utilizes per session activities to provide legally-mandated educational instruction and commits vast monetary resources to provide those important services, it is evident that per session programs have become ingrained as fundamental, "regular" components of the New York City system of public education.
This interpretation is consistent with the per session practices of the New York State Teachers' Retirement System, which covers teachers in public schools outside of the City of New York. The applicable statutes for that system, similar to Tiers III and IV of the NYCTRS, use the terms "annual compensation" and "regular compensation" in defining "final average salary" (see Education Law § 501 [11] [a], [b]). The parties acknowledge on this appeal that the State TRS treats per session compensation as pensionable. Defendants present no reasonable basis justifying the disparate treatment of per session compensation by the NYCTRS and the State TRS, and our review of the NYCTRS statutory provisions reveals no reason to do so.
The inclusion of per session compensation in pensionable salary is also not inconsistent with the long-standing public policy prohibiting the inflation of earnings in the final years of public service (see e.g. Abbatiello v Regan, 205 AD2d 1027, 1028, lv denied 84 NY2d 808 [1994]). Defendants do not dispute that per session employment legitimately fulfills the BOE's educational obligations and provides students with needed services and extracurricular activities. It is clearly not a scheme designed to funnel additional compensation to soon-to-be retiring teachers in order to circumvent the strictures of the retirement system. As noted by the courts below, the potential for abuse is significantly curtailed by the regulations of the Chancellor of the New York City School Board (see New York City School Chancellor Reg C-175 [5], [6]), the BOE's continuing oversight of the per session system and the statutory provisions that restrict increases in annual salary over previous *585 years (see Retirement and Social Security Law § 431 [4]; § 512 [a]; § 608 [a]). Thus, the highly regulated nature of per session activities prevents artificial manipulation of total compensation in the preretirement period.
Defendants' remaining arguments, including their claim that estoppel bars any relief for plaintiffs, are unpersuasive. Thus, New York City public school teachers who are members of the TRS are entitled to have per session compensation included as "salary" for the purpose of calculating retirement benefits. The Supreme Court judgment, affirmed by the Appellate Division, did not provide teachers with retroactive relief. Those members who do not opt out under the terms of the judgment, thereby seeking inclusion of per session income earned since the commencement of this action, must reimburse NYCTRS for any contributions mandated by their retirement tier. Teachers who wish to prospectively include per session income in their salary base will likewise need to make contributions to NYCTRS if pension contributions are otherwise required.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Order affirmed, with costs.
NOTES
[1] Teachers may participate in more than one per session activity by obtaining a waiver from the BOE and may claim retention rights to a particular activity after two consecutive years of satisfactory performance.
[2] Plaintiffs withdrew their request for class certification in exchange for defendants' promise to extend any benefits derived from this action to other eligible NYCTRS members.
[3] We reject defendants' contention that the Administrative Code's definition of "teacher" supports their narrow construction of "salary." NYCTRS membership is open to "teachers," which refers, in part, to those employees of the New York City Board of Education who are "appointed to regular positions in the service of the public schools at annual salaries" (Administrative Code § 13-501 [7] [a]). Although it is true, as plaintiffs concede, that "salary" is used in that context to mean a fixed annual rate of compensation distinct from work performed on a hourly basis and that "regular positions" corresponds to a teacher's primary pedagogical assignment, the definition of "teacher" in this provision was intended to identify only those individuals who are eligible for NYCTRS membership.
[4] This statute would prove to be the first in a series of major legislative revisions to the NYCTRS in response to fiscal crises which ultimately led to the creation of Tiers II, III and IV (see generally Kleinfeldt v New York City Empl. Retirement Sys., 36 NY2d 95, 100 [1975]).
[5] Because per session work is predetermined and predictable, it is readily distinguishable from the services that were held to be nonpensionable in Matter of Martineau v McCall (217 AD2d 847, lv denied 86 NY2d 711 [1995]), Matter of Cannavo v Regan (122 AD2d 523, lv denied 68 NY2d 612 [1986]) and Matter of Mowry v New York State Empl. Retirement Sys. (54 AD2d 1062). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/811639/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7363
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AUBREY VALDEZ MOTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:08-cr-00165-JFA-1; 3:10-cv-70258-JFA)
Submitted: October 30, 2012 Decided: November 8, 2012
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Aubrey Valdez Moton, Appellant Pro Se. John David Rowell,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aubrey Valdez Moton seeks to appeal the district
court’s order denying relief on his 28 U.S.C.A. § 2255 (West
Supp. 2012) motion. The order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1)(B) (2006). A certificate of
appealability will not issue absent “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)
(2006). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that the district court’s
assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). When the district court
denies relief on procedural grounds, the prisoner must
demonstrate both that the dispositive procedural ruling is
debatable, and that the motion states a debatable claim of the
denial of a constitutional right. Slack, 529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Moton has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss the appeal. We
note that Moton’s claim for retroactive application of the
Supreme Court’s opinion in Carachuri-Rosendo v. Holder, 130 S.
Ct. 2577 (2010), and our opinion in United States v. Simmons,
2
649 F.3d 237, 241-45 (4th Cir. 2011) (en banc), fails in light
of our recent opinion in United States v. Powell, 649 F.3d 554
(4th Cir. 2012). We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED
3 | 01-03-2023 | 11-08-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2627277/ | 197 P.3d 659 (2008)
2008 UT App 405
Susan I. MOSS and Jamal S. Yanaki, Plaintiffs and Appellees,
v.
PARR WADDOUPS BROWN GEE & LOVELESS, Clark Waddoups, Jonathan O. Hafen, Justin P. Matkin, and John Does I-XX, Defendants and Appellants.
No. 20070826-CA.
Court of Appeals of Utah.
November 6, 2008.
*661 Alan L. Sullivan, James D. Gardner, and Katherine Carreau, Salt Lake City, for Appellants.
David W. Scofield and R. Reed Pruyn Goldstein, Salt Lake City, for Appellees.
Before Judges GREENWOOD, THORNE, and BENCH.
OPINION
BENCH, Judge:
¶ 1 Defendants Parr Waddoups Brown Gee & Loveless, Clark Waddoups, Jonathan O. Hafen, and Justin P. Matkin brought this interlocutory appeal to challenge the trial court's denial of their motion for partial summary judgment on a claim brought by Plaintiffs Susan I. Moss and Jamal S. Yanaki for breach of an oral settlement agreement. Defendants contend that the trial court erred in determining that a mediation confidentiality agreement (the Confidentiality Agreement), which was signed by all parties to the present suit except Moss, is ambiguous and that it does not prohibit Plaintiffs from introducing into evidence statements made in the course of the mediation. We conclude that the Confidentiality Agreement is not facially ambiguous and that it prohibits its signatories from disclosing the contents of the mediation. Furthermore, because the testimony of the only nonsignatory to the Confidentiality AgreementMosscontained inadmissible hearsay, Plaintiffs' claim of breach of oral settlement agreement fails as a matter of law. Accordingly, we reverse and remand for entry of partial summary judgment.
BACKGROUND
¶ 2 In 2002, Defendants represented Iomed, Inc. (Iomed) in an action against Yanaki (the Iomed case) for misappropriation of proprietary information and violation of a noncompetition agreement. On behalf of Iomed, Defendants sought two ex parte discovery orders that authorized the seizure of certain electronically stored data and other records maintained at the home of Yanaki and his wife, Moss. The state district court granted the orders, which directed law enforcement officers to take custody of these records with the assistance of Iomed. Subsequently, Plaintiffs filed suit against Defendants and others in federal district court, alleging violations of their civil rights resulting from the seizure of records from their home (the federal civil rights case).
¶ 3 In December 2003, several months after Plaintiffs brought the federal civil rights case, the parties to the Iomed case held a mediation in California. Immediately before the mediation began, the parties and their counselincluding Yanaki and Defendants signed a Confidentiality Agreement. The Confidentiality Agreement provided in part:
All statements made during the course of the mediation or in mediator follow-up thereafter at any time prior to a complete settlement of this matter are privileged settlement discussions, are made without prejudice to any party's legal position, and are non-discoverable and inadmissible for any purpose in any legal proceeding.
The Confidentiality Agreement further stated that "[n]o aspect of the mediation shall be relied upon or introduced into any arbitral, judicial, or other proceeding." Although it was not exhaustive, the Confidentiality Agreement included a list of three specific mediation communications that could not be introduced in another proceeding: "(a) [v]iews expressed or suggestions made with respect to a possible settlement of the dispute; (b) [a]dmissions made in the course of the mediation proceedings; and (c) [p]roposals made or views expressed by the mediator or the response of any party." Finally, the Confidentiality Agreement stated:
The mediator shall not be compelled to disclose or to testify in any proceeding as to (i) any records, reports, or other documents received or prepared by the mediator or (ii) information disclosed or representations made in the course of the mediation or otherwise communicated by or to the mediator in confidence.
¶ 4 The California mediation lasted one day, but no written settlement agreement resulted from it. Ultimately, the parties in *662 the Iomed case executed a settlement agreement in August 2005. In the meantime, the federal district court dismissed the federal civil rights case on jurisdictional grounds. See Yanaki v. Iomed, Inc., 319 F.Supp.2d 1261 (D.Utah 2004), aff'd, 415 F.3d 1204 (10th Cir.2005).
¶ 5 In December 2005, Plaintiffs filed this suit in state court against Defendants for, among other claims, breach of contract.[1] Plaintiffs alleged that they had reached an oral agreement with Defendants to settle the federal civil rights case during the California mediation and that Defendants had breached this agreement by failing to pay them a large sum.
¶ 6 Defendants moved for partial summary judgment on the breach of contract claim, arguing that it was barred by (1) the Confidentiality Agreement executed at the California mediation, (2) California's statutory mediation privilege, and (3) Utah's statutory mediation privilege. More specifically, Defendants argued that all of the potential witnesses to the alleged oral agreement, including the mediator and Yanaki, were contractually and statutorily prohibited from testifying about events or statements made at the mediation. In the absence of such testimony, Defendants asserted, Plaintiffs could not prove their breach of contract claim.
¶ 7 In response, Plaintiffs argued that the Confidentiality Agreement was ambiguous or had been waived. Plaintiffs claimed that the signatories to the Confidentiality Agreement intended only to prohibit future disclosure of statements made during the mediation regarding the settlement of the Iomed case and not to prevent disclosure of statements made regarding the settlement of the federal civil rights case. To support their argument, Plaintiffs presented the trial court with affidavits from Moss, Yanaki, and one of the lawyers who attended the California mediation. In these affidavits, Moss, Yanaki, and the lawyer disclosed the purported contents of the mediation that related to the settlement of the federal civil rights case. The gist of these disclosures was that, during the California mediation, the parties to the Iomed case decided to try to settle the federal civil rights case along with the Iomed case. Plaintiffs allege that the parties agreed that Yanaki, Yanaki's attorney,[2] and the mediator could telephone Mosswho was not a party to the Iomed case, had not originally been invited to the mediation, and had not signed the Confidentiality Agreementto ask her to make a settlement offer to resolve her claims against Defendants. In her affidavit, Moss describes statements made by Yanaki, her attorney, and the mediator regarding the potential settlement of the federal civil rights case and the position of Defendants with respect to that settlement. Moss testified that she authorized her attorney to make a settlement offer on her behalf and that she understood that Defendants accepted the offer.
¶ 8 Defendants moved to strike several paragraphs in the affidavits submitted by Plaintiffs. With respect to Moss's affidavit, Defendants argued that many of her statements either lacked foundation or contained inadmissible hearsay. In particular, Defendants asserted that Moss's statement that she understood that Defendants had accepted her settlement offer constituted inadmissible double hearsay. In response, Plaintiffs argued that Defendants' acceptance of the offer was not hearsay because it was a verbal act and that the mediator's statement reporting Defendants' acceptance was not hearsay because it was an admission by a party-opponent given by the party's duly-authorized agent, the mediator.
¶ 9 Following a hearing, the trial court denied Defendants' motion for partial summary judgment and stated: "After reviewing the record in this matter, giving particular attention to the Confidentiality Agreement at *663 issue, the Court finds such is ambiguous with respect to its scope. Accordingly, extrinsic evidence must be considered and in this case, this evidence is greatly in dispute." The court declined to address the other disputed legal issues, such as waiver or applicability of California and Utah statutory privileges, "until the issues regarding the Confidentiality Agreement are resolved." The court also denied Defendants' motion to strike and explained its ruling by stating: "After reviewing the affidavits in question, this Court is persuaded [that] adequate foundation has been laid, that the statements are admissible under the circumstances, and that they are not offered for their truth or are subject to an exception to the hearsay rule."[3] We subsequently granted Defendants' petition for interlocutory appeal.
ISSUES AND STANDARDS OF REVIEW
¶ 10 "An appellate court reviews a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness ... and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citation and internal quotation marks omitted). "[W]hether a contract is ambiguous is a question of law reviewed for correctness." Tangren Family Trust v. Tangren, 2008 UT 20, ¶ 10, 182 P.3d 326; see also Daines v. Vincent, 2008 UT 51, ¶ 25, 190 P.3d 1269 (stating that the issue of whether a contract is facially ambiguous "presents a question of law to be determined by the judge").
¶ 11 "`The appropriate standard of review of a trial court's decision admitting or excluding evidence under rules 802 and 803 [of the Utah Rules of Evidence] depends on the particular ruling in dispute.'" TWN, Inc. v. Michel, 2006 UT App 70, ¶ 9, 131 P.3d 882 (quoting Hansen v. Heath, 852 P.2d 977, 978 (Utah 1993)). Although we generally "review a district court's ruling on the admissibility of evidence for an abuse of discretion," where a trial court's ruling "implicates legal questions, ... we review [the determination] for correctness." Id.
ANALYSIS
I. Contractual Ambiguity
¶ 12 Defendants assert that the trial court erred in determining that the Confidentiality Agreement was ambiguous on its face because the plain language of the agreement prohibited the disclosure of any aspect of the mediation, regardless of the specific subject matter or proposed use. In Daines v. Vincent, 2008 UT 51, 190 P.3d 1269, the Utah Supreme Court recently clarified the proper approach to determining the issue of contractual ambiguity. The supreme court first noted that "contractual ambiguity can occur in two different contexts: (1) facial ambiguity with regard to the language of the contract and (2) ambiguity with regard to the intent of the contracting parties." Id. ¶ 25. A judge must first determine that a contract is ambiguous on its face before it considers the second question of ambiguity regarding intent. See id. "[A] judge [may] ... review relevant and credible extrinsic evidence offered to demonstrate that there is in fact an ambiguity" on the face of the contract. Id. ¶ 31. Once the judge reviews this evidence, "a finding of ambiguity [is justified] only if the competing interpretations are `reasonably supported by the language of the contract.'" Id. (quoting Ward v. Intermountain Farmers Ass'n, 907 P.2d 264, 268 (Utah 1995)).
¶ 13 The supreme court explained, "even though we permit admission of extrinsic evidence to support a claim of ambiguity in contractual language, the claim `must be plausible and reasonable in light of the language used.'" Id. (quoting First Am. Title Ins. Co. v. J.B. Ranch, Inc., 966 P.2d 834, 837 (Utah 1998)). Thus, a judge's determination of "what the writing means begins and ends with the language of the contract." Id. ¶ 30. Importantly, the supreme court "did not intend that a judge allow surrounding circumstances to create ambiguity where the language of a contract would not otherwise permit." Id. ¶ 27; see also id. ¶ 31 ("[T]here *664 can be no [facial] ambiguity where evidence is offered in an attempt to obscure otherwise plain contractual terms.").
¶ 14 In this case, the parties' competing interpretations are not equally plausible and reasonable in light of the plain language of the Confidentiality Agreement. On its face, the Confidentiality Agreement prohibits the disclosure of "all statements made during the course of the mediation ... for any purpose in any legal proceeding," and it categorically states that "[n]o aspect of the mediation shall be relied upon or introduced as evidence in any arbitral, judicial, or other proceeding." (Emphases added.) This language does not distinguish between statements made during the mediation regarding the Iomed case and statements made during the mediation regarding other lawsuits; rather, it prohibits the disclosure of all statements, regardless of their subject matter or proposed use. The extrinsic evidence introduced by Plaintiffs shows at most an agreement for a limited waiver allowing disclosure to only Moss for the limited purpose of effectuating a settlement in the federal civil rights case, which settlement Moss herself understood to be confidential. Despite the aid of this extrinsic evidence, the plain language of the Confidentiality Agreement does not support Plaintiffs' interpretation that the Confidentiality Agreement was intended only to apply to future disclosures of statements made about the settlement of the Iomed case. The trial court therefore erred in ruling that there was ambiguity in the Confidentiality Agreement with respect to the agreement's scope.[4]
¶ 15 Given the unambiguous language in the Confidentiality Agreement, its signatories are prohibited from divulging any aspect of the contents of the mediation. As a result, testimony from the signatories may not be used to prove Plaintiffs' breach of contract claim. Because Moss did not sign the Confidentiality Agreement, however, she is not contractually prohibited from testifying regarding her statements, actions, or impressions on the day of the California mediation.
II. Admissibility of Evidence
¶ 16 Defendants nonetheless contend that the trial court erroneously determined that the double hearsay in Moss's testimonythat the mediator said Defendants accepted her settlement offerwas admissible for the purpose of proving Plaintiffs' claim for breach of oral settlement agreement. The case Murray v. Talmage, 2006 MT 340, 335 Mont. 155, 151 P.3d 49, is instructive of our analysis on this issue. In Murray, a plaintiff alleged that he had been fraudulently induced during a mediation into signing an agreement settling a dispute over the ownership of an aircraft and that the defendant had breached the settlement agreement. See id. ¶ 5. Over the defendant's objection, the plaintiff testified at trial that "the Mediator led him to believe the [aircraft's] logbooks were in order, when in fact they were `very incomplete.'" Id. ¶ 7. Although the plaintiff asserted that this testimony was "offered ... to show his state of mind," id. ¶ 14, the Montana Supreme Court observed that, in light of the plaintiff's claims, "there would be no point for [the plaintiff] to offer [the] evidence... except to establish the truth of what he asserted," id. ¶ 16. The court emphasized that the plaintiff's claims were "premised upon" the truth of his statement that the condition of the logbooks had been misrepresented. Id. The court thus concluded that the testimony contained inadmissible hearsay and that the trial court had exceeded its discretion by admitting it. See id. ¶ 19.
¶ 17 Like the plaintiff's claims in Murray, the claim for breach of oral settlement agreement here is premised upon the truth of the mediator's statements regarding Defendants' acceptance or rejection of Moss's settlement offer. One cannot prove a breach of contract claim without proving the actual *665 existence of a contract, including offer and acceptance. See Bair v. Axiom Design, LLC, 2001 UT 20, ¶ 14, 20 P.3d 388 ("The elements of a prima facie case for breach of contract are (1) a contract, (2) performance by the party seeking recovery, (3) breach of the contract by the other party, and (4) damages."); Williams v. Espey, 11 Utah 2d 317, 358 P.2d 903, 906 (1961) (stating that a binding contract is created upon unconditional acceptance of terms in an offer). Thus, like the lower court in Murray, the trial court in the instant case exceeded its discretion by admitting the hearsay in Moss's affidavit.
¶ 18 We would reach the same result even if Defendants' purported statement accepting Moss's settlement offer were considered nonhearsay under the verbal acts doctrine. See R. Collin Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence 529-30 (2007) (explaining that words carrying legal significance are considered verbal acts and defined as nonhearsay); 6 John H. Wigmore, Wigmore on Evidence § 1772 (Chadbourn rev. 1976) (same). Under this theory, the mediator's statement conveying that acceptance would need to fit an exception to the hearsay rule or be construed as nonhearsay to be admissible for purposes of proving a breach of contract claim. See generally Utah R. Evid. 805 ("Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules."). Contrary to Plaintiffs' contention, the mediator's statement does not qualify as a nonhearsay party-opponent admission relayed by a duly-authorized agent. A mediator, by definition, is not an agent of any party to a mediation; rather, he or she is "an individual who is neutral and conducts a mediation." Utah Code Ann. § 78B-10-102(4) (Supp. 2008); see also Utah Code Ann. § 78B-6-202(3) (Supp.2008) (defining an "ADR provider" as "a neutral person who conducts an ADR procedure"); id. § 78B-6-202(8) (defining "mediation" as a "private forum in which one or more impartial persons facilitate communication between parties to a civil action" (emphasis added)). Plaintiffs point to no other viable exception to the hearsay rule that would permit admission of the mediator's statement.
¶ 19 Admittedly, the trial court gives only a very brief explanation of its conclusion that the statements in Plaintiffs' affidavits were "admissible under the circumstances." To the extent that the "circumstances" included Plaintiffs' ability to "set forth specific facts showing that there is a genuine issue for trial" on their breach of contract claim, see Utah R. Civ. P. 56(e), the trial court exceeded its discretion in admitting the hearsay statements regarding Defendants' purported acceptance of Moss's settlement offer. To the extent that the trial court considered the mediator's statement nonhearsay as a party-opponent admission, it erred in its conclusion that a mediator was an agent.
¶ 20 Because the mediator's statement regarding Defendants' purported acceptance of Moss's settlement offer is inadmissible, Plaintiffs have failed to set forth admissible evidence to demonstrate a genuine issue for trial on their breach of contract claim. In short, they have not set forth admissible evidence that a settlement agreement was created. Accordingly, the trial court erred in denying Defendants' motion for partial summary judgment.[5]
CONCLUSION
¶ 21 The trial court erred in its conclusion that the Confidentiality Agreement was facially ambiguous because Plaintiffs' interpretation of the Confidentiality Agreement is not reasonable in light of the plain language of the agreement that prohibits disclosure of any mediation contents regardless of their subject matter. The trial court also exceeded its discretion in admitting hearsay testimony regarding the purported acceptance of Moss's settlement offer to the extent that such testimony was used to support the breach of contract claim. Given Plaintiffs' failure to set forth admissible evidence to *666 create a genuine issue for trial on their breach of contract claim, the trial court erred in denying Defendants' motion for partial summary judgment.
¶ 22 We therefore reverse and remand for entry of partial summary judgment in favor of Defendants.
WE CONCUR: PAMELA T. GREENWOOD, Presiding Judge and WILLIAM A. THORNE JR., Associate Presiding Judge.
NOTES
[1] The trial court dismissed Plaintiffs' claims for abuse of process, invasion of privacy, intentional infliction of emotional distress, trespass to land and chattels, conversion, and civil conspiracy on the ground that the judicial proceedings privilege and the First Amendment immunized Defendants against liability. These claims are not at issue in this appeal.
[2] The same attorney who represented Yanaki in the Iomed case represented both Yanaki and Moss in the federal civil rights case.
[3] The court also stated: "[T]o the extent such objectionable statements could have been offered for their truth, the Court did not consider them in this fashion."
[4] Because there is no facial ambiguity in the Confidentiality Agreement, the parties' intentions are determined solely from the language of the Confidentiality Agreement and there is no need to consider any additional extrinsic evidence to ascertain those intentions. See Daines v. Vincent, 2008 UT 51, ¶ 37, 190 P.3d 1269 ("[W]e do not need to resort to the admission of parol evidence on the question of [the parties'] intent, because absent a finding of facial ambiguity, the parties' intentions must be determined solely from the language of the contract." (internal quotation marks omitted)).
[5] Because these issues are dispositive, we need not address Defendants' alternative arguments regarding statutory mediation privileges. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627284/ | 197 P.3d 825 (2008)
STATE of Kansas, Appellee,
v.
Clifton Lane SCHOW, Appellant.
No. 96,820.
Supreme Court of Kansas.
December 12, 2008.
*827 Reid T. Nelson, of Capital and Conflicts Appellate Defender Office, argued the cause and was on the brief for appellant.
Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by JOHNSON, J.:
Clifton Lane Schow seeks review of the Court of Appeals' decision affirming the district court's denial of Schow's motion to withdraw his plea and affirming the district court's ruling on Schow's criminal history challenge. State v. Schow, 37 Kan.App.2d 941, 161 P.3d 222 (2007). We reverse, vacate the sentence, and remand.
FACTUAL AND PROCEDURAL BACKGROUND
Schow was originally charged with one count each of criminal threat and violation of a protective order. He entered into a plea *828 agreement with the State in which he agreed to plead guilty to the criminal threat count, a severity level 9 felony. In return, the State agreed to dismiss the second count and to recommend the mitigated sentence in the applicable grid box and "probation per LSIR at level of at least [residential] center if eligible under guidelines." Further, Schow's sentence was to run consecutive to a prior misdemeanor conviction on which probation had been revoked. In the preprinted plea agreement form the agreed disposition was indicated as probation, "if eligible."
At the August 5, 2005, plea hearing, defense counsel advised the court of additional discussions that had occurred during plea negotiations that had not been specifically noted in the written agreement. Schow was attempting to get his probation reinstated in the prior misdemeanor case so that he could "do both sentences at the Residential Center," i.e., serve the sentences from the prior misdemeanor and the current felony cases on probation at the Residential Center. According to defense counsel, the prosecutor on the current case had indicated a willingness to assist with Schow's efforts to get probation reinstated in the misdemeanor case. The prosecutor did not contest the accuracy of defense counsel's recitation.
Prior to accepting Schow's plea, the district court advised Schow that the minimum sentence for a level 9 felony would be 5 months and the maximum sentence would be 17 months. Further, the court advised that, unless Schow was a criminal history A or B, his sentence "would be presumptive probation ordinarily." After being advised by defense counsel that the parties believed Schow to be a criminal history D, the court stated, "If you are a D, then the sentence would be 11 months on the low side, 13 months on the high side, still presumptive probation." (Emphasis added.) The judge then clarified that he had no control over what the other judge assigned to the misdemeanor case might do. After ascertaining that Schow had been afforded time to discuss the matter with his attorney, the district judge further explained:
"THE COURT: I don't have a lot of discretion in a felony sentencing like I do in misdemeanors. So if you are a D, you are pretty much assured of 11, 12 or 13 months and getting probation initially because that will be what the sentencing guidelines tell me to do. The only fly in that ointment is that if Judge Phalen wouldn't put you on probation [in the misdemeanor case], then obviously you won't be able to do my probation. That could create some problem. And I don't know how to figure that out ahead of time."
After the foregoing recitation, defense counsel asked for time to speak with Schow to explain what the court had just said. Following that discussion, defense counsel asserted: "He understands." Schow then said, "Yes, your honor, that is fine."
Ultimately, the district court accepted Schow's guilty plea to criminal threat and dismissed the remaining count of the complaint. The court set sentencing for September 22, 2005.
A presentence investigation report (PSI) was prepared and, according to the face of the document, was submitted on September 8, 2005. The PSI reflected a criminal history category B, rather than D, because three prior person misdemeanors were aggregated and scored as a person felony.
Just prior to the sentencing hearing, Schow filed an objection to the criminal history reflected in the PSI. He specifically denied the validity of two misdemeanor domestic battery convictions out of Leon County, Florida, which were listed as items 4 and 5 on the schedule of prior convictions. The PSI indicated that the source of the information on the challenged convictions was a prior PSI, apparently from a 1997 Johnson County case. The court granted a 1-week continuance to permit the parties to retrieve a copy of the prior PSI from the archives.
At the continued hearing, defense counsel noted that there was a question as to the accuracy of the PSI, in that it reflected the occurrence dates of items 4 and 5 as 1992 and 2002, respectively, although both carried the same case number. Counsel observed that, from other information, it appeared that the discrepancy in dates might have been a typographical error. We note that the PSI *829 in the record on appeal, showing a file date of January 20, 2006, reflects the same 1992 conviction date for both items.
Defense counsel further noted that in the prior case, the defense had not objected to the inclusion of the two Florida misdemeanors in that PSI. Apparently, Schow had no reason to object in the prior case because the misdemeanors were not aggregated and did not impact the criminal history score. Although Schow continued to maintain that he had only one domestic battery conviction in Florida, the State took the position that Schow was bound by the prior criminal history schedule; that his current criminal history was B; that the plea agreement precluded a defense motion for departure; and that the court should proceed to impose the presumptive prison sentence. Defense counsel requested leave to withdraw because she perceived that the plea agreement precluded her from moving for departure, but her client believed that a dispositional departure to probation was appropriate under the circumstances. The district court indicated that it wanted to know Schow's correct criminal history before sentencing and directed the State to obtain factual information on the Florida convictions, suggesting that the State obtain certified copies of the conviction records.
On October 27, 2005, the court reconvened the sentencing hearing. However, before the district court could pronounce sentence, defense counsel renewed her motion to withdraw. Her recitation suggests that the judge and attorneys had met in chambers and that defense counsel anticipated that the court would rule that Schow's criminal history had been fixed by the prior PSI and that he was precluded from requesting a dispositional departure by the plea agreement. The court granted defense counsel's motion to withdraw as Schow's attorney.
After the district court appointed new counsel, a hearing was held on January 5, 2006. The transcript indicates that, at some point, the district court had previously ruled that the State had satisfied its burden of proving Schow's criminal history by presenting the prior, uncontested PSI from the 1997 case. However, the court had apparently left the issue open, by permitting the defendant to present evidence that the criminal history in the prior PSI was not accurate. The court specifically said that the burden had shifted to the defendant to show that the prior criminal history schedule was not true. Defense counsel announced that she did not intend to proceed with any evidence to prove the negative that Schow did not have the two Florida convictions, but rather she would be proceeding upon the motion to withdraw plea which had been recently filed.
With respect to the motion to withdraw plea, the district court observed that it was clear to the court from the plea agreement that when the plea was entered "the parties expected probation at that point." Before announcing that the motion would be taken under advisement, the judge further opined:
"But I do see from the plea agreement that it talks about probation pursuant to the LSI-R. If the parties had known he was a B, they wouldn't have been talking about probation. I'm confident that at least at the time of the plea the parties were thinking that he was not a B and that was a surprise."
On January 17, 2006, the district judge continued his consideration of the motion to withdraw plea, ultimately denying the motion and summarizing its rationale as follows:
"So the only issue then is whether it's good cause when someone mistakenly believes they're going to get probation, pleads guilty with that understanding, and finds out later that criminal history wasn't as he expected. And I can'tI have read the Ford case. I can't see any case as close to this case in terms of what happened and consequences of what happened. And in that case, the Court of Appeals said that was not good cause. And I think I'm more or less bound by the Appellate Court decision on that even though I understand the mutual mistake aspect which was one of the criteria shown there. They're looking for more than just that here. Looking also for an assertion that the defendant actually was not guilty of the crime in addition to one of these other criteria."
The district court then proceeded immediately to sentence Schow to the mid-range *830 grid box sentence, based on a criminal history B, and imposed the presumptive imprisonment. Schow appealed, claiming that his case was factually distinguishable from State v. Ford, 23 Kan.App.2d 248, 930 P.2d 1089 (1996), rev. denied 261 Kan. 1087 (1997), relied upon by the district court, and that it was error to relieve the State from its obligation to prove the challenged Florida convictions.
COURT OF APPEALS DECISION
The Court of Appeals identified two issues: (1) whether the district court abused its discretion in denying Schow's motion to withdraw his guilty plea because both parties to the plea agreement were mistaken about his criminal history; and (2) whether the district court erred in requiring Schow to disprove the existence of the two prior misdemeanor convictions in Florida.
On the first issue, the panel unanimously found no fault with the denial of Schow's motion to withdraw plea, declaring that a "[m]utual mistake of the defendant's criminal history score, standing alone, is insufficient to justify withdrawal of a plea." Schow, 37 Kan.App.2d 941, Syl. ¶ 3, 161 P.3d 222. Further, the panel found that the record disclosed no evidence that Schow was not represented by competent counsel; that Schow failed to show that he was misled, coerced, mistreated, or unfairly taken advantage of; and that the information conveyed to Schow at the plea hearing established that the plea was fairly and understandingly made. 37 Kan.App.2d at 946-47, 161 P.3d 222. The opinion reviewed and relied upon three cases: State v. Ford, 23 Kan.App.2d 248, 930 P.2d 1089; State v. Haskins, 262 Kan. 728, 942 P.2d 16 (1997); and State v. Baldwin, 28 Kan.App.2d 550, 18 P.3d 977, rev. denied 271 Kan. 1038 (2001).
The panel was split on the second issue. The majority found that it was duty bound to follow the holding in State v. Hobbs, 276 Kan. 44, Syl. ¶ 8, 71 P.3d 1140 (2003), that a trial court is permitted to "take judicial notice of a defendant's presentence report filed in a previous case without objection instead of requiring the State to produce evidence to establish the disputed portion of the criminal history by a preponderance of the evidence." Accordingly, the majority found no error in the district court's procedure of shifting the burden to the defendant to disprove the convictions reflected on the previous case's PSI.
The dissent reviewed the statutory procedure for establishing a defendant's criminal history, noting that the State's initial burden is met by the PSI, unless the defendant files an objection to the report. If an objection is filed, K.S.A. 21-4715(c) provides that "[t]he state shall have the burden of producing further evidence to satisfy its burden of proof regarding any disputed part, or parts, of the criminal history." (Emphasis added.) See Schow, 37 Kan.App.2d at 950, 161 P.3d 222 (Malone, J., dissenting in part). The dissent would not have permitted the prior PSI to satisfy the "further evidence" requirement, because the validity of the Florida convictions had not been litigated on the merits in the prior proceeding, i.e., the elements of collateral estoppel had not been satisfied. 37 Kan.App.2d at 951, 161 P.3d 222.
The dissent acknowledged our prior holding in Hobbs but found the facts in that case to be distinguishable. Further, the dissent found Hobbs to be of questionable precedential value because of the absence of significant analysis in the opinion and its reliance on the holding in State v. Hatt, 30 Kan. App.2d 84, 86, 38 P.3d 738, rev. denied 273 Kan. 1038 (2002), which has been subsequently rejected by the Court of Appeals opinions in State v. Welty, 33 Kan.App.2d 122, 98 P.3d 664 (2004), and State v. Prater, 31 Kan.App.2d 388, 65 P.3d 1048, rev. denied 276 Kan. 973 (2003). Schow, 37 Kan.App.2d at 954, 161 P.3d 222.
The dissent opined that the district court's initial direction that the State prove the Florida convictions with certified journal entries was the correct procedure. Thus, the dissent would have remanded for resentencing with directions for the district court to place the burden on the State to establish Schow's correct criminal history score. 37 Kan. App.2d at 955, 161 P.3d 222.
BURDEN OF PROVING PRIOR CONVICTIONS
On review, Schow concentrates his arguments on the issue of whether the district *831 court erred in shifting the burden to him to refute the existence of both Florida misdemeanors. Thus, we take the liberty of discussing that issue first.
Our analysis will focus on an interpretation of the applicable statutes. "The interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the trial court's interpretation. [Citation omitted.]" State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
The statutes in play on this issue are K.S.A. 21-4714 and K.S.A. 21-4715. We begin with a review of each statute's content and apparent purpose.
K.S.A. 21-4714 begins in subsection (a) by directing that "[t]he court shall order the preparation of the presentence investigation [PSI] report by the court services officer [CSO] as soon as possible after conviction of the defendant." K.S.A. 21-4714(b) describes the information that is to be contained in the report, with the most notable subsection for our purposes, (b)(5), providing:
"(5) A listing of prior adult convictions or juvenile adjudications for felony or misdemeanor crimes or violations of county resolutions or city ordinances comparable to any misdemeanor defined by state law. Such listing shall include an assessment of the appropriate classification of the criminal history on the criminal history scale and the source of information regarding each listed prior conviction and any available source of journal entries or other documents through which the listed convictions may be verified. If any such journal entries or other documents are obtained by the court services officer, they shall be attached to the presentence investigation report. Any prior criminal history worksheets of the defendant shall also be attached." (Emphasis added.)
K.S.A. 21-4714(c) prescribes who is to have access to which parts of the report, and subsection (d) clarifies that a criminal history worksheet will not substitute for a PSI report. Subsection (e) precludes certain optional report components from inclusion in the report. Subsection (f), relied upon by the State, reads as follows:
"(f) The court can take judicial notice in a subsequent felony proceeding of an earlier presentence report criminal history worksheet prepared for a prior sentencing of the defendant for a felony committed on or after July 1, 1993." K.S.A. 21-4714(f).
Finally, subsection (g) directs that all PSI reports are to be submitted on a form approved by the Kansas Sentencing Commission.
It is readily apparent that K.S.A. 21-4714 was intended to address the preparation and submission of the PSI report. As noted above, K.S.A. 21-4714(b)(5) directs the CSO preparing the current PSI report to attach any criminal history worksheets previously prepared for the defendant. In that context, the apparent purpose of the judicial notice provision of subsection (f) would be to permit the court to consider the attached prior worksheets as part of the PSI report without further foundation from the preparer of the prior worksheet, who may well be unavailable for the current proceeding. In other words, the judicial notice provision deals with the admissibility of the prior worksheets.
In contrast, K.S.A. 21-4715 addresses the legal effect of the PSI report on the sentencing proceedings. Subsection (a) directs that either the defendant must admit to the reported criminal history in open court or the sentencing judge must determine the criminal history, by a preponderance of the evidence, at the sentencing hearing. The remaining two subsections read as follows:
"(b) Except to the extent disputed in accordance with subsection (c), the summary of the offender's criminal history prepared for the court by the state shall satisfy the state's burden of proof regarding an offender's criminal history.
"(c) Upon receipt of the criminal history worksheet prepared for the court, the offender shall immediately notify the district attorney and the court with written notice of any error in the proposed criminal history worksheet. Such notice shall specify the exact nature of the alleged error. The state shall have the burden of producing further evidence to satisfy its burden of *832 proof regarding any disputed part, or parts, of the criminal history and the sentencing judge shall allow the state reasonable time to produce such evidence to establish the disputed portion of the criminal history by a preponderance of the evidence." K.S.A. 21-4715.
Subsection (b) appears to extend the judicial notice provision of K.S.A. 21-4714(f) to the current criminal history worksheet. The court may admit the PSI report without the State providing further foundation or further proof of its contents, i.e., the preparing CSO need not testify and provide evidence to establish the veracity of the sources of his or her information.
However, subsection (b) is explicitly subject to the provisions of subsection (c), which permit the defendant to file specific written objections to the criminal history worksheet and require the State to carry the burden of proving the disputed parts by producing further evidence. While the PSI report has been initially admitted into evidence under K.S.A. 21-4715(b), the report is no longer conclusive proof of the disputed parts so as to satisfy the State's burden. The statute makes no exception for disputed parts which may have been contained in a prior criminal history worksheet.
The Court of Appeals majority relied upon the judicial notice provision of K.S.A. 21-4714(f) to affirm the district court's ruling that, even after the defendant files a written objection, a prior criminal history worksheet remains conclusive proof of its listed convictions, unless the defendant can disprove their existence. Schow, 37 Kan.App.2d at 948, 161 P.3d 222. Such a finding isolates a provision in the statute addressing the preparation and filing of the PSI report, K.S.A. 21-4714, and applies it to trump the clear language of the statute specifically addressing the legal effect of the report, K.S.A. 21-4715. It does not appear to be consistent, harmonious, or sensible to assign the burden of proof on disputed crimes based solely upon the source of the information utilized by the CSO to prepare the current worksheet. See McIntosh v. Sedgwick County, 282 Kan. 636, 642, 147 P.3d 869 (2006) (court should construe all parts of an act in pari materia and reconcile the different provisions so as to make them consistent, harmonious, and sensible).
Moreover, K.S.A. 21-4714(b)(5) provides that prior criminal history worksheets are to be attached to the current criminal history worksheet, i.e., the prior worksheets are a part of the current PSI report. Therefore, the provisions of K.S.A. 21-4715(c) requiring the State to produce further evidence to prove the "disputed part, or parts, of the criminal history" would necessarily apply to the disputed part or parts of the prior criminal history worksheet.
To be fair to the Court of Appeals majority, it dutifully followed the holding recited in State v. Hobbs, 276 Kan. 44, Syl. ¶ 8, 71 P.3d 1140, that a district court is permitted to "take judicial notice of a defendant's presentence report filed in a previous case without objection instead of requiring the State to produce evidence to establish the disputed portion of the criminal history by a preponderance of the evidence." In that case, the defendant had attempted to hold the State accountable in a subsequent sentencing for what the district court found to be a clerical error in the prior case by misclassifying a residential burglary as a nonperson felony. In other words, the Hobbs decision effected an application of the correct criminal history.
Without any independent analysis, Hobbs quoted from Hatt, 30 Kan.App.2d at 86, 38 P.3d 738. 276 Kan. at 57-58, 71 P.3d 1140. As the Court of Appeals dissent points out, that court has retreated from Hatt's judicial notice holding in favor of the more important consideration that a defendant be sentenced based upon an accurate criminal history calculation. Schow, 37 Kan.App.2d at 951-53, 161 P.3d 222; see State v. Welty, 33 Kan. App.2d 122, 98 P.3d 664, and State v. Prater, 31 Kan.App.2d 388, 65 P.3d 1048. Nevertheless, the district court in Hobbs did not blindly adopt the prior criminal history worksheet. It considered Hobbs' objection and made a finding that there had been a clerical error and calculated the current criminal history based upon its determination of the correct classification of the prior crime. Therefore, Hobbs' recitation of the Hatt rule was unnecessary to that decision.
*833 Moreover, criminal statutes must be strictly construed in favor of the accused, provided the judicial interpretation is reasonable and sensible to effect legislative design and intent. State v. Snow, 282 Kan. 323, 340-41, 144 P.3d 729 (2006). K.S.A. 21-4715(c) clearly provides a defendant the right to file a written objection to his or her criminal history worksheet and requires the State to carry the burden of producing further evidence to prove the convictions contained in the worksheet. To find that the burden shifts to the defendant to disprove convictions contained in a prior criminal history worksheet would require us to ignore the plain language of K.S.A. 21-4715(c) and employ an extremely liberal construction of K.S.A. 21-4714(f) in favor of the State.
Such a departure from our construction rules does not appear justified by legislative intent. The statutes lean toward maximizing the probability that a defendant will be sentenced with the correct criminal history score. For instance, in addition to providing for an opportunity for written objections, the legislature has provided that prior convictions discovered after a plea is accepted are required to be included in the criminal history score, K.S.A. 21-4707(c)(4). Likewise, upon any appeal, the appellate court can review a claim that the district court erred in including or excluding a prior conviction. K.S.A. 21-4721(e)(2).
Therefore, we find, as a matter of statutory interpretation, that a defendant may file a written objection to his or her criminal history worksheet, including those convictions which may have been contained in a previous criminal history worksheet, and that such an objection places the burden on the State to produce further evidence establishing the existence of the challenged conviction(s) by a preponderance of the evidence. Any suggestion to the contrary in Hobbs is disapproved. Here, the district court erred in shifting the burden to the defendant to disprove the existence of the disputed prior convictions. The sentence is vacated, and the matter remanded to the district court for a proper determination of criminal history and resentencing, if necessary.
Before moving to the next issue, we pause to note that we have not been presented with a situation in which the State could have asserted collateral estoppel to avoid relitigating the existence of a prior conviction. As the Court of Appeals dissent noted, an essential element of collateral estoppel is that the issue had been decided on its merits in the prior proceeding. Schow, 37 Kan.App.2d at 952, 161 P.3d 222 (citing Prater, 31 Kan. App.2d at 395, 65 P.3d 1048). Here, there was no prior judgment on the merits of the existence of the two Florida convictions. In the proper case, the State might be able to rely upon collateral estoppel to avoid repeatedly litigating the efficacy of the same prior convictions in successive sentencing hearings.
MOTION TO WITHDRAW PLEA
In his petition for review, Schow points to the district court's specific finding that both parties entered into the plea agreement with the idea and expectation that Schow would receive probation and asserts that such a mutual expectation provides good cause for withdrawing the plea. He further argues that the manner in which the prior criminal history was handled should have led the district court to grant the plea withdrawal motion.
K.S.A. 22-3210(d) specifically addresses the withdrawal of a plea of nolo contendere or guilty. It establishes two standards for the court. At any time before sentencing, the court may permit the plea to be withdrawn "for good cause shown and within the discretion of the court." However, after a sentence has been adjudged, the court may permit a plea withdrawal only "[t]o correct manifest injustice." K.S.A. 22-3210(d). Here, to avoid blurring the distinction between the standards, we clarify that this case presents a situation in which the lesser standard of "good cause" is applicable. The district court did not need to find a manifest injustice, such as a violation of due process. Cf. Ford, 23 Kan.App.2d at 252, 930 P.2d 1089 (in a good cause case, nevertheless finding that due process does not require the State to present an accurate criminal history prior to the court's acceptance of a plea).
*834 In reviewing a presentence denial of a motion to withdraw plea, we employ an abuse of discretion standard of review, as suggested by the language of the statute. Further, we require the defendant to bear the burden of establishing the abuse of discretion. State v. Harned, 281 Kan. 1023, 1042, 135 P.3d 1169 (2006). However, in order for the district court's decision to receive the full measure of that standard's deference, it must have been based upon a correct understanding of the law.
"Generally, the trial court's decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards. However, an abuse of discretion may be found if the trial court's decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. [Citations omitted.]" State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006).
As previously noted, the district court relied on the Court of Appeals' prior decision in Ford, which declared, inter alia, that "[t]o justify a motion to withdraw a plea prior to sentencing, the motion should allege that the defendant is not guilty of the offense charged." 23 Kan.App.2d 248, Syl. ¶ 1, 930 P.2d 1089. However, subsequently, this court refuted that prerequisite.
"It is apparent that this court does not require an allegation that defendant is not guilty as charged as a prerequisite for withdrawing a plea of guilty or nolo contendere prior to sentencing. Nor is there such a requirement in the statute, which bases withdrawal on good cause shown and on the discretion of the trial court." State v. Vasquez, 272 Kan. 692, 696, 36 P.3d 246 (2001).
Therefore, to the extent the district court refused to grant the motion to withdraw plea based upon an erroneous understanding of the law, i.e., that an allegation of innocence was a prerequisite, the ruling would be an abuse of discretion. However, the Court of Appeals did not focus on that aspect of the district court's ruling or that portion of the Ford decision. See State v. Hoge, 283 Kan. 219, 225-26, 150 P.3d 905 (2007) (district court's correct result can be affirmed notwithstanding an erroneous rationale).
The Court of Appeals began by listing the oft-cited factors which a district court should evaluate in determining whether good cause has been shown, i.e., whether "`"(1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made." [Citation omitted.]' State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006)." Schow, 37 Kan.App.2d at 944, 161 P.3d 222. Then, the opinion proceeded to determine that a mutual mistake as to criminal history is insufficient reason, as a matter of law, to permit a plea withdrawal. The Court of Appeals divined that rule from Ford, State v. Haskins, 262 Kan. 728, 942 P.2d 16 (1997), and State v. Baldwin, 28 Kan.App.2d 550, 18 P.3d 977, rev. denied 271 Kan. 1038 (2001), albeit the opinion duly noted the factual distinctions of Haskins and Baldwin. Specifically, the Supreme Court in Haskins found that a plea agreement did not exist in that case and the defendant in Baldwin actually received the probation for which he had plea bargained, even though his true criminal history score was lower than he believed it to be. 262 Kan. at 732, 942 P.2d 16.
En route to its determination that a mutual mistake about criminal history is not good cause, the Court of Appeals noted that the defendant in Ford had argued that his plea was not "intelligently" made because he had relied on the State's representation as to his criminal history score at the time he entered his plea. The opinion then quoted Ford's response to that argument, which was that there is "`no recourse for a plea unintelligently made.' 23 Kan.App.2d at 252[, 930 P.2d 1089]." Schow, 37 Kan.App.2d at 945, 161 P.3d 222. We pause to address that sweeping assertion.
While we would agree that a defendant should not get relief from a plea decision simply because he or she determines, in hindsight, that it was not the most intelligent course of action, that was not the argument *835 put forth in Ford. Rather, Ford argued that he had made his plea decision based upon misinformation from the State, i.e., that the plea was not "fairly and knowingly made." See Edgar, 281 Kan. at 36, 127 P.3d 986. In that context, Ford's summary response, which was completely unsupported by any authority, is difficult, if not impossible, to reconcile with Edgar's list of good cause evaluation factors.
Where a defendant has not had competent counsel, or where a defendant has been misled, coerced, mistreated, or unfairly taken advantage of, or where a defendant's plea has not been fairly and understandingly made, one would have to characterize the resultant plea as "unintelligently made." In that event, there is indeed recourse for the unintelligently made plea; the district court can and ordinarily should grant the motion to withdraw plea pursuant to K.S.A. 22-3210(d). Cf. White v. State, 203 Kan. 687, 690, 455 P.2d 562 (1969) ("If such plea is induced by promises or threats which deprive it of its voluntary character, it is void, and a conviction based thereon is open to collateral attack.").
Likewise, one might question the need to pronounce any rule with respect to a mutual mistake about criminal history. The district court is imbued with discretion to determine whether the defendant has shown good cause for a plea withdrawal, and our case law has proffered legitimate factors to consider in making that determination. We concur that a defendant cannot meet his or her good cause burden by merely declaring that the parties were mutually mistaken about the defendant's criminal history score. However, the circumstances giving rise to the mistake may well implicate the Edgar factors and should be available for consideration by the court.
The district court did not reach an analysis of the Edgar factors. In its summary review of the those factors, the Court of Appeals apparently completely ignored the circumstances surrounding the misinformed plea negotiations because of its declared rule on mutual mistake.
With respect to the first factor, the Court of Appeals stated that the record did not suggest that Schow was not represented by competent counsel. To the contrary, we find that the record raises a number of questions. An initial indication of performance problems might be found in the fact that defense counsel felt compelled to withdraw from the case in order to try to protect Schow's interests. Next, the current PSI indicated that the information about the Florida misdemeanors, which raised the criminal history score above that used in the plea bargain, was obtained from a prior PSI from the same district court. One might wonder whether it was reasonable for defense counsel to rely upon the State's representation of the number and severity level of prior convictions, when verification could be obtained from the court's record. Furthermore, in order to reach the higher score, the misdemeanors had to be aggregated and converted into a person felony, prompting a question as to whether the current mistake was prompted by counsel's failure to know or to apply the current sentencing guidelines.
With respect to the second factor, the Court of Appeals found no showing that Schow was misled, coerced, mistreated, or unfairly taken advantage of when he entered the plea agreement because the written agreement expressly stated twice that the State would recommend a probation sentence if Schow was eligible. The apparent suggestion is that Schow could not have been misled because he was explicitly informed that the probation recommendation was contingent. That notion is trumped by the district court's explicit finding that the parties entered into the plea agreement under the belief that the criminal history was D, i.e., that Schow was eligible for probation. Moreover, under the sentencing guidelines, the State's commitment in the plea agreement to recommend a probation sentence is of limited value. If Schow fell within a presumptive probation grid box and the court did not initiate its own departure procedure and make the requisite legal (not discretionary) findings, the district court would be required to impose probation regardless of what the State might recommend.
*836 More to the point, the inquiry is whether Schow was misled about his criminal history score or was induced to enter a plea because of assurances that his criminal history score was D. Any caveats in the written agreement or in the judge's recitation at the plea hearing might well be germane to the question of whether Schow had actually been misled or induced, but they need not be determinative. If a defendant is given assurances about his or her criminal history score which are based upon known facts, any caveats about what might happen if the score is different would be ineffectual to countermand those assurances. For instance, the disputed misdemeanors in this case were contained in the PSI of a prior case, yet they were apparently not aggregated in that prior case to score as a felony. The district court might well find that Schow was misled into believing the same misdemeanor convictions would receive the same legal treatment in the current case as they received in the prior case, i.e., that they would not increase the criminal history score.
For the third factor, the Court of Appeals found Schow's plea to be fairly and understandingly made because the district court advised him of his maximum sentence; the district court informed him that the sentencing court was not bound to the State's recommendation of probation; and the district court was aware that Schow's counsel separately conveyed this information to Schow, to which Schow replied, "Yes, your honor, that is fine."
If Schow reasonably believed the assertions of the prosecutor and defense counsel that his criminal history score was D, it is difficult to intuit what enlightenment Schow would find in the court's recitation of the maximum sentence which could be imposed upon a defendant with a score of A. This is especially true where the district court specifically recited the grid box range for a criminal history score of D.
Moreover, any statement that the sentencing court would not be bound by the State's recommendation of probation would have been misleading, at best. As noted previously, except for filing a motion for departure, the State has no influence on whether a defendant who falls within a presumptive probation grid box is sentenced to probation; the guidelines mandate that sentence. Furthermore, in this instance, the district court specifically told Schow that, if his score was D, he was "pretty much assured of ... getting probation initially because that will be what the sentencing guidelines tell me to do."
Further, the Court of Appeals took Schow's words, "Yes, your honor, that is fine," out of context. That statement referred to the district court's discussion of what might happen if the other judge who had presided over the other misdemeanor case refused to modify Schow's current jail sentence to also grant probation to the Residential Center in that other case. The statement did not manifest a realization that the plea might result in a presumptive prison sentence because both attorneys had misread the facts or the law applicable to Schow's true criminal history score.
Finally, the Court of Appeals recited the rule that when "there is a mutual mistake as to defendant's criminal history score, the trial court is obligated to sentence defendant on his true criminal history score." Baldwin, 28 Kan.App.2d at 552, 18 P.3d 977. While we agree with that statement, it has no relevance to the issue presented. Schow did not ask the district court to sentence him based upon the mistaken criminal history score. He asked to withdraw his plea.
In summation, a defendant seeking to withdraw his or her plea prior to sentencing has the burden to show the existence of good cause for permitting the plea withdrawal. In determining the existence of good cause, the district court should consider whether: (1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made. Where a defendant has pled guilty pursuant to a plea agreement which was based upon a mutual mistake as to defendant's criminal history score, the district court may consider the circumstances giving rise to the mutual mistake to the extent they may implicate the factors applicable *837 to the existence of good cause to withdraw a plea.
Below, the district court apparently did not apply the Edgar factors in its determination of whether good cause existed to permit Schow to withdraw his plea. Therefore, we reverse the district court's denial of Schow's motion to withdraw plea and remand for the district court to apply the appropriate legal standards to determine whether Schow established good cause and then to exercise its discretion to rule on the motion.
Judgment reversed, sentence vacated, and case remanded. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326573/ | Carey, Richard J., J.
Introduction
This case arises out of an accident which occurred when the plaintiff, Donna M. Rochon (“Rochon”) was struck by a bus operated by the defendant, Kenneth R. Labounty (“Labounty”), and owned by the defendant, Worcester Regional Transit Authority (“WRTA”). Rochon alleges that Labounty was negligent in the manner in which he operated WRTA’s bus, and that as a result of his negligence, Rochon sustained serious personal injuries. Rochon brings this action alleging negligence against Labounty, and a claim against WRTA, as Labounty’s employer, pursuant to Chapter 258. The defendants have filed a motion for summary judgment on all counts of the plaintiffs complaint. For the reasons stated below, the defendants’ motion for summary judgment will be allowed.
Background
The summary judgment record, when considered in favor of Rochon as non-moving party, indicates the following. In the early evening of Wednesday, May 27, 2009, the plaintiff, Donna M. Rochon, visited her father, Roger Sargentelli, who lived at 312 Greenwood Street in Worcester. Sargentelli had a pet beagle dog named Danger. Danger was an “inside dog.”
Shortly after Rochon left her father’s house, she received a call on her cell phone from her father. Her father told her that the dog had gotten out. Her father asked her to return and help him try and find the dog. Rochon returned to her father’s house and they then each got into their own cars and separately drove around the neighborhood looking for the dog. After approximately five minutes of unsuccessful looking, they both returned to 312 Greenwood Street.
Rochon was following her father. She watched as her father pulled his car over a couple of car lengths past the driveway to his house. Rochon pulled in front of 312 Greenwood Street. Rochon then observed her father get out of his car and walk into the middle of Greenwood Street. She then saw her father’s dog also in the middle of the street. She watched her father “scurrying” to get his dog. She saw him bend over trying to grab the dog. The plaintiff was concerned when she saw her father in the middle of the road. She quickly got out of her car with the intent to help her father capture the dog. In one continuous motion, she stepped out of her car and took two steps into the travel lane of the street. She was then immediately struck by the bus. She never looked in the direction the bus was coming from.
The most compelling evidence in support of the defendants’ motion for summary judgment is the video taken of the actual accident as it happened by a camera mounted in the front of the bus. The video reflects that Rochon got out of her car and walked directly in front of the bus without looking. The incident took a matter of seconds. The bus driver had no time to avoid Rochon.
Discussion
A motion for 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. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983). A principal purpose of the summary judgment motion is to “isolate and dispose of factually unsupported claims or defenses.” Kourouvacilis v. General Motors Corp., 410 Mass. at 713 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The moving party bears the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material fact. Id. at 17. Summary judgment is rarely appropriate in deciding negligence actions, because the question of negligence is usually a determination for the jury. Manning v. Nobile, 411 Mass. 382, 388 (1991). However this rule is not absolute. Id. In Alholm v. Wareham, the Supreme Judicial Court explained that by bringing their actions, the plaintiffs assumed the obligation to show that the negligence of the defendant caused the injury. This was an affirmative burden and could not be left to surmise, conjecture, or imagination. There must be something amounting to proof, either by direct evidence or rational inference of probabilities from established facts. While the plaintiff is not bound to exclude every other possibility of cause of his injury except that of the negligence of the defendant, she is required to show by evidence a greater likelihood that it came from an act of negligence for which the defendant is responsible than from a cause for which the defendant is not *620liable. If on all the evidence it is just as reasonable to suppose that the cause is one for which no liability would attach to the defendant as for which the defendant is liable, then a plaintiff fails to make out his case. 371 Mass. 621, 626-27 (quotations omitted).
Here the plaintiff has not met her burden of proof. While the bus driver had a duty to operate the bus in a reasonably careful and prudent manner, evidence of an accident, in and of itself, is not proof of negligence. Buda v. Foley, 302 Mass. 411, 412-13 (1939). The deposition testimony of Rochon and the bus driver are not inconsistent. Further, the video of the actual accident reveals that Rochon abruptly walked in front of the moving bus without looking. The plaintiff has offered no proof that she looked in the direction of the bus before she proceeded into the street, that the bus was speeding, or that the driver operated the bus in any way other than in a reasonable and safe fashion. There is no rational view of the evidence put forth by the plaintiff that will permit a jury to find negligence.
Order
For the foregoing reasons, it is therefore ORDERED that the defendants’ motion for summary judgment is ALLOWED. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2627285/ | ALLEN PAUL BRANCO, Petitioner-Appellant,
v.
STATE OF HAWAl'l, Respondent-Appellee
No. 28212.
Intermediate Court of Appeals of Hawaii.
December 15, 2008.
On the briefs:
Gale L. F. Ching, (Ching & Lee), for Petitioner-Appellant.
Jack N. Matsukawa, Deputy Prosecuting Attorney, County of Hawai'i, for Respondent-Appellee.
NOT FOR PUBLICATION
SUMMARY DISPOSITION ORDER
RECKTENWALD, C.J., WATANABE, and LEONARD, JJ.
This appeal stems from a Hawai'i Rules of Penal Procedure (HRPP) Rule 40 petition (Rule 40 Petition) filed by Petitioner-Appellant Allen Paul Branco (Petitioner or Branco) in the Circuit Court of the Third Circuit (circuit court) on April 17, 2003, seeking to vacate, set aside, or correct the April 18, 2001 judgment[1] convicting and sentencing him for kidnapping and sexual assault in the first degree, or release him from custody. On December 12, 2006, the circuit court[2] entered, Findings of Fact, Conclusions of Law, and Order Denying Petitioner's Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody" (Order Denying Rule 40 Petition). We affirm.
A.
As a result of events that took place on or around June 14 or 15, 1995, Branco was indicted for kidnapping, in violation of Hawaii Revised Statutes (HRS) § 707-720 (1) (d) (1993), and sexual assault in the first degree, in violation of HRS § 707-730(1) (a) (1993). On February 11, 1997, a jury found Branco guilty as charged, and on April 2, 1997, the circuit court entered its judgment convicting and sentencing Branco for both offenses.
Branco appealed, and on May 14, 1998, the Supreme Court of Hawai'i, in a memorandum opinion, held that Branco was denied effective assistance of counsel because his trial counsel failed to file a motion in limine to prevent the prosecution from examining Branco's co-defendant, Samuel Pua (Pua), regarding Pua's commission of, conviction of, and incarceration for murder in the second degree, and failed to obj ect to the presentation of such "clearly inadmissiblen evidence. The supreme court vacated Branco's convictions and remanded for a new trial.
To provide guidance to the circuit court on remand, the supreme court addressed other issues raised by Branco and held that: (1) the circuit court was not required to deliver an instruction requiring the jury to determine whether the kidnapping and sexual assault charges merged under HRS § 701-109 (1) (a) and (4) (1993); (2) the circuit court properly excluded all evidence relating to the taking of the blood samples of the complaining witness and the test results; (3) the failure of the police to properly preserve the blood samples of the complaining witness did not violate Branco's due-process rights; (4) the circuit court did not err in admitting a statement made by Branco during an interview with Lieutenant Glenn Nojiri (Lt. Nojiri) because "based on the entire record, it is clear that Branco voluntarily, knowingly, and intelligently waived the presence of counsel"; and (5) although the circuit court's use of hand polling of the jury "was permissible,... the preferable practice is for the trial court to elicit individual responses from the jurors."
On February 27, 2001, following retrial, a jury again found Branco guilty as charged. On April 18, 2001, the circuit court[3] entered its judgment convicting and sentencing Branco for kidnapping and sexual assault in the first degree. Branco appealed, raising the following points of error:
(1) The trial court erroneously precluded him from cross-examining the complainant as to whether she had a motive to fabricate the allegations of kidnapping and sexual assault; and
(2) He received ineffective assistance of counsel because (a) his attorney did not object to prosecution witnesses who repeatedly characterized the complainant as "the victim"; and (b) his attorney did not object when a police officer testified that he had determined there was a sexual assault.
On December 12, 2002, this court issued a summary disposition order affirming the April 18, 2001 judgment.
On April 17, 2003, Branco filed the underlying Rule 40 Petition, alleging the following grounds for vacating, setting aside, or correcting the judgment of conviction and sentence or to release him from custody:
(1) Newly Discovered Evidence: The testimony of
Lt. Nojiri during the second trial that there may have been only two vials of the complainant's blood, not three, was inconsistent with his prior testimony, indicating perjury, and therefore, all of Lt. Nojirifs sworn testimony is highly suspect.
(2) Conviction Obtained by Use of Coerced Statement: Lt. Noj iri failed to comply with his "promise" to Branco that the three vials of the complainant's blood would be tested to determine if the complainant had used the drug "crack-cocaine" on the night in question, which promise influenced Branco to waive his Miranda rights and rendered Branco's statement involuntary.
(3) Destruction of Known Exculpatory Evidence: The blood evidence was destroyed in "[b]ad [f]aith" and therefore, Branco was "entitled to a favorable spoliation inference based on the destroyed and missing evidence."
(4) Indictment Gained Through Prejudiced Grand Jury: In testifying before the grand jury, Lt. Noj iri misrepresented, withheld, and falsified evidence by: (a) withholding complainant's drug use and clearly contradicting statements made by complainant in her videotaped statement on June 16, 1995; (b) falsifying his own police reports, testifying that Branco and Pua both were "blaming each other [,] " and suggesting that Branco and Pua confessed to the charged crimes; and (c) falsifying the police report by Detective Ronald Aurello (Detective Aurello), thus bolstering complainant's credibility.
(5) Ineffective Assistance of Counsel: His trial counsel was ineffective for failing to: (a) call Pua and Detective Aurello as witnesses at trial; (b) request an instruction on mistake of fact when the evidence showed that Branco believed that the complainant had consented to sexual intercourse; and (c) object to a juror who saw Branco handcuffed and shackled.
(6) Prosecutorial Misconduct, Threatening Witnesses: The prosecutor and his investigator threatened retaliation against a defense witness who "would have testified that the Complainant abused the drug crack-cocaine[.]"
(7) Illegal Sentence: Branco has no prior felony record and his conviction on two or more charges in the same indictment should be treated as one conviction for sentencing purposes.
(8) Ineffective Assistance of Counsel on Direct Appeal: Branco's appellate counsel was ineffective for omitting all the grounds raised in Branco's Rule 40 Petition in Branco's direct appeal.
On December 12, 2006, following hearings held on April 14, 2005, July 22, 2005, and September 1, 2006, the circuit court entered its Order Denying Rule 40 Petition.
B.
Branco raises the following points on appeal:
(1) The circuit court erred in failing to rule on the voluntariness of Branco's statements to the police before allowing the statements into evidence at trial pursuant to [HRS §] 621-26 [(1993)];[4]
(2) The circuit court erred in allowing coerced statements to be presented to the jury;
(3) Branco was prejudiced by the bad-faith destruction of known exculpatory evidence;
(4) The indictment against Branco was flawed because it was gained through false grand-jury evidence;
(5) Branco received ineffective assistance of counsel at trial because his attorney did not: (a) call Pua to testify at trial, (b) call Detective Aurello to testify at trial, (c) request a jury instruction on mistake of fact,[5] and (d) object to or have removed a juror who saw Branco in shackles;
(6) The circuit court erred in ignoring the misconduct of the prosecutor and his investigator who threatened a defense witness;
(7) The circuit court illegally sentenced Branco to consecutive terms of imprisonment;
(8) The circuit court erred in vouching for the prosecutor's complaining witness; and
(9) The circuit court erred in allowing the jury to hear the hearsay testimony of the prosecutor's investigator.
C.
After a careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced, the issues raised, and the relevant statutes, rules, and case law, we resolve Branco's points of error as follows:
As to point (1), the supreme court determined in its May 14, 1998 memorandum opinion that Branco "voluntarily, knowingly, and intelligently waived the presence of counsel" when he made his statements to police on June 16, 1995. Therefore, it was not necessary for the circuit court on remand to rule on the voluntariness of Branco's statements to the police before allowing the statements into evidence at trial.
Points (2) and (3) were previously ruled on by the supreme court in its memorandum opinion, and therefore, relief pursuant to HRPP Rule 40 is not available. HRPP Rule 40(a) (3) .
Points (4), (5), and (6) are waived pursuant to HRPP Rule 40(a) (3) because Branco failed to raise these issues at any time prior to his Rule 40 Petition and failed to prove the existence of extraordinary circumstances to justify his failure to raise the issues.
As to Point (7), the record indicates that the circuit court imposed consecutive imprisonment sentences on Branco "to reflect the seriousness of [his] offenses." Based on our review of the record, we cannot conclude that the circuit court abused its discretion in sentencing Branco to consecutive terms of imprisonment. See HRS § 706-668.5 (1993); State v. Kahapea, 111 Hawai'i 267, 141 P. 3d 440 (2006) .
Points (8) and (9) are disregarded pursuant to Hawai'i Rules of Appellate Procedure Rule 28(b) (4) because Branco did not raise these issues in his Rule 40 Petition and raises them for the first time on appeal in his opening brief.
CONCLUSION
In light of the foregoing discussion, the "Findings of Fact, Conclusions of Law, and Order Denying Petitioner's Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody" entered by the circuit court on December 12, 2006 is affirmed.
NOTES
[1] The judgment was entered by the Honorable Riki May Amano.
[2] The Honorable Greg K. Nakamura presided.
[3] The Honorable Riki May Amano presided.
[4] HRS § 621-26 provides:
Confessions when admissible. No confession shall be received in evidence unless it is first made to appear to the judge before whom the case is being tried that the confession was in fact voluntarily made.
[5] In his opening brief, Branco asserts that his trial counsel was ineffective for not raising the "defense of ineffective consent" but argues that pursuant to HRS § 7 02-218, he was entitled to a jury instruction on mistake of fact as a defense. HRS § 702-218 (1993) provides:
Ignorance or mistake as a defense. In any prosecution for an offense, it is a defense that the accused engaged in the prohibited conduct under ignorance or mistake of fact if:
(1) The ignorance or mistake negatives the state of mind required to establish an element of the offense; or
(2) The law defining the offense or a law related thereto provides that the state of mind established by such ignorance or mistake constitutes a defense.
The defense of "ineffective consent" is set forth in HRS § 702-235 (1993), as follows:
Ineffective consent. Unless otherwise provided by this Code or by the law defining the offense, consent does not constitute a defense if:
(1) It is given by a person who is legally incompetent to authorize the conduct alleged; or
(2) It is given by a person who by reason of youth, mental disease, disorder, or defect, or intoxication is manifestly unable or known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness, of the conduct alleged; or
(3) It is given by a person whose improvident consent is sought to be prevented by the law defining the offense; or
(4) It is induced by force, duress or deception.
Based on the record in this case, we construe Branco's arguments as being predicated on the defense of mistake of fact, not ineffective consent. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627675/ | 206 P.3d 1222 (2009)
227 Or. App. 642
STATE
v.
BARBION.
Court of Appeals of Oregon.
April 22, 2009.
Affirmed without opinion. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3101439/ | Opinion issued July 22, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00346-CV
———————————
IN RE AMANDA BROUSSARD, Relator
Original Proceeding on Petition for Writ of Mandamus1
MEMORANDUM OPINION
On April 29, 2014, relator, Amanda Broussard, filed a petition for writ of
mandamus, seeking to compel the trial court to rescind an order allowing real party
in interest, the W. Kelly Vandever Revocable Trust, to enforce a final judgment as
successor in interest to The Bank of New York Mellon.
1
The underlying case is The Bank of New York Mellon v. Amanda Broussard, No.
13-CCV-050828, in the County Court at Law No. 2 of Fort Bend County, Texas,
the Honorable Jeffrey McMeans presiding.
We deny the petition for writ of mandamus.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Brown.
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2631538/ | 249 P.3d 125 (2011)
240 Or. App. 795
STATE of Oregon, Plaintiff-Respondent,
v.
Kandel Dereem ASHLEY, Defendant-Appellant.
C082767CR; A142661.
Court of Appeals of Oregon.
Submitted August 26, 2010.
Decided February 16, 2011.
Peter Gartlan, Chief Defender, and Ingrid A. MacFarlane, Deputy Public Defender, Appellate Division, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.
Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and NAKAMOTO, Judge.[*]
NAKAMOTO, J.
Defendant appeals a judgment of conviction for attempted aggravated murder, burglary, assault, sexual abuse, theft, and unlawful use of a weapon, contending that the trial court erred in imposing a requirement that he pay the fees of his court-appointed lawyer without first making findings concerning his ability to pay. We conclude that defendant's contention was not preserved, because he did not ask the trial court to make findings. We therefore decline to consider it.
Defendant pleaded guilty to the charged offenses. As part of his sentence, the sentencing court ordered defendant to pay $2,976 in court-appointed attorney fees. In light of the length of his sentence, defendant asked the court to waive imposition of the fees, but he did not specifically request findings on his ability to pay. The court declined to waive the fees, stating, "[N]ot that he'll ever pay them, but I'm not going to waive them." The court did not make findings concerning defendant's ability to pay. Defendant contends that the failure to make findings is reversible error.
Two statutes provide courts with authority to order criminal defendants to pay the costs of their court-appointed attorneys. The first, ORS 151.505, provides, in part:
*126 "(1) At the conclusion of a case or matter in which the first accusatory instrument or petition in the trial court was filed after January 1, 1998, and in which the court appointed counsel to represent a person, a trial, appellate or post-conviction court may include in its judgment an order that the person repay in full or in part the administrative costs of determining the eligibility of the person for appointed counsel and the costs of the legal and other services that are related to the provision of appointed counsel.
"(2) Costs repayable under this section include a reasonable attorney fee for counsel appointed to represent the person and a reasonable amount for expenses authorized under ORS 135.055. * * *
"* * * * *
"(4) The court may not order a person to pay costs under this section unless the person is or may be able to pay the costs. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the person and the nature of the burden that payment of costs will impose."
Similarly, ORS 161.665 provides for payment of court-appointed attorney fees as part of a sentence:
"(1) Except as provided in ORS 151.505, the court, only in the case of a defendant for whom it enters a judgment of conviction, may include in its sentence thereunder a provision that the convicted defendant pay as costs expenses specially incurred by the state in prosecuting the defendant. Costs include a reasonable attorney fee for counsel appointed pursuant to ORS 135.045 or 135.050 * * *.
"* * * * *
"(4) The court may not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose."
Both statutes permit a trial court to order payment of the costs of the defendant's court-appointed attorney upon a determination that the defendant "is or may be able to pay" them. In determining the amount of costs and the manner in which the defendant will pay them, the trial court must "take account of the financial resources" of the defendant and "the nature of the burden that payment of costs will impose." ORS 151.505(4); ORS 161.665(4).
In Bacote v. Johnson, 333 Or. 28, 33, 35 P.3d 1019 (2001), the Supreme Court described the requirements for imposing costs on a convicted defendant:
"ORS 151.505(4) * * * contemplates a two-step process. First, the court must determine if the person is or, in the future, may be able to pay costs and the amount of costs to be repaid. * * * Next, assuming that the person has the ability to pay costs, the court must determine the amount and the method of payment of costs. In making that determination, ORS 151.505(4) directs the court to `take account of' the person's financial resources and the nature of the burden that payment of costs will impose."
In Bacote, the Supreme Court reversed this court's affirmance of the trial court's imposition of court-appointed attorney fees because, the court said, there was "no indication in the record that the court made the determination of petitioner's ability to pay costs and the amount of costs to be repaid in the manner prescribed by ORS 151.505(4)[.]" Bacote, 333 Or. at 34, 35 P.3d 1019; see State v. Ross, 199 Or.App. 1, 15, 110 P.3d 630, adh'd to as modified on recons., 200 Or.App. 143, 113 P.3d 921 (2005), rev. den., 340 Or. 157, 130 P.3d 786 (2006) (holding that court erred in ordering the defendant to pay court-appointed attorney fees under ORS 161.665(3) (1999) without making findings with respect to the defendant's present ability to pay, as required by ORS 161.675(1)). Defendant asserts on appeal that the statutes and Bacote together require the sentencing court to make express findings concerning the defendant's ability to pay, and that the trial court erred in failing to make those findings here.
We decline to address defendant's contention that the court erred, because we *127 conclude that it is not preserved. As noted, at sentencing, after the court had imposed the sentence and ordered defendant to pay his court-appointed lawyer's fees in the amount of $2,976, defense counsel asked if the court would consider waiving payment of fees given defendant's lengthy sentence. Also as noted, the court declined. Defendant did not ask the court to make findings concerning his ability to pay. The Supreme Court has held, in many contexts, that preservation requirements apply to the error of failing to make special findings. Peeples v. Lampert, 345 Or. 209, 223, 191 P.3d 637 (2008) ("the usual rules of preservation apply to challenge a trial court's failure to make" the special findings required by Pamplin v. Victoria, 319 Or. 429, 877 P.2d 1196 (1994), in order to support a sanction of dismissal for a party's failure to appear at the party's own deposition); State v. Bucholz, 317 Or. 309, 855 P.2d 1100 (1993) (defendant did not preserve challenge to trial court's failure to make express findings in imposing consecutive sentences). The court stated its rationale in Peeples:
"Requiring a party to alert a trial court to its failure to make special findings that are material to the decision, given the issues framed by the parties, serves the salutary purpose of permitting the trial court to avoid making an error or to correct an error already made. The policies of using judicial resources efficiently and not blindsiding a trial court are strong ones that underlie preservation requirements in other contexts. Those policies are no less strong here."
345 Or. at 222-23, 191 P.3d 637. The same rationale that supported the Supreme Court's conclusion in Peeples applies in the context of any special findings that might be required under ORS 151.505 and ORS 161.665. Because defendant did not request special findings, we conclude that he has not preserved his challenge to the trial court's failure to make them.
We note that defendant does not contend that the failure to make findings is plain error under ORAP 5.45(1). Assuming that we were to conclude that it is plain error, however, we would decline in this case to exercise our discretion to review the error. See State ex rel. Dept. of Human Services v. J. N., 225 Or.App. 139, 145, 200 P.3d 615 (2009) (declining to exercise discretion to review plain error in failing to make required findings because, among other reasons, had the findings been requested, the trial court easily could have complied with the request). We note, further, that defendant does not contend that the sentencing court lacked authority to impose payment of attorney fees because there is an absence of evidence of his ability to pay them. See State v. Kanuch, 231 Or.App. 20, 24, 217 P.3d 1082 (2009) (defendant could not be ordered to pay court-appointed fees as part of his sentence absent evidence as to defendant's ability to pay the fees).
Affirmed.
NOTES
[*] Nakamoto, J., vice Landau, J. pro tempore. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2636190/ | 195 P.3d 230 (2008)
STATE of Kansas, Appellant/Cross-appellee,
v.
Steven M. McCARLEY, Appellee/Cross-appellant.
No. 95,818.
Supreme Court of Kansas.
November 7, 2008.
*233 Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with him on the briefs for appellant/cross appellee.
Patrick H. Dunn, of the Kansas Appellate Defender Office, argued the cause and was on the briefs for appellee/cross appellant.
The opinion of the court was delivered by NUSS, J.:
Steven M. McCarley was convicted by a jury of reckless aggravated battery, a severity level 5 person felony. The conviction, however, was erroneously classified as a severity level 8 person felony in the presentence investigation report. Because no one caught the error, the trial court sentenced McCarley to the appropriate grid sentence under the Kansas Sentencing Guidelines Act for a level 8 offense23 months' imprisonmentrather than the level 5 offense122 to 136 months' imprisonment.
When the State discovered the error, it filed a motion to correct an illegal sentence. When that motion was denied, the State appealed and McCarley cross-appealed. A split Court of Appeals rejected all allegations of error in State v. McCarley, 38 Kan. App. 2d 165, 166 P.3d 418 (2007). This court granted the respective petitions and cross-petitions for review under K.S.A. 20-3018(b).
The issues on appeal, and this court's accompanying holdings, are as follows:
1. Did the trial court have jurisdiction to correct a purported illegal sentence when the illegality favored McCarley? Yes.
2. Did the trial court lack jurisdiction to convict McCarley of level 5 reckless aggravated battery because that crime was never charged in the complaint and purportedly is not a lesser included offense of intentional aggravated battery? No.
3. Did the trial court err when it failed to instruct the jury that McCarley's actions had to be the proximate cause of the victim's injuries to find him guilty of reckless aggravated battery? No.
Accordingly, we reverse the judgments of the Court of Appeals and trial court on issue 1 and remand to the trial court to correct McCarley's illegal sentence. We affirm their judgments on issues 2 and 3.
FACTS
The essential facts are not in dispute. Steven M. McCarley backed his pickup into Nick and Sonya Cosentino's car in a Wichita parking lot. When McCarley refused to provide the Cosentinos with his name or insurance information, Sonya left to call the police. As McCarley was backing out to leave, Sonya ran to place herself directly behind the pickup, and it bumped her in the chest. When McCarley started to pull forward, Nick *234 jumped partway into the pickup cab and then fell out or was pushed.
McCarley was charged with two counts of aggravated battery, one against Sonya, and one against Nick. The jury also was instructed on lesser included offenses and, on count two involving Nick, was instructed on the elements of reckless aggravated battery, which required a finding that "McCarley recklessly caused great bodily harm or disfigurement to Nicola `Nick' Cosentino." This instruction thus described aggravated battery as contained in K.S.A. 21-3414(a)(2)(A), a severity level 5 person felony. The jury acquitted McCarley of the charges involving Sonya, but convicted him of reckless aggravated battery against Nick.
At sentencing, the presentence investigation (PSI) report incorrectly listed the conviction pursuant to K.S.A. 21-3414(a)(2)(B), reckless aggravated battery, but a severity level 8 person felony. Unlike the level 5 aggravated battery, which requires great bodily harm to be caused, the level 8 crime is defined as "recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm ... can be inflicted." (Emphasis added.) K.S.A. 21-3414(a)(2)(B). When the trial court inquired of counsel whether there was any question as to the severity level or criminal history shown in the PSI report, both counsel agreed that the report was correct. McCarley was then sentenced to 23 months' incarcerationan appropriate grid sentence under the Kansas Sentencing Guidelines Act, K.S.A. 21-4704, for a severity level 8 person felony with a criminal history score of A.
After time for appeal had expired, and approximately 34 days after sentencing, the State filed a motion to correct an illegal sentence under the authority of K.S.A. 22-3504. It argued that McCarley's sentence for a severity level 8 offense of aggravated battery under K.S.A. 21-3414(a)(2)(B) did not conform with the statutory provisions of a level 5 offense under K.S.A. 21-3414(a)(2)(A), the offense of conviction. It observed that those guidelines for the latter offense call for a sentence of 122 to 136 months. See K.S.A. 21-4704.
After a hearing, the trial court denied the motion, opining that it could not correct an illegal sentence if the correct sentence would be harsher than the original one imposed.
The State appealed and McCarley cross-appealed, arguing that the trial court lacked jurisdiction to convict him of the level 5 offense and that the court erred in failing to instruct the jury on proximate cause. The Court of Appeals affirmed McCarley's convictions and denied the cross-appeal. However, with Judge Knudson dissenting, it refused to remand to correct the sentence. McCarley, 38 Kan. App. 2d 165, 166 P.3d 418.
ANALYSIS
Issue 1: District courts have jurisdiction to correct purported illegal sentences when the illegality favors the defendant.
McCarley generally adopts the position of the Court of Appeals majority opinion. The majority first held that the State had no right to appeal the denial of a motion to correct an illegal sentence under K.S.A. 21-4721(e)(3) (appellate court may review a claim that the sentencing court erred in ranking the crime severity level of the current crime). It correctly noted that the statute deals with appeals; neither party had preserved a direct appeal of the sentence. The majority ultimately allowed the appeal under K.S.A. 22-3602(b)(3), however, by construing the State's motion and argument as a question reserved. Included in the reserved question was whether the sentence was illegal. 38 Kan. App. 2d at 171, 166 P.3d 418.
With this framework in mind, the Court of Appeals majority then held that the sentence was not illegal under K.S.A. 22-3504(1) for any of the three reasons recognized by case law. See, e.g., State v. Nash, 281 Kan. 600, Syl. ¶ 1, 133 P.3d 836 (2006). First, it was not imposed by a court without jurisdiction. Second, the sentence did not fail to conform with the offense of aggravated battery as to its character and term of punishment authorized. Third, the sentence was not ambiguous as to time or manner in which it was to be served. The majority further held that even if the sentence were illegal, the State had agreed to the severity level; *235 the doctrine of invited error therefore precluded any challenge. McCarley, 38 Kan. App.2d at 176-77, 166 P.3d 418.
Judge Knudson dissented, for reasons the State generally adopts on appeal to this court. He opined that because an illegal sentence was alleged, this court had jurisdiction to review under State v. Vanwey, 262 Kan. 524, Syl. ¶ 1, 941 P.2d 365 (1997), thereby rendering unnecessary the majority's characterization and discussion as a question reserved. He further opined that an illegal sentence had been imposed, suggesting that the trial court had no jurisdiction and expressly concluding that the sentence failed to conform to the one required for the conviction of record, i.e., level 5 aggravated battery. He contended that an illegal sentence may be corrected at any time; that the doctrine of invited error was inapplicable because the sentence was illegal; and that there was no evidence to support an agreement to circumvent the jury verdict or the requirements of law.
As discussed below, we specifically agree with the dissent's holding and generally with its rationale.
Our agreement is primarily based upon two cases of this court: Chambers v. State, 199 Kan. 483, 430 P.2d 241 (1967), and Vanwey, 262 Kan. 524, 941 P.2d 365. They establish, among other things, that this court clearly has jurisdiction to consider the matter of McCarley's purported illegal sentence and further that his sentence indeed is illegal because it was imposed by a trial court without jurisdiction. In other words, we conclude that this court has jurisdiction to conclude that the trial court had no jurisdiction.
In Chambers, this court addressed a fact pattern similar to that of the instant case: the trial court mistakenly imposed sentence on a crime for which the defendant was not convicted. There, the defendants pled guilty to robbery in the first degree. However, they were erroneously sentenced for burglary in the second degree: indeterminate sentences of 5-10 years. After the error was discovered, the defendants were brought back to the court for resentencing. The trial court set aside the sentences and resentenced for robbery: 10-21 years.
Defendant Chambers later brought a motion under K.S.A. 60-1507 attacking the validity of the second sentence. This court affirmed the trial court's denial of his motion and made short work of his argument:
"The plaintiff next argues that once the court had imposed a sentence against him it could not later resentence him. This contention is without merit. The first sentence was void, since the penalty imposed was that required by law for second-degree burglary, not [first-degree] robbery. Accordingly, it was the court's clear duty to set the original sentence aside and impose a valid sentence." (Emphasis added.) 199 Kan. at 485, 430 P.2d 241.
Thirty years after Chambers, this court in Vanwey dealt with a slightly different fact pattern. It provided a more complete framework than Chambers, however, for its analysis and holding-both of which are of use in the instant case. In Vanwey, the defendant committed a crime while on parole. The trial court properly made Vanwey's new sentence consecutive to the one originally imposed, as required under K.S.A.1991 Supp. 21-4608. Three years later, the defense counsel and the prosecutor apparently agreed to a nunc pro tunc order correcting a clerical error because a sentencing mistake had allegedly been made. Per the court's order, the consecutive sentences became concurrent. The State later moved to set aside the order, arguing that the modification had been misrepresented as necessary to correct a clerical error and that the trial court had no jurisdiction to modify. The trial court denied the motion, ruling that "relief would have to be through appeal." Vanwey, 262 Kan. at 526, 941 P.2d 365.
As in the instant case, as a threshold matter Vanwey argued that the State simply was not permitted to appeal under these circumstances. This court rejected the argument. Among other things, it cited State v. Scherzer, 254 Kan. 926, 929-30, 869 P.2d 729 (1994), to confirm its statutory jurisdiction to consider the appeal: generally under K.S.A. 60-2101(b) (court has jurisdiction to correct, modify, vacate, or reverse any act, order, or judgment of a district court in order to assure *236 that it is just, legal, and free of abuse) and specifically under K.S.A. 22-3504 (Furse) (illegal sentence may be corrected at any time).
Similar to the instant case, this court further observed that the ultimate question was whether the trial court possessed jurisdiction to grant the nunc pro tunc order in the first place. Vanwey, 262 Kan. at 527, 941 P.2d 365. If the court did not, then the sentence was illegal and correctable by the Supreme Court. See State v. Ruff, 252 Kan. 625, 628, 847 P.2d 1258 (1993) (sentence illegal if, among other things, imposed by a court without jurisdiction).
The Vanwey court then held that the trial court had no authority to modify the original sentence under the statutory subparagraph for correction of clerical errors, K.S.A. 22-3504(2) (Furse), because there was no clerical error. Moreover, the court held that the parties' agreement could not bring life into an order that was invalid because of the trial court's lack of jurisdiction: "We conclude that parties agreeing to a nunc pro tunc order cannot invest the court with the power to change a sentence if the court otherwise lacks jurisdiction to do so." Vanwey, 262 Kan. at 528-29, 941 P.2d 365.
After concluding that the trial court had no jurisdiction under 22-3504(2) to have "corrected" this sentence, and had no jurisdiction created by the parties' agreement, the Vanwey court looked for other jurisdiction created by statute. After noting that the sentencing of a criminal defendant is strictly controlled by statute in Kansas, the court held that the only apparent jurisdictional alternative, K.S.A.1991 Supp. 21-4603(4)(a), was inapplicable because the modification had not occurred within 120 days of the original sentence.
The Vanwey court further observed that the trial court not only "lacked jurisdiction to modify Vanwey's 1992 sentence," but that imposing the sentences consecutively was itself required by statute. 262 Kan. at 529, 941 P.2d 365. See K.S.A.1991 Supp. 21-4608(3) ("[a]ny person who is convicted and sentenced for a crime committed while on... parole ... for a felony shall serve the sentence consecutively to the term or terms under which the person was ... on parole").
Finally, this court rejected Vanwey's argument that the court lacked jurisdiction to allow his sentence to be modified yet again because it was "now running concurrently and the imposition of a consecutive sentence would be a harsher sentence." (Emphasis added.) 262 Kan. at 530, 941 P.2d 365. In rejecting this harsher consequences argument, the Vanwey court simply responded that a "court has authority to reinstate an original sentence when a subsequent modification is illegal." 262 Kan. at 530, 941 P.2d 365.
In sum, the Vanwey court held that the trial court was without jurisdiction to enter the nunc pro tunc order. It reversed the trial court's refusal to set aside the order, and ordered reinstatement of the original 1992 sentence.
A synthesis of the decisions in Chambers and Vanwey reveals several principles of guidance for the instant case.
When a sentence is imposed for a crime for which the defendant was not convicted, but in fact is appropriate for another crime, this court has addressed the issue on the merits. See, e.g., Chambers, 199 Kan. 483, 430 P.2d 241. As a result, the issue is within the jurisdiction of this court to review. Cf. Vanwey, 262 Kan. 524, Syl. ¶ 1, 941 P.2d 365 (jurisdiction to consider the matter under 60-2101[b], which gives general statutory authority to correct, modify, vacate, or reverse any act, order, or judgment of a district court to assure that it is just, legal, and free of abuse, and 22-3504: court may correct illegal sentence, e.g., one issued by court without jurisdiction or without conforming with the offense as to character or term of punishment authorized). At a minimum, there is jurisdiction to review the sentence as a possibly illegal one. Whether a criminal sentence is illegal, e.g., imposed without jurisdiction, is a question of law with unlimited review. State v. Davis, 281 Kan. 169, 174, 130 P.3d 69 (2006).
When a sentence is imposed for a crime for which the defendant was not convicted, but in fact is appropriate for another *237 crime, such a sentence is void. Chambers, 199 Kan. at 485, 430 P.2d 241. Specifically, it is an illegal sentence because, at a minimum, it is imposed without trial court jurisdiction. Cf. Vanwey, 262 Kan. 524, 941 P.2d 365.
Under these specific circumstances, the sentence must be set aside, and the defendant resentenced for the crime of actual conviction, i.e., a "valid sentence." Chambers, 199 Kan. at 485, 430 P.2d 241; cf. Vanwey, 262 Kan. at 530, 941 P.2d 365 (court set aside illegal modification and reinstated original sentence).
The fact that the new, and proper, sentence is more severe than the original, improper one is of no consequence. See Vanwey, 262 Kan. at 530, 941 P.2d 365 (court expressly rejecting this argument); see also Chambers, 199 Kan. at 484-85, 430 P.2d 241 (court approved imposing new sentence which increased original, improper sentence by years).
The fact that the parties have agreed to a matter involving trial court jurisdiction is of no consequence, i.e., party agreement does not establish jurisdiction where it otherwise does not exist. See Vanwey, 262 Kan. at 528, 941 P.2d 365 ("Nor does agreement of the parties and the presentation of an agreed order to the trial court [to change statutorily-mandated consecutive sentence to concurrent] bring life into an otherwise invalid action."); see also State v. Johnson, 283 Kan. 649, 156 P.3d 596 (2007) (defendant's agreement to jury instruction on questionable offense does not bar his later jurisdictional challenge claiming offense neither charged nor constituted lesser included offense of a charged offense). Similarly, the more inclusive doctrine of invited error is inapplicable because the alleged invited error leading to the illegal sentence concerns jurisdiction. See State v. Belcher, 269 Kan. 2, 9, 4 P.3d 1137 (2000).
Not only is McCarley's sentence illegal because it was imposed by a court without jurisdiction, but as Judge Knudson observed in his dissent, it also is illegal for failing to conform to the statutory provision, either in the character or the term of the punishment authorized. See Nash, 281 Kan. at 601, 133 P.3d 836. We have repeatedly acknowledged that the sentencing of a criminal defendant is strictly controlled by statute. State v. Martin, 285 Kan. 735, 738, 175 P.3d 832 (2008); State v. Anthony, 274 Kan. 998, 999, 58 P.3d 742 (2002). Consistent with this acknowledgment, we held in Scherzer, 254 Kan. at 939, 869 P.2d 729, that the trial court did not have authority under K.S.A.1992 Supp. 21-3405b to allow the defendant to serve his required 90 days' imprisonment by house arrest. We declared the sentence imposed illegal because it did not conform to the statutory provision and remanded to the district court for correction, i.e., actual imprisonment in the county jail. 254 Kan. at 939, 869 P.2d 729; cf. Vanwey, 262 Kan. at 529-30, 941 P.2d 365 (in addition to lack of jurisdiction to modify sentence, trial court's modification of consecutive sentences to run concurrently was clearly contrary to statute requiring consecutive sentences).
The trial court's sentence for a level 8 person felony does not conform to the statutory provision for a level 5 person felony, the offense of conviction. The trial court had no statutory authority to impose such a sentence. It is therefore illegal. See Nash, 281 Kan. at 601, 133 P.3d 836. As the State points out, the flip side is also true. While the sentence imposed was proper for a level 8 offense, the jury was not instructed on, nor was McCarley convicted of, a level 8 felony. It is fundamental that a defendant cannot be sentenced for a crime for which he or she has not been convicted.
In sum, this court has authority to review the State's claim of an illegal sentence. The sentence imposed is illegal because it was imposed by a trial court without jurisdiction and because the sentence did not comport with the statutory provision in the character or term of the punishment authorized.
Issue 2: The trial court did not lack jurisdiction to convict McCarley of level 5 reckless aggravated battery.
Before we can consider remand for resentencing for the level 5 offense, we must consider McCarley's cross-appeal contention that the trial court lacked jurisdiction to *238 convict him of that crime because it is not a lesser included offense of intentional aggravated battery.
The existence of jurisdiction is a question of law over which this court's review is unlimited. State v. Thomas, 283 Kan. 796, 805, 156 P.3d 1261 (2007). Similarly, whether a crime is a lesser included offense is a question of law. State v. Hebert, 277 Kan. 61, 104, 82 P.3d 470 (2004).
The Court of Appeals panel, including Judge Knudson, held that McCarley's argument was erroneously based on this court's holding in the multiplicity case of State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). The panel rejected McCarley's argument that "lesser included offenses must be based solely on an identity of elements test." McCarley, 38 Kan.App.2d at 178, 166 P.3d 418. The State essentially adopts the panel's position on appeal. We agree.
In citing to Schoonover, McCarley contends this court adopted a "strict identity of the elements test for analyzing whether crimes were either multiplicitous or lesser included offenses." He also argues that the strict identity of the elements test is the only logical, consistent test. Unfortunately, his single-minded argument is contrary to language in Schoonover and the legislature's express, multi-faceted approach for identifying lesser included crimes. See 281 Kan. at 494, 496-98, 133 P.3d 48.
K.S.A. 21-3107(2) defines a lesser included crime as: "(a) A lesser degree of the same crime; (b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged; (c) an attempt to commit the crime charged; or (d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b)." The panel relied upon section (a) in holding that intentional aggravated battery and reckless aggravated battery are degrees of the same general crime, that of aggravated battery.
We conclude that the crimes of severity level 5 and 8 aggravated battery are both lesser included offenses of severity level 4 aggravated battery because they are lesser degrees of the same crime. See K.S.A. 21-3107(2)(a). The language of K.S.A. 21-3414(b) is unmistakable:
"Aggravated battery as described in subsection (a)(1)(A) is a severity level 4, person felony....
Aggravated battery as described in subsection (a)(2)(A) is a severity level 5, person felony.
Aggravated battery as described in subsection (a)(2)(B) is a severity level 8, person felony." (Emphasis added.)
In addition to this clear language, we observe that without more, the higher the severity level of the crime, the lower the sentence. See, e.g., K.S.A. 21-4707(a) ("The crime severity scale contained in the sentencing guidelines grid for nondrug crimes as provided in K.S.A. 21-4704 and amendments thereto consists of 10 levels of crimes.... Level 1 crimes are the most severe crimes and level 10 crimes are the least severe crimes.").
The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. State v. Denney, 283 Kan. 781, 789, 156 P.3d 1275 (2007). Intent of the legislature is to be derived in the first place from the words used. Griffin v. Suzuki Motor Corp., 280 Kan. 447, 460, 124 P.3d 57 (2005). We hold that the legislature's intent is clear from the words it used. Defining various types of aggravated battery, i.e., "aggravated battery as described in" separate subsections, together with allocating different degrees of punishment for each type, establishes that level 5 and level 8 aggravated battery are lesser included offenses of level 4 aggravated battery, i.e., they are "lesser degrees of the same crime."
Because the crime charged was a level 4 aggravated battery, the trial court had jurisdiction to convict McCarley of severity level 5 aggravated battery. In contrast, see Johnson, 283 Kan. 649, Syl. ¶ 1, 156 P.3d 596 (the district court lacks jurisdiction to convict a defendant of a crime not specifically stated in the information or the stated crime's lesser included offense).
*239 Issue 3: The trial court did not clearly err when it failed to instruct the jury that McCarley's actions had to be the proximate cause of the victim's injuries to find him guilty of reckless aggravated battery.
Finally, McCarley argues in his cross-appeal that the trial court erred in failing to instruct the jury that his actions had to be the proximate cause of Nick's injuries to find McCarley guilty because his primary defense was that Nick's actions, not his own, were the cause of the injuries. He contends that the jury specifically should have been instructed: "The fault or lack of fault of [the victim] is a circumstance to be considered along with all the other evidence to determine whether the defendant's conduct was or was not the direct cause of [the victim's] injuries."
The Court of Appeals summarily rejected McCarley's argument, pointing out that the "jury instructions clearly informed the jury that in order to convict McCarley of reckless aggravated battery, he must have `caused great bodily harm or disfigurement' to the victim." McCarley, 38 Kan.App.2d at 179, 166 P.3d 418. Again, the State essentially adopts the panel's position.
Because McCarley did not request a proximate cause instruction at trial, his claim is reviewed for clear error. See K.S.A. 22-3414(3); State v. Torres, 280 Kan. 309, 326, 121 P.3d 429 (2005). "Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred." State v. White, 284 Kan. 333, Syl. ¶ 6, 161 P.3d 208 (2007).
We note that instruction 9B provided in relevant part:
"To establish this charge [of reckless aggravated battery], each of the following claims must be proved:
1. That Mr. McCarley recklessly caused great bodily harm or disfigurement to Nicola `Nick' Cosentino...." (Emphasis added.)
McCarley's sole basis for believing that the verdict would be different if the jury had been given a proximate cause instruction is that the jurors seemed confused about how to apply the term "reckless." The jury asked for a definition of "reckless," and the trial court gave the following definition: "Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger." McCarley does not explain, however, how this purported confusion relates to the giving of a proximate cause instruction.
We also observe that in State v. Bale, 39 Kan. App. 2d 655, 182 P.3d 1280 (2008), the defendant argued for the first time on appeal that a proximate cause instruction should have been given in his involuntary manslaughter case. The Court of Appeals rejected his argument, holding that the concept was "adequately expressed in the court's instruction for the elements of the crime." 39 Kan. App. 2d at 660, 182 P.3d 1280. Although the clearly erroneous standard applied, the court simply held that "the district court did not err in failing to give a separate proximate cause instruction." 39 Kan. App. 2d at 660, 180 P.3d 1087.
In light of the instruction given, McCarley's limited argument identifying the impact of the purported error on the jury, and the holding in Bale, we are not firmly convinced that there is a real possibility the jury would have rendered a different verdict if the proposed instruction had been given. In short, there is no clear error.
The judgments of the Court of Appeals and the district court on issue 1 are reversed and remanded to the district court with instructions to correct McCarley's illegal sentence. Their judgments on issues 2 and 3 are affirmed. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2630933/ | 235 P.3d 1251 (2010)
Robert CHATTERTON, Appellant,
v.
Keith R. ROBERTS and Patricia K. Lamar, Appellees.
No. 102,466.[1]
Court of Appeals of Kansas.
April 8, 2010.
*1252 James R. Shetlar, of James R. Shetlar Law Office, of Overland Park, for appellant.
Wade J. Thomas, of Frischer & Associates, Chtd., of Overland Park, for appellee Keith R. Roberts.
James L. Sanders and Alex B. Judd, of Wallace, Saunders, Austin, Brown & Enochs, *1253 Chtd., of Overland Park, for appellee Patricia K. Lamar.
Before RULON, C.J., GREENE, J., and KNUDSON, S.J.
GREENE, J.
Robert Chatterton appeals the district court's dismissal of his personal injury action against Keith Roberts and Patricia Lamar, arguing the court erred in construing and applying K.S.A. 60-518 in a manner that failed to save his action filed outside the applicable statute of limitations. We agree with Chatterton, reverse the district court, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
After being injured in vehicle collision in Johnson County in March 2006, Chatterton filed a petition in October 2007 against defendants Roberts and Lamar in Jackson County, Missouri, apparently on the mistaken belief that Roberts resided in Missouri. The Missouri court dismissed the action in August 2008 for lack of personal jurisdiction over the defendants. Within 10 days of the dismissal, Chatterton refiled his petition against both defendants in Johnson County district court.
The defendants then moved the district court in Kansas to dismiss the action based on the expiration of the applicable statute of limitations. The district court dismissed Chatterton's action, reasoning in material part:
"Missouri Rule of Civil Procedure 53.01 provides that a civil action is commenced by filing a Petition with the Court. This Court accepts that a Missouri lawsuit commences upon filing. The Court does believe that there is a saving statute in Missouri just as there is in Kansas.
. . . .
"The Court finds that the saving statute that is procedural in Missouri would not allow this case to be refiled in Missouri because it was dismissed for lack of jurisdiction.
"The Court finds that since the case could not have been saved in Missouri because it lacked jurisdiction, that the lawsuit was void from the beginning. Therefore, there was no lawsuit to save, nor could there ever be a lawsuit to save. As a result, no matter what savings statute is applied, it would make little or no difference because there is no lawsuit to save."
Chatterton timely appeals.
STANDARD OF REVIEW
The sole question framed by this appeal presents an issue of statutory interpretation, specifically the construction and application of K.S.A. 60-518. This issue is a question of law over which this court has unlimited review. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009).
DID THE DISTRICT COURT ERR IN DISMISSING THE ACTION?
We begin by examining the statute at issue, K.S.A. 60-518, which provides:
"If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure."
A panel of our court recently held that, for our savings statute to apply, (1) the first suit must have been filed before the limitations expired or "commenced" within due time, (2) the first suit must have been dismissed for reasons other than the merits of the claim, (3) the second suit must have been filed within 6 months of dismissal of the first suit, and (4) but for the savings statute, the limitations period must have expired when the second suit was filed. Campbell v. Hubbard, 41 Kan. App. 2d 1, 2-3, 201 P.3d 702 (2008). The parties essentially agree and the record establishes that (2) through (4) of these requirements are met, but the defendants argue that the first suit was not "commenced" within the statute of limitations because it was dismissed for lack of personal jurisdiction and therefore a nullity under Missouri law.
*1254 Campbell squarely addressed the issue of which state's law applies to determine whether the first suit was "commenced within due time" when the first suit is filed outside of Kansas. The Campbell panel rejected the imposition of the Kansas commencement statute in determining when the lawsuit was commenced in Arizona, finding that such a reading is not required by the Kansas savings statute which only requires that the action be "commenced within due time," not "commenced within due time under K.S.A. 60-203." Therefore, when determining whether a suit was "commenced within due time" for the purposes of K.S.A. 60-518, the law of the state of the first filing is applied. Thus, Missouri law applies to determine if the suit was commenced before March 21, 2008.
Missouri Rule of Civil Procedure 53.01 provides that a civil action is commenced "by filing a petition with the court." Although Rule 53.01 previously defined commencement of a civil action as "[t]he filing of a petition and suing out of process therein," the Missouri Supreme Court amended Rule 53.01 in 1972 and removed the "suing out of process" language. Therefore, only the filing of a petition with the court is required to commence an action. The Missouri Supreme Court has held that pursuant to the plain language of Rule 53.01, the rule "requires only the filing of a petition with the court to commence an action." Ostermueller v. Potter, 868 S.W.2d 110, 111 (1993). In rejecting an argument identical to that made by defendants here, the Missouri Supreme Court relied on the amendment to Rule 53.01 and stated:
"[The defendant's] contention fails to recognize that this Court amended Rule 53.01 in 1972. The rule no longer includes `suing out of process;' it requires only the filing of a petition with the court to commence an action. Supreme Court rules govern over contradictory statutes in procedural matters unless the General Assembly specifically annuls or amends the rules in a bill limited to that purpose. [Citations omitted.] The [plaintiffs] filed their first petition within the limitations period; therefore, the action was commenced within the time prescribed. Because the first action was commenced within the time prescribed, the [plaintiffs] may invoke the benefit of the savings statute." [Citation omitted.] 868 S.W.2d at 111.
The district court seems to have recognized that the action was "commenced" upon filing, but the court then applied the Missouri savings statute to determine that the suit could not be saved in Missouri. This was erroneous; the statute to be construed and applied by Kansas courts to determine whether a refiled action should be saved in Kansas is the Kansas savings statute, K.S.A. 60-518. We look to the law of the state where the first action was filed for the limited purpose of determining "commencement," but it is the Kansas savings statute that must be applied following that determination. Here, the Missouri Rule of Civil Procedure (which is essentially identical to Rule 3 of the Federal Rules of Civil Procedure) required only filing a petition for technical "commencement" of the action.
On appeal, defendants argue that despite the clear and unequivocal Missouri rule, case law has overlaid a requirement that valid service be obtained on the defendant(s) before the action should be considered "commenced." Defendants rely principally on Mertens v. McMahon, 115 S.W.2d 180 (Mo. 1938), which they contend has never been overruled but rather followed in more recent cases. We disagree. The Mertens decision predated the most recent amendment to the applicable Missouri Rule of Civil Procedure by nearly 35 years, and was superceded by that amendment in that the language "suing out of process" was deleted. More recent Missouri case law cited by defendants does not support any survival or resurrection of the old Mertens precept for purposes of determining when a suit is technically "commenced," although we concede that at least one Missouri court has held that the Mertens concept had some vitality for purposes of the Missouri Savings Statute.
In Singen v. Int'l Ass'n. of Mach., and Aerospace Wkrs. Dist. Lodge 837, 475 F. Supp. 663 (E.D.Mo.1979), a federal district court applied the Missouri Savings Statute in the manner urged by defendants, relying on *1255 Mertens as quoted in another federal opinion predating the 1972 amendment to the Missouri rule governing "commencement," Tanner v. Presidents-First Lady Spa, Inc., 345 F. Supp. 950 (E.D.Mo.1972). The decision turned, however, on the lack of diligence of plaintiff to serve the proper defendant for over 6 years, and the court indicates that this situation "is clearly different from those cases where jurisdiction over the defendant was not obtained in the first suit due to an innocent mistake," citing two cases where the opposite conclusion was reached in factual scenarios far more similar to that before us here. 475 F. Supp. at 664. This authority certainly does not convince us that the amended Missouri rule as to commencement should be read to require anything other than filing to establish "commencement."
In Goff v. Schlegel, 748 S.W.2d 813 (Mo.Ct. App.1988), the court applied the Missouri Savings Statute to save plaintiff's personal injury action after the filing and dismissal of at least three prior suits. The issue of commencement does not appear to be of concern to the court, but the defendant there argued that because venue was improper in the last of the three suits, "that court never obtained jurisdiction over [the defendant] and therefore failed to toll the five year statute of limitations." 748 S.W.2d at 817. The court said this argument was defective for several reasons, and even if venue was improper "there was personal jurisdiction over [the defendant] and the five year statute was tolled by the filing of the suit." We understand the court to be recognizing that the concept of jurisdiction is different from the concept of venue, and the key event for commencement was "the filing of the suit." 748 S.W.2d at 817. This authority does not convince us that the amended Missouri rule as to commencement should be read to require anything other than filing to establish "commencement."
In Cross v. General Motors Corp., 778 F.2d 468 (8th Cir.1985), the court refused to save a suit in applying the Missouri Savings Statute because the first suit was dismissed for lack of jurisdiction, which the court held was not a "nonsuit" with respect to the defendants who had never been served in the action. The court cited Mertens in refusing to save the plaintiff's second suit filed within 1 year of the disposition of the first suit. Whether this federal application of the Missouri Savings Statute would survive in light of the Missouri Supreme Court's holding in Ostermueller is questionable, but we are not convinced that this federal application of the Missouri Savings Statute somehow appends a service requirement on Rule 53.01 after the 1972 amendment.
We rely on sound Missouri authorities in holding that "commencement" in Missouri requires only the filing of the plaintiffs petition. Missouri Rule of Civil Procedure 53.01; Ostermueller, 868 S.W.2d 110; Richardson v. Richardson, 892 S.W.2d 753 (Mo.Ct.App. 1994). The district court seems to have found that "commencement" was achieved by mere filing, but it erred in applying the Missouri Savings Statute. For this reason, we reverse and remand for further proceedings.
Reversed and remanded.
NOTES
[1] REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court granted a motion to publish pursuant to Rule 7.04 (2009 Kan. Ct. R. Annot. 54). The published version was filed with the Clerk of the Appellate Courts on July 8, 2010. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627771/ | 206 P.3d 526 (2009)
STATE of Kansas, Appellee,
v.
Joshua M. HORN, Appellant.
No. 100,373.
Supreme Court of Kansas.
May 8, 2009.
E. Jay Greeno, of Wichita, argued the cause and was on the brief for appellant.
Darrin C. Devinney, assistant county attorney, argued the cause, and Stephen N. Six, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by JOHNSON, J.:
Pursuant to a plea agreement, Joshua M. Horn pled guilty to one count of attempted aggravated criminal sodomy in violation of K.S.A. 21-3301(a), (c), and 21-3506(a)(1). Applying the provisions of K.S.A. 21-4643, commonly referred to as Jessica's Law, the *527 district court sentenced Horn to life in prison with a mandatory minimum prison term of 25 years (hard 25). Horn appeals that sentence, claiming that he should have received a Kansas Sentencing Guidelines Act (KSGA) sentence for a nondrug severity level 1 felony, as provided in K.S.A. 21-3301(c). Applying the rule of lenity to resolve the conflicting statutory provisions applicable in this case, we vacate Horn's sentence and remand for resentencing under the KSGA for a nondrug severity level 1 crime.
The facts underlying Horn's conviction are not germane to this opinion; it is enough to know that Horn was convicted of attempted aggravated criminal sodomy. The sole legal question before us is which of two statutes, each plainly applicable to the sentencing of attempted aggravated criminal sodomy, is to control. We exercise unlimited review of statutory interpretation questions, unfettered by the trial court's findings. See State v. Thompson, 287 Kan. 238, 243, 200 P.3d 22 (2009); State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
The crime of aggravated criminal sodomy is set forth in K.S.A. 21-3506. One means to commit the crime, as described in K.S.A. 21-3506(a)(1), is to engage in sodomy with a child under 14 years of age. If the offender is 18 years of age or older, the aggravated criminal sodomy described in subsection (a)(1) is an off-grid felony. K.S.A. 21-3506(c). In that circumstance, "the sentence shall be imprisonment for life pursuant to K.S.A. 21-4643, and amendments thereto." K.S.A. 21-4706(d). K.S.A. 21-4643, Jessica's Law, mandates a minimum prison term of 25 years for certain crimes, including "aggravated criminal sodomy, as defined in subsection (a)(1) or (a)(2) of K.S.A. 21-3506, and amendments thereto." K.S.A. 21-4643(a)(1)(D).
However, Horn was convicted of an attempt to commit aggravated criminal sodomy. K.S.A. 21-3506 does not specify attempted sodomy as a means of violating that statute. Cf. K.S.A. 21-3449 (specifically describing the crime of terrorism as including "the attempt to commit or the conspiracy to commit"). Therefore, as the State apparently recognized with its statutory citations in the amended information, attempted aggravated criminal sodomy is a separate offense created by the provisions of K.S.A. 21-3301(a), the statute setting forth the elements of the anticipatory crime of attempt. See State v. Martens, 274 Kan. 459, 464-65, 54 P.3d 960 (2002) (where statute only criminalized the manufacture of controlled substance, the attempted manufacture of controlled substance was a separate offense controlled by K.S.A. 21-3301[a]). In turn, K.S.A. 21-3301(c) specifies that an attempt to commit an off-grid felony is to be ranked at nondrug severity level 1, indicating that the presumptive sentence is to be found in the KSGA nondrug grid.
However, a provision of Jessica's Law, K.S.A. 21-4643(a)(1)(G), also purports to apply its hard 25 life imprisonment sentencing to "an attempt, conspiracy or criminal solicitation, as defined in K.S.A. 21-3301, 21-3302 or 21-3303, and amendments thereto, of an offense defined in paragraphs (A) through (F)." Thus, the same crime of attempted aggravated criminal sodomy, when committed by an adult offender on a child under 14 years, is subject to two statutory sentencing provisions: a KSGA sentence under the statute creating the offense, K.S.A. 21-3301, and an off-grid, mandatory minimum sentence under Jessica's Law, K.S.A. 21-4643.
Each statute is plain and unambiguous, which would normally preclude the application of any rules of construction or the reliance on legislative history. See In re K.M.H., 285 Kan. 53, 79-80, 169 P.3d 1025 (2007). The conundrum arises not from any lack of clarity in statutory language, but rather from the existence of two statutes which appear to be controlling, yet are conflicting.
One proposed argument is that, when general and specific statutes are in conflict, the specific statute controls unless it appears the legislature intended otherwise. See In re K.M.H., 285 Kan. at 82, 169 P.3d 1025; State v. Le, 260 Kan. 845, 848, 926 P.2d 638 (1996). The argument here assumes that Jessica's Law is the specific statute. However, one could view the statute which sets forth the elements of the crime to be the specific one, and the statute which lumps together attempt, *528 conspiracy, and solicitation for sentencing purposes to be more general. Here, the crime of attempt is specifically defined by K.S.A. 21-3301(a).
Nevertheless, the legislature sent a mixed message during the 2006 session in which it adopted Jessica's Law. That year, it also created the new crimes of terrorism (K.S.A.21-3449) and illegal use of weapons of mass destruction (K.S.A.21-3450). Both those statutes included attempts as a means of committing the crimes and clarified that the crimes were off-grid felonies. The legislature then took the further step of amending K.S.A. 21-3301(c), which ranks an attempt to commit an off-grid felony as a nondrug severity level 1, to specify that "[t]he provisions of this subsection shall not apply to a violation of attempting to commit the crime of terrorism pursuant to K.S.A. 21-3449, ... or of illegal use of weapons of mass destruction pursuant to K.S.A. 21-3450." Inexplicably, the legislature did not also include Jessica's Law as an exception to K.S.A. 21-3301(c). In other words, the legislature demonstrated an ability to clarify when it did not want the sentencing provision of K.S.A. 21-3301(c) to apply to an attempt to commit an off-grid felony, but chose not to do so with Jessica's Law.
The district court focused on the provisions of Jessica's Law, particularly noting that K.S.A. 21-4643(a)(2)(B) requires the sentencing court to impose the applicable guidelines sentence if it results in a longer prison term than the mandatory minimum of 25 years (300 months). That persuaded the district court that the legislative intent was to impose the longest possible prison term for the crimes listed in 21-4643(a)(1), including attempts. While that intuitive assessment of legislative intent is likely accurate, we cannot simply ignore the fact that the legislature did not clearly state its intent by amending K.S.A. 21-3301(c) to exclude K.S.A. 21-4643. Cf. State v. Manbeck, 277 Kan. 224, 228-29, 83 P.3d 190 (2004) (court assumes legislature meant what it passed, notwithstanding a perception that it intended to do something else).
Where the legislature fails to manifest a clear legislative intent by permitting the existence of conflicting statutory provisions, the rule of lenity must be considered. We recently discussed the rule in the context of multiplicity. See Thompson, 287 Kan. at 249, 200 P.3d 22; State v. Pham, 281 Kan. 1227, 1248, 136 P.3d 919 (2006). The general application of the rule is that "`[c]riminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute.'" State v. Rupnick, 280 Kan. 720, 735, 125 P.3d 541 (2005) (quoting State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 [2001]).
Employing the rule of lenity in this case leads us to resolve the conflicting statutory provisions in favor of Horn. Specifically, aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(1) is an off-grid felony. K.S.A. 21-3506(c). Pursuant to K.S.A. 21-3301(c), the separate crime of attempted aggravated criminal sodomy is ranked as a nondrug severity level 1 felony. Therefore, we vacate Horn's hard 25 life sentence under 21-4643 and remand for appropriate sentencing for a severity level 1 nondrug felony under the KSGA.
Sentence vacated and case remanded for resentencing. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627671/ | 206 P.3d 1135 (2009)
228 Or. App. 172
Gregg K. CLAPPER, Plaintiff-Appellant,
v.
OREGON STATE POLICE, an agency of the State of Oregon, Defendant-Respondent.
06C16754, A134701.
Court of Appeals of Oregon.
Argued and Submitted November 18, 2008.
Decided April 29, 2009.
*1136 D. Rahn Hostetter argued the cause and filed the briefs for appellant.
Judy C. Lucas, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kaye E. McDonald, Senior Assistant Attorney General.
Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.
SCHUMAN, J.
Plaintiff brought this action in Marion County Circuit Court seeking to compel defendant, the Oregon State Police (OSP), to disclose a requested public record. After defendant moved for summary judgment, plaintiff asked the court to delay the trial so that he could continue to conduct discovery. The court denied that request, granted defendant's motion for summary judgment, and entered judgment in favor of defendant on the ground that plaintiff had received all of the records that he had requested, thereby rendering the action moot. On appeal, plaintiff argues that the court prematurely denied further discovery, thereby preventing him from determining whether he had, in fact, received all of the requested material; that the court erred in entering judgment in favor of defendant based on mootness; and that the court should have awarded him attorney fees because, even if the case had become moot, that was so only because plaintiff's action had compelled the agency to disclose the records. We affirm.
In June 2006, plaintiff, through counsel, submitted a request to the OSP for "[a]ll notes, journals, reports, and tape recordings made or conducted by [OSP Sergeant] Scott Moore concerning investigation of Warren Morris and/or Scott Morris on alleged wildlife violations." ORS 192.420 (conferring qualified right to inspect public records); ORS 192.440 (imposing qualified duty to grant request to inspect public records). OSP denied the request on the ground that the records were exempt from disclosure because they were implicated in an ongoing criminal investigation concerning plaintiff. ORS 192.501(3) (describing exemption). In its letter to plaintiff explaining the denial, OSP told him to contact the Wallowa County District Attorney if he had any questions.
*1137 Plaintiff did so, and he learned that OSP's denial was not justified. The requested records were not, in fact, implicated in an ongoing investigation. The error resulted from confusion caused by the fact that the information regarding Warren Morris and Scott Morris was developed in conjunction with an ongoing criminal prosecution against plaintiff, but that the investigation of plaintiff did not involve any ongoing investigation or prosecution of the Morrises. OSP had assigned a single file number to the case and failed to recognize that the investigation into the Morrises' wildlife violations had been closed.
Plaintiff's counsel learned of this error in a letter from the Wallowa County District Attorney. That letter also informed counsel that the requested report involving the Morrises "has been provided to you." That, too, was wrong. Plaintiff then petitioned the Attorney General as provided in ORS 192.450(1),[1] asking him to review OSP's denial. The Attorney General received that petition on July 10, 2006, and had seven days to respond. Id. He did so on July 17.
In the response, the Attorney General first denied plaintiff's request for records concerning the case against plaintiff himselfa request that plaintiff did not, in fact, make on the ground that the records concerned an ongoing criminal investigation. Second, he denied the request for the records that plaintiff did request "because OSP has agreed to release those records to you." That fact, the Attorney General asserted, made plaintiff's petition moot.[2]
Plaintiff filed this action in circuit court two days later, pursuant to ORS 192.450(2).[3] Sometime in August 2006, he finally received from the Attorney General a CD containing the audio file of testimony by Warren Morris, a document showing receipts for purchase of archery equipment by the Morrises, some hunting tag records, and a complete copy of Moore's notes related to the Warren and Scott Morris investigation. According to affidavits submitted by the OSP custodian of records and Moore, plaintiff received all of the requested materials that OSP had ever generated or possessed.
Plaintiff's counsel was dubious. In an affidavit, he asserted,
"In depositions of Warren Morris and Scott Morris, both men testified concerning contacts they had with Sgt. Moore. Warren Morris testified to materials given by him to Sgt. Moore. These contacts, they say, were around the time of Sgt. Moore's investigation. None of those contacts or materials are referenced in the materials produced by OSP."
Plaintiff wanted to depose Moore, and he filed a notice of deposition. Defendant, in response, filed a motion for summary judgment and, at the same time, a motion to stay discovery. Plaintiff filed a cross-motion for summary judgment that included a request to delay the trial so that he could continue discovery. A hearing in circuit court ensued.
There, plaintiff contended that, because various state officials had twice erroneously assured him that they had provided him with the requested records, he remained skeptical and wanted to continue the discovery process, particularly in light of the fact that the Morrises had told his attorney about contacts with Moore that were not referred to in Moore's report. The following colloquy ensued:
"THE COURT: Okay. And so who are you thinking that you would depose, if you were allowed to do discovery?
*1138 "PLAINTIFF'S COUNSEL: Well, Scott Moore, although since I filed this I learned that Scott Moore is now deceased. So I'm not sure of the answer to that now. But it would have been Scott Moore, because, as I said in my Affidavit * * *, I had taken depositions of Warren Morris and Scott Morris and both of them testified about other contacts."
The court took the matter under advisement and ultimately granted defendant's motion for summary judgment, denied plaintiff's, and entered a general judgment dismissing plaintiff's complaint. That judgment implicitly denied plaintiff's motion to delay the trial. In a letter opinion, the court explained,
"It appears that the Attorney General should have granted rather than denied plaintiff's request as to the investigation by Sergeant Moore [concerning the Morrises]. However, the release of the requested records to plaintiff renders moot plaintiff's request for relief, because any decision by this court on that issue would not have a practical effect on the rights of the parties, as their interests in that matter have ceased to be adverse."
(Footnote omitted.) The court also denied plaintiff's request for attorney fees.
On appeal, plaintiff argues first that the court erred in denying his request to delay the trial so he could continue discovery. We review the court's decision for abuse of discretion. Robinson v. Lamb's Wilsonville Thriftway, 162 Or.App. 632, 639, 986 P.2d 661 (1999), rev'd on other grounds, 332 Or. 453, 31 P.3d 421 (2001). In light of plaintiff's statement that the only discovery that he had wanted to conduct was the deposition of Moore, who was dead, we conclude that the trial court's decision to deny plaintiff's request was not erroneous. In his reply brief, plaintiff now argues that he would have deposed "associates, relatives, or supervisors of the deceased Sergeant Moore," one of whom, Moore's widow, has Moore's "notebooks." He did not make that argument to the trial court or in his opening brief, nor does he explain what he might have hoped to discover in his interviews or examination of the notebooks. We therefore do not consider that new argument.
Plaintiff next argues that the court erred in granting defendant's motion for summary judgment. Summary judgment is appropriate if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. ORCP 47 C. We review the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the party opposing the motion. Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997). Here, defendant presented affidavits from Moore attesting, "I prepared a single report concerning my investigation" of a possible game violation by Scott Morris, and "I have no other records responsive to [plaintiff's counsel's] public records request." The OSP custodian of records also submitted an affidavit in which she attested that she had reviewed OSP records, found one report prepared by Moore dealing with a game violation by Scott Morris, provided a complete copy of Moore's notes, and provided plaintiff's counsel with "all non-exempt public records that are subject to his request." Plaintiff, for his part, presented only an affidavit asserting,
"In depositions of Warren Morris and Scott Morris, both men testified concerning contacts they had with Sgt. Moore. Warren Morris testified to materials given by him to Sgt. Moore. These contacts, they say, were around the time of Sgt. Moore's investigation. None of those contacts or materials are referenced in the materials produced by OSP."
We conclude that, on this record, plaintiff did not raise an issue of material fact. He did not produce any evidence that Moore withheld relevant or material information. He did not present the depositions that he asserts contained relevant information, nor did he indicate what that information might be. Rather, he produced facts that indicate only his own suspicion that some information may exist that might be relevant. That is not sufficient.
The question remains whether defendant was entitled to judgment as a matter *1139 of law. As we conclude above, by the time of trial, plaintiff had received all of the records that he had requested. A ruling by the court would have had no effect on the rights of either party. The case was therefore moot. Kay v. David Douglas Sch. Dist. No. 40, 303 Or. 574, 738 P.2d 1389 (1987), cert. den., 484 U.S. 1032, 108 S.Ct. 740, 98 L.Ed.2d 775 (1988). Where a case becomes moot, dismissal is the appropriate disposition, and, "[t]ypically, when a judgment dismisses the complaint, the defending party is considered the prevailing party." Brennan v. La Tourelle Apartments, 184 Or.App. 235, 243, 56 P.3d 423 (2002). Defendant was therefore entitled to judgment as a matter of law. The court did not err in granting its motion for summary judgment.
Plaintiff finally contends that, despite the fact that defendant was the prevailing party, plaintiff is entitled to attorney fees under the so-called "catalyst" theory, that is, that, "[w]here a defendant voluntarily complies with a plaintiff's requested relief, thereby rendering the plaintiff's lawsuit moot, the plaintiff is a `prevailing party' * * * if his suit is a catalyst for the defendant's voluntary compliance." Id. at 244, 56 P.3d 423 (quoting Little Rock School Dist. v. Special School Dist. 1, 17 F.3d 260, 262-63 (8th Cir.1994)). Oregon courts have not adopted the catalyst theory, and, even if they had, it would not apply here. That is so because plaintiff has adduced no evidence to support the assertion that defendant complied with his request as a result of the action and not because it was ordered to do so by the Attorney General.
Affirmed.
NOTES
[1] ORS 192.450(1) provides, in part:
"[A]ny person denied the right to inspect or to receive a copy of any public record of a state agency may petition the Attorney General to review the public record to determine if it may be withheld from public inspection."
[2] This case does not require us to decide whether the Attorney General complies with ORS 192.450 by the practice, when confronted with a meritorious petition to compel disclosure, of first ordering disclosure and then denying the request as moot, and we express no opinion on that question.
[3] ORS 192.450(2) provides, in part:
"If the Attorney General denies the petition in whole or in part, * * * the person seeking disclosure may institute such proceedings [for injunctive or declaratory relief in circuit court]." | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627679/ | 206 P.3d 1184 (2009)
228 Or. App. 186
Kristine HENNESSY, dba T E Hennessy Properties, Plaintiff-Respondent,
v.
MUTUAL OF ENUMCLAW INSURANCE COMPANY, Defendant-Appellant.
0510037; A133592.
Court of Appeals of Oregon.
Argued and Submitted March 19, 2008.
Decided April 29, 2009.
Todd S. Baran, Portland, argued the cause and filed the briefs for appellant.
Pamela S. Hediger, Corvallis, argued the cause for respondent. With her on the brief was Evashevski, Elliott, Cihak & Hediger, P.C.
Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.
*1185 ORTEGA, J.
Plaintiff owns a commercial building insured by defendant. Until 2005, the building's exterior was covered by a layer of a stucco product called marblecrete. In late 2003, plaintiff discovered that a piece of stucco had visibly separated from the building's underlying wall. She hired a contractor to remove the damaged stucco and filed a claim with defendant, which defendant denied. Plaintiff later replaced the remaining stucco and, again, filed a claim with defendant. After defendant denied her claims, plaintiff brought this breach of contract action, arguing that, under her insurance policy, she was entitled to recover her losses. Following a stipulated facts trial to the court, the trial court found for plaintiff and awarded her $98,859.03 for the costs of initially removing the visibly separated stucco, replacing a window damaged during the removal, and subsequently removing the remaining stucco, as well as designing and installing a new exterior. Defendant appeals, contending that the trial court erred when it denied defendant's motion for judgment as a matter of law.[1] We view the evidence in the light most favorable to plaintiff and will affirm the trial court if there is any evidence to support its findings. See Woodbury v. CH2M Hill, Inc., 335 Or. 154, 159, 61 P.3d 918 (2003) (appellate courts review the denial of a motion for directed verdict for any evidence to support a verdict in the nonmoving party's favor). For the reasons that follow, we remand for entry of judgment in the amount of $2,469.68 and otherwise affirm.
The following facts are taken from the trial court's findings of fact and, where noted, are supplemented with information from the parties' stipulated facts. As noted earlier, plaintiff's building was covered with a stucco surface. Behind the stucco, 80 percent of the building's walls are made of concrete; the remainder are made of concrete masonry unit (CMU) blocks. In December 2003, plaintiff learned that a portion of the stucco layer that covered her building had visibly separated from the underlying concrete wall and appeared to be in danger of falling. The damaged stucco did not actually fall to the ground, and plaintiff hired a contractor to remove it and temporarily patch that portion of the wall. She later submitted a claim to defendant for expenses related to the stucco's removal, including costs for a window damaged during the removal.
Both plaintiff and defendant sought to determine why the stucco had separated from the underlying wall. They learned that the adhesive chemical grout that had bonded the stucco to the building's walls had decayed as a result of hysteresis. Plaintiff's expert testified by deposition that hysteresis, which is common in cold, rainy environments, occurs when water that is absorbed into porous materials is subjected to a freeze-thaw cycle. Marblecrete is a particularly porous variety of stucco. As it freezes, the absorbed water expands and, as it later thaws, contracts, causing the stucco to become more porous. When water reaches the adhesive grout, repetition of the freeze-thaw cycle causes the gradual decay of the bond between the stucco and the concrete wall. Because the decay process occurs beneath the stucco, the decay is hidden from view. According to the expert, the effects of hysteresis became visible after approximately 30 years, and he estimated that the process had been ongoing at plaintiff's building for approximately that period of time.
Plaintiff's expert testified that, when he visited the building in early 2004, its exterior was "in a rather advanced state of decline" and there was a "debonding of the skin" from the concrete. However, the expert noted that, although the stucco's adhesion to the underlying concrete was "virtually non-existent," its adhesion to the underlying CMU blocks was "still viable." The expert explained that it would not have been possible to readhere the stucco to the underlying wall because the stucco was "coming off from the back." As a result, he explained, it was necessary to "tak[e] it off" in order to correct the problem.
*1186 In 2005, plaintiff hired contractors to remove the remaining stucco and to design and install a new exterior. At the time that the exterior was removed, none of the remaining portions of the exterior had visibly separated from the underlying concrete wall or fallen to the ground. One of the contractors testified by deposition that, during the removal process, it became apparent that there was "very little adhesion" between the stucco and portions of the underlying wall made of concrete. He noted that the only place where the stucco adhered to the underlying wall was where the wall was made from CMU blocks. Plaintiff and defendant agree that it was "reasonable and prudent" to remove the remaining stucco.
Shortly after removing the stucco and installing a new exterior, plaintiff submitted a claim to defendant for expenses related to removing the old exterior and designing and installing the new exterior. After defendant denied plaintiff's claims, plaintiff brought this action for breach of contract, arguing that her insurance policy entitled her to reimbursement for her losses because, under the terms of her policy, she was entitled to recover for damage or direct physical loss caused by "collapse" of a building or any part of a building.
Plaintiff's policy excludes "loss or damage" caused by "collapse," except as provided in the section describing "Additional Coverage for Collapse." That section provides:
"5. Additional Coverages
"* * * * *
"d. Collapse
"(1) We will pay for direct physical loss or damage to Covered Property, caused by collapse of a building or any part of a building insured under this policy, if the collapse is caused by one or more of the following:
"(a) The `specified cause of loss' or breakage of building glass, all only as insured against in this policy;
"(b) Hidden decay;
"(c) Hidden insect or vermin damage;
"(d) Weight of people or personal property;
"(e) Weight of rain that collects on a roof;
"(f) Use of defective material or methods in construction, remodeling or renovation if the collapse occurs during the course of construction, remodeling or renovation. However, if the collapse occurs after construction, remodeling or renovation is complete and is caused in part by a cause of loss listed in d.(1)(a) through (d).(1)(e), we will pay for the loss or damage even if use of defective material or methods in construction, remodeling or renovation, contributes to the collapse."
(Boldface in original.) Thus, although loss or damage caused by "collapse" is generally excluded, plaintiff may recover for direct physical loss or damage caused by "collapse" if she proves that (1) a specified condition, such as hidden decay, (2) caused "collapse" of a building or part of a building, and (3) the collapse resulted in direct physical loss or damage to covered property. See Employers Insurance of Wausau v. Tektronix, Inc., 211 Or.App. 485, 509-12, 156 P.3d 105, rev. den., 343 Or. 363, 169 P.3d 1268 (2007) (under Oregon law, the insured has the burden of proving the applicability of an exception to an exclusion).
At trial, the parties' primary dispute involved whether the stucco's visible separation from the underlying concrete wall in December 2003 was within the plain meaning of the term "collapse." Defendant conceded that, if the stucco's visible separation from the underlying wall was a "collapse," plaintiff was entitled to coverage for the costs of removing and repairing the damaged portion of stucco. Nevertheless, defendant asserted that plaintiff was not entitled to recover the costs of removing and replacing the remaining stucco, because there was no evidence that that stucco was damaged because of the collapse. The trial court disagreed with defendant and found that the hidden decay of the adhesive grout through hysteresis caused a portion of the exterior stucco to visibly separate from the underlying concrete wall and collapse, damaging plaintiff's building. Accordingly, the court ruled that all of plaintiff's damages were covered under the policy and, as noted, defendant appeals.
*1187 On appeal, the parties again focus on whether the stucco's separation from the underlying concrete wall constituted a collapse. In its first assignment of error, defendant argues that the trial court erred when it denied defendant's motion for judgment as a matter of law because the visible separation of a portion of stucco from the underlying wall was not a "collapse" within the policy's meaning. According to defendant, the plain meaning of the term demonstrates that "collapse" occurs when an object "succumbs to the law of gravity and totally falls down or apart." Despite acknowledging that a portion of stucco visibly separated from the underlying wall, defendant contends that, because the stucco "had not become completely detached and * * * was still resisting the pull of gravity," there was no collapse. Defendant argues that such a construction of the term comports with the decisions of other jurisdictions that have interpreted similar policy language and urges this court to adopt that construction as well.[2] Defendant again concedes that, if the 2003 event was a collapse, plaintiff is entitled to recover for that collapse, but also reiterates its contention that the damage caused by that collapse did not necessitate the removal and replacement of the remaining stucco that is, the damage to the remainder of the exterior was not caused by the collapse. Plaintiff does not offer an alternative construction of the term "collapse," but instead argues that the term is ambiguous and should be construed against defendant. Defendant also asserts a second assignment of error, contending that it was entitled to judgment as a matter of law because plaintiff's claim was barred by the policy's limitations clause.
We begin with defendant's first assignment of error. The policy does not define "collapse" other than to say that it does not include "settling, cracking, shrinking, bulging, or expansion." Accordingly, we turn to the plain meaning of the term "collapse." See Hoffman Construction Co. v. Fred S. James & Co., 313 Or. 464, 469-71, 836 P.2d 703 (1992) (describing the three-step interpretive method for insurance contracts). When used as a noun, as it is in plaintiff's policy, the definition of "collapse" includes: "2: the action of collapsing: the act or action of drawing together or permitting or causing a falling together ." Webster's Third New Int'l Dictionary 443 (unabridged ed. 2002). "Collapsing" is a verb, whose root means, among other things, "to break down completely," "to fall or shrink together abruptly and completely," and "to cave in, fall in, or give way: undergo ruin or destruction by falling or as if by falling down." Id.
Two of the preceding definitions support defendant's contention that a collapse involves a complete and total falling down. However, the remaining definition, "to cave in, fall in, or give way," is not as restrictive. For example, the verb "fall" can mean, among other things, "to descend by the force of gravity when freed from suspension or support" and "to drop suddenly and involuntarily." Id. at 817. Nothing in those definitions requires a total or complete fall. Rather, they require only that an object, acting under the force of gravity, descend or drop involuntarily.
Thus, although "collapse" refers to a situation where an object, acting under the force of gravity, descends or drops, it is not clear that the definition requires a total or complete descent. The policy's definitional exclusion is also unhelpful. As noted above, that provision specifies that various conditions, such as "settling, cracking, shrinkage, bulging or expansion" do not constitute collapse under the policy. The exclusion establishes only that, to the extent that the stucco's *1188 behavior consisted of those conditions, coverage is excluded. It does not answer the question of whether, as used in the policy, a collapse must be total or complete.
Nor does the remainder of the policy contain any language that is helpful in resolving that question. Accordingly, we construe the policy against defendant, Hoffman, 313 Or. at 470-71, 836 P.2d 703, and conclude that, as used in the policy, "collapse" does not require a complete falling down. Rather, "collapse" requires only that an object fall some distance.[3]
The trial court found that, in 2003, a portion of the stucco collapsed when it "abruptly separate[d] from the underlying wall and * * * change[d] shape." Evidence in the record supports that conclusion. Plaintiff's husband testified by deposition that, when he examined the building, he observed that a portion of the stucco "was no longer holding onto the wall" and "was just hanging there." Because plaintiff's building was damaged as a result of a collapse in 2003, we agree with the trial court's conclusion that plaintiff was entitled to recover the $2,469.68 in costs related to removing and repairing that portion of the building's exterior.[4]
However, we agree with defendant that the record contains no evidence that, because of that collapse, the removal and replacement of the remaining stucco in 2005 was covered under the policy. The removal and replacement work sought to repair damage that was not "caused by collapse" within the meaning of the policy, but rather was caused by hysteresis. The record amply demonstrates that, although the stucco on plaintiff's building was no longer attached to the underlying walls, it had not moved or fallen and that, consequently, the repair of that stucco aimed to address the further damage caused by hysteresis. Although the parties agree that it was "reasonable and prudent" to remove that portion of the stucco, the damage that necessitated that removal was caused by hysteresis; they presented no evidence that the damage resulting in the removal was caused by the collapse of the other portion of the stucco when it visibly separated from the building's underlying wall. Accordingly, the trial court erred when it awarded plaintiff damages for the costs of the 2005 removal and replacement of the stucco exterior.
In its second assignment of error, defendant argues that the trial court erred when it denied defendant's motion for judgment as a matter of law because plaintiff's claim was barred by the policy's limitations clause, which provides:
"4. Legal Action Against Us
"No one may bring a legal action against us under this insurance unless:
"* * * * *
"b. The action is brought within 2 years after the date on which the direct physical loss or damage occurred."
(Boldface in original; emphasis added.) Defendant contends that plaintiff's loss occurred when the process of hysteresis began 30 years ago and that plaintiff's action therefore was not brought within two years of the occurrence of that loss.
Defendant's argument assumes that the trial court found that the deterioration of the underlying grout between the exterior stucco and the underlying wall constituted the collapse. That assumption is incorrect. As we have noted, the trial court found that that deterioration, the result of hysteresis, eventually caused a "portion of the stucco exterior surface to abruptly separate from the underlying concrete" in 2003 and that that separation constituted a collapse, which damaged plaintiff's building. Plaintiff filed this action *1189 one year later. Accordingly, the trial court correctly denied defendant's motion for judgment as a matter of law on this ground.
Remanded for entry of judgment in favor of plaintiff in amount of $2,469.68; otherwise affirmed.
LANDAU, P. J., dissenting.
I respectfully disagree with the majority that what is essentially a crack between a piece of stucco and the building to which it is adhered is a "collapse" of that stucco. I do not find any support in the dictionary definitions on which the majority relies for its conclusion that an impending but, as yet, unaccomplished collapse is itself a collapse. Moreover, the policy itself makes plain that "settling, cracking, shrinkage, bulging or expansion" do not constitute a "collapse." Given that such settling, cracking, shrinkage, bulging, and expanding is precisely what happened to the stucco in this case as a result of the process of hysteresis, I do not understand how the majority's holding can be reconciled with the terms of the policy.
I do agree, for the reasons cogently stated by the majority, that, if there was any "collapse," there is no evidence that it caused damage to the rest of the building. But, because I do not agree that such a collapse occurred, I would not reach that issue.
NOTES
[1] Although at trial defendant labeled its motion as one for a directed verdict, because there was no jury it is more accurate to describe defendant's motion as one for judgment as a matter of law. Batzer Construction, Inc. v. Boyer, 204 Or. App. 309, 317, 129 P.3d 773 (2006). Nevertheless, our standard of review is the same as that for a motion for a directed verdict. Id.
[2] See generally Higgins v. Connecticut Fire Insurance Company, 163 Colo. 292, 296-97, 430 P.2d 479, 480-81 (1967) (concluding that the term "collapse" was not ambiguous and that the plaintiff's home, which had small cracks in the walls and foundation, had not suffered from "collapse" because, among other things, there had been "no falling in or loss of shape of the building," but noting a split of authority as to whether "collapse" is ambiguous within the meaning of the policy); Northwestern Mut. Ins. Co. v. Bankers Union L. Ins. Co., 485 P.2d 908, 909-10 (Colo.App.1971) (following Higgins); Baker v. Whitley, 87 N.C.App. 619, 620-21, 361 S.E.2d 766, 767 (1987) (concluding that there was no "collapse" because the plaintiff's home did not fall down completely or cave in).
[3] That construction does not comport with the construction adopted by other jurisdictions, as indicated above, 228 Or.App. at 192 n. 2, ___ P.3d at ___ n. 2. Although those courts based their decisions on language somewhat similar to the language at issue in this case, they applied a more limited dictionary definition of "collapse," and none of those courts applied the interpretive principles that we are required to apply under Hoffman. As a result, the persuasive value of those decisions is limited.
[4] The trial court also awarded damages to plaintiff for a window that was damaged during the removal of the stucco. Because defendant does not challenge that award, we affirm the trial court's award of damages for that incident. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627684/ | 206 P.3d 980 (2009)
Caroline Marie SIMS, Petitioner,
v.
The EIGHTH JUDICIAL DISTRICT COURT OF the STATE Of Nevada, in and for The County of Clark, and The Honorable Jackie Glass, District Judge, Respondents, and
The State of Nevada, Real Party in Interest.
Kanohea Samuel Heaukulani, Petitioner,
v.
The Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, and The Honorable Jackie Glass, District Judge, Respondents, and
The State of Nevada, Real Party in Interest.
Nos. 51188, 51189.
Supreme Court of Nevada.
April 30, 2009.
*981 Philip J. Kohn, Public Defender, and Christy L. Craig and Howard S. Brooks, Deputy Public Defenders, Clark County, for Petitioners.
Catherine Cortez Masto, Attorney General, and Jill Carol Davis, Senior Deputy Attorney General, Carson City, for Respondent.
David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and James R. Sweetin, Deputy District Attorney, Clark County, for Real Party in Interest.
BEFORE THE COURT EN BANC.[1]
OPINION
By the Court, DOUGLAS, J.:
In this second of two related cases involving competency procedures in the Eighth Judicial District Court, the petitioners challenge the district court's refusal to allow defense counsel the opportunity to present independent competency evaluations during the competency hearing.[2] We conclude that defense counsel may introduce these independent evaluations if they are relevant to the issue of the defendant's competency and their probative value is not substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Because the petitioners' independent competency evaluations are relevant to the issue of competency, and their probative value is not substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, we grant these consolidated petitions.
FACTS
In early 2007, petitioner Caroline Marie Sims was charged with one count each of home invasion while in possession of a deadly weapon, carrying a concealed weapon, and burglary while in possession of a deadly weapon. In March 2007, petitioner Kanohea Samuel Heaukulani was charged with one count of open or gross lewdness. Shortly after these charges were filed, concerns were raised at the justice court level regarding the petitioners' competency to stand trial.
The justice court, acting under the competency procedures adopted by the Eighth Judicial District Court, bound the petitioners over to respondent Eighth Judicial District Court Judge Jackie Glass (Department 5) for resolution of the competency issues. Thereafter, the court appointed two psychologists to evaluate the petitioners. Following the evaluations, Department 5 received and reviewed *982 the competency reports. According to the reports, the petitioners were competent to stand trial. Consequently, Department 5 entered formal findings of competence, and the cases proceeded to trial.
Despite Department 5's findings of competence, defense counsel for the petitioners remained concerned about the petitioners' competency to stand trial. As a result, defense counsel ordered independent competency evaluations for both petitioners. Each of the independent competency examiners were properly certified to evaluate competency by the Division of Mental Health and Developmental Services of the Department of Health and Human Services. See NRS 178.417. The results from the independent competency evaluations were unanimous in their conclusion that the petitioners were not competent to stand trial.
Shortly after receiving the results from the independent competency evaluations, defense counsel for the petitioners again raised the issue of competency to stand trial. The trial judges suspended the proceedings and transferred the ongoing competency matters back to Department 5.[3] The petitioners were again evaluated by court-appointed competency examiners. Subsequent to the competency examinations, but prior to the competency hearings, defense counsel for the petitioners moved to admit the results from the independent competency evaluations at the competency hearings. Those motions were denied and these consolidated writ petitions followed.
DISCUSSION
A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, or to control a manifest abuse of discretion or an arbitrary or capricious exercise of discretion. NRS 34.160; Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). A writ of mandamus will not issue, however, if the petitioners have a plain, speedy, and adequate remedy in the ordinary course of law. See NRS 34.170. Mandamus is an extraordinary remedy, and it is within the discretion of this court to determine whether these petitions will be considered. Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982).
The issue raised by these writ petitions concerns whether defense counsel is permitted under NRS 178.415(3) to introduce independent competency evaluations during the competency hearing. This important legal issue needs clarification. Therefore, we exercise our discretion to consider petitioners' arguments. Business Computer Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998) (noting that when "an important issue of law needs clarification and public policy is served by this court's invocation of its original jurisdiction, [the] consideration of a petition for extraordinary relief may be justified" (citing Ashokan v. State, Dep't of Ins., 109 Nev. 662, 667, 856 P.2d 244, 247 (1993))).
Department 5 interprets NRS 178.415(3) to limit the admissibility of evidence during the competency hearing to that which is "related to treatment to competency and the possibility of ordering the involuntary administration of medication." Statutory interpretation is a question of law, and we review Department 5's interpretation of NRS 178.415(3) de novo. Firestone v. State, 120 Nev. 13, 16, 83 P.3d 279, 281 (2004). In examining a statute, this court will look first to the statute's plain language. Id. If the plain language of the statute is ambiguous, or if the plain meaning of the statute was clearly not intended by the Legislature, this court will then turn to legislative intent for guidance. Id.; see State v. Quinn, 117 Nev. 709, 713, 30 P.3d 1117, 1120 (2001) (citing State v. *983 State, Employees Assoc., 102 Nev. 287, 289-90, 720 P.2d 697, 699 (1986) (determining that "plain and unambiguous" language within a statute "must be given effect" unless from the language of the statute "it clearly appears that such [an interpretation] was not so intended")).
NRS 178.415(3) provides that, upon receiving the competency reports from the court-appointed competency examiners, the court "shall permit counsel for both sides to examine the person or persons appointed to examine the defendant." Additionally, "[t]he prosecuting attorney and the defendant may: (a) Introduce other evidence including, without limitation, evidence related to treatment to competency and the possibility of ordering the involuntary administration of medication; and (b) Cross-examine one another's witnesses." NRS 178.415(3)(a), (b).
The plain and unambiguous language of NRS 178.415(3) is expansive and in no way limits the prosecuting attorney's or defense counsel's ability to introduce evidence during the competency hearing. The plain meaning of the statute is evidenced by the phrases "other evidence" and "without limitation," which denote expansive legislative intent. See Alsenz v. Clark Co. School Dist., 109 Nev. 1062, 1065, 864 P.2d 285, 287 (1993); see also St. Paul Mercury Ins. Co. v. Lexington Ins. Co., 78 F.3d 202, 206-07 (5th Cir.1996) (word "including" is generally given expansive reading, even without additional language of "without limitation").
Despite the statute's plain language, Department 5 contends that this court must look to legislative intent for guidance. We are not convinced by this argument because the statute's plain meaning clearly supports an expansive interpretation. Nevertheless, we have canvassed the legislative history and find no intent beyond that which is clearly delineated in the plain language of the statute. Therefore, we conclude that Department 5's limited interpretation of NRS 178.415(3) is incorrect because both sides may introduce other evidence during the competency hearing, including independent competency evaluations.
In this case, while Department 5 found that petitioners' independent competency evaluations were relevant, it determined that their probative value was substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Department 5 explained that the petitioners' independent competency evaluations were needlessly cumulative because the court had already received competency reports from court-appointed competency examiners. We must now determine whether the petitioners' independent competency evaluations were properly excluded as an undue delay, waste of time, or needless presentation of cumulative evidence. This court recently addressed a similar issue in Calvin v. State, 122 Nev. 1178, 147 P.3d 1097 (2006).
In Calvin, we considered whether the district court improperly limited the information the court-appointed competency examiners could consider during the competency examination and the subsequent competency hearing. Id. at 1183, 147 P.3d at 1100. We concluded that while the district court has the discretionary authority to admit or exclude evidence during the competency hearing, the competency process will be much better "served when the district court and any appointed experts consider a wide scope of relevant evidence at every stage of the competency proceeding." Id. This does not compel the district court to consider "every record and hear testimony from every witness the State or defense may wish to present; all evidence must still be relevant to the ultimate issues of whether the defendant understands the nature of the proceedings against him and can assist his counsel in his defense." Id. Even if the evidence being proffered is relevant, the district court may still exclude the evidence "if its probative value is substantially outweighed by considerations of undue delay, waste of time or needless presentation of cumulative evidence." NRS 48.035(2).
In light of our decision in Calvin, we conclude that Department 5's line of reasoning was an arbitrary and capricious exercise of discretion because accuracy in the competency process is much better served when the district court considers a wide scope of *984 relevant evidence. Calvin, 122 Nev. at 1183, 147 P.3d at 1100. Here, the petitioners' independent competency evaluations were, without question, relevant to the issue of competency. Furthermore, the district court's consideration of a single additional competency evaluation will not cause undue delay. Neither will the petitioners' independent competency evaluations be a waste of time nor will it constitute needless presentation of cumulative evidence. This is because the independent competency evaluations came to different conclusions than those submitted by the court-appointed competency examiners. Accordingly, we conclude that the probative value of the petitioners' independent competency evaluations is not "substantially outweighed by considerations of undue delay, waste of time or needless presentation of cumulative evidence." NRS 48.035(2). Therefore, we conclude that Department 5 manifestly abused its discretion in excluding this evidence.
CONCLUSION
NRS 178.415(3) provides that the prosecuting attorney and defense counsel may introduce other evidence, including independent competency evaluations, if the evidence is relevant to the issue of competency. Consequently, the petitioners are entitled to introduce their independent competency evaluations during the competency hearing since the evaluations are relevant to the issue of competency and the probative value of this information is not outweighed by NRS 48.035(2). Accordingly, we grant these consolidated writ petitions. The clerk of this court shall issue writs of mandamus instructing the district court to consider petitioners' independent competency evaluations at their competency hearings.
We concur: HARDESTY, C.J., and PARRAGUIRRE, CHERRY, SAITTA, and GIBBONS, JJ.
NOTES
[1] The Honorable Kristina Pickering, Justice, did not participate in the decision of this matter.
[2] Today, we also decide the related case of Scarbo v. Dist. Ct., 125 Nev. ___, ___ P.3d ___ (Adv. Op. No. 12, April 30, 2009).
[3] Under the competency procedures recently adopted by the Eighth Judicial District Court, all competency matters are assigned to a particular district court judge. In Fergusen v. State, this court reviewed the Eighth Judicial District Court's competency procedures and concluded that the district court may assign initial competency determinations to a particular district court judge. 124 Nev. ___, ___, 192 P.3d 712, 718 (2008). However, any ongoing competency issue must vest with the trial judge who has been assigned to hear the matter. Id. Finally, the determination of all competency matters that arise during trial must vest with the trial judge who has been assigned to hear the matter. Id. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627685/ | 206 P.3d 276 (2009)
227 Or. App. 501
STATE of Oregon, Plaintiff-Respondent,
v.
Martin Kyle McDANIEL, Defendant-Appellant.
CR0500230; A128159.
Court of Appeals of Oregon.
On Respondent's Petition for Reconsideration February 17, 2009.
Decided April 15, 2009.
John R. Kroger, Attorney General, Erika L. Hadlock, Acting Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General, for petition.
Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and HASELTON, Judge.
PER CURIAM.
The state seeks reconsideration of our decision in State v. McDaniel, 225 Or. App. 72, 200 P.3d 177 (2009) (McDaniel II), arguing that our analysis and disposition are incorrect in light of the United States Supreme Court's subsequent decision in Oregon v. Ice, ___ U.S. ___, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). As explained below, we agree. We also reject defendant's remaining argument challenging his sentence and accordingly affirm defendant's convictions and sentence.
This case is before us on remand from the Supreme Court, which vacated our prior decision, State v. McDaniel, 214 Or.App. 694, 167 P.3d 487 (2007) (McDaniel I), in light of State v. Ramirez, 343 Or. 505, 173 P.3d 817 (2007), adh'd to as modified on recons., 344 Or. 195, 179 P.3d 673 (2008), and State v. Fults, 343 Or. 515, 173 P.3d 822 (2007). State v. McDaniel, 345 Or. 316, 195 P.3d 63 (2008). In our previous decision on remand, we affirmed our original decision to remand for resentencing based on our conclusion that under State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007), the court's imposition of consecutive *277 sentences on defendant's convictions ran afoul of defendant's Sixth Amendment rights. McDaniel II, 225 Or.App. at 75, 200 P.3d 177. Ice has since been reversed by the United States Supreme Court. Given the intervening reversal of Ice, we must now address the question that we did not reach in McDaniel II, that is, whether we should exercise our discretion to correct an unpreserved error made by the trial court when it imposed an upward departure sentence of six months' imprisonment after it found defendant to be "not amenable to probation." We affirm.
Defendant was convicted of both misdemeanor and felony attempting to elude a police officer (Counts 2 and 3), giving false information to a police officer (Count 4), and recklessly endangering another person (Count 5). The court imposed a departure sentence of six months' imprisonment on Count 2 after finding that defendant was not amenable to probation in light of his extensive criminal history.
In this case, defendant testified in his own defense and admitted to having more than a dozen prior convictions since 1993, including convictions for giving false information to a police officer and attempting to elude; defendant also admitted to having attempt to elude charges pending against him in another county. Defendant also testified that, in addition to his two prior attempt to elude convictions, he also had succeeded in eluding police at least five times. In light of defendant's testimony, we conclude that there is no legitimate debate that the jury would have found the departure factor that the trial court identified. See Ramirez, 343 Or. at 513, 173 P.3d 817 (setting out "legitimate debate" standard for exercise of discretion to review unpreserved challenges to departure sentences based on judicial findings of fact). Accordingly, we affirm.
Reconsideration allowed; former opinion withdrawn; affirmed. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627687/ | 206 P.3d 769 (2008)
The STATE of Arizona, Appellee,
v.
Luis Enrique ORTEGA, Appellant.
No. 2 CA-CR 2007-0403.
Court of Appeals of Arizona, Division 2, Department B.
October 14, 2008.
Review Denied April 20, 2009.
*771 Terry Goddard, Arizona Attorney General By Kent E. Cattani and Amy M. Thorson, Tucson, Attorneys for Appellee.
Barton & Storts, P.C. By Brick P. Storts, III, Tucson, Attorneys for Appellant.
OPINION
VÁSQUEZ, Judge.
¶ 1 Following a jury trial, appellant Luis Ortega was convicted of two counts each of sexual abuse of a minor under fifteen years of age, molestation of a child, and sexual conduct with a minor under fifteen, all dangerous crimes against children under A.R. S. § 13-604.01, and two counts of threatening or intimidating. The trial court sentenced him to a total of fifty-seven years in prison. On appeal, Ortega argues the charges in counts four and five, molestation of a child and sexual conduct with a minor under fifteen, arose from a single act, and his convictions on both charges violate the double jeopardy protections of the United States and Arizona Constitutions. He further contends the prosecutor "exerted improper influence" over a victim's testimony, rendering it unreliable. For the reasons that follow, we vacate Ortega's conviction and sentence on count four, molestation of a child, but affirm the remaining convictions and the sentences imposed.
Factual and Procedural Background
¶ 2 We view the facts in the light most favorable to sustaining the jury's verdicts. State v. Miles, 211 Ariz. 475, ¶ 2, 123 P.3d 669, 670 (App.2005). On August 20, 2006, thirteen-year-old C.Q. was visiting her mother in Tucson. That morning she was sleeping on a couch, when she was awakened by Ortega touching her arms, buttocks, and legs and trying to turn her over. She asked Ortega what he was doing, and although he stopped touching her, he did not answer. A few days later, on August 25, while C.Q. was sleeping, Ortega turned her "face up" and began touching her breasts and vagina over her clothes. Afterwards, Ortega told her not to tell anyone what had happened. C.Q. returned home to Mexico the following day.
¶ 3 C.Q. next visited her mother in December 2006. On the 22nd or 23rd, Ortega took C.Q. to an abandoned trailer where he forcibly removed her clothes, touched her breasts, back, and legs, and had sexual intercourse with her. She did not tell her mother what had happened because Ortega had told both her and her brother F.Q. that he would either kill their mother or hurt them if they said anything.
¶ 4 On subsequent visits in February and March or April of 2007, Ortega engaged in similar acts with C.Q. and each time he threatened to harm her mother if C.Q. told her what he had done. On April 9, C.Q.'s *772 mother was lying on the couch when she saw Ortega touch C.Q.'s buttocks over her pajamas. Shortly thereafter, she heard him walk into C.Q.'s bedroom. She screamed at him, and the two argued about what she had seen. When the mother called the police, Ortega put his clothes in his car and left the house.
¶ 5 A grand jury indicted Ortega on the following charges: sexual abuse of a minor, committed on or about August 20, 2006, through August 25, 2006 (count one); molestation of a child, on or about August 20, 2006 (count two); sexual abuse of a minor under fifteen, on or about December 21, 2006, through December 28, 2006 (count three); molestation of a child, on or about December 21, 2006, through December 28, 2006 (count four); sexual conduct with a minor under fifteen, on or about December 21, 2006, through December 28, 2006 (count five); sexual conduct with a minor under fifteen, on or about February 10, 2007, through February 12, 2007 (count six); sexual conduct with a minor under fifteen, on or about March 20, 2007, through March 22, 2007 (count seven); threatening or intimidating C.Q. (count eight); and threatening or intimidating F.Q. (count nine). Counts one through seven were alleged to be dangerous crimes against children.
¶ 6 During trial the court granted Ortega's motion for judgment of acquittal pursuant to Rule 20, Ariz. R.Crim. P., only on count seven, and the jury found him guilty of the remaining charges. The court sentenced him to concurrent, enhanced, presumptive prison terms on counts one through four, the longest of which was seventeen years; consecutive, enhanced, presumptive, twenty-year terms on counts five and six; and 180 days in jail for counts eight and nine, with 180 days of presentence incarceration credit. This appeal followed.
Standard of Review
¶ 7 Because Ortega failed to raise at trial either of the issues he raises on appeal, we review only for fundamental error. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is "`error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.'" Id., quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). In order to obtain relief, Ortega must demonstrate both that fundamental error occurred and that it caused him prejudice. Id. ¶ 20. A double jeopardy violation constitutes fundamental, prejudicial error. See State v. McGill, 213 Ariz. 147, ¶ 21, 140 P.3d 930, 936 (2006).
Discussion
Double Jeopardy
¶ 8 Ortega first argues his convictions and sentences for both molestation of a child and sexual conduct with a minor under the age of fifteen violate his right to be free from double jeopardy. He contends molestation is a lesser included offense of sexual conduct with a minor under fifteen and "the same exact act" was used to prove his guilt on both charges.[1] In the alternative, he argues that because both charges arose out of the same conduct, the sentences must be served concurrently pursuant to A.R. S. § 13-116. These are issues of law we review de novo. See State v. Brown, 217 Ariz. 617, ¶ 7, 177 P.3d 878, 881 (App.2008).
¶ 9 The Double Jeopardy Clauses of the United States and Arizona Constitutions protect criminal defendants from multiple convictions and punishments for the same offense. See Brown, 217 Ariz. 617, ¶ 13, 177 P.3d at 882; Lemke v. Rayes, 213 Ariz. 232, ¶ 10, 141 P.3d 407, 411 (App.2006); see also U.S. Const. amend. V, Ariz. Const. art. II, § 10. Multiplicitous charges alone do not violate double jeopardy; only resulting multiple convictions or punishments are prohibited. Merlina v. Jejna, 208 Ariz. 1, ¶ 14, 90 P.3d 202, 205 (App.2004). "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there *773 are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); see also State v. Eagle, 196 Ariz. 188, ¶ 6, 994 P.2d 395, 397 (2000). Thus a defendant may not be convicted for both an offense and its lesser included offense, because they are considered the "same offense" for double jeopardy purposes. Lemke, 213 Ariz. 232, ¶¶ 16-18, 141 P.3d at 413; see also Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (concluding conviction for both greater and lesser included offense violates double jeopardy under Blockburger test). In determining whether offenses are the "same" for purposes of double jeopardy analysis, we look to the elements of the offenses and not to the particular facts that will be used to prove them. See State v. Price, 218 Ariz. 311, ¶ 5, 183 P.3d 1279, 1281 (App.2008); Lemke, 213 Ariz. 232, ¶ 16, 141 P.3d at 413.
The Test for Determining Same Offenses
¶ 10 Both parties rely on In re Jerry C., 214 Ariz. 270, 151 P.3d 553 (App.2007), to support their respective positions on whether molestation of a child is a lesser included offense of sexual conduct with a minor. In Jerry C., the juvenile's charges included two counts of sexual conduct with a minor involving victims who were both under the age of fifteen. Id. ¶¶ 2, 12. During the adjudication hearing, the juvenile court ruled that the evidence on these counts did not "fit" the charge of sexual conduct with a minor, but it was sufficient for molestation, which the court found to be a lesser included offense. Id. ¶ 3. The juvenile appealed, arguing molestation is not a lesser included offense of sexual conduct with a minor, and because the state had not given proper notice of the molestation charges, his delinquency adjudications for those charges should be reversed. Id. ¶ 5. Division One of this court disagreed, concluding that, as alleged in the charging document, it was not possible for the juvenile to commit sexual conduct with a minor without also committing molestation of a child and, therefore, the juvenile court properly had treated molestation as a lesser included offense. Id. ¶ 13.
¶ 11 Division One applied what it described as two separate tests for determining whether an offense is a lesser included offense of another: the "same elements" test promulgated in Blockburger and the "charging documents" test. Id. ¶ 7. Applying the same elements test, the court considered the statutory elements for the two offenses in determining whether one could commit sexual conduct with a minor without also committing molestation of a child. Id. ¶ 9. It concluded that molestation could not be a lesser included offense of sexual conduct under the same elements test because molestation involves only victims under the age of fifteen, whereas sexual conduct can be committed against a victim under the age of eighteen. Id. ¶ 10; see also A.R.S. §§ 13-1405 (sexual conduct), 13-1410 (molestation).
¶ 12 The court next applied the charging document test under which it stated an offense is lesser included if "`the charging document describes the lesser offense even though [it] would not always form a constituent part of the greater offense.'" Jerry C., 214 Ariz. 270, ¶ 11, 151 P.3d at 556-57, quoting State v. Brown, 204 Ariz. 405, ¶ 21, 64 P.3d 847, 852 (App.2003). And, based upon the offense as it was charged, the court concluded "molestation of a child, in this case, is a lesser included offense . . . because the charging document sufficiently describes the lesser included charge." Id. ¶ 13.
¶ 13 However, based on our reading of United States v. Dixon, 509 U.S. 688, 708, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), we question the use of charging documents as a separate test for assessing whether two offenses are the same for double jeopardy purposes. See Price, 218 Ariz. 311, n. 1, 183 P.3d at 1281 n. 1.[2] In Dixon, the Supreme *774 Court held that when two offenses cannot survive the Blockburger "same elements" test, the double jeopardy bar applies, and the defendant may not be convicted of both offenses. 509 U.S. at 696, 113 S.Ct. 2849. The Court rejected the view that, after finding no double jeopardy violation under the Blockburger test, it should nevertheless then consider "whether the nature of the acts alleged supported such a claim." Id. at 709 n. 12, 113 S.Ct. 2849 (emphasis added). Thus, under Dixon, the "`same elements' test . . . is the only permissible interpretation of the double jeopardy clause," State v. Sanders, 205 Ariz. 208, ¶ 65, 68 P.3d 434, 448 (App. 2003).[3]
¶ 14 However, as the state points out, when a particular offense can be committed in multiple ways, "it is impossible to tell just by looking at the statute itself which of the [ways] is . . . relevant . . . for purposes of determining any lesser included offenses. A court would have to look at the charging document to make that determination." We agree. The same elements test merely prohibits consideration of the underlying facts or conduct. But Blockburger does not preclude consideration of the offense as it has been charged in determining the elements of an offense and whether two offenses are the same.[4]See Sanders, 205 Ariz. 208, ¶ 64, 68 P.3d at 448 (noting in dictum that Dixon would appear to permit separate prosecution for two methods of committing aggravated assault on a police officer based on one event because each contained distinctly different elements).
Arizona's Sexual Conduct with a Minor Statute
¶ 15 As we noted above, the same elements test requires a comparison of the elements necessary to establish each charged offense for double jeopardy purposes. Dixon, 509 U.S. at 696, 113 S.Ct. 2849. Generally, the elements of a statute are not difficult to discern, but this is not always the case in double jeopardy determinations. Some statutes describe the elements of an offense in one subsection and in other subsections classify the offense based upon additional factors which, if proven, increase or decrease the severity of the offense. The question then becomes whether the additional factors constitute elements of the offense or are sentencing factors authorized by the jury's verdict. See Eagle, 196 Ariz. 188, ¶ 17, 994 P.2d 395, 399 (2000) (factors in kidnapping statute are mitigating sentencing factors, not elements to be proved by the state); Brown, 204 Ariz. 405, ¶¶ 13, 20, 64 P.3d at 850-52 (finding former shoplifting statute included aggravated form of offense containing additional elements which had to be proven to jury).
¶ 16 Section 13-1405, A.R.S., raises this issue. It provides as follows:
Sexual conduct with a minor; classifications
(A) A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.
*775 (B) Sexual conduct with a minor who is under fifteen years of age is a class 2 felony and is punishable pursuant to [the dangerous crimes against children statute]. Sexual conduct with a minor who is at least fifteen years of age is a class 6 felony. Sexual conduct with a minor who is at least fifteen years of age is a class 2 felony if the person is the minor's parent, stepparent, adoptive parent, legal guardian or foster parent and the convicted person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by [statute] until the sentence imposed has been served or commuted.
Under subsection (A), the elements of sexual conduct with a minor are: (1) intentionally or knowingly engaging in sexual intercourse or oral sexual contact, defined in a separate statute, (2) with a person who is less than eighteen years of age. See § 13-1401 (defining sexual intercourse and oral sexual contact). And subsection (B) classifies the offense according to factors that give rise to different classes of felonies, and corresponding differences in punishment. See A.R.S. § 13-702(A). We must therefore decide whether the factors in subsection (B) constitute elements of the offense for double jeopardy purposes. See Eagle, 196 Ariz. 188, ¶¶ 9-12, 994 P.2d at 397-98; Brown, 204 Ariz. 405, ¶¶ 13-17, 64 P.3d at 850-51.
¶ 17 As our supreme court did in Eagle, 196 Ariz. 188, ¶ 14, 994 P.2d at 399, we find Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), instructive on this issue. See also Carter v. United States, 530 U.S. 255, 273, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) (referring to Jones in determining elements of offense). In Jones the defendant had been charged with violations of two federal statutes, including "carjacking or aiding and abetting carjacking," which provided in pertinent part:
"Whoever, possessing a firearm . . . takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall
(1) be fined under this title or imprisoned not more than 15 years, or both,
(2) if serious bodily injury . . . results, be fined under this title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both."
Id. at 230, 119 S.Ct. 1215, quoting 18 U.S.C. § 2119 (1988). Jones was indicted without reference to the numbered subsections. At his arraignment he was told he could face up to fifteen years in prison; at trial the jury was instructed solely according to the first paragraph of the statute. Id. at 230-31, 119 S.Ct. 1215. However, over Jones's objection, the trial court sentenced him to twenty-five years on the carjacking charge after finding he had inflicted serious bodily injury on the victim during the offense. Id. at 231, 119 S.Ct. 1215. At the Supreme Court, Jones argued that the carjacking statute effectively created three distinct offenses, requiring the elements of each to be charged in the indictment and proven to the jury. See id. at 229, 119 S.Ct. 1215.
¶ 18 The Court stated, "Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt." Id. at 232, 119 S.Ct. 1215. Looking at the structure of the statute, the Court noted that "at first glance, [the statute] has a look to it suggesting that the numbered subsections are only sentencing provisions." Id. at 233, 119 S.Ct. 1215. But the Court went on to state that this impression became less clear in light of subsections (2) and (3), which "not only provide[d] for steeply higher penalties, but condition[ed] them on further facts (injury, death) that seem quite as important as the elements in the principal paragraph (e.g., force and violence, intimidation)." Id. The Court examined the statute's legislative history, which it dismissed as unpersuasive, and other criminal statutes, from which it inferred that Congress had intended bodily injury to be an element because serious bodily injury has traditionally been treated, both by Congress and by the state legislatures, as defining an *776 element of aggravated offenses. Id. at 235-39, 119 S.Ct. 1215.
¶ 19 Finally, the Court noted that interpreting subsections (2) and (3) as merely sentencing factors would put the constitutionality of the statute in doubt, resolving the issue "in favor of avoiding those questions." Id. at 251, 119 S.Ct. 1215. Thus, it concluded that the statute must be construed as "establishing three separate offenses by the specification of distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict." Id. at 251-52, 119 S.Ct. 1215.[5] Therefore, under Jones, any factor that is essential to proving an offense was committed and establishing a particular sentencing range is an element that must be submitted to a jury and proven beyond a reasonable doubt.
¶ 20 Applying these principles to § 13-1405, we conclude the "under fifteen years of age" factor in § 13-1405(B), which renders the offense a class two felony, is an element of that offense. We note that the specific age of a victim is the type of fact usually treated as an element of a crime. See Jones, 526 U.S. at 234, 119 S.Ct. 1215 (looking to "traditional treatment of certain categories of important facts" in determining whether a fact is an element or a penalty aggravator). But even more importantly, sexual conduct with a person under the age of eighteen but at least fifteen years old, is a class six felony, which carries with it a sentencing range from six months' imprisonment to 1.5 years; but, sexual conduct with a minor under the age of fifteen is a class two felony, carrying with it a sentencing range of four to ten years. §§ 13-1405(B), 13-702(A)(1), (5).[6] In other words, proof that the victim is under the age of fifteen automatically exposes the defendant to a maximum prison term over six times greater than what he or she would be exposed to absent such proof. See § 13-1405(B). Additionally, this fact makes the offense punishable as a dangerous crime against children under § 13-604.01.
¶ 21 Thus, because this fact authorizes a "steeply higher penalt[y]" than would be permissible in its absence, we must conclude that § 13-1405 "establish[es] . . . separate offenses by the specification of distinct elements, each of which must be charged . . ., proven beyond a reasonable doubt, and submitted to a jury for its verdict."[7]Jones, 526 U.S. at 233, 252, 119 S.Ct. 1215; see also Apprendi, 530 U.S. at 494, 120 S.Ct. 2348; State v. Martinez, 210 Ariz. 578, ¶¶ 9-10, 115 P.3d 618, 621 (2005); State v. Gross, 201 Ariz. *777 41, ¶¶ 12, 14, 31 P.3d 815, 818, 819 (App. 2001).
¶ 22 Our conclusion is in accord with Arizona case law that consistently has distinguished charges of sexual conduct with a minor under the age of fifteen from sexual conduct with a minor under eighteen. See, e.g., State v. Gonzalez, 216 Ariz. 11, ¶ 1, 162 P.3d 650, 651 (App.2007) (defendant "convicted of attempted . . . sexual conduct with a minor under fifteen years of age"); State v. Long, 207 Ariz. 140, ¶ 3, 83 P.3d 618, 620 (App.2004) (defining offense in one count as sexual conduct with minor under fifteen and offense in another count, pertaining to different incident, as sexual conduct with minor fifteen years or older); see also State v. Marshall, 197 Ariz. 496, ¶ 1, 4 P.3d 1039, 1041 (App.2000).
¶ 23 In State v. Carlisle, 198 Ariz. 203, ¶ 12, 8 P.3d 391, 394-95 (App.2000), Division One of this court stated, "The crime of sexual conduct with a minor under the age of fifteen involves two elements: (1) the defendant intentionally or knowingly engaged in sexual intercourse or oral sexual contact with another person; and (2) the other person ha[d] not reached his or her fifteenth birthday." And in State v. Gallegos, 178 Ariz. 1, 10, 870 P.2d 1097, 1107 (1994), our supreme court approved without comment a jury instruction that provided: "The crime of sexual conduct with a minor under age fifteen requires proof of the following two things: (1) The defendant knowingly penetrated the anus of another person with a part of his body; and (2) the other person had not reached her fifteenth birthday."
Application of the Same Elements Test
¶ 24 Because Ortega was charged with sexual conduct with a minor under fifteen, we must compare the elements of that offense with the elements of molestation. Molestation of a child is committed by "intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child under fifteen years of age." A.R.S. § 13-1410(A). And one commits sexual conduct with a minor under fifteen by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under the age of fifteen. § 13-1405. Sexual contact is defined as "any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact" and sexual intercourse as "penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva." § 13-1401(2), (3).
¶ 25 Both offenses therefore require the same mens rea, and both may only be committed against a victim who is under the age of fifteen. Furthermore, by penetrating the penis, vulva, or anus with a body part or object or by engaging in masturbatory contact with the penis or vulva, one has necessarily also touched, fondled, or manipulated the genitals or anus of that person. Therefore, one cannot commit sexual conduct with a minor under fifteen without also committing molestation of a child. Molestation is a lesser included offense of sexual conduct with a minor under the age of fifteen. Accordingly, Ortega's conviction of both the greater and the lesser offenses violates the Double Jeopardy Clause, Lemke, 213 Ariz. 232, ¶¶ 16-18, 141 P.3d at 413-14, and we must vacate his conviction for molestation of a child.[8]See also State v. McGill, 213 Ariz. 147, ¶ 21, 140 P.3d 930, 936 (2006).
Molestation Charge Based on Same Conduct
¶ 26 The state contends, however, that "there was evidence from which a reasonable juror could conclude [Ortega] had committed molestation by touching C.Q.'s vagina with his hand in December, separate from the molestation inherent in the touching necessary to accomplish penetration. Accordingly,. . . the molestation is not a lesser included offense of the sexual conduct with a minor in this case." See State v. Arnoldi, 176 Ariz. *778 236, 240, 860 P.2d 503, 507 (App.1993) (multiple convictions permissible where evidence showed defendant had rubbed victim's vagina separately from digital penetration). We disagree.
¶ 27 C.Q.'s testimony, the only evidence relating to the December incident charged in count four, does not establish that Ortega touched her vagina separately from penetration with his penis. C.Q. testified that in December Ortega touched her breasts, back, and legs with his hands, and his penis "went into [her] vagina." She was asked, "During the times that you were asked on cross-examination [about] December, February, and March/April when the defendant forced you to have sex did he only have sex with you or did he also touch you?" C.Q. responded, "He would also touch me."[9] However, there is nothing in her testimony making it clear that the touching she had been referring to included manual contact with her vagina. As noted above, C.Q. specifically stated that in December Ortega had only touched her breasts, back, and legs. Her nonspecific response to the prosecutor's broad question, "[D]id he also touch you?" does not support an inference that on that date he had also "touched, fondled, or manipulated [her] genitals." § 13-1401(2).
¶ 28 Consequently, there is no evidence from which reasonable jurors could conclude beyond a reasonable doubt that in December, Ortega committed an act that constituted molestation and which was separate from the act that gave rise to the charge of sexual conduct with a minor. See State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (conviction must be supported by substantial evidence; "[s]ubstantial evidence is more than . . . mere scintilla and is such proof that `reasonable persons could accept as adequate and sufficient to support . . . conclusion of defendant's guilt . . . beyond reasonable doubt'"), quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980).
Prosecutorial Misconduct
¶ 29 Ortega asserts that "the coercive tactics employed [by the state] upon ten year old [F.Q.] impermissibly swayed his testimony." He contends this rendered F.Q.'s testimony unreliable, deprived him of a fair trial, and requires dismissal of count nine, threatening or intimidating. Because Ortega failed to object to this testimony below, we review for fundamental error only. See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607. As we understand his argument, Ortega essentially suggests the state committed prosecutorial misconduct that caused F.Q.'s testimony to be inconsistent and therefore unreliable.[10] To warrant reversal on the basis of prosecutorial misconduct, a "`defendant must demonstrate that the prosecutor's misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . [T]he conduct [must] be so pronounced and persistent that it permeates the entire atmosphere of the trial.'" State v. Roque, 213 Ariz. 193, ¶ 152, 141 P.3d 368, 403 (2006), quoting State v. Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d 1184, 1191 (1998).
¶ 30 When F.Q. initially was called to testify, he did not remember many of the details of the events in question or his statements to a police detective. After extensive discussion and argument from counsel, the trial court permitted him to be excused and recalled the following day, so that an interpreter could transcribe his interview with the police detective to help refresh his memory under Rule 612, Ariz. R. Evid., and for potential use as impeachment based on prior inconsistent *779 statements under Rule 613(A), Ariz. R. Evid. See also Ariz. R. Evid. 801(d)(1) (prior inconsistent statements not hearsay).
¶ 31 F.Q. was recalled the following day. The prosecutor read him excerpts from the transcribed interview and initially he still did not remember what he had told the detective about the alleged instances of sexual contact between Ortega and C.Q. and denied Ortega had threatened to kill his mother if he told anyone what had happened. However, a few minutes into the questioning, F.Q. recalled telling the detective that Ortega had threatened him while he was in Tucson in December.
¶ 32 Ortega contends "[F.Q.'s] testimony was altered by the pervasive questioning on the subject" and was "elicited by the State after considerable coaxing of [F.Q.] to testify in a manner that would lead to [Ortega's] conviction." We disagree. The methods the prosecutor used to elicit this testimony were proper under the Rules of Evidence and therefore did not constitute prosecutorial misconduct. See Roque, 213 Ariz. 193, ¶ 154, 141 P.3d at 403 (first step in assessing prosecutorial misconduct is to determine whether error occurred).
¶ 33 When a witness does not remember making a particular statement, Rule 612, Ariz. R. Evid., permits the "use [of] a writing to refresh memory for the purpose of testifying." If the attempt to refresh the witness's recollection is unsuccessful, the writing may then be read into the record, although it may not be separately admitted into evidence. Ariz. R. Evid. 803(5); see also State v. Salazar, 216 Ariz. 316, ¶ 8, n. 2, 166 P.3d 107, 109, 109 n. 2 (App.2007). Furthermore, when a witness denies making the prior statement, the prior statement is admissible for impeachment purposes. See Ariz. R. Evid. 613(b), 801(d)(1); see also State v. Robinson, 165 Ariz. 51, 58, 796 P.2d 853, 860 (1990) (impeachment of party's own witness permissible); State v. Sucharew, 205 Ariz. 16, ¶ 20, 66 P.3d 59, 66 (App.2003) (prior inconsistent statement by testifying witness not hearsay). Here, at various times during his testimony F.Q. either did not remember his prior statements or denied making them. The prosecutor was thus entitled to introduce F.Q.'s prior statements under Rules 801(d)(1) and 803(5), Ariz. R. Evid., to refresh his memory or for impeachment purposes. Therefore, there was no error or misconduct in the prosecutor's detailed questions concerning F.Q.'s previous statements.
¶ 34 To the extent Ortega is arguing that F.Q.'s testimony was unreliable because it was inconsistent, this was an issue of credibility for the jury to resolve. State v. Lee, 151 Ariz. 428, 429, 728 P.2d 298, 299 (App. 1986) (when jury aware of inconsistencies in victim's statements, issue is not sufficiency of evidence but credibility of victim and defendant, which jury must resolve). Defense counsel was entitled to explore these inconsistencies on cross-examination, and he chose not to, although he did argue them in closing. We will not reweigh this evidence on appeal. State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App.1995) (finder of fact, not appellate court, determines witness credibility). There was no error, let alone fundamental error, in the admission of F.Q.'s testimony.
Disposition
¶ 35 For the reasons stated above, we vacate Ortega's conviction and sentence for count four, molestation of a child. We affirm in all other respects.
CONCURRING: PETER J. ECKERSTROM, Presiding Judge.
ESPINOSA, Judge, specially concurring.
¶ 36 I concur in the results and reasoning of the majority except with respect to the lengthy and, in my view, unnecessary analysis of whether Ortega could be convicted on both counts four and five in this case. Because it is simply not possible for Ortega to have had sexual intercourse with the child, as charged in count five, without also having touched her vagina, as charged in count four, under well-established jurisprudence of our supreme and appellate courts, there is no question the latter was a lesser included offense of the former, for which Ortega could not be separately convicted. See State v. Cheramie, 218 Ariz. 447, ¶ 9, 189 P.3d 374, 375 (2008) ("`To constitute a lesser-included offense, the offense must be composed solely *780 of some but not all of the elements of the greater crime so that it is impossible to have committed the crime as charged without having committed the lesser one.'"), quoting State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983); State v. Wall, 212 Ariz. 1, ¶ 14, 126 P.3d 148, 150 (2006) ("An offense is `lesser included' when the `greater offense cannot be committed without necessarily committing the lesser offense.'"), quoting State v. Dugan, 125 Ariz. 194, 195, 608 P.2d 771, 772 (1980); State v. Caudillo, 124 Ariz. 410, 412, 604 P.2d 1121, 1122 (1979) (test to determine if offense is lesser included is whether the greater offense could not have been committed without necessarily committing the lesser); see also In re Jerry C., 214 Ariz. 270, ¶ 11, 151 P.3d 553, 556-57 (as charged, child molestation was necessarily a lesser included offense of sexual conduct with a minor); State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 12, 965 P.2d 94, 97 (App.1998) (test for lesser included offense includes situation where lesser charge is "incidental" to greater whose commission as charged necessarily includes the lesser), cited with approval in Cheramie, 218 Ariz. 447, 189 P.3d 374.
¶ 37 In all other respects, I concur with the majority.
NOTES
[1] In his opening brief, Ortega also asserted that count three, sexual abuse of a minor under fifteen, was a lesser included offense of sexual conduct with a minor. However, he has withdrawn that argument in his reply brief.
[2] In Price we acknowledged that "[s]ome Arizona authority suggests consideration of the charging document is appropriate in double jeopardy analysis." 218 Ariz. 311, n. 1, 183 P.3d at 1281. These cases have articulated the test "in the context of lesser-included offenses . . . as `whether [the purported lesser included offense] is, by its very nature, always a constituent part of the greater offense or whether the charging document describes the lesser offense even though it does not always make up a constituent part of the greater offense.'" State v. Siddle, 202 Ariz. 512, ¶ 10, 47 P.3d 1150, 1154 (App.2002), quoting State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 12, 965 P.2d 94, 97 (App.1998) (emphasis omitted); see also State v. Welch, 198 Ariz. 554, ¶ 7, 12 P.3d 229, 231 (App.2000).
[3] Thus, to the extent Jerry C. considered the Blockburger elements test as distinct from the "charging documents test," we disagree. However, to the extent Jerry C. merely considered the offense as it was charged to inform its determination of the elements pursuant to Blockburger, we would find no fault with that approach. In any event, we reach the same ultimate conclusion as in Jerry C., that molestation of a child is a lesser included offense of sexual conduct with a minor under fifteen.
[4] Nor does Dixon. In Part III-A of Justice Scalia's opinion, which a plurality of the Court joined, he consulted the contents of court orders prohibiting the defendants from engaging in certain acts in order to elucidate the elements of the criminal contempt charges based on those orders and compare them with the elements of their convictions for separate but related offenses. 509 U.S. at 697-99, 113 S.Ct. 2849. See also id. at 714, 113 S.Ct. 2849 (Rehnquist, C.J., concurring in part, dissenting in part) (disagreeing with Justice Scalia's reliance on terms of contempt orders rather than "elements of contempt of court in the ordinary sense").
[5] In Apprendi v. New Jersey, 530 U.S. 466, 494 n. 19, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), decided a year later, the Court broadened its holding in Jones and further distinguished elements of offenses from sentencing factors:
The term [sentencing factor] appropriately describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury's finding that the defendant is guilty of a particular offense. On the other hand, when the term "sentence enhancement" is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict. Indeed, it fits squarely within the usual definition of an "element" of the offense.
[6] In this case we are neither presented with nor do we decide whether, under the reasoning of Jones, Apprendi, or their progeny, A.R.S. § 13-702 enhancement factors would constitute elements for the purposes of Blockburger and double jeopardy analysis.
[7] In Eagle, 196 Ariz. 188, ¶ ___, 994 P.2d at ___, our supreme court considered whether Arizona's kidnapping statute, A.R.S. § 13-1304, which is similar in construction to § 13-1405, contains the separate offenses of first-and second-degree kidnapping. The court concluded that the statute creates a single offense that is presumptively a class two felony; the fact that the victim was released without physical injury is merely "a mitigating factor relevant solely for sentencing purposes," which allows the offense to be reduced to a class four felony as set forth in subsection (B) of the statute. Id. ¶¶ 10, 17. Because only the defendant benefits from the existence of a mitigating factor, he bears the burden of proving it. Id. ¶ 17. The court noted, however, that the statute "also identifies as an aggravating circumstance the fact that the victim is under 15 years of age. We are mindful that the Constitution sometimes requires facts that increase punishment to be treated as elements of the crime, not merely as sentencing factors." Id. n. 1. Because that issue was not before the court, it "express[ed] no opinion whether the aggravating factor . . . must be treated as an element of the offense." Id.
[8] Because we have vacated Ortega's conviction and sentence in count four for molestation of a child, we need not address his alternative argument that A.R.S. § 13-116 requires his sentences in counts four and five to be served concurrently.
[9] At oral argument, the state contended that C.Q.'s response that Ortega "would also touch" her, referred back to the prosecutor's previous question concerning touching in August that included her breasts and vagina. However, the prosecutor's question does not constitute evidence. And after defense counsel's objection to the question about August 25 was sustained, the prosecutor's next question concerned "the times that defense counsel asked [C.Q.] about on cross-examination in December, February, and . . . the March, April time frame." When the prosecutor attempted to clarify the type of touching C.Q. was referring to, the court sustained another defense objection, and she abandoned that line of questioning.
[10] We note that although Ortega has documented the specific instances of questioning he contends amount to prosecutorial misconduct, he has failed to cite any authority in support of this argument. See Ariz. R.Crim. P. 31.13(c)(vi). | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627688/ | DAVID T. MOYSA and JANE F. MOYSA, Petitioners-Appellees,
v.
ERIC L. DAVIES and MIRELLA M. DAVIES, Respondents-Appellants.
No. 28753
Intermediate Court of Appeals of Hawaii.
May 4, 2009.
On the briefs:
Brian B. Custer and Gary L. Hartman, for Respondents-Appellants.
Adrian W. Rosehill, Stubenberg & Durrett, for Petitioners-Appellees.
SUMMARY DISPOSITION ORDER
RECKTENWALD, C.J., WATANABE and FUJISE, JJ.
Respondents-Appellants Eric L. Davies and Mirella M. Davies (collectively Respondents) appeal from the First Amended Order Granting Petition for Injunction Against Harassment (Amended Order), filed on July 31, 2007 in the District Court of the First Circuit (district court).[1]
The Amended Order stems from a dispute between the Resondents and their neighbors Petitioners-Appellees David T. Moysa and Jane F. Moysa (collectively Petitioners). The Amended Order, inter alia, prohibited the Respondents from "[c]ontacting, threatening, or harassing" the Petitioners. The Amended Order also contained the following special conditions:
(1) Respondents shall not play any music, sermons, or anything else on a television, stereo, other sound reproduction device such that the sound can be heard thirty (30) feet or more away. The thirty (30) or more feet shall be measured from the point where the sound is audible (a) to the nearest part of the Davies residence, if the sound source is within the Davies residence, or (b) to the sound source, if that source is not within the Davies residence. Notwithstanding anything to the contrary, it shall not be a violation of this injunction with respect to sounds audible within the Davies property. (2) Respondents shall not make any statements to any third party regarding the Petitioners; provided, however, that Respondents may conduct business or file complaints with the homeowner's association.
The Respondents raise the following points of error on appeal:
1. The amended special condition 1 relating to the volume of sound (special condition 1) violates their right to free speech, right to privacy, and is overbroad or vague.
2. The amended special condition 2 relating to communications with third parties (special condition 2) violates their right to free speech, right to a fair trial, and is overbroad.
3. The imposition of the special conditions exceeds the relief prayed for thereby violating Mirella Davies's right to due process.
4. The district court manifested bias and/or prejudice when it amended the special conditions.
5. The district court abused its discretion in imposing the special conditions.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, as well as the relevant statutory and case law, we resolve the Respondents' points of error as follows:
(1) Special condition 1 is not overly broad or vague and does not violate the Respondents' right of free speech. The restriction on the volume of sound from a device based upon that sound being audible 30 feet from the source does not necessarily violate free speech. In State v. Ewing, 81 Hawai`i 156, 914 P.2d 549 (App. 1996), this court held that Revised Ordinances of Honolulu (ROH) § 41-31.1, which made it unlawful to play a device for sound reproduction from a vehicle at a volume audible from 30 feet from the source of the sound, was not overbroad so as to infringe upon free speech because it "does not regulate the content of the sound from the reproducing device." Id. at 164, 914 P.2d at 557. The same can be said of special condition 1, which does not restrict the content of the sound, but rather its volume. See Cohen v. California, 403 U.S. 15, 21 (1971) ("government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue").
Special condition 1 does not violate the Respondents' right to privacy. A person cannot reasonably have a privacy interest in that which is exposed to the public. State v. Augafa, 92 Hawai`i 454, 465, 992 P.2d 723, 734 (App. 1999); State v. Texeira, 62 Haw. 44, 49, 609 P.2d 131, 135 (1980). Since special condition 1 only restricts sound that can be heard outside of the Respondents' home, it does not interfere with their right to privacy.
(2) Special condition 2 violates the Respondents' right of free speech because it regulates the content of speech by the Respondents, by prohibiting them from discussing the Petitioners with third parties except in limited circumstances involving the homeowners' association. A curtailment of the right to free speech based on content is presumptively invalid. See R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992). Special condition 2 is neither narrowly drawn nor necessary to serve a compelling state interest. Statements that are entirely innocuous may nevertheless violate the Amended Order if they involve the Petitioners and are made by the Respondents to a third party.
The presumption of invalidity has not been overcome by the Petitioners. The Petitioners argue that special condition 2 is qualified by the definition of harassment, which requires that the conduct serves no legitimate purpose. See Hawaii Revised Statutes (HRS) § 604-10.5(a)(2). Courts may properly restrict statements made with the intent to harass. See Brekke v. Wills, 125 Cal. App. 4th 1400, 1409 (2005); Thorne v. Bailey, 846 F.2d 241, 243 (4th Cir. 1988) ("Prohibiting harassment is not prohibiting speech, because harassment is not a protected speech. Harassment is not communication, although it may take the form of speech."); see also Garcia v. State, 212 S.W.3d 877, 888-889 (Tex.App. 2006); Test Masters Educ. Servs. v. Singh, 428 F.3d 559, 580 (5th Cir. 2005). However, special condition 2 is not limited only to communications made with the intent to harass, but rather prohibits non-harassing speech as well.
Since we conclude that special condition 2 violates the Respondents' right to free speech, we do not address the effect of special condition 2 on their right to a fair trial.
(3) Mirella Davies was not denied due process of law because special condition 1 was of the kind prayed for in the demand for judgment.[2] The Respondents argue that Mirella Davies was denied due process of law because special condition 1 violated Hawai`i District Court Rules of Civil Procedure (DCRCP) Rule 54(c), which requires that a "judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment."
Preliminarily, we note that the DCRCP do not apply to "[a]ctions for relief from harassment maintained pursuant to HRS Section 604-10.5, as the same may be renumbered." DCRCP Rule 81(a)(4). However, the principle underlying DCRCP Rule 54(c) is a requirement of due process. See In re Genesys Data Technologies Inc., 95 Hawai`i 33, 38-39, 18 P.3d 895, 900-01 (2001).
The Petitioners prayed for injunctive relief against harassment and an award of attorneys' fees and costs. The Petition stated that the harassment included, inter alia, loud noise and music from the Respondents' home. Since special condition 1 enjoins the Respondents from engaging in the harassing behavior of creating noise audible in the Petitioners' home, it appears to fall within the prayer for relief.
Even if special condition 1 did not fall within the relief prayed for, Mirella Davies was not prejudiced by the default because she was represented by counsel at all proceedings after January 4, 2007, which contested the validity of the special conditions. The Amended Order states that "[a]t all subsequent hearings Eric L. Davies and Mirella M. Davies have been represented by Brian B. Custer and Gary L. Hartman." Respondents' opposition to Petitioners' motion for order to show cause was filed on behalf of "Respondents" in the plural by the attorneys for "Respondents." The motion for relief from order and motion for recusal were filed on behalf of both Eric L. Davies and Mirella M. Davies. Thus, Mirella Davies had the opportunity to litigate her interest in this matter in spite of her default on January 4, 2007. See Bank of Hawaii v. Horworth, 71 Haw. 204, 216, 787 P.2d 674, 681 (1990).
(4) The Respondents failed to establish that the district court judge was biased and/or prejudiced. On August 9, 2007, the Respondents filed a motion for recusal seeking to disqualify Judge Phillip Doi, which was noticed for a hearing on August 24, 2007. The record on appeal does not contain a written order or other disposition of that motion and there is no transcript in the record of any hearing on the motion.
The Respondents rely upon a number of factual bases to support their claim of bias on the part of the district court judge. Several of those allegations either relate to hearings for which the Respondents have not provided transcripts on appeal or discussions which allegedly took place off the record. The Respondents have the burden of presenting the appellate court with a sufficient record to demonstrate the alleged error. Bettencourt v. Bettencourt, 80 Hawai`i 225, 230, 909 P.2d 553, 558 (1995); Ling v. Yokoyama, 91 Hawai`i 131, 135, 980 P.2d 1005, 1009 (App. 1999). The current record before this court is insufficient to show the facts that the Respondents have alleged as the bases for establishing bias on the part of the district court judge. See Ling, 91 Hawai`i at 135, 980 P.2d at 1009; State v. Hoang, 93 Hawai`i 333, 336, 3 P.3d 499, 502 (2000).
We have reviewed the Respondents' other claimed examples of bias, and they are unsupported by the record or otherwise without merit.
Accordingly, the Respondents fail to demonstrate that the district court judge was biased.
(5) Having determined that special condition 1 did not violate the Respondents' right to privacy, free speech, or due process, we hold that the imposition of special condition 1 was not an abuse of discretion.[3]
Therefore,
IT IS HEREBY ORDERED that the First Amended Order Granting Petition for Injunction Against Harassment filed on July 31, 2007 is vacated with regard to special condition 2, and affirmed in all other respects.
NOTES
[1] The Honorable Phillip Doi presided.
[2] Having determined that special condition 2 violates the Respondents' right to free speech, we do not reach the due process issue as it relates to special condition 2.
[3] We do not address whether the district court abused its discretion as it relates to special condition 2 since we determined that special condition 2 violates the Respondents' right to free speech. See Section (2). | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2449929/ | 955 S.W.2d 120 (1997)
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., Appellant/Cross-Appellee,
v.
INSURANCE COMPANY OF NORTH AMERICA, Appellant/Cross-Appellee,
v.
KECK, Mahin & Cate, Grant Cook, and Robert A. Plessala, Appellees/Cross-Appellants.
No. 14-96-00049-CV.
Court of Appeals of Texas, Houston (14th Dist.).
October 16, 1997.
Rehearing Overruled November 26, 1997.
*123 Robert B. Summers, Austin, for appellants.
William K. Wilde, Iris H. Robinson, Houston, for appellees.
Before LEE, AMIDEI and EDELMAN, JJ.
OPINION
LEE, Justice.
This is an equitable subrogation case in which the excess insurance carrier sued the primary insurance carrier and the insured's attorneys. National Union Fire Insurance Company of Pittsburgh, Pa. ("National") sued Insurance Company of North America("INA") and the law firm of Keck, Mahin & Cate and two of its attorneys, Grant Cook and Robert A. Plessala (collectively "KMC"). INA filed a third-party action against KMC. All parties filed full or partial motions for summary judgment. The trial court (1) granted summary judgment in favor of KMC on all claims asserted by National and INA; (2) granted summary judgment in favor of INA on claims by National for violation of article 21.21 of the Texas Insurance Code and gross negligence, but denied summary judgment as to negligence; and (3) granted partial summary judgment in favor of National on INA's and KMC's affirmative defenses of contributory negligence and comparative responsibility. National and INA appeal raising points of error challenging the trial court's rulings, and KMC raises a conditional cross-point in the event we reverse the trial court's judgment as to KMC. We affirm in part, and reverse and remand in part.
In September of 1991, Wolf Point Shrimp Farm and its owner ("Wolf Point") filed suit against Granada Food Corporation ("Granada") for damages allegedly caused by Granada's improper processing and marketing of shrimp grown and harvested at the Wolf Point shrimp farm in the fall of 1990. Granada initially hired KMC to defend it in the Wolf Point litigation. In November of 1991, KMC tendered the defense of the suit to Granada's primary insurance carrier, INA, and Granada's excess insurance carrier, National. INA had issued a comprehensive general liability insurance policy effective from June 1, 1990, to June 1, 1991, covering Granada with a $1 million per occurrence policy limit. National had provided Granada with a commercial umbrella liability policy effective from June 4, 1990, to July 21, 1991, *124 which provided excess coverage for Granada's liability from $1 million to $10 million.
INA agreed to defend Granada in the Wolf Point suit; however, its response to Granada's defense tender and demand for coverage included a reservations of rights. National never issued a reservation of rights to Granada. Under the operating instructions of the INA policy, Granada had the right to select its own defense counsel, and Granada chose to have KMC continue its representation. Thus, INA engaged KMC to defend Granada in the Wolf Point litigation and paid its fees.
During the pendency of the suit, Wolf Point's counsel made a settlement demand upon Granada for $3.6 million. Neither Granada nor the insurance carriers accepted this demand. INA points out that this was not a Stowers demand upon INA because it was not within INA's $1 million policy limits, and therefore, INA could not have settled without contribution from either Granada or National. See G.A. Stowers Furniture Co v. American Indem. Co., 15 S.W.2d 544 (Tex. Comm'n App.1929, holding approved). National, on the other hand, contends INA never requested National contribute toward a settlement, and in fact advised National that the suit could be settled within the primary policy limits of $1 million.
In January of 1992, the trial court signed an order giving the Wolf Point suit a preferential trial setting of April 28, 1992. While the attorneys for Wolf Point were busy with discovery in anticipation of the trial, KMC, according to INA and National, had taken little if any action on behalf of Granada. KMC filed a motion for continuance on April 16, 1992, but could not obtain a hearing on the motion until the first day of trial. The trial court denied the motion for continuance and trial began the next day. The day the trial began, INA tendered its policy limits to National. On April 30, 1992, during trial, National negotiated and settled the Wolf Point suit for $7 million. INA contributed its $1 million policy limits, and National paid the remaining $6 million. The final judgment in the Wolf Point case was signed and entered in May of 1992.
Less than two years after the final judgment was entered in the Wolf Point suit, National filed suit in state court against INA alleging negligence, gross negligence, and violations of the Texas Insurance Code. Soon after National sued INA, INA filed a thirdparty petition against KMC alleging legal malpractice and entitlement to contribution and/or indemnity from KMC. National added KMC as a defendant in the suit alleging legal malpractice.[1] Both INA and KMC asserted affirmative defenses of contributory negligence and comparative responsibility; they also asserted contribution claims against each other. National alleged that both INA and KMC had mishandled Granada's defense, and sought recovery of the $6 million it paid to settle the Wolf Point suit as well as punitive damages. National's suit was based on the doctrine of equitable subrogation as set out in American Centennial Ins. Co. v. Canal, 843 S.W.2d 480, 483 (Tex.1992). Under equitable subrogation, National stepped into the shoes of its insured, Granada, and became Granada's subrogee. See id.
Each of the parties filed a motion for partial and/or complete summary judgment. National filed a motion for partial summary judgment on the affirmative defenses of contributory negligence and comparative responsibility alleging its conduct was immaterial because, as an excess carrier, it had no duty to investigate, provide a defense, or participate in settlement negotiations until INA tendered its primary policy limits. INA sought summary judgment on the grounds that National had no cause of action as an equitable subrogee based on the facts of the case. Specifically, INA argued National was limited to its negligence claim and that such a claim was limited to an assertion that INA negligently failed to accept a reasonable settlement demand within its primary policy limits. Thus, INA argued, National could not recover punitive damages. INA also argued National paid the $6 million as a "volunteer," and therefore, it could not recover *125 under an equitable subrogation theory. KMC filed a motion for summary judgment incorporating INA's arguments on punitive damages and the assertion that National paid the $6 million voluntarily. KMC also argued that any claims asserted by National or INA were barred by a written release entered into between KMC and Granada weeks before the Wolf Point suit was called to trial.
On September 11, 1995, the trial court signed an interlocutory order granting various forms of relief to each of the parties on their respective motions for summary judgment. The trial court ruled:
(1) National was entitled to judgment as a matter of law on INA's and KMC's affirmative defenses of contributory negligence and comparative responsibility;
(2) KMC was entitled to judgment as a matter of law on all claims based on the release; and
(3) INA was entitled to judgment as a matter of law on National's claims for gross negligence and violations of the Texas Insurance Code, but the court denied INA's motion for summary judgment as to National's negligence claim.
On September 13, 1995, the trial court signed an order granting a severance as to the only pending claim, the negligence claim against INA, and entered a final judgment that National and INA take nothing against KMC. National and INA independently perfected appeals from this judgment.
In reviewing a trial court's order granting summary judgment, the court must determine whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). The movant has the burden to show there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Evidence favorable to the non-movant will be taken as true and every reasonable inference indulged in its favor. Id.
There are three main issues raised by the parties in this case: (1) whether the release between KMC and Granada bars all claims by National and INA; (2) whether the defenses of contributory negligence and/or comparative responsibility are available in an equitable subrogation action such as this; and (3) whether under the doctrine of equitable subrogation an excess carrier may recover on any claims other than negligence in a suit against a primary carrier.
Before reviewing these issues, however, we address a contention raised in INA's ninth point of error. In that point, INA argues the trial court erred in denying its motion for summary judgment as to the negligence claims asserted by National.[2]
DENIAL OF INA'S SUMMARY JUDGMENT ON NATIONAL'S NEGLIGENCE CLAIM
Generally, a denial of a motion for summary judgment is not reviewable on appeal. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996) (citing Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980)). This is because a denial of a summary judgment is not a final judgment. Id. There are, however, two exceptions to this general rule. When both parties file motions for summary judgment and the trial court grants one and denies the other, the denial may be appealed. See Davis v. Manning, 847 S.W.2d 446, 452 (Tex.App.Houston [14th Dist.] 1993, no writ). An appeal from the denial of a motion for summary judgment is also proper when the denial is: (1) based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state; or (2) based in whole or *126 in part upon a claim against or defense by a member of the media, acting in such capacity, or a person whose communication appears in or is published by the media, arising under the free speech or free press clause of the First Amendment of the United Stated Constitution, or Article 1, Section 8 of the Texas Constitution. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5)-(6) (Vernon 1997). The trial court's denial of INA's motion for summary judgment on the negligence claim does not fall within either of these exceptions, and therefore, is not appealable. Thus, we overrule INA's ninth point of error.
We now begin our review of the remaining issues in this case by first addressing the legal effect of the release on the claims asserted against KMC by National and INA.
THE RELEASE
On April 10, 1992, KMC and Granada entered into a written release. In exchange for KMC's promise to discharge Granada from any demands KMC might have for unpaid fees, Granada allegedly released KMC from all claims for the rendition of legal services by KMC to Granada between June 1, 1988, and April 1, 1992. In points of error one through three,[3] National claims the trial court erred in granting summary judgment in favor of KMC based on the release. INA makes the same contention in its points of error one through six. The arguments raised by National and INA within their respective points of error essentially mirror each other.
KMC argued, and the trial court agreed, that the release executed by Granada and KMC was an absolute defense to any malpractice claims arising out of the firm's handling of the Wolf Point suit.[4] On the other hand, National and INA argue the release does not encompass any legal malpractice claims arising out of the Wolf Point lawsuit. They argue that the terms of the release clearly show that the release was only applicable to legal malpractice in suits in which the legal fees were unpaid. It is undisputed that all of the legal fees in the Wolf Point suit were paid. Alternatively, National and INA contend the release is ambiguous. Consequently, we must determine whether the release between Granada and KMC released KMC from legal malpractice claims arising out of the Wolf Point suit.
The relevant portions of the release, including those paragraphs containing the promises exchanged by KMC and Granada, state:
* * *
*127 WHEREAS, KMC has performed legal services for Granada since June of 1988;
WHEREAS, as of the date written above, Granada owes KMC a substantial sum for outstanding and unpaid invoices for professional legal services rendered to Granada up to April 1, 1992 (the "Unpaid Fees");
WHEREAS, KMC and Granada desire to resolve the issue of the Unpaid Fees to their mutual satisfaction; and
* * *
NOW, THEREFORE, in exchange for the mutual promises, agreements and releases herein contained, KMC and Granada do hereby as follows:
1. KMC hereby releases, and by these presents does hereby release, acquit and forever discharge Granada, its agents, servants, employees, officers, directors, affiliates and all persons, natural or corporate, in privity with them or any of them from any demands, claims or causes of action of any kind which KMC had or might have, directly or indirectly attributable to the Unpaid Fees owed to KMC by Granada for professional legal services rendered between June 1, 1988 and April 1, 1992, it being intended to release Granada from any obligation to pay such Unpaid Fees.
2. Granada hereby releases and by these presents does hereby release, acquit and forever discharge KMC, its agents, servants, employees, partners, affiliates and all persons, natural or corporate, in privity with it, from any and all demands, claims or causes of action of any kind whatsoever, statutory, at common law or otherwise, now existing or that might arise hereafter, directly or indirectly attributable to the rendition or [sic] professional legal services by KMC to Granada between June 1, 1988 and April 1, 1992.
* * *
A release is a writing providing that a duty or obligation owed to one party to the release is discharged immediately or on the occurrence of a condition. RESTATEMENT (SECOND) OF CONTRACTS § 284 (1981). In this case, KMC claims the release discharged Granada from the payment of unpaid legal fees, and in consideration, Granada agreed to discharge KMC from liability for any malpractice claims attributable to the rendition of legal services by KMC to Granada between June 1, 1988, and April 1, 1992. Under Texas law, a release is a contract and is subject to the rules governing contract construction. See Williams v. Glash, 789 S.W.2d 261, 264 (Tex.1990) (holding release is a contract subject to avoidance on same grounds as any other contract); Loy v. Kuykendall, 347 S.W.2d 726, 728 (Tex.Civ. App.San Antonio 1961, writ ref'd n.r.e.) (treating release as a contract subject to rules governing construction thereof); RESTATEMENT (SECOND) OF CONTRACTS § 284 cmt. c (1981). In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983); Preston Ridge Fin. Servs. Corp. v. Tyler, 796 S.W.2d 772, 775 (Tex.App.Dallas 1990, writ denied). The intention of the parties is discovered primarily by reference to the words used in the contract. Tyler, 796 S.W.2d at 775. To determine the intentions of the parties, courts should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. Coker, 650 S.W.2d at 393; Tyler, 796 S.W.2d at 775. No single provision taken alone will be given controlling effect; rather, all of the provisions must be considered with reference to the entire contract. Id. In harmonizing contract provisions, terms stated earlier in an agreement must be favored over subsequent terms. Coker, 650 S.W.2d at 393; Tyler, 796 S.W.2d at 778.
Evidence of circumstances surrounding the execution of the contract may be considered in the construction of an unambiguous instrument, even though oral statements of the parties' intentions are inadmissible to vary or contradict the terms of the agreement. Medical Towers, Ltd. v. St. Luke's Episcopal Hosp., 750 S.W.2d 820, 822 (Tex.App.Houston [14th Dist.] 1988, writ denied) (citing Sun Oil Co. (Delaware) v. Madeley, 626 S.W.2d 726, 731 (Tex.1982)). The circumstances help to illuminate the contractual language chosen by the parties and *128 enable evaluation of "the objects and purposes intended to be accomplished by them in entering into the contract." St. Luke's, 750 S.W.2d at 823 (quoting Garcia v. King, 139 Tex. 578, 164 S.W.2d 509, 512 (1942)). A contract should be construed by determining how the "reasonable person" would have used and understood such language, considering the circumstances surrounding its negotiation and keeping in mind the purposes intended to be accomplished by the parties when entering into the contract. Manzo v. Ford, 731 S.W.2d 673, 676 (Tex.App.Houston [14th Dist.] 1987, no writ).
In addition to these basic contract construction rules, however, we must take into account the rules that specifically apply to releases. See Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex.1991). To effectively release a claim in Texas, the releasing instrument must "mention" the claim to be released. Brady, 811 S.W.2d at 938. "Any claims not clearly within the subject matter of the release are not discharged." Id. (emphasis added). General categorical releases are to be narrowly construed. Id. (citing Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 422 (Tex.1984)).
National and INA disagree with KMC over the proper interpretation of the release. Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was entered. Coker, 650 S.W.2d at 394 (citing R & P Enters. v. La Guarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex.1980)); St. Luke's, 750 S.W.2d at 822. A contract is ambiguous when it is subject to more than one reasonable meaning, unresolvable by rules of interpretation. St. Luke's, 750 S.W.2d at 822 (citing Skelly Oil v. Archer, 163 Tex. 336, 356 S.W.2d 774, 778 (1962)). Disagreement over the proper interpretation of a release does not automatically make it ambiguous. See St. Luke's, 750 S.W.2d at 822 (holding that disagreement over interpretation of an instrument does not automatically make it ambiguous). Likewise, uncertainty or lack of clarity in the language chosen by the parties is insufficient to render a contract ambiguous. Tyler, 796 S.W.2d at 777 (citing Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951)); St. Luke's, 750 S.W.2d at 822.
If the contract is worded so that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe the contract as a matter of law. Coker, 650 S.W.2d at 393 (citing R & P Enters., 596 S.W.2d at 519; Universal C.I.T., 243 S.W.2d at 157). A contract is ambiguous only when, after the application of the proper rules of construction to the face of the instrument, it remains reasonably susceptible to more than one meaning. Tyler, 796 S.W.2d at 776 (citing Universal C.I.T., 243 S.W.2d at 157); see also Skelly Oil, 356 S.W.2d at 778. With all of these general rules and principles in mind, we now examine the release at issue in this case.
We begin with the issue of ambiguity. We find that using the proper rules of construction, the language of the release is subject to only one reasonable interpretation. See St. Luke's, 750 S.W.2d at 822 (emphasis added). When the intention of the parties is expressed in language that is not susceptible of more than one meaning, the question is not one of interpretation; rather, the only issue to be resolved is the effect of the language. Id. Thus, while the parties disagree over the proper effect of the release, we hold that it is not ambiguous. An unambiguous contract must be interpreted by the court as a matter of law. Coker, 650 S.W.2d at 393; St. Luke's, 750 S.W.2d at 823.
Using the rules of contract construction and the rules applicable to releases, we now review the release to determine its effect. The first part of the release states that KMC has performed legal services for Granada and that Granada owes a "substantial sum" in outstanding fees for legal services rendered to Granada from June 1, 1988, to April 1, 1992. National and INA contend the next line of the release plainly establishes the parties' intent in entering into the release:
WHEREAS, KMC and Granada desire to resolve the issue of the Unpaid Fees to their mutual satisfaction[.]
*129 They argue this language, contained at the beginning of the release, clearly evidences the parties' purpose in entering into the release: to settle the unpaid fees owed by Granada to KMC for legal services rendered within a certain time frame. National and INA contend that based on the expressed intent in the release, the only claims from which KMC was released were those in which Granada had not paid its legal fees. KMC argues that the parties' intent is contained in paragraph two of the release in which Granada purports to release KMC from "any and all demands, claims or causes of action of any kind whatsoever, statutory, at common law or otherwise, now existing or that might arise hereafter."
In harmonizing the provisions of the release, terms stated earlier in the release must be favored over other subsequent terms. See Coker, 650 S.W.2d at 393; Tyler, 796 S.W.2d at 778. We hold that the intention of the parties in entering into this release was to resolve the issue of unpaid fees, not to release KMC from any and all legal malpractice claims. The language relied on by KMC is merely the part of the release where Granada agrees to release KMC from liability according to the terms stated earlier in the release; paragraph two does not control the proper construction of the release. Thus, construing the release in light of the parties' plainly stated intent to resolve Granada's failure to pay its legal fees, we find that Granada did not release KMC from legal malpractice claims arising out of the Wolf Point suit because the fees in that suit were paid.
Our interpretation is supported by the rules governing releases. The language relied on by KMC is paragraph two is notably broad, and therefore, must be narrowly construed. See Brady, 811 S.W.2d at 938. The release does not "mention" the Wolf Point lawsuit or any other suit in which legal fees were paid. The only claims specifically released in the document are those in which Granada had failed to pay its legal fees. Thus, the claims arising out of the Wolf Point suit were not effectively released because they are not clearly within the subject matter of the release. Id.
Finally, we agree with National and INA that the release could not have been intended to cover claims arising from the Wolf Point suit because the release does not cover acts of malpractice occurring after April 1, 1992. The trial in the Wolf Point suit did not even begin until the last week of April. The release states that Granada released KMC for legal malpractice claims in connection with KMC's rendition of legal services to Granada "between June 1, 1988 and April 1, 1992." KMC argues that release did discharge it from liability even for acts after April 1, 1992, as long as some conduct was committed before that date. KMC points to language in the release that states that KMC is released for claims "directly or indirectly attributable to the rendition or [sic] professional legal services ... between June 1, 1988 and April 1, 1992."
The summary judgment evidence, viewed in the light most favorable to National and INA, shows that certain acts of malpractice may have occurred after April 1, 1992.[5] KMC contends this is of no consequence because while the release referred to only past acts (before April 1, 1992), it released claims for acts regardless of whether they occurred before or after April 1, 1992. We disagree with KMC's interpretation. The "directly or indirectly attributable" language modifies the phrase "to the rendition of professional legal services by KMC;" it does not modify the dates. This interpretation is supported by the very next sentence, which does not contain the "directly or indirectly" language, and states that all claims in connection *130 with legal services between June 1, 1988 and April 1, 1992, are released. Thus, while claims directly or indirectly attributable to KMC's rendition of legal services may have been released, the acts giving rising to such claims must have occurred between June 1, 1988, and April 1, 1992 to be covered by the release.
Based on the parties' intent and the other language contained in the release, we hold that the release did not discharge KMC from claims arising from its representation of Granada in the Wolf Point suit. Therefore, National's and INA's claims are not barred on the basis of the release. We sustain National's first through fourth points of error, and INA's first through third points of error. Because we have sustained INA's first through third points, we need not address its points five and six.
We must now determine whether the trial court erred in ruling that National could not, as a matter of law, recover the portion of the settlement money attributable to Wolf Point's lost profits.
LOST PROFITS
In points of error one, four, and five, National argues the trial court erred in ruling that National could not recover any of the settlement money that was attributable to lost profits. In its motion for summary judgment, and now in its brief, KMC argues the summary judgment proof established as a matter of law that Wolf Point Shrimp Farm was a new or "start-up" business. KMC contends that at the time the Wolf Point suit was settled, "lost profits were not recoverable as damages under Texas law for new businesses." National responds that KMC presented no summary judgment proof to show that Wolf Point was a new business or that any of the settlement money was for lost profits. Further, National contends that even if KMC did prove Wolf Point Shrimp Farm was a new business, it still was not entitled to summary judgment because the absence of a history of profits does not, by itself, preclude damages for lost profits.
In support of its contention, KMC mistakenly relies on Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80 (Tex.1992). In that case, the plaintiffs had produced legally insufficient evidence of lost profits. Id. at 85-86. The court never discussed the issue of lost profits relative to new businesses. Some of the other cases relied on by KMC date do state that lost profits may not be recovered if the business is new or unestablished. See Anbeck Co. v. Zapata Corp., 641 S.W.2d 608, 616 (Tex.App.Houston [14th Dist.] 1982, writ ref'd n.r.e.); Bell Helicopter Co. v. Bradshaw, 594 S.W.2d 519, 535 (Tex.Civ.App. Corpus Christi 1979, writ ref'd n.r.e.); Ganda, Inc. v. All Plastics Molding, Inc., 521 S.W.2d 940, 943 (Tex.Civ.App.Waco 1975, writ ref'd n.r.e.). These cases, insofar as they state a rigid rule as to lost profits and new businesses, do not accurately reflect the supreme court's statement of the law as it now exists and as it existed at the time of the Wolf Point settlement.
The rule for recovery of lost profits was originally stated by the Texas Supreme Court in 1938:
The various legal encyclopaedias [sic] and textbooks lay down certain rules applicable to an action for damages for loss of profits. [T]he rule is stated in the following language: "The generally accepted rule is that, where it is shown that a loss of profits is the natural and probable consequences of the act or omission complained of, and their amount is shown with sufficient certainty, there may be a recovery therefor; but anticipated profits cannot be recovered where they are dependent upon uncertain and changing conditions, such as market fluctuations, or the chances of business, or where there is no evidence from which they may be intelligently estimated. So evidence to establish profits must not be uncertain or speculative. It is not necessary that profits should be susceptible of exact calculation, it is sufficient that there be data from which they may be ascertained with a reasonable degree of certainty and exactness."
The rule as announced by the decisions of the courts of this state is summarized ... as follows: "In order that a recovery may be had on account of loss of profits, the amount of the loss must be shown by competent evidence with reasonable certainty. *131 Where the business is shown to have been already established and making a profit at the time when the contract was breached or the tort committed, such preexisting profit, together with other facts and circumstances, may indicate with reasonable certainty the amount of profits lost. It is permissible to show the amount of business done by the plaintiff in a corresponding period of time not too remote, and the business during the time for which recovery is sought. Furthermore, in calculating the plaintiff's loss, it is proper to consider the normal increase in business which might have been expected in the light of past development and existing conditions."
In the early decisions a rigid rule affecting the right of recovery for lost profits was announced. Modern business methods have caused a relaxation of that hard rule. The rule denying recovery where the facts show that such profits claimed are too uncertain or speculative, or where the enterprise is new or unestablished, is still enforced, on the ground that the profits which might have been made from such businesses are not susceptible of being established by proof to that degree of certainty which the law demands.
Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1098-99 (1938) (citations omitted) (emphasis added).
Apparently, the courts in the cases cited by KMC latched onto the statement that "the rule denying recovery ... where the enterprise is new or unestablished, is still enforced...," and based on that statement, assumed that lost profits could never be recovered when a new business or enterprise is involved. See Anbeck, 641 S.W.2d at 616; Bell Helicopter, 594 S.W.2d at 535; Ganda, Inc., 521 S.W.2d at 943. This interpretation of Southwest Battery was, and is, incorrect. See Texas Instruments, Inc. v. Teletron Energy Management, Inc., 877 S.W.2d 276, 280 (Tex.1994). Interpreting the rule announced in Southwest Battery, the supreme court stated that the fact that a business is new is but one consideration in applying the "reasonable certainty test." Texas Instruments, 877 S.W.2d at 280. The court held that the rule from Southwest Battery denying recovery of lost profits "where the enterprise is new or unestablished" did not mean that recovery is denied simply because the business was new; rather, recovery is denied because the profits which might have been made from such businesses are not susceptible of being established by proof to the necessary degree of certainty. Id. The court recognized, however, that even with a new business, recovery for lost profits may be had "when there are firmer reasons to expect a business to yield a profit." Id. Thus, if a new business can provide sufficient evidence to show lost profits, it is not prohibited from recovering.
The interpretation stated by the supreme court in Texas Instruments was not new to this state. On the contrary, several cases had already recognized a new business could use other data besides past profit history to show anticipated profits to a reasonable certainty. See Pace Corp. v. Jackson, 155 Tex. 179, 284 S.W.2d 340, 348 (1955) (opinion of business owner based on prior similar business' profit history); Orchid Software, Inc. v. Prentice-Hall, Inc., 804 S.W.2d 208, 211-12 (Tex.App.Austin 1991, writ denied); First Title Co. of Waco v. Garrett, 802 S.W.2d 254, 260 (Tex.App.Waco 1990) (testimony of business owner based on prior similar business activity coupled with testimony by accountant using information provided by business owner), aff'd in part and rev'd in part on other grounds, 860 S.W.2d 74 (Tex.1993); Pena v. Ludwig, 766 S.W.2d 298, 301 (Tex. App.Waco 1989, no writ) (opinion of business owner based on prior similar business' profit history); Universal Commodities, Inc. v. Weed, 449 S.W.2d 106, 113 (Tex.Civ.App. Dallas 1969, writ ref'd n.r.e.).
The rule stated in these earlier cases, that the mere fact that a business is new does not automatically preclude recovery for lost profits, has continued support in the most recent case law. See Ishin Speed Sport, Inc. v. Rutherford, 933 S.W.2d 343, 351 (Tex.App. Fort Worth 1996, no writ) (holding that new business may recover lost profits; focus is on experience of persons involved in business, nature of the business activity, and the relevant market); Thedford v. Missouri Pacific *132 R.R. Co., 929 S.W.2d 39, 49 (Tex.App.Corpus Christi 1996, writ denied) (same); Regency Advantage Ltd. Partnership v. Bingo Idea-Watauga, Inc., 928 S.W.2d 56, 61-62 (Tex.App.Fort Worth 1995) (holding that testimony by corporate finance and financial planning expert that location could be used to determine lost profits, technique and calculations he used, and why his calculations were proper was sufficient to prove lost profits for new business), aff'd in part and rev'd in part on other grounds, 936 S.W.2d 275 (Tex.1996). Clearly, while lost profits of a new or unestablished business generally cannot be recovered because they cannot be proved to a "reasonable certainty," they may be recovered if factual data is available to furnish a sound basis for computing probable losses. This rule is intended to be flexible enough to accommodate the myriad circumstances in which claims for lost profits arise. Texas Instruments, 877 S.W.2d at 279. Current Texas case law is in line with the vast majority of jurisdictions that have rejected a "new business rule" as a per se rule of exclusion. See Annotation, Recovery of Anticipated Lost Profits of New Businesses: Post-1965 Cases, 55 A.L.R. 4th 507 (1987).
Whether lost profits are too speculative or remote to support recovery depends upon the facts and circumstances of the particular case. Texas Instruments, 877 S.W.2d at 279; Pena, 766 S.W.2d at 301. What constitutes "reasonably certain evidence" of lost profits is a "fact intensive" determination. Texas Instruments, 877 S.W.2d at 279 (quoting Whiteside v. Trentman, 141 Tex. 46, 170 S.W.2d 195, 197 (1943)).
KMC, as the summary judgment movant, had the burden of showing itself entitled to judgment as a matter of law. It attempted to do so by showing that Wolf Point Shrimp Farm was a new enterprise that was engaged in a business dependent on market fluctuations. Based on these facts, KMC argued it was entitled to judgment as a matter of law. We disagree.
KMC did not attempt to disprove the existence of other data from which lost profits could be proven to a reasonable certainty; nor did it establish whether National contends that such other data exists. See Orchid Software, 804 S.W.2d at 211. As the cases cited above show, lack of a past history of profits is not necessarily proof that future lost profits are too speculative to be recovered; lost profits may be proved by other evidence. By proving that Wolf Point Shrimp Farm was a new or "start-up" enterprise, KMC did not establish as a matter of law that lost profits could not be proven with reasonable certainty through other means. Therefore, the trial court erred in granting summary judgment in favor of KMC on this issue. We sustain points of error four and five.
We must now determine whether the trial court erred in ruling that National could not, as a matter of law, recover punitive damages against KMC.
PUNITIVE DAMAGES
In points of error one, six, and seven, National argues the trial court erred in granting summary judgment in favor of KMC on National's claims for punitive damages. National argues that because Granada, the client, would be entitled to recover punitive damages if it proved gross negligence, National has the same right as Granada's equitable subrogee. KMC disputes National's argument, relying on the concurring opinion in American Centennial.
In American Centennial, the supreme court held, for the first time, that an excess carrier was entitled to bring an equitable subrogation action against a primary carrier and defense counsel.[6] 843 S.W.2d at 483-84. In his concurrence, Justice Hecht agreed with the holding, and then discussed the types of claims, defenses, and damages available to an excess carrier bringing a suit *133 based on equitable subrogation. See id. at 485-86. We recognize that the discussion of these issues in the concurrence is merely dicta; however, we find it persuasive because a majority of the justices of the supreme court joined in the concurrence.[7]
On the issue of statutory or punitive damages and equitable subrogation, a majority of the justices agreed that as a general rule, subrogation gives indemnity and no more. American Centennial, 843 S.W.2d at 485 (citing Phipps v. Fuqua, 32 S.W.2d 660, 663 (Tex.Civ.App.Amarillo 1930, writ ref'd)). In other words, a party who successfully brings suit based on the doctrine of equitable subrogation can only recover the amount he was required to pay because of the actions of the defendant. This view of equitable subrogation was adopted by the Dallas Court of Appeals in Interfirst Bank Dallas v. United States Fidelity & Guar. Co., 774 S.W.2d 391, 399 (Tex.App.Dallas 1989, writ denied). In that case, the court held subrogation rights cover only the amount paid to discharge the obligation; it does not entitle the subrogee to cost or expenses. Id. Therefore, based on the general tenets of the doctrine of equitable subrogation, a majority of the supreme court agreed that an excess carrier is not entitled to recover damages to recover statutory or punitive damages. American Centennial, 843 S.W.2d at 485 (citations omitted). We will follow the view of the majority of the supreme court justices, and therefore hold that an excess carrier, who brings suit based on the doctrine of equitable subrogation, cannot recover statutory or punitive damages from the primary carrier or the insured's defense counsel. Therefore, National is not entitled to recover punitive damages from KMC.
National argues that the statements concerning statutory or punitive damages in the concurring opinion in American Centennial are limited to claims against the primary carrier, not defense counsel. While the statements are made in reference to claims against a primary carrier, we find this to be a distinction without a difference. Whether the defendant is the primary carrier or the insured's attorney, the excess carrier's cause of action exists only under the guise of equitable subrogation. If an excess carrier is denied punitive or statutory damages against the primary carrier because it is only entitled to be made whole, the same rule should logically apply to any suit brought against any other defendant under the doctrine of equitable subrogation. Therefore, we hold the trial court correctly granted summary judgment for KMC on the issue of punitive damages. We overrule National's points of error six and seven.
The next issue in this case is also resolved by American Centennial and concerns National's complaint that the trial court erred in granting summary judgment in favor of INA on all of National's claims except for negligence.
DTPA, INSURANCE CODE, AND GROSS NEGLIGENCE CLAIMS
In points of error eight through ten, National contends the trial court erred in granting INA's motion for partial summary judgment, thereby ruling that the only claim National could bring against INA was a negligence claim under Stowers. National argues it was not restricted to a negligence claim, and was entitled to brings claims for gross negligence and violations of the DTPA and Texas Insurance Code.
In American Centennial, the excess carriers asserted claims against the primary carrier based upon negligence, gross negligence, breach of a duty of good faith and fair dealing, and violations of the DTPA and the Texas Insurance Code. 843 S.W.2d at 481. In deciding that an excess carrier could sue a primary carrier under the doctrine of equitable subrogation, the main opinion, relying on Stowers and Ranger County Mut. Ins. Co. v. Guin, 723 S.W.2d 656 (Tex.1987), began its *134 analysis by noting that Texas law vests a clear right in the insured "to sue the primary carrier for a wrongful refusal to settle a claim within the limits of the policy." American Centennial, 843 S.W.2d at 482 (citing Stowers, 15 S.W.2d at 546-47). In Ranger County, the supreme court extended the Stowers duty to settle within policy limits to include duties of investigation, preparation for the defense of a lawsuit, trial of the case, and reasonable attempts to settle. See American Physicians Ins. Exchange v. Garcia, 876 S.W.2d 842, 849 (Tex.1994) (opinion on reh'g); American Centennial, 843 S.W.2d at 482 (citing Ranger County, 723 S.W.2d at 659). Thus, the insured is not limited to a claim for negligence based on the insurer's failure to settle within the limits of the policy; rather, the insurer's duty to the insured extends to the full range of the agency relationship. Ranger County, 723 S.W.2d at 659; Emscor Mfg., Inc. v. Alliance Ins. Group, 879 S.W.2d 894, 909 (Tex.App.Houston [14th Dist.] 1994, writ denied).
In American Centennial, the court noted that under a theory of equitable subrogation, an 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. The court accepted the right of an excess carrier to sue based upon the theory of equitable subrogation, but cautioned that the fact that an excess carrier could now bring an equitable subrogation action against a primary carrier did not impose new or additional burdens on the primary carrier apart from those established in Stowers and Ranger County. Id. at 483.
Though the main opinion declined to determine whether the doctrine of equitable subrogation would extend to permit claims for gross negligence and violations of the DTPA and Insurance Code,[8] the court's reliance on Stowers and Ranger County moved a majority of the justices to agree, in the concurring opinion, that the excess carriers only cause of actions is for negligence. American Centennial, 843 S.W.2d at 486. We agree with the position stated in the concurrence.
In the main opinion, the court specifically stated that under a theory of equitable subrogation, the excess carrier was equitable subrogated to any cause of action the insured may have against a third party responsible for the loss. The court relied on Stowers and Ranger County in setting out those duties of the primary carrier. The only claim given to an insured under Stowers and Ranger County is negligence. Moreover, the main opinion specifically found that allowing an excess carrier to bring suit based equitable subrogation did not impose new or additional burdens on the primary carrier because the decisions in Stowers and Ranger County "imposed clear duties on the primary carrier to protect the interest of the insured." American Centennial, 843 S.W.2d at 483. The analysis in the main opinion leads us to find, as did a majority of the justices in American Centennial, that the only claim available to an excess carrier, who is suing a primary carrier under the doctrine of equitable subrogation, is negligence. See American Centennial, 843 S.W.2d at 486.
Furthermore, limiting an excess carrier to a negligence claim is logical because of the nature of equitable subrogation. As we discussed in our review of points of error six and seven, equitable subrogation gives indemnity and no more. Id. Because we have held that an excess carrier cannot recover statutory or punitive damages, allowing it to bring claims for gross negligence or violations of the DTPA or Insurance Code would be pointless. We hold that an excess carrier cannot, as a matter of law, brings claims for gross negligence or violations of the DTPA and Insurance Code against a primary carrier in a suit based upon equitable subrogation; the primary carrier is limited to an action for negligence. Id. We overrule points of error eight through ten.
We now must review the common points of error raised by KMC and INA. They contend the trial court erred by striking the affirmative *135 defenses of contributory negligence and/or comparative responsibility.
KMC'S AND INA'S AFFIRMATIVE DEFENSES
In KMC's conditional cross-point and INA's seventh and eighth points of error, KMC and INA claim the trial court erred in granting National's motion for partial summary judgment, thereby striking the affirmative defenses of contributory negligence and/or comparative responsibility. National claims the trial court correctly granted its motion because KMC and INA are not entitled to assert contributory negligence and/or comparative responsibility against National. KMC and INA argue they are legally and equitably entitled to introduce National's misconduct to a jury upon trial of the case.
A majority of the justices briefly addressed this issue in the concurrence in American Centennial stating:
The primary carrier is entitled to assert any defense available against either the insured or the excess carrier.
* * *
Like the primary carrier, the attorney would have any defense available against either the insured or the excess carrier, including the excess carrier's unreasonable refusal to cooperate in the defense and settlement of the action.
American Centennial, 843 S.W.2d at 485-86.
These statements, conclusions as to the defenses available to primary carriers and defense attorneys in equitable subrogation suits brought by excess carriers, were made without the inclusion of analysis, reasoning, or citation to authority. The concurrence does not specify which defenses are "available" to an excess carrier in an equitable subrogation action other than the unreasonable refusal to cooperate in the defense and settlement of the action. See id. Moreover, the concurrence does not specify when the excess carrier's "cooperation" must occur to avoid the assertion of the defense: before the primary carrier tenders its primary limits, or after. While we agree that a primary carrier or an insured's defense attorney may assert "available" defenses against the primary carrier, we must determine what defenses are available and to what acts they are applicable.
The only Texas case to address directly a primary carrier's or defense attorney's right to assert affirmative defenses in an equitable subrogation suit is American Centennial, though in that case the statements made in the concurrence are dicta and somewhat conclusory. Other jurisdictions, however, have precisely analyzed the use of affirmative defenses by primary carriers and/or defense attorneys in the context of an equitable subrogation action. Moreover, some of these jurisdictions have specifically addressed the use of contributory negligence and/or comparative responsibility as an affirmative defense. We have reviewed many of those cases and find several instructive.
Under the traditional concept of equitable subrogation, the subrogee stands in the shoes of the subrogor, and the only defenses available to a defendant sued by the subrogee are those that could have been asserted against the subrogor. See Guillot v. Hix, 838 S.W.2d 230, 232 (Tex.1992); Platte v. Securities Inv. Co., 55 S.W.2d 551, 553 (Tex. Comm'n App.1932, judgm't adopted); Interstate Fire Ins. Co. v. First Tape, Inc., 817 S.W.2d 142, 145 (Tex.App. Houston [1st Dist.] 1991, writ denied); Sheppard v. State Farm Mut. Auto. Ins. Co., 496 S.W.2d 216, 218-19 (Tex.Civ.App.Houston [14th Dist.] 1973, no writ). See also 16 George J. Couch, Ronald A. Anderson & Mark S. Rhodes, Couch Cyclopedia Of Insurance Law 2d § 61:224 (rev.ed.1983); 3 Rowland H. Long, The Law Of Liability Insurance § 23.02[3][a] (1991). Some courts have applied this approach to excess carriers' subrogation actions and have limited the primary carriers' defenses to those which would have been available against the insured. See, e.g., Puritan Ins. Co. v. Canadian Universal Ins. Co., 775 F.2d 76, 80 (3d Cir.1985) (applying Pennsylvania law). Based on the language in the concurrence of American Centennial, a majority of the justices of the Texas Supreme Court do not believe this is the approach Texas should take. See American Centennial, 843 S.W.2d at 486 (stating primary carrier is entitled to assert any defense *136 available against either the insured or the excess carrier). This court likewise rejects the "traditional" approach because it does not take into account the special nature of an excess insurance policy or the excess carrier's relationship to the insured and the primary carrier. This approach would absolutely prohibit a primary carrier or a defense attorney from asserting the defense of contributory negligence based on actions of the excess carrier, thus leaving primary carriers and defense attorneys without recourse against an manipulative excess carrier. Based on the concurrence in American Centennial, we do not believe the majority of the supreme court intended such a result.
To avoid the potential inequity from the "traditional" approach, some courts have adopted the "triangular reciprocity" approach, which imposes a duty of reasonable care on each party, the insured, the primary carrier, and the excess carrier, vis-a-vis each other. Id. Under this approach, the parties would be allowed to bring direct actions against one another instead of relying on equitable subrogation. Id. Triangular reciprocity has not been widely accepted, and this court cannot find that Texas should follow such an unconventional rule because the supreme court has specifically declined to permit an excess carrier to bring a direct action against a primary carrier. American Centennial, 843 S.W.2d at 483.
Rather than follow either of these approaches, Texas should follow an intermediate approach. Under this approach, protection is afforded the primary carrier, yet the excess carrier is not forced to assume duties typically owed by the primary carrier. There are three tenets to this approach: (1) an excess carrier has no greater or lesser rights than those of the insured; (2) an insured's breach of the obligations owed to the primary carrier can defeat a subrogation claim brought by the excess carrier; and (3) active participation by the excess carrier in settlement negotiations may decrease or prevent the excess carrier's recovery. See Commercial Union Ins. Co. v. Medical Protective Co., 426 Mich. 109, 393 N.W.2d 479, 484-84, 486 (1986). A natural corollary to the first tenet is that the excess carrier owes no greater or lesser duty to the primary carrier than does the insured. Certain Underwriters of Lloyd's v. General Accident Ins. Co. of America, 699 F. Supp. 732, 739 (S.D.Ind.1988), aff'd, 909 F.2d 228 (7th Cir. 1990); see American Centennial, 843 S.W.2d at 486 (stating excess carrier's unreasonable refusal to cooperate may be asserted as a defense).
With these basic concepts in mind, we now must decide if, and as to what acts, the affirmative defenses of contributory negligence and/or comparative fault apply. Contributory negligence is the failure to use ordinary care to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances. Parker v. Highland Park, Inc., 565 S.W.2d 512, 520 (Tex.1978). National argues it is erroneous to apply the defense to an excess carrier because an excess carrier has no duty to the insured or the primary carrier until the primary limits have been exhausted. KMC and INA argue that they are not precluded from raising the affirmative defense of contributory negligence based on National's "no duty" argument because contributory negligence does involve the element of duty. We disagree with KMC and INA; Texas law holds that duty is an element of contributory negligence. See Lewis & Lambert Metal Contractors, Inc. v. Jackson, 914 S.W.2d 584, 590 (Tex.App. Dallas 1994), vacated pursuant to settlement, 938 S.W.2d 716 (Tex.1997); Hancock v. City of San Antonio, 800 S.W.2d 881 (Tex.App. San Antonio 1990, writ denied); Rash v. Whisennand, 453 S.W.2d 353, 358 (Tex.Civ. App.Houston [14th Dist.] 1970, writ ref'd n.r.e.); Kirby Lumber Corp. v. Murphy, 271 S.W.2d 672, 677 (Tex.Civ.App.Beaumont 1954, no writ); see also Certain Underwriters, 699 F.Supp. at 739.
In Hancock, the plaintiffs sued the owners of an apartment complex, the City of San Antonio, and others for the wrongful death of Ella Saenz, who died of injuries received in an explosion at an apartment complex. 800 S.W.2d at 883. The jury found Saenz's daughter contributorily negligent *137 and the plaintiffs appealed this finding. Id. The plaintiffs/appellants argued there was no duty on the part of the daughter of the deceased to protect against the danger of an explosion, and therefore, the jury's finding of contributory negligence was erroneous. Id. The defendant/appellees responded that whether the daughter owed a duty to the deceased was irrelevant to the issue of whether she was contributorily negligent. Id. at 884-85. The court disagreed stating that under Texas law, negligence is based on a violation of a duty. Id. We agree that duty is an element of contributory negligence. Thus, for the defense of contributory negligence to be "available" to a primary carrier or a defense attorney, the excess carrier must have had a duty to do the act that is asserted to have been negligently performed or omitted.
We then must determine what duties an excess carrier has, if any, and when they arise. In Emscor, Inc. v. Alliance Ins. Group, 804 S.W.2d 195, 196 (Tex.App. Houston [14th Dist.] 1991, no writ), an insured filed a declaratory judgment action to determine whether its excess carrier, Alliance, had a duty to defend the insured in a negligence suit. The insured claimed that when its primary carrier, Stone Mountain became insolvent, the terms of the policy required Alliance to provide a defense. Id. The trial court granted summary judgment in favor of Alliance. Id. On appeal, the court affirmed the summary judgment in favor of Alliance holding that under the terms of the standard excess insurance policy, Alliance, an excess carrier, had no duty to defend the insured because Alliance was providing liability coverage to the insured "in excess of the liability coverage provided by Stone Mountain," the primary carrier. Id. at 198. Unless and until the primary limits of $500,000 were exhausted, Alliance had no duty to defend the insured, even if the primary carrier was insolvent. Id. at 198-99.
In a second suit between the same parties, the insured sued Alliance alleging Alliance was liable for wrongfully refusing to settle the negligence suit filed against the insured. Emscor Mfg., 879 S.W.2d at 896. Alliance filed a motion for summary judgment contending that, although the insured had requested that Alliance tender the limits of its excess coverage, Alliance had no duty to tender its limits because the primary limits had not been tendered or otherwise exhausted. See id. at 901. The trial court granted summary judgment for Alliance, and the insured appealed to this court. Emscor, 879 S.W.2d at 901.
The issue on appeal was whether there was a tender or exhaustion of the primary limits under the terms of the excess policy. Id. at 902-03. The resolution of this issue determined whether Alliance, the excess carrier, had a duty to cooperate and settle the underlying suit. See id. After discussing the nature of primary versus excess insurance coverage, this court held that Alliance had no duty to investigate, negotiate, or defend the insured. Emscor, 879 S.W.2d at 909. We based our decision on Texas law that does not recognize a right by an insured to sue its excess carrier under Stowers and Ranger County. Under these two cases, it is the primary carrier who owes duties to the insured, not the excess carrier. Ranger County, 723 S.W.2d at 659; Stowers, 15 S.W.2d at 546-47. Thus, under this court's decision in Emscor, the duty of an excess carrier to cooperate in the defense and settlement of a suit against its insured does not arise unless and until the primary policy limits are exhausted or tendered. As the California court stated in Continental Cas. Co. v. Royal Ins. Co. of Am., 219 Cal. App. 3d 111, 268 Cal. Rptr. 193, 196 (1990), there is no authority that holds an excess carrier should be charged with making sure the primary carrier fulfills its good faith obligations to the insured. Thus, evidence of an excess carrier's conduct prior to the time any duties arise is irrelevant. See id. This rule is followed by most jurisdictions that have considered the question. Texas Employers Ins. Ass'n v. Underwriting Members of Lloyds, 836 F. Supp. 398, 404 (S.D.Tex.1993) (citing Signal Cos. v. Harbor Ins. Co., 27 Cal. 3d 359, 165 Cal. Rptr. 799, 804, 612 P.2d 889, 894 (1980) (en banc); Colorado Farm Bureau Mut. Ins. Co. v. North Am. Reinsurance Corp., 802 P.2d 1196, 1198 (Colo.Ct.App. 1990); Occidental Fire & Cas. Co. of North Carolina v. Underwriters at Lloyd's, London, *138 19 Ill.App.3d 265, 311 N.E.2d 330, 334 (1974); Fireman's Fund Ins. Co. v. Rairigh, 59 Md.App. 305, 475 A.2d 509, 517 (1984); United States Fire Ins. Co. v. Roberts and Schaefer Co., 37 Wash.App. 683, 683 P.2d 600, 603 (1984)). A minority, however, hold that excess carriers must participate in the defense when it is clear that the potential judgment against the insured may be substantially greater than the amount of the insured's primary limits. Texas Employers, 836 F.Supp. at 405 (citing Celina Mut. Ins. Co. v. Citizens Ins. Co., 133 Mich.App. 655, 349 N.W.2d 547, 550 (1984); American Excess Ins. Co. v. MGM Grand Hotels, Inc., 102 Nev. 601, 729 P.2d 1352, 1354 (1986)).
While we find that an excess carrier has a duty not to refuse unreasonably to cooperate once it is required to, i.e., once the primary limits are exhausted, and is not entitled to not actively disrupt the defense or settlement of the underlying suit, we refuse to find it has to undertake any duties until the primary limits are exhausted. See Emscor, 879 S.W.2d at 909. Because duty is an element of contributory negligence, and an excess carrier has no duty until the primary limits are exhausted, its acts before that time cannot form the basis for the affirmative defense of contributory negligence or comparative fault. Therefore, we hold that under Texas law, contributory negligence and/or comparative fault are "available" as defenses against the excess carrier only for acts the carrier negligently undertakes or refuses to undertake after the exhaustion, by tender or pay out, of the primary policy limits.
This holding is logical based on the divergent nature of primary and excess insurance coverage. There is no dispute in this case that the policy issued by National to Granada was a typical excess insurance policy. A review of the policy shows that it covered only those losses which exceeded Granada's primary insurance policy limits. Primary insurance coverage is insurance coverage whereby, under the terms of the policy, duties arise immediately upon the happening of the occurrence that gives rise to liability. Emscor, 879 S.W.2d at 903 (quoting Union Indem. Ins. Co. of New York v. Certain Underwriters at Lloyd's, 614 F. Supp. 1015, 1017 (S.D.Tex.1985)). A primary carrier typically has more rights and obligations than an excess carrier. For example, primary carriers generally have a duty to defend the insured, but typically have the right to decide when a claim should be settled or whether it should be tried. Certain Underwriters, 699 F.Supp. at 738 (citing Puritan Ins. Co. v. Canadian Universal Ins. Co., 775 F.2d 76, 79 (3d Cir.1985)). On average, most claims are within primary limits, creating greater chance of exposure to the primary carrier. Id. Because of its frequent exposure and duty to defend, primary carriers charge larger premium for coverage than do excess carriers. Id.
An excess policy, on the other hand, is one that provides that the excess carrier is liable for the excess above and beyond that which may be collected on primary insurance. Emscor, 879 S.W.2d at 903 (quoting Certain Underwriters, 614 F.Supp. at 1017). Because of the nature of the standard excess policy, an excess carrier's obligations do not generally arise until the primary limits are exhausted. Certain Underwriters, 699 F.Supp. at 738 (citing Puritan, 775 F.2d at 79). The remote position of the excess carrier greatly reduces its chance of exposure to a loss, and therefore, an excess carrier charges lower insurance premiums. Id.; Emscor, 879 S.W.2d at 903 (quoting Certain Underwriters, 614 F.Supp. at 1017). Clearly, when there are primary and excess insurance coverages, the various insurance companies are not covering the same risk; rather, they are covering separate and clearly defined layers of risk. Emscor, 879 S.W.2d at 903 (quoting Certain Underwriters, 614 F.Supp. at 1017). If we were to increase the duties owed by the excess carrier to the insured, or create duties toward the primary carrier, the insured's excess premiums would correspondingly increase. In other words, rather than excess coverage, the insured would essentially have two primary carriers, thereby destroying excess coverage.
We find that the approach taken by this court protects the primary carrier, the excess carrier, and comports with the basic *139 conclusions of the majority of the supreme court justices. Moreover, it comports with Texas law concerning the duties of excess carriers and the nature of excess insurance. Furthermore, it does not violate chapter 33 of the Texas Civil Practice and Remedies Code because it does allow the primary carrier and the defense attorney to assert contributory negligence; it merely limits the defense to the time when a duty actually arises. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 33.001-33.011 (Vernon 1997).[9] Therefore, we hold that neither KMC nor INA may allege as contributory negligence any acts or omissions by National before INA tendered its primary limits. As to time period after the tender, both KMC and INA are free to assert that those acts or omissions by National were negligent. Because the record shows that some of the allegations made by KMC and INA of National's alleged contributory negligence might have occurred posttender, we must reverse the partial summary judgment granted in favor of National.[10] National failed to negate all of the acts subject to allegations of contributory negligence and/or comparative responsibility, and therefore, the trial court erred in striking these affirmative defenses. We sustain KMC's conditional cross-point and INA's seventh and eighth points of error.
CONCLUSION
We hold the trial court erred in finding the release barred National's and INA's claims against KMC, and therefore, we sustain points of error two and three raised by National and points of error one through four raised by INA. We further hold the trial court erred in granting summary judgment in favor of KMC on the issue of lost profits, and sustain National's fourth and fifth points of error. We find the trial court correctly granted summary judgment in favor KMC on the issue of punitive damages, and thereby overrule National's sixth and seventh points of error. Likewise, we find the trial court correctly ruled that an excess carrier cannot bring claims for gross negligence or violation of the DTPA or Insurance Code against a primary carrier, and thus, we overrule National's points of error eight through ten. Finally, we sustain KMC's conditional crosspoint and INA's seventh and eight points of error on the issue of the affirmative defenses. The trial court erred in granting summary judgment in favor of National on the affirmative defenses raised by KMC and INA. Based on our rulings, we affirm the trial court's summary judgment in favor of KMC on the issue of punitive damages; however, we reverse and remand the case on the remaining issues for further action consistent with this court's opinion.
EDELMAN, J., concurring in result only.
NOTES
[1] National originally filed suit against KMC in federal court. The federal suit was dismissed in April of 1995. After the dismissal, National added KMC to the suit it had previously filed in state court against INA.
[2] INA provides no authority or argument within their point of error as to the basis upon which this court can review the denial of INA's motion for summary judgment on the negligence claim. In response to questions during oral argument, counsel for INA told the court that all of the necessary evidence was before the court and that the issue should be addressed as a matter of judicial economy. Counsel, however, did not cite the court to any authority supporting this argument.
[3] Point of error one is a general point that states "The trial court erred by granting summary judgment in favor of the Keck Appellees." Points of error two through seven are specific contentions subsumed under this general contention. In our opinion we will refer to a specific argument by the point of error to which it specifically relates. We will rule on point of error one by ruling on the points containing a specific contention.
[4] We note that KMC also moved for summary judgment against INA asserting that INA lacked standing to contest the scope or validity of the release. KMC makes that same argument in its brief in response to INA's brief. In its order, the trial court specifically granted summary judgment for KMC based upon the affirmative defense of release; it did not grant summary judgment to KMC, as to INA, based upon a lack of standing. In the interest of judicial economy, an appellate court may consider summary judgment grounds the movant preserved for review and the trial court did not rule on. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 627 (Tex.1996). A movant preserves such grounds for review by raising them in cross-points. See id. at 626. KMC did not raise a cross-point contending the trial court erred in denying it motion for summary judgment as to INA on the ground that INA lacked standing to challenge the release. Moreover, the supreme court has given appellate court discretion in addressing such grounds, and we decline to do so in this case. Id. at 627. Therefore, we will not address KMC's contention that, as a matter of law, INA lacked standing to contest the validity and scope of the release.
In its brief, KMC makes two other arguments that are separate from its defense of release. KMC argues the trial court correctly granted summary judgment in its favor because: (1) third party non-clients cannot maintain claims against attorneys; and (2) common law indemnity has been abolished. These grounds are not contained in KMC's motion for summary judgment. Summary judgment cannot be affirmed on appeal on grounds not presented to the trial court in the summary judgment motion. Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993); Kaye v. Harris County Mun. Util. Dist. No. 9, 866 S.W.2d 791, 793 (Tex.App.Houston [14th Dist.] 1993, no writ). Therefore, we will review the summary judgment granted in favor of KMC only on the ground of release.
[5] KMC argues that National's pleadings allege only post-April 1, 1992 acts, and therefore, the release barred its claims. We disagree. The proper legal construction of the lease is not dependent upon National's pleadings. Furthermore, the summary judgment evidence submitted by National shows that its expert testified that KMC should have taken certain action well before trial, or, at the very least KMC should have taken certain actions before the trial began in late April. The trial in the Wolf Point suit did not begin until the last week of April, and thus, there was three-week window of opportunity in which KMC may have committed acts of malpractice. As to INA's allegations, they were broad and sufficient to include acts of malpractice before and after April 1, 1992.
[6] In holding that an excess carrier may bring an equitable subrogation action against a primary carrier, the Texas Supreme Court cited similar holdings by numerous other states' courts. See American Centennial Ins. Co. v. Canal Ins. Co., 843 S.W.2d 480, 482-83 (Tex.1992). The common policy justifications underlying all of the courts' holdings were to: (1) encourage fair and reasonable settlement of lawsuits; (2) prevent an unfair distribution of losses among primary and excess insurers; (3) protection from increased premiums by excess carriers. Id.
[7] Chief Justice Phillips and Justices Gonzalez, Cook, and Cornyn joined in Justice Hecht's concurring opinion. American Centennial, 843 S.W.2d at 486. Though a majority of the justices joined the concurrence, the opinion still refers to it as a concurrence rather than the majority opinion. See id. On this basis, we shall refer to the concurrence as such, and refer to the first part of the opinion, written by Justice Doggett, as the main or majority.
[8] The court, in its main opinion, declined to address this issue because any claims against the primary carrier for gross negligence, and violations of the DTPA and Insurance Code were barred by the statute of limitations. American Centennial, 843 S.W.2d at 483.
[9] Chapter 33 of the Texas Civil Practice and Remedies Codes addresses comparative responsibility between parties in negligence actions. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 33.001-33.017 (Vernon 1997).
[10] In its brief, KMC alleges the following acts of negligence by National: (1) failure to investigate coverage, liability, and damages in the underlying suit; (2) failure to issue a reservation of rights and preserve coverage questions against Granada; (3) failure to maintain and establish a diary system for active claim files; (4) failure to timely establish a claims file for Granada; (4) misplacing Granada's claim file; (5) failure to demand that the underlying claim be settled within the primary limits; (6) failure to hire a coverage attorney to review the coverage questions; (7) failure to appear for a deposition in the underlying suit; (8) failure to cooperate in the defense and initial settlement negotiations; (9) failure to respond to two settlement brochures containing demands in excess of $3 million; (10) voluntarily paying $6 million to the Wolf Point plaintiffs in the absence of coverage; (11) failure to exercise proper personnel management at the time of the underlying suit; and (12) failure to have a representative present at the trial when all demands exceeded the primary limits. With the possible exception of (10) through (12), we note that the allegations involve actions or omissions by National that occurred "pre-tender." We reiterate that only those acts or omissions that occur after the exhaustion of the primary insurance limits are "available" as allegations for the affirmative defense of contributory negligence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627294/ | JAMES L. O'CONNOR, Plaintiff-Appellant,
v.
HARTFORD UNDERWRITERS INSURANCE COMPANY/PACIFIC INSURANCE COMPANY, LTD., Defendant-Appellee.
No. 28069
Intermediate Court of Appeals of Hawaii.
December 31, 2008.
On the briefs:
James L. O'Connor, Pro Se Plaintiff-Appellant.
Gary W.K. Au Young, Lor Defendant-Appellee.
SUMMARY DISPOSITION ORDER
RECKTENWALD, C.J., WATANABE and FUJISE, JJ.
Plaintiff-Appellant James L. O'Connor appeals from the Order Appointing Brenda Hoernig, Esq. as the Arbitrator (Order Appointing Arbitrator) filed on September 1, 2006 in the Circuit Court of the First Circuit (circuit court).[1]
The circuit court entered a judgment in this case on May 12, 1995. O'Connor appealed from the judgment in appeal no. 19092. On May 19, 1997, this court filed an amended summary disposition order (Amended SDO). The Amended SDO noted that O'Connor had moved for an order requiring arbitration, and concluded that "the court should have stayed the action brought by [O'Connor] at that point . . . [and w]hen [O'Connor] failed to name an appropriate arbitrator, the court should have appointed one." The Amended SDO vacated the judgment and instructed the circuit court "to enter an order staying [O'Connor]'s action and to appoint an arbitrator on [O'Connor]'s `behalf' to a threemember arbitration panel, or to appoint a single arbitrator in place of a three-member panel, if agreed to by the parties."
On September 24, 2002, O'Connor filed a Motion for "CAAP" Arbitration, contending that the April 2, 2002 Order of Case Assignment entered by the circuit court put this case into the Court-Annexed Arbitration Program (CAAP). The motion was denied and O'Connor appealed in appeal no. 25595. By Order Dismissing Appeal filed on June 9, 2003, the Hawai'i Supreme Court held that an order denying CAAP arbitration was not an appealable collateral order and therefore O'Connor's appeal was premature.
On August 1, 2005, O'Connor filed a motion for partial summary judgment seeking to stay court proceedings and to put the case into the CAAP. The motion was heard by the circuit court on October 31, 2005, but the transcript from this hearing is not part of the record on appeal. The Order Granting in Part Plaintiff's Motion for Partial Summary Judgment Filed on August 1, 2005 (Summary Judgment Order) was filed on November 15, 2005.[2] The Summary Judgment Order granted O'Connor's request for a stay "pending binding private arbitration (not CAAP arbitration) with a single arbitrator." The order directed O'Connor to provide Defendant-Appellee Hartford Underwriters Insurance Company/Pacific Insurance Company, Ltd.'s (Defendant) counsel with a list of three arbitrators, and for Defendant to celect one of the three as the arbitrator. It also stated that "[b]oth [O'Connor] and Defendant agree to equally pay for the Lees and costs of the single arbitrator." O'Connor filed a notice of appeal on November 23, 2005. The appeal was dismissed tor failure to pay the filing fee on March 22, 2006.
On May 31, 2006, the circuit court entered an Order Re: Arbitration.[3] The Order Re: Arbitration required each of the parties to file a list of no more than three proposed arbitrators by July 15, 2006; the circuit court would select one arbitrator; and each party would be responsible for half of the arbitrator's costs and fees. The circuit court further ordered the proceedings stayed pending the outcome of the private arbitration and that the parties would appear for a status conference on February 12, 2007.
On September 1, 2006, the circuit court entered the Order Appointing Arbitrator which noted that O'Connor had not submitted a list of proposed arbitrators by the July 15, 2006 deadline, although defense counsel had timely submitted a list. The Order Appointing Arbitrator appointed Brenda Hoernig, Esq. as the arbitrator, ordered that the parties each pay 50% of the arbitrator's fees and costs, and stayed the case pending the outcome of the arbitration.
On appeal, O'Connor appears to make the following claims:[4]
1. The American Association of Retired Persons (AARP) should be made a defendant.
2. This case should be in the CAAP.
3. The subject insurance policy is invalid, except for the Declaration, and thus any provisions in the policy regarding arbitration are invalid.
4. The circuit court erred in appointing Hoernig because O'Connor had never agreed to the appointment.
5. The circuit court erred in ordering the parties to share the costs and fees of the arbitrator.
After a careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the relevant law, we resolve O'Connor's points of error as follows:
1. The issue of whether AARP should be made a defendant is not properly before this court at this time. As an order granting a stay of proceedings pending arbitration, the Order Appointing Arbitrator is an appealable collateral order. Ass'n of Owners of Kukui Plaza v. Swinerton & Walberg Co., 6 8 Haw. 98, 107, 705 P.2d 28, 35 (1985). The scope of review in an appeal from a collateral order is limited to "other orders which were preliminary rulings upon which the subject Order was predicated or were part of the series of orders which collectively led to that Order." Cook v. Surety Life Ins., Co., 79 Hawai'i 403, 409, 903 P.2d 708, 714 (App. 1995); see also Security Pac. Mortgage Corp. v. Miller, 71 Haw. 65, 71, 783 P.2d 855, 858 (1989). The issue of whether or not AARP should be a defendant in this case is unrelated to the matters covered by the Order Appointing Arbitrator and therefore is not presently reviewable.
2. The fact that the present appeal is not from a final judgment also prevents a review of the orders denying inclusion of this case into the CAAP. The doctrine of the law of the case prohibits the re-opening of an issue that has already been decided in a prior appeal in the same case. See Weinberg v. Mauch, 78 Hawai'i 40, 47, 890 P.2d 277, 284 (1995); see also Ditto v. McCurdy, 98 Hawai'i 123, 44 P.3d 274 (2002); Cain v. Cain, 59 Haw. 32, 36, 575 P.2d 468, 472-473 (1978).
The Hawai'i Supreme Court previously ruled, in appeal no. 25595, that review of the order denying the motion for the case to be admitted into the CAAP must wait for an appeal from a final judgment, and we are bound by the ruling.
3. O'Connor's argument that the provisions of the insurance policy, including those regarding arbitration, are "invalid" has been waived, since O'Connor fails to state where in the record the alleged error occurred or how it was brought to the attention of the circuit court. See Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b)(4). "Commensurate with the duty to object is the duty to identify where in the record that objection occurred." Onaka v. Onaka, 112 Hawai'i 374, 387, 146 D.3d 89, 102 (2006). In Onaka, the Supreme Court of Hawai'i declined to "canvas the record" to verify whether the appellant "appropriately preserved her points of error on appeal by making a timely objection to the challenged actions," and considered her appellate arguments waived. Id. While this court may notice plain error, HRAP Rule 28(b)(4), we see none here since there is an authenticated copy of the policy in the record.
4. Based on the record before us, the circuit court erred in appointing a single arbitrator. The Amended SDO instructed the circuit court to "enter an order staying Plaintiff's action and to appoint an arbitrator on Plaintiff's 'behalf' to a three-member arbitration panel, or to appoint a single arbitrator in place of a three-member panel, if agreed to by the parties." O'Connor asserts that he never agreed to a single arbitrator. Defendant does not dispute that assertion or cite where in the record O'Connor's agreement is set forth. While the Summary Judgment Order states that the parties "agree" to split the cost of a single arbitrator, it is unclear from the order whether O'Connor agreed in the first instance to have the matter considered by a single arbitrator as opposed to a panel of arbitrators. Moreover, as we noted above, the transcript of the hearing that led to the issuance of the Summary Judgment Order is not in the record, so we are unable to refer to the transcript to confirm the scope of any agreement that may have been reached at the hearing.
Accordingly, because the record does not establish O'Connor's agreement to proceed with one arbitrator, the circuit court's Order Appointing Arbitrator (and the Summary Judgment Order and Order re: Arbitration that preceded it) is not consistent with this court's mandate on remand and must be vacated. State v. Lincoln, 72 Haw. 480, 485, 825 P.2d 64, 68 (1992), cert, denied, 506 U.S. 846, 113 S. Ct. 137, 121 L. Ed. 2d 90 (1992) ("It is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court.") (citation omitted). While a circuit court may be able to deviate from the mandate if there are changed circumstances, id. at 485, 825 P.2d at 68, the circuit court here aid not find that there has been a change in circumstances.
5. In view of our holding in section 4 above, the question of whether the circuit court correctly split the cost of a single arbitrator between the two parties is moot at this time. Nevertheless, because the issue may come up again on remand, we note that our ruling should not be construed as limiting the circuit court's ability to direct that the cost of a single arbitrator be split on remand, if the parties agree to arbitration before a single arbitrator. The arbitration provisions in the insurance policy provide for the parties to share the cost of arbitration by a three-arbitrator panel, and O'Connor should not be allowed to shift the cost of arbitration completely to Defendant by electing arbitration by a single arbitrator.
Therefore,
IT IS HEREBY ORDERED as follows:
(1) O'Connor's claims on appeal regarding the addition of AARP as a defendant and the inclusion of this case in the CAAP are dismissed without prejudice to the claims being raised on an appeal from a final judgment.
(2) The November 15, 2005 Order Granting in Part Plaintiff's Motion for Partial Summary Judgment Filed on August 1, 2005, the May 31, 2006 Order re: Arbitration, and the September 1, 2006 Order Appointing Brenda Hoernig, Esq. as the Arbitrator are vacated. The circuit court shall enter an order staying O'Connor's action and appointing an arbitrator on O'Connor's behalf to a three-member arbitration panel, or, if the parties agree to arbitration before a single arbitrator, appointing a single arbitrator in place of a three-member panel.
NOTES
[1] The Order Appointing Arbitrator was entered by the Honorable Victoria S. Marks.
[2] The Summary Judgment Order was entered by the Honorable Karen S.S. Ahn.
[3] Judge Marks entered the Order Re: Arbitration. The case had been assigned from Judge Ann to Judge Marks on May 25, 2006.
[4] As pointed out by Defendant in the answering brief, O'Connor's opening brief does not comply with Hawai'i Rules of Appellate Procedure Rule 28 (b) and it is difficult to discern O'Connor's precise issues and arguments. Nevertheless, we adhere to the policy of hearing a case on its merits when possible. Hous. Fin, and Dev. Corp. v. Ferguson, 91 Hawai'i 81, 85-86, 979 P.2d 1107, 1111-1112 (1999) | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3955719/ | Appellant was convicted in the District Court of Liberty County of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.
The record contains two bills of exception. The first bill complains of the introduction in evidence of a statement made by appellant to the sheriff of the county to the effect that he had whisky for his own use. The ground of the objection is that appellant was under duress. From the bill of exceptions we learn that the sheriff had informed appellant that he was there to search his premises for whisky and a still and that he had a search warrant. It was in response to this statement by the officer that appellant made the answer here claimed to be objectionable. We are unable to agree with the contention. The fact that the officer had a search warrant directing him to search the premises would not be tantamount to a warrant, and, unless the testimony supporting the objection went further, we could not hold the owner of the premises sought to be searched, under arrest by a mere statement to him by the officer of the fact of his possession of such search warrant and his intention to execute same by searching the premises. It further appears in this record that after the premises were searched the officer did not then arrest appellant but went away and left him.
The only other bill of exceptions complains of the testimony of the sheriff in detailing the conversation had by him with the appellant when he went down to where appellant was and told him that he had a search warrant. The officer testified that appellant then told him that he had some whisky for his own use. The officer further testified that he had made no search at that time and had found nothing, and had not asked appellant what he had done, and that appellant volunteered the statement that he had some whisky for his own use. We do not think this to evidence a statement made under duress as has just been stated by us above. From the State's testimony we learn that in appellant's smoke-house was found a barrel of mash and behind the smoke-house was a five gallon oil can having dough around the spout and the can was smutty and smelled like whisky. Fruit jars and bottles in the smoke-house also had the scent of whisky in them. It is made to appear without objection that *Page 186
appellant told a State witness that the apparatus described was what he had cooked his mash in. State witness Wheat testified that appellant told him that he had made whisky for his own use and that he had given some drinks to some of his good friends. The officer found a pint of whisky in the house of appellant. The State introduced a Mr. Smith who testified to a conversation with appellant, evidently after his arrest on this charge. Detailing the conversation had, this witness said that appellant made the following statement to him: "I didn't think it was a violation of the law to make it for your own use. I have got some for my own use and don't deny it, and drink it and gave some of my friends some of it and I guess some of my good friends must have give Mr. Wheat a tip to turn me in."
The evidence seems to support the conviction, and finding no error in the record an affirmance must be ordered.
Affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2984844/ | February 4, 2014
JUDGMENT
The Fourteenth Court of Appeals
MICHAEL ANGEL RAMIREZ, Appellant
NO. 14-12-01130-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.
We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/330731/ | 524 F.2d 811
Fed. Sec. L. Rep. P 95,310BROWNING DEBENTURE HOLDERS' COMMITTEE et al., Appellants,v.DASA CORPORATION and Arthur Andersen & Co., Appellees.
No. 40, Docket 74-2550.
United States Court of Appeals,Second Circuit.
Argued Sept. 3, 1975.Decided Oct. 3, 1975.
Bradley R. Brewer, Brewer & Soeiro, New York City, for appellants.
I. Michael Bayda, New York City (Jacobs, Persinger & Parker, George D. Kappus, New York City, of counsel), for appellee DASA Corp.
Richard W. Lyon, New York City (Breed, Abbott & Morgan, New York City, James D. Zirin, New York City, of counsel), for appellee Arthur Andersen & Co.
Before SMITH, MANSFIELD and OAKES, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
1
The instant appeal involves the scope and substance of § 14(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78n(a) (hereinafter § 14(a)),1 and the Securities and Exchange Commission regulations promulgated pursuant to § 14(a), 17 C.F.R. § 240.14a-1 et seq. In addition, we are asked to review the denial by the United States District Court for the Southern District of New York, Thomas P. Griesa, judge, of plaintiffs' request for certain pretrial orders pursuant to Rules 162 and 56(d) of the Federal Rules of Civil Procedure.
2
For the reasons stated below, we affirm the decision of the district court both to dismiss plaintiffs' claims under § 14(a) and to deny the requested pretrial orders.
I. The Facts
3
In 1972, defendant DASA Corporation was confronted with an immediate shortage of working capital. In response to this problem, DASA decided to secure additional working capital by selling its computer equipment for cash. Under the terms of the DASA bondholders' trust indenture, the sale of the computer equipment required approval by the class of bondholders. Since the bonds outstanding were convertible to DASA stock, DASA induced the bondholders to consent to the sale by offering, in return, to reduce the conversion price of their convertible bonds, thereby increasing the value of the bondholders' rights.
4
Bondholder approval of the sale was thus secured over the objections of a small group of bondholders who felt that the new conversion price offered by DASA was insufficiently favorable to bondholder interests. These dissident bondholders sought a new conversion price even lower than that offered by DASA.
5
The dissident bondholders organized themselves into the Browning Debenture Holders' Committee (hereinafter Browning). When the Browning bondholders could not secure a conversion price lower than that offered by DASA, they instituted suit against DASA claiming five violations of federal securities law. Three of the claims, which are not relevant to this appeal, assert violations of bondholder rights. Two of the Browning claims (hereinafter claims one and two) assert violations from the perspective of the DASA stockholders. In particular, the Browning bondholders argue that the proxies for the 1972 DASA annual meeting were solicited fraudulently in violation of § 14(a) of the Securities Exchange Act of 1934 and two SEC regulations promulgated thereunder, SEC Rule 14a-9, 17 C.F.R. § 240.14a-9 and Rule 14a-3(b)(2), 17 C.F.R. § 240.14a-3(b)(2).3
6
The Browning group did not assert claims for monetary damages from the conduct of the 1972 DASA shareholders' meeting. The Browning Committee merely sought, in claims one and two, a declaration from the district court that the 1972 meeting had been conducted illegally as a result of the allegedly fraudulent proxy solicitation. District Judge Griesa, at defendant's urging, ruled that claims one and two were mooted by the subsequent shareholder meeting in 1973. The judge therefore dismissed the § 14(a) claims on the ground that, absent a request for monetary damages or injunctive relief, the claims did not pose a justiciable controversy. The plaintiffs, on their own behalf and on behalf of the Browning Committee, appeal to this court.
II. The § 14(a) Claims4
7
Plaintiffs' claim one asserts that various proxy materials and shareholder reports mailed by DASA in 1972 to its stockholders in connection with its annual meeting were materially false and therefore violative of § 14(a) and the SEC Rule 14a-9 prohibition against misleading proxy solicitations. Claim two asserts with somewhat greater specificity that the DASA annual report discussing 1971 as well as the DASA financial statements covering 1971 were also materially misleading and therefore violative of § 14(a) and SEC Rule 14a-3(b)(2). The implication of these first two assertions is that the 1972 DASA stockholder meeting was illegal since the proxies used therein were fraudulently solicited in a manner contrary to federal law.
8
Judge Griesa dismissed these two claims on the ground that the subsequent DASA stockholder meetings in 1973 (and, by implication, 1974) rendered the issue of the 1972 meeting moot. Whatever violations may have occurred in the solicitation of proxies for the 1972 meeting, Judge Griesa held, the officers elected then have fulfilled their terms in office (and subsequently been re-elected in 1973 and 1974). The year 1972, everyone would agree, is over, and it is therefore impossible to enjoin the meeting already held.
9
Both sides apparently acknowledge that the issue of the 1972 meeting and proxy solicitation materials would not be moot if plaintiffs asserted a claim for monetary damages stemming from the conduct and preparation of the 1972 meeting. Since, however, we cannot enjoin a meeting already held, the Browning group in effect merely seeks declaratory relief (i. e., a declaration that the 1972 meeting was conducted illegally). Judge Griesa therefore held that continuing with the lawsuit (as it pertains to claims one and two) would be an empty exercise resulting, at most, in a judicial declaration of no practical import.
10
Appellants contend that claims one and two should be reinstated because of the broad, prophylactic purposes underlying private enforcement of the federal proxy solicitation statutes. In support of its position, the Browning Committee cites the first Supreme Court decision to recognize a private cause of action for damages sustained from a violation of § 14(a), J. I. Case Co. v. Borak, 377 U.S. 426, 84 S. Ct. 1555, 12 L. Ed. 2d 423 (1964). The Borak Court expressly predicated its holding upon the "broad remedial purposes" of the federal proxy solicitation statute. Borak, supra at 431, 84 S. Ct. 1555.
11
In Borak, dissident minority stockholders claimed damages from a merger to which they objected. Since the proxies used to complete the merger were solicited fraudulently, the plaintiffs sued for damages under § 14(a). The Court decided that, by implication, § 14(a) established a private action for damages arising from fraudulent proxy solicitation. Such private enforcement was held necessary to augment enforcement of § 14(a) by the government. Speaking for the Court in Borak, Mr. Justice Clark declared: "(I)t is the duty of the courts to be alert to provide such (private) remedies as are necessary to make effective the congressional purpose" of the securities laws. Borak, supra at 433, 84 S. Ct. at 1560.
12
Five years later, in Mills v. Electric Auto-Lite, 396 U.S. 375, 90 S. Ct. 616, 24 L. Ed. 2d 593 (1970), the Supreme Court reiterated its expansive interpretation of the purposes underlying § 14(a) and the scope of private § 14(a) actions. The factual context of Mills was essentially the same as Borak: dissident shareholders sought monetary damages for a merger consummated with proxies allegedly solicited in a false and fraudulent manner. Both the trial court and Court of Appeals held that, to be successful, the plaintiffs' damage action required separate proof that the fraudulent representations had resulted in the merger. In other words, the lower courts in Mills had decided that a necessary element of a private § 14(a) claim is proof that the shareholders in fact yielded their proxies to management in reliance on management's misrepresentations.
13
The Supreme Court disagreed, holding that the broad, prophylactic purposes of § 14(a) would be frustrated if plaintiffs were required to prove such specific reliance. If a misrepresentation or omission is material, the Court held, a cause of action is stated: "Use of a solicitation that is materially misleading is itself a violation of law." Mills, supra at 383, 90 S. Ct. at 7. Requiring additional proof of reliance would discourage plaintiffs, the Court reasoned, whereas the goal of § 14(a) is to encourage private enforcement.
14
Finally, plaintiffs point to the recent Second Circuit decision in Schlick v. Penn-Dixie, 507 F.2d 374 (2d Cir. 1974), petition for cert. denied, 421 U.S. 976, 95 S. Ct. 1976, 44 L. Ed. 2d 467 (1975). In Schlick, as in Borak and Mills, minority shareholders challenged a merger on the ground that the proxy solicitations were fraudulently obtained in violation of § 14(a). However, in Schlick, unlike Borak and Mills, the defendant/majority stockholder owned sufficient shares to approve the merger without a single minority vote. The trial court held that, under those circumstances, there was no § 14(a) cause of action since the fraudulent proxy solicitation did not affect the merger: the majority stockholder had the votes anyway.
15
This court, on the authority of Borak and Mills, reversed. Fraudulent solicitation of proxies, even when those proxies were unnecessary to obtain the requisite majority, states a § 14(a) claim in the context of a challenged merger. Otherwise, the court said, the broad remedial purposes of the 1934 Act would be frustrated whenever a majority shareholder had sufficient votes to control the corporation. In effect, § 14(a) would be a dead-letter, the fraudulent proxies permitted, whenever the majority stockholder has sufficient votes of his own to control the corporation.
16
Thus, plaintiffs of the Browning group assert, the scope of a permissible § 14(a) action is to be interpreted broadly to effectuate Congressional intent and private enforcement. Any private action which enforces the law is to be allowed, notwithstanding "mootness" in the conventional sense of the term.
17
While we agree with plaintiffs that § 14(a) is to be construed broadly in accordance with the Congressional intent to establish private policing of the securities market, we do not agree that such a construction compels acceptance of plaintiffs' claims one and two. In each case cited above, a claim of monetary damage was critical to establishing a cause of action under § 14(a). Indeed, we specifically said in Schlick that "in order to state a Section 14(a) claim," plaintiffs must "show damages." Schlick,supra at 382. Since plaintiffs in the instant case do not assert such damages in their first two claims the teaching of Schlick, Borak and Mills is that plaintiffs have failed to state a cause of action under § 14(a).
18
Indeed, the plaintiffs seem to have misread our holding in Schlick. So far as applicable here, the Schlick court only held that, as a matter of law, a corporate decision is "caused" by a materially fraudulent proxy solicitation even if the defendant/majority stockholder possesses sufficient votes to make the decision himself. To interpret this holding as indicating that economic damages are not necessary for a § 14(a) claim is to read into the opinion something which is not there.
19
Nevertheless, plaintiff bondholders seek to justify claims one and two as enforcement of § 14(a). The obvious problem with this rationale is that plaintiffs, if successful, would not enforce anything. Unlike damages and injunctive relief, which apply significant sanctions and thereby deter future conduct, a declaratory judgment has no practical effect except as it lays the basis for future relief of a more coercive nature. The plaintiffs in the instant action are inconsistent in justifying their actions as private "enforcement" while at the same time seeking only declaratory relief which has no enforcing effect upon any of the parties. Enforcement is designed to compel behavior to conform with legal strictures. Plaintiffs' claims one and two, if successful, would not change anyone's behavior. How this would "enforce" the policies of § 14(a) is a mystery we cannot fathom. No one's behavior will be affected (or enforced) by a mere declaratory judgment under the circumstances here.
20
It is well to recall Justice Clark's exact words in Borak: private § 14(a) actions should be authorized when they "make effective the congressional purpose" of the securities laws. (Emphasis added.) Under this test, the first two Browning claims should fail since, as a practical matter, they will not effect anything.
21
Plaintiffs paint a dismal future for § 14(a) suits if Judge Griesa is upheld on the mootness issue.
22
We believe that plaintiffs' position is overstated. First, we hold only that on the facts of this case claims one and two are moot and have no apparent enforcement value for § 14(a). There may (arguably) be cases when declaratory judgment, by itself, will have an enforcement effect upon future behavior. When the behavior complained of is of such a nature that it might predictably be repeated again (for example, a pyramidal sales scheme), a prior declaratory judgment may serve the useful purpose of facilitating an injunction at a future date. However, that is not the situation here: DASA has already sold its computer equipment. There is no danger of a second transaction such as that which triggered this controversy for the simple reason that DASA has no computer equipment left to sell.
23
Secondly, plaintiffs in their brief exaggerate the danger that annual meetings might be enjoined indefinitely in response to § 14(a) suits in order to avoid the mootness problem in future litigation. Such an argument assumes that the courts are unable to fashion equitable remedies in a manner which preserves plaintiffs' prerogatives without unduly damaging defendant corporations. Since temporary and preliminary injunctions are, by definition, discretionary, federal judges do have sufficient authority to prevent the horrendous consequences predicted by plaintiff Browning.
24
Thirdly, it would appear from the increasing volume of § 14(a) suits that the possibility of damage awards is more than sufficient to stimulate necessary levels of private enforcement. (Indeed, it is unquestionably the damage-related claims (three, four and five) which are the fundamental motivation of the Browning suit.) We can feel reasonably secure that the possibilities of damages and injunctive relief will suffice to ensure private enforcement even if Browning claims one and two are dismissed.
25
There are few principles as firmly and as deeply embedded in our jurisprudence as the proposition that federal courts will not issue opinions unless a valid and continuing controversy exists between the litigants. See, e. g., North Carolina v. Rice, 404 U.S. 244, 92 S. Ct. 402, 30 L. Ed. 2d 413 (1971). When, as here, an issue is rendered moot by plaintiffs' failure to specify monetary damages or other operative relief, and the remedy sought is a mere declaration of law without implications for practical enforcement upon the parties, the case is properly dismissed.
26
Accordingly, the dismissal of plaintiffs' first two claims as moot is affirmed.
III. The Pretrial Orders
27
Also before us in the instant appeal is the claim of the plaintiffs that Judge Griesa improperly refused to grant certain procedural requests below. In particular, the Browning group moved the district court to compel certain pre-trial discovery proceedings and their recording on tape, purportedly pursuant to Rules 16 and 56(d) of the Federal Rules of Civil Procedure. These motions were denied by the district court, and the plaintiffs now ask this court to reverse.
28
We do not reach the substance of the plaintiffs' position because the district court's disposition of these pretrial motions is not subject to appellate review at the present time. Such review is precluded by the long-standing rule that, generally speaking, only the "final decisions" of district courts are appealable. See 28 U.S.C. § 1291. Since motions for discovery are of an interlocutory, rather than a final, nature, they may not be reviewed by this court until the entire proceeding before the district court is concluded.5 In the instant case, the plaintiffs' lawsuit remains very much alive as claims three, four and five asserting bondholder rights have yet to be adjudicated by the district court.6 Accordingly, it is inappropriate for us to review these procedural decisions at the present time.
29
Plaintiffs argue that these pretrial procedural decisions are nevertheless appealable under the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). We disagree. In Cohen, the Supreme Court held that a small class of interlocutory orders are appealable when they present issues which are of great importance and which are collateral to the main lawsuit before the district court. Plaintiffs' pretrial motions do not, in our judgment, fall within this class. While plaintiffs of the Browning group are understandably concerned about the time and money they seek to save through pretrial discovery under their proposed methods, we do not believe that their motions present a sufficiently compelling question to justify piecemeal appellate review. See, American Express Warehousing, Ltd. v. Transamerican Insurance Co., 380 F.2d 277, 280 (2d Cir. 1967).
30
Accordingly, we dismiss the appeal from the pretrial orders of the district court.
1
Section 14(a) reads in pertinent part:
It shall be unlawful for any person, by the use of the mails or by any means or instrumentality of interstate commerce or of any facility of a national securities exchange or otherwise, in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors, to solicit or to permit the use of his name to solicit any proxy or consent or authorization in respect of any security . . ..
2
Rule 16 reads as follows:
Pre-Trial Procedure; Formulating Issues
In any action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider
(1) The simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings;
(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(4) The limitation of the number of expert witnesses;
(5) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury;
(6) Such other matters as may aid in the disposition of the action.
The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pre-trial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to non-jury actions or extend it to all actions.
Fed.R.Civ.P. 16, 28 U.S.C.
Rule 56(d) reads as follows:
Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
Fed.R.Civ.P. 56(d), 28 U.S.C.
3
Rule 14a-9 reads as follows:
(a) No solicitation subject to this regulation shall be made by means of any proxy statement, form of proxy, notice of meeting or other communication, written or oral, containing any statement which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of a proxy for the same meeting or subject matter which has become false or misleading.
(b) The fact that a proxy statement, form of proxy or other soliciting material has been filed with or examined by the Commission shall not be deemed a finding by the Commission that such material is accurate or complete or not false or misleading, or that the Commission has passed upon the merits of or approved any statement contained therein or any matter to be acted upon by security holders. No representation contrary to the foregoing shall be made.
Rule 14a-3(b)(2) reads as follows:
(b) If the solicitation is made on behalf of the management of the issuer, and relates to an annual meeting of security holders at which directors are to be elected, each proxy statement furnished pursuant to paragraph (a) of this section shall be accompanied or preceded by an annual report to such security holders as follows:
(2) Any differences, reflected in the financial statements included in the report to security holders, from the principles of consolidation or other accounting principles or practices, or methods of applying accounting principles or practices, applicable to the financial statements of the issuer filed or proposed to be filed with the Commission, which have a material effect on the financial position or results of operations of the issuer, shall be noted and the effect thereof reconciled or explained in such report. Financial statements included in the report may, however, omit such details or employ such condensations as may be deemed suitable by the management: Provided, That such statements, considered as a whole in the light of other information contained in the report shall not by such procedure omit any material information necessary to a fair presentation or to make the financial statements not misleading under the circumstances.
4
While reaching the merits of plaintiffs' substantive claims, we note that there is a serious question raised by the record as to whether there has been proper certification of this appeal under Rule 54(b). Fed.R.Civ.P. 54(b), 28 U.S.C. Rule 54(b) applies to a situation such as this where, in a multiclaim suit, one of the parties seeks appellate review of some of the claims while other claims remain with the district court. The rule requires that the district judge in such multiclaim litigation expressly certify that there is "no just reason for delay(ing)" appellate review of those issues disposed of already by the district court. Absent such a certification, appeal must generally wait until all issues have been resolved by the district court
The district court in this instance made a certification for appeal, but expressly premised its action on the fact that neither party objected to an immediate appeal of those issues already resolved by the district court. It is apparent, however, that the district court did intend to certify the rulings on counts one and two in this case for immediate review under Rule 54(b) so that the formal omission in the certification is substantially overcome. While we find, accordingly, that compliance with Rule 54(b) is sufficiently established in the record, we suggest that the requisite finding of "no just reason for delay" be expressly set forth in the future to avoid any uncertainty in our administration of this appeals provision.
5
There are certain interlocutory orders which are appealable under 28 U.S.C. § 1292. However, plaintiffs' requests for pretrial discovery and stipulations do not fall within the purview of these provisions. A denial of discovery that goes to the establishment of jurisdictional facts may be reviewable by mandamus. Investment Properties International, Ltd. v. IOS, Ltd., 459 F.2d 705 (2d Cir. 1972). But see Fitzgerald v. Texaco, Inc., 521 F.2d 448 (2d Cir. 1975)
6
Since we have written this opinion, the district court has dismissed claims four and five and has conducted a trial on the merits of claim three. Since a final order has not been entered with respect to claim three, the judge's pretrial procedural decisions remain interlocutory and therefore unappealable | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2630931/ | 235 P.3d 259 (2010)
SEMPRE LIMITED PARTNERSHIP, an Arizona limited partnership, Plaintiff-Appellant,
v.
MARICOPA COUNTY, a political subdivision of the State of Arizona, Defendant-Appellee.
No. 1 CA-TX 08-0008.
Court of Appeals of Arizona, Division 1, Department T.
June 22, 2010.
*260 Mooney Wright & Moore PLLC By Paul J. Mooney, Jim L. Wright, Paul Moore, Mesa, Attorneys for Plaintiff-Appellant.
Richard Romley, Maricopa County Attorney By Richard W. Garnett, III, Maricopa County Attorney's Office, Division of County Counsel/Civil Division, Phoenix, Attorneys for Defendant-Appellee.
OPINION
GEMMILL, Judge.
¶1 Sempre Limited Partnership ("Sempre") filed an action in the Arizona Tax Court to challenge the Maricopa County Assessor's valuation of Sempre's real property. The tax court dismissed Sempre's claim for lack of subject matter jurisdiction, concluding that Sempre was required to seek administrative review pursuant to Arizona Revised Statutes ("A.R.S.") sections 42-12153 (2006) and 42-16051 (2006) before proceeding in superior court. Considering these statutes together with A.R.S. §§ 42-16201(A) (2006) and 42-15104 (2006), we hold that a taxpayer such as Sempre need not first seek administrative review before filing a direct appeal in the tax court. Concluding therefore that the tax court has jurisdiction to hear Sempre's *261 challenge, we reverse the dismissal of this action and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
¶ 2 On February 9, 2007, the County mailed Sempre a notice of classification and valuation concerning its real property located in Maricopa County (Parcel No. 141-31-011B) (the "property"). The notice, applicable to the 2008 tax year, stated the County had valued the property on the basis that it was not used for agricultural purposes. To seek administrative review of the valuation, Sempre was required to file an appropriate petition on or before April 10, 2007. See A.R.S. § 42-16051(D) (60-day deadline after county mails notice of property valuation).
¶ 3 Sempre did not file a petition for administrative review of the valuation. Instead, on November 15, 2007, Sempre filed a complaint and notice of appeal directly in the tax court. The County moved to dismiss pursuant to Rules 12(b)(1) and 12(b)(6), Arizona Rules of Civil Procedure. In reliance on A.R.S. §§ 42-12153 and 42-16051, the County argued that Sempre had not exhausted its administrative remedies and did not have the right to file an appeal directly in tax court.
¶ 4 After briefing and oral argument, the tax court found in favor of the County and granted its motion to dismiss for lack of jurisdiction. Sempre filed a motion for reconsideration that was denied. We have jurisdiction over Sempre's appeal in accordance with A.R.S. §§ 12-170(C) (2003) and 12-2101(B), (D) (2003).
ANALYSIS
¶ 5 "[T]he right to appeal from a property classification or valuation exists only by force of statute and is limited by the terms of that statute." Maricopa County v. Superior Court, 170 Ariz. 248, 252, 823 P.2d 696, 700 (App.1991). We apply a de novo standard when reviewing the tax court's legal, statutory, and jurisdictional rulings. See Lyons v. State Bd. of Equalization, 209 Ariz. 497, 499, ¶ 6, 104 P.3d 867, 869 (App.2005). Our primary task is to ascertain and give effect to the legislature's intent with respect to the several relevant statutes. See DeVries v. State, 221 Ariz. 201, 204, ¶ 6, 211 P.3d 1185, 1188 (App.2009). We first look to the plain language of the statutes as the most reliable indicator of their meaning. See Nordstrom, Inc. v. Maricopa County, 207 Ariz. 553, 556, ¶ 10, 88 P.3d 1165, 1168 (App. 2004). We interpret related statutes to harmonize their provisions. See Morgan v. Carillon Invs., Inc., 207 Ariz. 547, 549, ¶ 7, 88 P.3d 1159, 1161 (App.2004), aff'd, 210 Ariz. 187, 109 P.3d 82 (2005); State v. Cid, 181 Ariz. 496, 499-500, 892 P.2d 216, 219-20 (App.1995) (stating the rule that statutes in pari materia are read together and harmonized to avoid rendering any word, clause, or sentence superfluous or void).
¶ 6 The County argued and the tax court agreed that Sempre was not entitled to file a direct appeal in tax court but must instead initially pursue administrative review in accordance with the last sentence of the 2006 version of A.R.S. § 42-12153(B):
The owner of property or the owner's designated agent under § 42-16001 shall file a completed agricultural use application form with the county assessor before the property may be classified as being used for agricultural purposes. If the ownership of a property changes, an agricultural use application form must be filed by the new owner within sixty days after the change in ownership to maintain the agricultural use status. If the owner or the owner's agent fails to file an application form as prescribed in this subsection, the assessor shall not classify the property, on notice of valuation, as being used for agricultural purposes. The owner or agent may appeal the classification as prescribed by chapter 16, article 2 of this title regardless of whether the owner or agent filed an application form.
(Emphasis added.) Chapter 16, article 2 sets forth an administrative review process. See A.R.S. § 42-16051.
¶ 7 Sempre bases its right to forego administrative review in favor of a direct appeal in tax court primarily on A.R.S. § 42-16201(A):
*262 A property owner who is dissatisfied with the valuation or classification of the property as determined by the county assessor may appeal directly to the court as provided by this article on or before December 15 regardless of whether the person has exhausted the administrative remedies under this chapter ...
(Emphasis added.) Further support for Sempre's position may be found in A.R.S. § 42-15104:
A person who is not satisfied with the valuation or classification of the person's property determined by the assessor may:
1. Petition the assessor for review pursuant to chapter 16, article 2 of this title.
2. Appeal to tax court pursuant to § 42-16201.
(Emphasis added.)
¶ 8 For the reasons that follow, we conclude that the tax court erred in dismissing Sempre's complaint for lack of jurisdiction because §§ 42-16201(A) and 42-15104 authorize Sempre's filing of a direct appeal in tax court.
¶ 9 We first observe that §§ 42-16201(A) and 42-15104 plainly and unequivocally authorize a taxpayer dissatisfied with the assessor's valuation or classification of property to appeal directly to the tax court. Moreover, § 42-16201(A) rejects the necessity of pursuing administrative review pursuant to A.R.S. § 42-16051 by expressly authorizing direct appeals "regardless of whether the person has exhausted the administrative remedies under this chapter." Also, we are not persuaded that the last sentence of § 42-12153(B) requires exhaustion of administrative remedies before a taxpayer may pursue a judicial appeal.
¶ 10 The legislature's use of the word "may" in the last sentence of § 42-12153(B) creates an ambiguity because "may" is capable of conveying either a mandatory or permissive requirement. See Frye v. S. Phoenix Volunteer Fire Co., 71 Ariz. 163, 167, 224 P.2d 651, 654 (1950) (explaining that the meaning of "may" as mandatory or permissive depends on legislative intent). Although a "may" provision normally is interpreted as permissive, In re Maricopa County Superior Court No. MH2003-000240, 206 Ariz. 367, 369, ¶ 7, 78 P.3d 1088, 1090 (App.2003), this court has previously determined that the use of "may" in describing administrative review processes does not necessarily render the procedures permissive. See, e.g., Mullenaux v. Graham County, 207 Ariz. 1, 5, ¶ 14, 82 P.3d 362, 366 (App.2004); Hamilton v. State, 186 Ariz. 590, 593-94, 925 P.2d 731, 734-35 (App.1996); Estate of Bohn v. Waddell, 174 Ariz. 239, 248-50, 848 P.2d 324, 333-35 (App. 1992). To properly interpret "may" in the last sentence of § 42-12153(B), we must examine the language of this section as well as the provisions of related statutes.
¶ 11 We resolve the ambiguity in the last sentence of § 42-12153(B) by interpreting "may" as permissive, not mandatory, because "[w]hen the Legislature has used both `may' and `shall' in the same paragraph of a statute, we infer that the Legislature acknowledged the difference and intended each word to carry its ordinary meaning." See HCZ Constr., Inc. v. First Franklin Fin. Corp., 199 Ariz. 361, 365, ¶ 15, 18 P.3d 155, 159 (App.2001). The legislature in § 42-12153(B) used "shall" twice and "must" once, evidencing mandatory intent. We may therefore infer that in providing in the same statute that an aggrieved taxpayer "may" seek administrative review, the legislature intended "may" in its usual, permissive form.
¶ 12 Additionally, all three of these statutes were enacted in 1997 as part of a comprehensive overhaul of our property tax statutes. See Laws 1997, Ch. 150, § 172, eff. Jan. 1, 1999. When interpreting multiple statutory sections that were enacted simultaneously, "the duty to harmonize them is particularly acute." U.S. West Communications, Inc. v. Hamilton, 224 F.3d 1049, 1053 (9th Cir.2000) (citing Erlenbaugh v. United States, 409 U.S. 239, 244, 93 S. Ct. 477, 34 L. Ed. 2d 446 (1972)). This simultaneous enactment diminishes the possibility that the legislature intended § 42-12153(B) to overridewithout expressly so statingthe plain language of §§ 42-16201(A) and 42-15104. Also, § 42-12153(B) does not provide that administrative review "shall" or "must" be undertaken before seeking judicial review. The doctrine requiring exhaustion of administrative *263 remedies does not apply when the statutory language authorizes a permissive administrative remedy. Univar Corp. v. City of Phoenix, 122 Ariz. 220, 224, 594 P.2d 86, 90 (1979); Campbell v. Chatwin, 102 Ariz. 251, 257, 428 P.2d 108, 114 (1967).
¶ 13 The County argues that § 42-12153(B) addresses specifically a taxpayer's appeal rights when no agricultural use application has been filed and the assessor has not classified the property for agricultural use. The County further argues that §§ 42-16201(A) and 42-15104 are general statutes that are not applicable in the face of a specific statute such as § 42-12153(B). Sempre disagrees, pointing out that §§ 42-16201(A) and 42-15104 address specifically a taxpayer's optional remedies of administrative or judicial review. We agree that a specific provision will usually prevail over a conflicting general provision. State v. Jackson, 210 Ariz. 466, 472, ¶ 26, 113 P.3d 112, 118 (App. 2005). We need not decide, however, whether § 42-12153(B) is more specific for these purposes than §§ 42-16201(A) and 42-15104 because this interpretive principle "applies only when there is a conflict between the specific and the general law." See State v. Davis, 119 Ariz. 529, 534, 582 P.2d 175, 180 (1978). When these three statutes are read together and harmonized, see supra ¶¶ 9-12, there is no conflict between them that would permit application of the "specific prevails over the general" principle.
¶ 14 The County further contends our interpretation effectively eliminates the last sentence of § 42-12153(B) from the statute because the right of a taxpayer to pursue administrative review in accordance with A.R.S. § 42-16051 is already provided by §§ 42-16201(A) and 42-15104. But the last sentence of § 42-12153(B) does more than merely provide that the aggrieved taxpayer "may" seek administrative reviewit also establishes that a taxpayer who has not filed a completed agricultural use application form may do so. Therefore, the sentence is not rendered meaningless or superfluous by our interpretation.
¶ 15 The County also argues that a 2007 amendment to § 42-12153(B), which added language specifying a right to appeal directly in tax court, reveals that the prior version of § 42-12153(B) should be understood to mean that Sempre must have exhausted its administrative remedy before seeking judicial review. We disagree with the County because we conclude that the 2007 amendment was a clarification, not a change in the law.
¶ 16 The 2007 amendment to § 42-12153(B) added the phrase "or 5" to the last sentence: "The owner or agent may appeal the classification as prescribed by chapter 16, article 2 or 5 of this title regardless of whether the owner or agent filed an application form." (Emphasis added.) Under this revised language, a taxpayer may appeal a classification in accordance with either § 42-16051 (from chapter 16, article 2) or § 42-16201 (from chapter 16, article 5).
¶ 17 We usually presume that an amendment changes the meaning of an existing statute. McCloe v. Utah Home Fire Ins. Co., 121 Ariz. 402, 403, 590 P.2d 941, 942 (App.1978). This presumption does not apply, however, if the original statute was ambiguous. State v. Sweet, 143 Ariz. 266, 269, 693 P.2d 921, 924 (1985); Arizona Found, for Neurology and Psychiatry v. Sienerth, 13 Ariz.App. 472, 476, 477 P.2d 758, 762 (1970). Here, the last sentence of the prior version of § 42-12153(B) was ambiguous because "may" could be understood as either permissive or mandatory. See supra ¶ 10. Accordingly, the usual presumption that an amendment changes the meaning of a statute is not applicable to the 2007 amendment.
¶ 18 The 2007 amendment clarifies that the last sentence of § 42-12153(B) means what we have now concluded it already meant, after harmonizing and construing the statutes. See supra ¶¶ 9-13. See City of Mesa v. Killingsworth, 96 Ariz. 290, 297, 394 P.2d 410, 414 (1964) ("The legislature has now clearly expressed its intention consistent with the construction which we believe should be placed on the former statutes. An amendment which, in effect, construes and clarifies a prior statute will be accepted as the legislative declaration of the original act.").
¶ 19 The County further contends, however, that persuasive legislative history compels a contrary conclusion. Specifically, the *264 County references the following legislative summary regarding the 2007 amendment to § 42-12153(B):
Current law allows a property owner who is dissatisfied with their property valuation or classification to appeal the assessor's determination through an administrative appeals process. Property owners also have the option to bypass the administrative appeals process and file an appeal directly to court on or before December 15. However, the option to appeal directly to court does not currently apply to the determination of whether a property qualifies for the agricultural classification. Agricultural properties are classified as class 2 with a 16 per cent assessment ratio. They also have a special valuation method. This bill will allow property owners to appeal the assessor's determination directly to court, similar to other property valuation and classification disputes.
Ariz. House of Representatives, Summary of S.B. 1553, 48th Leg., 1st Reg. Sess., at 1 (April 16, 2007) (emphasis added). The unidentified author (or authors) of this summary of Senate Bill 1553 evidently believed that a taxpayer such as Sempre was required to seek administrative review and could not file a direct appeal in tax court.
¶ 20 In Hayes v. Cont'l Ins. Co., 178 Ariz. 264, 270, 872 P.2d 668, 674 (1994), our supreme court cautioned that "the best policy is not to consider nonlegislators' statements to determine the legislature's intent concerning the specific application of a proposed statute, unless the circumstances provide sufficient guarantees that the statements reflect legislators' views." (Emphasis added.) We find no such guarantees here. We cannot discern from this summary its author or authors nor the source of the belief that direct appeals from the denial of agricultural classification were not allowed. As already noted, the prior version of § 42-12153(B) is ambiguous and requires interpretation. It may be that the 2007 amendment was offered because counties were taking the positionas the County did herethat the administrative remedy must be exhausted before a taxpayer may appeal in superior court.
¶ 21 Even if we assume that the summary description constituted the understanding and intent of at least some individual legislators, we cannot assume that the summary represents the intent of the entire collection of legislators who voted in favor of the bill. See United States v. Trans-Missouri Freight Ass'n., 166 U.S. 290, 318-19, 17 S. Ct. 540, 41 L. Ed. 1007 (1897) ("[I]t is impossible to determine with certainty what construction was put upon an act by the members of a legislative body that passed it by resorting to the speeches of individual members thereof. Those who did not speak may not have agreed with those who did, and those who spoke might differ from each other; the result being that the only proper way to construe a legislative act is from the language used in the act, and, upon occasion, by a resort to the history of the times when it was passed."); Reed Dickerson, Statutory Interpretation: Dipping into Legislative History, 11 HOFSTRA L. REV. 1125, 1130 (1983) ("In general, little legislative history is helpfully relevant. Much of it is unreliable or unreliably revealed.").[1]
¶ 22 Finally, we note that the bill enacting the 2007 amendment to § 42-12153(B) did not contain a purpose clause or statement of intent. For these reasons, the proffered summary of the bill does not persuade us that the amendment was a change in the law rather than a clarification.
CONCLUSION
¶ 23 The Arizona Tax Court erred when it concluded that it lacked jurisdiction over Sempre's direct appeal and dismissed Sempre's complaint. We therefore reverse and remand for further proceedings.[2]
*265 ¶ 24 Sempre has requested an award of attorneys' fees pursuant to A.R.S. § 12-348(B) (2003), which authorizes an award of fees to a party that "prevails by an adjudication on the merits" in an action against a county. Sempre has not yet prevailed, however, on the merits. We therefore deny Sempre's request for an award of fees at this time. As the prevailing party on appeal, Sempre is entitled to recover its taxable costs upon compliance with Arizona Rule of Civil Appellate Procedure 21(a).
CONCURRING: PETER B. SWANN, Presiding Judge and DIANE M. JOHNSEN, Judge.
NOTES
[1] Additionally, "[t]he rule is clearly established in Arizona that one member of a legislature which passes a law is not competent to testify regarding the intent of the legislature in passing that law." Golder v. Dep't of Revenue, 123 Ariz. 260, 265, 599 P.2d 216, 221 (1979). See also Tucson Gas & Elec. Co. v. Schantz, 5 Ariz.App. 511, 514, 428 P.2d 686, 689 (1967) ("[T]he testimony or opinions of individual members of the legislative body are not admissible.").
[2] Our determination is limited to the question of jurisdiction. We express no opinion regarding the merits of Sempre's appeal. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1679816/ | 392 So.2d 430 (1980)
H & H SEWER SYSTEMS, INC.
v.
INSURANCE GUARANTY ASSOCIATION.
No. 67680.
Supreme Court of Louisiana.
December 15, 1980.
Rehearing Denied January 26, 1981.
*431 Ben Louis Day, Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for defendant-applicant.
Roy S. Halcomb, Jr., Broussard, Bolton & Halcomb, Robert Downing, Neblett, Fuhrer & Broussard, Alexandria, for plaintiff-respondent.
MARCUS, Justice.
The Town of Campti contracted with South Coastal Construction Company to install a sewer system for said town. In compliance with Section 2241[1] of the public contracts law (La.R.S. 38:2181-2316), South Coastal furnished two performance bonds issued by Summit Insurance Company of New York. Subsequently, South Coastal defaulted on the contract thus making Summit liable on its bonds. Pursuant to a provision in the bonds, Summit elected to complete the contract in accordance with its terms and conditions and contracted with H & H Sewer Systems, Inc. to complete the job on a cost plus ten percent basis. H & H Sewer submitted claims amounting to $21,501 which were not paid. Thereafter, Summit was placed in liquidation by order of the New York Supreme Court. By order of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, Louisiana, Summit was ordered insolvent and placed in ancillary receivership.
H & H Sewer filed suit against Insurance Guaranty Association seeking to recover payment under the Insurance Guaranty Association Law (La.R.S. 22:1375-1394) which provides for the payment of covered claims under certain insurance policies where the insurer becomes insolvent. The district court granted a summary judgment dismissing plaintiff's suit on the ground that the claim was not a "covered claim" within the scope of La.R.S. 22:1379(3). The court of appeal reversed and remanded the case holding that plaintiff's claim was one arising out of and within the coverage of the bonds furnished by Summit and that defendant was therefore not entitled to summary judgment.[2] Defendant's application to this court for certiorari was denied on the ground that the judgment was not final.[3] On remand, the district court held *432 that plaintiff's claim was covered by the Insurance Guaranty Association Law and that defendant was liable for the unpaid claim of $21,501. In an opinion designated not for publication, the court of appeal affirmed, stating that its original opinion was the rule of law to be followed in this case, and it saw no reason to reconsider the case. On defendant's application, we granted certiorari to review the correctness of that decision.[4]
La.R.S. 22:1382(1) provides in pertinent part that the Insurance Guaranty Association shall:
(a) Be obligated to the extent of the covered claims existing prior to the determination of the insurer's insolvency....
[and]
(b) Be deemed the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights, duties and obligations of the insolvent insurer as if the insurer had not become insolvent.
A "covered claim" is defined in La.R.S. 22:1379(3) as an "unpaid claim ... which arises out of and is within the coverage ... of an insurance policy...."
As it has been stipulated by both parties that Summit owed H & H Sewer $21,501 for labor and materials and that Summit did become insolvent, the sole issue for our determination is whether H & H Sewer's claim is a covered claim, that is, one which arises out of and is within the coverage of the performance bonds.
Both performance bonds listed South Coastal as "Contractor," the Town of Campti as "Owner" and Summit as "Surety," and contained the following provisions:
(1) Whenever Contractor shall be, and declared by Owner to be in default under the Contract, the Owner having performed Owner's obligation thereunder, the Surety may remedy the default, or shall
(a) Complete the Contract in accordance with its terms and conditions or
(b) Obtain bid or bids for submission to Owner for completing the Contract in accordance with its terms and conditions, and upon determination by Owner and Surety of the lowest responsible bidder, arrange for a contract between such bidder and Owner and make available, as work progresses, sufficient funds to pay cost of completion less the balance of the contract price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the penalty set forth in this instrument. The term "balance of the contract price", as used herein, shall mean the total amount payable by Owner to Contractor under the Contract and any amendments thereto, less the amount properly paid by Owner to Contractor.
(2) The Contractor and Surety hereby jointly agree with the Owner that any claimant as hereinafter defined, who has not been paid for labor or materials furnished by such claimant, may sue on this bond for the use of such claimant in the name of the Owner....
(3) A claimant, as used in paragraph 2 of this instrument, is defined as one having a direct contract with the Contractor or with a sub-contractor of the Contractor for labor, material, or both, used or reasonably required for use in the performance of the Contract.
The bonds gave Summit two options if the contractor was in default for failing to perform under the contract: (a) Complete the contract itself in accordance with its terms and conditions; or (b) obtain bids and arrange a contract between the Town of Campti and the lowest responsible bidder for completion of the contract in accordance with its terms and conditions. Under both options, the contract is to be completed in accordance with its terms and conditions. Thus, the bonds not only covered the performance of the contract by the original contractor, South Coastal, but also covered the performance of the contract should Summit exercise either of its options. When Summit exercised its option to complete *433 the contract itself, Summit was fulfilling its continuing obligation to guarantee the completion of the contract in accordance with its terms and conditions. Due to South Coastal's default, Summit, as surety for South Coastal, became responsible for completing the contract and making payments for all labor and materials used in the performance of the contract. H & H Sewer had a direct contract with Summit for labor and materials used in performance of the contract between the Town of Campti and South Coastal and thus is a claimant as defined in provision (3) of the performance bonds. Its claim against Summit is clearly one arising out of and within the coverage of the performance bonds. Due to Summit's insolvency, Insurance Guaranty Association is obligated under La.R.S. 22:1382(1) to pay H & H Sewer's covered claim of $21,501.
DECREE
For the reasons assigned, the judgment of the court of appeal is affirmed.
CALOGERO, J., concurs and assigns reasons.
LEMMON, J., concurs and assigns reasons.
DIXON, C. J., dissents with reasons.
CALOGERO, Justice, concurring.
I disagree that H & H Sewer Systems, Inc., is a "claimant" as defined in the surety contract. Nevertheless, I am of the opinion that H & H has a covered claim under the Insurance Guaranty Association Law (R.S. 22:1375 et seq.) as that law is reasonably construed and with respect for the apparent legislative intent. In my view, R.S. 22:1379 contemplates within its scope H & H's claim,[*] although perhaps not one specifically defined under the bond. Had H & H filed a lien against the city pursuant to R.S. 38:2242, the city would surely have had a claim against Insurance Guaranty Association as one arising out of and within the coverage of an insurance policy. The same purpose is served, without the circuitousness of the above procedure, by allowing H & H to recover directly from Insurance Guaranty Association.
For the above reasons, I respectively concur.
LEMMON, Justice, concurring.
When South Coastal defaulted, Summit arranged for a contract between plaintiff and the City, under (1)(b) of the performance bond, to complete the original contract. The Public Works Act requires a bond for all such contracts, and all parties (including Summit) apparently considered that the original bond covered the work necessary to complete the original contract. (Certainly Summit could not have required the City to pay an additional premium for a new bond covering work to be performed under the contract covered by the old bond.) Under these circumstances plaintiff's claim for this work, which fulfills Summit's obligation under the original bond, was a "covered claim".
DIXON, Chief Justice (dissenting).
I respectfully dissent.
H & H was not a "claimant" under the bond, because its contract was with Summit, not the contractor or subcontractor.
NOTES
[1] At the time the contract was executed, La. R.S. 38:2241 provided:
Whenever the state or any state board or agency or any political subdivision of the state enters into a contract in excess of one thousand dollars for the construction, alteration, or repair of any public works, the official representative of the governing authority shall reduce the contract to writing and have it signed by the parties. He shall require of the contractor a bond, with good, solvent, and sufficient surety in a sum not less than fifty percent of the contract price for the faithful performance of the contract with an additional obligation for the payment by the contractor or subcontractor for all work done, labor performed, or material or supplies furnished for the construction, alteration, or repair of any public works, or for furnishing materials or supplies for use in machines used in the construction, alteration, or repair of any public works. No modifications, omissions, additions in or to the terms of the contract, in the plans or specifications or in the manner and mode of payment shall in any manner affect the obligation of the surety. The bond shall be executed by the contractor with surety or sureties approved by the officials representing the state, state board or agency, or political subdivision and shall be recorded with the contract in the office of the recorder of mortgages in the parish where the work is to be done not later than thirty days after the work has begun.
[2] 349 So.2d 965 (La.App. 1st Cir. 1977).
[3] 350 So.2d 1211 (La.1977).
[4] 385 So.2d 801 (La.1980).
[*] According to R.S. 22:1379(3), a covered claim is an unpaid claim which "arises out of and is within the coverage of ... an insurance policy to which this Part applies issued by an insurer, if such insurer becomes an insolvent insurer..." (Emphasis provided.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627772/ | 206 P.3d 694 (2009)
STATE of Washington, Respondent,
v.
Leon Anthony VICTORIA, Appellant.
No. 61602-1-I.
Court of Appeals of Washington, Division 1.
May 11, 2009.
*695 Maureen Marie Cyr, Washington Appellate Project, Seattle, WA, for Appellant.
Daniel Kalish, King County Prosecutor's Office, Seattle, WA, for Respondent.
DWYER, A.C.J.
¶ 1 Leon Victoria was convicted of two counts of tampering with a witness. In calculating Victoria's offender score, the sentencing court declined to treat the two crimes as constituting the same criminal conduct. Multiple crimes constitute the same criminal conduct only if they involve the same victim. A witness who is the target of tampering suffers injury by being unduly pressured to act illegally and is therefore a victim. Because Victoria tampered with two different witnesses, his crimes did not involve the same victim and therefore did not constitute the same criminal conduct. Accordingly, we affirm Victoria's sentence.
I
¶ 2 In the fall of 2007, Victoria was in the King County Detention Facility awaiting trial on residential burglary and felony harassment charges. He had kicked in the front door of his ex-girlfriend Amanda Edwards' apartment and threatened Edwards' sister, Ramona Moore. While in custody, Victoria placed several recorded telephone calls to family members during which he discussed ways to convince Edwards and Moore either to change their expected adverse testimony or to refuse to appear at his trial. During these conversations, Victoria's relatives indicated that they had spoken to both witnesses about formally disavowing their earlier statements. At one point, it appeared that Edwards was reluctant to testify against Victoria and perhaps prepared to recant but that Moore was insistent on carrying through with the case. Victoria also left a message on Edwards' voicemail urging her to visit his mother so that he could speak to her on the telephone directly.
¶ 3 Based on these telephone conversations, the prosecutor amended the charging information against Victoria to include two counts of tampering with a witness, in violation of RCW 9A.72.120.[1] Both Edwards and Moore testified against Victoria at his trial. Neither witness disavowed her earlier statements to police officers. The jury subsequently found Victoria guilty on each tampering count.
¶ 4 At sentencing, Victoria objected to the treatment of each witness tampering conviction as a separate offense for purposes of calculating his offender score. He argued that both offenses amounted to the same criminal conduct because, in his view, they harmed the same victimthe public at large-and involved the same criminal intentto interfere with the judicial process. The trial court rejected Victoria's argument. In so doing, it noted that Victoria himself differentiated between the two witnesses in his telephone conversations. The sentencing court's decision to treat the two convictions as different criminal conduct resulted in a higher standard sentencing range than Victoria would have faced had the court found that the two convictions encompassed the same criminal conduct.
II
¶ 5 Victoria contends that neither Edwards nor Moore is a victim, and that only the public at large can be a victim of the crime of tampering with a witness. We disagree.
¶ 6 In calculating a defendant's sentencing range under the Sentencing Reform *696 Act of 1981(SRA), chapter 9.94A RCW, the trial court must determine a defendant's offender score, which reflects the "length and seriousness of the defendant's criminal history." State v. Dunaway, 109 Wash.2d 207, 212, 743 P.2d 1237, 749 P.2d 160 (1987). When a defendant is sentenced for multiple offenses, the defendant's offender score for each conviction is calculated from prior convictions and "other current offenses." RCW 9.94A.525(1), .589(1)(a). However, if the sentencing court "enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime" for purposes of calculating the defendant's offender score. RCW 9.94A.589(1)(a).
¶ 7 Multiple crimes constitute the "same criminal conduct" if they "require the same criminal intent, are committed at the same time and place, and involve the same victim." RCW 9.94A.589(1)(a). Satisfaction of each of these elements is a prerequisite to a finding of same criminal conduct. "If any one of these elements is missing, the offenses must be individually counted toward the offender score."[2]State v. Haddock, 141 Wash.2d 103, 110, 3 P.3d 733 (2000) (citing State v. Garza-Villarreal, 123 Wash.2d 42, 47, 864 P.2d 1378 (1993)). We will disturb the sentencing court's determination as to whether current offenses encompass the same criminal conduct only in the event of a "`clear abuse of discretion or misapplication of the law.'" Haddock, 141 Wash.2d at 110, 3 P.3d 733 (quoting State v. Elliott, 114 Wash.2d 6, 17, 785 P.2d 440 (1990)).
¶ 8 In determining who is a crime victim, we look to the SRA.[3]Haddock, 141 Wash.2d at 111, 3 P.3d 733. Pursuant to the SRA, a victim is "any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the crime charged." RCW 9.94A.030(53).
¶ 9 Victoria is mistaken that a witness who is the target of tampering suffers no injury, unless he or she is actually dissuaded from testifying as a result of the tampering. A witness who does not have a right or privilege to refrain from testifying in a criminal proceeding has a legal obligation to do so truthfully and fully. This obligation can be a heavy burden. By making truthful testimony obligatory, the law removes the element of individual choice from the witness's testimony. Efforts to tamper with a witness, however, exert undue pressure on the witness that the obligatory nature of testimony otherwise eliminates. This pressure can be acute if a witness must testify against an acquaintance. Indeed, the transcript of Victoria's calls with family members indicates that Edwards, who was Victoria's ex-girlfriend and a longtime neighborhood acquaintance, wrestled with the decision of whether to testify or cooperate with Victoria's scheme.
¶ 10 The pressure applied through tampering efforts also increases the targeted witness's risk of exposure to criminal liability. By definition, the act of tampering involves efforts to induce a witness to do something that the witness does not have the legal right or privilege to do. If the witness testifies falsely or absents himself or herself from a judicial proceeding, then the witness faces possible criminal liability. That Victoria was unable to dissuade Edwards and Moore from testifying is of no moment in determining their status as victims. A mere attempt to induce a witness to testify falsely or become unavailable is unlawful. See RCW 9A.72.120(1).
¶ 11 Victoria also argues that tampering with a witness is a "victimless crime" because the tampering statute necessarily has the prevention of obstruction of justice as its purpose. See State v. Sanders, 66 Wash. App. 878, 884, 833 P.2d 452 (1992) (citing State v. Stroh, 91 Wash.2d 580, 582, 588 P.2d 1182 (1979)). However, tampering with a witness is not a victimless crime merely because its commission threatens to cause systemic *697 harm. Instead, as our Supreme Court recently explained, when criminal liability "does not depend on the existence of a victim, [but] the law [nonetheless] does contemplate" a victim, the proscribed conduct is not a victimless crime. City of Auburn v. Hedlund, 165 Wash.2d 645, 652-53, 201 P.3d 315 (2009).
¶ 12 The tampering statute specifically criminalizes any attempt to tamper with "a witness." RCW 9A.72.120 (emphasis added). Thus, it contemplates that a particular witness will be the target of tampering. See State v. DeSantiago, 149 Wash.2d 402, 419, 68 P.3d 1065 (2003). Therefore, the public at large is not the crime's only victim. An inchoate tampering effort or one that fails to achieve its objective is no different than a poorly aimed gunshot of which the target is unaware. Each instance involves an identifiable, individual victim. Because Victoria tampered with two different witnesses, each of whom was a victim of his unlawful machinations, the trial court correctly ruled that his two convictions for tampering with a witness did not encompass the same criminal conduct.
¶ 13 Affirmed.
We concur: BECKER and AGID, JJ.
NOTES
[1] RCW 9A.72.120 provides, in relevant part:
(1) A person is guilty of tampering with a witness if he or she attempts to induce
a witness or person he or she has reason to believe is about to be called as a witness in any official proceeding or a person whom he or she has reason to believe may have information relevant to a criminal investigation ... to:
(a) Testify falsely or, without right or privilege to do so, to withhold any testimony; or
(b) Absent himself or herself from such proceedings; or
(c) Withhold from a law enforcement agency information which he or she has relevant to a criminal investigation.
[2] Victoria also contends that he had the same criminal intent for both instances of tampering: to interfere with the judicial process. Because we conclude that each witness who is the target of tampering is a victim, we need not address this argument.
[3] The Washington Criminal Code, Title 9A RCW, does not specifically define the term victim. City of Auburn v. Hedlund, 165 Wash.2d 645, 651, 201 P.3d 315 (2009). | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627774/ | 206 P.3d 898 (2009)
STATE
v.
FAST.
No. 100480.
Court of Appeals of Kansas.
May 15, 2009.
Decision without published opinion. Conviction reversed and sentence vacated. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627776/ | 206 P.3d 72 (2009)
HART
v.
BOTT FAMILY FARMS.
No. 99895.
Court of Appeals of Kansas.
April 24, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2396655/ | 88 N.J. Super. 343 (1965)
212 A.2d 384
MAURICE W. GROBER, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
HERMAN KAHN, GERTRUDE KAHN, ALICE BROOKS AND CAROL WEINTRAUB, DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS, AND CONDENSER SERVICE & ENGINEERING CO., INC., INTERVENOR-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued June 1, 1965.
Decided July 7, 1965.
*346 Before Judges KILKENNY, GAULKIN and LEWIS.
Mr. Israel B. Greene argued the cause for plaintiff-appellant and cross-respondent (Mr. Laurence B. Orloff, on the brief).
Mr. Adrian M. Unger argued the cause for defendants-respondents and cross-appellants and intervenor-appellant (Messrs. Milton M. & Adrian M. Unger, attorneys; Mr. Stephen A. Gilbert on the brief).
The opinion of the court was delivered by KILKENNY, J.A.D.
Plaintiff sued in the Chancery Division essentially to establish his interest in a joint venture and for an accounting of the assets of the joint venture. He also sought a partition of industrial real estate which, along with some personalty, had been acquired from Camden Forge Company in the name of defendant Herman Kahn and which *347 plaintiff claimed really belonged to the joint venture. There were other claims for incidental relief, as more particularly set forth in his amended and supplemental complaints.
The litigation was bitterly drawn out, with about 60 motions by the parties and an 84-day trial, which produced approximately 10,000 pages of testimony and some 700 exhibits.
The trial court determined that plaintiff had a 25% interest in the joint venture and defendant Kahn family owned the other 75% allocated 25% to Herman Kahn, 25% to his wife Gertrude Kahn, and 12 1/2% to each of his two daughters, Alice Brooks and Carol Weintraub. It was also decided that defendant Herman Kahn had taken title to the property of Camden Forge Company for the benefit of the joint venture, thus making him a trustee of that property and the joint venture beneficiary of the trust. Kahn was held liable to the joint venture in the sum of $432,400.60 plus interest (not compounded) to be computed at 6% only on the sum of $182,400.60, as hereinafter more particularly set forth. A setoff of $39,080.43 against plaintiff's 25% interest was allowed because of payments made by Kahn on account of income tax assessments against plaintiff and his wife. Kahn's two daughters were each held liable to the joint venture in the sum of $3,000 without interest.
The joint venture was ordered dissolved in a manner similar to the statutory dissolution of partnerships, and a receiver was appointed for the unsold real and personal property of the joint venture.
Thereafter, plaintiff moved for an award of counsel fees in the amount of $100,000, accountant's fees in the amount of $40,000, and appraisers' fees to be paid either out of the sum adjudged due from defendant Herman Kahn or to be charged against him personally. The motion was denied for the reasons expressed by the trial court in its reported opinion. Grober v. Kahn, 83 N.J. Super. 382 (Ch. Div. 1964).
Plaintiff appealed from so much of the Chancery Division judgment and incidental orders as (1) disallowed the application for counsel fees, accountant's fees and appraisers' fees; *348 (2) allowed no interest on $250,000 of the amount for which defendant Herman Kahn was held liable to the joint venture; (3) limited the interest at a straight 6%, without compounding it, on the balance of $182,400.60 adjudged by the court to be due and owing by Herman Kahn to the joint venture, and (4) stayed execution of the judgment against Kahn and the order imposing costs, conditioned upon Kahn's filing a surety company bond in the sum of $100,000. Such a bond was filed.
Defendants cross-appealed from so much of the judgment as was adverse to them, as well as from a number of rulings by the trial court at and prior to trial, alleged to be erroneous and prejudicial.
Condenser Service & Engineering Co., Inc. (hereinafter "Condenser"), a corporation wholly owned by Herman Kahn, had moved for leave to intervene as a party in the litigation, claiming ownership of the property which the trial court in its findings of February 21, 1964 considered to be among the assets of the Grober-Kahn joint venture. That motion was denied by order of the Chancery Division on March 30, 1962. Condenser did not appeal from that order until after judgment was entered, joining with defendants in their notice of appeal. It contends that the trial court erred in denying its motion for intervention.
When plaintiff failed to request and have filed a transcript of the proceedings as required by R.R. 1:2-8(e), made applicable to this court by R.R. 2:2-5, defendants moved to dismiss the appeal. We allowed the appeal to proceed without the need for Grober or Kahn to file a transcript upon their agreeing to file a written stipulation that the fact findings expressed in the trial court's written opinion would be accepted as true for the purpose of the appeal and cross-appeal, and that no argument would be made on the appeals as to evidence or testimony in the case, except that stated by the trial court in its opinion. The stipulations were filed and a transcript of the proceedings was not filed. However, Condenser has produced portions of the record to support its legal *349 position, not being bound by the stipulations of the parties to the main appeals.
We consider first the claims of error asserted by plaintiff.
I.
There was no error in the trial court's staying execution of the money judgment against Kahn and of the costs imposed against him, conditioned upon his filing a surety company bond in the amount of $100,000. "The grant or denial of a stay and the extent, terms, and conditions thereof are matters resting in the discretion of the court from which the appeal is taken, or to which certification is sought, or the appellate court, to be exercised with proper regard to the particular circumstances in each case." R.R. 1:4-6, R.R. 2:4-1. The application was properly made in the first instance to the trial court and prior to the filing of any briefs on appeal. R.R. 1:4-7, R.R. 2:4-3.
There was no abuse of discretion in fixing the amount of the bond at $100,000. Plaintiff had only a 25% interest in the joint venture. A receiver had been placed in charge of the unsold realty and personalty acquired from Camden Forge Company. Meanwhile, the receiver sold the Camden Forge Company property for $435,000 and retains the net proceeds subject to the control of the court. Thus, plaintiff's 25% share in the joint venture is amply secured by the $100,000 bond and the funds in the possession of the receiver, both of which may be reached by appropriate court order. Moreover, defendant Kahn also has a 25% interest in the joint venture not counting the other 50% belonging to his wife and daughters which he cannot reach until plaintiff's rights are satisfied. Thus, plaintiff is adequately secured. R.R. 1:4-8 (a), R.R. 2:4-1.
II.
The trial court acted properly in not allowing any interest on the $250,000 received by Kahn from the sales of scrap at the Camden Forge plant, which moneys Kahn deposited *350 in Condenser's account with the knowledge and acquiescence of plaintiff, who was the president of Condenser. Though the proceeds of these sales belonged to the joint venture, as the trial court found, rather than to Kahn personally or his corporation, Condenser, their deposit by Kahn for use by Condenser to pay some pressing tax obligations merely created a debt due from Kahn to the joint venture. Plaintiff's official position in Condenser made him fully aware of Condenser's needs and the application of these money's to satisfy those needs. No objection was made by plaintiff or any member of the joint venture to use of this sum. On the contrary, there was obvious acquiescence therein.
Since the $250,000 was held to belong to the joint venture, its use by Kahn with the acquiescence of the joint venturers was in the nature of a loan from the joint venture to Kahn. There was no agreement or understanding between the parties that Kahn would be required to pay any interest on this sum of money. A loan of money, without any provision for the payment of interest, does not ordinarily carry with it any obligation to pay interest on the loan before the due date of the obligation. Interest is no part of a debt unless so stipulated in the contract, but it may be awarded as damages for the wrongful detention of a debt. Warren Bros. Co. v. Hartford, etc., Co., 102 N.J.L. 616, 619 (E. & A. 1926); Fidelity Mut. Life Ins. Co. v. Wilkes-Barre & H.R. Co., 98 N.J.L. 507, 510 (E. & A. 1923). Courts of equity are free to decide all questions pertaining to interest according to considerations of justice and fair dealing in the given case. The relationship of the parties herein and all of the circumstances justify the Chancery Division's denial of interest as to the item of $250,000. This action was consistently adopted by the trial court when it excused plaintiff from the payment of interest on the $39,080.43 advanced by Kahn to plaintiff to aid the latter and his wife meet their personal income tax obligations.
Plaintiff contends that interest should have been allowed on the $250,000, at least from the time when he demanded an *351 accounting. However, the ownership of the scrap which was sold and yielded this sum was seriously in dispute. The Camden Forge plant had been purchased for $500,000. Of this price, only $5,000 was contributed by the joint venture, of which only $1,250 was put up by plaintiff. Kahn arranged a loan from Consolidated Products Co. for the other $495,000. It was not until the rights of the parties were finally established and an account stated that the issue of the $250,000 was resolved. We find no error or abuse of discretion in the trial court's withholding of interest on the sum under all of the circumstances herein. See Midler v. Heinowitz, 10 N.J. 123, 130 (1952), upholding the trial court's discretionary power to disallow interest in an accounting between parties to a joint venture.
III.
Besides the $250,000 received by Kahn and used for Condenser's needs, representing proceeds derived from the sales of scrap formerly owned by Camden Forge Company, the trial court found that there had been various diversions or misappropriations by Kahn of joint venture funds in the total amount of $181,400.60. The details thereof are fully explained in the comprehensive opinion of the trial court. Interest at 6% was charged against Kahn on each of these items from the times of the respective diversions, as particularly set forth in a schedule made part of the trial court's opinion. Where the diversions extended over stated periods of time, the trial court selected a median date from which the interest was to commence.
We see no merit in plaintiff's contention that Kahn should have been charged compound interest. We find no sound basis for disturbing the trial court's disposition of this phase of the case.
IV.
The trial court denied plaintiff's application for the allowance of counsel fees on the ground that it was precluded by R.R. 4:55-7 from granting the application. Plaintiff contends *352 that this ruling was erroneous because R.R. 4:55-7(b) authorizes the court "in its discretion" to make an allowance of counsel fees "out of a fund in court" and there was such a fund herein.
The trial court carefully considered this contention in its opinion, 83 N.J. Super. 382, and rejected it, holding that there was no "fund in court" within the scope of R.R. 4:55-7(b) under the facts herein. It found that the "services rendered by plaintiff's counsel were to advance the claims of his client and no one else. There can be no clearer case of an adversary proceeding." Id., at p. 387. It added, also at p. 387:
"* * * it is not unfair to saddle the full cost of the counsel fees in this litigation upon plaintiff for the reason that plaintiff is doing no more than merely advancing his own interests."
There is some implication in this last-quoted statement that rejection of plaintiff's application for counsel fees was based upon an exercise of the court's discretion to disallow the application, in addition to its expressed determination that this was not a "fund in court" situation.
Was this a "fund in court" case? The issue is fairly debatable, but we have concluded that the action, to the extent hereafter defined, did present such a case.
We find the facts herein somewhat analogous to those in Sarner v. Sarner, 38 N.J. 463 (1962). In that case, two plaintiffs, each holding a 10% interest in three corporations, brought suit against defendant, who owned the remainder of the stock of the corporations, to recover moneys allegedly due from defendant to the corporations. They also sought a judicial declaration of a partnership interest in a management concern and that defendant be ordered to account to them for profits in that partnership. The trial court ordered defendant to pay approximately $400,000 to the corporations, found that plaintiffs were partners in the management concern, and ordered defendant to account. It also allowed a fee of $25,000 to plaintiffs' counsel.
*353 On appeal, the Supreme Court decided in Sarner that there was a "fund in court" as the result of plaintiffs' action as minority stockholders, and that a counsel fee could be allowed therefrom because plaintiffs' litigation had benefited the three defendant corporations. It found that the affidavit of legal services was not definitive enough, because of "the unique nature of this mixed litigation," to make it possible to pass upon the allowance for services rendered in the derivative action involving the corporations, for which a counsel fee was sought. Apparently, the affidavit of legal services included services in that part of the case "purely personal to plaintiffs," namely, the partnership claim, for which no counsel fee had been sought and for which there was no legal basis for payment out of the corporate treasuries.
So, in the instant case, where the litigation was similarly mixed and much time was devoted to establishing plaintiff's interest in the joint venture such as, which of three signed joint venture agreements was controlling and in plaintiff's unsuccessful contending that Kahn's wife and two daughters were mere "fronts," with no genuine interest in the joint venture, the trial court lacked authority to award counsel fees for legal services relating to those issues.
It is undisputed that a stockholders' derivative action represents a typical controversy for the award of counsel fees under the "fund in court" provision. R.R. 4:55-7(b). Sunset Beach Amusement Corp. v. Belk, 33 N.J. 162, 168 (1960). The trial court apparently felt that a partnership or joint venture accounting action, instituted by one of the partners or joint venturers, in which it was also claimed that one of the parties had misappropriated assets belonging to the common fund, was not in the same category as a stockholders' derivative action. It stated:
"A partnership estate does not constitute a fund in court for the allowance of attorney's fees within the purview of R.R. 4:55-7(b). Schmerer v. Estate of Kirschenbaum, 39 N.J. Super. 475 (App. Div. 1956); Blut v. Katz, 36 N.J. Super. 185 (App. Div. 1955). It logically follows that an accounting action between two joint venturers does not create a `fund in court' within the scope of R.R. *354 4:55-7(b). Midler v. Heinowitz, 6 N.J. Super. 359, 365 (App. Div. 1950), affirmed on other grounds 10 N.J. 123 (1952)." (83 N.J. Super., at p. 386)
Those cases do contain language which tends to support the rule as stated by the trial court. However, that language must be understood in the light of the factual setting of each of those cases.
Schmerer, supra, involved a suit against the estate of a decedent, plaintiff claiming that he and decedent were partners. He sought an accounting and obtained a temporary injunction, restraining disposition of the firm's assets. Decedent's personal representative denied the existence of any partnership between plaintiff and decedent. The trial court ultimately found in defendant's favor and dismissed the complaint. But it allowed plaintiff's attorney a counsel fee on the theory that the restraint had placed a "fund in court." We reversed the allowance of a fee, holding there was no fund in court merely because disposition of the assets had been restrained. Obviously, Schmerer is readily distinguishable from the instant case, because plaintiff there did not establish any interest in the assets and had not recovered any assets for the benefit of a class.
In Blut v. Katz, supra, the executrix of a deceased partner sued the surviving partners for an accounting and was awarded a sum for the value of decedent's interest in the partnership. We held on those facts that the partnership estate was not a fund in court from which a fee could be allowed to the attorneys for plaintiff executrix. That was a straight partnership accounting proceeding. There was no contention that funds were being withheld. The only question was the value of the admitted assets. We stated therein that the mere fact, that, through some proceeding, the fund is subjected to the court's disposition, does not expose it to the allowance of an attorney's fee.
After posing the question as to what cases could subject a fund under the court's disposition to the allowance of a counsel fee, we said in Blut:
*355 "The usual case is one where a party (sometimes a fiduciary or a cestui que trust, but others are comprehended), acting for the benefit of a number of persons, undertakes a judicial proceeding in the interest of the fund, to protect, recover, increase it or adjust rights in it. It is but fair that these persons bear their share of the expense of that proceeding.
Upon this basis, an allowance may be made, under familiar and settled practice, for the protection of the fund through `an accounting' by a fiduciary and a passage of his accounts * * *." (36 N.J. Super., at pp. 188-189)
Plaintiff in Blut v. Katz did not satisfy these last quoted conditions but, as we said therein, "seeks a fee not out of moneys recovered * * * but out of the defendants' shares in the partnership. She has rendered no benefit to the entire partnership estate. She has not attempted to preserve or perform any service for defendants' shares; nor has she in any way, directly or indirectly, acted for defendants' benefit." Id., at pp. 190-191. Obviously, the instant case is factually distinguishable from Blut v. Katz. This was not a mere accounting action. Here, plaintiff succeeded in obtaining a judicial declaration that defendant Kahn held in trust for the benefit of the joint venture assets acquired in Kahn's name alone and withheld from the joint venture. Thus, the trial court might have allowed plaintiff's attorney a counsel fee, in the exercise of its discretion, under the above-quoted test referred to in Blut v. Katz. See, too, Tevander v. Ruysdael, 299 F. 746 (7 Cir. 1924).
In Midler v. Heinowitz, supra, plaintiff sued defendant for an accounting of their joint venture. An accounting was directed. Later, an application by plaintiff for the allowance of counsel fees was disallowed by the trial court. We affirmed that disallowance. Plaintiff did not argue there was a fund in court. Rather, plaintiff contended before our court that, the suit having been commenced in the old Chancery Court in 1943, he was entitled to a counsel fee under the provisions of R.S. 2:29-131, providing for the allowance of counsel fees by the former Court of Chancery, and that this statutory authorization, as further implemented by R.S. 2:16-73, had not *356 been superseded by the rules adopted by the Supreme Court under the 1947 Constitution. We held that Rule 3:54-7 (now R.R. 4:55-7), covering the allowance of counsel fees, effectively superseded R.S. 2:29-131 and that the authority theretofore vested in the Court of Chancery for the granting of counsel fees was now controlled by the afore-mentioned rule. We did so in reliance upon the case of John S. Westervelt's Sons v. Regency, Inc., 3 N.J. 472 (1950), which expressly so held. The issue of counsel fees was not pressed by plaintiff, after certification granted in the Supreme Court. Consequently, the Supreme Court, in affirming the judgment on other grounds, made no mention of the question of counsel fees.
In referring to the instant case as an "adversary proceeding" we are confident that the trial court did not mean to imply that its adversary character per se precluded an allowance of counsel fees. All contested litigation is adversary in nature. Sarner v. Sarner, supra, is a good example thereof. So, too, as Sarner illustrates, the action can be for the benefit of a class even though there be very few in the class. In Sarner there were only three stockholders, consisting of the two plaintiffs, each with a 10% stock interest, and the defendant with the controlling 80% interest. Yet, a counsel fee was held to be allowable for the services rendered in the stockholders' derivative action, whereby the dominant stockholder was required to return $400,000 to the common corporate fund. While the court in Sarner regarded the stockholders' suit as one brought for the benefit of all stockholders, it is quite obvious that the suit was basically for the benefit of the plaintiffs. Defendant Sarner was not actually benefited by being required to return $400,000 to the common fund. But this demonstrates that the pursuit by a plaintiff of his self-interest does not debar him from asking for counsel fees, if the suit is of benefit to a class at the same time.
In the instant case, the trial court found that defendant Kahn was a trustee of the assets acquired from Camden Forge Company and the joint venture was beneficiary of the trust. *357 There seems to have been created a resulting trust, the purchase price having been furnished by one party (the joint venture's $5,000 constituted the initial payment on account) and legal title having been taken in the name of another party (Herman Kahn). Plaintiff's action established that Kahn was such a trustee and forced an accounting by him as trustee. To the extent that Kahn was required to return assets to the trust fund (the Camden Forge plant has been turned over to a court-appointed receiver and sold), the trust fund has been increased and the members of the joint venture excepting, realistically, Kahn himself have been benefited. That Kahn's wife and two daughters have independent interests in the joint venture, and were not "mere fronts" for Kahn, as plaintiff himself contended, was established by the judgment of the Chancery Division and is not challenged on this appeal. So, too, on this trust fund concept, the trial court had the power to award plaintiff a counsel fee for the services rendered in increasing it, despite the opposition of defendant trustee. Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1881); Pollock v. Bowman, 140 N.J. Eq. 417 (E. & A. 1947); Tevander v. Ruysdael, 299 F. 746 (7 Cir. 1924).
Defendants argue that Kahn's alleged misapplication of assets of the joint venture created at most a "constructive trust," which is not a "pure trust" at all, but a fiction of the law, which has been established for want of better terminology, to prevent an unjust enrichment and provide a remedy for restitution. 1 Restatement of the Law of Trusts, p. xi (1935 ed.); 4 Scott on Trusts (2d ed. 1956), § 461, pp. 3100, 3101; Moses v. Moses, 140 N.J. Eq. 575, 579 (E. & A. 1947); Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 122 N.E. 378 (Ct. App. 1919). As noted above, we regard the trust created as having been a "resulting" trust. The legal title was placed in Kahn's name but the property was acquired, at least in part, with funds of the joint venture, and the trial court found that it was intended to be joint venture property placed under Kahn's control as managing trustee. Thus, Kahn was in fact a resulting trustee, and not *358 merely a constructive trustee. His misapplications of the joint venture assets were as trustee. But, even if he were only a constructive trustee, such as a faithless agent, the trust relationship would still exist herein and the trust fund concept would still apply.
In holding that the trial court could have allowed a counsel fee to plaintiff's attorney, we wish to make it clear that we are not deciding that a counsel fee should have been awarded, or that plaintiff's attorney is entitled as of right, under the circumstances of this case, to a counsel fee. Where the case is one involving a "fund in court," the allowance of a counsel fee rests within the "discretion" of the court. R.R. 4:55-7(b). For aught we know, the trial court, upon a reconsideration of the application for counsel fees in the light of our opinion, may in its discretion and for valid reasons decide that no counsel fee should be allowed plaintiff's attorney. The opinion of the trial court on the main issue portrayed plaintiff, as well as defendant Kahn, as unworthy individuals, each with unclean hands. If the trial court in its discretion does allow plaintiff's attorney a counsel fee, the quantum thereof is for the trial court to fix.
V.
The trial court, in denying plaintiff's application for accountant's and appraisers' fees, felt that it was not unfair to make plaintiff bear the expenses of his accountant and appraisers "in prosecuting his individual interests." It was on this same ground that plaintiff in this litigation was "doing no more than merely advancing his own interests" that the application for counsel fees was also denied. The trial court recognized that plaintiff's accountant "labored long and hard to reconstruct the receipts and disbursements of the joint venture." 83 N.J. Super., at p. 387. Nevertheless, acting seemingly in the exercise of its discretion, the trial court rejected the application for allowance of fees for the services rendered by plaintiff's accountant and appraisers.
*359 N.J.S. 22A:2-8 provides that a party may include in his bill of costs, besides the normal statutory allowances, "[s]uch other reasonable and necessary expenses as are taxable according to the course and practice of the court or by express provision of law, or rules of court." The allowance of costs "is ordinarily discretionary with the court in the particular case." United States Pipe & Foundry Co. v. United Steelworkers of America, 37 N.J. 343, 355 (1962). The trial court distinguished the instant case from Sarner v. Sarner, supra, on the grounds that Sarner involved a court-appointed accountant and was in part a stockholders' derivative suit. True, the accountant and appraisers herein were not court-appointed, but served merely as aides to plaintiff. Reference was also made to Cintas v. American Car & Foundry Co., 133 N.J. Eq. 301, 304 (Ch. 1943), affirmed and modified on other grounds 135 N.J. Eq. 305 (E. & A. 1944), but the trial court found that case distinguishable because it was "a typical class action." 83 N.J. Super., at p. 388.
Here, too, the trial court may, upon our remand, very well adhere to its previous exercise of discretion and, perhaps, for good reason deny again plaintiff's application for payment of fees to his accountant and appraisers. But, in the light of our views expressed above anent Sarner, in relation to the question of counsel fees, the trial court will also reconsider on the remand the matter of accountant's and appraisers' fees. We reiterate that our remand does not imply that the trial court should exercise its discretion one way or the other.
VI.
We have considered the many claims of error advanced by defendants for a reversal of the judgment, including the numerous pretrial and trial rulings particularized in their comprehensive briefs. We find no sound basis in any of them for disturbing the judgment of the Chancery Division. The parties have stipulated that the fact findings of Judge Mintz are correct for the purpose of the appeal and cross-appeal. We are *360 satisfied that the conclusions drawn therefrom are logically and legally sound.
VII.
We turn now to Condenser's appeal, in which it challenges the propriety of the order of the trial court, made on March 30, 1962, denying its motion to intervene.
Condenser did not appeal from that order or take any other action seeking a legal review of it until June 12, 1964, more than two years later, when it joined in the cross-appeal of the defendants. Plaintiff contends that Condenser's appeal was from a final order of the court, is patently out of time, not having been taken within 45 days after entry of the order, as required by R.R. 1:3-1(b) and R.R. 2:3, and should be dismissed for lack of timeliness.
While there is some authority indicating that an order granting intervention is interlocutory, Mueller v. Eucenham, 33 N.J. Super. 156, 161 (App. Div. 1954); Looman Realty Corp. v. Broad St. Nat. Bank of Trenton, 74 N.J. Super. 71, 78 (App. Div. 1962), certification denied 37 N.J. 520 (1962), an order denying intervention has been deemed to be final. State by McLean v. Lanza, 60 N.J. Super. 130, 136 (App. Div. 1959), certification denied without prejudice May 25, 1959, affirmed 39 N.J. 595 (1963); Brotherhood of Railroad Trainmen v. B. & O.R.R. Co., 331 U.S. 519, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947). In Dickinson v. Petroleum Conversion Corporation, 338 U.S. 507, 513, 70 S.Ct. 322, 325, 94 L.Ed. 299 (1950), the court said: "We have held that an order denying intervention to a person having an absolute right to intervene is final and appealable." See also 6 Moore, Federal Practice, pp. 255-257 (1953); 5 op. cit., at pp. 35 et seq. A distinction is drawn in the federal cases between intervention as a matter of right and permissive intervention. In this connection, Moore says:
"* * * an order denying intervention where the right is absolute is final; an order denying permissive intervention, although rejecting a claimed procedural right with finality, would ordinarily be non-appealable *361 because of the discretionary nature of the denial." (at pp. 256-257)
We find it unnecessary to decide whether that distinction should be made under our practice. Condenser sought intervention as of right and permissive intervention. R.R. 4:37-1; R.R. 4:37-3. The denial of intervention as of right certainly was final and appealable as of March 30, 1962, when the order of denial was entered. Appeal therefrom was clearly out of time and we have no power to extend that time beyond the permissive 30 days allowed by R.R. 1:27B. Insofar as the order denied permissive intervention, if the appeal therefrom is not also out of time, we find that the trial court acted within its sound discretion in denying such intervention because of Condenser's long delay in seeking intervention and the further delays which would probably have resulted, if intervention had been allowed, from Condenser's introduction into the case of additional issues, thus making complex litigation more complicated.
Even were we to assume that Condenser's appeal is within time, it has made no showing on this appeal that it has been prejudiced by the order denying intervention. We are not advised of any evidence which Condenser could have introduced on the issues before the trial court which Kahn, its sole owner, did not introduce or could not have introduced. The same attorney represented both Kahn and Condenser.
Condenser has an action pending in the Chancery Division against Grober which, as we understand, involves issues other than those decided by Judge Mintz in the Chancery Division. In our determination that Condenser's appeal from the order denying intervention is out of time and, even if it were within time, no prejudice to Condenser has been shown by Condenser by reason of that order, we make no determination as to the effect upon Condenser of the judgment against Kahn, individually. Condenser was denied intervention in the instant suit and was not a party thereto. Whether it is bound by res adjudicata or collateral estoppel, we do not deem necessary to decide herein.
*362 The case is remanded to the Chancery Division for a reconsideration of the issues of counsel fees, as well as accountant's and appraisers' fees. The judgment and orders under review are in all other respects affirmed. We do not retain jurisdiction. No costs or counsel fees are allowed to any party on this appeal as against any other party. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1973022/ | 47 Md. App. 590 (1981)
425 A.2d 227
LAWRENCE WILBUR HALL
v.
STATE OF MARYLAND.
No. 549, September Term, 1980.
Court of Special Appeals of Maryland.
Decided February 5, 1981.
The cause was submitted on briefs to MORTON, THOMPSON and MOORE, JJ.
Submitted by Gilbert H. Robinette, Assigned Public Defender, for appellant.
Submitted by Stephen H. Sachs, Attorney General, Patricia E. McDonald, Assistant Attorney General, Andrew L. Sonner, State's Attorney for Montgomery County, and Barry A. Hamilton, Assistant State's Attorney for Montgomery County, for appellee.
*591 THOMPSON, J., delivered the opinion of the Court.
Lawrence Wilbur Hall, the appellant, was convicted by the Montgomery County Circuit Court of carrying a handgun, but the jury was unable to reach a verdict on the other counts of the indictment. A presentence investigation was ordered and the appellant was sentenced. Subsequently, he was retried on those charges upon which the first jury had been unable to agree and was convicted of assault with intent to rob and use of a handgun in the commission of a felony. This appeal is from the judgments entered at the second trial.
FACTS
On March 6, 1979, Willard and Lorraine Sheppard, along with their son, Stanley, were present in their Bethesda jewelry store, when, at about 11:15 a.m., a well-dressed black man came to the door. The door, which was equipped with a lock operated by means of a buzzer, was opened by Stanley Sheppard and the man entered the store. Once inside, the man produced a pistol and announced: "This is a holdup." Seconds later, another black man, identified at trial as the appellant, walked up to the door and stood there, looking in. The man inside the store, while pointing his weapon at the Sheppards, backed towards the door and attempted unsuccessfully to open it. He then demanded that the Sheppards press the buzzer to release the lock and admit the appellant; the Sheppards refused. Apparently while the gunman was distracted by his attempt to open the door, Stanley Sheppard escaped to the basement beneath the store. Willard Sheppard then seized a pistol which was hidden in a cabinet and fled towards the basement. As he did so, the man inside the store fired his pistol, wounding Mr. Sheppard in the back. Mrs. Sheppard then pressed the buzzer, releasing the lock and the gunman went out the front door. Mrs. Sheppard testified that the gunman, after stepping outside, paused for a moment with the appellant, *592 who had remained standing at the door throughout the incident. The two then turned and walked in opposite directions.
Willard and Stanley Sheppard emerged from the basement and went in search of the robbers. Approximately a block away, they observed the appellant standing near a bus stop. Stanley Sheppard flagged down a policeman and directed his attention to the appellant, who was at that time attempting to enter a taxicab. The policeman approached the appellant, ordered him to put his hands on top of the cab, and frisked him. The appellant was carrying an empty briefcase and had a fully loaded revolver in the pocket of his coat. His alleged accomplice in the robbery, the man who entered the store and shot Mr. Sheppard, was neither apprehended nor identified.
The appellant testified, admitting glancing into the jewelry store but stating that he moved on after three or four seconds. He stated that he was not aware that a robbery was in progress, although he saw the robber standing inside. He denied seeing anyone come out of the store. He claimed he was attempting to catch a cab to return to his home in downtown Washington when he was arrested. He stated that he was in Bethesda on the day of the robbery in order to look for a new job and that he carried the empty briefcase to make a better impresson on prospective employers. He had previously been convicted for receiving stolen property as a result of an unrelated incident.
Of crucial importance was the testimony which the appellant offered to explain why he was carrying a handgun at the time of his arrest. He claimed that he was employed as a night delivery man for a downtown pizza shop and that, during the course of his employment, he had been robbed on several occasions. He claimed that he carried the weapon while on his job for his protection and that he was carrying the gun at the time of his arrest because he had neglected to remove it from his coat pocket after working the previous night. On cross-examination, the appellant was asked whether he recalled a conversation which he had had with one Louis Monk on December 18, 1979. Initially, the appellant indicated that he did not; he then stated that he recalled *593 the conversation but did not know the name of the man he had talked to. He was asked specifically whether he had told Monk that he had been unemployed for two months prior to his arrest; he answered that the had not. The court was advised during a bench conference that Louis Monk was the probation officer who had conducted the presentence investigation following appellant's conviction at the first trial and that Monk would testify that the appellant had made a statement, during the presentence investigation, concerning his employment history which conflicted with his testimony at trial. The state was permitted to call Mr. Monk in rebuttal and question him concerning the inconsistency. He testified that the appellant had told him that he, the appellant, had been unemployed from January through April, 1979. Although the presentence report was not entered into evidence, Mr. Monk, during the course of his testimony, made the statement: "[T]his is straight from the presentence investigation."
I Admission of Monk's Testimony
Appellant's first contention is constitutional in nature. He argues that permitting the state to impeach his testimony with statements he made to the probation officer conducting the presentence investigation violated his Sixth Amendment right to the assistance of counsel.
In Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), where the "Court first applied the Sixth Amendment to post indictment communications between the accused and agents of the government," United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 2186, 165 L. Ed. 2d 115 (1980), it was held that "the petitioner was denied the basic protections of [the Sixth Amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel." 377 U.S. at 206. In Massiah, the petitioner's co-defendant, who had secretly agreed to cooperate with the government in its investigation, permitted a *594 government agent to install a listening device in his car. By means of this device, the agent was able to listen to a conversation between the petitioner, who had been indicted and released on bail, and the co-defendant in which the petitioner made a number of incriminating statements. The agent testified concerning these statements at petitioner's trial.[1]
In Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), the Court held inadmissible a confession extracted from a suspect who requested and was denied the opportunity to consult with his attorney during a police interrogation. The Court held "that when the process shifts from investigatory to accusatory when its focus is on the accused and its purpose is to elicit a confession our adversary system begins to operate, and under the circumstances here, the accused must be permitted to consult with his lawyer." 378 U.S. at 492.
In Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977), the facts of which were held to be "constitutionally indistinguishable from those presented in Massiah ...," 430 U.S. at 400, the Court again found a violation of a prisoner's Sixth Amendment right to counsel. There, Williams, while under arrest and being transported by police, led police to the location where he had left his victim's body, as well as to the locations where he claimed to have abandoned various pieces of evidence. The court found that he did so in response to a police detective's now famous "Christian burial speech," which was "tantamount to interrogation." 430 U.S. at 400. This interrogation was carried out while Williams was alone in the police vehicle with two police officers, at a time when Williams had retained counsel and when the officers had agreed that they would ask Williams no questions during the drive. The Court found that the policeman "deliberately and designedly set out to elicit information from Williams ... [;]... he purposely sought during Williams' isolation from his lawyers *595 to obtain as much incriminating information as possible." (emphasis added). 430 U.S. at 399.
Most recently, in United States v. Henry, supra, the Court considered whether Henry's Sixth Amendment right to the assistance of counsel was violated by the admission at his trial of incriminating statements which he had made, after indictment and while in custody, to a fellow prisoner, an undisclosed government informant. The Court viewed the question before it as "whether under the facts of this case, a government agent `deliberately elicited' incriminating statements from Henry within the meaning of Massiah." 447 U.S. at 270, 100 S.Ct. at 2186. In its consideration of this question, the Court rejected the government's contention that Brewer had in some way modified the "deliberately elicited" test set forth in Massiah. 447 U.S. at 271, 100 S. Ct. at 2187. See also, Rhode Island v. Innis, 446 U.S. 291 at 300 n. 4, 100 S. Ct. 1682, at 1689 n. 4, 64 L. Ed. 2d 297 (1980). The majority concluded: "By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the government violated Henry's Sixth Amendment right to counsel." (footnote omitted). 447 U.S. at 274, 100 S.Ct. at 2189.[2]
These decisions of the Supreme Court of the United States rest upon a common foundation: in each there was deliberate elicitation by the government of incriminating statements from a defendant who was either under indictment or in custody, at a time when the defendant had been in some manner separated from his counsel. In each instance, the defendant was induced to make a statement which the government sought for the specific purpose of convicting him of the crime for which he was then either under indictment or in custody. It is this conduct which the Supreme Court has held to be prohibited by the Sixth Amendment. See, United *596 States v. Garcia, 377 F.2d 321, 324 (2d Cir.), cert. denied, 389 U.S. 991 (1967) ("Massiah ... only protects against deliberate efforts of law enforcement agents which are specifically aimed at eliciting incriminating statements relative to the crime under indictment.") The government's intent is crucial.
In the case at bar, the trial court, in overruling the appellant's objection to the introduction of Monk's testimony, made the following observation: "[T]he question [i.e., Monk's question concerning the appellant's employment history] was not asked for the purpose of obtaining information for use in this case.... [T]he State did not undertake any subterfuge, did not intentionally act to deprive the defendant of his right to counsel...." We concur in this analysis and find that it distinguishes the instant case from those decisions which we discussed above. Here, there was no deliberate elicitation of incriminating information; the state's purpose in conducting the presentence investigation was not to accumulate evidence for use at the appellant's second trial. We note that there is no reason to believe that Monk, at the time he conducted the presentence investigation, was even aware that the appellant would be retried. There is no basis for concluding that Monk should have expected to obtain incriminating information in the course of the investigation. Cf., Rhode Island v. Innis, supra. (Fifth Amendment challenge to admission of incriminating statement on facts similar to those in Brewer; statements held admissible: "[T]he respondent was not subjected by the police to words or actions that the police should have known were reasonably likely to elicit an incriminating response from him." 446 U.S. at 303, 100 S.Ct. at 1691). There is no evidence which suggests that the state contrived to separate the appellant and his counsel or to conduct the interview at a time when appellant's counsel was not present. The record reflects that appellant's counsel was well aware of the interview; there is at least one reference which indicates that counsel may have taken him to the interview.[3] We find *597 no basis here for concluding that the state, through Monk, deliberately elicited incriminating information from the appellant. We therefore hold that the introduction of Monk's testimony did not violate appellant's Sixth Amendment right to have the assistance of counsel.[4]
*598 The appellant also contends that "his Fifth Amendment right to remain silent was violated due to the judicial compulsion to speak to Monk...." He cites no authority which supports this proposition and we know of none. We find no basis in the record for a claim that the appellant's statement was in any sense "compelled." Cf., Hoffa v. United States, 385 U.S. 293, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966).
II Motion for Mistrial
Following Mr. Monk's reference, during the course of his testimony to "the pre-sentence investigation," appellant moved for a mistrial. His second contention is that the court below erred in refusing to grant his motion. Prior to placing Monk on the stand, the State's Attorney stated that he intended to have Monk testify without revealing to the jury that the appellant had made the contradictory statement during the course of a presentence investigation. His purpose in so doing was to insure that the jury not learn of the appellant's prior conviction for carrying a handgun. The court sanctioned this procedure and overruled the appellant's objection to the proffered testimony. Although the State's Attorney had instructed the witness to pay careful attention to his questions and to answer only the precise question asked, he had scarcely begun to examine Monk when the following occurred:
"Q. And, what did he tell you about his employment during those two years?
A. Okay. From this again this is straight from the pre-sentence investigation. From 1976 to 1978 "
The appellant immediately moved for a mistrial. The court responded:
*599 "The Court: The Motion will be denied. It is just not it is the whole setting and the context of the case, particularly where the defendant has been on the stand and asked about his prior record, and the only prior record he has that was gone into had to do with receiving of a ... [stolen bicycle].
Mr. Hamilton: In 1977.
The Court: For all they [the jury] know, somebody does a pre-sentence investigation report when a man is charged before he goes to trial."
In Wilhelm v. State, 272 Md. 404, 429, 326 A.2d 707 (1974), the Court said:
"A request for a mistrial in a criminal case is addressed to the sound discretion of the trial court and the exercise of its discretion, in a case involving a question of prejudice which might infringe upon the right of the defendant to a fair trial, is reviewable on appeal to determine whether or not there has been an abuse of that discretion by the trial court in denying the mistrial. [citation omitted]. The decision by the trial court in the exercise of its discretion denying a mistrial will not be reversed on appeal unless it is clear that there has been prejudice to the defendant."
As we stated in Johnson v. State, 18 Md. App. 571, 575, 308 A.2d 426, cert. denied, 270 Md. 740 (1973): "We must give consideration to the fact that the lower court in the trial setting is in a much better position to assess the prejudicial effect, if any, of the occurrence prompting the motion." See also, Wilhelm v. State, supra at 429:
("[R]ecognition must be given to the fact that the trial judge, who presides in the arena where the forensic adversaries are engaged, is in the best position to evaluate and assess in the context in which the remarks are made and their relationship to other factors in the trial whether they were in fact prejudicial.")
*600 In the case at bar, the trial court determined that, in the context in which it was made, the witnesses' reference to "the pre-sentence investigation" was not prejudicial and was, in all likelihood, considered by the jury to be meaningless. We agree that there was no prejudice to the appellant and therefore find no abuse of discretion in the denial of appellant's motion for a mistrial.
III Sufficiency of the Evidence
The appellant's final contention is that the evidence adduced at his trial was insufficient to sustain his conviction. "The test of the sufficiency of the evidence has been established as being whether the evidence either shows directly, or supports a rational inference of, the facts to be proved, from which the trier of fact could fairly be convinced beyond a reasonable doubt, of the defendant's guilt of the offense charged." Metz v. State, 9 Md. App. 15, 20, 262 A.2d 331 (1970). In the instant case, the appellant was identified as the man who came to the front door of the jewelry store and stood there for perhaps a minute or more while the robber inside the store, with gun in hand, attempted to open the door to admit him. After the wounding of Mr. Sheppard, the gunman and the appellant stood together outside the store for a moment or two, as if conferring. He and the gunman then fled the scene of the crime. When the appellant was arrested, he was carrying an empty briefcase and a loaded revolver. His explanation for carrying the revolver, i.e., that he had neglected to remove it from his coat after work, was impeached by his prior statement to Mr. Monk that he was unemployed prior to and at the time of the attempted robbery. If the jury chose to believe Monk's testimony, then the appellant's false testimony at trial could be considered by the jury as evidence of scienter, or guilty knowledge. See, King v. State, 201 Md. 303, 309, 93 A.2d 556 (1953); Hayette v. State, 199 Md. 140, 145, 85 A.2d 790 (1952); Marini v. State, 30 Md. App. 19, 30, 351 A.2d 463, cert. denied, 277 Md. 739 (1976); Carter v. State, 10 Md. App. *601 50, 55, 267 A.2d 743 (1970). The evidence presented, particularly the victims' testimony concerning the appellant's appearance and behavior outside the jewelry store door, established considerably more than his mere presence at the scene of the crime. Cf., In Re Appeal No. 504, 24 Md. App. 715, 725, 332 A.2d 698 (1975); Woodard v. State, 16 Md. App. 300, 304, 295 A.2d 789 (1972). We hold there was sufficient evidence for the jury to rationally infer the appellant's criminal intent.
Judgments affirmed.
Appellant to pay the costs.
NOTES
[1] For further discussion of Massiah v. United States, see State v. Blizzard, 278 Md. 556, 366 A.2d 1026 (1976).
[2] Cf., Leuschner v. State, 41 Md. App. 423, 397 A.2d 622, cert. denied, 285 Md. 731, cert. denied, 444 U.S. 933 (1979) (undercover police officer, posing as a wanted criminal, placed in defendant's jail cell to listen for incriminating admissions; held: no violation of defendant's Sixth Amendment rights where officer testified that he asked defendant no questions and that defendant's statements were "volunteered.")
[3] While the jury was out of the courtroom, defense counsel stated: "[I]t never occurred to me that when I took him up to the Department of Parole and Probation, and when he went himself, that this was going to be occurring."
[4] In determining that Monk's testimony was admissible, the trial court relied upon Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975), and Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), which hold that evidence which, under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), is inadmissible in the government's case in chief as substantive evidence of guilt, may nevertheless be used for impeachment purposes when the accused takes the stand.
In Hass, the Supreme Court stated:
"This case presents a variation of the fact situation encountered by the Court in Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971): When a suspect, who is in the custody of a state police officer, has been given full Miranda warnings and accepts them, and then later states that he would like to telephone a lawyer but is told that this cannot be done until the officer and the suspect reach the station, and the suspect then provides inculpatory information, is that information admissible in evidence solely for impeachment purposes after the suspect has taken the stand and testified contrarily to the inculpatory information, or is it inadmissible under the Fifth and Fourteenth Amendments?" (footnote omitted). 420 U.S. at 714-15.
"As in Harris, it does not follow from Miranda that evidence inadmissible against Hass in the prosecution's case in chief is barred for all purposes, always provided that `the trustworthiness of the evidence satisfies legal standards.' 401 U.S., at 224, 91 S.Ct., at 645. Again, the impeaching material would provide valuable aid to the jury in assessing the defendant's credibility; again, `the benefits of this process should not be lost.' id., at 225, 91 S. Ct., at 645; and again, making the deterrent-effect assumption, there is sufficient deterrence when the evidence in question is made unavailable to the prosecution in its case in chief. If all this sufficed for the result in Harris, it supports and demands a like result in Hass' case. Here, too, the shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances." 420 U.S. at 722.
The principles set forth in Harris and Hass, that evidence otherwise inadmissible under the Fifth Amendment may be used for impeachment purposes, has also been applied by the Supreme Court to evidence otherwise inadmissible under the Fourth Amendment. See, United States v. Havens, 446 U.S. 620, 100 S. Ct. 1912, 64 L. Ed. 2d 559 (1980); Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954).
In all of these cases the trial judge had given an instruction limiting the use of the testimony to impeachment purposes. It would appear that the same reasoning which was applied to admit the impeaching evidence would also permit its use as substantive evidence if that question had been before the Court in those cases, assuming of course, the accused first denied having made the statements. We need not and do not rest our decision on this basis. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1236735/ | 205 Ga. App. 754 (1992)
424 S.E.2d 39
HYDE
v.
THE STATE.
A92A1245.
Court of Appeals of Georgia.
Decided October 8, 1992.
J. Russell Jackson, for appellant.
Garry T. Moss, District Attorney, A. Rebekah Teal, Assistant District Attorney, for appellee.
CARLEY, Presiding Judge.
After a jury trial, appellant was found guilty of driving under the influence and of felony operation of a motor vehicle notwithstanding the revocation of his license as an habitual violator. He appeals from the judgments of conviction and sentences entered on the jury's guilty verdicts.
1. Appellant enumerates as error the denial of his motion for a directed verdict of acquittal as to the felony habitual violator charge.
"[I]t shall be unlawful for any person to operate any motor vehicle in this state after such person has received notice that his driver's license has been revoked as provided in subsection (b) of [OCGA § 40-5-58], if such person has not thereafter obtained a valid driver's license." (Emphasis supplied.) OCGA § 40-5-58 (c) (1). Notice to the habitual violator is an essential element of the offense. "It is driving a vehicle after receiving notice that one's license has been revoked as *755 [an] habitual violator that is prohibited by [OCGA § 40-5-58 (c) (1)]. [Cit.] Thus, it is notice of one's status as a non-licensed habitual violator, not the driving record underlying that status, zzzthat is an `essential element' of [OCGA § 40-5-58 (c) (1)]." (Emphasis in original.) Hester v. State, 159 Ga. App. 642, 644 (2) (284 SE2d 659) (1981).
The date upon which the requisite notice was given to the habitual violator is relevant to whether his subsequent act of driving is punishable as a felony or a misdemeanor. A non-licensed habitual violator who drives within five years of notification of his status as such is punishable for a felony, whereas a non-licensed habitual violator who drives more than five years after the notification of his status as such is punishable for a misdemeanor. OCGA § 40-5-58 (c) (1).
In the instant case, the State adduced sufficient evidence to authorize a finding that, in August of 1991, appellant drove a motor vehicle without a valid driver's license. Accordingly, to demonstrate that this act was punishable as a felony the State was further required to show that appellant had been notified of his habitual violator status within five years of August 1991. The State did not do so. The State's evidence showed only that, pursuant to certified mail with return receipt requested, appellant had been notified of his habitual violator status in July of 1983. This evidence would authorize a finding that appellant was guilty of a misdemeanor violation of OCGA § 40-5-58 (c) (1), but it would not authorize a finding that he was guilty of a felony violation of that statute. See Connelly v. State, 181 Ga. App. 261 (351 SE2d 702) (1986).
The State did show that, in 1989 and again in 1990, the Department of Public Safety issued additional official declarations of appellant's renewed status as an habitual violator. If the State had further shown that notice of these declarations had ever been given to appellant pursuant to any of the methods authorized by OCGA § 40-5-58 (b), his instant act of driving without a license within five years thereof would be punishable as a felony. However, the State showed only the issuance of these declarations in 1989 and 1990, not that appellant had ever been given the requisite notification of their issuance. In the absence of any evidence that notification was given to appellant, the mere existence of the 1989 and 1990 declarations would not authorize a finding that he had committed any violation of OCGA § 40-5-58 (c) (1) in August of 1991 and those declarations would, therefore, be totally irrelevant in the instant case. "[I]t is important to note that in a prosecution under [OCGA § 40-5-58 (c) (1)], the [S]tate has the burden of proving that the defendant was given notice of revocation of his driver's license because of his having been declared [an] habitual violator. [Cit.]" (Emphasis supplied.) Smith v. State, 248 Ga. 828, 831 (3) (286 SE2d 709) (1982).
The State urges that there is evidence that appellant had actual *756 knowledge of his status as an habitual violator during the five years preceding August 1991. However, appellant's knowledge of his mere status as an habitual violator is irrelevant. It is the official declaration of appellant's status as an habitual violator that is the material issue. There is no evidence that appellant had actual knowledge that he had been redeclared an habitual violator at any point in time subsequent to July 1983. Compare Waits v. State, 194 Ga. App. 284 (390 SE2d 296) (1990); Cooper v. State, 156 Ga. App. 108 (274 SE2d 112) (1980).
Likewise, the State's reliance upon OCGA § 40-5-60 is misplaced. That statute provides: "All revocations and suspensions provided for in this chapter shall be effective on the day the driver receives actual knowledge or legal notice thereof, whichever occurs first. Notice of suspension by operation of law shall be considered legal notice." (Emphasis supplied.) What is relevant in the instant case is the suspension of appellant's license based upon his status as an habitual violator. Compare Hale v. State, 188 Ga. App. 524 (1) (373 SE2d 250) (1988). There is no statutory provision authorizing notice by operation of law of suspension as an habitual violator. Compare Hale v. State, supra. OCGA § 40-5-58 (b) provides the methods for the giving of notice of suspension on that basis. As discussed above, the State's evidence that appellant had been given notice pursuant to OCGA § 40-5-58 (b) in July 1983 would authorize only a finding that appellant's act of driving without a license in August 1991 was a misdemeanor violation of OCGA § 40-5-58 (c) (1). Therefore, it was error to deny appellant's motion for a directed verdict of acquittal as to a felony violation of OCGA § 40-5-58 (c) (1) in the absence of any evidence that he had been notified of his renewed status as an habitual violator within the five years preceding August 1991.
2. Appellant enumerates as error the admission of evidence of his prior convictions in 1989 for driving under the influence, driving notwithstanding the revocation of his license as an habitual violator, and attempting to elude a police officer.
The State's evidence in the instant case showed the following: A motorist was being followed too closely by another vehicle and, on two occasions, was actually bumped by the following vehicle. An officer on patrol passed the two vehicles and noted that only the distance of one foot appeared to separate them. The officer decided to investigate and turned his patrol car around, but did not activate the blue lights or siren. As the officer was approaching the two vehicles, the driver of the lead vehicle pulled to the side of the road and motioned the officer to do likewise. Responding to the motioning of the driver of the lead vehicle, the officer pulled to the side of the road, but the following vehicle continued on. When the driver of the lead vehicle told the officer that he had been bumped twice, the officer began his search for the following vehicle and radioed for assistance. *757 Within a matter of minutes, the vehicle was discovered being driven away from appellant's wife's place of employment. At that time, appellant's wife was driving and appellant, who was intoxicated, occupied the passenger seat. Appellant denied that he had previously driven the vehicle. Despite the fact that the officer positively identified appellant as the previous driver of the following car and had seen no other occupant, appellant contended that he had been driven to his wife's place of employment by a friend.
The facts underlying the 1989 convictions are similar, but not identical. In 1989, appellant, while driving in a state of intoxication and while an habitual violator, had actually fled from a pursuing officer to avoid arrest. In the instant case, he had not. However, the evidence would nevertheless authorize a finding that appellant had attempted to avoid arrest in the instant case. A jury would be authorized to find that appellant, with actual knowledge that he had struck another vehicle twice and that police officer had stopped to investigate, had continued to drive in violation of OCGA § 40-6-270 (a) and had used the opportunity to have his wife replace him as the driver. There is no requirement that a previous offense be absolutely identical to that which is being prosecuted. McGowan v. State, 198 Ga. App. 575, 577 (2) (402 SE2d 328) (1991). "The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence `may be admitted if it "is substantially relevant for some purpose other than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character. ...'"' [Cit.]" Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989). In the instant case, evidence of appellant's 1989 convictions was admissible to prove his bent of mind and pattern of driving while intoxicated and notwithstanding the revocation of his license as an habitual violator and of attempting to evade arrest upon discovery. See Blane v. State, 195 Ga. App. 504 (1) (393 SE2d 759) (1990).
3. During the course of the trial, appellant made a general request that, if the trial court was "going to allow [the] evidence [of the 1989 crimes] to go into the record," the jury be instructed as to the limited admissibility of that evidence. The trial court responded that it would give such limiting instructions at the conclusion of the trial. Appellant acquiesced in this ruling and made no specific request for contemporaneous limiting instructions. At the conclusion of the trial, the trial court gave limiting instructions in its general jury charge. On appeal, appellant does not suggest that the limiting instructions that were given were not full, fair and complete. Instead, he enumerates as error the failure of the trial court to have given additional contemporaneous limiting instructions.
"It is well recognized that when evidence is admitted for one purpose, *758 as it was in the instant case, it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury. [Cits.]" (Emphasis in original.) Harrell v. State, 241 Ga. 181, 186 (2) (243 SE2d 890) (1978). Appellant made only a general request for limiting instructions, which the trial court obviously did not construe as a specific request for contemporaneous limiting instructions. When the trial court indicated that it would, in fact, give such instructions in its subsequent general charge, appellant did nothing to indicate that the timing, as well as the giving, of such instructions was a material consideration. Accordingly, for all intents and purposes, the trial court complied with the only request that was ever made by appellant. In response to appellant's request, the trial court gave limiting instructions. Under these circumstances, there was no error in the trial court's failure to have given additional contemporaneous limiting instructions. "He who acquiesces at trial is not permitted on appeal to predicate error thereupon. [Cit.]" Causey v. State, 192 Ga. App. 294, 296 (1) (384 SE2d 674) (1989).
4. The judgment of conviction is affirmed as to driving under the influence. The erroneous failure to grant appellant's directed verdict of acquittal as to a felony violation of OCGA § 40-5-58 (c) (1) does not require a retrial. "Because the evidence was clearly sufficient to support a conviction of [misdemeanor violation of OCGA § 40-5-58 (c) (1)], the case is accordingly remanded for resentencing for imposition of misdemeanor punishment. [Cit.]" Connelly v. State, supra at 263. Appellant's remaining enumerations of error relate only to his felony conviction under OCGA § 40-5-58 (c) (1) and are moot by virtue of our remand for misdemeanor sentencing.
Judgment affirmed in part and judgment vacated and case remanded with direction in part. Pope and Johnson, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2636178/ | 195 P.3d 87 (2008)
STATE
v.
WHEELER.
No. 81375-2.
Supreme Court of Washington, Department II.
September 4, 2008.
Disposition of petition for review. Denied. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363131/ | 596 P.2d 496 (1979)
CASINO AIR CHARTER, INC., Gulf Insurance Company, Inc., Estate of Gilbert R. Souza, Mark B. Raymond, M.D., Appellants,
v.
SIERRA PACIFIC POWER COMPANY, a corporation, and the Home Insurance Company, a New Hhampshire corporation, Respondents.
No. 9973.
Supreme Court of Nevada.
June 28, 1979.
*497 Erickson, Thorpe & Swainston, Ltd., William G. Cobb, Reno, and Moore, Clifford, Wolfe, Larson & Trutner, Oakland, Cal., Cyril Viadro, San Francisco, Cal., of counsel, for appellants.
Woodburn, Wedge, Blakey & Jeppson, Reno, and Johnson, Greve, Clifford & Diepenbrock, Sacramento, Cal., for respondents.
OPINION
MANOUKIAN, Justice:
Gilbert R. Souza, a licensed pilot employed by Casino Air Charter, and his passenger, John H. Eichstedt, were killed in an aircraft accident shortly after takeoff on June 30, 1972. The plane, a Cessna 206, owned by appellant, Dr. Mark B. Raymond, was leased to Casino Air for charter flight purposes. The fatal flight had been coordinated by respondent, Sierra Pacific Power, at the request of the federal government in order to provide federal officials, including Eichstedt, from the Bureau of Outdoor Recreation an aerial reconnaissance survey of proposed power line routes into Incline Village, Nevada. Federal approval of the proposed construction was required.
On November 2, 1972, the heirs of Eichstedt brought an action for wrongful death against Sierra Pacific, Cessna Aircraft Corporation, Casino Air and Souza's estate. Sierra filed a motion for summary judgment on the ground that it was not negligent in its dealings with Casino Air and therefore not liable to Eichstedt's survivors. Sierra's motion was granted February 13, 1976, and the Eichstedts' subsequent appeal to this court was dismissed.
Notwithstanding the summary judgment, Souza's estate, Casino Air and Gulf Insurance Company (Casino's insurer) made a demand on Sierra and its insurer (Home) for coverage against any liability which might be imposed upon them in the wrongful death action. Casino Air claims status as an additional insured under the excess liability insurance policy issued by Home to Sierra.
Thereafter, Sierra and Home filed the instant action for declaratory relief, seeking a declaration that the policy provides no coverage to any other party to the wrongful death action. Below, in their motion for summary judgment, respondents successfully argued that none of the appellants are *498 insureds as defined in the policy. In this appeal, appellants seek a reversal of the summary judgment, asserting the trial court erred in its determination that Casino Air is not an insured within the meaning of the policy. Insured is defined in the policy as follows:
The unqualified word "insured," wherever used in this contract, includes not only the Named Insured but also:
* * * * * *
(e) with respect to any automobile or aircraft owned by the Named Insured or hired for use in behalf of the Named Insured, any person while using such automobile or aircraft and any person or organization legally responsible for the use thereof, provided the actual use of the automobile or aircraft is with permission of the named insured. The insurance extended by this subdivision (e), with respect to any person or organization other than the Named Insured, shall not apply
(i) to any person or organization, or to any agent or employee thereof, operating an automobile repair shop, public garage, sales agency, service station, or public parking place, with respect to any occurrence arising out of the operation thereof.
(ii) to any manufacturer of aircraft, engineers or aviation accessories, or any aviation sales or service or repair organization or airport or hangar operation or their respective employees or agents, with respect to any occurrence arising out of the operation thereof.
(iii) with respect to any hired aircraft, to the owner thereof or any employee of such owner.
(Emphasis added.)
The issue before us is whether, for purposes of summary judgment, Casino Air is considered an additional insured under the terms of Sierra's policy. The matter raises a question of law, requiring an interpretation of the liability insurance policy.
Home's policy endorsement extends indemnity coverage for all sums its insured legally may be obligated to pay. As defined in the endorsement, "insured" comprehends Sierra as well as any person who uses or is responsible for the use of an aircraft hired for use in Sierra's behalf. In this connection, the trial judge specifically found that:
[T]he accident involved in this case did not arise out of the use of any hired aircraft, or aircraft hired for use in behalf of Sierra Pacific Power Company ... the aircraft involved was not used with the permission or consent of Sierra Pacific Power Company, and therefore the insurance policy issued by the Home Insurance Company does not afford any coverage to Casino Air Charter, Inc., or to its pilot Gilbert R. Souza, or his estate, or to any other person, organization or entity other than Sierra Pacific Power Company, and that there is no triable issue of fact remaining...
In support of the lower court's determination, respondents maintain the policy unequivocally forecloses an extension of coverage to Casino Air under the facts and circumstances of this case. Gulf and the remaining appellants counter, arguing that the policy provides coverage to a permissive user of an aircraft hired in Sierra's behalf. We are constrained to agree with respondents.
Since it is apparent that Sierra does not own the aircraft in question, our review must focus on whether the plane was "hired." The policy does not define the term. Cf. Indemnity Ins. Co. of No. Amer. v. Pacific Clay Products Co., 13 Cal. App. 3d 304, 91 Cal. Rptr. 452 (1970), where "hired automobile" was defined in policy endorsement as automobile under contract in behalf of or leased to the named insured. In the trial court, the controversy turned on whether control of the aircraft by Sierra was required for a finding that the use was in its behalf. Monolith Portland Cement Co. v. American Home Assur. Co., 273 Cal. App. 2d 115, 78 Cal. Rptr. 113 (1969).
In Fratis v. Fireman's Fund American Ins. Companies, 56 Cal. App. 3d 339, 128 Cal. *499 Rptr. 391 (1976), plaintiff sued and recovered judgment against McClatchy Newspapers for the wrongful death of her husband. At the time of the accident, decedent was working under a commission contract as a subscription solicitor for the McClatchy firm. The contract provided the employee an automobile mileage allowance for travel away from home. Following judgment against McClatchy, plaintiff filed suit against Fireman's Fund claiming status as an additional insured under its policy endorsement extending coverage to any person while using an owned or hired automobile, provided the use was with McClatchy's permission. Hired automobile was defined in relevant part as one "used under contract in behalf of ... the named insured."
In the instant case, there was no hiring of an aircraft. Instead, Sierra contracted for the transportation services of an airplane and a qualified pilot. Sierra neither designated a particular aircraft nor took any part in the preparation of a flight plan. Indeed, Sierra has been judicially exonerated from tort liability arising from its conduct. Clearly, Home's excess liability contract provides no coverage to appellants.
We hold as a matter of law that in the instant factual context, the indemnity contract does not include insurance protection to Casino Air Charter as an additional insured since charter service rather than an aircraft was provided by Casino Air.
We therefore affirm the order granting respondents' summary judgment.
MOWBRAY, C.J., and THOMPSON, GUNDERSON and BATJER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1720413/ | 676 So. 2d 271 (1996)
ALLSTATE INSURANCE COMPANY
v.
CHICAGO INSURANCE COMPANY.
No. 93-CA-00777-SCT.
Supreme Court of Mississippi.
June 20, 1996.
*272 Diane V. Pradat, McCoy Wilkins Stephens & Tipton, Joseph L. McCoy, McCoy Wilkins Firm, Jackson, for Appellant.
William M. Gage, Butler Snow O'Mara Stevens & Cannada, John C. Henegan, Butler Snow, Jackson, for Appellee.
Before PRATHER, P.J., and JAMES L. ROBERTS, Jr. and MILLS, JJ.
MILLS, Justice, for the Court:
Today we are asked to construe two policies with conflicting "other insurance" clauses. In the court below, both parties filed motions for summary judgment. The sole issue was whether Allstate's coverage must first be exhausted before Chicago's coverage can be reached. After hearing the motions, the trial court granted summary judgment in Chicago's favor. The trial court held that: (1) Allstate is solely liable for the first $300,000.00 of any potential verdict against Durastanti and (2) Chicago is solely liable for that portion of any potential verdict that exceeds $300,000.00, subject to Chicago's limit of $1,000,000.00. Aggrieved, Allstate appealed. Finding that our law provides for pro rata contribution, we reverse and remand the lower court's decision.
I.
This action emanates from a wrongful death lawsuit filed against Ronald J. "Joe" Durastanti (Joe) and Joe's Super Discount Drugs (Super Discount), by wrongful death beneficiaries of Vennie Morris. Morris' beneficiaries allege that Joe, in his professional capacity as a pharmacist at Super Discount, negligently dispensed medication to Morris without a prescription from a physician and without consulting a physician, and that such negligence caused Morris' death. The complaint alleges damages in excess of two million *273 dollars against both defendants, Super Discount and Joe.
The pharmacist had two policies of insurance: one through his business and another for himself professionally.
Allstate provided insurance to Super Discount which became effective April 29, 1989. The annual premium provided under that policy was $576.00. The policy contained a "DRUGGISTS' LIABILITY ENDORSEMENT" that provided "[t]he following people and organizations are persons insured under this endorsement: 1. You... [and] 5. Your employees while acting within the course and scope of their employment." Coverage for comprehensive liability was $300,000.00 for each accidental event. Under these provisions Allstate considered itself liable for the defense and coverage of any loss resulting from the wrongful death suit filed on behalf of Vennie Morris.
As common in insurance policies, the Allstate policy contained a series of "other insurance" clauses. The policy stated:
OTHER INSURANCE if there is other insurance collectible for a loss covered under [this policy], [Allstate] will pay the amount of loss that is left after the full amount available after the other insurance has been paid. We will not, however, pay more than the applicable Limits of Liability under this policy.
However, if there is other insurance that specifically applies only in excess of this policy, this policy will be primary to that excess insurance.
(Emphasis added.)
The Chicago Insurance Company (hereinafter, "Chicago") policy insured Ronald "Joe" Durastanti for professional liability as a pharmacist. The pharmacist liability policy provided by Chicago was effective from May 5, 1989, and provided one million dollars coverage for each incident and up to three million dollars aggregate liability under the policy. Its premium was $235.00 annually. The policy provided primary coverage for losses such as the one posed by the wrongful death lawsuit under its professional liability provisions.
The Chicago policy lays out its "other insurance" clauses differently. This clause states:
OTHER INSURANCE. If there is other valid insurance (whether primary, excess, contingent or self-insurance) which may apply against a loss or claim covered by this policy, the insurance provided hereunder shall be deemed excess insurance over and above the applicable limit of all other insurance or self-insurance.
When this insurance is excess, the company shall have no duty under this policy to defend any claim or suit that any other insurer or self-insurer has a duty to defend. If such other insurer or self-insurer refuses to defend such claim or suit, the company shall be entitled to the insured's rights against all other insurers or self-insurers for any defense costs incurred by the company.
When both this insurance and other insurance or self-insurance apply to the loss on the same basis, whether primary, excess or contingent, the company shall not be liable under this policy for a greater proportion of the loss or defense costs than the applicable limit of liability under this policy for such loss bears to the total applicable limit of liability of all valid and collectible insurance against such loss.
The first two clauses are "excess" insurance clauses. The third is a pro rata clause, which splits coverage on a proportional basis between insurers covering the same loss.
To resolve the dispute concerning how coverage would be provided to Joe by Allstate and Chicago in relation to the wrongful death suit, Allstate filed suit for a declaratory judgment on July 29, 1991. Allstate alleged that both policies of insurance covered Joe's defense and potential liability. Allstate further alleged that since the "other insurance" clauses of both Chicago's and Allstate's policies conflicted, the loss should be prorated according to the policies' respective limits of liability. Chicago counterclaimed, alleging, among other things, that its coverage was either "excess" insurance over and above the business insurance coverage limits available to Joe under the Allstate policy. Alternatively, Chicago alleged that the loss to Joe *274 should be pro rated between the insurance policies.
The trial court found Chicago's coverage was in fact "excess" insurance over and above the business insurance coverage available to Joe under the Allstate policy.
II.
WHETHER IT WAS REVERSIBLE ERROR TO ORDER ONE INSURER TO PAY DEFENSE COSTS FOR A CLAIM COVERED BY TWO POLICIES OF INSURANCE WITH CONFLICTING "OTHER INSURANCE" CLAUSES?
The appeal at hand stems from the trial court's granting the declaratory judgment. A declaratory judgment sets out the law and is binding as to the rights of parties. The issue in the declaratory judgment before us dealt with questions of law. It is a well-settled principle that this Court is the "ultimate expositor of the law of this state." UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., 525 So. 2d 746, 754 (Miss. 1987). Therefore, this Court conducts a de novo review on questions of law. Id.; C.E. Tucker v. Hinds County, Mississippi, and Mississippi Power & Light Co., 558 So. 2d 869, 872 (Miss. 1990).
Allstate argues that it was reversible error for the circuit court to order one insurer, Allstate, to bear the defense costs and potential liability for a claim covered by two insurance policies with conflicting "other insurance" clauses. Both Allstate and Chicago issued policies covering Joe Durastanti which cover his costs and potential liability resulting from a wrongful death action. Allstate says both policies must be examined to give full effect to the plain meaning of each and every term with the respective policies.
The central problem posed by this matter is that while both policies cover the claim, each insurer has attempted to limit its respective liability and coordinate its insurance with the other policy. In so doing, both Allstate's and Chicago's "other insurance" clauses come into conflict. Standing alone, each policy would provide primary coverage.
Allstate provides that its policy shall be primary to umbrella policies covering the same loss. The clause is not activated by Chicago's coverage of the claim because Chicago's insurance policy is not an umbrella policy. Chicago's policy, on the other hand contains a "pro rata" clause providing that where there are conflicting "other insurance" clauses, the loss shall be prorated among the insurers.
Thus, Allstate argues that under either present Mississippi law or through giving full effect to Chicago's "pro rata" clause, the defense costs and potential liability of Joe and his business should be prorated between Allstate and Chicago according to their respective limits of liability.
Chicago, on the other hand, argues that this Court must examine the language in the competing "other insurance" clauses to reach its decision. Chicago's "other insurance" clause expressly provides that its coverage is in excess of all other coverage. In contrast, Allstate's "other insurance" clause expressly concedes that its coverage is primary.
Chicago asserts that the facts surrounding the purchase of the Chicago policy support the trial court's ruling. Chicago argues that the only reason Joe purchased the Chicago policy was to increase his liability coverage from $300,000.00 to $1,300,000.00, and that Joe "intended" that the Chicago policy provide coverage only in excess of the Allstate policy. Thus, Allstate's claim that Chicago's coverage is co-primary would be without merit.
Chicago states that because the trial court's ruling does not deprive Joe of any insurance to which he is otherwise entitled, this Court should affirm that ruling. Chicago argues that a decision to the contrary would violate the intentions of the parties as expressed by the terms of their policies.[1]
*275 III.
THE RULE OF REPUGNANCY
Each insurer in the present dispute seeks to shift to the other party its responsibility to the insured.[2] Both parties are, in effect, arguing that "your excess exceeds my excess."
We have previously discussed the issues before us in Travelers Indemnity Co. v. Chappell, 246 So. 2d 498 (Miss. 1971), in which this Court stated:
The view most often accepted is to the effect that when there is a conflict in the policies, escape v. escape, escape v. excess or excess v. excess, "the two policies are indistinguishable in meaning and intent, (and therefore) one cannot rationally choose between them" and must, therefore, be held to be mutually repugnant and must be disregarded.
Id. at 504 (citations omitted).
We hold that the rule of repugnancy is applicable in cases in which "other insurance" clauses or "excessive coverage" clauses conflict. We have long followed the rule that the courts must enforce contracts as they are written, unless such enforcement is contrary to law or public policy. Berry v. Lamar Life Ins. Co., 165 Miss. 405, 142 So. 445 (1932). Syllogistic folly awaits the unwary justice who seeks to harmonize the conflicting terms presented herein using traditional rules of construction. Public policy and common sense must step in when legal jargon fails. Where competing insurance policies each contain conflicting "other insurance" clauses or "excessive coverage" clauses, the clauses shall not be applied and benefits under the policies shall instead be pro rated according to the coverage limits of each policy. We therefore find the conflicting clauses in the instant case to be mutually repugnant and, therefore, reverse the lower court and remand the case for a determination of the pro rata responsibilities of each party to this proceeding. Both parties are to pay one-half of all costs.
REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.
PRATHER and SULLIVAN, P.JJ., and PITTMAN, BANKS, McRAE, JAMES L. ROBERTS, Jr. and SMITH, JJ., concur.
DAN M. LEE, C.J., not participating.
NOTES
[1] The analytical problem posed by the parties in this case has been characterized as a "court's nightmare" and has been compared sarcastically to the "struggles which often ensue when guests attempt to pick up the tab for their dinner companions." Windt, Insurance Claims and Disputes, 2nd ed., § 391, fn. 16 (1988).
[2] It is central to our analysis that each policy, absent the other, would have provided primary coverage. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627773/ | 206 P.3d 467 (2009)
In the Matter of the Petition of J.A.V., Petitioner-Appellee, and
R.S.F., Appellant, and
Concerning N.K.B., a Child.
No. 07CA2169.
Colorado Court of Appeals, Div. I.
March 5, 2009.
Davide C. Migliaccio, Colorado Springs, Colorado; Lynn L. Olney, Colorado Springs, Colorado, for Petitioner-Appellee.
Anne Whalen Gill, LLC, Anne Whalen Gill, Sharlene J. Aitken, Castle Rock, Colorado, for Appellant.
Opinion by Judge TAUBMAN.
R.S.F. (father) appeals from the district court order adopting the magistrate's order that found father abandoned his daughter, N.K.B., and, based on that finding, granting J.A.V.'s petition for stepparent adoption of N.K.B. We reverse and remand.
*468 I. Background
Father and mother are the natural parents of N.K.B., who was born in June 2004. The parties subsequently became involved in three separate cases, the third of which is the stepparent adoption at issue here.
In the first case, in May 2005, father filed a pro se petition for allocation of parental responsibilities. In January 2006, father, then represented by counsel, filed a motion to modify parenting time, a motion for appointment of a child and family investigator (CFI), and a motion to continue a February 2006 hearing. The district court granted the continuance until April 2006, and later granted a continuance requested by mother, scheduling a hearing for September 2006. Shortly before that hearing, mother again moved to continue, this time because the stepparent adoption proceeding had been filed.
The second case was a county court restraining order proceeding filed by mother against father in May 2005. The court, through a magistrate, entered a temporary protection order providing that father was to have no contact with mother or N.K.B. Following a June 2005 permanent protection hearing, the magistrate entered an order providing that father was prohibited from having contact with N.K.B., except for e-mail contact with mother to discuss N.K.B.'s well-being and emergencies.
In October 2005, a second magistrate entered a supplemental order which continued the no-contact order in effect, but apparently also precluded father from having e-mail contact with mother concerning N.K.B.
In the third case, in August 2006, stepfather filed this stepparent adoption proceeding less than three weeks after his marriage to mother. Following a hearing, a third magistrate granted the stepparent adoption in April 2007, and a district court judge different from the one involved in the parental responsibilities case denied father's petition for review of the magistrate's order in September 2007. This appeal followed.
II. Abandonment
Father contends that clear and convincing evidence did not establish that he intentionally abandoned N.K.B., but rather showed that he sought to exercise parental rights and supported her. We agree.
Section 19-5-203(1)(d)(II), C.R.S.2008, provides for a stepparent adoption if, as relevant here, a parent has abandoned the child for at least one year before the petition was filed. Thus, the relevant time period for determining abandonment here is the one-year period between August 2005 and August 2006.
The clear and convincing evidence standard applies to the determination of abandonment in a stepparent adoption proceeding because the adoption involves the fundamental liberty interest of the parent in the relationship with the child. In re I.R.D., 971 P.2d 702, 705 (Colo.App.1998).
Although the statute does not define abandonment, that word has been defined elsewhere as "the relinquishing of a right or interest with the intention of never again claiming it." Black's Law Dictionary 2 (8th ed.2004). In the family law context, it is defined as "the act of leaving a spouse or child willfully and without an intent to return." Id. See also St. Clair v. Faulkner, 305 N.W.2d 441, 447 (Iowa 1981) (court finds no abandonment of daughter by father, relying on similar definition of abandonment in earlier edition of Black's Law Dictionary).
Abandonment is primarily a question of intent. Moreau v. Buchholz, 124 Colo. 302, 309, 236 P.2d 540, 543 (1951). Because the statute does not establish substantive criteria to determine abandonment, the trial court must examine the totality of the circumstances, viewed in light of the best interests of the child. In re J.D.K., 37 P.3d 541, 543 (Colo.App.2001); In re G.D., 775 P.2d 90, 92 (Colo.App.1989). In so doing, the court may not find abandonment unless the totality of the circumstances shows the natural parent has left the child willfully without an intent to return.
This court may reverse a district court order adopting a magistrate's order if a critical finding of the magistrate is clearly erroneous. *469 People in Interest of R.A., 937 P.2d 731, 736 (Colo.1997).
Here, the magistrate found that father "took no actions to pursue this relationship or have access to his daughter in spite of a clear court record that ability to have access to the child was afforded by the Court to [father]." The magistrate supported this conclusion with the following factual findings. She found that a June 2005 permanent protective order gave father permission to e-mail the biological mother, but he never took advantage of this opportunity. In the parental responsibilities case, he also did not request a hearing on his motion to establish parenting time with the child and did not pursue that motion until approximately six months later. The magistrate concluded that even though mother had renewed her permanent protective order in October 2005, "under no circumstances was ... father ever denied the ability to pursue his due process rights and request the establishment of a relationship with his daughter."
In reaching this determination, the magistrate considered the age and development of the child and found the testimony of father not to be credible.
Because some of these critical findings are not supported by the evidence, we conclude that the determination that father abandoned the child cannot stand. See id.
Father was restricted by the June 2005 permanent protective order to contacting mother only through e-mail to inquire about the child. By October 2005, he was precluded from contacting mother at all. Thus, for most of the one-year period prior to the filing of the petition for stepparent adoption, father was under a court order prohibiting any meaningful contact concerning the child.
However, in May 2005, father had filed the petition for allocation of parental responsibilities, which was scheduled for a hearing in February 2006. His counsel also filed a motion to modify parenting time in January 2006. Although father obtained a continuance of the February 2006 hearing and did not object to mother's April 2006 motion to continue, he objected to mother's September 2006 request for another continuance. Over father's objection, the parental responsibilities case was stayed in October 2006.
In ignoring father's efforts to obtain parenting time with his child, the magistrate and the district court erred by not properly applying the definition of abandonment. As noted, abandonment requires leaving a child willfully and without an intent to return. Regardless of whether father might have done more to enforce his rights, the record demonstrates that he did not intend to abandon his rights with respect to his child.
To the extent that the trial court's order in the parental responsibilities case impacted the result in this case, we note that the court there was not required to stay that case pending the outcome of this stepparent adoption proceeding. Had the court not stayed the parental responsibilities case, it could have awarded father parenting time. Had it done so, the magistrate could not have later concluded that father had abandoned his child for a period of one year.
When the parental responsibilities case was scheduled for a hearing in October 2006, the trial court ruled:
Although the Court believes that judicial economy is not served by continuing this matter until [the stepparent adoption petition] has been determined, the Court believes that [the stepparent adoption petition] must be determined before the Court hears the Permanent Orders on Petitioner's Petition for Allocation of Parental Rights and Responsibilities in this matter. The Court's decision is not based [on] its determination relative to the validity of [the stepparent adoption petition], but as a matter of law the Court has determined that [the stepparent adoption petition] must be resolved prior to the Court making permanent determinations regarding parental rights and responsibilities. For this reason, the Court grants [mother's] motion to continue the hearing in this matter.
Further, once the trial court in the parental responsibilities case stayed those proceedings, the magistrate in the stepparent adoption case was not required to act; the magistrate could have disagreed with the trial court in the parental responsibilities *470 case and urged that court to act. See State v. Pena, 911 P.2d 48, 57 (Colo.1996) (district court is without supervisory power over courts of coordinate jurisdiction).
Absent a showing of endangerment, father was entitled to reasonable parenting time with his daughter. See People in Interest of S.E.G., 934 P.2d 920, 921 (Colo.App.1997). Therefore, we conclude that the magistrate erred in deferring to the stay in the parental responsibilities case and proceeding with the stepparent adoption absent a prior resolution of father's motion for parenting time. See § 19-1-104(4), C.R.S.2008 ("[n]othing in this section shall deprive the district court of jurisdiction ... to determine the legal custody of a child ... when the question of legal custody is incidental to the determination of a cause in the district court"); People in Interest of T.R.W., 759 P.2d 768 (Colo.App. 1988) (if a child is not dependent or neglected, the juvenile court cannot retain exclusive jurisdiction or rule on a motion for modification of custody filed under the Uniform Dissolution of Marriage Act); see also In re Adoption by J.J.P., 175 N.J.Super. 420, 419 A.2d 1135 (App.Div.1980) (any adverse emotional consequences possibly related to future contact are purely speculative and outweighed by the ultimate undesirability of permanent destruction of the potential relationship between the child and her biological father).
By acceding to the trial court's stay in the parental responsibilities case, the magistrate effectively determined the outcome of this stepparent adoption proceeding.
Thus, while father could have taken other steps to obtain information about the child or more aggressively pursued parenting time, we conclude under the circumstances here that a determination of abandonment was precluded by the efforts he made in the parental responsibilities case. Cf. In re T.C.H. v. J.M.S., 190 Colo. 246, 248, 545 P.2d 1357, 1359 (1976) (evidence did not support trial court's finding of failure to support without cause, as strict compliance with the stepparent adoption procedure is required because of the harshness of permanently terminating parental rights), disapproved of in part by In re R.H.N., 710 P.2d 482, 486 n. 3 (Colo.1985).
III. Other Contentions
Because of the disposition we have reached, we need not address father's other contentions.
The order terminating father's parental rights is reversed. The case is remanded with instructions for the parties, as ordered in the stay of the parental responsibilities case, to contact the court in that case for priority settings and for father to retain and pay for, subject to later allocation, a CFI prior to the permanent orders hearing in this stepparent adoption proceeding.
Judge ROMÁN and Judge LICHTENSTEIN concur. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627786/ | 206 P.3d 640 (2009)
2009 UT App 73
STATE of Utah, Plaintiff and Appellee,
v.
William Thomas DOMINGUEZ, Defendant and Appellant.
No. 20070865-CA.
Court of Appeals of Utah.
March 19, 2009.
*641 Randall W. Richards, Ogden, for Appellant.
Mark L. Shurtleff, atty. gen., and Jeffrey S. Gray, asst. atty. gen., Salt Lake City, for Appellee.
Before GREENWOOD, P.J., THORNE, Associate P.J., and DAVIS, J.
OPINION
GREENWOOD, Presiding Judge:
¶ 1 Defendant William Thomas Dominguez was convicted of one count of driving under the influence of alcohol or drugs (DUI), a third-degree felony in violation of Utah Code section 41-6a-502, see Utah Code Ann. § 41-6a-502 (2005). He asserts that the evidence against him should have been suppressed, contending that the arresting officer, Trooper Chris Turley, unlawfully obtained a warrant from the magistrate. Specifically, he argues that the magistrate's failure to comply with rule 40 of the Utah Rules of Criminal Procedure violated his Fourth Amendment rights. We agree and reverse.
BACKGROUND
¶ 2 On June 3, 2007, Trooper Turley stopped Defendant in his automobile at approximately 1:00 a.m. Defendant appeared to be racing his car against another car. While speaking to Defendant, Trooper Turley observed "red, bloodshot, glassy looking eyes" and slurred speech. Trooper Turley checked Defendant's driver license and discovered that it had been revoked for alcohol-related offenses. Trooper Turley arrested Defendant and, during the arrest, smelled alcohol on Defendant's breath. Trooper Turley asked Defendant to submit to breathalyzer and field sobriety tests, but Defendant refused.
¶ 3 After taking Defendant to the police station, Trooper Turley prepared a written affidavit in support of a search warrant authorizing a blood draw. He then telephoned Judge Brent West. Judge West placed Trooper Turley under oath, after which the officer told Judge West "the subject's name, the reason for the stop, [and] all of the clues [he] observed." Trooper Turley read significant portions of his written affidavit to Judge West but did not read every line. After hearing Trooper Turley's statement, Judge *642 West directed Trooper Turley to sign the affidavit with his own name and also to sign Judge West's name. Trooper Turley followed these directions. The telephone conference was not otherwise recorded.
¶ 4 Defendant was charged with driving under the influence of alcohol, driving with alcohol in his body with a no-alcohol license, driving on a revoked license, driving a vehicle without proof of insurance, and engaging in a speed contest or exhibition. Defendant filed a motion to suppress evidence, arguing that the warrant had not been obtained according to the proper procedures. Defendant did not challenge the probable cause element. At the hearing on the motion to suppress, Trooper Turley testified, but the magistrate did not. Trooper Turley described his telephone conversation with Judge West but not the circumstances leading to Defendant's arrest. The motion to suppress was denied by the court. Defendant then entered a conditional guilty plea to driving under the influence and driving without proof of insurance. Defendant now appeals.
ISSUES AND STANDARDS OF REVIEW
¶ 5 Defendant asks us to consider whether the trial court erred in denying his motion to suppress evidence obtained as a result of the search warrant. Defendant argues that the telephonic warrant did not comply with rule 40 of the Utah Rules of Criminal Procedure and that this alleged violation merits suppression of the evidence. We examine first whether there was an error and, second, whether the error caused harm sufficient to merit suppressing the evidence. The analysis and required application of this rule is a matter of first impression. We review the trial court's interpretation of a rule of procedure for correctness. See Ostler v. Buhler, 1999 UT 99, ¶ 5, 989 P.2d 1073.
ANALYSIS
I. The Telephonic Warrant Did Not Comply with Rule 40 of the Utah Rules of Criminal Procedure
¶ 6 Defendant argues that the procedure followed by Trooper Turley and the magistrate violated Defendant's Fourth Amendment right to be free from unreasonable searches and seizures, see U.S. Const. amend. IV, asserting that it did not comply with the requirements of rule 40 of the Utah Rules of Criminal Procedure. The relevant part of rule 40 states:
At the time of issuance, the magistrate shall retain and seal a copy of the search warrant, the application and all affidavits or other recorded testimony on which the warrant is based and shall, within a reasonable time, file those sealed documents in court files which are secured against access by the public.
Utah R.Crim. P. 40(i)(1).[1] Defendant contends that, in issuing the warrant telephonically, the magistrate failed to retain, seal, or file the documents, insisting that it must be the magistrate, not the officer, who complies with rule 40's requirements.
¶ 7 Rule 40(i)(1) was implemented in response to recent guidance from the Utah Supreme Court. See id. R. 40(i)(1) Advisory Committee Notes ("(i) Subsection (1) is added in compliance with the order of the Utah Supreme Court in Anderson v. Taylor, 2006 UT 79, 149 P.3d 352 (filed December 5, 2006).").
¶ 8 In Anderson v. Taylor, 2006 UT 79, 149 P.3d 352, the Utah Supreme Court reviewed the Fourth District Court's customary procedures for issuing search warrants. See id. ¶ 1. The Fourth District Court did not retain copies of search warrants or their supporting documentation. See id. ¶ 2. Instead,
after issuing a warrant, the issuing magistrate return[ed] both the warrant and the supporting material to the law enforcement officer seeking the warrant. After the warrant [wa]s executed, the officer deliver[ed] the original warrant, the supporting material, the return, and the inventory of items seized in the search to the magistrate, who then review[ed] it and either fil[ed] it with the court or return[ed] it to *643 law enforcement with a request that law enforcement file it with the court.
Id. ¶ 2. The supreme court invalidated this practice. See id. ¶ 26. We quote liberally:
Giving law enforcement sole custody of all affidavits and warrants up through the point where the warrant has been executed and a return filed is inherently problematic for at least two reasons. First, it leaves the court without any record of the [warrant] or the materials supporting its issuance until after the [warrant] is executed and a return filed. Second, it allows for the possibility that affidavits and other court records may be mishandled or even altered without detection. When the records upon which the magistrate acts in issuing a warrant are handled by persons other than court personnel prior to being filed with the court, the court has no basis for confidence in the accuracy, authenticity, or completeness of those documents. In the matter of warrants for the search and seizure of persons or property, more is required. We accordingly require that magistrates issuing search warrants retain in their custody copies of all search warrants issued, as well as the material supporting search warrant applications, rather than surrendering to law enforcement the only copies of such material.
To ensure the integrity of our court records, we have concluded that the courts of this state must retain copies of all search warrants and supporting material.
Id. ¶¶ 22-23 (emphasis added). The supreme court indicated that it did not have the authority "to prescribe the particular procedures to be followed in maintaining and disclosing' such records" but instructed the appropriate body to do so. Id. ¶ 23. Rule 40(i) was adopted in response and became effective April 30, 2007. See Utah R.Crim. P. 40(i)(1) Advisory Committee Note (i).
¶ 9 The State attempts to distinguish Anderson by pointing out that Anderson did not involve a telephonic warrant and that in the context of a telephone request for a warrant, the court cannot "retain" what it never had. Section (l) of rule 40 allows a peace officer to obtain a search warrant remotely, i.e., telephonically, including entering the magistrate's signature, if so directed by the magistrate. See Utah R.Crim. P. 40(l)(1), (4). That section further states that "[t]he testimony and content of the warrant shall be recorded ... by writing or by mechanical, magnetic, electronic, photographic storage or by other means." Id. R. 40(l)(2). Although the rule does not specify by whom the recording must be made, the State suggests that this can be accomplished by the peace officer. However, subsection (l)(5) requires compliance with section (i): "[t]he warrant and recorded testimony shall be retained by and filed with the court pursuant to Section (i)," id. R. 40(l)(5), which assigns that responsibility to the magistrate, see id. R. 40(i). Subsection (l)(5) was also amended in response to Anderson. Compare id. R. 40(l) (2008) with id. (2006).
¶ 10 Although it is not controlling, the corresponding federal rule offers insight as to how these sections might co-exist. Rule 41(d)(3) of the Federal Rules of Criminal Procedure requires that a magistrate judge, issuing a warrant by telephone, must "make a verbatim record of the conversation with a suitable recording device, if available, or by a court reporter, or in writing." Fed. R.Crim.P. 41(d)(3)(B)(ii). Federal rule 41(e)(3) further requires that the applicant for a search warrant "must prepare a `proposed duplicate original warrant' and must read or otherwise transmit the contents of that document verbatim to the magistrate judge," and "the magistrate judge must enter those contents into an original warrant." Id. R. 41(e)(3)(A), (B).
¶ 11 Because the language at issue was added in direct response to the Utah Supreme Court's desire to ensure "that the issuing court will maintain reliable records of the warrants and the documents supporting them," Anderson, 2006 UT 79, ¶ 26, 149 P.3d 352, and since the federal rules explicitly outline a method whereby this may be accomplished in securing a telephonic warrant, see Fed.R.Crim.P. 41, we conclude that rule 40(i) of the Utah Rules of Criminal Procedure requires the magistrate to make and keep a copy of the search warrant and supporting documents; it is not sufficient for the peace officer alone to retain this information *644 and subsequently supply it to the court. Accordingly, the warrant at issue in this case did not comply with rule 40 of the Utah Rules of Criminal Procedure.
II. Reversible Error
¶ 12 We now consider whether this violation merited suppressing the evidence. Under rule 30 of the Utah Rules of Criminal Procedure, "[a]ny error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded." Utah R.Crim. P. 30(a). Indeed, the State argues that the violation here "constituted nothing more than the failure to perform a ministerial act which did not affect the validity of the search warrant and the search conducted thereunder," see State v. Anderton, 668 P.2d 1258, 1262 (Utah 1983).
¶ 13 Federal circuits applying rule 41(c) of the Federal Rule of Criminal Procedure and state courts applying rules similar to that rule have addressed whether evidence obtained pursuant to warrants issued in violation of federal rule 41(c) should be excluded on a case-by-case basis. For example, in United States v. Rome, 809 F.2d 665 (10th Cir.1987), the peace officer and the magistrate had several telephone conversations during the course of an afternoon and evening. See id. at 666. Only the last of these conversations, the one in which the search warrant was actually issued, was recorded or retained. See id. at 665-66. The Rome court determined that the error was not sufficient to justify excluding the evidence obtained via the search warrant, embracing a standard written by the Ninth Circuit:
"Unless there is a clear constitutional violation, non-compliance with Rule 41 [of the Federal Rules of Criminal Procedure] requires suppression of evidence only where (1) there was `prejudice' in the sense that the search might not have occurred or would not have been so abrasive if the rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the rule."
Id. at 669 (quoting United States v. Stefanson, 648 F.2d 1231, 1235 (9th Cir.1981)). The Rome court determined that "[t]here [was] nothing in the record to suggest that Rome's Fourth Amendment rights were violated [because] [p]robable cause was amply demonstrated in the recorded testimony upon which the search warrant was based." Id. at 670. The court did, however, offer this warning:
We do not condone careless police work and lack of preparation, nor do we hold that the failure to understand the rules governing their conduct will excuse law enforcement officers from compliance therewith. We simply hold that in this case, [the peace officer and magistrate] complied with the spirit, if not the letter, of Rule 41(c)(2).
Id.
¶ 14 Similarly, in United States v. Chaar, 137 F.3d 359 (6th Cir.1998), the Sixth Circuit ruled that a violation of rule 41 of the Federal Rules of Criminal Procedure did not affect the admissibility of evidence. See id. at 365. The court there considered federal rule 41(c)(2)(d), which, at the time, required that the magistrate record a telephone call for a search warrant, either by voice recording, stenographic, or longhand verbatim. See Fed.R.Crim.P. 41(c)(2)(d) (1993) (amended 2002). In that case, a tape recording was made of the telephone conversation in which the magistrate authorized the search warrant, but the tape was subsequently lost. See Chaar, 137 F.3d at 360-61. Nineteen months later, the investigating agent provided an affidavit recalling the facts. Id. at 360 n. 1, 366. In determining that the error did not merit reversal, the Chaar court noted that "there was significant evidence supporting probable cause in this case." Id. at 364. The court relied on United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), for the "good faith exception" to search warrant requirements. See Chaar, 137 F.3d at 364. The Sixth Circuit has summarized Leon as follows:
The exclusionary rule should be modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.
[Leon] noted four specific situations where the good faith reliance exception would not apply: (1) where the supporting affidavit contained knowing or reckless falsity; (2) *645 where the issuing magistrate failed to act in a neutral and detached fashion, and served merely as a rubber stamp for the police; (3) where the supporting affidavit did not provide the magistrate with a substantial basis for determining the existence of probable cause, or in other words, where the warrant application was supported by [nothing] more than a `bare bones' affidavit; and (4) where the officer's reliance on the warrant was neither in good faith nor objectively reasonable.
Id. (emphasis and alterations in original) (quoting United States v. Leake, 998 F.2d 1359, 1366 (6th Cir.1993)). The Sixth Circuit's stated policy was that "`[t]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.' We do not exclude evidence, absent constitutional violations, unless the exclusion furthers the purpose of the exclusionary rule." Id. at 361 (additional citations omitted) (quoting United States v. Leon, 468 U.S. 897, 916, 104 S.Ct. 3405). But see Chaar, 137 F.3d at 366 (Dowd, J., dissenting) (finding the violation "to be more than a mere `technical' violation" because "the only evidence of the conversation presented to the district court at the suppression hearing was the affidavit of the affiant, executed nineteen months after the issuance of the warrant" and there was no testimony whatsoever by the magistrate judge).
¶ 15 By contrast, in State v. Cook, 498 N.W.2d 17 (Minn.1993), the Minnesota Supreme Court excluded evidence based on a violation of the search warrant rule. See id. at 22. Minnesota followed the federal rules for securing telephonic search warrants. See id. at 19. Although the magistrate authorized the warrant by phone, "[the] telephone conversation was not recorded. The officer did not read his statement from a prepared written application or from any notes, nor, apparently, did the judge make any significant notes of what was said over the telephone." Id. at 19. The Minnesota Supreme Court concluded that the warrant was not valid, stating,
The purpose of these procedures is to have a record made contemporaneously with the authorization of the search warrant that will show both probable cause for a search and a reasonable need for the warrant to be issued telephonically, so that later, if need be, there is a basis for challenging the warrant that is not dependent solely on after-the-fact recollections.
Id. at 20. The court affirmed the lower courts' decisions that the evidence must be suppressed. Id. at 18.
¶ 16 Similarly, in Volz v. State, 773 N.E.2d 894 (Ind.Ct.App.2002), the Indiana Court of Appeals invalidated a search warrant that had been recorded on a faulty tape recorder when the recorder did not record the entire conversation. See id. at 896-97. The Indiana statute in effect required that a magistrate issuing a telephonic search warrant "shall record the conversation on audio tape and order the court reporter to type or transcribe the recording for entry in the record." See Ind.Code Ann. § 35-33-5-8(b) (LexisNexis 1990). After learning that their telephone conversation had not been recorded, the peace officer and magistrate testified at a hearing to reconstruct their conversation. See Volz, 773 N.E.2d at 896. The court held this was not sufficient because without a recording, "neither the validity of the warrant nor [the officer's] reasonable belief that the warrant was valid is capable of independent verification through judicial review." Id. at 899. Accordingly, the court reversed the matter and instructed the trial court to grant the defendant's motion to suppress. See id.
¶ 17 Because this is an issue of first impression, we are left to decide for the first time how strictly rule 40 should be enforced in Utah. Although we recognize that Defendant has not challenged the warrant on probable cause grounds or otherwise contested it,[2] we take Anderson's mandate seriously. Indeed, without a recording, any attempt by Defendant to challenge probable cause may require him to forfeit his Fifth Amendment right to remain silent. We assume *646 that the Utah Supreme Court wishes this rule to be followed strictly now that it has been implemented. Anderson offered clear public policy support for its mandate, and the result of the Fourth District Court's procedure had no different effect than the result here. Similarly, the potential problems of mishandling or alteration identified in Anderson also exist in telephonic warrant requests. We interpret Anderson to mean that the Utah Supreme Court intended to take a strong position on the issue. Thus, rule 40 is unambiguous in setting forth the courts' responsibility when issuing search warrants, including those sought telephonically. Accordingly, we reverse and instruct the trial court to grant Defendant's motion to suppress.[3]
CONCLUSION
¶ 18 Rule 40(i)(1) of the Utah Rules of Criminal Procedure requires that magistrates, not solely peace officers, "retain and seal a copy of the search warrant, the application and all affidavits or other recorded testimony on which the warrant is based," Utah R.Crim. P. 40(i)(1). The magistrate in this case did not do so. We conclude this was reversible error and reverse and remand for further proceedings in accordance with this opinion.
¶ 19 WE CONCUR: WILLIAM A. THORNE JR., Associate Presiding Judge and JAMES Z. DAVIS, Judge.
NOTES
[1] "`Recorded' or `recording' includes the original recording of testimony, a return or other communication or any copy, printout, facsimile, or other replication that is intended by the person making the recording to have the same effect as the original." Utah R.Crim. P. 40(a)(2).
[2] Defendant does not argue that the officer's reading of only portions of his affidavit to the magistrate invalidated the search warrant. We, however, believe that selective communication of the affidavit may be problematic.
[3] We note that there may be sufficient evidence without the excluded results of the blood draw to nevertheless support a conviction. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2627789/ | 206 P.3d 72 (2009)
STATE
v.
TUPAS.
No. 100100.
Court of Appeals of Kansas.
April 24, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2629099/ | 242 P.3d 738 (2010)
238 Or. App. 523
STATE of Oregon, Plaintiff-Respondent,
v.
Terry EVANS, Defendant-Appellant.
040130124; A140381.
Court of Appeals of Oregon.
Argued and Submitted July 29, 2010.
Decided November 10, 2010.
David C. Degner, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Doug M. Petrina, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.
Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.
HASELTON, P.J.
Defendant appeals from a judgment of conviction for first-degree burglary, third-degree robbery, and two counts of first-degree theft, following a remand for resentencing. See State v. Evans, 216 Or.App. 171, 171 P.3d 403 (2007). In his first and second assignments of error, defendant contends that the trial court did not have jurisdiction to consider certain enhancement factors in imposing an upward departure sentence on the burglary conviction because those factors were not (1) filed with the court, in violation of ORS 131.005(9), or (2) alleged in the indictment, as required by Article I, section 11, and Article VII (Amended), section 5, of the Oregon Constitution. In a third assignment of error, defendant contends that the trial court erred in instructing the jury that it could render a nonunanimous jury verdict. We reject defendant's third assignment of error without discussion. State v. Cobb, 224 Or.App. 594, 596-97, 198 P.3d 978 (2008), rev. den., 346 Or. 364, 213 P.3d 578 (2009). We write to address defendant's first and second assignments of error, which, as we explain below, fail under the reasoning in State v. Sanchez, 238 Or.App. 259, 263-67, 242 P.3d 692, 695-96 (2010). Accordingly, we affirm.
The relevant facts are procedural in nature, undisputed, and few. Before defendant's resentencing trial on remand, the state *739 notified defendant of its intent to rely on certain enhancement facts in seeking an upward departure sentence, as required by ORS 136.790.[1] The state did not file that notice with the court. Defendant filed a "motion to disallow aggravating factors based on a violation of ORS 131.005," in which defendant argued that the state's notice was essentially "a written accusation," as defined in ORS 131.005(9), which must be filed with the trial court in order for the court to have jurisdiction. Because the state did not file such a "written accusation" with the court, defendant argued, the trial court did not have jurisdiction to consider the enhancement factors alleged in the notice. Defendant filed a separate motion in which he argued that the enhancement factors must be alleged in the indictment under Article I, section 11, and Article VII (Amended), section 5. The trial court rejected both motions and, after the jury trial on the enhancement factors, imposed an upward departure sentence on the burglary conviction.
On appeal, defendant assigns error to the trial court's rejection of both motions, but makes one, combined argument with respect to those assignments of error. Specifically, defendant asserts:
"ORS 131.005(9)(c) provides in part that a `"District attorney's" information means a written accusation by a district attorney * * * filed in circuit court to charge a person with the commission of an offense, serves as a basis for prosecution thereof.' Because a sentencing enhancement factor is essentially an element of a new `aggravated' offense, the notice of enhancement factors must be filed in the circuit court in order for the court to have jurisdiction over the `aggravated' offense.
"* * * * *
"If the state fails to file sentencing enhancement factors in the circuit court as otherwise required by ORS 131.005(9)(c), in the alternative it may take those factors to a Grand Jury as required by Article VII (Amended), section 5, and[ ] Article 1, section 11[,] of the Oregon Constitution. Here the state failed to file its notice of enhancement factors, nor did it present those factors to a grand jury. Accordingly, the circuit court did not have jurisdiction to consider those factors in sentencing defendant."
In other words, defendant contends that, because the state failed to file the notice of the enhancement factors with the trial court or, alternatively, include those factors in the indictment, the trial court "did not have jurisdiction to consider those factors in sentencing defendant."
The underlying premise of defendant's contentions with respect to his first and second assignments of error is that enhancement factors must be treated as "elements" of a crime in light of the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). See State v. Upton, 339 Or. 673, 681, 125 P.3d 713 (2005) ("Apprendi and Blakely establish that under the Sixth Amendment each aggravating or enhancing factor encompassed with the sentencing guideline statute is essentially a new element of an aggravated form of the underlying offense."). In particular, defendant states:
"Blakely prohibits the court from increasing the duration of a sentence on facts found solely by the court, because those findings result in a defendant being found guilty of what is, essentially, a new `aggravated' crime. * * * Because the enhancement factors charge what is essentially a new `aggravated' crime, those factors must either be filed in the circuit court * * * or presented to a Grand Jury * * *."
*740 As we understand defendant's argument, because enhancement factors are essentially elements of a crime for purposes of the Oregon Constitution, the same jurisdictional rules that govern a trial court's power to consider the charged offense apply to its consideration of enhancement factors at sentencing.
We recently considered a similar argument to the one defendant makes here in Sanchez. 238 Or.App. at 262, 242 P.3d at 693. In Sanchez, the defendant argued that, "in light of the United States Supreme Court's decisions in Apprendi and Blakely, enhancement facts must be considered `elements' of an aggravated form of the underlying offense and, as such, pursuant to the Oregon Constitution they must be found by a grand jury and pleaded in an indictment." Id. at 263, 242 P.3d at 694. In rejecting that argument, we reasoned that
"[t]he establishment of enhancement facts is pertinent only to sentencingmaking defendant eligible for a harsher sentence than could be imposed were those facts not present. They do not, however, relate to the determination of whether a defendant committed the underlying criminal offense."
Id. at 267, 242 P.3d at 696. Consistently with that determination, we held that, because "enhancement factors pertain only to sentencing, they need not be found by the grand jury or pleaded in the indictment under the Oregon Constitution." Id.
Although, in Sanchez, we did not focus on the jurisdictional contentions raised by defendant here, we clearly rejected the premise underlying defendant's first and second assignments of error. Put succinctly, because the Oregon Constitution does not require that enhancement factors be treated as "elements" of the underlying criminal offense, Sanchez, 238 Or.App. at 267, 242 P.3d at 696, the jurisdictional problem, as framed by defendant, simply does not exist.
Affirmed.
NOTES
[1] ORS 136.790 provides:
"In order to rely on an enhancement fact, as defined in ORS 136.760, to increase the sentence that may be imposed upon remand of a case described in section 21(3), chapter 463, Oregon Laws 2005, the state, within a reasonable time before resentencing, shall notify the defendant of its intention to rely on the enhancement fact by providing written notice to the defendant of the enhancement fact and the state's intention to rely on it."
An "enhancement fact," as defined in ORS 136.760(2), is "a fact that is constitutionally required to be found by a jury in order to increase the sentence that may be imposed upon conviction of a crime." | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2764833/ | Order entered December 22, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00346-CR
No. 05-14-00347-CR
MICHAEL KENNEDY LOUIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F13-10013-Q, F13-52531-Q
ORDER
Before Chief Justice Wright and Justices Myers and Brown
Based on the Court’s opinion of this date, we DIRECT the Clerk of this Court to issue
the mandates in these appeals INSTANTER.
/s/ CAROLYN WRIGHT
CHIEF JUSTICE | 01-03-2023 | 12-25-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2764835/ | Dismissed and Opinion Filed December 22, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00346-CR
No. 05-14-00347-CR
MICHAEL KENNEDY LOUIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F13-10013-Q, F13-52531-Q
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Myers and Brown
Appellant has filed a motion to dismiss the appeals. Appellant’s counsel has approved
the motion. The Court GRANTS the motion and ORDERS that the appeals be DISMISSED
and this decision be certified below for observance. See TEX. R. APP. P. 42.2(a).
PER CURIAM
Do Not Publish
TEX. R. APP. P. 47
140346F.U05
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MICHAEL KENNEDY LOUIS, Appellant On Appeal from the 204th Judicial District
Court, Dallas County, Texas
No. 05-14-00346-CR V. Trial Court Cause No. F13-10013-Q.
Opinion delivered per curiam before Chief
THE STATE OF TEXAS, Appellee Justice Wright and Justices Myers and
Brown.
Based on the Court’s opinion of this date, we DISMISS the appeal.
Judgment entered December 22, 2014.
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MICHAEL KENNEDY LOUIS, Appellant On Appeal from the 204th Judicial District
Court, Dallas County, Texas
No. 05-14-00347-CR V. Trial Court Cause No. F13-52531-Q.
Opinion delivered per curiam before Chief
THE STATE OF TEXAS, Appellee Justice Wright and Justices Myers and
Brown.
Based on the Court’s opinion of this date, we DISMISS the appeal.
Judgment entered December 22, 2014. | 01-03-2023 | 12-25-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3351567/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
The plaintiff in this matter purchased a one-family house from the defendant on or about January 4, 2000 after having entered into a contract to buy the property located at 9 Bailey Drive, West Haven, Connecticut on December 21, 1999. Prior to entering into the agreement to buy and before taking title to the property, the plaintiffs personally inspected the property and also retained the services of an inspector who went over the property and furnished to plaintiffs with a written report as to his findings. (Defendant's Ex. 1) The report noted among other areas needing attention that the kitchen floor "had excessive bounce and squeaking." The inspector was unable to determine the cause as the basement access door was screwed shut (Defendant's Ex. 1, p. 6 "crawl space"). After moving in, the plaintiffs gained access to the crawl space under the kitchen floor and discovered that the kitchen floor was supported in part by a tree stump under a joist and a scissors jack. (Plaintiffs' Ex. 4 and 5). It was also discovered that the plywood kitchen floor was not nailed to the joists. The court notes that this is not usual construction practice and not in compliance with any building code.
Michael Doyle, the president of the defendant corporation who has been in the business of buying older properties and renovating the same for resale, testified that he bought this property in April 1999 and proceeded to attempt to make this property more saleable by miscellaneous changes which he said were mainly cosmetic and included new kitchen counters over the "squeaky floor" area as well as certain plumbing work in connection with changing the kitchen sink. According to John Arnone who testified for the plaintiffs and who furnished an estimate c)f the cost of repairs the defendant was said to have moved the kitchen from inside the original house to this former porch where he installed counters and a sink. The defendant testified that he did not attempt to CT Page 9560 contact the building department of the Town of West Haven as in his opinion no permits were necessary to do the work which he performed. The defendant in the "Rider to Sales Contract" represented that the promises were not in violation of any building codes. (Plaintiffs' Ex. 1, see "schedule").
There is no evidence before the court as to who night have blocked the access to the crawl space under the kitchen floor but it is clear that the plaintiffs and their inspector were denied access and had no opportunity to inspect this area which now forms the basis for the plaintiffs claim for damages in the amount of $29,930. (Plaintiffs' Exh. 3.) While the defendant seller expressly agreed to permit the buyers to physically inspect the premises (Plaintiffs' Exh. 1, "Real Estate Sales Agreement", p. 17) it effectively precluded the buyers inspection of the area which now after the passage of title constitutes the major portion of any of the claimed breaches of the sellers obligations as alleged in the complaint.
The plaintiffs cannot be held to have accepted conditions existing in the property when they were precluded from any opportunity to perform their own inspection as provided in the agreement to buy.
The court finds that the premises were not as represented to the plaintiffs by the defendant's president and accordingly enters judgment for the plaintiffs in the amount of $29,930 plus allowable costs.
____________________, J. George W. Ripley II Judge Trial Referee | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1765777/ | 814 F. Supp. 1507 (1993)
Jennifer ROBERTS, Julie Osborne, Janet Brumbelow, Laura Bielak, Sara Stout, Amy Recouper, Jennifer Jacobs, Malia Kuenzli, Stacie Stafford, Heather Nakasone, Kim Johnson, Aimee Rice, and Lisa Mize, Plaintiffs,
v.
COLORADO STATE UNIVERSITY, Colorado State Board of Agriculture, in its capacity as the entity charged with the general control and supervision of Colorado State University, Defendants.
Civ. A. No. 92-Z-1310.
United States District Court, D. Colorado.
February 18, 1993.
*1508 *1509 John M. Kobayashi, Pamela A. Gagel, Karen E. Robertson, Kobayashi & Associates, P.C., Denver, CO, Ellen J. Vargyas, National Women's Law Center, Washington, DC, for plaintiffs.
William E. Thro, Michael Stuart Williams, Michael S. Schreiner, Lee R. Combs, Office of the Atty. Gen., Denver, CO, Lee R. Combs, Associate Gen. Counsel, Denver, CO, for defendants.
OPINION AND ORDER
WEINSHIENK, District Judge.
Procedural and Factual Background
Plaintiffs are former members of the Colorado State University (CSU) women's varsity softball team which was terminated on June 1, 1992. Plaintiffs seek reinstatement of the softball team and damages. A hearing on plaintiffs' Complaint For Injunctive Relief was held on July 17, 1992. At that time, the Court denied plaintiffs' Motion For Injunctive Relief due to plaintiffs' inability to demonstrate a substantial likelihood of success on the merits. Lundgrin v. Claytor, 619 F.2d 61 (10th Cir.1980). At the conclusion of this hearing, the parties stipulated to a stay of the sale of the softball team's equipment, *1510 plaintiffs' continued receipt of their softball scholarships without work requirements for the 1992-1993 school year, and expedited discovery. A status conference was held on October 26, 1992, at which the parties agreed to bifurcate the violation and damages phases of the trial. The case is set for a two day trial to Court on the issue of damages on Thursday, March 25, 1993.
A trial to court concerning plaintiffs' request for a permanent injunction reinstating the women's intercollegiate softball program at CSU was held on November 19, 1992, continuing on November 20, 23, and 24, 1992. After careful consideration, the Court has made findings of fact and conclusions of law based upon the evidence presented during the trial and the pre-trial briefs submitted by the parties.
Regulatory Framework of Title IX
The central question in this case is whether defendants' termination of the women's softball team either caused a violation of Title IX or was the perpetuation of an already existing violation by defendants. This and other issues presented in the instant case necessitate a brief analysis of the regulatory framework of Title IX. Title IX, which is codified at 20 U.S.C. § 1681, became effective on July 1, 1972, and provides that: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Defendants concede that Colorado State University is an educational institution receiving federal financial assistance, and the Court determines that CSU's athletic department is subject to the provisions of Title IX.
The regulations interpreting the application of Title IX to athletic programs became effective on July 21, 1975. These regulations require that "a recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes." 34 C.F.R. § 106.41(c). In determining whether equal opportunities are available, the Director of the Office of Civil Rights of the Department of Education (OCR) must consider, among other factors, "whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes." 34 C.F.R. § 106.41(c)(1).
A Policy Interpretation further developing the meaning of "equal opportunity" in intercollegiate athletics was issued in 1979. See Policy Interpretation, 44 Fed.Reg. 71413 (Dec. 11, 1979). The express purpose of the Title IX Policy Interpretation is to explain the factors and standards which the Department of Education will consider in determining whether an institution's intercollegiate athletics program complies with the law and governing regulations. 44 Fed.Reg. 71413. The policy interpretation is divided into three areas of inquiry: Athletic Financial Assistance (Scholarships), 34 C.F.R. § 106.37(c); Equivalence in Other Athletic Benefits and Opportunities, 34 C.F.R. § 106.41(c)(2)-(10); and Effective Accommodation of Student Interests And Abilities, 34 C.F.R. § 106.41(c)(1). 44 Fed.Reg. at 71414.
In April of 1990, the OCR of the Department of Education issued the Title IX Athletics Investigator's Manual to assist OCR personnel in conducting athletic investigations. Defendants' Exhibit A. According to the Investigator's Manual, "the intercollegiate athletics Policy Interpretation requires that OCR use an overall approach and review the total athletics program for intercollegiate athletics investigations." Id. at 7. However, the Investigator's Manual also reiterates the three major areas of investigation established in the Policy Interpretation and states that "an investigation may be limited to less than all three of these major areas where unique circumstances justify limiting a particular investigation to one or two of these major areas." Id.
Plaintiffs' allegations of discrimination under Title IX are narrowly stated under the third prong of the Policy Interpretation: Effective Accommodation of Student Interests And Abilities, 34 C.F.R. § 106.41(c)(1). Although defendants argue that the language in the Investigator's Manual requires that plaintiffs demonstrate an overall violation of either 34 C.F.R. § 106.37(c) or 34 *1511 C.F.R. § 106.41(c)(1)-(10) in order to sustain a claim of discrimination under Title IX, the Court is satisfied that the regulations and Policy Interpretation allow for a showing of violation under 34 C.F.R. § 106.41(c)(1) only. The decisions in Favia v. Indiana University Of Pennsylvania, 812 F. Supp. 578 (W.D.Pa. 1993), and Cohen v. Brown University, 809 F. Supp. 978 (D.R.I.1992), support this view. In Favia, female students sought reinstatement of two women's teams eliminated by the defendant university's budget reduction efforts. Although the Favia Court mentioned disparities in athletic scholarships in the opinion, the Court's ruling in favor of plaintiffs was based largely upon an analysis made under 34 C.F.R. § 106.41(c)(1). Favia, 812 F.Supp. at 584. Plaintiffs in the Cohen case challenged Brown University's demotion of two women's teams from varsity to club status. In granting plaintiffs' motion for a preliminary injunction, the Cohen Court specifically held that a finding of a Title IX violation may be limited solely to 34 C.F.R. § 106.41(c)(1). Cohen, 809 F.Supp. at 989.
Although minor inconsistencies do exist between the Policy Interpretation and the Investigator's Manual, an evaluation of CSU's entire athletic program is neither required nor necessary to the resolution of the issues presented in this case. After examining both the regulatory framework of Title IX and the language in the Favia and Cohen cases, the Court is convinced that a violation of Title IX may be shown by proof of a substantial violation in any one of the three major areas of investigation set out in the Policy Interpretation. Thus, the Court's findings of fact and conclusions of law will be limited to 34 C.F.R. § 106.41(c)(1), the prong regarding the effective accommodation of student interests and abilities.
The Policy Interpretation delineates three areas of inquiry which should be considered in assessing compliance with 34 C.F.R. § 106.41(c)(1):
1. Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or
2. Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex; or
3. Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of that sex have been fully and effectively accommodated by the present program.
44 Fed.Reg. at 71418. The Court will hereafter refer to these three prongs as the "Effective Accommodation" test. Plaintiffs have the burden of proving that intercollegiate level participation opportunities for male and female students are not provided in numbers substantially proportionate to their respective enrollments. Favia, 812 F.Supp. at 584. Defendants have the burden of proof as to the second and third prongs of the Effective Accommodation test. Id.; See also, Cohen, 809 F.Supp. at 992.
Findings of Fact and Conclusions of Law
1. Substantial Proportionality
At trial, defendants argued that the Court should not rely on the statistics submitted by plaintiffs for the 1980-81 and 1981-82 school years in determining whether CSU is in compliance with 34 C.F.R. § 106.41(c)(1). See Plaintiffs' Exhibit 64. All of the figures contained in Exhibit 64 were obtained from Ms. Roselyn Cutler, CSU's Title IX Coordinator, either during or after her deposition. Ms. Cutler testified at trial that the figures for the 1980-81 and 1981-82 school years were taken from the squad lists for that year. Although defendants stressed Ms. Cutler's testimony on redirect that she was unable to confirm the validity of the figures for the years in question, they failed to explain why the same allegedly unreliable figures were provided to the OCR in 1983 during the OCR's Title IX compliance review of CSU. Defendants also have failed to offer *1512 any figures which they believe to be more accurate than those before the Court. Finally, defendants did not articulate any cognizable difference between the manner in which the figures for the two years in question were compiled and that in which the figures for the other years were gathered. For these reasons, the Court rejects defendants' argument and will therefore consider as accurate the figures for the 1980-81 and 1981-82 school years indicated in Exhibit 64.
Beginning with the 1980-81 academic school year and ending with the current school year, the gaps between women's athletic participation rates and their undergraduate enrollment at CSU have been, respectively, 7.5%, 12.6%, 15.6%, 15%, 18.6%, 12.3%, 16.5%, 14.8%, 15.6%, 16.7%, 14.9%, 12.7%, and 10.6%. See Exhibit 64. During this twelve year period, the average disparity between enrollment and athletic participation rates for women was 14.1%.
During the 1991-92 academic school year CSU funded a total of 17 varsity teams for male and female students. Defendants' Exhibit R. In 1991-92, women comprised 35.2% of the total athletes at CSU. At the same time, the enrollment of women at CSU was 47.9% of the total student population. Exhibit 64. Thus, the disparity between the percentage of women enrolled at CSU and the percentage of women participating in athletics at CSU prior to the June 1, 1992, termination of the women's softball team was 12.7%. In the current 1992-93 school year, women athletes now make up approximately 37.7% of total athletes participating in CSU's intercollegiate programs. The enrollment of women at CSU is currently 48.2% of the undergraduate student population. Therefore, the enrollment versus participation disparity rate for females at CSU after the termination of the women's softball team is 10.5%. Id.
CSU argues that its current female participation rate is substantially proportionate to the current female enrollment rate. Defendants' Pre-Trial Brief, p. 11. According to defendants, the regulatory framework of Title IX provides no guidance in determining substantial proportionality. In addition, defendants argue that the OCR has specifically rejected the setting of a particular figure against which compliance with 34 C.F.R. § 106.41(c)(1) can be judged. Id. at 12. The language contained in the Investigator's Manual to which defendants are apparently referring reads that "there is no set ratio that constitutes `substantially proportionate' or that, when not met, results in a disparity or a violation. All factors for this program component, and any justifications for differences offered by the institution, must be considered before a finding is made." Defendants' Exhibit A at 24. However, this section of the Investigator's Manual must be read in conjunction with other relevant language contained in the manual, with the October 14, 1983, Statement of Findings issued by the OCR after it completed a Title IX compliance review of CSU's athletic department, and with the Cohen case.
In the paragraph immediately preceding the language upon which defendants' apparently rely, the Investigator's Manual directs OCR personnel investigating the substantial proportionality prong under 34 C.F.R. § 106.41(c)(1) to first compare the number of male and female participants with the number of full-time undergraduate students. Exhibit A at 24. The manual then advises OCR investigators that "if the results are substantially proportionate (for example, if the enrollment is 52% male and 48% female, then, ideally, about 52% of the participants in the athletics program should be male and 48% female), the recipient is effectively accommodating the interests and abilities of both sexes." Id. The Court finds this language to be useful in determining the intended meaning of the term "substantially proportionate". The following language contained in the Investigator's Manual also is considered by the Court:
OCR investigative experience indicates that where budget restrictions have led a recipient to eliminate sports previously offered, there is frequently a compliance problem with this program component. The tendency is for institutions to eliminate a sport previously offered to women who are already underrepresented in the institution's athletics programs. The result has been that women are now more *1513 disadvantaged by the elimination of a women's team despite sufficient interest and ability to sustain a viable team. In this situation, the institution may well be in violation of this program component.
Id. at 27.
The Statement of Findings issued by the OCR after completing a Title IX compliance review at CSU in 1983 provides the Court with further guidance as to what numerical disparity between female participation rates and enrollment should be considered to be "substantial." In its Statement of Findings, the OCR refers to a table listing sports and the number of participants for three academic years, 1980-81 through 1982-83. Plaintiffs' Exhibit 2 at 77. Noting a difference between the percent of women enrolled and women's athletic participation of 7.5%, 12.5%, and 12.7%, respectively, for the three academic years being reviewed, the OCR concluded that "the intercollegiate level participation opportunities for male and female students are not substantially proportionate to their respective enrollments." Id. The OCR also noted that women's field hockey was to be dropped following the 1983-84 academic year, stating that "as a consequence of this action, the disparity between women's participation opportunities not being substantially proportionate to their enrollment will be exacerbated." Id.
Finally, the recent decision in the Cohen case offers the Court additional guidance on the meaning of the term substantially proportionate. In Cohen, the disparity between the defendant university's female athletes and their respective enrollments after the demotion of four varsity teams was found to be 11.6%. Cohen at 991. Based on this disparity, the Cohen Court held that plaintiffs had successfully demonstrated that the ratio of female varsity athletes to their respective enrollments was not `substantially proportionate." Id.
After reviewing the statistical evidence submitted at trial and the sources of guidance cited in the preceding paragraphs, the Court determines that the current rate of female participation in athletics at CSU is not substantially proportionate to female undergraduate enrollment. More specifically, the Court finds that a disparity between female athletic participation and female undergraduate enrollment of 10.6% is not acceptable under Title IX absent a showing by defendants under the second or third prong of the Effective Accommodation test.
In addition, the Court finds that for at least the last decade, female participation rates at CSU have not been substantially proportionate to CSU's female undergraduate enrollment. The affidavit of Dr. Mary Gray, a professor of mathematics and statistics at American University, was introduced at trial. Plaintiffs' Exhibit 54. In this affidavit, Dr. Gray testified credibly and persuasively that the difference between the proportion of women as undergraduates and their participation rate in athletics at CSU is highly statistically significant, and represents a persistent pattern over the last ten years. The Court agrees with Dr. Gray's conclusion that the disparities between women's enrollment and athletic participation rates at CSU over the last decade could not have occurred merely by chance.
On a final note, defendants argued strenuously in their brief and at trial that a finding by this Court that CSU's female enrollment versus participation statistics are not substantially proportionate will necessarily implicate the athletic departments of virtually every institution of higher education in this country. Plaintiffs, however, have alleged a violation of Title IX solely against CSU. In addition, if defendants are found by this Court to be in violation of Title IX, the fact that CSU's participation statistics are better than those of other schools is of no legal consequence. Accordingly, this Court has not considered how CSU's participation rates compare with those of other undergraduate institutions. The issue of whether other universities are complying with Title IX is for other courts to decide based upon individualized allegations and independent findings of fact.
2. History of Program Expansion
It has been demonstrated that female enrollment is not substantially proportionate to female athletic participation at CSU. Therefore, *1514 the Court must now consider the second prong of the Effective Accommodation test. This prong is particularly difficult to determine given the fact that the absolute number of opportunities to compete in intercollegiate athletics at CSU has decreased for both women and men in the last decade. Unfortunately, CSU has been no exception to the economic reality of more restrictive budgets which most of our nation's educational institutions are facing. However, because women were in the past and continue to be underrepresented in CSU athletics, CSU must demonstrate to the Court's satisfaction a history and continuing practice of program expansion for women.
While admitting that prior to 1970, CSU did not offer a single sport for women, defendants point to the addition of eleven sports for women during the 1970's as evidence of athletic program expansion for women at CSU. Defendants' Pre-Trial Brief at 14. Although the Court agrees that the eight women's teams currently offered by CSU are an improvement over the non-existent state of women's teams prior to 1970, the Court cannot accept defendants' conclusion that the mere fact that CSU now offers women's teams is evidence of program expansion for women. This Court's acceptance of such an argument would render meaningless Title IX's regulations and its Policy Interpretation. Acceptance of this argument also would implicitly condone the attitude that female athletes at CSU should be satisfied with their current opportunities given the pre-1970 lack of participation opportunities for women in intercollegiate athletics. The regulations which implemented Title IX were promulgated for the very purpose of rectifying historical inequities between men's and women's intercollegiate athletic programs. Indeed, the program expansion prong of the Effective Accommodation test was not intended to stop the compliance inquiry as to any institution that can demonstrate that it has added a women's sports team sometime in the last three decades. In this regard, the Court rejects as insufficient defendants' assertion that they have demonstrated program expansion because women's teams were added at CSU during the 1970's.
CSU further contends that its decision to cut baseball and softball must be regarded as a positive proportional development for women under Title IX because the termination of women's softball, with its 18 participants, and men's baseball, with its 55 participants, actually caused the women's participation rate at CSU to rise. Defendants' Pre-Trial Brief at 6. While it is true that the disparity between women's enrollment and athletic participation is less now than it was prior to the termination of softball, defendants' assertion fails to take into consideration the facts that the actual number of athletic participation opportunities for women at CSU have steadily declined over the past twelve years and that no new varsity teams for women have been added during that time. The Court determines that CSU cannot show program expansion for women solely by pointing to increases in the percentage of women athletes caused by reducing the number of men athletes. CSU must either demonstrate actual expansion in women's athletic programming or establish that it has considered and improved upon the underrepresented status of women athletes when reductions in athletic programs became necessary in the past.
After considering the dynamics of program contraction at CSU over the last twelve years, the Court is convinced that CSU did not seriously consider nor improve the representation of female athletes when budget cuts became necessary. For example, four women's varsity teams have been dropped since the 1980-81 school year; gymnastics in 1980, field hockey in 1984, junior varsity volleyball in 1987, and softball in 1992. During the same time period, and despite the underrepresentation of women athletes, the men lost only three varsity teams; gymnastics in 1980, wrestling in 1986, and baseball in 1992.
Since 1980-81, the total number of participation opportunities for women athletes have decreased from 183 opportunities to 120 in 1992-93. During the 1980-81 school year, male athletes at CSU maintained 246 participation opportunities. This number has decreased to 198 male participation opportunities in 1992-93. See Exhibit 64. Thus, it is *1515 undeniable that in the last twelve years women's participation opportunities have declined by approximately 34 percent or 63 participation opportunities while men's participation opportunities have declined by approximately 20 percent or 48 participation opportunities. The Court finds that in the last twelve years, women have been disproportionately impacted by the general reduction in athletic participation opportunities at CSU. In accordance with this finding, the Court concludes that CSU has failed to demonstrate program expansion in the area of providing athletic participation opportunities for women.
The Court determines that the relevant period of inquiry as to CSU's other program expansion efforts is the era in which CSU was put on notice that female athletes' participation rates were not substantially proportionate to female undergraduate enrollment. In 1983, the OCR for the Department of Education conducted a Title IX Compliance review of CSU's athletic department. In the cover letter attached to the OCR's Statement of Findings, the former Regional Director of the OCR, Dr. Gilbert D. Roman, indicated that "benefits, opportunities, and treatment are not equivalent in the areas of equipment and supplies, locker rooms, coaching, recruitment, publicity, support services and the effective accommodation of student interests and abilities. OCR concluded that collectively these disparities violate Title IX." Plaintiffs' Exhibit 2 at 3-4. Dr. Roman went on to state, however, that "based upon your written assurance that the remedial actions set forth in your submitted plan are being implemented, we consider Colorado State University to be presently fulfilling its obligations under 34 C.F.R. § 106.41(c) ... continued compliance is contingent upon carrying out the provisions of the plan." Id.
The corrective action plan to which Dr. Roman referred in his letter was submitted to the OCR in September of 1983. See Plaintiffs' Exhibit 6. In this plan, CSU committed to raising the participation rate of women to 46.5% by the 1987-88 school year. CSU also agreed to develop junior varsity teams for the women's volleyball and basketball teams. In addition, CSU pledged itself to small increases in participation on several of the women's teams. The evidence received at trial demonstrated that CSU did not meet its 1987-88 participation goal of 46.5 percent. In fact, the evidence shows that the athletic participation rate of females at CSU during the 1987-88 school year was 33.8 percent. See Exhibit 64. The evidence also indicates that CSU added a women's junior varsity volleyball team in 1984, but dropped the team in 1987.
In May of 1985, defendants submitted to the OCR a progress report concerning the implementation of their 1983 Title IX corrective action plan. See Plaintiffs' Exhibit 15. In this progress report, defendants' represented to the OCR that "the Corrective action plan states `In 1987-88, 46.5% of the participants will be women and 53.3% will be men.' In pursuit of that goal, and precisely as planned for 1984-85, the 1984-85 participation rates were 42.9% for women and 57.1% for men." Id. at 3. However, Ms. Cutler testified at trial that the female participation percentage stated in the letter was incorrect. From the figures produced by Ms. Cutler at her deposition, it appears that the actual female participation rate for women during the 1984-85 school year was 30.7%. See Exhibit 64. In their progress report, defendants also reported to the OCR that due to the elimination of men's varsity wrestling, it was no longer necessary to add a women's junior varsity basketball team in order to achieve the participation figures outlined in the 1983 corrective action plan. Exhibit 15 at 4.
On February 10, 1989, defendants submitted another status report to the OCR regarding CSU's 1983 corrective action plan. Plaintiffs' Exhibit 14. In this status report, defendants admitted that they had not achieved the participation goal for women delineated in their 1983 corrective action plan and attempted to explain their failure. Id. at 6. The two reasons cited by defendants as leading them to believe that the participation goal of 46.5% for women was unattainable were that other institutions with which CSU participated regularly had lower participation rates and that statistics generated by the *1516 Colorado Department of Education indicated that females made up only 40% of all Colorado high school athletes. Id. Defendants also stated that they would put forth their best efforts to maintain or diminish the ratio between CSU's female participation rate and that of Colorado's female high school athletes. Finally, defendants indicated that subsequent to the termination of men's baseball in 1989-90, they planned to modify the on campus baseball field for use as a women's softball facility. Id. at 4.
In a letter dated March 8, 1989, Dr. Roman responded to defendants' February 10, 1989, progress report. Defendants' Exhibit BL. In this letter, Dr. Roman determined that CSU had provided "valid, nondiscriminatory reasons" for not meeting the participation goals articulated in defendants' 1983 corrective action plan. Id. at 2. Dr. Roman also indicated that the monitoring procedures of CSU's athletic department were terminated given CSU's "good faith efforts to increase athletic opportunities for female student athletes." Id. With all due respect to Dr. Roman's conclusions, this Court determines that the excuse offered by CSU that other institutions had worse participation rates for female athletes than did CSU is not a valid nondiscriminatory reason for maintaining female participation rates which are substantially disproportionate to female undergraduate enrollment. With regard to defendants' justification that Colorado high school female athletes participate at a rate of 40%, the Court notes that defendants have not matched this lesser and presumably attainable goal of 40% female participation since the 1980-81 school year. See Exhibit 14 at 6; see also, Exhibit 64. Moreover, the Court finds that CSU's participation figure for females at the time the OCR terminated its monitoring procedures in 1989 were actually lower than they were before the OCR's Title IX compliance review began in 1983. See Exhibit 64. The Court concludes that lower participation rates and decreasing participation opportunities for women are not indicators of a good faith effort on behalf of defendants to increase athletic opportunities for female student athletes at Colorado State University.
On November 20, 1991, the CSU athletic department issued a Strategic Plan for Fiscal Years 1992-931996-97 which identified five programs of emphasis. Plaintiffs' Exhibit 18. The five programs designated for emphasis include football, men's basketball, academic support services, athletic development, and marketing/promotion activities. Id. at 6. Although three of the programs to be emphasized presumably will impact female athletes, the only specific mention of future plans to benefit women athletes comes at the end of defendants' enumeration of the five programs of emphasis. Defendants state that "it's imperative that over the planning period, the Department upgrade the non-revenue sports scholarship base. Volleyball, women's basketball, and swimming will be funded and the balance of women's sports will be funded based on residency dollars." Id. at 8. Based upon the above evidence, it appears that defendants do not have any concrete plans to substantially expand its current programs for female athletes in the near future. Indeed, defendants stated in pre-trial interrogatories that CSU does not presently plan to add teams to its intercollegiate athletics program. Plaintiffs' Exhibit 21 at 10.
In summation, the Court notes that none of the major goals articulated in defendants' 1983 corrective action were ever attained. The Court also finds that over the last twelve years women have shouldered a disproportionate amount of the program contraction efforts at CSU. After a careful review of the statistics for the past twelve years and defendants' unattained program expansion goals for CSU, the Court concludes that CSU has not demonstrated a history and continuing practice of program expansion for women.
3. Full and Effective Accommodation Of Interests and Abilities
While it has already been determined that women are underrepresented among CSU's intercollegiate athletes, and that defendants cannot show a continuing practice of program expansion, defendants can still prevail in this lawsuit if they can demonstrate that the interests and abilities of women are being fully and effectively accommodated by CSU's present athletic program.
*1517 At trial, Jennifer Roberts and Aimee Rice Ainsworth testified persuasively about their dedication to the sport of softball, the amount of time they had invested throughout their lives in training for this sport, and tangible losses they are experiencing in not being able to play softball during the current academic year. This testimony was consistent with the testimony of Laura Bielak and Malia Kuenzli at the preliminary injunction hearing and with the affidavits submitted by the remaining plaintiffs. The testimony of Ms. Roberts and Ms. Rice Ainsworth indicated that CSU's women's softball team finished third in the Western Athletic Conference in 1992. In addition, plaintiff Stacie Stafford was named a Western Athletic Conference Softball Player of the Week in 1992. Ms. Roberts and Ms. Rice Ainsworth further testified that CSU freshwomen definitely are interested in fast-pitch softball, and have turned out in considerable numbers to participate in a softball club team. From the testimony presented at trial and the other evidence considered by this Court, it appears that CSU has eliminated varsity athletic opportunities for women in a sport where there is significant interest and talent.
It also appears to the Court that the popularity of women's softball at CSU is a reflection of the sport's growing popularity nationwide. According to Charles W. Rice, the Colorado Commissioner for the Colorado Amateur Softball Association, fast pitch softball is becoming an increasingly popular sport for girls in Colorado. See Plaintiffs' Exhibit 52. Figures provided by Mr. Rice indicate that high school competition in fastpitch softball has increased from approximately 1,950 girls in 1980 to approximately 4,605 girls in 1992, an increase in participation of approximately 236 percent. Id. This increase in participation in Colorado is significant because Colorado high schools provide CSU with approximately 75% of its undergraduate student population. Defendants' Pre-Trial Brief at 17. In his affidavit, Mr. Rice also reports that 100% of female high school seniors participating in the Colorado All-Star Girls Fast-Pitch Softball League in the last four years have gone on to college. Finally, Mr. Rice points out that women's fast-pitch softball will be a medal sport in the 1996 Summer Olympics.
The evidence provided by Mr. Rice, Ms. Roberts, Ms. Rice Ainsworth, and the other plaintiffs convinces the Court that a substantial number of current and future CSU female students are now or will be interested in the future in competing on women's varsity, club, and intramural softball teams. Accordingly, the Court finds that there is a strong present and future interest in retaining women's fast-pitch softball as a varsity sport at CSU. Considering the existing disparity between female and male varsity athletes and their respective enrollments, and the demonstrable interest in the varsity opportunities being eliminated, the Court concludes that the termination of these opportunities evidences a failure to accommodate the interests and abilities of women. However, the Court's inquiry as to whether the interests and abilities of women have been fully and effectively accommodated by CSU's athletic program goes beyond the demonstrated interest in women's softball. Are there other women students at CSU whose interests in additional athletic participation opportunities have not been fully and effectively accommodated?
In determining whether CSU is fully and effectively accommodating the interests and abilities of its athletes, the Court may consider the expressed interests of female students, whether there are sufficient numbers of athletes to form a team, and whether there is a reasonable expectation of intercollegiate competition for that team. Cohen, 809 F.Supp. at 992. The testimony of Mr. William Hall, CSU's Club Sports Coordinator, was illuminating with regard to these factors. Mr. Hall testified that he considered the women's soccer, women's lacrosse, women's rugby, women's volleyball, and women's alpine ski club teams to be competitive. According to Mr. Hall, the women's soccer team has expressed its interest in becoming a varsity sport. He added that the women's soccer club has played a competitive intercollegiate game schedule in past seasons. Defendants agree that women's soccer has a popularity level equal to or exceeding the women's fast-pitch softball club. Defendants' Pre-Trial *1518 Brief at 20. Further, defendants imply in their brief that were resources not limited, there would be adequate numbers of interested women students at CSU to enable defendants to add varsity teams in women's lacrosse, women's soccer, women's junior varsity volleyball, and women's alpine skiing. Id. Further, Mr. Hall's testimony made clear the difference in benefits afforded to club sport participants and to varsity athletes. For example, Mr. Hall testified that CSU sponsors approximately 32 club sports teams with a total budget of approximately $70,000 dollars. This sum is less than half the amount allocated to the women's varsity softball team for the 1991-92 school year. See Plaintiffs' Exhibit 20. In addition, and unlike varsity athletes, club sports participants must pay dues, buy their own equipment, pay their own travel costs, and are not eligible for athletic scholarships.
The Court determines from the testimony of Mr. Hall and the defendants' own arguments that there are women athletes at CSU who are interested in and capable of playing on varsity teams other than those currently offered by CSU. Had CSU been searching for ways to expand varsity participation opportunities for women rather than reduce them, they would have had to look no further than CSU's club sports program. If, for example, CSU had added a 23 woman varsity soccer team during the 1992-93 school year to meet the demonstrated interest of female athletes, and had at the same time maintained its women's softball team, the female participation rate at CSU would have risen to approximately 44.3%. If, hypothetically, defendants had also added a women's varsity alpine ski racing team with 15 members, female participation would have risen to 46.6%, leaving an acceptable 1.7% gap between female athletic participation and female undergraduate enrollment. Id. In determining the average participation figures for these two teams, the Court considered the NCAA Gender-Equity Study which was released in March of 1992. See Defendants' Exhibit BH at 9. Finally, the Court notes that there would be a reasonable expectation of intercollegiate competition for varsity teams such as women's soccer or alpine skiing given the fact that several schools within the Western Athletic Conference offer women's soccer and alpine ski teams.
The Court concludes that defendants have not met their burden of proving that they are fully and effectively accommodating the interests of women at CSU despite the underrepresentation of women in CSU athletics. The evidence introduced at trial shows that there are in fact women at CSU who are capable and desirous of competing in varsity sports other than those being currently offered. Plaintiffs' testimony at trial also demonstrated that there is a strong present and future interest in maintaining women's softball as a varsity sport at CSU. Thus, the Court finds that the demonstrated interests and abilities of both of these groups of female athletes are not being fully and effectively accommodated.
4. Other Findings
Mr. Corey Johnson and Ms. Roselyn Cutler testified at trial that the primary reason the women's softball team was eliminated was to reduce a budget shortfall in CSU's athletic department. However, a financial crisis cannot justify gender discrimination. See Cook v. Colgate University, 802 F. Supp. 737 (N.D.N.Y.1992); Favia, 812 F.Supp. at 583. Dr. Albert Yates, Mr. Johnson, and Ms. Cutler also testified that they did not intend to violate Title IX nor did they believe they were violating Title IX by their decision to cut the women's softball team. Although the Court finds that these three individuals discussed and considered Title IX before cutting the women's softball team, Title IX and the implementing regulations can be violated without a showing of specific intent to discriminate against women on the part of the decision makers for the educational institution. See Haffer v. Temple University, 678 F. Supp. 517, 540 (E.D.Pa.1987); Favia, 812 F.Supp. at 583. In other words, good intentions or a misinterpretation of the law does not negate a violation of Title IX.
Conclusion
The Court concludes that defendants' decision to terminate the women's softball team constitutes a violation of Title IX, when *1519 viewed in the context of CSU's disproportionate athletic participation rates for women, defendants' failure to demonstrate a history of program expansion for women, and defendants' failure to demonstrate effective accommodation of female students' interests and abilities. The underlying mandate of this opinion is that CSU may not continue to operate an intercollegiate athletic program that provides a disproportionate amount of participation opportunities to male athletes where there is no evidence of continuing program expansion or effective accommodation of the interests and abilities of its female students. Accordingly, a permanent injunction will issue in favor of plaintiffs and against defendants requiring defendants to reinstate the women's intercollegiate softball program and to provide the women's softball team with all of the incidental benefits accorded other varsity teams at CSU. It is thereby
ORDERED that a permanent injunction against defendants requiring them to reinstate the CSU women's softball team is hereby issued. It is
FURTHER ORDERED that the parties are to submit a status report on or before April 16, 1993. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2633122/ | 184 P.3d 286 (2008)
HACK
v.
NOVAK.
No. 98086.
Court of Appeals of Kansas.
May 30, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1298096/ | 323 S.E.2d 86 (1984)
COMMONWEALTH of Virginia
v.
CROATAN BOOKS, INC.
Record No. 831798.
Supreme Court of Virginia.
November 30, 1984.
*87 William J. Minor, Jr., Asst. Commonwealth's Atty., Arlington, (Robert F. Horan, Jr., Commonwealth's Atty., Fairfax, on brief), for appellant.
No brief or argument for appellee.
Present: All the Justices.
COCHRAN, Justice.
Pursuant to the provisions of Code § 48-8, Robert F. Horan, Jr., Commonwealth's Attorney of Fairfax County, filed a bill of complaint in the name of the Commonwealth against Croatan Books, Inc., t/a Showplace Books (Croatan Books). The bill sought to enjoin an alleged nuisance arising from illicit sexual activity on the premises of Croatan Books.
At a hearing on June 9, 1983, to determine whether a temporary injunction should be ordered, the Commonwealth presented evidence that the store was a place where, with the knowledge and occasional complicity of employees, homosexuals congregated to engage in acts of oral sodomy, mutual masturbation, and indecent exposure. These acts were performed in the area of the store where booths were provided for patrons to view erotic films by the use of token-operated projectors. There were approximately 100 projectors available for such use. The trial court ordered, with the agreement of the parties, that Croatan Books rope off two of the four movie booth access ways, repair any openings between the booths, and hire uniformed guards to prevent loitering in the hallways and use of any booth by more than one patron at a time.
A second hearing was conducted on July 21, 1983, and written memoranda of law were submitted by the parties. On August 4, 1983, the trial court entered an order finding that the Commonwealth had shown by clear and convincing evidence that criminal sexual activity existed on the premises of Croatan Books of such a continuous and pervasive nature as to constitute a public nuisance as defined in Code § 48-7.[1] The court then held that Code § 48-12[2] is unconstitutional *88 as applied to the facts of the case because it "reaches far beyond the remedy necessary for the abatement of the complained of nuisance." Holding that under its general equitable powers the court could fashion a remedy to abate the nuisance, the court ordered Croatan Books to remove by a specified date all movie booth partitions and enjoined it from "erecting any other partitions, enclosures or other devices which totally or partially obstruct the visibility of the viewer of any movie or film from common observation."
The Commonwealth argues that the trial court erred in holding Code § 48-12 unconstitutional in its application and in declining to comply with the provisions of that statute by ordering the closure of the store. We agree.
In various cases, we have held that a civil forfeiture based on violations of criminal law is constitutional. Thus, in Bunkley v. Commonwealth, 130 Va. 55, 108 S.E. 1 (1921), we upheld the predecessor statute to Code § 48-12. We held that the forfeiture provision invoked to abate the operation of a brothel in violation of the nuisance statute was a proper exercise of the Commonwealth's police power. Id. at 68, 108 S.E. at 5. To the same effect are McNelis v. Commonwealth, 171 Va. 471, 198 S.E. 493 (1938) (closure of premises used in violation of Alcoholic Beverage Control Act), Quidley v. Commonwealth, 190 Va. 1029, 59 S.E.2d 52 (1950) (forfeiture of car and money used in illegal numbers game), and Commonwealth v. Lincoln Automobile, 212 Va. 597, 186 S.E.2d 279 (1972) (forfeiture of automobile driven by owner while license suspended). Because Croatan Books's dissemination of ideas through books, magazines, and films, however, is presumptively protected under the First Amendment, we must consider the impact of the statute on First Amendment rights.
The First Amendment does not protect obscenity. Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498, reh'g denied, 355 U.S. 852, 78 S.Ct. 8, 2 L.Ed.2d 60 (1957). There is no evidence, however, that the materials sold and exhibited in the store were obscene. Thus, the effect of the application of the abatement provisions of Code § 48-12 is to restrain Croatan Books's constitutionally-protected distribution of books, magazines, and films. The crucial question is whether any such infringement upon First Amendment rights is merely incidental to furtherance of an important governmental interest.
In United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672, reh'g denied, 393 U.S. 900, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968), the Supreme Court upheld a statute prohibiting destruction of a draft registration card although in its operation the statute incidentally suppressed an individual's right of free symbolic speech. The following four-part test was enunciated:
we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
Id. 391 U.S. at 377, 88 S.Ct. at 1679.
Enactment of a statute providing for abatement of a public nuisance is clearly within the legislature's power. See *89 Bunkley, 130 Va. at 68, 108 S.E. at 5. Moreover, the governmental interests to be furthered by such a statute are important and substantial. The Commonwealth has a paramount interest in eliminating criminal sexual activity. Abatement under the nuisance statute may be the only effective recourse against owners who permit unlawful sexual conduct on their premises and derive an economic benefit from the business generated by such conduct.
The governmental interest in eliminating a pattern of criminal sexual activity is unrelated to the suppression of free expression. The type of governmental censorship proscribed by the First Amendment is control of the content of communication. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 64-65, 96 S.Ct. 2440, 2449, 49 L.Ed.2d 310, reh'g denied, 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976) (in which the Supreme Court upheld zoning ordinances classifying and regulating "adult" motion picture theaters differently from other theaters). Where, as here, the intrusion on free expression is not based on the message, ideas, subject matter, or content of the materials distributed, but on criminal activities occurring at the site, the governmental interest is constitutionally unrelated to the intrusion. Compare Spokane Arcades, Inc. v. Brockett, 631 F.2d 135 (9th Cir.1980), aff'd mem., 454 U.S. 1022, 102 S.Ct. 557, 70 L.Ed.2d 468 (1981), reh'g denied, 454 U.S. 1165, 102 S.Ct. 1040, 71 L.Ed.2d 322 (1982) (where a Washington nuisance statute prohibiting distribution of "lewd matter" was held to be unconstitutional as an impermissible prior restraint of potentially obscene material).
Thus, Code § 48-12 was clearly justified under the first three parts of the O'Brien test. The trial court, however, ruled that the statute was not justified under the fourth part of the test. The court was of opinion that the statute was unconstitutional in its application to Croatan Books because it imposed a restriction on First Amendment freedoms greater than is essential to the furtherance of the governmental interest in abating the nuisance. A remedy less restrictive than the closure mandated by the statute was then devised and incorporated in the final order entered by the trial court. As the remedy bore a marked similarity to one approved in People v. Adult World Bookstore, 108 Cal. App.3d 404, 166 Cal.Rptr. 519 (1980), we will analyze two earlier California decisions and that case.
In People ex rel. Van de Kamp v. American Art, Etc., 75 Cal.App.3d 523, 142 Cal. Rptr. 338 (1977), the court examined the California Red Light Abatement Law to determine the scope of injunctive relief applicable to a publisher whose premises constituted a center for prostitution.[3] The court noted the tension inherent in application of an abatement law to premises used for constitutionally-protected publication. Id. at 529, 142 Cal.Rptr. at 341. Applying O'Brien principles, however, the court held that prohibition of prostitution and pandering properly furthers a substantial governmental interest unrelated to speech or press. Id. at 531, 142 Cal.Rptr. at 342. The court further held that the burden is on the state to show that regulation of the prohibited conduct does not infringe on First Amendment rights any more than is necessary to vindicate the governmental interest. Id., 142 Cal.Rptr. at 342.
In People ex rel. Sorenson v. Randolph, 99 Cal.App.3d 183, 160 Cal.Rptr. 69 (1979), a club featuring pornographic films, nude dancing, hired female companionship, solicitation by waitresses, and masturbation performed on customers was closed under the California abatement statute. Id. at 187, 160 Cal.Rptr. at 70. The court found that the interference with free speech resulting from closure was minimal while the state's *90 interest in abating the nuisance was substantial. Id. at 189-90, 16 Cal.Rptr. at 72. The court further rejected the contention that a more narrowly drawn remedy could have abated the nuisance. Because the club had ignored prior warnings and allowed continued lewd conduct on the premises while a temporary injunction was in effect, closure was not unreasonable. Id. at 190, 160 Cal.Rptr. at 72.
Adult World Bookstore is factually analogous to the present case. There, the court upheld the temporary relief ordered against two bookstores containing movie booth areas in which patrons engaged in pervasive sexual activity. The lower court, by temporary injunction, ordered the bookstore operators to post signs prohibiting more than one person to a booth, prohibiting loitering, and warning that unlawful sexual conduct was prohibited. The court also ordered the operators to close all openings between partitions, make other modifications in the booth area, and patrol the area. 108 Cal.App.3d at 407-08, 166 Cal. Rptr. at 521. The appellate court upheld this preliminary injunctive relief. Id. at 411, 166 Cal.Rptr. at 523. Although the issue of final abatement was not reached in the case, the court stated that closure is improper unless there is no other way to prevent recurrence or continuation of the nuisance. Id. at 409, 166 Cal.Rptr. at 522.
The distinctive feature of the California cases is apparent. In that jurisdiction, the mandatory language of the abatement statute has been construed by the California Supreme Court to be merely permissive, so that trial courts are given broad discretionary authority to devise some remedy other than closure. See American Art, 75 Cal. App.3d at 529, 142 Cal.Rptr. at 340-41. We have given no such construction to the Virginia statute, nor do we do so now. But, unlike the trial court, we do not conclude that the mandatory abatement remedy makes the statute unconstitutional in its application to Croatan Books. The General Assembly has determined that the only way to abate the nuisance arising from criminal sexual activity on the premises is to close the store. It was the prerogative of the General Assembly to make that determination.
It is true, of course, that without objection the trial court initially ordered relief designed to eliminate the nuisance without affecting the First Amendment right to distribute materials and exhibit films. The Commonwealth introduced evidence at the second hearing showing that the temporary order had been ineffective to eliminate loitering and solicitation of criminal sexual activities in the area of the movie booths. Thus, what purported to be less restrictive remedial measures failed to abate what the trial court had unequivocally found by clear and convincing evidence to be a nuisance under the provisions of Code § 48-7. This failure vindicates the legislative determination that closure is necessary to abate the kind of outrageous criminal activity disclosed by the record.
We hold that under the facts of this case closure is a proper exercise of the Commonwealth's police power and satisfies the O'Brien test for incidental, permissible infringement on First Amendment freedoms. Having found that a nuisance was being maintained on the premises of Croatan Books, the trial court was required to comply with the abatement provisions of Code § 48-12. Accordingly, we will reverse the judgment and remand the case for further proceedings consistent with the views expressed in this opinion.
Reversed and remanded.
NOTES
[1] Code § 48-7 provides:
§ 48-7. Houses and contents are nuisances subject to abatement.Whoever shall knowingly erect, establish, continue, maintain, use, own, occupy or lease any building, erection or place used for the purpose of lewdness, assignation or prostitution in the State is guilty of a nuisance, and the building, erection, or place, the ground itself, in or upon which such lewdness, assignation or prostitution is conducted, permitted, or carried on, continued, or exists, and the furniture, fixtures, musical instruments and contents are also declared a nuisance, and shall be enjoined and abated as hereinafter provided.
[2] Code § 48-12 provides:
§ 48-12. Order of abatement of nuisance; sale of furniture, etc.; closing of building. If the existence of the nuisance be established in such suit in equity, or in a criminal proceeding, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the building or place of all fixtures, furniture, musical instruments, or movable property used in conducting the nuisance, and shall direct the sale thereof in the manner provided for the sale of chattels under execution, and shall decree the effectual closing of the building or place against its use for any purpose, and so keeping it closed for a period of one year, unless sooner released. If any person shall break and enter or use a building, erection, or place so directed to be closed he shall be punished as for contempt, as provided in the preceding section.
[3] The statutory language of the California law is almost identical to the Virginia nuisance provision. The California Supreme Court, however, had earlier interpreted the mandatory wording of the abatement section as not requiring closure but as vesting in the trial court broad discretion to fashion an appropriate abatement remedy. Selowsky v. Superior Court, 180 Cal. 404, 412-13, 181 P. 652, 656 (1919). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1908809/ | 643 F.Supp. 194 (1986)
John H. LARY, Jr., Plaintiff,
v.
The REPUBLIC OF CUBA, a foreign government, Defendant.
No. 86 Civ. 0726 (RWS).
United States District Court, S.D. New York.
July 30, 1986.
John H. Lary, Jr., M.D., pro se.
Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City, for defendant; Michael Krinsky, Mark Barenberg, of counsel.
SWEET, District Judge.
Plaintiff Dr. John H. Lary, Jr. ("Lary") has brought this action pro se seeking to recover on principal and interest due on Cuban bearer bonds issued by the defendant Republic of Cuba ("Cuba") in 1937 and 1953. Cuba now moves to dismiss this action pursuant to Rule 12(b), Fed.R.Civ.P. because the action is (1) barred by the doctrine of sovereign immunity, (2) barred by the act of state doctrine, (3) barred by the statute of limitations, (4) prohibited by the Cuban Assets Control Regulations of the Treasury Department, and (5) barred by the failure to obtain a Treasury Department license for the purchase of or suit on the bonds. For the reasons set forth below, Cuba's motion to dismiss is granted.
Prior Proceedings
The original complaint in this action was filed on November 9, 1983 in the Northern District of Alabama but was dismissed sua sponte and without prejudice, and was refiled on August 22, 1985. Cuba moved to dismiss or transfer the action because venue *195 was improperly laid in the Northern District of Alabama within the meaning of 28 U.S.C. § 1391(f) governing venue for actions against foreign states. On December 27, 1985, the action was transferred to the United States District Court for the District of Columbia pursuant to 28 U.S.C. § 1391(f)(4).
The District of Columbia District Court entered an order on January 10, 1986, sua sponte transferring the action to the Southern District of New York pursuant to 28 U.S.C. § 1404(a), concluding that only New York had contacts with Lary's claims and that venue in New York would best serve the convenience of the parties and the witnesses.
On January 23, 1986, Cuba filed a motion for extension of its time to answer or move, which was granted by memo endorsement of February 24, 1986. On March 5, 1986 Cuba filed the instant motion to dismiss. In a letter application to the court on April 4, 1986, Lary requested and was granted an extension of time to respond to the issues raised by the defendant's motion, the opposition papers due on June 4, 1986. Lary has submitted no opposition to Cuba's motion to dismiss, and has not provided the court with his own affidavit in opposition to the motion.
Facts
Sometime after 1979, Lary purchased the Cuban bonds upon which he sues from a brokerage firm in Huntsville, Alabama at a "substantial discount" from the approximate face amount of the bonds, which Lary estimates to be somewhere between $10,000 and $100,000. The debt obligations involve two series of bearer bonds, the "Four and One-Half Percent (4½%) Bonds of the External Debt of the Republic of Cuba, 1937-1977" (the "1937" issue) and "The Republic of Cuba Veterans, Courts and Public Works Bond Issue Four Percent (4%) 1953-1983" (the "1953" issue).
Both series of bonds were issued by the Republic of Cuba, and executed by its Minister of Finance. Principal on the 1937 issue was due on June 30, 1977 and principal on the 1953 issue was due on November 1, 1983. The coupon interest and principal amount of the 1937 issue was payable either at the office of Manufacturers Hanover Trust Company ("MHT"), the Trustee and Fiscal Agent, or at the MHT branch office or agency in Havana. The coupon interest and principal amount of the 1953 series was payable only in Havana, at the offices of the Banco Nacional de Cuba.
The Cuban Government failed to pay the interest coupons on the 1937 bonds due December 31, 1960, and failed to pay the interest coupons attached to the 1953 series beginning November, 1960.
Although it is unnecessary to recite the history of the deteriorating relationship between the United States and Cuba during the decades of the 1950's and 1960's, see Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964); Sardino v. Federal Reserve Bank of New York, 361 F.2d 106 (2d Cir.1966); Banco Nacional de Cuba v. Chase Manhattan Bank, 505 F.Supp. 412 (S.D.N.Y. 1980), aff'd and modified, 658 F.2d 875 (2d Cir.1981), a brief review of the statutory scheme devised in response to these developments is warranted.
On July 8, 1963, the United States promulgated the "Cuban Assets Control Regulations ("CACR") of the Treasury Department, 31 CFR Part 515, originally authorized by Trading with the Enemy Act ("TWEA"), 50 U.S.C.App. § 1 et seq. and subsequently authorized by the International Emergency Economic Powers Act of 1976, 50 U.S.C. § 1702(a)(1)(B). These regulations, among other things, prohibit the transfer of "any property or evidences of indebtedness" in which Cuba or any national thereof has "had an interest of any nature whatsoever, direct or indirect." 31 CFR Part 515.201(b). The program was aimed at prohibiting all financial and commercial transactions between the United States nationals and Cuba and Cuban nationals and to place all of the Cuban property in the United States under the control of the Treasury Department. The Regulations prohibit engaging in the transactions listed without obtaining authorization from *196 the Secretary of the Treasury, usually granted in the form of a license. 31 CFR § 515.201(a).
Discussion
According to Cuba, Lary's admitted failure to obtain a license from the Office of Foreign Assets Control ("OFAC") before purchasing the bonds or bringing an action on such bonds deprives the court of jurisdiction to consider these claims as the executive regulations require a license for such actions.
The CACR regulations explicitly extend to the type of assets at issue here and the parties to this action. First, with regard to Lary's purchase of the bonds, the regulations nullify transfers after the July 8, 1963 effective date of the regulations:
Any transfer after the "effective date" which is in violation of any provision of this part or of any regulation, ruling, instruction, license or other direction or authorization thereunder and involves any property in which the designated national has or has had an interest since such effective date is null and void and shall not be the basis for the assertion or recognition of any interest in or right, remedy, power or privilege with respect to such property.
31 CFR Part 515.203(a) (emphasis supplied).
Cuba, the "designated national" has had an "interest" in the bonds within the meaning of section 515.312, as it is obligor on these debts, which fall explicitly within the definition of "property" set out in 31 CFR 515.203(f).[1] Cuba contends therefore that Lary's purchase of the bonds is null and void, as no attempt has been made to request a Treasury Department license.
Similarly, Cuba asserts that persons seeking to prosecute actions upon such controlled property must obtain an OFAC license, which Lary has also neglected to request. The CACR provisions expressly bar the issuance or entry of any judgment against Cuba without a license, as 31 CFR Part 515.310 defines the prohibited "transfer" to include" ... the issuance, docketing, filing, or the levy of or under any judgment, decree, attachment, execution, or other judicial or administrative process or order...." Furthermore, section 515.203(e) sets out the consequences for failing to obtain such license:
Unless licensed or authorized by § 515.504 or otherwise licensed or authorized pursuant to this chapter, any attachment, judgment, decree, lien, execution, garnishment, or other judicial process is null and void with respect to any property in which on or since the "effective date" there existed the interest of a designated foreign country or national thereof.
Cuba, therefore, asserts that the prosecution of this lawsuit on a Cuban bond is an act by a United States national, the purpose and intent of which is to create a right and remedy with respect to the indebtedness on the bonds. As such it would be null and void without a license.
While Lary might attempt to avail himself of the exceptions to the voiding of property transfers in subsection (d) of Part 515.203, a filing of a report with the Treasury Department pursuant to subsection (d)(3) is a prerequisite to the OFAC's evaluation of the applicability of the exceptions contained in (d)(1) and (d)(2). Furthermore, although the Treasury Department evaluates compliance with paragraphs (d)(1) and (d)(2), the circumstances of Lary's possession of the bonds, namely that he speculated on their purchase with full knowledge of their dubious integrity as financial instruments, weighs heavily against the notion that he would be found an innocent purchaser of the bonds who was the victim of *197 misrepresentations. In any case no such allegation is made here.
The relevant case law generally supports Cuba's view of the Treasury license as a prerequisite to both the purchase of the bearer bonds and the maintenance of an action on the bonds. At the threshold, it is worth observing that the Cuban Asset Control Regulations have long been recognized by this circuit and the Supreme Court as both important to the foreign policy objectives of the United States and as regulations validly authorized under the TWEA. Banco Nacional de Cuba v. Sabbatino, supra, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964); Sardino v. Federal Reserve Bank, supra, 361 F.2d 106 (2d Cir.1966).
In this context, the courts of this circuit have not hesitated to give full force and effect to the CACR requirement that persons who wish to engage in transactions prohibited by the regulations apply to the OFCA for a license to do so. For example, in Richardson v. Simon, 420 F.Supp. 916 (E.D.N.Y.1976), aff'd, 560 F.2d 500 (2d Cir. 1977), appeal dismissed, 435 U.S. 939, 98 S.Ct. 1516, 55 L.Ed.2d 536 (1978), the executors of an estate sought the release of blocked assets in the Bank of Nova Scotia devised to a United States citizen and resident. The plaintiffs applied to the Secretary of the Treasury for a license unblocking the assets but were denied such a license, and the court held that it would not order the transfer of property in which a Cuban interest existed without a license authorizing the transfer. Id. at 919.
Similarly, the District of Columbia Circuit Court recently reaffirmed the breadth of OFAC's licensing power in American Airways Charters, Inc. v. Regan, 746 F.2d 865 (D.C.Cir.1984). Holding that although an OFAC license is required prior to execution of any transaction prohibited by TWEA, OFAC lacked the authority to block the formation of an attorney/client relationship because of failure to apply for a license, the court stated:
To clarify and summarize our disposition, we add these closing remarks. TWEA, as implemented by the CACR, gives OFAC authority to control, in almost every respect, AAC's [a designated Cuban national under 31 C.F.R. § 515.302] commercial relations with the outside world ... OFAC's power, however, extends only to the freezing or blocking of AAC's assets and the licensing of its transactions.
Id. at 874.
The single precedent upon which Lary might rely to claim that he did not need to obtain a license is inapposite to this context. In Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355 (11th Cir.1984), the Eleventh Circuit held that although two Cuban government corporations had failed to obtain a license from the Treasury Department prior to filing suit, they were under no obligation to obtain a license when the district court would establish liability and fix damages rather than levy upon property or collect funds. Id. at 361-362. However, in Dean Witter Reynolds, Inc. v. Fernandez, the Cuban corporations did obtain a Treasury license after the district court ruled in their favor and prior to the notice of appeal, although the issue of prior licensing was never raised before the district court. This Treasury Department license provided that the authorization extended retroactively to the date upon which the action was commenced.
Furthermore, although the court held that a Treasury Department license is not a prerequisite to initiating an in personam lawsuit, its rationale reaffirmed the need to secure approval before a bond purchase:
The Assets Control Regulations forbid only those judicial acts that transfer a property interest. Since an in personam lawsuit is merely an attempt to establish liability and fix damages so that one's interests will be protected until a license is secured or until the regulations are suspended, the action does not focus on any particular property within the jurisdiction.
Id. at 362.
As Lary's speculative purchase of Cuban bearer bonds in 1979 was undoubtedly *198 a transfer of an asset and not the attempt to "protect" interests until a license could be secured, it falls outside the scope of Dean Witter. See also Tagle v. Regan, 643 F.2d 1058, 1067 (5th Cir.1981) (citing Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480 (1949)).
For the reasons set forth above, Lary's action is dismissed for failure to obtain a Treasury Department license prior to purchasing or commencing an action on the bonds.
IT IS SO ORDERED.
NOTES
[1] Section 515.203(f) provides: "For the purpose of this section the term "property" includes gold, silver, bullion, currency, coin, credit, securities (as that term is defined in section 2(1) of the Securities Act of 1933, as amended) bills of exchange, notes, drafts, acceptances, checks, letters of credit, book credits, debts, claims, negotiable documents of title, mortgages, liens, annuities, insurance policies, options and futures in commodities, and evidences of any of the foregoing. The term "property" shall not, except to the extent indicated, be deemed to include chattels on real property. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2630144/ | 231 P.3d 587 (2010)
HEEB
v.
BIRT.
No. 102554.
Court of Appeals of Kansas.
May 21, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2629112/ | 242 P.3d 682 (2010)
238 Or. App. 195
In the Matter of the MARRIAGE OF Colleen Renee HUNT, Petitioner-Respondent, and
Aaron James HUNT, Respondent-Appellant.
159917268; A143326.
Court of Appeals of Oregon.
Submitted September 03, 2010.
Decided October 27, 2010.
*683 Aaron James Hunt filed the brief for appellant pro se.
No appearance for respondent.
Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and DUNCAN, Judge.
BREWER, C.J.
Father appeals from a judgment establishing a child support arrearage under ORS 25.167. Father asserts that the trial court erred in failing to reduce the claimed arrearage based on an agreement that he reached with mother to reduce his total monthly child support obligation following the death of one of the parties' two minor children. Father also asserts that the trial court erred in failing to give him credit on his child support obligation for the parties' surviving child after she attained her eighteenth birthday and was either self-supporting and not living with mother, or living with father. Although the trial court correctly denied father most of the credit that he seeks, we conclude that the court erred in failing to exercise its discretion to reduce the arrearage for a period during which the child lived with father. As explained below, we modify the judgment for support arrears accordingly.
We state the pertinent facts that are undisputed or, to the extent they are disputed, we state them in accordance with the trial court's express and implied findings that are supported by evidence in the record. ORS 19.415(3)(b). The parties' marriage was dissolved in April 2000. The dissolution judgment required husband to pay the unsegregated sum of $392 per month in child support for the parties' two minor children. The parties' son died in July 2002 at the age of nine. The parties thereafter reached an oral agreement to reduce husband's support obligation for the parties' surviving daughter to $200 per month. However, that agreement was never formally documented or reduced to the form of a judgment modifying the dissolution judgment. Thus, the obligation of $392 per month continued to accrue. In January 2006, the parties' daughter turned 18. For various periods from then until she reached age 21, the daughter attended school and either lived with friends or with one of the parties. For at least four months in late 2006, the daughter lived with father, and mother knew of and consented to that arrangement. Father made payments at the rate of at least $200 per month for most months from November 2002 until May 2009, when he stopped paying child support. This proceeding followed.
Father appears pro se on appeal, and some of his arguments are less clear than we would prefer. However, we understand his primary arguments to be those set out at the beginning of this opinion. Unfortunately for father, the trial court correctly denied his request for relief from the arrearage claim in the two primary respects that he urges on appeal. ORS 107.135 provides, in part:
"(6) Any modification of child or spousal support granted because of a change of circumstances may be ordered effective retroactive to the date the motion for modification was served or to any date thereafter.
"(7) The judgment is final as to any installment or payment of money that has accrued up to the time the nonmoving party, other than the state, is served with a motion to set aside, alter or modify the judgment. The court may not set aside, alter or modify any portion of the judgment that provides for any payment of money, either for minor children or for the support of a party, that has accrued before the motion is served. However:
"(a) The court may allow a credit against child support arrearages for periods of time, excluding reasonable parenting *684 time unless otherwise provided by order or judgment, during which the obligor, with the knowledge and consent of the obligee or pursuant to court order, has physical custody of the child; and
"(b) The court may allow, as provided in the rules of the Child Support Program, a dollar-for-dollar credit against child support arrearages for any Social Security or Veterans' benefits paid retroactively to the child, or to a representative payee administering the funds for the child's use and benefit, as a result of an obligor's disability or retirement."
Father did not file and serve a motion to modify the child support obligation before the parties' daughter reached age 18. Accordingly, the court had no authority to enforce the parties' oral agreement to reduce the support obligation to $200 per month. ORS 107.135(6), (7); see also Thomsen and Thomsen, 167 Or.App. 218, 223, 2 P.3d 432 (2000) ("[I]t is well settled that we may modify support awards for minor children only from the date of the motion for modification forward; all amounts previously in arrears have become judgments and may not be modified, except in very narrow circumstances not at issue here.").
Moreover, ORS 25.167 establishes the framework for determining child support arrearages and the scope of the trial court's authority in those actions:
"This section establishes procedures for determining the amount of arrearage and for making a record of arrearage of support payments. All of the following apply to this section:
* * * * *
"(2) * * *
* * * * *
"(f) If objections are filed within the time allowed, the district attorney or the [Division of Child Support] shall cause the case to be set for a court hearing. At the hearing, the court shall consider the correctness of the certificate [of the amount in arrears] but may not consider objections to the merits of the [support judgment]."
The statute is explicit: In an action for arrearages, the court's authority is limited to consideration of the amount of arrearages. The court has no authority to determine issues outside that narrow confine, and it is expressly prohibited from considering objections going to the merits of a support judgment, including whether it should be retroactively modified. Accordingly, the court lacked authority to reduce the claimed arrearage based on the parties' oral agreement.
The analysis is somewhat different for father's claim that the court erred with respect to support amounts accruing after the daughter attained age 18. There is evidence in the record that the daughter attended school during the pertinent period, but there is no evidence as to the precise periods of her attendance. Under ORS 107.108(8), the child support obligation for a child who has reached 18 years of age may be suspended under certain circumstances. Father did not argue before the trial court that any such circumstances had occurred in this case.[1] Because there is no evidence that father's child support obligation was suspended for any particular portion of the pertinent period, we reject father's general claim to a credit for that period.
However, ORS 107.135(7)(a) provides that the court "may" allow a credit against child support arrearages under certain circumstances. See Pedroza and Pedroza, 128 Or.App. 102, 106, 875 P.2d 478 (1994) (acknowledging court's authority to allow credit against child support arrearages for periods of time during which obligated parent has physical custody of child with knowledge and consent of custodial parent). Although the precise period was disputed, wife acknowledged that the parties' daughter lived with husband for approximately four months after she reached her eighteenth birthday. Father sought credit for that period, and the trial court did not explain why it failed to *685 give father credit in accordance with mother's acknowledgement. We conclude that, in the absence of any countervailing evidence or a reasoned explanation why it would be unjust to give father credit for the period during which the daughter lived with him, the court should have exercised its discretion to reduce the period of arrears by four months, that is, by $1,568. See Olson and Olson, 218 Or.App. 1, 15, 178 P.3d 272 (2008) ("[w]hen a trial court makes a discretionary decision, the record must reflect a proper exercise of that discretion"). Accordingly, we reduce the judgment to $21,827.96, through April 13, 2009.
Judgment for support arrears dated August 27, 2009, modified to provide that unpaid child support arrears in this case are established at $21,827.96 through April 13, 2009; otherwise affirmed.
NOTES
[1] Father makes an undeveloped argument in his second assignment of error on appeal that "[d]efendant and state [were] never properly notified once minor child became of age and self sufficient under ORS 107.108 and attending school." However, he points to no place in the record where such an argument was preserved before the trial court nor to any evidence supporting the argument. Accordingly, we do not consider it further. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1846942/ | 731 So. 2d 1037 (1999)
Dr. Cecil J. BERGERON, et al.
v.
PAN AMERICAN ASSURANCE CO., Pan American Life Insurance Company, et al.
No. 98-CA-2421.
Court of Appeal of Louisiana, Fourth Circuit.
April 7, 1999.
*1038 Jules B. LeBlanc, III, Jody Edward Anderman, LeBlanc, Maples & Waddell, L.L.C., Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellants.
Salvador Anzelmo, Brian Burke, New Orleans, and Albert H. Hanemann, Jr., Darryl J. Foster, Lemle & Kelleher, L.L.P., New Orleans, and James F. Jorden, Waldemar J. Pflepsen Jr., Jerome V. Bolkcom, Jorden, Burt, Boros, Cicchetti, Berenson & Johnson, L.L.P., East Washington, D.C., and Raymond J. Munna, Pan-american Life Insurance Co., New Orleans, Counsel for Defendants/Appellees.
Court composed of Chief Judge ROBERT J. KLEES, Judge STEVEN R. PLOTKIN, Judge CHARLES R. JONES.
PLOTKIN, Judge.
Plaintiffs, Dr. Cecil J. Bergeron and Donald C. Mitchell, appeal a trial court judgment dismissing their proposed class action suit against defendants, Pan American Assurance Co., Pan-American Life Insurance Co. (hereinafter referred to collectively as "Pan American"), and insurance agents, Paul Davidson and Diana DeCharles. For the reasons explained below, we affirm.
I. Facts
The suit filed by the plaintiffs alleges three counts of misconduct and misrepresentations in the sale of life insurance against Pan American and insurance agents, Mr. Davidson and Ms. DeCharles. The plaintiffs characterize those counts as follows: (1) "vanishing premium," (2) "churning," and (3) insurance sold as "investments." The plaintiffs' extensive petition asserts the following types of tort claims: (1) unfair and deceptive trade practices, (2) breach of fiduciary duty, (3) breach of duty of good faith and fair dealing (4) negligent misrepresentations and omissions, (5) fraud, (6) and fraud in the inducement; the plaintiffs also assert a breach of contract claim. However, at oral argument in this court, the plaintiffs conceded that neither Louisiana's Unfair *1039 Trade Practice Act nor LSA-R.S. 22:1220, imposing a fiduciary duty and a duty of good faith and fair dealing, applies to this case. Thus, the only tort issues remaining before this court are the claims for negligent misrepresentation and omissions, fraud, and fraud in the inducement. The breach of contract claim also remains.
The allegations of the plaintiffs' suit may be summarized as follows: Pan-American and its agents falsely represented to potential policy holders that they could obtain life insurance policies through payment of a single premium or a limited number of premiums. Expenses, mortality costs, and commissions were not disclosed, nor was the "extremely interest sensitive nature" of the policies. Moreover, defendants allegedly approached potential policy holders, asking to be allowed to examine their finances as "advisors," then made recommendations that existing policies be "exchanged" or "upgraded," in ways that were not in the best interests of the policy holders. Finally, the defendants allegedly indicated that the dividends on the new policies were so high that they made excellent investments.
After the filing of the petition, the plaintiffs sought discovery of certain files from Pan American. Pan American filed peremptory exceptions of prescription, no cause of action, and no right of action, as well as a motion for summary judgment. The trial court stayed discovery pending the disposition of the defendants' exceptions and motion. Following hearing on the exceptions and the motion, the trial court dismissed plaintiffs' claims with prejudice, stating orally as follows: "For the reasons articulated in the defendant's original memorandum, their oral argument and their response, the Motion and Exceptions of the defendant are hereby granted." The plaintiffs failed to request reasons for judgment, and no other reasons were articulated. The plaintiffs appeal.
On appeal, the named plaintiffs make numerous arguments concerning the nebulous nature of the trial court's judgment. They suggest that the trial court should have issued more specific reasons for judgment, but do not allege that they made any formal request for such reasons. Because the trial court's statements indicate that she considered all of the exceptions, as well as the motion for summary judgment, valid, we must consider all issues, unless we find that one particular issue is dispositive.
II. Discovery
As a preliminary matter, the plaintiffs claim that the trial court improperly stayed discovery pending disposition of the defendants' exceptions and motion for summary judgment, making it impossible for the plaintiffs to defend against those exceptions and motion. Most specifically, the plaintiffs claim that the trial court should not have granted a motion for summary judgment until after the completion of discovery under the provisions of La. C.C.P. art. 967.
Pan American claims that the plaintiffs' blanket request for information concerning files other than their own claim files was unreasonably burdensome. Moreover, Pan American claims that it produced the named plaintiffs' entire claims files prior to the filing of the motion for a stay; the plaintiffs do not dispute this assertion. Until the certification of a class action, Pan American claims, the plaintiffs are not entitled to other files.
Generally, "[a] trial court has broad discretion in handling discovery matters." Laburre v. East Jefferson General Hospital, 555 So. 2d 1381, 1385 (La.1990); Connick v. Brechtel, 98-0543 (La.App. 4 Cir. 4/22/98), 713 So. 2d 583, 587, writ denied, 98-1404 (La.6/3/98), 720 So. 2d 1202. Under the circumstances, we find no abuse of discretion in the trial court's stay of the discovery. The named plaintiffs were provided their own claims files; therefore, they were allowed to discovery information to defend their individual actions, which are the only actions at issue in this appeal. *1040 Moreover, considering the fact that we affirm the trial court's granting of the exception of prescription on the tort claims, and the exception of no cause of action on the breach of contract claims, we will not even consider whether the trial court properly granted the motion for summary judgment. Accordingly, the plaintiffs' arguments based on La. C.C.P. art. 967 are moot.
III. Exception of Prescription
Pan American's primary argument on this issue is that any valid tort claims made by the named plaintiffsi.e., the misrepresentation and fraud claimshave prescribed because the plaintiffs failed to file suit within one year of the date they either knew or should have known of the existence of their claims. They claim that a close reading of the allegations of the plaintiffs' petition reveals that the plaintiffs' claims have prescribed on their face.
A. Record facts surrounding prescription issue
In order to determine the prescription issue, this court has closely examined the petition filed by the plaintiffs, as well as the affidavit filed by Pan American in support of its exceptions and motion for summary judgment. The factual circumstances surrounding the claims are summarized below:
1. Dr. Bergeron's claim
Concerning Dr. Bergeron, the plaintiffs' petition alleges that he was induced by agent Davidson to "replace" his existing life insurance policies with a new, larger Pan American policy on November 10, 1984. Dr. Bergeron claims that Mr. Davidson told him "that the Pan Am policies would pay a higher rate of interest than his current policies and that, by the time Dr. Bergeron reached retirement age, the premium on the Pan Am policy would `vanish'." Petition, paragraph 9. His purchase of the Pan American policies, he alleged, was induced by Mr. Davidson's representation that Pan American "had a solid investment structure which would protect its rates from fluctuating as much as the market and that the Pan Am policy would be a better investment vehicle than a savings or retirement account." Id. at paragraph 10. Dr. Bergeron alleged that he "paid $6,000.00 per year as a premium on the Pan Am policy for ten years, and, based upon the representations made by Mr. Davidson, did not expect to be billed further," and that "[h]e was told that the payment of the December 1993 premium would be his last payment." Id. at paragraph 14. Nevertheless, he alleged, he received a premium notice for $6,000 in December 1994, which he paid in January 1995. Id. at paragraph 16. The suit was not filed until April 7, 1997.
In support of its exceptions and motion for summary judgment, Pan American attached the affidavit of Edward J. Ray III, Senior Vice President of U.S. Individual and Technical Services of Pan-American Life Insurance Company and Vice President of Technical Services of Pan-American Insurance Co. and Pan American Assurance Co. Relative to Dr. Bergeron's claim, Mr. Ray acknowledged that Pan American issued a $500,000 universal life policy in 1984. Ray affidavit, paragraph 19. The affidavit then rehearses Dr. Bergeron's payment history during the first year of the policy's existence, then asserts as follows: "For the next ten years, in December of each year, Bergeron made payments of $6,000.00 annually which were credited to the Bergeron policy." Id. at paragraph 21. Then, Ray attested, in December 1994, "Pan-American sent Dr. Bergeron a premium notice of Six Thousand Dollar ($6,000), which Dr. Bergeron paid in January 1995." Id. Then on December 12, 1995, Dr. Bergeron's policy was put on inactive status at his request. Id. After that date, no premium notices were sent to Dr. Bergeron by Pan American and Dr. Bergeron made no payments.
*1041 2. Mr. Mitchell's claim
Concerning Mr. Mitchell's claim, the petition alleges that defendant DeCharles induced him to "replace" his existing life insurance policies sometime in early 1990, by making the following representations: "that it would be a paid up whole life policy with no further premiums, the cash value of the policy would continue to increase, the dividends paid on the policy would buy additional insurance and the death benefit of the policy would increase over the life of the policy." Petition, paragraph 19. Mr. Mitchell alleged that, despite Ms. DeCharles' representations, he was billed annually for the policy for five years in the amount of $3,022.60, an amount three times greater than the premium on the insurance policies he "surrendered." Id. at paragraph 21. Mr. Mitchell alleged that he notified Pan American and Ms. DeCharles that he should not have been charged additional premiums "from the very beginning." Id. at paragraph 22. Mr. Mitchell claims that Ms. DeCharles promised to take care of the problem, and that she "had" him "endorse a form that authorized Pan Am to use the cash value of the paid up insurance rider to pay the annual premium." Id. Moreover, he claims that he "had to borrow against the cash value of the policy at one point in order to pay the annual premiums." Id. Suit was filed on April 9, 1997.
Ray's affidavit concerning Mr. Mitchell's claim sets forth a complicated business relationship and payment history. Mr. Ray asserted that the Mitchells[1] were billed $3,022.60 annually for the Pan American policy, which was paid in 1991 and 1992. Ray affidavit, paragraphs 10-11. The second premium notice was due on June 26, 1991. Id. In 1993, the policy was allowed to lapse due to non-payment of premiums, Mr. Ray said, until Ms. Mitchell requested that the premium be paid with the cash value of paid-up insurance that was surrendered for that purpose. Id. at paragraph 13. Then, in January of 1994, Ms. Mitchell "signed the Policy Contract Amendment to execute the automatic premium loan provision of the policy," Mr. Ray said. Id. at paragraph 15. Another "Request for Change of Dividends" was then signed by Ms. Mitchell on June 23, 1994, whereby "she requested that a portion of her Paid-Up additional insurance be surrendered for its cash value of $3,022.60 to pay the annual premium due June 26, 1994," according to Mr. Ray's affidavit. Id. at paragraph 16. The June 26, 1995 premium was also paid by surrender of a portion of paid-up insurance for its cash value, he said. Id. at paragraph 18.
B. Application of law to facts
In Louisiana, "delictual actions are subject to a liberative prescription of one year, commencing to run from the day injury or damage is sustained." La. C.C. art. 3492. Because statutes governing prescription are strictly construed against prescription in favor of the obligation sought to be extinguished, when two possible constructions exist, the construction which favors maintaining, as opposed to barring, an action should be adopted. Asbestos Plaintiffs v. Bordelon, Inc., 96-0525 (La.App. 4 Cir. 10/21/98), 726 So. 2d 926.
Ordinarily, the party pleading the exception of prescription bears the burden of proof. Brown v. American National Property & Casualty Co., 98-2292, p. 1 (La.App. 4 Cir. 10/28/98) 720 So. 2d 1278, 1279. However, where the face of the petition reveals that prescription has run, the burden of proof shifts to the plaintiff to show that prescription has not run. Id. Generally, a ruling on prescription turns on the credibility of the parties as to when the respondents knew or should have known about the existence of the claim. In re Medical Review Panel for Claim of Dede, 98-0830, p. 2 (La.App. 4 Cir. 5/20/98), 713 So. 2d 794, 796.
*1042 In this case, the allegations of the plaintiffs' petition reveal that both Dr. Bergeron's claims and Mr. Mitchell's claims had expired prior to the filing of the suit on April 7, 1997. According to Dr. Bergeron's allegations, he first suffered harm because of Pan American's alleged tortious representation that he would be required to make only ten annual payments on the policy when he received the eleventh premium notice for $6,000 in December 1994, almost two and one-half years before the filing of the suit on April 7, 1997. According to Mr. Mitchell's allegations, he first suffered harm because of Pan American's alleged tortious representation that he would be required to pay only one annual premium on the policy when he received the second premium notice in June 1991, almost six years prior to the filing of suit on April 7, 1997. Accordingly, the plaintiffs have the burden of showing that prescription has not run. To that end, they claim that contra non valentum should be applied to suspend prescription in this case.
C. Contra non valentum
Because of the sometimes harsh consequences which result from the strict interpretation of prescription statutes, contra non valentum has been adopted by Louisiana courts as a jurisprudential exception to prescription. Bordelon, 726 So. 2d 926. Under the doctrine of contra non valentum, prescription does not begin to run until a plaintiff either knew or should have known of a cause of action, even if that knowledge does not occur until long after the wrongful conduct at issue has occurred. Simmons v. Templeton, 97-2349, 98-0043, p. 4 (La.App. 4 Cir. 11/10/98), 723 So. 2d 1009, 1012, writs denied, 98-3050, 98-3060 (La.2/5/99), ___ So.2d ___, ___, 1999 WL 58217, 58260. Contra non valentum therefore suspends the running of prescription during the period in which the cause of action was not known by or reasonably knowable by the plaintiff. Louisiana Plaque Corp. v. Chevron U.S.A. Inc., 93-1597 (La.App. 4 Cir. 5/26/94), 638 So. 2d 354, 356, writ denied, 98-2125 (La.11/11/94), 644 So. 2d 395.
In Jordan v. Employee Transfer Corp., 509 So. 2d 420 (La.1987), the Louisiana Supreme Court clarified the application of contra non valentum, holding that prescription begins to run, not at the earliest possible indication that the plaintiff may have suffered some wrong, but not until the plaintiff has a reasonable basis to pursue a claim against a specific defendant. Id. at 423. Louisiana jurisprudence recognizes that contra non valentum is an exceptional remedy which is in direct contradiction to the articles in the Civil Code and therefore should be strictly construed. Harsh v. Calogero, 615 So. 2d 420, 422 (La. App. 4 Cir.1993).
Under Louisiana law, contra non valentum applies in the following four types of situations:
(1) when courts are legally closed; (2) when administrative or contractual restraints delay the plaintiff's action; (3) when the defendant prevents the plaintiff from bringing suit; and (4) when the plaintiff does not know nor reasonably should know of the cause of action.
In re Medical Review Panel Proceeding Vaidyanathan, 98-0289, p. 5 (La.App. 4 Cir. 9/23/98), 719 So. 2d 604, 607, writ denied, 98-2674 (La.12/18/98), 732 So. 2d 1238.
Citing the fourth circumstance above, the plaintiffs claim that contra non valentum should be applied to suspend prescription in this case because their claims were not reasonably knowable by them until November of 1996 and March of 1997, when they consulted attorneys. However, prescription runs from the time that the plaintiff has actual or constructive knowledge of the tortious act, which has been defined as "the time at which the plaintiff has information sufficient to excite attention and prompt further inquiry." National Council on Compensation Insurance v. Quixx Temporary Services, Inc., *1043 95-0725, p. 7 (La.App. 4 Cir. 11/16/95), 665 So. 2d 120, 124. The heart of the inquiry into constructive knowledge is the reasonableness of plaintiff's inaction.
Under the facts of the instant case, the inaction of the plaintiffs was not reasonable. Both plaintiffs had information sufficient to excite attention and prompt further inquiry when they received the premium notices demanding money beyond the amount they were allegedly told they would be required to pay. In fact, Dr. Bergeron allowed his policy to lapse at that time, and Mr. Mitchell's wife authorized payment of additional premiums through a complex set of transactions over a period of several years after the time they should have known the terms of the policy had been misrepresented. Advice of an attorney was not necessary to place either of the plaintiffs on notice of their cause of action. Thus, contra non valentum did not suspend prescription in this case. Accordingly, we find no error in the trial court judgment dismissing the plaintiffs' tort claims against Pan American on the exception of prescription.
IV. Breach of contract claims
Because the prescriptive period for contract claims is ten years, the breach of contract claims alleged by the plaintiffs in this case are not prescribed. La. C.C. art. 3499. Nevertheless, the trial court properly dismissed the breach of contract claims on the exception of no cause of action for the reasons described more fully below.
Louisiana law concerning the interpretation of insurance contracts was recently explained by the Louisiana Supreme Court as follows:
An insurance policy is a conventional obligation that constitutes the law between the insured and insurer, and the agreement governs the nature of their relationship. La. Civ.Code art. 1983. As such, courts are guided by certain principles of construction and should interpret insurance policies the same way they do other contracts by using the general rules of contract interpretation as set forth in our Civil Code.... When the words of an insurance contract are clear and explicit and lead to no absurd consequence, courts must enforce the contract as written and make no further interpretation in search of the parties' intent. La. Civ.Code art. 2046.
Words in an insurance contract are to be given their generally prevailing and ordinary meaning, unless they have acquired a technical meaning. La. Civ. Code art. 2047. Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy's provisions are couched in unambiguous terms. An insurance contract is construed as a whole and each provision of the policy must be interpreted in light of the other provisions so that each is given meaning. One portion of the policy should not be construed separately at the expense of disregarding other provisions. La. Civ.Code. Art. 2050. An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achieve an absurd conclusion. That is, the rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties' intent. If, after applying the other general rules of construction, an ambiguity remains, the ambiguous contractual provisions is to be construed against the insurer who furnished the policy's text and in favor of the insured finding coverage. When a contract can be construed from the four corners of the instrument without looking *1044 to extrinsic evidence, the question of contractual interpretation is answered as a matter of law....
Peterson v. Schimek, 98-1712, pp. 4-5 (La.3/2/99), 729 So. 2d 1024, 1028-29 (citations to cases omitted).
Dr. Bergeron claims that he was assured by Mr. Davidson that he would be required to pay only ten annual premium payments on the policy he purchased from Pan American in 1984. However, relative to the payment of premiums, the Pan American life insurance policy issued to Dr. Bergeron provides as follows:
Payment of Premiums The initial Premium is due on the policy Date and is payable in advance. The amounts and frequency of Planned Premium Payments are shown on the Policy Schedule. Policy anniversaries occur annually and are computed from the Policy Date.
Pan American policy # XXXXXXXXXX, page 7. The "POLICY SCHEDULE" on page 3 of the policy then lists the "PLANNED PREMIUM PAYMENTS" as "$810.00 MONTHLY." The maturity date of the policy is June 20, 2028, according to the "POLICY SCHEDULE."
Moreover, the Pan American life insurance policy issued to Dr. Bergeron contained the following "integration clause":
Policy Contract This policy, the attached application and any riders or endorsements make up the entire contract. It is based on the application and the payment of the initial premium. All statements made by the insured in the application are representations not warranties. Statements may be used to contest a claim or the validity of the policy only if they are contained in an application or supplemental application, or application for reinstatement and a copy of such application is attached to the policy when issued or made a part of the policy when a change in insurance coverage or reinstatement became effective.
Only the President, Vice-President, Secretary or Assistant Secretary can modify this policy. Any changes must be made in writing. No agent has the authority to alter or modify any of the terms, conditions or agreements of this policy, or to waive any of its provisions.
Id. at 15 (emphasis added).
Mr. Mitchell claims that he was told that only one premium payment would be required on the Pan American policy purchased in June of 1990. However, relative to the payment of premiums, the cover page of the Pan American Whole Life Policy states as follows: "Premiums Payable for Stated Period." Policy # XXXXXXXXXX. Moreover, the "Stated Period" for the $2,091.80 premium on the whole life policy is defined on page 3 as 49 years. Moreover, page 3 lists an "additional premium" of $930 payable for 20 years, as well as a paid-up insurance rider of $23,151.39 for one year.
The Pan American policy issued to the Mitchells also contains the following "integration clause":
Policy Contract This policy, the attached application and any riders or endorsements make up the entire contract. It is based on the application and the payment of the premium amount. All statements made by the Insured in the application are representations and not warranties. Statement may be used to contest a claim or the validity of the policy only if they are contained in the attached application when issued.
Only the President, Vice President, Secretary or Assistant Secretary can modify this policy. Any changes must be made in writing. No agent has the authority to alter or modify any of the terms, conditions or agreements of this policy, or to waive any of its provisions. *1045 Id. at 12 (emphasis added). Moreover, the cover page of the Mitchell policy contains the following provision:
RIGHT TO EXAMINE POLICY
Within 20 days after this policy is first received, it may be canceled for any reason by delivering or mailing it to our Home Office in New Orleans, Louisiana, or to the agent through whom it was purchased.
Upon cancellation we will return any premium paid.
This is a legal contract between you and us.
PLEASE READ YOUR POLICY AND APPLICATION CAREFULLY
Id.
The plaintiffs fail to point out any provision of the written insurance policies which have been allegedly breached by Pan American. Moreover, in their brief to this court, the plaintiffs admit that "Louisiana law does not allow parol evidence to vary the terms of an unambiguous written contract." Id. at 17. In support of their contention that the trial court improperly granted the exception of no cause of action on their breach of contract claims, the plaintiffs assert the exception to the parole evidence rule which allows the introduction of parole evidence to prove fraud, misrepresentation, and error. See La. C.C. art. 1848. However, we have already concluded that the plaintiffs' fraud and misrepresentation claim have prescribed. The parole evidence rule may not be used to vary the unambiguous terms of the written insurance policy; the unambiguous terms of the written insurance policies at question hereas outlined abovereveal that the plaintiffs have failed to even allege any breaches of the written policy. Accordingly, we find no error in the trial court judgment dismissing the plaintiffs' breach of contract claims on the exception of no cause of action.
V. Conclusion
Accordingly, the trial court judgment dismissing the plaintiffs' claims against Pan American is affirmed.
AFFIRMED.
NOTES
[1] Pan American policy # XXXXXXXXXX was issued to Jo Ann Mitchell, not to Mr. Mitchell. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1886437/ | 195 B.R. 954 (1996)
In re Earl J. MOULTON, Wanda Sue Moulton, Debtors.
Earl J. MOULTON, Wanda Sue Moulton, Plaintiffs,
v.
UNITED STATES of America, DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, D.W. Rucker and P. Dougherty, Defendants.
Bankruptcy No. 80-822-8P3. Adv. No. 93-733.
United States Bankruptcy Court, M.D. Florida, Tampa Division.
March 19, 1996.
*955 Malka Isaak, Tampa, FL, for Plaintiffs.
Mary Apostolakos Hervey, Trial Atty., U.S. Dept. of Justice, Washington, DC, for Defendant (USA).
ORDER ON MOTION FOR ASSESSMENT OF ATTORNEY'S FEES (# 12) AND ORDER ON SUPPLEMENT TO MOTION FOR ASSESSMENT OF ATTORNEY'S FEES (# 16)
ALEXANDER L. PASKAY, Chief Judge.
On April 14, 1995, in its Order on Motion for Assessment of Attorney's Fees, this Court described the latest chapter in the ongoing battle between Earl J. and Wanda Sue Moulton (Debtors) and the United States (Government). The present matter is hopefully the conclusion of that saga and involves a determination of the correct amount of attorney's fees to be awarded to the Debtors as reimbursement for legal fees they incurred in successfully defending the rights granted them by the discharge upon completion of their Chapter 13 Plan. The April 14th Order found that the IRS violated the permanent injunction granted by the discharge, that the Debtors were the prevailing party and were entitled to an award of damages and attorney fees. The Order scheduled a final evidentiary hearing to determine the Debtors' right to compensation, including the proper amount to be allowed to Ms. Isaak for services rendered to the Debtors in connection with the ongoing litigation with the Government.
At the properly noticed and rescheduled final evidentiary hearing, Ms. Isaak failed to timely appear; but when she did appear she claimed that she did not receive the notice of the rescheduled evidentiary hearing, and as a result, did not have any witnesses. She proffered that she would introduce evidence as to her superior skill, specialized knowledge of bankruptcy law, and related evidence to support her request to be compensated for her services at a rate of $225.00 per hour. Although both counsel for the Plaintiff and counsel for the Government were given an opportunity to submit legal authorities in support of and in opposition to the Motion under consideration, the Court received only one submission from the Government.
The record in this long drawn-out case reveals that Earl J. and Wanda Sue Moulton (Debtors) successfully completed their Chapter 13 case and obtained their discharge pursuant to § 1328 of the Code. In due course, their Chapter 13 case was closed. Among the debts which were discharged were the following pre-petition obligations owed by the Debtors:
§ 6672 of the Internal Revenue Code penalties for the period ending 6/30/80; and
§ 6672 for the period ending 9/30/82.
Notwithstanding, on May 15, 1990, the Internal Revenue Service (IRS) filed a Notice of Federal Tax Lien for the § 6672 penalties which were discharged in the total amount of $25,623.65. In order to protect the benefits of their discharge and stop any further collection efforts by the IRS of the discharged *956 debts, the Debtor sought to reopen their closed case, and after the case was reopened, sought a contempt citation against the IRS and imposition of sanctions. On October 16, 1991, this Court entered an Order finding the IRS in contempt for the willful violation of the permanent injunction granted to discharged debtors by § 524(a)(4) of the Code and scheduled a hearing for November 14, 1991, to consider the amount of sanctions warranted under the circumstances. Even though the contempt proceeding was already pending, the IRS persisted in its collection efforts by issuing a final Notice of Intention to Levy on September 14, 1991. At the November 14, 1991, hearing counsel for the Government assured the Court, the Counsel for the Debtor and the Debtors that steps had been taken to promptly cease any further collection efforts of the discharged debts and prevent any further collection activities.
The Court took the matter of sanctions under advisement. While the matter was still under advisement the following events took place:
On December 17, 1991, Mr. Moulton received a certified letter from Coast Bank informing him that the IRS served a notice of levy on the Debtor's bank account and the Bank honored the levy and placed $1,359.28 in a general ledger account until January 2, 1992, to be paid over to the IRS within 21 days thereafter. A copy of the Notice Of Levy was included in the letter sent to the Bank, which also included a Debit Advice. At the time the account of the Debtor was frozen, the Debtor had several checks outstanding including two mortgage payments one to Williamsburg Mortgage Services, and the other to Ford Motor Credit Co. The outstanding checks also included one for a car payment to GMAC. Obviously, the Debtors were utterly stunned by the news, especially since they felt assured after the November 14th hearing that they would no longer be harassed by the IRS. Of course, they had to request aid from their attorney Ms. Isaak, who was successful in rescinding the levy and ultimately freezing the funds from the levy to be re-credited to the Debtor's account.
On October 8, 1992, this Court entered an Order and awarded sanctions against the Government for the violation of the permanent injunction and ordered the Government to pay $4,659.00 to the Debtors to compensate them for the legal expenses they incurred as the result of the Government's contumacious conduct. On October 19, 1992, the Government filed its Notice of Appeal challenging this Court's October 9th Order. Before the appeal was resolved, the Government and the Debtors settled the Controversy and the Government paid the Debtors the amount awarded to them by the October 8th Order and the appeal was dismissed by the District Court.
Contrary to the Debtor's expectations that peace had finally arrived, their expectations went up in smoke when Mrs. Moulton received a letter from the IRS dated August 3, 1993, which included a Final Notice (a Notice of Intention to Levy) requesting a payment of $25,159.24. On October 7, 1993, an IRS agent came to the Moultons' residence but was told to contact their attorney, Ms. Isaak.
It appears that during this period, the Debtors were making monthly payments to the IRS on a totally unrelated obligation which involved their 1991 income tax liability which was not discharged. On October 18, 1993, the Debtors received a letter from the IRS regarding their alleged failure to make monthly payments pursuant to the arrangement agreed upon with the IRS. In fact, the Debtors were current on their monthly payments. They later learned that the alleged default was due to the fact that their monthly payments in the amount of $350 made during August and September, 1993, were applied by the IRS to the "$25,159.24 civil tax penalty," the tax which was discharged on January 28, 1988.
Of course this unexpected and, needless to say, extremely disturbing development again required the Debtors to seek redress from the continuing collection harassment of the Debtors by the IRS. Accordingly, they again requested that Ms. Isaak seek permanent relief from any further collection action of the discharged debt.
On October 22, 1993, Ms. Isaak instituted the present adversary proceeding by filing *957 her two-count Complaint. In Count I of the Complaint, the Debtors seek permanent injunction, relief which is theoretically not necessary since they obtained a permanent injunction when they received their discharge in 1988. In Count II, the Debtors seek the entry of a Judgment finding "the United States of America, Department of Treasury, Internal Revenue Service" in contempt of Court and an award for contempt, fines, sanctions, and damages in favor of the Debtors and against the United States of America, Department of Treasury, Internal Revenue Service.
This leaves for consideration the amount of attorney's fees which should be awarded to Ms. Isaak. It is the Government's position that attorney's fees are limited to $75.00 per hour by 28 U.S.C. § 2412(d)(2)(A), which rate cannot be increased except for adjustment for increase in cost of living or for a special factor, such as limited availability of qualified attorneys for the proceeding involved which would justify a higher fee.
As noted earlier, this Court only received a post-trial brief from the Government and none from counsel for the Debtors. The Government submission is concentrated exclusively to the applicability of the Equal Access to Justice Act (EAJA) and its limitation on the award but did not address the availability of the precise relief sought that is "the fines, sanctions, and damages." Clearly, if EAJA applies to litigation, no fines or sanctions can even be considered as the amended version of § 106, which waived the sovereign immunity and authorized the Court to "issue against a governmental unit an order, process, or judgment . . . including judgment awarding a money recovery," but expressly prohibited the award of punitive damages.
There is nothing in this record which would support any damage award to the Debtors. As far it appears, the improper application of the monthly payments have been corrected and the proper credit has been accorded to the installment payment obligation of the Debtors. In addition, the Debtors already have been compensated for all damages they suffered for the improper levy on their bank account by the award of $4,659.00, which has been paid. This leaves for consideration the award for attorney fees to Ms. Isaak which is governed by the limitations set forth in EAJA.
The Bankruptcy Reform Act of 1994 (Pub. L.No. 103-394, 108 Stat. 4106 1994) amended § 106 of the Bankruptcy Code and abrogated sovereign immunity with respect to specified actions under several sections of the Code and authorized the Bankruptcy Court to issue against a governmental unit, orders, processes, or judgments awarding money recovery but not including an award for punitive damages. § 106(a)(3). The amendment further provides that any award must be consistent with the limitation of 28 U.S.C. § 2412(d)(2)(A). This Section provides:
(2) For the purposes of this subsection
(A) "fees and other expenses" includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test or project which is found by the court to be necessary for the preparation of the party's case, and reasonable attorney fees (The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that (i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the United States; and (ii) attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special favor such as the limited availability of qualified attorneys for the proceeding involved, justifies a higher fee).
Section 2412(d)(2)(A) of the EAJA requires a two-part analysis. First, it requires a determination of the prevailing market rate; second, if the market rate exceeds the $75.00 per hour cap fixed by the Statute, the court may consider whether or not an upward adjustment is warranted. Meyer v. Sullivan, 958 F.2d 1029 (11th Cir.1992). The cost of living adjustment was designed to insulate the fee awards from the effects of inflation, but the adjustment is not mandatory. Meyer v. Sullivan, supra. The cost of living adjustment, if applied, is based on the *958 Consumer Price Index (C.P.I.). The appropriate index is not the personal component index but the "all items" index. Dewalt v. Sullivan, 963 F.2d 27 (3rd Cir.1992); Sullivan v. Sullivan, 958 F.2d 574 (4th Cir.1992). The appropriate formula is:
75 × the recent C.P.I.
______________________
C.P.I. as of 10/1/81
Bullfrog Films, Inc. v. Catto, 815 F. Supp. 338 (C.D.Cal.1993). In determining the recent C.P.I. rate, it is appropriate to use the rate when the services were rendered and not when the award is made. Marcus v. Shalala, 17 F.3d 1033 (7th Cir.1994). This Court is satisfied that it is appropriate to make an adjustment of the statutory cap for cost of living increase. The C.P.I. rate on October 1, 1981 was 93.4. In the present instance, services were rendered between October 1993 and October 1994, during which period the C.P.I. ranged from 145.7 to 149.5. According to the formula, the adjustment for inflation cannot exceed a range of 116.99 (75 × 145.5 divided by 93.4).
The statute also permits an additional adjustment upward from the statutory cap of $75.00 per hour rate for special factors. The Statute enumerates only one special factor which is the limited availability of qualified attorneys. Clearly this special factor is merely illustrative and not the only one which a court may consider if further fee enhancement is warranted. The limited availability factor has been construed to refer to situations where the attorney is required to have specialized knowledge such as patent law or foreign law. Pierce v. Underwood, 487 U.S. 552, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988). In Pierce, the District Court construed the special factor enumerated in the Statute to mean "the limited availability for the proceedings involved." The Supreme Court rejected this construction by stating that if the term means that lawyers skilled and experienced enough to try cases are in short supply, it would effectively eliminate the $75.00 cap since the prevailing market rates for the kind and quality of services furnished are determined by the relative supply of that kind and quality of services. The Supreme Court in Pierce, supra, stated that the term refers to the attorney having some distinctive knowledge or specialized skill needed for the litigation in question as opposed to an extraordinary level of the general lawyerly knowledge and ability useful in all litigation. The Supreme Court also rejected the following special factors which would warrant fee enhancement found to be valid by the District Court: "novelty and difficulty of issues;" "undesirability of the case;" "work and ability of counsel;" and "the results obtained." The Supreme Court characterized these as little more than routine reasons why market rates are what they are. It also noted that customary fees and awards is not even a routine reason for market rates rather than a description of the market rates. The Court concluded that the District Court abused its discretion relying on these factors. It also concluded that the contingent nature of the fee a non-factor. The Court noted that once the $75.00 cap is exceeded neither a client paying a reasonable hourly rate nor the client paying a reasonable contingent fee is fully compensated because the Statute was not designed to reimburse reasonable fees without limit.
The Eleventh Circuit Court of Appeals was presented with the same issue which is under consideration in the present instance in the case of Jean v. Nelson, 863 F.2d 759 (11th Cir.1988), a case decided after the decision of the Supreme Court in Pierce. Although Jean was an extremely complex and protracted litigation and involved numerous issues not relevant here, it also involved the special factors which the courts may consider when an allowance is sought under EAJA. The Court noted first that, given that the EAJA constitutes a partial waiver of the sovereign immunity of the Government, the Act must be strictly construed if the statutory cap is exceeded and any enhancement must be because it is permitted by the Act. Library Of Congress v. Shaw, 478 U.S. 310, 106 S. Ct. 2957, 92 L. Ed. 2d 250 (1986). Both the Supreme Court and the Eleventh Circuit discussed in great detail factors which are not special factors warranting enhancement, but failed to offer any specifics which might be considered by the Court when enhancement is sought. The Eleventh Circuit in Jean indicated, however, that the Government's unusually litigious position might constitute *959 a special factor. In a footnote, the Jean case compared the requirement to impose sanctions pursuant to Fed.R.Civ.P. 11 which requires the court to distinguish between contentions that have often have no "reasonable basis in law or fact" and those injected without any purpose but to harass. Jean, 863 F.2d 759, 776 at n. 13. The Court noted that the Rule was meant to eliminate frivolity and harassment but not attorney zealousness, emphasizing however that nothing "routine" or "generally applicable to a broad spectrum of litigation" can count. Pierce at 570-72, 108 S.Ct. at 2553.
Applying the foregoing principles to the matter of proper allowance to Ms. Isaak for services rendered, it is clear the claimed specialized knowledge is not a recognizable factor. To recognize knowledge, even a thorough knowledge of the Bankruptcy Code, would entitle every bankruptcy practitioner to qualify for enhancement when they seek an allowance against the Government under the EAJA. The Eleventh Circuit in Jean indicated that a special expertise in immigration law might qualify for enhancement coupled with the fact that at least one of the attorneys is fluent in French and Haitian Creole which was crucial to the attorney's work in communicating with and preparing the testimony of the Haitian Plaintiffs. The Court indicated that on remand the district court may consider these as "special factors." It also should be noted that the dissent did not consider that attorneys practicing immigration law have any "distinctive knowledge or specialized skill needful for the litigation involved." The Fifth Circuit in Powers v. Commissioner, 43 F.3d 172 (5th Cir.1995) did not consider specialization to qualify as a "special factor." Be that as it may, it would be far-fetched indeed to accept the proposition that specialization in bankruptcy law in the 80's and in the 90's, especially in districts with high volume, may fairly be equated with immigration law or special expertise in native American law. See, Hoopa Valley Tribe v. Watt, 569 F. Supp. 943 (N.D.Cal.1983). However, this Court is satisfied that the continuing litigation and defense by the Government of totally indefensible conduct of the IRS may properly be considered as "special factor," sufficient to warrant an enhancement in addition to the application of the C.P.I. to the statutory cap.
Having considered the principles discussed earlier which a court may take into account in making a fee award to an attorney under EAJA, this Court is satisfied that in this instance, it is appropriate to enhance the $75 statutory cap with the applicable C.P.I. pursuant to the formula outlined. In addition, this Court is also satisfied that based on the utterly inexcusable and egregious conduct of the IRS, there is a cognizable "special factor" in this instance. See Jean v. Nelson, supra at 774. Based on the foregoing, this Court is satisfied that the appropriate hourly rate is $150 or double the statutory cap of $75.00.
One last comment. The Government, in its supplemental opposition, challenged Ms. Isaak's right to compensation of certain services which, according to the Government, were inadequately described, unreasonable in terms of the time expended, consisted of multiple services set forth in one time entry (lumping), sought compensation for some items which are overhead and thus not compensable and also for some services which were not required because of anything which was done by the Government but rather were due to the counsel's failure to act in a diligent fashion.
As noted before, this Court did not receive any submission by way of a response to these challenges of the Government, and thus this Court is required to peruse Ms. Isaak's request without the benefit of her comments on the request for allowance. Having considered the entire record, this Court is satisfied that the total compensable hours are 15 hours at the rate of $150 per hour enhanced by the applicable C.P.I., or a total of $3,505.08.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Motion for Assessment of Attorney's Fees and the Supplement to Motion for Assessment of Attorney's Fees be, and the same are hereby, granted and a reasonable fee for services rendered during the applicable time period by Malka Isaak is hereby determined to be $3,505.08 and reasonable expenses incurred during the relevant *960 time period are hereby determined to be $18.80, for a total reimbursement of $3,523.88. It is further
ORDERED, ADJUDGED AND DECREED that the Defendant shall pay the sum of $3,523.88 to the attorney for the Debtors, Malka Isaak, within 30 days of the date of entry of this Order.
DONE AND ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2629132/ | 242 P.3d 709 (2010)
238 Or. App. 385
STATE of Oregon, Plaintiff-Respondent,
v.
Richard Andrew NEWELL, Defendant-Appellant.
200613140; A138850.
Court of Appeals of Oregon.
Submitted November 24, 2009.
Decided November 3, 2010.
Peter Gartlan, Chief Defender, and Ryan T. O'Connor, Deputy Public Defender, Appellate Division, Office of Public Defense Services, filed the brief for appellant.
*710 John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Michael R. Washington, Senior Assistant Attorney General, filed the brief for respondent.
Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.
LANDAU, P.J.
Defendant appeals from an amended judgment that revoked his probation and imposed revocation sanctions of imprisonment on his four convictions for second-degree encouraging child sexual abuse. ORS 163.686. On appeal, defendant contends that the trial court erred in imposing the revocation sanctions of imprisonment consecutively to one another without first having made findings in support of consecutive sentences pursuant to ORS 137.123. For the reasons explained below, we affirm.
The relevant facts are not in dispute. In September 2006, defendant pleaded guilty to four counts of encouraging child sexual abuse in the second degree, based on admissions that he was in possession of child pornography. On the first count, the sentencing court classified defendant under grid block 5-F on the sentencing guidelines, which provides for a presumptive probationary sentence of two years, but imposed an upward durational departure sentence of three years' probation; on the second, third, and fourth counts, which were classified under grid blocks 5-C, 5-B, and 5-A, respectively, and which carried presumptive sentences of imprisonment, the court imposed downward dispositional departure sentences of three years' probation on each of those. The court did not make findings in support of consecutive sentences pursuant to ORS 137.123.
In April 2008, the court revoked defendant's probation on all four convictions based on defendant's admission that he had committed five probation violations. On the first conviction, the court imposed a revocation sanction of six months' imprisonment. On the second conviction, the court imposed a term of imprisonment of 12 months, to be served consecutively to the term imposed for the first conviction. On the third conviction, the court imposed a term of imprisonment of 14 months, to be served consecutively to the term imposed on the second conviction. And on the fourth conviction, the court imposed a term of imprisonment of 16 months, to be served consecutively to the term imposed on the third conviction.[1] In sum, the court imposed a total period of incarceration of 48 months.
At the probation revocation hearing, defendant argued that, although he had waived a jury when he pleaded guilty to the charges and had stipulated to the violations, under State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007),[2] the court could not impose consecutive revocation sanctions because factual findings in support of such sanctions were required by ORS 137.123, and defendant had not waived his right to jury findings in support of revocation sanctions. The court rejected that argument, noting that OAR XXX-XXX-XXXX(2)(b) provided authority, when a defendant is serving multiple probationary terms and commits multiple supervision violations, for the court to "impose the incarceration sanctions concurrently or consecutively." Thus, the court concluded that findings pursuant to ORS 137.123 were not necessary; the only findings required were the findings of multiple supervision violations to which defendant had, in fact, stipulated.
On appeal, defendant has abandoned his argument concerning Ice, but continues to contend that probation sanctions that involve consecutive terms of incarceration require factual findings made pursuant to ORS 137.123. He asserts that, if the court does not make the required findings under ORS 137.123, the sanctions must be concurrent. In this case, defendant contends, the court *711 did not make the necessary findings at the probation revocation proceeding, and defendant did not admit to them when he pleaded guilty to the four offenses. Accordingly, he concludes, the sentencing court could impose only concurrent terms for each conviction upon revocation of probation.
The state does not dispute that the court did not make the findings that would be required for the imposition of consecutive sentences under ORS 137.123. It nevertheless contends for two reasons that the trial court did not err in imposing consecutive sentences without making such findings. First, the state contends that the sentencing guideline administrative rule, OAR XXX-XXX-XXXX(2)(b), provides for the imposition of consecutive sentences upon revocation of probation and makes no mention of any finding requirement. The state acknowledges that, in that respect, the sentencing guideline stands in direct conflict with ORS 137.123. According to the state, because the sentencing guidelines have "the authority of statutory law," the guidelines should prevail over any inconsistency in ORS 137.123 because the guidelines are more recent. Second, the state argues that, in any event, ORS 137.123 does not apply to probation revocation sanctions and, instead, applies to initial sentencing only.
As explained below, we conclude that ORS 137.123 applies when a person is sentenced (or resentenced), but has no application in the context of probation violation proceedings.
ORS 137.123 provides in part:
"(1) A sentence imposed by the court may be made concurrent or consecutive to any other sentence which has been previously imposed or is simultaneously imposed upon the same defendant. The court may provide for consecutive sentences only in accordance with the provisions of this section. A sentence shall be deemed to be a concurrent term unless the judgment expressly provides for consecutive sentences.
"* * * * *
"(5) The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:
"(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant's willingness to commit more than one criminal offense; or
"(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct."
The statute plainly asserts in subsection (1) that a court may impose consecutive sentences "only in accordance with the provisions of this section" and, in subsection (5), then states that findings are required.
The sentencing guideline on which the state relies, OAR XXX-XXX-XXXX(2)(b), applies to the imposition of a sentence upon revocation of probation. It provides, in part:
"(2) When an offender is serving multiple terms of probationary supervision, the sentencing judge may impose revocation sanctions for supervision violations as provided by OAR XXX-XXX-XXXX for the violation of each separate term of probationary supervision.
"(a) If more than one term of probationary supervision is revoked for a single supervision violation, the sentencing judge shall impose the incarceration sanctions concurrently.
"(b) If more than one term of probationary supervision is revoked for separate supervision violations, the sentencing judge may impose the incarceration sanctions concurrently or consecutively."
The rule does not require findings before imposing consecutive incarceration sanctions on revocation of probation for multiple supervision violations. The question in this case *712 requires us to determine how to reconcile the statute and the guideline.
We begin with the state's argument that the guidelines control because they, in effect, supersede any contrary requirement of the statute. The linchpin of the state's argument is its assertion that the sentencing guidelines are themselves statutes. According to the state, that assertion is supported by State v. Langdon, 330 Or. 72, 74, 999 P.2d 1127 (2000), in which the Oregon Supreme Court stated that, "[a]lthough the sentencing guidelines were created as administrative rules, the legislature approved them in 1989, thus giving them the authority of statutory law." That means, the state contends, that the ordinary rules of statutory construction that pertain to conflicting statutes come into play, and one of those rules is that more recently enacted and particular statutes prevail over older more general statutes that stand in irreconcilable conflict.
The problem with the state's argument is its premise, viz., that the sentencing guidelines are statutes. We considered, and rejected, precisely that argument in State v. Norris, 188 Or.App. 318, 72 P.3d 103, rev. den., 336 Or. 126, 81 P.3d 709 (2003), which the state does not cite. (Indeed, the state's argument in this case is especially odd, given that it is directly contrary to the argument that the state advanced in Norris.)
In Norris, the defendant argued that certain amendments to the sentencing guidelines are unconstitutional because their adoption did not conform with the publication requirements of Article IV, section 22, of the Oregon Constitution, which applies only to the enactment of statutes. The defendant, citing Langdon, contended that, because the sentencing guidelines have the force of statutes, they should be considered as such and, as a result, subject to the publication requirements of Article IV, section 22.
We rejected the argument, explaining:
"True, [Langdon * * * says] that the guidelines have `the authority of statutory law.' But that hardly establishes that the guidelines actually are statutes for the purposes of Article IV, section 22. Indeed, any valid administrative rulewhether or not approved by the legislaturehas the effect of statutory law. As the Supreme Court explained in Bronson v. Moonen, 270 Or. 469, 476, 528 P.2d 82 (1974): `Administrative rules and regulations are to be regarded as legislative enactments having the same effect as if enacted by the legislature as part of the original statute.'
"Merely because the legislature expresses its approval by means of a statute does not transform the object of that approval into a statute. The legislature, for example, may approve certain agency expenditures. The approval may be expressed in the form of a statute, but that does not transform the expenditures themselves into statutes. Similarly, the legislature may approve applications for the use of certain water rights. ORS 537.805(4)(a). Again, the approval may be expressed in the form of a statute, but that does not transform the applications themselves into statutes. It stands to reason, therefore, that, merely because the legislature in 1989 declared its approval of the sentencing guidelines by statute, it did not thereby transform the guidelines themselves into statutes. They were promulgated as administrative rules, and administrative rules they remained[.]"
Id. at 342-43, 72 P.3d 103 (citations omitted; emphasis in original).
Thus, the predicate for the application of the statutory construction rules on which the state relies does not exist: The guidelines are not statutes; rather, they are administrative rules. It is elementary that, when an administrative rule cannot be reconciled with a statute, it is the statute that controls. See, e.g., Avis Rent A Car System, Inc. v. Dept. of Rev., 330 Or. 35, 41, 995 P.2d 1163 (2000) (administrative rule that conflicts with statute is invalid). Accordingly, to the extent that the sentencing guideline in this case conflicts with ORS 137.123, it would be invalid.
That leads to the state's second argument that, in any event, there is no such conflict, because ORS 137.123 applies only to the imposition of sentences and not to the imposition of probation revocation sanctions. On *713 that argument, the state fares somewhat better.
As we have noted, ORS 137.123 plainly provides that a court may impose consecutive sentences only if the court makes appropriate findings. The question is whether imposing sanctions upon revocation of probation is "sentencing" within the meaning of that statute. The relevant statutes appear to draw a distinction between sentencing and the imposition of probation revocation sanctions. ORS 137.120(2), for example, refers to sentencing as occurring after a person "is convicted," while, in contrast, ORS 137.545(5)(b) provides that the court that imposed a probationary sentence "may revoke probation supervision and impose a sanction as provided by the rules of the Oregon Criminal Justice Commission." (Emphasis added.) If the legislature uses different terms in statutes, we generally will assume "that the legislature intends different meanings" for those terms. Dept. of Transportation v. Stallcup, 341 Or. 93, 101, 138 P.3d 9 (2006) (citing State v. Keeney, 323 Or. 309, 316, 918 P.2d 419 (1996)).
Our case law similarly draws a distinction between sentencing (or resentencing) and proceedings held concerning probation violations, and the sanctions that may be imposed as a result. In State v. Hoffmeister, 164 Or.App. 192, 990 P.2d 910 (1999), the trial court, upon revoking the defendant's presumptive probationary sentence that had been imposed under grid block 7-I of the guidelines, determined that the defendant's criminal history was such that he should have been classified under grid block 7-C. Accordingly, the court imposed, as a revocation sanction, the 21-month prison term that was "within the sanction range prescribed by gridblock 7-C," id. at 194, 990 P.2d 910, but was not within the sanction range prescribed by grid block 7-I. We held that reclassifying the defendant and imposing a revocation sanction based on a different classification than the one used at sentencing was error. We noted that the court had no "inherent authority to modify executed sentences." Id. at 196, 990 P.2d 910 (citing State v. DeCamp, 158 Or.App. 238, 243, 973 P.2d 922 (1999)). The defendant's "probationary sentence had been executed," and thus "the trial court had no authority to modify [the] executed sentence[.]" Hoffmeister, 164 Or.App. at 197, 990 P.2d 910. See also State v. Bolf, 217 Or.App. 606, 176 P.3d 1287 (2008) (where court accepted stipulation at sentencing to a grid block that carried a presumptive probationary sentence, court lacked authority to reclassify the defendant to a different grid block in order to impose a greater probation revocation sanction).
The pertinent administrative rules promulgated by the Oregon Criminal Justice Commission likewise maintain a distinction between how consecutive "sentences" are handled and how probation sanctions involving consecutive incarceration terms are handled. The rule that is directly on point, OAR XXX-XXX-XXXX(2), does not use the term "consecutive sentence," but provides instead:
"When an offender is serving multiple terms of probationary supervision, the sentencing judge may impose revocation sanctions for supervision violations as provided by OAR XXX-XXX-XXXX for the violation of each separate term of probationary supervision.
"* * * * *
"(b) If more than one term of probationary supervision is revoked for separate supervision violations, the sentencing judge may impose the incarceration sanctions concurrently or consecutively."
In sum, that rule addresses consecutive "revocation sanctions" or "incarceration sanctions," whereas ORS 137.123 addresses "consecutive sentences." OAR XXX-XXX-XXXX, which is cross-referenced in OAR XXX-XXX-XXXX, likewise does not use the phrase "consecutive sentences." Although it does, at points, use the word "sentence," it specifically refers to a revocation sanction as "the sentence upon revocation," OAR XXX-XXX-XXXX(1), (2). Thus, we conclude that the Oregon Criminal Justice Commission's rules, like the legislature's statutes, maintain a distinction between a consecutive sentence imposed upon conviction, and a consecutive incarceration sanction imposed as a result of multiple probation violations.
To the extent that there is any doubt about this, it is, in any event, squarely resolved by *714 reference to the commentary to the original sentencing guidelines, as enacted by the legislature in 1989. The pertinent provisions of OAR XXX-XXX-XXXX(2) and OAR XXX-XXX-XXXX have not changed. With respect to OAR XXX-XXX-XXXX(2), the commentary provides:
"Section 2. A different rule applies to revocation sanctions associated with multiple terms of probation which may result in revocation sanctions for each term of probation. The prison term associated with the revocation sanction will be served concurrently or consecutively depending on the nature of the supervision violation. Under subsection (a), if the basis for multiple revocations is a single supervision violation, the incarceration-term sanctions must be served concurrently. Under subsection (b), if multiple probationary terms are revoked for separate and distinct supervision violation[s], the incarceration-term sanctions may be imposed consecutively."
Oregon Sentencing Guidelines Implementation Manual 118 (1989) (emphasis added).
Similarly, the commentary for OAR XXX-XXX-XXXX provides that "[t]he sanctions described by this rule are penalties for supervision violation and do not directly relate to the crime of conviction." Id. at 170 (emphasis added).
The purpose of probation violation hearings is for a court to consider whether "the purposes of probation are not being served, or * * * the terms thereof have been violated." Barker v. Ireland, 238 Or. 1, 4, 392 P.2d 769 (1964). None of the rules or statutes cited above, and none of our case law, supports defendant's suggestion that the facts of the underlying crimes would need to be relitigated (which would necessarily need to occur were ORS 137.123 to apply in this circumstance) in order to determine the appropriate sanctions to impose for probation violations.
Accordingly, we conclude that the trial court was correct in determining that the sole criterion for whether it could impose multiple incarceration sanctions was whether there had been multiple probation violations. OAR XXX-XXX-XXXX(2).
Affirmed.
NOTES
[1] Each of those sanctions corresponded with the presumptive sentence that could have been imposed for those convictions under grid blocks 5-C, 5-B, and 5-A, respectively. See OAR XXX-XXX-XXXX(2) (providing that, for offenders whose probation sentence was a departure sentence, "the sentence upon revocation shall be a prison term up to the maximum presumptive prison term which could have been imposed initially").
[2] Defense counsel made this argument before the United States Supreme Court reversed that holding in Oregon v. Ice, 555 U.S. ___, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009). | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2629133/ | 242 P.3d 545 (2010)
2010 OK CIV APP 97
Betty WEST, Plaintiff/Appellant,
v.
Steve SPENCER d/b/a Spencer's Smokehouse & Barbeque, and D. Wayne Brewer d/b/a, 23 Post Plaza Company, Defendants/Appellees.
No. 107,156. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.
Court of Civil Appeals of Oklahoma, Division No. 3.
June 4, 2010.
Certiorari Denied September 27, 2010.
*547 Rex Travis, Paul D. Kouri, Oklahoma City, OK, for Plaintiff/Appellant.
Paul B. Middleton, Dobbs & Middleton, Oklahoma City, OK, and Randy L. Goodman, Randy L. Goodman, P.C., Nicoma Park, OK, for Defendant/Appellee.
BAY MITCHELL, Judge.
¶ 1 In this premises liability action, Plaintiff/Appellant, Betty West, appeals from orders granting summary judgment to Defendants/Appellees, Steve Spencer d/b/a Spencer's Smokehouse & Barbeque ("Spencer") and D. Wayne Brewer d/b/a 23 Post Plaza Company ("Brewer").[1]
¶ 2 Plaintiff sustained personal injuries when the toe of her shoe caught in an expansion joint in the sidewalk after exiting Spencer's restaurant.[2] It was in the afternoon and Plaintiff admitted there was nothing obscuring her vision of the sidewalk. The evidence showed the joint was approximately 7/8 inch wide and between ¼ to ½ inch deep. Plaintiff contends the expansion joint was wider and deeper than necessary, allowing the toe of her shoe to catch in the joint. Plaintiff filed suit against Spencer, the restaurant owner, and Brewer, the property owner, alleging her fall was caused by Defendants' negligence.
¶ 3 Brewer's motion for summary judgment contends the expansion joint was a "trivial defect" for which no liability could attach as a matter of law. Plaintiff responded, arguing the "trivial defect doctrine" was inapplicable to private landowners and the sidewalk had a "deceptively innocent appearance." Brewer replied that Plaintiff failed to present evidence the expansion joint in question was different from any other expansion joint, and any defect was apparent and observable. The trial court granted Brewer's motion for summary judgment without explanation of the basis for its decision.
¶ 4 The threshold question for any negligence action is whether the defendant owed a duty to the plaintiff. Pickens v. Tulsa Metro. Ministry, 1997 OK 152, ¶ 8, 951 P.2d 1079, 1082. Brewer contends under the "trivial defect doctrine" no duty was owed to Plaintiff. The doctrine is described in Evans v. City of Eufaula, 1974 OK 116, ¶¶ 26-27, 527 P.2d 329, 332:
A municipality will not be liable for every defect or obstruction, however slight or trivial, or little likely to cause injury, or for every inequality or irregularity in the surface of the way, but is only required to guard against danger it could have, or should have, anticipated in the exercise of reasonable care and prudence. When a defect is so slight that no careful or prudent person would reasonably anticipate any danger from its existence, but still an accident occurs which could have been guarded against by the exercise of extraordinary care and foresight, the municipal corporation is entitled to a directed verdict.
More recently, it was stated another way:
[The municipality] is answerable only for negligence in failing to repair, remove or guard against substantial (as distinguished from slight or trivial) defects or obstructions after actual or constructive notice of their existence is established.
McCathern v. City of Oklahoma City, 2004 OK 61, ¶ 20, 95 P.3d 1090, 1098 (footnotes omitted). Further, as to a municipality, its duty of care does not change with the status *548 of the party injured. (i.e., invitee, licensee, etc.). Id. at ¶ 13, p. 1096.
¶ 5 Presently, the "trivial defect doctrine" is applicable only to municipalities and applies a different standard than that applicable to private or non-governmental defendants. Not being a municipality, Brewer's reliance on the "trivial defect doctrine" is misplaced.
¶ 6 Brewer also contends the sidewalk joint was open and obvious. It is undisputed Plaintiff was an invitee at the time of her accident. Under Oklahoma law, an invitor has a duty to exercise reasonable care to prevent injury to an invitee, but owes no duty to protect against hazards that are "open and obvious dangers." Williams v. Tulsa Motels, 1998 OK 42, ¶ 6, 958 P.2d 1282, 1284. An invitee assumes all normal and ordinary risks incidental to the use of the premises and to avoid dangers that were obvious or should have been observed using ordinary care. Id.
¶ 7 "[T]he duty to keep premises in a reasonably safe condition for the use of the invited public applies solely to defects or conditions which may be characterized as hidden defects, traps, snares or pitfalls things which are not readily observable." Krokowski v. Henderson Nat'l Corp., 1996 OK 57, ¶ 6, 917 P.2d 8, 11 (citing Buck v. Del City Apartments, Inc., 1967 OK 81, ¶ 21, 431 P.2d 360, 365-66). The Oklahoma Supreme Court has stated a hidden danger:
[N]eed not be totally or partially obscured from vision or withdrawn from sight; most generally, the phrase is used to denote a condition presenting a deceptively innocent appearance of safety "which cloaks a reality of danger". Deception, camouflage, deceit and fraud in concealment are the very concepts to which the hidden peril theory of liability traces its historical origin.
Henryetta Constr. Co. v. Harris, 1965 OK 88, ¶ 3, 408 P.2d 522, 531 (Irwin, J., supplemental opinion on rehearing) (emphasis added).
¶ 8 There is no fixed rule for determining whether a defect in the premises constitutes a trap or hidden danger. Jack Healey Linen Serv. Co. v. Travis, 1967 OK 213, ¶ 8, 434 P.2d 924, 927. It depends on the physical condition of the premises and the use made thereof by the invitor. Id. The standard is objective, "whether under similar or like circumstances an ordinary prudent person would have been able to see the defect in time to avoid being injured." Pickens v. Tulsa Metropolitan Ministry, 1997 OK 152, ¶ 10, 951 P.2d 1079, 1084.
¶ 9 As the property owner, Brewer had a duty to invitees to use reasonable care to maintain the sidewalk. Reasonable minds could disagree on whether the expansion joint constituted an open and obvious hazard. Reasonable minds could differ on whether the expansion joint constituted a hidden danger based upon a "deceptively innocent appearance." Further, we reject Brewer's argument Plaintiff was required to submit evidence in opposition to summary judgment proving the expansion joint in question was different from expansion joints in other public places. Brewer presented no evidence to suggest the expansion joint in question was a standard size or within acceptable limits in the construction industry. If conflicting inferences can be drawn from the facts as to whether the hazard had a "deceptively innocent appearance," the issue of whether it was an open and obvious condition is for the jury. Jack Healey Linen Serv. Co., ¶ 9, 434 P.2d at 928. Summary judgment was improperly granted in favor of Brewer.
¶ 10 Spencer, who leased the restaurant space from Brewer, moved for summary judgment like Brewer, arguing the expansion joint constituted a "trivial defect" for which no liability could attach as a matter of law. Spencer further argued summary judgment was proper because, pursuant to his lease agreement, Brewer, the property owner, was responsible for maintaining the sidewalk in question. Plaintiff pointed out the "trivial defect doctrine" is not applicable as discussed above and Spencer could not delegate his duty to maintain the sidewalk. The trial court granted summary judgment to Spencer finding no duty was owed to Plaintiff, because the sidewalk in question was not under Spencer's control and Spencer had no duty to maintain the sidewalk.
*549 ¶ 11 The Court of Civil Appeals has recognized that "a lessee is liable to a third party injured on the leased premises only when the lessee (1) has control of the premises, (2) has had a reasonable opportunity to inspect the premises, and (3) could have discovered the defect upon inspection." Strader-Faiazi v. Edmond Fourth of July Festivals, 2001 OK CIV APP 93, ¶ 5, 28 P.3d 1161, 1162-163.
¶ 12 Oklahoma recognizes a nondelegable duty to maintain one's premises in a reasonably safe condition to protect invitees. Thomas v. E-Z Mart Stores, Inc., 2004 OK 82, ¶ 12, 102 P.3d 133, 137. This nondelegable duty applies primarily where an invitor/property owner attempts to delegate his duty to an independent contractor:
[A] landowner's duty may not be delegated in the sense that an invitor may be held liable for certain acts of its independent contractors. Allocation of the risk is placed on the invitor who is in control of its premises, including the injury-causing condition thereon, when the invitor either knew or should have known of its existence.
Id. at ¶ 25, 102 P.3d at 140. In the instant case, the "non-delegable duty" argument fails because it erroneously presumes Spencer had a duty to maintain the sidewalk. Spencer did not own the property and had no duty or responsibility for maintaining the sidewalk that he could have delegated to someone else.
¶ 13 In relevant part, Paragraph 7.1 of the Lease Agreement between Spencer and Brewer states: "LESSOR [Brewer] shall keep in good repair all exterior parts of the building, including, but not limited to, the following: foundation, floor, walls, roof, sidewalks, and exterior painting." Paragraph 7.3 of the Lease Agreement states: "LESSEE [Spencer] shall sweep and keep clean the sidewalks and adjacent service area of the leased premises. LESSOR may enter upon the leased premises at all reasonable hours to inspect it." (Emphasis added).
¶ 14 Pursuant to the Lease Agreement, Spencer's only duty was to keep the sidewalk clean. Brewer, the property owner, specifically retained control of the sidewalk and contractually agreed to keep it in good repair. No evidence was presented to suggest either Spencer or Brewer attempted to delegate any duty of care to an independent contractor. We find no error in the trial court's grant of summary judgment to Spencer. Spencer did not own or have control of the sidewalk, and had no duty to maintain the same.
¶ 15 Accordingly, the order of the trial court granting summary judgment in favor of Spencer is affirmed. The order of the trial court granting summary judgment in favor of Brewer is reversed and remanded for further proceedings consistent herewith.
¶ 16 AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
JOPLIN, P.J., and BELL, V.C.J., concur.
NOTES
[1] This Court reviews summary judgments de novo, viewing all facts and inferences presented by the evidence in the light most favorable to the nonmoving party. Miller v. David Grace, Inc., 2009 OK 49, ¶ 10, 212 P.3d 1223, 1227. Summary judgment is appropriate when there is no substantial controversy as to any material fact, and the moving party is entitled to judgment as a matter of law. Id. If the evidentiary materials show controverted material facts, or if reasonable minds could reach different conclusions from undisputed material facts, a motion for summary judgment should be denied. Hulett v. First Nat'l Bank & Trust Co. in Clinton, 1998 OK 21, ¶ 3, 956 P.2d 879, 881.
[2] The parties do not dispute the facts of how Plaintiff fell. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2629134/ | 242 P.3d 549 (2010)
2010 OK CIV APP 105
Teresa TORTORELLI and Robert L. Tortorelli, Plaintiffs/Appellants,
v.
MERCY HEALTH CENTER, INC., Kimberly Smith, M.D., Oklahoma Orthopedics, Inc., d/b/a Oklahoma Orthopedics Incorporated, and IsoTis OrthoBiologics, Inc., Defendants/Appellees,
GenSci Regeneration Laboratory Sciences, Inc., IsoTis, S.A., successor to GenSci OrthoBiologics, Inc., The OrthoBiologics Technology Company, and SMC Ventures, Inc., successor to GenSci Regeneration Sciences, Inc., Defendants.
No. 106,073. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.
Court of Civil Appeals of Oklahoma, Division No. 1.
June 4, 2010.
Certiorari Denied October 4, 2010.
*555 Rex D. Brooks, Oklahoma City, OK, for Plaintiffs/Appellants.[1]
Ryan S. Wilson, Hartzog, Conger Cason & Neville, Oklahoma City, OK, for Defendant/Appellee Mercy Health Center, Inc.
Daniel K. Zorn, Stephen R. Palmer, Collins, Zorn & Wagner, P.C., Oklahoma City, OK, for Defendant/Appellee IsoTis Orthobiologics, Inc.
L. Earl Ogletree, Lane O. Krieger, Wiggins Sewell & Ogletree, Oklahoma City, OK, for Defendants/Appellees[2] Dr. Kimberly Smith and Oklahoma Orthopedics, Inc.
WM. C. HETHERINGTON, JR., Judge.
¶ 1 Teresa M. Tortorelli (Plaintiff) and Robert L. Tortorelli (collectively, Appellants) appeal judgments in favor of IsoTis Orthobiologicals, Inc. (IsoTis), Mercy Health Systems, Inc. (Mercy), Oklahoma Orthopedics, Inc. (Oklahoma Orthopedics) and Dr. Kimberly S. Smith, M.D. (Dr. Smith).[3] Appellants argue the trial court erred as a matter of law in sustaining motions for summary judgment based on application of the learned intermediary doctrine. They argue reversible error also occurred in jury instructions, by the allowance of argument during an opening statement, denial of a motion to amend their petition and for a continuance, denial of their motion for a directed verdict, and in both allowing and refusing to allow the presentation of certain evidence regarding their claims against Dr. Smith.
¶ 2 The judgments in favor of IsoTis and Mercy following the grant of their respective motions for summary judgment based upon the learned intermediary doctrine are AFFIRMED. No reversible error is shown or any error is harmless as to other alleged grounds for reversal, and the judgment entered on the jury's verdict in favor of Dr. Smith and Oklahoma Orthopedics accordingly is AFFIRMED.
*556 Facts
¶ 3 Plaintiff went to her primary care doctor due to pain in her back and knees. She was referred to an orthopedic clinic, where a doctor took x-rays of her back and right knee. One x-ray showed a tumor in Plaintiff's right leg, and she was referred to Dr. Smith,[4] an orthopedic surgeon who concentrates her practice in tumor removal surgery.
¶ 4 On November 8, 2000, Dr. Smith removed the bone tumor from Plaintiff's right tibia during surgery at Mercy Health Center. During the surgery, the following were placed in Plaintiff's right leg: a tibial nail, a bolt (also referred to as a rod), bone cement, and Dynagraft allograft[5] bone putty. The last of these items, the bone putty, is a product of IsoTis and it became the focus of this litigation.
¶ 5 According to Dr. Smith, she used bone putty because a large area was removed during the tumor removal surgery, which put Plaintiff at risk for a later fracture of her tibia, and the bone putty promotes bone formation across the area of tumor removal. She did not use a bone graft from Plaintiff herself because of concerns about infection at a second surgical site.
¶ 6 Plaintiff had redness and swelling in her right leg following the November 8, 2000 surgery, but she was discharged from Mercy's hospital on Saturday, November 11, 2000, with instructions to change the wound dressing at least once a day, keep the dressing dry, begin showering only after the wound stopped draining, and to contact her doctor if her condition worsened. She developed more swelling and redness throughout her right leg and went to an emergency room at Presbyterian Hospital late in the next evening on Sunday, November 12, 2000. She was released from the emergency room early on Monday November 13, 2000, given antibiotics, advised she had cellulitis,[6] and told to consult Dr. Smith.
¶ 7 Plaintiff went to a scheduled Tuesday, November 14, 2000 follow up appointment with Dr. Smith and was re-admitted to Mercy that day. She was treated with high doses of antibiotics, and the swelling and redness began to subside but it did not resolve. Dr. Smith suspected Plaintiff either had a deep infection at the surgical site or a reaction to the bone putty.
¶ 8 On November 22, 2000, Dr. Smith surgically removed all the bone putty, did a radical irrigation of the wound, and debrided the area. Following this surgery, Plaintiff's cellulitis resolved within 48 hours, but she continued to have swelling and redness with resolution over the next few days. Dr. Smith made a postoperative diagnosis of cellulitis with a failure to respond to intravenous antibiotics, which she found consistent with a possible allergic reaction to the bone putty or the bone cement. Plaintiff was discharged on November 26, 2000. Plaintiff contended she continued to have pain and was diagnosed about a month later as having reflex sympathetic dystrophy disease (RSD), also referred to as complex regional pain syndrome, as a result of her reaction to the bone putty. From March 15, 2001 until June 14, 2005, Plaintiff was treated for RSD[7] by Dr. Scott Mitchell, who is board certified in anesthesiology with additional certification in pain management.
¶ 9 Appellants filed suit on November 4, 2002, and filed their Fifth Amended Petition *557 June 21, 2005.[8] They alleged they sustained damages based on breach of the standard of care due Plaintiff by Dr. Smith's failure to obtain consent to use "allograph bone putty made from cadaver paste" during the tumor removal surgery and stated claims based upon products liability under strict liability, negligence, and breach of warranty theories. Robert Tortorelli, Plaintiff's husband, alleged he sustained damages due to a loss of consortium.
¶ 10 Initially, Appellants argued Plaintiff had informed Dr. Smith of her allergy to iodine and they based claims for damages upon the use of iodine to clean Plaintiff's skin prior to surgery or in either the preparation of the bone putty or the bone cement. Defendants denied these uses of iodine had occurred. Following discovery, the claims based upon iodine usage were not pursued by Appellants.
¶ 11 In 2008, IsoTis[9] and Mercy filed separate motions for summary judgment in which each argued the learned intermediary doctrine applied and each had no liability. After judgment was entered in favor of each of them, the case later was tried to a jury on the issue of informed consent against Dr. Smith and Oklahoma Orthopedics, the sole remaining defendants.[10]" Following three days of trial, the jury returned a verdict in favor of Dr. Smith and Oklahoma Orthopedics. Appellants raise several allegations of error in their appeal, and we address them in turn.
Motions for Summary Judgment
¶ 12 Appellants argue the judgments entered in favor of IsoTis and Mercy following summary adjudication proceedings require reversal because inadequate warnings rendered the learned intermediary doctrine inapplicable. Mercy and IsoTis claim the judgments were properly granted because they were shielded from liability under the learned intermediary doctrine. Mercy also argued Appellants' "attempt to create sham facts" by their assertion of a new theory of liability in response to IsoTis's motion for summary judgment should be rejected, and it was entitled to judgment.
¶ 13 "When on motion for summary judgment it appears from pleadings, affidavits, depositions, admissions, answers to interrogatories or other instruments properly before the Court that there are no genuine issues as to material facts or that admitted facts justify but a single inference therefrom, it is not error to grant summary judgment." Perry v. Green, 1970 OK 70, ¶ 0, 468 P.2d 483. "On motion for summary judgment there can be no trial of fact issues since its function is to determine whether there are any genuine issues as to material facts. Such motion should therefore be denied if under the evidence reasonable men might reach different conclusions from undisputed facts." Id. ¶ 27, 488-89. (Citation omitted.) All inferences and conclusions to be drawn from the evidentiary materials must be viewed in a light most favorable to Plaintiff. Ross By and Through Ross v. City of Shawnee, 1984 OK 43, 683 P.2d 535.
¶ 14 On review of summary judgments, the appellate court may "substitute its analysis of the record for the trial court's analysis" because the facts are presented in documentary form. Loffland Brothers Company v. Overstreet, 1988 OK 60, ¶ 15, 758 P.2d 813, 817. The appellate court may not weigh evidence, but it may review the evidence presented to determine whether there is a factual dispute. Stuckey v. Young Exploration Company, 1978 OK 128, 586 P.2d 726. Summary judgment *558 should be granted only if it is perfectly clear that there is no material fact at issue. Northrip v. Montgomery Ward and Co., 1974 OK 142, 529 P.2d 489. "Where different interpretations of the facts may be drawn as to a particular fact question, the issue should be presented to a jury." Manora v. Watts Regulator Co. 1989 OK 152, ¶ 9, 784 P.2d 1056, 1060.
¶ 15 Appellants argued the bone putty was delivered with inadequate warnings which made it a defective product and made IsoTis liable for Plaintiff's injury due to allergic reaction to its product. Appellants claim Mercy also is liable for inadequate warnings, even though it might not have participated in formulating those warnings, because it supplied the bone putty and therefore participated in its chain of distribution.
¶ 16 In Kirkland v. General Motors Corporation, 1974 OK 52, 521 P.2d 1353, the Oklahoma Supreme Court adopted the theory of strict liability in tort set forth in Restatement (Second) of Torts, § 402A (1965). Under this liability theory, one who sells a product in a defective condition unreasonably dangerous to the user or consumer or to his or her property is liable for physical harm caused by the product if the seller is engaged in the business of selling that product and the product is expected to and does reach the user and consumer without substantial change in the condition in which it is sold.
¶ 17 "The manufacturer of a product has a duty to warn the consumer of potential dangers which may occur from the use of the product when it is known or should be known that hazards exist." McKee v. Moore, 1982 OK 71, ¶ 4, 648 P.2d 21, 23. To recover, a plaintiff must establish both that injury was caused by the product and by a failure to warn of a possible detrimental reaction. Id. ¶ 5, 23-24. "In a strict liability action it is immaterial to the plaintiff's case that the defect in the product was not caused by the distributor. The liability of the manufacturer and distributor is co-extensive, even though the distributor was not responsible for the presence of the defect." Braden v. Hendricks, 1985 OK 14, ¶ 12, 695 P.2d 1343, 1350.
¶ 18 The learned intermediary doctrine is an exception[11] to the manufacturer's duty to warn an ultimate consumer and shields a manufacturer from liability if it has adequately warned a prescribing physician of a danger which is the cause of the consumer's injury. Edwards v. Basel Pharmaceuticals, 1997 OK 22, 933 P.2d 298. Certain products, including prescription drugs and other items requiring a prescription or physician's order are inherently dangerous or incapable of being made safe, but serve a public benefit. Eck v. Parke, Davis & Company, 2001 10CIR 787, ¶ 12, 256 F.3d 1013, 1017. "It is the physician's duty to inform himself of the qualities and characteristics of those products which he administers or prescribes for use of his patients, and to exercise his judgment, based on his knowledge of the patient as well as the product." McKee v. Moore, 1982 OK 71, ¶ 8, 648 P.2d 21, 24.
¶ 19 The burden for plaintiffs is no different than in an ordinary negligence case when the learned intermediary doctrine is applied because the failure to give adequate warnings is what makes a product defective. Lindsay v. Ortho Pharmaceutical Corporation, 637 F.2d 87 (2nd Cir.1980). Under the learned intermediary doctrine, a manufacturer's liability is directly related to the adequacy of the warning provided, and if the doctor is adequately warned the product is not defective. Id. at 91.[12] "The adequacy of warnings is determined by state law." Edwards, 1997 OK 22, ¶ 17, 933 P.2d at 303.
*559 ¶ 20 IsoTis contended the warnings adequately warned Dr. Smith of the potential for an allergic reaction such as that experienced by Plaintiff. Mercy contended it had no liability for allegedly inadequate warnings in the materials provided with the bone putty.
IsoTis's Motion
¶ 21 In support of its motion for summary judgment, IsoTis provided an affidavit by Dr. Smith in which she stated she: (1) had used the bone putty on numerous occasions, was aware of its purpose and of contraindications and precautions, (2) "was familiar with received, read, comprehended and understood" the "Directions for Use" insert prior to Plaintiff's surgery, (3) had "reviewed and comprehended" the specific warning that "the possibility of an antigenic reaction is present in any allograft," (4) was "aware and comprehended" the implantation of the bone putty "could create an antigenic reaction in the Plaintiff," (5) had exercised "independent informed judgement" and "independent learning and experience," and, (6) had, "based upon [her] independent informed judgement as a medical doctor" after having "evaluated the potential risks involved, including potential antigenic reactions," concluded the benefits of using the bone putty were appropriate care for Plaintiff. In reply to Plaintiff's response and objection to its motion for summary judgment, IsoTis also cited deposition testimony of Dr. Smith in which she stated she had used bone grafts some 40 to 50 times during her residency, fellowship, and the first two and half years of her practice and described how "antigenic" means a reaction of the body and includes an allergic reaction, because "[a] immune response is considered to be a reaction."
¶ 22 The bone putty insert states "[t]he reaction of the body to any allograft is not completely understood." In opposition to IsoTis's motion for summary judgment, Appellants made a bare allegation IsoTis's warnings are inaccurate and misleading "regarding reactions not being understood." Bare, speculative, and conclusory allegations of possible inadequacies in warnings are insufficient to create a genuine factual issue under the learned intermediary doctrine. See Krasnopolsky v. Warner-Lambert Company, 799 F. Supp. 1342 (E.D.N.Y.1992). "[M]ere contention that facts exist or might exist is not sufficient to withstand summary judgment. The party responding to a motion for summary judgment has an obligation to present something which shows that when the date of trial arrives, he will have some proof to support his allegations." Davis v. Leitner, 1989 OK 146, ¶ 12, 782 P.2d 924, 926. In the absence of evidence contradicting a warning so as to render it false, nothing is presented requiring trial by a jury.
¶ 23 To meet this burden, Appellants offered deposition testimony of biomedical research scientist Tara Tabatabaie (a non-doctor) to the effect that such reactions were understood at a cellular level, and then Appellants posed arguments based upon Dr. Smith's understanding of the meaning of the phrase "not completely understood."
¶ 24 The question whether all potential reactions are "completely understood" poses a red herring. A fact is material for purposes of summary judgment if its proof would have the effect of establishing or refuting one of the essential elements of cause of action. Hadnot v. Shaw, 1992 OK 21, 826 P.2d 978. The Directions for Use for the bone putty contain the warning: "Although the production technique is designed to eliminate antigenic properties of the product, the possibility of such a reaction is present with any allograft."[13] The facts Appellants attempt to prove through the research scientist are insufficient because even if proven, the information offered does not contradict, refute or render false the warning the bone putty presented a risk of antigenic reaction. Plaintiffs mis-characterized Dr. Smith's testimony about her familiarity with bone putty *560 and the risk of an antigenic reaction posed by its use.
¶ 25 The material fact at issue was whether the proximate cause of Plaintiff's injury, here an antigenic reaction to the bone putty, was a risk disclosed to Dr. Smith. It was. Judgment in favor of IsoTis based upon the learned intermediary doctrine is not precluded on this basis.
¶ 26 Appellants also argued a "sufficient testing for bone protein and marrow was not performed rendering the product defective and unreasonably dangerous" and Defendants' arguments fail as a matter of law because Dr. Smith did "no independent research or reading." This argument demonstrates a misconception about the learned intermediary doctrine. A major underlying assumption of the learned intermediary doctrine is that a product has properties rendering it dangerous so as to require a doctor's prescription or order for its use. Argument about the particulars of the manufacturing process are not relevant when applying the learned intermediary doctrine. IsoTis's duty as a manufacturer under this doctrine was not to provide an in-depth education to trained physicians in the underlying biochemistry in bone putty production but to identify and warn of risks.
¶ 27 To invoke a defense to liability under the learned intermediary doctrine, a manufacturer seeking its protection must provide sufficient information to the learned intermediary of the risk subsequently shown to be the proximate cause of a plaintiff's injury. Here, IsoTis warned of the risk of an antigenic reaction from using its product, Dr. Smith knew an antigenic risk was possible, she knew of such warnings for bone putty, she considered the risk posed by using the bone putty, she decided it was appropriate to use the bone putty based upon her experience with bone putty and Plaintiff's needs, and the Plaintiff had an antigenic reaction. The judgment in favor of IsoTis premised upon application of the learned intermediary doctrine is AFFIRMED.
Mercy's Motion
¶ 28 Mercy argued it may not be held liable for inadequate warnings if IsoTis's motion for summary judgment is granted because Appellants' claim against it is dependent upon their claim the bone putty lacked proper warnings.[14] Having found the learned intermediary doctrine applicable as to IsoTis, the same doctrine applies in favor of Mercy. However, our inquiry into Mercy's liability does not end with the application of this doctrine.
¶ 29 Appellants raised a new theory for Mercy's liability in response to its motion for summary judgment, claiming negligence in the discharge of Plaintiff following the tumor removal surgery. Mercy argued Appellants were attempting to create sham facts through the affidavit. Mercy argued neither negligent discharge nor informed consent issues were stated in any of Appellants' petitions, including the most recent, a fifth amended petition. More importantly, it argued, during the deposition of Appellants' medical expert Dr. Henry Hug conducted just a week previously, though questioned specifically about his criticisms of Smith and Mercy, he voiced none based on standard of care.[15] During an April 24, 2008 hearing, the *561 trial court observed that the fifth amended petition does not state a negligence claim against Mercy, trial was scheduled on May 19th, and denied Appellants' request to amend their petition.
¶ 30 When determining whether an affidavit may be disregarded because it attempts to create a sham issue of fact, the Court may consider whether the party was cross-examined during earlier testimony, whether the party had access to the evidence at the time of earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain. Ishmael v. Andrew, 2006 OK CIV APP 82, ¶ 16, 137 P.3d 1271, 1276. A trial court may disregard an affidavit purporting to create an issue of fact by directly contradicting prior deposition testimony during which the deponent was both cross-examined and had access to the information forming the basis for the affidavit at the time of the deposition. Savage v. Burton, 2005 OK CIV APP 106, 125 P.3d 1249. Such is the case here. Dr. Hug's 2002 report states he reviewed Plaintiff's medical records. Those medical records contain the same information about the condition of her leg which Plaintiff raised at deposition and upon which he based his premature discharge standard of care criticisms due to premature discharge after the tumor removal surgery. The trial court did not err in concluding no material fact was presented, and rejecting the affidavit. The order granting Mercy's motion for summary judgment is AFFIRMED.
Motion to Amend Petition and for Continuance
¶ 31 Appellants argue the trial court erred by denying their May 8, 2008 "motion to amend petition by stating specific negligent actions by stating them in the pre-trial order," and by denying them a continuance to allow additional discovery. As before, Appellants claim they should have been allowed to amend their petition to state claims based upon negligence in the standard of care due to premature discharge following the tumor removal surgery because they only discovered the basis for amendment after their expert, Dr. Hug, read[16] Plaintiff's October 11, 2005 deposition testimony following his own April 15, 2008 deposition.
¶ 32 "[T]he trial court has always possessed discretion over whether to allow an amendment to a pleading" subject to 12 O.S.2001 § 2015(A)'s requirement "that leave to amend be given freely if justice requires." Prough v. Edinger, Inc., 1993 OK 130, ¶ 8, 862 P.2d 71, 73. Whether to permit an amendment of the pleadings is left to the discretion of the trial court. Andersen v. Fellers, 1998 OK CIV APP 53, ¶ 15, 960 P.2d 851, 855.
¶ 33 A trial court's decision to deny a motion to amend will not be overturned, however, absent a showing of abuse of the court's discretion under the circumstances. Prough, 1993 OK 130, ¶ 8, 862 P.2d at 73. A trial court acts within its discretion when a justifying reason exists to deny a request. McDermott v. Sentry Life Ins. Co., Inc., 2000 OK CIV APP 115, ¶ 27, 15 P.3d 508, 516. "Some of the factors to consider in evaluating whether a time delay is undue are: 1) the number of previous amendment requests; 2) the timing of the request (before or after discovery is closed and a trial date set); and 3) the length of time the movant was aware of the applicability of the amendment." Prough, 1993 OK 130, ¶ 10, 862 P.2d at 73.
¶ 34 When determining whether the trial court abused its discretion in denying Appellants' motion to amend, we consider the particular facts and circumstances of this case. According to Dr. Hug's September 9, 2002 Report, he reviewed Plaintiff's records from Mercy, the emergency room, x-rays, physical therapy, and office visits with treating doctors. Mercy's records include descriptions of Plaintiff's leg on the day of her first discharge and the identities of Mercy employees, including the resident who facilitated her *562 discharge.[17] His standard of care criticism at the time was premised upon Plaintiff's history of allergy to iodine and based upon an alleged use of "radiopaque bone paste" which "most likely is manufactured with cadaver bone ... mixed with an iodinated compound to make it radiopaque." In an April 29, 2003 report, he repeated this criticism and recommended obtaining information whether the bone putty "contains iodine or some other allergen." Appellants dropped allegations based upon the presence of iodine following discovery conducted in 2007.
¶ 35 Dr. Hug had no criticisms based upon standard of care when he was deposed on April 15, 2008. According to Appellants, Dr. Hug read Plaintiff's 2003 deposition testimony only after that deposition. Dr. Hug was deposed again on May 14, 2008, and questioned about Plaintiff's discharge following the first surgery. He was critical of the discharge because "from the medical records it would appear that there was some inflammation and drainage from the incision."
¶ 36 At a May 16, 2008 hearing on the motion to amend and motions in limine, Defendant pointed out that all the names of Mercy personnel claimed to have prematurely discharged Plaintiff were in the medical records provided to Dr. Hug before his 2002 report, this information had been in Appellants' possession during the six years Dr. Hug had been involved in the case, and Dr. Hug did not raise a standard of care issue in any of three written reports he wrote prior to his May 8, 2008 affidavit. Defendants argued Appellants had failed to conduct a diligent investigation about information in their possession and motion to amend only 11 days before scheduled trial would prejudice their clients.[18] The trial court also noted the information had long been in Appellants' and their expert's possession.
¶ 37 "[A] trial court acts within its discretion if a justifying reason exists for the denial of the movant's request." McDermott v. Sentry Life Insurance Company., Inc. 2000 OK CIV APP 115, ¶ 28, 15 P.3d 508, 516. Like the Court in McDermott, we find relevant the observation "[a]lthough ... leave to amend shall be freely granted, a party must act with due diligence if it intends to take advantage of the Rule's liberality." U.S. v. Midwest Suspension and Brake, 49 F.3d 1197, 1202 (6th Cir.1995). Diligence was lacking here.
¶ 38 The trial court did not abuse its discretion by denying Appellants' motion to amend given the records in their possession for more than six years and that the motion was filed after discovery had closed and just eleven days before trial was scheduled. Consequently, the trial court also did not abuse its discretion in denying a continuance to allow additional discovery.
The Trial
¶ 39 Appellants claim the trial court "erred as a matter of law" in allowing certain evidence and in refusing to allow certain evidence, in allowing argument during Defendants' opening statement, and in the use of various exhibits. We address these allegations in turn.
¶ 40 Evidentiary rulings by the trial court regarding relevance and admissibility are addressed to the sound discretion of the trial court, whose rulings thereon will not be disturbed absent a showing of abuse of discretion. American National Bank & Trust Company of Sapulpa v. BIC Corporation, 1994 OK CIV APP 70, 880 P.2d 420. "Decisions regarding relevance of evidence and its alleged prejudice to the other party will not be overturned absent an abuse of discretion." Mills v. Grotheer, 1998 OK 33, ¶ 3, 957 P.2d 540, 541. "A judgment will not be reversed for error in the rejection of evidence unless it appears from an examination *563 of the entire record that such error had probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." Samara v. State, 1964 OK 79, ¶ 0, 398 P.2d 89, 90, cert. den. and appeal dismissed, 381 U.S. 354, 85 S. Ct. 1556, 14 L. Ed. 2d 681 (1965).
¶ 41 Appellants argue it was error to exclude testimony by Robert Tortorelli that RSD was the reason Plaintiff received physical therapy and to prevent him from testifying about the reasons she had incurred certain other medical bills.[19] We disagree. Mr. Tortorelli testified the bills were those he and Plaintiff contended resulted from the failure to inform them of the "cadaver bone putty." There was no error in allowing him, when testifying as a member of Plaintiff's family, to identify bills from medical or therapeutic providers for her treatment they allege are connected to the subject of litigation. 12 O.S.Supp.2002 § 3009. The medical records were subject to a stipulation between the parties as to identification, however, witnesses not testifying as an expert are limited to opinions and inferences "not based on scientific, technical or other specialized knowledge." 12 O.S.Supp.2002 § 2701(3). It was not error to limit his testimony by preventing him from offering his opinion about the medical causation or diagnoses[20] necessitating Plaintiff's various treatments when such testimony would require "scientific, technical or other specialized knowledge."
¶ 42 Appellants claim the trial court erred by allowing Defendants to use a blow up of a portion of testimony as an aid during opening statements and this error caused prejudice and reversible error. The trial court allowed the use as a demonstrative aid to Defendants' description of anticipated testimony. The testimony in the blow up is part of the recorded testimony of Plaintiff's treating physician Dr. Scott Mitchell which was later presented to the jury as part of their own case in chief. Appellants do not articulate how they were prejudiced by testimony from their own witness other than to complain they needed to move for the admission of one of their own exhibits prior to allowing the jury to view it when they used it to question Plaintiff. Requiring a party to follow proper procedure by laying a foundation for a document offered as part of proof in their case in chief and moving for its admission into evidence prior to allowing a jury to view it does not present reversible error.
¶ 43 They also claim there was reversible error due to the injection of argument during Defendants' opening statement. Based upon the record citations for these alleged errors, the offending statements were, "Please don't leave your common sense at the door when you come into this courtroom and decide the issues," "Now, Dr. Smith and I trust you to lay sympathy aside. I anticipate there will be tears in this courtroom," and, "We ask you to lay all sympathy aside, judge the facts as you see them from the witness chair." Appellants' objections to the first and third statements were sustained, and their objection to the second statement was overruled. Appellants did not request any admonishments or other corrective action by the trial court following its rulings.
¶ 44 Counsel have wide latitude in both opening statements and closing arguments, subject to the trial court's control. Lerma v. Wal-Mart Stores, Inc., 2006 OK 84, 148 P.3d 880. There must be a showing counsel's conduct substantially influenced the *564 jury's verdict and/or denied a fair trial. Id. ¶ 20, 885. A court abuses its discretion when it uses its discretion to an end or purpose justified neither by reason nor by evidence. Patel v. OMH Medical Center, Inc., 1999 OK 33 ¶ 20, 987 P.2d 1185, 1194, cert. denied, 528 U.S. 1188, 120 S. Ct. 1242, 146 L. Ed. 2d 100 (2000). If it appears there has been misconduct in a trial, the aggrieved party may move the court to declare a mistrial, but by failing to do so "will be deemed to have taken his chances with the jury." Lawton Transit Mix, Inc. v. Larson, 1969 OK 83, ¶ 0, 455 P.2d 696, 697. Appellants did not pursue any remedy to ameliorate the effect of the remarks, did not move for mistrial, and have not shown the remarks to have caused prejudice, influenced the jury's verdict or denied them a fair trial. Reversal on this theory is denied.
¶ 45 Similarly, no reversible error is presented by the trial court's refusal, following an objection by Defendants, to allow Plaintiff's friend, Sherry Henley, to read a nurse's note from her first hospitalization to the jury. Henley reviewed the record only after her deposition and the only reason given for allowing her to read the note was the alleged use of notations familiar to nurses. Although she was a registered nurse, Henley appeared as a fact witness who had seen Plaintiff only during her second hospitalization. She was not qualified as an expert, and was never a Mercy employee. Further, the medical records containing the nurses' notes were not yet admitted into evidence at the time Appellants asked Henley to read them aloud to the jury. In support of this allegation of error, Appellants cite 12 O.S.2001 § 2401 and § 2402, which address the relevancy of evidence. That was not the issue regarding the nurses' notes. Like with the testimony of Robert Tortorelli, the record was subject to a stipulation as to identification, but such a stipulation is not a waiver of the need to establish a proper foundation for admissibility or to move for admission of evidence prior to publishing it to a jury.[21]
¶ 46 Appellants argue it was error to exclude from evidence the video deposition testimony of Jocelyn Nguyen, an IsoTis research associate, and the further use of the same video deposition to rebut Dr. Smith's testimony.[22] The trial court reviewed the testimony and determined it may have been relevant to products liability issues no longer part of the case but was not relevant to the informed consent issues being tried. "It is not error to refuse to admit evidence which does not prove or disprove any fact in issue in the trial of a lawsuit." Marcum v. Zaring, 1965 OK 125, ¶ 0, 406 P.2d 970. 971.
¶ 47 Appellants argue medical records of Dr. Barney Blue[23] and "Dr. King" should not have been admitted into evidence because they weren't identified on witness lists before trial. A careful reading of the record shows Dr. Blue's records were used for impeachment of Plaintiff's descriptions of the health complaints and problems she attributed to the RSD and claimed resulted from surgery performed by Dr. Smith.
¶ 48 Prior inconsistent statements of a record may be used for impeachment of testimony given at trial, 12 O.S.Supp.2002 § 2613, and records may be used to refresh a witness's memory on matters relating to direct testimony upon cross-examination, 12 O.S.Supp.2002 § 2612. That is what occurred here. After laying a foundation, Defendants' counsel asked Plaintiff about Dr. Blue's June 18, 1999 medical record listing complaints of fatigue, swollen feet and body, *565 arm and leg pain, and "knots" in her arms and legs, all of which were complaints she testified were from RSD resulting from surgery. Contrary to Appellants' claim these records were admitted into evidence, the record cited by them shows the trial court sustained an objection to records of a "Dr. King," and did not allow his medical records to be used for impeachment purposes and, more importantly, Dr. Blue's records also were not admitted into evidence. Further, several symptoms and problems Plaintiff attributed to RSD[24] also are described in other medical records predating her surgery to which no objections were interposed. No error is presented in the use of Dr. Blue's records for impeachment.
¶ 49 Appellants claim reversible error in the refusal to allow a wider range of testimony within the expertise of research scientist Tara Tabatabaie,[25] who has a Ph.D. in chemistry. Prior to trial, Defendants filed a motion in limine asking, in part, for a prohibition of medical or other expert testimony not "within the expert's realm of expertise," and the trial court reserved the issue until trial. At trial, Defendants objected to allowing expanded testimony from Dr. Tabatabaie because she did not have a medical degree, she was not qualified to testify about medical causation, and her testimony, if allowed, would be cumulative because Dr. Hug covered medical causation about RSD. The trial court then limited her testimony to that "from her background as a chemist" about allergic reaction to bone putty. On this record, no reversible error is stated regarding that determination on the scope of her competence to testify.
¶ 50 Appellants argue the trial court allowed "rank hearsay" by Dr. Smith about bone putty manufacturing, a process it was not shown she had observed. Dr. Smith was asked for her "understanding" about how bone putty is manufactured and testified in response how "[t]he overall process, I understand, is they harvest bone steriley from cadaver bone that is then steriley processed down to the bone proteins only" into "basically a liquid or powder form" which is reconstituted into sheets or a matrix for use by surgeons like herself. Appellants did not object based upon hearsay but instead objected that she was "not qualified" to answer the question. This objection goes to witness competency. Reversal may not be obtained based on arguments and issues raised for the first time on appeal. Kepler v. Strain, 1978 OK 52, 579 P.2d 191.
¶ 51 Appellants argue it was error to exclude affidavits signed by Dr. Smith which were attachments to motions for summary judgment by IsoTis and Mercy, citing 12 O.S.Supp.2002 § 2613. At trial, they argued the affidavits were admissible as prior inconsistent statements by Dr. Smith.
¶ 52 The criteria for the admission of prior inconsistent statements to attack the veracity or credibility of a witness are governed by the 12 O.S.Supp.2002 § 2607 and § 2613. Before allowing evidence of a witness's prior inconsistent statements, the trial court "must satisfy itself that the proffered testimony is sufficiently inharmonious with the declarant's in-court testimony and is relevant to a non-collateral matter. A proper foundation must be laid before the extrinsic impeachment evidence may be admitted." Crussel v. Kirk, 1995 OK 41, ¶ 8, 894 P.2d 1116, 1119. (Emphasis in original; footnotes omitted.)
¶ 53 Here, Appellants cross-examined Dr. Smith about alleged inconsistencies between *566 statements in her affidavits and her trial testimony. For example, her August 30, 2007 affidavit, which was attached as an exhibit to IsoTis's Motion for Summary Judgment, stated she "was familiar with, received, read, and understood" warnings for the bone putty "prior to" Plaintiff's first surgery. She testified at trial how she had read those warnings but did not recall precisely when that occurred prior to Plaintiff's first surgery. The trial court examined the affidavits and determined they were not inconsistent with Dr. Smith's trial testimony. We agree, and find no reversible error is presented.
Motion for Directed Verdict
¶ 54 Appellants argue the trial court erred as a matter of law in overruling their motion for a directed verdict made at the end of trial. Defendants argue denial of the motion was proper because the record contained evidence in their favor.
¶ 55 "We review the denial of a motion for directed verdict de novo." Computer Publications, Inc. v. Welton, 2002 OK 50, ¶ 12, 49 P.3d 732, 735. As taught in Messler v. Simmons Gun Specialties, Inc., 1984 OK 35, ¶ 28, 687 P.2d 121, 130:
When the trial court considers a demurrer to the evidence or a motion for directed verdict, it must consider as true all evidence and all reasonable inferences favorable to the party against whom the demurrer or motion is directed, and disregard any conflicting evidence which is favorable to the demurrant or movant. Either motion should be overruled in the absence of proof which tends to show any right to recover.
¶ 56 "`Informed consent,' as it was adopted in Scott v. Bradford, [1979 OK 165], 606 P.2d 554 (Okla.1980), entails three basic elements: 1) nondisclosure, 2) causation, and 3) injury." Smith v. Karen S. Reisig, M.D., Inc., 1984 OK 56, 686 P.2d 285, 288. "However, a physician has no duty to inform a patient of risks known by the patient." Goss v. Oklahoma Blood Institute, 1990 OK CIV APP 14, ¶ 28, 856 P.2d 998, 1007 (citing Spencer By and Through Spencer v. Seikel, 1987 OK 75, ¶ 12, 742 P.2d 1126, 1129).
¶ 57 Dr. Mitchell, who treated Plaintiff for RSD, testified he did some research on the syndrome and from it concluded the most likely cause of Plaintiff's RSD was the bone tumor itself. Plaintiff agreed that she knew allergic reactions were possible and gave Dr. Smith information about her own allergic reactions to iodine and penicillin. Appellants' adult son testified in their case in chief that he heard Dr. Smith say, prior to the first surgery, "we're going to remove this, and we're going to put in this paste." This evidence could be considered as evidence in defense of elements Appellants were required to prove and as supporting judgment for Defendants. There was not an "absence of proof" in Defendants' favor, and it was for the jury to decide whether Appellants met their burden of proving all necessary elements for their cause of action.
Jury Instructions
¶ 58 Appellants argue the trial court erred because, although it instructed the jury on the issue of informed consent, by instructing the jury on the issue of negligence the issue of informed consent was essentially removed from the jury's consideration. Appellants not only did not object to the negligence instructions, they proposed these same instructions given the jury.[26] Nothing in this record suggests a probability the jury was confused or misled and thereby reached a different result by the giving of the negligence instructions in conjunction with the instruction on informed consent. No reversible error is presented.
¶ 59 Appellants also argue "in view of the evidence produced at trial of previous medical problems, the Court should have also given OUJI 4.10 on Aggravation of Pre-Existing Conditions." The case was not pled or tried as a case for aggravation of a pre-existing condition and Appellants did not request such an instruction. "[B]y the standard announced in Woodall [v. Chandler Material *567 Co., 1986 OK 4, 716 P.2d 652], there is not a probability that the jury would have reached a different result if it had been given an instruction on the aggravation of a preexisting condition. Therefore, the trial court did not err by denying the injured party's request to include OUJI-Civ. 4.10." Bierman v. Aramark Refreshment Services, Inc., 2008 OK 29, ¶ 24, 198 P.3d 877, 885. The same applies here.
¶ 60 Appellants further allege error in the trial court's failure to adopt their Requested Instruction No. 1. This proposed instruction included allegations about the claims Plaintiff sought to add via the motion to amend the pleadings and gave Appellants' version of the case issues. In arguing "[t]he trial Court failed to even apprise the jury of the issues they were to try by refusing Plaintiff's (sic) Requested Jury Instruction No. 1," Appellants overstate the duty of the trial court. The trial court has a "duty to instruct on the fundamental issues of a case," however "[i]n giving instructions, the trial court is not required to frame issues, but it must state the law correctly." Smicklas v. Spitz, 1992 OK 145, ¶ 11, 846 P.2d 362, 367. The proposed instruction would have served to confuse and mislead the jury about the issues in the case and it was properly rejected.
¶ 61 Appellants also claim it was error not to give requested instructions on Plaintiff's "mental pain and suffering, past and future," on her "loss of time," and "loss of enjoyment of life" as elements in fixing her damages. The jury could not have been mislead by not being instructed in these elements for setting damages in light of the verdict in favor of Defendants. Any error was harmless.
Conclusion
¶ 62 No reversible error has been shown with respect to the trial court's determinations regarding admissibility or inadmissibility of evidence or testimony, the application of the learned intermediary doctrine, instruction of the jury, or the denial of Appellants' eleventh-hour motion to amend the pleadings. The judgment entered on the jury's verdict in favor of Defendants is AFFIRMED.
BUETTNER, P.J., and HANSEN, J., concur.
NOTES
[1] Only Mr. Brooks entered an appearance as counsel on appeal. However, Robert P. Powell, also appeared as Plaintiffs/Appellants' counsel at hearings on motions for summary judgment which resulted in judgments made a part of this appeal. According to Appellants' reply brief, Mr. Powell "left right after thanksgiving (sic), 2007."
[2] Jamie K. Bruehl of Rife & Walter, LLP, Oklahoma City, Oklahoma, appeared as counsel for Oklahoma Orthopedics, Inc. at hearings on the motions for summary judgment resulting in judgments made a part of this appeal.
[3] Appellants named several defendants who do not appear in this appeal. According to the record, GenSci Regeneration Laboratory Services, Inc., is the former name of GenSci OrthoBiologics, Inc., a Washington corporation, and The OrthoBiologics Technology Company is a trade name for GenSci Regeneration Sciences, Inc., a Canadian corporation, (collectively, the GenSci defendants). In late 2001, GenSci Regeneration Sciences, Inc. and GenSci OrthoBiologics, Inc. filed for bankruptcy, but those proceedings were dismissed in late July of 2003, conditioned upon approval by shareholders or a final Canadian court order of a merger agreement between GenSci Regeneration Sciences, Inc. and IsoTis, S.A., a Swiss corporation. Subsequently, the following occurred: (1) Appellants dismissed without prejudice their causes of action against the GenSci defendants, (2) GenSci Regeneration Sciences, Inc. changed its name to SMC Ventures, Inc., (3) IsoTis, and GenSci OrthoBiologics merged to form IsoTis OrthoBiologicals, Inc., (4) Appellants were granted leave to amend their petition to again name as defendants the GenSci defendants, and (5) Appellants were granted leave to amend their petition to add IsoTis OrthoBiologics, Inc., IsoTis, S.A., and SMC Ventures, Inc. as defendants.
[4] Initially, Oklahoma Orthopedics disclaimed any liability for Dr. Smith's medical practice. Dr. Smith's office is the same building as Oklahoma Orthopedics, it processed her billing, and she appeared in an Oklahoma Orthopedics brochure which Plaintiff testified she obtained during her visit. Oklahoma Orthopedics remained a named defendant throughout the litigation.
[5] An allograft is tissue from another person. The allograft bone putty in this case was made from demineralized bone tissue IsoTis obtained from an American Associations of Tissue Banks accredited tissue bank.
[6] Cellulitis is an "[i]nflammation of cellular or connective tissue." Stedman's Medical Dictionary, 273 (25th ed., 1990).
[7] Dr. Mitchell also treated Plaintiff for pain radiating from her neck, which he described, in a video deposition played for the jury at trial, as having "nothing to with the RSD." Plaintiff also received "medical management," i.e., prescriptions, for pain management from Dr. Bruce Mackey.
[8] Appellants' initial petition also named as defendants McBride Clinic Incorporated, Howmedica Osteonics, Stryker Corp., and Stryker Sales Corporation. The claims against these four defendants were dismissed without prejudice within the first six months this lawsuit was pending.
[9] IsoTis also filed an earlier motion for summary judgment, on July 21, 2006, which was granted as to the plaintiffs' breach of implied warranty of merchantability claims and denied as to claims based upon defects in manufacturing of the bone putty and in the warning. A journal entry was filed December 17, 2007. The appeal does not address this 2007 order.
[10] According to the trial court and Appellants' counsel, no issue of battery was alleged or pled because of the one-year statute of limitations for such a cause of action. Appellants also presented some testimony from Plaintiff about the condition of her right leg at the time of her discharge following the first surgery.
[11] Recognized exceptions to the learned intermediary doctrine itself, such as warnings required for mass immunizations or when the federal Food and Drug Administration has mandated direct warnings be given to consumers, are not at issue here.
[12] Similarly, a "knowledgeable user" exception is recognized in some cases. The rationale with such knowledgeable users is that "knowledge of the danger is equivalent to prior notice." Billiar v. Minnesota Mining and Manufacturing Company, 623 F.2d 240, 243 (2nd Cir.1980). This is so because "[n]o one needs notice of that which he already knows." Borowicz v. Chicago Mastic Company, 367 F.2d 751, 758 (7th Cir.1966).
[13] According to an exhibit to IsoTis's reply to Appellants' response to their motion for summary judgment, when asked at deposition if the phrase "really is not clear," Dr. Smith replied "I don't know what else I would expect it to say." She also testified she was aware of the content of the Directions for Use which contained the warnings prior to when she used the bone putty for Plaintiff's surgery.
[14] Mercy also distinguishes an Ohio case, Saylor v. Providence Hospital, 113 Ohio App. 3d 1, 680 N.E.2d 193 (1996), relied upon by Plaintiffs, which turns upon an Ohio statute imposing supplier liability based upon negligence or supplier misrepresentations and independent supplier liability for failing to warn of a lack of FDA approval of a device. There is no similar statute here and these theories of liability are not applicable to the facts of this case.
[15] For example, Dr. Hug testified in his April 15, 2008 deposition as follows:
Q. Did you find any departures whatsoever of Dr. Smith from acceptable standards of care with respect to what you may think they are for an orthopedic surgeon?
A. No, I did not.
Dr. Hug's only standard of care "criticism" of Mercy at that time was a speculation, based upon his own experiences prior to retiring from his thoracic and vascular surgery clinical practice in 1987, that some surgeon who may have been associated with Mercy might have recommended the bone putty to Smith. When asked if, other than this "potential criticism," he had "no other criticisms whatsoever of Mercy Hospital and its employees or agents; correct?" He replied, "Correct."
[16] It is unclear whether the deposition was provided earlier and Dr. Hug either did not read it or he read it and did not recall the facts he later cited as a basis for his premature discharge standard of care criticisms.
[17] We say "facilitated" because the record contains evidence the resident discharged Plaintiff as a result of an order or instructions from Dr. Smith. According to statements by Appellant's counsel at hearing on May 16, 2008, his office's records indicate they had earlier provided the transcript to Dr. Hug, but if he received it, he lost it when he moved.
[18] Appellants' counsel, in an apparent effort to rebut the allegation of prejudice, in fact buttressed the Defendants' claim of a lack of diligence by stating, "It's always been in the record. They had them for years. They have always known about it. I didn't know about it." (Emphasis added.)
[19] Appellants' cite for this proposition 12 Ohio St. 2001 §§ 2401 and 2402, which address relevance. Relevance was not the issue when the testimony was proposed. We address the reasons and argument which were presented to the trial court.
[20] According to his testimony, Mr. Tortorelli is a surface water hydrologist with a doctorate in civil engineering. Some medical records listed no diagnosis and only reflected the services provided and the dates of services. Other medical records contained diagnostic codes or labels. Some of these medical records indicated RSD as a diagnosis but some also listed an additional diagnosis for medical conditions not claimed to relate to this litigation, i.e., pain management records for RSD and for cervical disc disease and lumbar disc disease. Some bills were for pain management but included a diagnosis that Plaintiff's RSD was "in remission." The records were all admitted into evidence for the jury's consideration.
[21] In the trial transcript, Appellant's counsel indicated he would make an offer of proof, and then he stated simply: "The offer of proof is page 13 of Plaintiffs' Exhibit No. 8." We need not address this offer. This page, which contains two nurses' notes, later was admitted into evidence as part of Plaintiffs' Exhibit No. 8.
[22] Appellants' argument the testimony would rebut testimony by Dr. Smith "after she testified that the antigenic reaction that the package insert [warns about] was a good thing and desirable" mis-characterizes that testimony. While asking Dr. Smith, about reactions to the bone putty and if it was a "good thing" to induce a reaction, she replied: "To have an osteoinduction [bone formation stimulating] process, yes. To have an adverse antigenic reaction, no."
[23] Plaintiff identified Dr. Blue as a doctor who had manipulated her back due to pain. She did not recall seeing a "Dr. King."
[24] When asked about what problems she attributed to RSD, Plaintiff listed swollen feet, severe pain, lack of sleep, stinging, burning, problems walking (having to use a cane or walker) and digestive system problems due to pain medications. The conditions and symptoms present prior to surgery included pain unresponsive to medication, fatigue, joint pain, joint stiffness and swelling, muscle cramps and pain, back pain, difficulty walking, depression, and numbness or tingling.
[25] At the hearing on motions in limine, Appellants' counsel advised she would testify the bone putty was unreasonably dangerous because it was not tested for bone marrow. The trial court found she was qualified to testify about what can cause allergic reaction and about antigens but not about medical causation and diagnosis of Plaintiff's condition or about danger because that was part of the former product liability cause of action and it was not relevant to informed consent.
[26] Nor, strictly speaking, is an error of law presented. A claim based on lack of informed consent is "a cause of action sounding in negligence" for breach of a duty. Scott v. Bradford, 1979 OK 165, ¶ 11, 606 P.2d 554, 557. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2629138/ | 242 P.3d 643 (2010)
238 Or. App. 86
STATE of Oregon, Plaintiff-Respondent,
v.
Christopher Joshua RUGGLES, Defendant-Appellant.
MI080569; A140393.
Court of Appeals of Oregon.
Submitted February 24, 2010.
Decided October 20, 2010.
*644 Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, filed the brief for appellant.
John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.
Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.
SCHUMAN, J.
The question in this case is whether, in a prosecution for refusing "to obey a lawful order" by a police officer, ORS 162.247(1)(b), the state must prove that defendant knew that the order he refused to obey was lawful. The trial court ruled that such proof was not necessary. We agree.
The relevant facts are few and undisputed. A McMinnville police officer saw defendant, whom the officer apparently recognized, and decided to "run a status check" on him. The check revealed an outstanding warrant for defendant's arrest. When the officer ordered defendant to stop, defendant ran away, but the officer quickly apprehended him. Defendant was charged with violating ORS 162.247, which provides:
"(1) A person commits the crime of interfering with a peace officer or parole and probation officer if the person, knowing that another person is a peace officer or a parole and probation officer * * *:
"(a) Intentionally acts in a manner that prevents, or attempts to prevent, a peace officer or parole and probation officer from performing the lawful duties of the officer with regards to another person; or
"(b) Refuses to obey a lawful order by the peace officer or parole and probation officer."
The charging information clearly indicated that defendant was charged under subsection (b); it stated that he "did unlawfully and knowingly refuse to obey a lawful order of Officer Marc Cerda, a person known by defendant to be a peace officer." Before trial, defendant requested a jury instruction that would have informed the jury that the state had to prove, among other things, that defendant "knew the order was lawful." After a colloquy between the court and defense counsel, the court ruled, "I don't believe that the law requires that the state prove that the defendant knew that the order was lawful, so I would not give that instruction to the jury, and won't require the state to prove that the defendant knew that the order to stop was lawful." Defendant was subsequently convicted and sentenced to 45 days in jail. This appeal ensued.
Determining whether a particular element of a crime requires a culpable mental stateand if so, which onehas been described as a "chronically vexing problem." State v. Schodrow, 187 Or.App. 224, 228, 66 P.3d 547 (2003). As the courts have repeatedly pointed out since 1978, the statutes that address the issue are confusing. See, *645 e.g., State v. Blanton, 284 Or. 591, 595, 588 P.2d 28 (1978) ("a confusing appearance of circularity"); State v. Andrews, 174 Or.App. 354, 361, 27 P.3d 137 (2001) ("tautological"); State v. Rutley, 202 Or.App. 639, 643, 123 P.3d 334 (2005), aff'd in part, rev'd in part, 343 Or. 368, 171 P.3d 361 (2007) ("gibberish"). The difficulty stems from the language providing that a culpable mental state is required for any element "that necessarily requires a culpable mental state." ORS 161.095(2); ORS 161.115(1). Fortunately, this case does not require us to apply the problematic language. That is so because, as a preliminary matter, if a statute is outside of the criminal code and it "clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any material element thereof," the state need not prove any culpable mental state and no further inquiry is necessary. ORS 161.105(1)(b); State v. Jones, 223 Or. App. 611, 617-18, 196 P.3d 97 (2008), rev. den., 345 Or. 618, 201 P.3d 909 (2009). As we explain below, the "interfering with a peace officer" statute that defendant violated is outside of the criminal code, and it "clearly indicates" (as that phrase has been construed) a legislative intent to dispense with a culpable mental state requirement.
The statutes governing culpable mental states, including ORS 161.105(1)(b), were enacted as part of the Oregon Criminal Code of 1971. Or. Laws 1971, ch. 743, § 9. At the same time, the legislature enacted ORS 161.005, which lists the statutes that "shall be known and may be cited as Oregon Criminal Code of 1971." Or. Laws 1971, ch. 743, § 1. Thus, when ORS 161.105(1)(b) refers to laws "outside the Oregon Criminal Code," that phrase must cross-reference the list in ORS 161.005.[1]
The "interfering with a peace officer" statute at issue in this case is ORS 162.247. The list in ORS 161.005 includes "[ORS] 162.225 to 162.375," a series of statutes captioned "Obstructing Governmental Administration." It would therefore appear that ORS 162.247 is included in the Oregon Criminal Code and not covered by ORS 161.105(1)(b).
That appearance, however, is illusory. When ORS 162.247 was enacted, it was codified with that number and placed in the "Obstructing Governmental Administration" series not by the legislative assembly, but by legislative counsel. The statute is followed by this note: "[ORS] 162.247 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 162 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation." (Emphasis added.) The Preface, in turn, explains that such notes "mean that the placement of the section was editorial and not by legislative action." Preface, 1 2009 Oregon Revised Statutes viii. We therefore conclude that ORS 162.247 is not included in the Oregon Criminal Code. That being the case, that statute is governed by ORS 161.105(1)(b), under which, as noted above, the state need not prove a culpable mental state for an element if the statute "indicates a legislative intent to dispense with any culpable mental state requirement" for that element.
The Supreme Court and this court have discussed how to determine whether a statute clearly indicates a legislative intent to dispense with a culpable mental state requirement. Rutley, 343 Or. at 375-77, 171 P.3d 361; State v. Rainoldi, 236 Or.App. 129, 135-40, 235 P.3d 710 (2010). Of course, the ordinary techniques of statutory interpretation apply: text, context, legislative history, maxims, etc. State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009). In addition, we have noted that culpable mental state *646 questions call for some nuanced variations on the ordinary analysis. For example, ORS 161.105(1)(b) requires us to look for not only indications of legislative intent, but for clear indications. Rainoldi, 236 Or.App. at 135, 235 P.3d 710. In the same vein, we have noted that the drafters of the mental state statutes expressed general disapproval of "strict liability" offenses. Id. (citing Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 11(C) (July 1970)). The barrier that the state must overcome in order to establish that a statute indicates an intent to dispense with a culpable mental state, then, is a high one.
Nonetheless, we conclude that the barrier is overcome here. Two strong arguments support the state's position. First, as the Supreme Court has noted, the legislature is more likely to have intended to dispense with a culpable mental state with respect to one element of an offense if other elements carry express culpable mental states, because the existence of even one culpable mental state defeats the argument that the statute imposes strict liability. See State v. Irving, 268 Or. 204, 207, 520 P.2d 354 (1974). ORS 162.247 is by no means a strict liability crime. To violate the statute, a person must know that the person from whom an order issues is a peace officer or a parole and probation officer. The person must refuse to obey the order, and that verb implies knowledge and intent (in contrast, for example, to fail to obey).
Second, and decisively, requiring a culpable mental state regarding the lawfulness of the refused order would severely complicate enforcement of the statute, if not render enforcement impossible. See Rutley, 343 Or. at 376-77, 171 P.3d 361 (holding that the state need not prove that a defendant knew that he was distributing drugs within 1,000 feet of a school; likelihood that legislature intended such a requirement "is virtually nonexistent"); State v. Miller, 309 Or. 362, 368, 788 P.2d 974 (1990) (holding that the state need not prove that a DUII defendant knew he was intoxicated; such requirement "seems preposterous"); State v. Engen, 164 Or.App. 591, 603, 993 P.2d 161 (1999), rev. den., 330 Or. 331, 6 P.3d 1101 (2000) (legislative intent to dispense with culpable mental state requirement can be inferred where such a requirement would be "incongruous"); Rainoldi, 236 Or.App. at 138, 235 P.3d 710 (reviewing Supreme Court cases; concluding that overarching inquiry is whether imposing a culpable mental state requirement would "result in a statute that is extremely difficult to enforce"). Whether a particular police order is "lawful" is frequently a complex question involving some of the most vexing and intractable issues in constitutional law. For example, a police order such as "Stop!" can be an unlawful seizure of a person under Article I, section 9, of the Oregon Constitution, depending on whether the order is accompanied by a sufficient show of authority and the officer who issues the order is subsequently found to have lacked reasonable suspicion to believe that criminal activity was afoot. State v. Rodgers/Kirkeby, 347 Or. 610, 623-24, 227 P.3d 695 (2010). The inquiry is addressed on a case-by-case basis, there are few if any bright line rules, and there is an almost infinite variety of variablessome of which, such as the officer's state of mind, could not possibly be known by a defendant. Likewise, an order to disperse might unlawfully interfere with a person's right of free expression under Article I, section 8, of the Oregon Constitution a determination that can surely confound ordinary citizens and has in fact confounded even judges of this court. See State v. Illig-Renn, 189 Or.App. 47, 73 P.3d 307 (2003) (interference with police officer statute is not unconstitutional), rev'd, 337 Or. 327, 99 P.3d 290 (2004) (interference with police officer statute is unconstitutional). It is difficult to imagine a prosecution in which the state could prove that a defendant knew or should have known that a particular order was lawful. We conclude that, clearly, the legislature intended to dispense with a culpable mental state requirement with respect to a defendant's knowledge that a particular police order is lawful.
Because ORS 162.247 is outside of the Oregon Criminal Code, and because the statute clearly indicates a legislative intent to dispense with a culpable mental state requirement with respect to the lawfulness of *647 the order that defendant refused to obey, the state did not have to prove such a mental state and the trial court did not err in so ruling.
Affirmed.
NOTES
[1] But see State v. Miller, 309 Or. 362, 370, 788 P.2d 974 (1990), where the Supreme Court suggested that the phrase "outside the Oregon Criminal Code" might have been intended to include only "the gaggle of miscellaneous offenses located throughout the Oregon Revised Statutes known affectionately as `the .990 crimes.' These were [o]ffenses tacked on to the end of statutory chapters devoted to substantive concerns other than the criminal law." Thus, the court has suggested, the statutes that are listed in ORS 161.005 are not necessarily coextensive with the Oregon Criminal Code. State v. Wolfe, 288 Or. 521, 525 n. 3, 605 P.2d 1185 (1980). At present, we discern no reason to translate the Supreme Court's 10- and 20-year-old suggestions into a holding. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2629139/ | 242 P.3d 35 (2010)
Jan AHTEN, Appellant,
v.
Bradley J. BARNES dba J.B. Barnes; and Respondent,
Western Surety Company, (Bond No. XXXXXXXXX), Defendant.
No. 64345-2-I.
Court of Appeals of Washington, Division 1.
November 1, 2010.
*36 Stephen Hennessey, Durkee & Hennessey, Bellevue, WA, for Appellant.
Catherine Noonan, Noonan Law Firm PLLC, Seattle, WA, for Respondent.
LAU, J.
¶ 1 The registration of contractors act, chapter 18.27 RCW, requires Washington contractors to register and file a surety bond with the Department of Labor and Industries (Department). RCW 18.27.040 provides a mechanism for consumers, subcontractors, and others to recover against the bond, and requires those parties to serve three copies of the summons and complaint on the Department. RCW 18.27.040(3). Homeowner Jan Ahten sued her contractor John Barnes and Western Surety Company to recover against the contractor's bond. In the same complaint, she also sought breach of contract damages against Barnes personally. Ahten served the Department but not Barnes. Ahten then obtained a $250,831 default judgment *37 against Barnes on the breach of contract claim. The trial court vacated the default judgment on improper service and lack of personal jurisdiction grounds after Barnes learned about the default judgment and moved for relief. Ahten argues that she properly served Barnes through the substituted service provision in RCW 18.27.040(3). But because this provision applies only to an action against a contractor and its bond to recover against the bond, we affirm vacation of the default judgment.
FACTS
¶ 2 Jan Ahten owns a home in Bellevue, Washington and began a remodel project in 2007. She hired contractor John Bradley Barnes to assist her. The parties signed no written agreement. Barnes was a licensed contractor, and he obtained a $12,000 bond as required by RCW 18.27.040 from Western Surety Company.
¶ 3 Barnes began work on August 23, 2007. Ahten concedes she knew Barnes planned to go to Louisiana in December 2007, but she claimed she did not know he planned a permanent move. Barnes billed Ahten for the following remodel work performed by his employees between September and December 2007:
Save shrubs. Move House. Grading. Demolition. Chimney removal. Roof Removal. Garage Removal. Foundation footing cleanup. Dry rot removal & repair. Concrete removal. Wall removal & clean up. Install water & power conduits. Install gas conduit. Back fill & compaction site clean up. Assist in framing. Remove stairs.
¶ 4 Barnes and his crew removed the roof in November 2007. According to Barnes, he and the framing and roofing contractor, Francisco Flores, tried to impress on Ahten the importance of completing the roof work prior to winter. Ahten agreed and Flores began installing roof trusses.
¶ 5 On December 13, 2007, Barnes moved to Louisiana. While Barnes was driving to Louisiana, Flores called Barnes. Flores said that after he had completed approximately 70 percent of the roof work, Ahten ordered everyone off the worksite.
¶ 6 Around December 22, 2007, Ahten's sister, Jen Harrington, called Barnes. According to Barnes, Jen said that she and her brother, Herb Ahten,[1] "`had to remove [Ahten] from the loop and that they were going to take the job over.'" Barnes returned to Seattle for the holidays. Barnes met with Jen and Herb on January 1, 2008. Ahten authorized Jen and Herb to make all decisions regarding the project. Jen and Herb gave Barnes new plans for the house. By letter dated January 1, 2008, Ahten offered to pay Barnes $60/hour for the additional work.
¶ 7 In early January 2008, Flores demolished the previous work done on the second floor and the roof in accordance with the new plans. Barnes assisted with the cleanup. On January 10, Herb and Jen dismissed Barnes from the project.
¶ 8 On June 19, 2008, Ahten filed a complaint in King County Superior Court against Barnes for breach of contract and Western Surety Company to recover against the bond. She sought damages from Barnes "known to be not less than $50,000." The complaint did not specify how Barnes had breached "a series of contracts" or caused the damages she alleged. While Ahten served the summons and complaint on the Department, she failed to serve Barnes personally. The surety paid to Ahten the $12,000 bond amount and is not involved in this appeal. When Barnes failed to answer or appear, Ahten moved for a default judgment against him on September 4, 2008, alleging that he owed her a sum certain. Her declaration asserted that Barnes had removed the roof, causing damage to the home's interior during winter. That same day, the court granted a $250,831 default judgment against Barnes personally. Barnes learned about the suit sometime in October 2008.
¶ 9 Barnes moved to set aside the default judgment on August 25, 2009. In its October 2, 2009 order granting the motion and setting aside the default, the trial court reasoned,
*38 And the Court having researched the legislative history of substitute Senate Bill 5101 passed in 2001 and substitute House Bill 1843 passed in 2007; both bills were requested by the Dept. of Labor and Industries and it being clear that there was no intent by the Legislature to confer personal jurisdiction on the contractor by service on the department except for actions against the bond or deposit of the contractor; therefore the motion to vacate the default judgment dated September 4, 2009 is denied in part, as to the portion of the judgment paid by Western Surety Company on Bond No. 69229231. The motion to vacate is granted as to the judgment amount in excess of the amount of the funds available through the aforesaid Bond. Because the motion is granted in part and denied in part, no attorney fees or costs are awarded to either party.
Ahten appeals.
DISCUSSION
¶ 10 Ahten argues that the trial court erred in setting aside the default judgment because a plain reading of RCW 18.27.040(3)[2] allows a homeowner to serve the summons and complaint only on the Department in an action against a contractor and its bond. She claims personal service of the summons and complaint on the contractor is not required under this statute. Ahten also argues that the legislature intended to amend the statute in 2007 to permit substituted service on the Department by inserting the phrase "and confer personal jurisdiction."[3] She further claims the statute is unambiguous and therefore the trial court's reliance on legislative history constitutes error.
¶ 11 Barnes responds that RCW 18.27.040(3)'s substituted service provision applies only to actions on the contractor's bond, not to actions against contractors personally. And he also argues this interpretation is supported by the 2007 statute amendment, the statute's purpose and legislative history, and case law precedent.
Standard of Review
¶ 12 "Proper service of the summons and complaint is essential to invoke personal jurisdiction over a party, and a default *39 judgment entered without proper jurisdiction is void." In re Marriage of Markowski, 50 Wash.App. 633, 635-36, 749 P.2d 754 (1988). "Because courts have a mandatory, nondiscretionary duty to vacate void judgments, a trial court's decision to grant or deny a CR 60(b) motion to vacate a default judgment for want of jurisdiction is reviewed de novo."[4]Dobbins v. Mendoza, 88 Wash. App. 862, 871, 947 P.2d 1229 (1997).
¶ 13 There is no time limit to bring a motion to vacate a default judgment that is void. Markowski, 50 Wash.App. at 635, 749 P.2d 754 ("Motions to vacate under CR 60(b)(5) may be brought at any time after entry of judgment.") (footnote omitted); Allstate Ins. Co. v. Khani, 75 Wash.App. 317, 323-24, 877 P.2d 724 (1994) ("Void judgments may be vacated regardless of the lapse of time.").
Overview of Chapter 18.27 RCW
¶ 14 Chapter 18.27 RCW is the contractor's registration statute. The statute's statement of legislative finding declares,
[U]nregistered contractors are a serious threat to the general public and are costing the state millions of dollars each year in lost revenue. To assist in solving this problem, the department of labor and industries and the department of revenue should coordinate and communicate with each other to identify unregistered contractors.
Laws of 1993, ch. 454, § 1. Its overall purpose is "to afford protection to the public including all persons, firms, and corporations furnishing labor, materials, or equipment to a contractor from unreliable, fraudulent, financially irresponsible, or incompetent contractors." RCW 18.27.140.
¶ 15 To this end, the registration statute requires every contractor in Washington to register with the Department. RCW 18.27.010(2), .020(1). And to perform work as an unregistered contractor is punishable as a criminal gross misdemeanor offense. RCW 18.27.020(2)(a). RCW 18.27.385, entitled, "Marketing campaign" requires the Department to create a campaign aimed at consumers and warn them about the risks and consequences of hiring unregistered contractors. RCW 18.27.390(1) declares, "The legislature finds that it is contrary to public policy to allow unregistered contractors to continue doing business illegally." Subsection 2 of this provision requires the Department of Labor and Industries, the Employment Security Department, and the Department of Revenue to establish an "unregistered contractors enforcement team with the statewide enforcement goal of enforcing the registration of contractors act."
¶ 16 RCW 18.27.040, the section of the statute at issue here, is entitled, "Bond or other security requiredActions against Suspension of registration upon impairment." It requires applicant contractors to file with the Department a surety bond issued by an acceptable surety insurer in the amount of $12,000 for general contractors and $6,000 for specialty contractors. RCW 18.27.040(1). The bond must be conditioned that the applicant will pay all persons performing labor, including employee benefits, all taxes and other contributions due the State, all persons furnishing materials or equipment, and all amounts adjudged against the contractor by reason of breach of contract, including improper work in the conduct of the contracting business. RCW 18.27.040(1). "RCW 18.27.040(3) allows parties having a claim to bring suit against the bond. The statute recites filing requirements, statutes of limitations, and service requirements specifically for suits against the bond. RCW 18.27.040(3)." Cosmopolitan Engg. Grp., Inc. v. Ondeo Degremont, Inc., 159 Wash.2d 292, 297, 149 P.3d 666 (2006) (emphasis added).
¶ 17 RCW 18.27.040(4) provides that the bond surety shall not be liable in an aggregate amount in excess of the amount named in the bond. It also sets forth the priority of payment when the claims against the bond exceed the bond amount. RCW 18.27.040(5) establishes bond amounts that must be reserved *40 for residential homeowners. And RCW 18.27.040's remaining sections allow the Department to suspend registration of a contractor where the bond no longer meets the required amount and to increase the amount of the bond required for contractors with several previous judgments against them. RCW 18.27.040(7)(11). Finally, RCW 18.27.040(12) confers on the director rule making authority "necessary for the proper administration of the security."
Statutory Interpretation
Our purpose when interpreting a statute is to "`discern and implement the intent of the legislature.'" [City of Olympia v. Drebick, 156 Wash.2d 289, 295, 126 P.3d 802 (2006) ] (quoting State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003)). Where the meaning of statutory language is plain on its face, we must give effect to that plain meaning as an expression of legislative intent. [Olympia, 156 Wash.2d at 295, 126 P.3d 802]. In discerning the plain meaning of a provision, we consider the entire statute in which the provision is found as well as related statutes or other provisions in the same act that disclose legislative intent. [Olympia, 156 Wash.2d at 295, 126 P.3d 802]; Advanced Silicon Materials, LLC v. Grant County, 156 Wash.2d 84, 89-90, 124 P.3d 294 (2005); Ellerman v. Centerpoint Prepress, Inc., 143 Wash.2d 514, 519, 22 P.3d 795 (2001). When a statute is ambiguous, we then resort to aids of construction, including legislative history. City of Olympia, 156 Wash.2d at 295 [126 P.3d 802]; Advanced Silicon, 156 Wash.2d at 90 [124 P.3d 294].
Cosmopolitan, 159 Wash.2d at 298-99, 149 P.3d 666.
¶ 18 We first review the language of the provision in question. The service provision relied on by Ahten provides, "Service of process in an action filed under this chapter against the contractor and[5] the contractor's bond or the deposit shall be exclusively by service upon the department." RCW 18.27.040(3) (emphasis added). This provision refers to an action filed against the contractor and contractor's bond or deposit, but limits the provision's application to actions filed under this chapter. See Cosmopolitan, 159 Wash.2d at 299, 149 P.3d 666.
¶ 19 Review of chapter 18.27 RCW, and in particular RCW 18.27.040 in its entirety, evidences the legislature's intent that actions "filed under this chapter" refer only to actions for recovery against the contractor's bond. Various subsections of RCW 18.27.040 expressly refer or relate to suits against the bond. For example, RCW 18.27.040(3) at issue here provides in part, "Any person, firm, or corporation having a claim against the contractor for any of the items ... may bring suit upon the contractor and the bond or deposit.... Action upon the bond or deposit brought by any other authorized party...." (Emphasis added.) And RCW 18.27.040(6) provides in part, "The prevailing party in an action filed under this section against the contractor and contractor's bond or deposit ... is entitled to costs, interest, and reasonable attorneys' fees." (Emphasis added.) We conclude that nothing in chapter 18.27 RCW, and section .040 specifically, suggests that the legislature intended to address actions against contractors.
¶ 20 And three Washington cases consistently interpreted the statute as applying only to actions against a contractor's bond. For example, in Mid-City Materials, Inc. v. Heater Beaters Custom Fireplaces, 36 Wash. App. 480, 482, 674 P.2d 1271 (1984), Mid-City brought an action under RCW 18.27.040 on an overdue note against Heater Beaters, its surety, operators (Richard and Ann Murchison), and Richard's parents (Fred and Ethel Murchison). Mid-City claimed that all four Murchisons were partners in Heater Beaters. Mid-City obtained default judgments against all except the surety. The parents moved *41 unsuccessfully to vacate the default judgment because they were not personally served.[6] Like here, Mid-City served only the Department. We held that because "the trial court had not acquired in personam jurisdiction over the parents by proper service of process on them, the trial court erred when it declined to vacate the default judgment against the parents." Mid-City Materials, 36 Wash. App. at 483, 674 P.2d 1271. We reasoned that "[t]he service provisions of the statute are clearly and specifically limited by the language of the statute to suits brought on the bond." Mid-City Materials, 36 Wash. App. at 484, 674 P.2d 1271.
¶ 21 In Subcontractors and Suppliers Collection Services v. McConnachie, 106 Wash. App. 738, 24 P.3d 1112 (2001), Division Three of this court came to a similar conclusion. There, the collection service served the Department to effect service in a lawsuit against contractor McConnachie and its bond to collect on an unpaid bill for materials. But service occurred after the statute of limitations had run against the bonding company. The question therefore was whether service pursuant to RCW 18.27.040 conferred personal jurisdiction over McConnachie for debt not covered by the bond. Like Ahten, the collection service argued that the court had "personal jurisdiction over Mr. McConnachie, because the clear language of the statute [RCW 18.27.040(3)] says so." McConnachie, 106 Wash.App. at 741, 24 P.3d 1112. After examining the entire legislative scheme and the statute's title, the court concluded that RCW 18.27.040 "spells out the requirements for realizing on a construction bond, including effecting service." McConnachie, 106 Wash.App. at 741, 24 P.3d 1112 (emphasis added). While RCW 18.27.040(3) included language referring to an action against "the contractor, the contractor's bond, or the deposit," the court held that RCW 18.27.040 applied to suits against the bond and RCW 18.27.040(3)'s service provisions therefore applied only to actions against the bond or deposit.[7] The court also observed that RCW 18.27.040 is entitled, "Bond or other security requiredActions againstSuspension of registration upon impairment.[8] The title of RCW 18.27.040 states it is applicable to actions against the contractor's bond or other security. The title does not say actions against contractors in general." McConnachie, 106 Wash.App. at 743, 24 P.3d 1112.
¶ 22 Finally, our Supreme Court reached a similar conclusion about the statute's scope in a dispute over the attorney fees provision, RCW 18.27.040(6).[9] In Cosmopolitan, subcontractor Cosmopolitan sued contractor Ondeo for unpaid work. It also sought recovery from National Fire Insurance Company to the extent of Ondeo's surety bond. The jury returned a $100,420 verdict in favor of Cosmopolitan. Cosmopolitan then sought attorney fees under RCW 18.27.040(6), which provides attorney fees to the "`prevailing party in an action filed under this section against the contractor and contractor's bond or deposit....'" Cosmopolitan, 159 Wash.2d at 295, 149 P.3d 666 (emphasis omitted) (quoting RCW 18.27.040(6)). It argued that this provision allowed recovery of attorney fees in actions against contractors and in actions against their bonds. The Court of Appeals held that as the prevailing party, Cosmopolitan was entitled to fees against both the opposing contractor and its bond. But the Supreme Court reversed, holding that the trial court had correctly limited Cosmopolitan's attorney fees only to the amount available under the bond.[10]
¶ 23 The Supreme Court first reviewed the attorney fees provision at issue. It concluded *42 that this provision "refers to an action filed against the contractor and contractor's bond or deposit, but limits the application of the provision to actions `filed under this section.'" Cosmopolitan, 159 Wash.2d at 299, 149 P.3d 666 (quoting RCW 18.27.040(6)). The court then reviewed the entirety of RCW 18.27.040 and concluded that "filed under this section" refers only to actions for recovery against the bonds. And RCW 18.27.040's various subsections support this interpretation because they expressly refer or relate to suits against the bond. The court further reasoned, "Nothing in these surrounding subsections [RCW 18.27.040(3)(5)] suggests that the legislature intended to discuss actions against the contractors." Cosmopolitan, 159 Wash.2d at 299, 149 P.3d 666.
The Supreme Court then cited with approval McConnachie.
The McConnachie decision interpreted RCW 18.27.040(3) before the legislature's 2001 amendments to the statute added the attorney fee provision at issue here, but nothing in the 2001 amendments shifts the focus of RCW 18.27.040 away from the contractor's bond. The McConnachie court's reasoning applies equally here; considering the context of the overall legislative scheme, the statute as a whole spells out the requirements and conditions for realizing on a contractor's bond.
Cosmopolitan, 159 Wash.2d at 300, 149 P.3d 666.
2007 Amendment to RCW 18.27.040
¶ 24 Ahten argues that 2007 amendments to the statute demonstrate the legislature's intent to allow substituted service for actions personally against a contractor. He relies specifically on the phrase "and confers personal jurisdiction."
¶ 25 In Mid-City, McConnachie, and Cosmopolitan, the courts interpreted RCW 18.27.040 before the legislature added the language "and confers personal jurisdiction" in 2007 ("The service shall constitute service and confer personal jurisdiction on the ((registrant)) contractor and the surety for suit ((upon the)) on claimant's claim against the contractor and the bond or deposit ..."). Laws of 2007, Ch. 436, § 4. But as Cosmopolitan noted, "[A]n action against the bond must also necessarily claim that a contractor breached a contract or failed to pay. This need to establish underlying contractor liability explains the legislature's reference to `an action filed under this chapter against the contractor and contractor's bond or the deposit.'" Cosmopolitan, 159 Wash.2d at 300-01, 149 P.3d 666(emphasis added) (quoting RCW 18.27.040(6)).
Had the legislature intended to authorize attorney fees for prevailing parties both in actions against contractors and in actions against the bond, the legislature could have referred to multiple actions or made it clear that fees were warranted either in an action against the contractor or in an action against the contractor's bond.
See Cosmopolitan, 159 Wash.2d at 301, 149 P.3d 666. This reasoning applies equally here.
¶ 26 Ahten next argues that the 2007 statutory amendment impliedly overrules Mid-City, McConnachie, and Cosmopolitan. We disagree. "In construing legislation, [courts] presume the Legislature is familiar with past judicial interpretation of its enactments." Glass v. Stahl Specialty Co., 97 Wash.2d 880, 887, 652 P.2d 948 (1982). "Absent an indication that the Legislature intended to overrule the common law, new legislation will be presumed to be consistent with prior judicial decisions." In re Marriage of Williams, 115 Wash.2d 202, 208, 796 P.2d 421 (1990). We will not assume that the legislature would affect a significant change in legislative policy by mere implication. In re Marriage of Little, 96 Wash.2d 183, 191, 634 P.2d 498 (1981). Ahten points to nothing in RCW 18.27.040's legislative history that demonstrates legislative intent to overrule the common law.
¶ 27 Furthermore, that the legislature removed the commas between "contractor" and "contractor's bond" makes the legislature's intent even more clear ("Service of process in an action filed under this chapter against the contractor ((,)) and the contractor's bond ((,)) or the deposit shall be exclusively by service upon the department...."). Former RCW 18 .27.040(3) (Laws of 2007, ch. 436, § 4). *43 Because the word "and" replaces the comma between "contractor" and "contractor's bond," the statute more clearly expresses the legislative intent that a claim under this chapter must involve the bond. See supra note 5.
¶ 28 And had the legislature intended RCW 18.27.040(3)'s substitute service provision to apply to actions against contractors, it could have done so more explicitly by not inserting the words "and confer personal jurisdiction" in a statutory section dealing entirely with suits against contractors' bonds. See Cosmopolitan, 159 Wash.2d at 306, 149 P.3d 666.
¶ 29 Even if the legislature's reference to a suit against the contractor and the bond renders the provision ambiguous, aids of statutory constructionincluding legislative historyrequire the same conclusion. Our review of the legislative history relating to the 2007 amendment reveals nothing indicating that the legislature intended a significant change in the statute's scope that would support Ahten's reading. And Ahten points to no legislative history that supports her interpretation.[11] Without clear expression of legislative intent, and because substituted service of process implicates fundamental due process concerns, we decline to interpret 2007 amendments to RCW 18.27.040(3) as significantly expanding the statute's scope to include not only actions against the bond, but all actions against contractors.
¶ 30 Finally, Ahten contends that adopting her interpretation of RCW 18.27.040(3) would advance the statute's stated purposes to protect prevailing homeowners, subcontractors, and suppliers from unregistered contractors. But the context of the statutory scheme is important. We agree with Cosmopolitan's reasoning.
"While contractor registration in general, and bond requirements in particular, are obviously intended to protect the public from irresponsible contractors, this purpose should not necessarily be used to extend the protections beyond the mechanisms expressly provided for in the relevant statute.... Had the legislature intended the attorney fee provision to apply to more than suits against the bond, it could have located the attorney fee provision elsewhere in the statutory scheme.... After considering the entire context of RCW 18.27.040, it seems clear that the legislature intended subsection (6)'s attorney fee provision to be limited to actions against the bond."
Cosmopolitan, 159 Wash.2d at 302, 149 P.3d 666.
Attorney Fees
¶ 31 Barnes requests attorney fees, citing RCW 18.27.040(6) that entitles the prevailing party in a suit under the registration of contractors act to attorney fees. But the claim at issue here is not one under chapter 18.27 RCW to recover against a bond. Rather, it is a judgment against Barnes for breach of contract. Because this statute does not apply, Barnes is not entitled to attorney fees.
CONCLUSION
¶ 32 Considering RCW 18.27.040 in its entirety, the context of related subsections, legislative history, and case law precedent, we hold that RCW 18.27.040(3)'s substituted service provision applies only to actions against a contractor and its bond to recover against the bond under the circumstances presented here. Accordingly, we affirm the trial court's order vacating the default judgment against Barnes.
WE CONCUR: DWYER, C.J., and SCHINDLER, J.
NOTES
[1] For clarity, we use Jen and Herb's first names.
[2] RCW 18.27.040(3) provides, "Any person, firm, or corporation having a claim against the contractor for any of the items referred to in this section may bring suit against the contractor and the bond or deposit in the superior court of the county in which the work was done or of any county in which jurisdiction of the contractor may be had. The surety issuing the bond shall be named as a party to any suit upon the bond. Action upon the bond or deposit brought by a residential homeowner for breach of contract by a party to the construction contract shall be commenced by filing the summons and complaint with the clerk of the appropriate superior court within two years from the date the claimed contract work was substantially completed or abandoned, whichever occurred first. Action upon the bond or deposit brought by any other authorized party shall be commenced by filing the summons and complaint with the clerk of the appropriate superior court within one year from the date the claimed labor was performed and benefits accrued, taxes and contributions owing the state of Washington became due, materials and equipment were furnished, or the claimed contract work was substantially completed or abandoned, whichever occurred first. Service of process in an action filed under this chapter against the contractor and the contractor's bond or the deposit shall be exclusively by service upon the department. Three copies of the summons and complaint and a fee adopted by rule of not less than fifty dollars to cover the costs shall be served by registered or certified mail, or other delivery service requiring notice of receipt, upon the department at the time suit is started and the department shall maintain a record, available for public inspection, of all suits so commenced. Service is not complete until the department receives the fee and three copies of the summons and complaint. The service shall constitute service and confer personal jurisdiction on the contractor and the surety for suit on claimant's claim against the contractor and the bond or deposit and the department shall transmit the summons and complaint or a copy thereof to the contractor at the address listed in the contractor's application and to the surety within two days after it shall have been received." (Emphasis added.)
[3] The legislature made the following 2007 changes to the relevant portion of the statute: "Service of process in an action filed under this chapter against the contractor ((,)) and the contractor's bond ((,)) or the deposit shall be exclusively by service upon the department.... The service shall constitute service and confer personal jurisdiction on the ((registrant)) contractor and the surety for suit ((upon the)) on claimant's claim against the contractor and the bond or deposit...." Former RCW 18.27.040 (Laws of 2007, ch. 436, § 4).
[4] Barnes contends the standard of review is for an abuse of discretion. We disagree. And we review findings of fact under a substantial evidence standard. Clayton v. Wilson, 168 Wash.2d 57, 227 P.3d 278 (2010).
[5] "And" conveys a conjunctive meaning, otherwise the legislature would have used "or" if it meant to convey a disjunctive meaning. Ski Acres, Inc. v. Kittitas Cnty., 118 Wash.2d 852, 857, 827 P.2d 1000 (1992). To achieve the meaning urged by Ahten requires us to rewrite this provision by replacing the word "and" with the word "or""Service of process in an action filed under this chapter against the contractor [or] the contractor's bond or deposit shall be exclusively by service upon the department." RCW 18.27.040(3). We decline to read "or" into this provision.
[6] Mid-City obtained a default judgment against the parents for $15,091.89. The bond required at that time was $4,000.00.
[7] In so holding, McConnachie cited with approval Mid-City, "the overall focus of RCW 18.27.040(3) remains the contractor's bond and deposit. Our reading of the whole statute convinces us that Mid-City remains good law." (Citations omitted.)
[8] The current version of RCW 18.27.040 retains this title without change.
[9] We note that the attorney fees provision at issue in Cosmopolitan is nearly identical to the 2007 amendment at issue here in its use of the phrase, "against the contractor and the bond."
[10] RCW 18.27.040(5) reserves one-half of the bond amount for residential homeowners.
[11] At oral argument, Ahten's counsel acknowledged that the legislative history does not aid her construction. Notably, Ahten contends that because the statute is unambiguous, reliance on legislative history is improper. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326575/ | Sanders, JaNet L., J.
This is an action, brought pursuant to G.L.c. 150C, §11, seeking to vacate an arbitrator’s award in favor of the Town of Saugus (the “Town”). The award concerned the Town’s right to revise minimum staffing requirements of the Saugus Police Department so as to reduce the need for overtime. The Saugus Police Patrol Officers’ Union (the “Union”) initiated the arbitration, claiming that the change violated the collective bargaining agreement that it had with the Town. The arbitrator concluded that the grievance was not arbitrable because shift staffing decisions like the one at issue are the Town’s prerogative and cannot be bargained away. In seeking to vacate that award, the Union in essence contends that the arbitrator committed an error of law. This Court concludes that, given the narrow scope of judicial review, the award should stand.
The undisputed facts can be summarized as follows. The Town and Union have been parties to a series of collective bargaining agreements. The last signed agreement expired in 2002, although the Town continued to adhere to the shift staffing levels that agreement set forth. After originally approving a police overtime budget for fiscal year 2007, the Town voted to reduce that budget by $35,000. After the Department of Revenue warned the Town that it was at some financial risk, the Town Manager froze the remaining money in the overtime account and in March 2007, revised the minimum staffing requirements that would trigger overtime. The Union filed a grievance against the Town on the grounds that this was in violation of the provisions of the collective bargaining agreement. A hearing on the grievance was held in June and November 2009 before an arbitrator appointed by the American Arbitration Association, Harvard Law School Professor Elizabeth Bartholet. The Union argued in that proceeding that the Town could not freeze funds already allocated. In a decision rendered in February 2010, the arbitrator held that the decision at issue was one of those “nondelegable rights of management” which may not be abandoned by agreement and that an arbitrator may not contravene. The Union’s grievance was therefore not arbitrable. This lawsuit ensued.
The scope of judicial review of an arbitrator’s award is quite limited. Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 67 Mass.App.Ct. 702, 706 (2006). A court may not reexamine any determination of fact or of law made in the arbitration process except for circumstances set forth in G.L.c. 150C §11. Fall River v. Teamsters Union, Local 526, 27 Mass.App.Ct. 649 (1989). That statute states that an award shall be vacated only if procured by corruption or bias, if the arbitrator exceeded her powers, or if she “rendered an award requiring a person to commit an act or engage in conduct prohibited by law.” The Union argues that the award here must be set aside based on this last grounds because “it permits to Town to commit an unlawful act—allowing the Town to defund a minimum manning provision in a collective bargaining agreement during the middle of a fiscal year . . .’’In this Court’s view, that is simply another way of saying that the arbitrator committed an error of law because she did not grant the Union’s request to require the Town to adhere to the minimum staffing requirements (something that the arbitrator herself believed was unlawful for her to order). This is not what G.L.c. 150C, §11 meant when it stated that an arbitrator could not compel an illegal act, and does not support the judicial intrusion into the arbitral process that the Union seeks.
In somewhat of an about-face, the Union argues in the alternative that the arbitrator had no jurisdiction to hear the matter because the collective bargaining agreement upon which the Union itself relied in bringing a grievance was of no legal effect. In support of its position, the Union cites Boston Housing Authority v. National Conference of Firemen and Oilers, Local 3, 458 Mass. 155 (2010), which held that so-called “evergreen clauses” in lapsed collective bargaining agreements could not extend the terms of those agreements beyond three years. In that case, the BHA, like the Town here, cut back on minimum staffing requirements, citing fiscal concerns. The Union filed a grievance and the arbitrator entered an award in its favor. In reversing the lower court decision to confirm the award, the SJC agreed with the BHA’s position that it was not limited in what it could do by an earlier “Memorandum of Understanding” which had expired more than three years before, despite the presence of an “evergreen clause” purporting to extend it during any subsequent negotiations. That was because such clauses violated G.L.c. 150E, §7(a), which imposed a three-year limitation on public collective bargaining agreements.
Certainly, if the arbitrator in the instant case had made an award in the Union’s favor, the Town could *625rely on the BHA decision in seeking to have such an award vacated. Where the Union initiated the grievance in the first place on the grounds that the Town had violated the agreement, it makes no sense for it to use the BHA case in its favor in order to overturn an award which essentially reached the same result which would have obtained if the arbitrator had specifically found that no agreement was in effect. Indeed, G.L.c. 150C, §11 itself would seem to preclude this; one may apply to have an award vacated if no arbitration agreement exists, provided that the applicant raised an objection to participating in the arbitration hearing at the time. As the Court stated in Lydon v. Boston Sand & Gravel Co., 175 F3d 6, 13 (1st Cir. 1999), to allow a party to take one position in arbitration and the exact opposite in court would vitiate the value of arbitrators as decision makers.
For these and other reasons articulated by the Town in its Memorandum of Law, the Town’s Motion for Judgment on the Pleadings is therefore ALLOWED and it is hereby ORDERED that the judgment enter CONFIRMING the award and DISMISSING the plaintiffs complaint, with prejudice. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2629113/ | 242 P.3d 947 (2010)
Michael GENDLER, Appellant,
v.
John R. BATISTE, Washington State Patrol, Respondent.
No. 39333-6-II.
Court of Appeals of Washington, Division 2.
November 24, 2010.
*948 Shannon Elizabeth Inglis, Attorney General's Ofc./Criminal Justice, Seattle, WA, Rene David Tomisser, Office of the Attorney General, Olympia, WA, for Appellant.
Keith Leon Kessler, Stritmatter Kessler Whelan Coluccio, Hoquiam, WA, Charles Kenneth Wiggins, Wiggins & Masters PLLC, Bainbridge Island, WA, for Respondent.
Rene David Tomisser, Office of the Attorney General, Olympia, WA, Shannon Elizabeth Inglis, Attorney General Ofc./Criminal Justice, Seattle, WA, for Appellant Intervenor.
PENOYAR, C.J.
¶ 1 The Washington State Patrol (WSP) appeals from a summary judgment order requiring it to disclose historical bicycle accident records occurring on Seattle's Montlake Bridge. The WSP claims that federal law, 23 U.S.C. § 409 (2005), prohibits it from disclosing the records to Michael Gendler unless he agrees not to use the information in litigation against the State. Because RCW 46.52.060 imposes a duty on the WSP to create and provide such public records, and because the federal privilege applies only to the Washington State Department of Transportation (WSDOT) not the WSP, we affirm. We also award Gendler his attorney fees and costs for this appeal.
Facts
¶ 2 On October 28, 2007, Gendler was crossing the Montlake Bridge in Seattle when his bicycle tire became wedged in the bridge grating, tossing Gendler from his bicycle onto the bridge deck. He suffered a serious spinal injury, leaving him with quadriplegia, unable to live independently, and unable to work full time in his law practice.
¶ 3 After learning that other bicyclists had had similar debilitating accidents on the *949 Montlake Bridge, Gendler suspected that the roadway had been unsafe for cyclists since 1999 when the State replaced the bridge decking. He sought records of other bicycle accidents from Kip Johnson, the WSP Public Records employee. Johnson explained that she could provide records to Gendler if he identified the person involved in the collision and the collision date. She explained that WSP does not store accident reports by location and thus she could not provide him with such a list. Gendler also learned that he could obtain specific records from the WSP website, but only if he certified that he would not use the records in a lawsuit against the State of Washington.[1]
¶ 4 Gendler acknowledges that he may sue the State if the reports show that the State was on notice for years that the bridge deck was unsafe for bicyclists. He further explains that he does not want to waive his right to use public records in a civil suit to hold the State accountable for its negligence nor does he want to waive his right as a public citizen to be fully informed about the history of the bridge and the government agencies' conduct toward keeping the roadway reasonably safe.
¶ 5 This current action stems from Gendler's complaint against the WSP for violating the Public Records Act (PRA), chapter 46.52 RCW, claiming that these are public records and the WSP must provide them without requiring him to certify that he would not use them against the State. He seeks an order requiring the WSP to provide the records, attorney fees, costs, and fines.
¶ 6 The trial court allowed the WSDOT to intervene as it now compiles the traffic data that WSP provides to it and only WSDOT can produce an historic list of traffic accidents based on a physical location. On cross-motions for summary judgment, the trial court granted relief to Gendler after finding that the WSP had a statutory duty under RCW 46.52.060 to provide the requested information notwithstanding 23 U.S.C. § 409. Additionally, the trial court awarded Gendler his attorney fees, costs, and penalties, totaling $140,798.79.
¶ 7 The question before us in this appeal is whether collision records collected and compiled by the WSDOT in compliance with the "Federal Highway Safety Act" are privileged under 23 U.S.C. § 409 such that the WSP need not provide these records despite its duty under RCW 46.52.060 to "file, tabulate, and analyze all accident reports and to publish annually ... the number of accidents, the location, the frequency, ... and the circumstances thereof." The WSP also asserts that Gendler's use of the PRA to obtain a ruling on an evidentiary rule disqualifies his claim to attorney fees, costs, and penalties.
ANALYSIS
I. Federal Privilege
A. Background
¶ 8 In 1966, Congress passed 23 U.S.C. § 402, the highway safety programs, which created national highway safety standards, required the states to design programs to implement these standards, and provided federal grants to help support state programs. 23 U.S.C. § 402(a), (m). In 1968, the United States Department of Transportation required states to identify and correct high-collision locations by collecting traffic records that identified collision locations, collision types, injury types, and environmental conditions. 33 Fed.Reg. 16560-64 (Nov. 14, 1968).
¶ 9 In 1973, Congress passed 23 U.S.C. § 152, the Hazard Elimination Program. This program funded improvements on non-federal roads, requiring a greater collection and compilation of data to identify locations and priorities for improvements. Specifically, it required that states plan highway safety improvements "on the basis of crash experience, [or] crash potential" and required states to collect and maintain a record of highway collision data. 23 C.F.R. § 924.9(a)(3)(i)(A).
*950 ¶ 10 In 1987, Congress passed 23 U.S.C. § 409 to protect the states from tort liability engendered by the increased self-reporting of hazardous collision data. Amended twice to further broaden protections for states, § 409 now provides:
Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railwayhighway crossings, pursuant to sections 130, 144, and 148 of this title or for the purposes of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.
¶ 11 The United State Supreme Court explained the scope of this provision in Pierce County v. Guillen, 537 U.S. 129, 145-46, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003):
The interpretation proposed by the Government, however, suffers neither of these faults. It gives effect to the 1995 amendment by making clear that § 409 protects not just the information an agency generates, i.e., compiles, for § 152 purposes, but also any information that an agency collects from other sources for § 152 purposes. And, it also takes a narrower view of the privilege by making it inapplicable to information compiled or collected for purposes unrelated to § 152 and held by agencies that are not pursuing § 152 objectives. We therefore adopt this interpretation.
Our conclusion is reinforced by the history of the 1995 amendment. As we have already noted, the phrase "or collected" was added to § 409 to address confusion among the lower courts about the proper scope of § 409 and to overcome judicial reluctance to protect under § 409 raw data collected for § 152 purposes.... By amending the statute, Congress wished to make clear that § 152 was not intended to be an effort-free tool in litigation against state and local governments.
¶ 12 The WSP argues that its police traffic collision reports (PTCR) fall under § 409 protections because it provides and WSDOT collects the data for a 23 U.S.C. § 152 purpose, namely, compliance with the "Hazard Elimination Program." It notes that the Federal Highway Administration (FHA) issued a memorandum after Guillen, explaining that even if the collision reports are stored in an integrated database (i.e., used by multiple agencies for different purposes), the collision data remains protected under § 409 because it is, at least in part, there for a § 152 purpose. Finally, the WSP argues, citing Guillen, that the data is subject to unbridled disclosure only when it is collected solely for law enforcement purposes and is held by a law enforcement agency.
¶ 13 The WSP explains that the PTCR was developed specifically for § 152 compliance, that WSDOT must demonstrate its compliance to the FHA, and that it is undisputed that the WSDOT database was developed specifically for showing that compliance.
B. RCW 46.52.060
¶ 14 In 1937, our state legislature passed the "Washington Motor Vehicle Act." Laws of 1937, ch. 189. Section 135 of this comprehensive legislation requires law enforcement officers to prepare accident reports on state highways. Section 138 imposes a duty on the WSP Chief:
It shall be the duty of the chief of the Washington state patrol to file, tabulate and analyze all accident reports and to publish annually, immediately following the close of each calendar year, and monthly during the course of the calendar year, statistical information based thereon showing the number of accidents, the location, the frequency and circumstances thereof and other statistical information which may prove of assistance in determining the cause of vehicular accidents.
Such accident reports and analysis or reports thereof shall be available to the directors of the departments of highways, *951 licenses, public service or their duly authorized representatives, for further tabulation and analysis for pertinent data relating to the regulation of highway traffic, highway construction, vehicle operators and all other purposes, and to publish information so derived as may be deemed of publication value.
RCW 46.52.060 (Laws of 1937, ch. 189, § 138). In fulfilling this duty, for many years, the WSP and other agencies provided accident histories at particular locations, photographs, complaints, traffic counts, road maintenance records, and other information. Until 2003, the WSP could provide data based on location, but its ability to do so was limited.[2]
¶ 15 In 2003, the Supreme Court decided Guillen, which held in part, that § 409 "does not protect information that was originally compiled or collected for purposes unrelated to § 152 and that is currently held by the agencies that compiled or collected it, even if the information was at some point `collected' by another agency for § 152 purposes." 537 U.S. at 144, 123 S. Ct. 720.
¶ 16 Shortly after the Guillen decision, the WSDOT and the WSP entered into a memorandum of understanding (MOU) that as of July 1, 2003, WSDOT would maintain all accident reports in its database.[3] While the WSP gave the WSDOT a "nonexclusive, royalty-free, irrevocable license to publish, translate, reproduce, deliver, perform, display, and dispose of copies of the scanned images or PTCR and VCR/Citizen Reports," "the reports and scanned images of those reports are the property of WSP." Clerk's Papers (CP) at 206.
¶ 17 The MOU also provided:
[2(a)(1).] All public disclosure requests for copies of any PTCR must be submitted in writing on DOT Form 780-030 "Request for Copy of Collision Report" to the WSDOT's Collision Records Request Section, located in the Transportation Data Office in Olympia.
. . . .
[2(a)(5).] Searches for PTCRs must be based on an involved person's name or a report number. Any request for multiple reports based solely on location will be treated as a request for collision data, and the request will be referred to the WSDOT's Collision Data and Analysis Branch (see below).
. . . .
[5(e).] ... The WSP public disclosure policy will control the release of all PTCR and VCR/Citizen Reports. The WSDOT public disclosure policy will control the release of all collision data.
CP at 208, 209, 212.
C. Public Records Act
¶ 18 In 1973, the people of this State adopted the "Public Disclosure Act" (PDA) through initiative.[4] The public records portion of this Act required all state and local agencies to disclose any public record upon request, unless it fell within an enumerated *952 exception. Former RCW 42.17.260(1) (2005). Now codified in chapter 42.56 RCW, the PRA's purpose is set out in RCW 42.56.030:
The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected. In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern.
RCW 42.56.030.
The stated purpose of the Public Records Act is nothing less than the preservation of the most central tenets of representative government, namely, the sovereignty of the people and the accountability to the people of public officials and institutions. RCW 42.17.251. Without tools such as the Public Records Act, government of the people, by the people, for the people, risks becoming government of the people, by the bureaucrats, for the special interests. In the famous words of James Madison, "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both." Letter to W.T. Barry, Aug. 4, 1822, 9 The Writings of James Madison 103 (Gaillard Hunt, ed.1910).
Progressive Animal Welfare Soc. v. Univ. of Wash., 125 Wash.2d 243, 251, 884 P.2d 592 (1994).
¶ 19 The purpose of the PRA is to provide "full access to information concerning the conduct of government on every level... as a fundamental and necessary precondition to the sound governance of a free society." RCW 42.17.010(11). The PRA, RCW 42.56.001-.902 (formerly codified as RCW 42.17.250-.348 in the PDA) requires all state and local agencies to disclose any public record upon request, unless it falls within certain specific enumerated exemptions. See Sperr v. City of Spokane, 123 Wash.App. 132, 136, 96 P.3d 1012 (2004); King County v. Sheehan, 114 Wash.App. 325, 335, 57 P.3d 307 (2002); RCW 42.56.070(1). The requested record must be made available "for public inspection and copying." RCW 42.56.070(1). The Washington State Patrol is an "agency" subject to the provisions of the act. RCW 42.17.020(2) (defining agency to include any state office or department) (Laws of 2005, ch. 445, § 6); see also RCW 42.56.010 (referencing RCW 42.17.020) (Laws of 2005, ch. 274, § 101).
¶ 20 Public records subject to inspection under the act include (1) any writings (2) that contain information related to the "conduct of government or the performance of any governmental or proprietary function" and (3) that are "prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." RCW 42.56.010(2); former RCW 42.17.020(42). An agency has no duty under the PRA, however, to create or produce a record that does not exist at the time the request is made. Sperr, 123 Wash.App. at 136-37, 96 P.3d 1012; Smith v. Okanogan County, 100 Wash.App. 7, 13-14, 994 P.2d 857 (2000). Further a request under the PRA must be for an "identifiable public record," see Hangartner v. City of Seattle, 151 Wash.2d 439, 447-48, 90 P.3d 26 (2004) (quoting former RCW 42.17.270), and a mere request for information does not so qualify. Wood v. Lowe, 102 Wash.App. 872, 879, 10 P.3d 494 (2000); Bonamy v. City of Seattle, 92 Wash.App. 403, 410-12, 960 P.2d 447 (1998). Moreover, although there is no official format for a valid PRA request, "a party seeking documents must, at a minimum, [1] provide notice that the request is made pursuant to the PDA[/PRA] and [2] identify the documents with reasonable clarity to allow the agency to locate them." Hangartner, 151 Wash.2d at 447, 90 P.3d 26.
¶ 21 Gendler argues that the WSP has done exactly what these statutes prohibit; i.e., not produce records in its control that it has an obligation to produce. He points to the deposition testimony of Daniel Parsons, the Chief Information Officer of the WSP, *953 who testified that the WSP could develop a database to produce historical collection records based on location.
D. Analysis
¶ 22 We hold that the trial court acted properly when it ordered the WSP "to provide copies of these records on request without the limitation offered by Defendant."[5] CP at 322.
¶ 23 Although the WSDOT may use the PTCR records to comply with § 152, the WSP does not. The WSP has an independent statutory obligation to collect traffic collision reports. Apparently, it stopped doing this in 2003, but delegating its duty to maintain the records to another agency does not shield WSP from its obligations under the PRA.
¶ 24 The Supreme Court in Guillen made clear that information gathered by law enforcement agencies for law enforcement purposes is not protected under § 409. What complicates the current situation is that the WSP through the MOU makes the WSDOT the custodian of its records and has the WSDOT compile and analyze the data. It was for this reason that Gendler sued the WSP and not the WSDOT. His position has been from the outset that the WSP has a duty, independent of WSDOT's § 152 obligations, to collect data and publish reports "showing the number of accidents, the location, the frequency, . . . and the circumstances thereof." RCW 46.52.060. As Gendler notes, administrative inconvenience does not relieve an agency of its duty to comply with the PRA. Hearst Corp. v. Hoppe, 90 Wash.2d 123, 130, 580 P.2d 246 (1978) (cost and excessive disruption to department of assessments did not outweigh the public benefit of disclosure).
¶ 25 In its reply brief, the State acknowledges that RCW 46.52.060 requires the WSP to report collisions by location, which it claims its reports now provide by naming the county where the accident occurred. It argues that to accept Gendler's argument would be to require the WSP to produce reports in greater detail than is necessary for law enforcement purposes. It argues that even though it is technologically possible for it to do so, it should not be required to do so because that is beyond what it needs for law enforcement purposes. The only purpose for building such a database, it argues, would be to circumvent § 409 for litigation purposes.
¶ 26 The State goes on to argue, however, that the PTCRs themselves are privileged because the WSDOT has custody of the records and it is a § 152 agency. It then misconstrues Guillen to apply privilege when the data has been collected for both § 152 and non § 152 purposes:
Under this interpretation, an accident report collected only for law enforcement purposes and held by the county sheriff would not be protected under § 409 in the hands of the county sheriff, even though that same report would be protected in the hands of the Public Works Department, so long as the department first obtained the report for § 152 purposes.
Guillen, 537 U.S. at 144, 123 S. Ct. 720. What the State fails to explain, however, is how the county sheriff in this example is any different from the WSP or how the Public Works Department is any different from the WSDOT. The PTCR report, in the hands of the WSP, would not be privileged as it would be in WSDOT's hands because each agency uses that report for different purposes.
¶ 27 The State then argues that the WSP does not use many of the categories of information in the PTCR and that information is collected only for the WSDOT, which uses it for its compliance with § 152. The trial court found little merit to this claim, discounting it because law enforcement officers still complete the form for WSP statutory purposes. Gendler argues that this State revised the PTCR in 1968, yet Congress did not enact § 152 until 1973 so the State's claim is flawed. Gendler also reasons that regardless of the information on the PTCR, it is a public record filled out by a law enforcement officer as part of his duties under state law.
*954 ¶ 28 The WSP argues that the legislature has never defined "location" as that term is used in RCW 46.52.060 and it claims that its annual reports, which show accident data by county, fulfill its statutory duty. We disagree. As we set out above, RCW 46.52.060 requires the WSP Chief to "file, tabulate, and analyze all accident reports." It also requires the WSP to produce "statistical information based thereon showing the number of accidents, the location, the frequency, ... and the circumstances thereof, and other statistical information which may prove of assistance in determining the cause of vehicular accidents." RCW 46.52.060.
¶ 29 Certainly, there is one overriding purpose here and that is to improve the safety of our roadways. A report indicating only that a certain percentage of accidents occurred in King or Pierce County would serve no purpose other than an academic one. It would not and does not assist the WSP on where and when to assign troopers and it would not assist the WSP or anyone else in analyzing the causes of vehicular accidents, which is the express purpose that animates the obligation RCW 46.52.060 imposes on the WSP.
¶ 30 While we agree that the WSDOT need not provide unbridled access to collision data, the WSP must produce the reports in compliance with its independent statutory obligation and as such must disclose those reports when requested under the PRA.
II. Non-PRA Purpose
¶ 31 The WSP also argues that the trial court erred in imposing costs, attorney fees, and penalties because Gendler's purpose in filing his complaint was not to obtain public records but to get a ruling on the interplay of § 409 and the PRA. The WSP relies on Daines v. Spokane County, 111 Wash.App. 342, 349, 44 P.3d 909 (2002), which held that a plaintiff "must show that the action was necessary to obtain the information in the first place."
¶ 32 The State explains that Gendler did not have to file a PRA lawsuit to obtain the collision records as the records were available and the WSP routinely provides them upon request. The State reasons that Gendler's PRA lawsuit instead was solely to resolve an evidentiary dispute over whether the collision records were within the § 409 privilege forbidding their use in actions for damages.
¶ 33 The State ignores, however, that Gendler could not obtain the records from the WSP without agreeing that he would not use them in litigation against the State. Gendler's argument throughout has been that the WSP must produce the records under its duty imposed by RCW 46.52.060. Whether the State had an obligation to produce the collision records under the PRA without such a caveat is the crux of this matter and resolving that question involves the scope of the PRA. Gendler had to resort to this lawsuit in order to obtain the public records he wanted without a § 409 limitation. The trial court properly awarded costs, attorney fees, and penalties for this remedial action.
III. Attorney Fees
¶ 34 Gendler requests an award of attorney fees as the prevailing party on appeal. RCW 42.56.550(4) allows such fees and includes attorney fees on appeal. Progressive Animal Welfare, 125 Wash.2d at 271, 884 P.2d 592. His request is appropriate and upon his compliance with RAP 18.1, a commissioner of this court will determine the proper amount of the award.
¶ 35 Affirmed.
We concur: WORSWICK, and BECKER, JJ.
NOTES
[1] The form, "Request for Collision Data DOT Form 780-032 EF," requires the requesting party to agree to the following: "I hereby affirm that I am not requesting this collision data for use in any current, pending or anticipated litigation against state, tribal or local government involving a collision at the location(s) mentioned in the data." Clerk's Papers (CP) at 27.
[2] Kip Johnson explained in her deposition:
We entered all this information into a mainframe, and from that mainframe we got printed reports on city streets and country roads. We didI think state routes might have been just too much for our system, so we never did do that.
[WSDOT] also had a system where we downloaded the information to them thatwe got this information back from them on the locations and the diagram data, and we entered that, and then they downloaded it into their system, and we left all that up to them.
We did county roads and city streets, and we had sort of like canned reports, printed reports that would come out that wouldlike for country roads it would have all these five-digit road log numbers, so you had to know the mileposts and the five-digit road log number, and, as far as I know, no average person knows that for the country roads.
Cities would have been a little bit easier because I would have had a city street name and then a reference, but I would have to look through all the reports because even the data entry was not consistently uniform. So I would roll out a big long bunch of paper reports and try to find every reference to that particular street I could, and that was time-consuming. Now a computer does that.
CP at 305.
[3] The WSP would scan the documents into the system, send them to the WSDOT, and destroy the originals.
[4] See Laws of 1973, ch. 1 (Initiative 276, then codified as chapter 42.17 RCW).
[5] Gendler's request was for "[a]ll police reports relating to collisions involving bicycles on the Montlake Bridge in Seattle (SR 513)." CP at 320. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2629115/ | 242 P.3d 805 (2010)
2010 UT App 291
The FREDERICK AND DOROTHY WESTLING FAMILY TRUST; Joy Greenwood, Co-Trustee; and Ellen Hardman, Co-Trustee, Plaintiffs and Appellants,
v.
Mark WESTLING, Defendant and Appellee.
Dorothy Westling, Intervenor and Appellee.
No. 20090970-CA.
Court of Appeals of Utah.
October 21, 2010.
*806 Michael A. Jensen, Salt Lake City, for Appellants.
Kent B. Alderman and Matthew D. Cook, Salt Lake City, for Appellee Dorothy Westling.
Before Judges ORME, VOROS, and ROTH.
MEMORANDUM DECISION
ORME, Judge:
¶ 1 Sisters Joy Greenwood and Ellen Hardman (Greenwood and Hardman) are two of four surviving cotrustees of the Frederick and Dorothy Westling Family Trust (the Trust). Their mother, Dorothy Westling (Dorothy), and brother, Mark Westling (Mark), are the other two surviving cotrustees. Dorothy lives with Mark in Arizona; Greenwood and Hardman live in Utah, where the Trust was created. Mark borrowed a substantial sum from the Trust to buy a home. He failed to repay the Trust, and the home was lost through foreclosure. Purportedly acting on behalf of the Trust, Greenwood and Hardman brought this action to collect the amount Mark owed the Trust.
¶ 2 Dorothy moved pursuant to rule 24(a)(2) of the Utah Rules of Civil Procedure to intervene in the action. After the district court granted Dorothy's motion to intervene, she moved to dismiss the suit. The district court granted Dorothy's motion to dismiss, explaining that Greenwood and Hardman did not have standing to bring the suit because the Trust instrument gave Dorothy the authority to direct the administration of the *807 Trust, and Dorothy had not consented to the lawsuit against Mark. The district court later rejected Greenwood and Hardman's rule 59 motion to set aside or vacate its order dismissing the action. Greenwood and Hardman now appeal.
INTERVENTION
¶ 3 We reject Greenwood and Hardman's contention that the district court erred in granting Dorothy's motion to intervene. A party must be allowed to intervene where "(1) its application to intervene was timely, (2) it has `an interest relating to the property or transaction which is the subject of the action,' (3) it `is so situated that the disposition of the action may as a practical matter impair or impede [its] ability to protect that interest,' and (4) its interest is not `adequately represented by existing parties.'" Beacham v. Fritzi Realty Corp., 2006 UT App 35, ¶ 7, 131 P.3d 271 (quoting Utah R. Civ. P. 24(a)). Greenwood and Hardman do not dispute that Dorothy met prongs (1), (2), and (3). They contend, however, that they adequately represented Dorothy's interests in the suit against Mark. We disagree.
¶ 4 Without being allowed to intervene, Dorothy would be unable to protect her right under the trust instrument to direct the administration of the Trust. Moreover, although recovery of the $47,000 Mark allegedly owes the Trust would benefit the Trust and its beneficiaries, Dorothy feared that litigation would actually further deplete Trust funds. This fear is understandable given the unlikelihood of recovering anything from Mark due to his "fragile financial condition" and given Greenwood and Hardman's right to seek reimbursement from the Trust for funds they expend in pursuing the action against Mark, see Utah Code Ann. § 75-7-709(1) (Supp.2010) ("A trustee is entitled to be reimbursed out of the trust property ... for ... expenses that were properly incurred in the administration of the trust[.]"); Sundquist v. Sundquist, 639 P.2d 181, 188 (Utah 1981) ("[A] trustee is entitled to reimbursement for all expenses properly incurred in discharging the responsibilities of his trust.") (citation and internal quotation marks omitted). See generally Restatement (Second) of Trusts § 177 cmt. c (1959) ("It is not the duty of the trustee to bring an action to enforce a claim which is a part of the trust property if it is reasonable not to bring such an action, owing to the probable expense involved in the action or the probability that the action would be unsuccessful or that, if successful, the claim would be uncollectible owing to the insolvency of the defendant or otherwise."). Especially given the minimal burden on a potential intervenor in showing there may not be an identity of interests, see Beacham, 2006 UT App 35, ¶ 8, 131 P.3d 271, the district court did not err in granting Dorothy's motion to intervene.
DISMISSAL
¶ 5 Under the Utah Uniform Trust Code (the UTC), see Utah Code Ann. §§ 75-7-101 to -1201 (Supp.2010), a trustee may breach a duty if he or she fails to "take reasonable steps to enforce claims of the trust," id. § 75-7-809. At the same time, the UTC authorizes a trustee to "pay or contest any claim, settle a claim by or against the trust, and release, in whole or in part, a claim belonging to the trust." Id. § 75-7-814(1)(n). We conclude, however, that despite general authorization under the UTC to bring suit and the accompanying duty to take reasonable steps to prosecute that suit, Greenwood and Hardman lacked authority to pursue a collection action against Mark, and as a result, the district court did not err when it granted Dorothy's motion to dismiss.
¶ 6 To begin, we doubt that Greenwood and Hardman had authority to initiate a suit against Mark. The UTC provides that "[c]otrustees who are unable to reach a unanimous decision may act by majority decision." Id. § 75-7-703(1). Here, Greenwood and Hardman brought their suit against Mark without unanimous or even majority consent of the cotrustees. Certainly Mark did not consent to the institution of the suit against him. Moreover, Dorothy did not consent to the lawsuit prior to its initiation, nor did she join in filing the complaint against Mark. Thus, Greenwood and Hardman commenced and tried to continue the lawsuit with the approval of only two of the four cotrustees *808 an insufficient number to act in the name of the Trust under the UTC, see id.
¶ 7 Of course, the provisions of the UTC are primarily "default" provisions that must ordinarily give way to conflicting terms in a trust instrument. See id. § 75-7-105(2) ("Except as specifically provided in this chapter, the terms of a trust prevail over any provision of this chapter[.]"). Here, the trust instrument empowers Dorothy to control the administration of the Trust. Specifically, Article XIV of the trust instrument provides:
(b) In the event the Co-Trustees are unable to agree on any matter in the administration of this Trust ..., the decision of ... DOROTHY E. WESTLING shall govern so long as she ... is alive and competent.
The decision whether to maintain an action on behalf of the Trust against Mark directly implicates the administration of the Trust. Accordingly, once Dorothy made her intentions known, her insistence that the Trust not pursue a claim against Mark was controlling, and the district court correctly dismissed the suit.[1]
¶ 8 Greenwood and Hardman argue that "it is not logically possible to grasp or understand or even remotely know of [Dorothy]'s desires with respect to [the] litigation" against Mark without reliance on Dorothy's affidavit given in connection with her motion to dismiss, which, according to Greenwood and Hardman, is of questionable reliability. We disagree.
¶ 9 Even without considering her affidavit, Dorothy's desires with respect to the suit against Mark became abundantly clear once she intervened in the suit and then moved to dismiss. Specifically, Dorothy's motion to intervene states: "Dorothy did not consent to the filing of the complaint initiating this action and does not consent to expending Trust assets in furtherance of the claims asserted[.]" Similarly, Dorothy's memorandum in support of the motion to intervene states: "Dorothy does not agree with pursuing this litigation against Mark[.]" Dorothy's reply memorandum in support of her motion to intervene, her motion to dismiss, and her memorandum in support of her motion to dismiss likewise contain statements invoking her right to control the administration of the Trust and confirming her desire that the suit against Mark be dismissed. We therefore conclude that even without resort to her allegedly suspect affidavit,[2] Dorothy's desires *809 with respect to the litigation against Mark were plainly evident. Accordingly, once it became apparent that Dorothy did not wish to pursue the litigation, the district court had to conclude that Greenwood and Hardman lacked authority to pursue a suit against Mark on behalf of the Trust.
CONCLUSION
¶ 10 In sum, because Dorothy's decisions concerning the administration of the Trust control as long as she is alive and competent, and given the steps she took to indicate that she did not want the Trust to pursue a collection action against Mark, we hold that the district court did not err in concluding Greenwood and Hardman did not have authority to pursue a suit against Mark. Consequently, the district court did not err in granting Dorothy's motion to intervene and her motion to dismiss. Moreover, because we affirm the district court's decision to dismiss, we see no error in the court's decisions not to convert the dismissal motion into one for summary judgment and to deny Greenwood and Hardman's rule 59 motion by which they sought to set aside or vacate the district court's ruling granting Dorothy's motion to dismiss.[3]
¶ 11 Affirmed.
¶ 12 WE CONCUR: J. FREDERIC VOROS JR., and STEPHEN L. ROTH, Judges.
NOTES
[1] Greenwood and Hardman argue that Dorothy's refusal to consent to a suit against Mark is merely an attempt to protect her son, in violation of a duty she owes the Trust. We recognize that Dorothy retains a duty to "act in good faith and in accordance with the purposes of the trust," Utah Code Ann. § 75-7-105(2)(b) (Supp.2010), despite her broad authority under the trust instrument to control administration of the Trust. We note, however, that Dorothy is not necessarily violating a duty by withholding consent to pursue a suit against Mark. A trustee does not violate his or her duty to enforce claims of the trust if a claim is uncollectible. See Restatement (Second) of Trusts § 177 cmt. a (1959) ("If it reasonably appears to the trustee that a claim is uncollectible, he is not under a duty to incur the expense of bringing a suit to collect it."). Greenwood and Hardman acknowledge that Mark's financial condition is "fragile." From all that appears in the record, then, Dorothy may well have been acting prudently in deciding that a collection action against Mark would be futile and only serve to further dissipate trust assets.
[2] Greenwood and Hardman allege that Dorothy was not sufficiently competent to understand the significance of her affidavit or, alternatively, that the affidavit was the product of undue influence on the part of Mark. Given what we know, this claim is unpersuasive. Under the trust instrument, incapacity is "established by a written statement signed by an unrelated physician and filed with the other Co-Trustees." Greenwood and Hardman did not, however, present to the district court such a statement or any comparable evidence calling into question Dorothy's competency. Greenwood and Hardman merely allege that Mark unduly influenced Dorothy.
Greenwood and Hardman also ignore a related proceeding in which Dorothy was found to be competent. In that proceeding, Dorothy underwent three separate evaluations testing her competency. In each, she was deemed competent and capable of handling her affairs under the Trust. Arizona's Division of Aging Adult Protective Services conducted an investigation of alleged financial abuse of Dorothy by Mark and concluded that Dorothy "is fully aware of what is transpiring in the Family Trust and with the properties which she and the Trust own." Dorothy's primary physician, far from concluding that she was incapacitated, determined that "Dorothy is fully capable of decision making with her health and finances" and that she "is of sound mind and answers questions appropriately and knows exactly what she wants." And a geriatrician concluded that, despite "mild dementia," Dorothy "shows absolute ability to make informed decisions regarding her own well being, where she chooses to live, how she wishes to distribute her money, how she wishes to use her money, [and] how she makes basic decisions." The geriatrician found no evidence that "would warrant any support for the contention that [Dorothy] is cognitively incapacitated."
[3] We also conclude that, contrary to Dorothy and Mark's contention, this appeal is not frivolous. See generally Utah R.App. P. 33. "[A] frivolous appeal [is] one without reasonable legal or factual basis." Maughan v. Maughan, 770 P.2d 156, 162 (Utah Ct.App.1989). However, "[t]he `sanction' for bringing a frivolous appeal is applied only in egregious cases." Id. "Egregious cases may include those obviously without merit, with no reasonable likelihood of success, and which result in the delay of a proper judgment." Id. Although we have determined that Greenwood and Hardman's appeal is without merit, it is not obviously so. Thus, the appeal is not frivolous. Consequently, we deny Dorothy and Mark's request for an award of attorney fees and double costs. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632692/ | 103 P.3d 1265 (2005)
WORLD WIDE VIDEO OF WASHINGTON, INC., Appellant,
v.
CITY OF SPOKANE, Respondent,
Marco Barbanti, Appellant,
Carole Schultz, Defendant.
Marco T. Barbanti, individual, Appellant,
v.
City of Spokane, a municipal corporation, Respondent,
Worldwide Video of Washington, Inc., a Washington corporation, Defendant.
Nos. 22092-3-III, 22093-1-III.
Court of Appeals of Washington, Division 3, Panel Three.
January 11, 2005.
Reconsideration Denied February 15, 2005.
*1269 Marco T. Barbanti, Dominic M. Bartoletta, Attorney at Law, Spokane, WA, for Appellant.
Milton G. Rowland, Attorney at Law, Spokane, WA, for Respondent.
SCHULTHEIS, J.
By ordinance, the city of Spokane requires all adult retail use establishments (adult stores) to observe specific location requirements. For instance, such establishments may not be located within 750 feet of schools, places of religious worship, public parks, other adult stores, or certain residential zones. Ordinance C-32778, codified as former Spokane Municipal Code (SMC) 11.19.143(D) (2001). When it became effective in March 2001, the ordinance provided an amortization period of one year for nonconforming adult stores to relocate or change the nature of their businesses, with a procedure for additional extensions of this deadline. Former SMC 11.19.395 (2001).
On appeal, we are asked to decide whether regulating the location of adult stores violates state and federal constitutional rights. We also address whether the administrative hearing on the extension of the deadline for three nonconforming adult stores owned by World Wide Video of Washington, Inc. (WWV) followed proper procedures and reached a decision based on substantial evidence. We conclude that the First Amendment issues were settled in a previous case and that review of the free speech issues under the state constitution is not justified. We find no violation of additional constitutional rights. Further, finding no error in the administrative procedures or in the decision to grant an extension of the amortization period, we affirm.
FACTS
Spokane ordinance C-32778 was adopted in January 2001 to address civic concerns about the harmful secondary effects associated with adult stores. World Wide Video of Wash., Inc. v. City of Spokane, 368 F.3d 1186, 1188 (9th Cir.2004). By establishing setback requirements, the ordinance sought to limit citizen contact with such secondary effects as prostitution, public lewdness, used condoms, and video package litter featuring graphic depictions of sexual acts. Id. at 1190 n. 6. The ordinance defined an adult retail use establishment as "an enclosed building, or any portion thereof which, for money or any other form of consideration, devotes a significant or substantial portion of stock in trade, to the sale, exchange, rental, ... or viewing of `adult oriented merchandise.' "Ordinance C-32778, codified as SMC 11.19.03023. Adult oriented merchandize was further defined as goods such as videos, DVDs, and printed materials that depict or describe specified anatomical areas or sexual activities. Ordinance C-32778, codified as SMC 11.19.03023. Pursuant to former SMC 11.19.143(D),
1. An adult retail use establishment and an adult entertainment establishment may not be located or maintained within seven hundred fifty feet, measured from the nearest building of the adult retail use establishment or of the adult entertainment establishment to the nearest building of any of the following pre-existing uses:
a. public library,
b. public playground or park,
c. public or private school and its grounds, from kindergarten to twelfth grade,
d. nursery school, mini-day care center, or day care center,
e. church, convent, monastery, synagogue, or other place of religious worship,
f. another adult retail use establishment or an adult entertainment establishment, subject to the provisions of this section.
2. An adult retail use establishment or an adult entertainment establishment may not be located within seven hundred fifty feet of any of the following zones:
a. agricultural,
b. country residential,
c. residential suburban,
d. one-family residence,
e. two-family residence,
f. multifamily residence (R3 and R4),
g. residence-office.
*1270 See also World Wide, 368 F.3d at 1189 n. 2. Former SMC 11.19.395 set out the effect of ordinance C-32778 on nonconforming adult stores:
Any adult retail use establishment located within the City of Spokane on the date this provision becomes effective, which is made a nonconforming use by this provision, shall be terminated within twelve (12) months of the date this provision becomes effective, pursuant to Section 11.19.0336. Provided, however, that such termination date may be extended upon the approval of a written application filed with the Planning Director no later than one (1) month prior to the end of such twelve (12) month amortization period.
The administrative decision on whether or not to approve any extension period and the length of such extension period shall be based upon the applicant clearly demonstrating extreme economic hardship based upon an irreversible financial investment or commitment made prior to the date this provision becomes effective, which precludes reasonable alternative uses of the subject property.
WWV operates three adult stores in Spokane in buildings leased from Marco Barbanti.[1] Two of the leases are long-term: one for 25 years (the Market lease, signed in September 1998) and the other for 40 years (the Division lease, signed in April 2000). After learning that the Spokane stores did not comply with ordinance C-32778, WWV applied to Spokane planning services for an extension of the amortization period and simultaneously challenged the constitutionality of the ordinance in federal district court. Mr. Barbanti also applied for an extension. He claimed that if WWV defaulted on the leases he would lose $600,000 in revenue from the Division lease and $125,000 in revenue from the Market lease.
In March 2002, the Spokane city council adopted ordinance C-33001, which provided additional areas in the city that could accommodate adult stores. World Wide, 368 F.3d at 1189. Earlier that month, the director of planning services, John Mercer, reviewed the Barbanti and WWV requests for extensions of the amortization period. Mr. Mercer found that the leases for all three businesses allowed for a change in use (with landlord consent) and specified that the premises could not be used in a manner that constituted a nuisance or violated an ordinance. He also noted that neither party requested a specific extension period for relocation to a conforming site. Finding that the leases resulted in "some economic hardship," and that proposed ordinance C-33001 would provide additional areas for relocation, Mr. Mercer approved a six-month extension of the termination date. Appeal Board Record, Vol. I. He filed similar decisions for all three leases.
WWV and Mr. Barbanti timely filed appeals of the planning director's decisions to the Spokane hearing examiner, Greg Smith. World Wide, 368 F.3d at 1189. In a hearing held in April 2002, Mr. Smith refused to consider additional evidence and declared he would review the planning director's decisions on the record. Mr. Smith upheld the six-month extension, but held that it would run from the date of his May 15, 2002 decision. As a result, WWV was required to relocate or change the nature of its businesses by November 15, 2002. Id. at 1189.
Meanwhile, WWV pursued a § 1983 civil rights action against the city in the United States District Court for the Eastern District of Washington, alleging violations of the First Amendment. Id. at 1189-90. Although Mr. Barbanti did not join the federal suit as a party, he participated as an expert on the local real estate market and offered deposition testimony regarding the leases and the constitutionality of the ordinances.[2] The district court granted the city's motion for summary judgment in September 2002 and WWV appealed to the Ninth Circuit court of appeal. World Wide Video of Wash., Inc. v. City of Spokane, 227 F. Supp. 2d 1143 (E.D.Wash.2002), aff'd, *1271 368 F.3d 1186 (9th Cir.2004); World Wide, 368 F.3d at 1191.
In a decision filed May 27, 2004, the Ninth Circuit affirmed. World Wide, 368 F.3d at 1188. World Wide held that Spokane's adult store ordinances, because they intended to control the secondary effects of adult businesses, were content neutral and subject to intermediate constitutional scrutiny. Id. at 1191-92. The court further held that the ordinances were narrowly tailored to serve a substantial government interest: reduction of the undesirable secondary effects of adult stores. Id. at 1195. Finally, the court concluded the ordinances were not overbroad and provided an adequate amortization provision. Id. at 1199-1200. Regarding the latter decision, the court stated that "[a]s a general matter, an amortization period is insufficient only if it puts a business in an impossible position due to a shortage of relocation sites." Id. at 1200. With sufficient relocation sites provided by ordinance C-33001, WWV had a reasonable extension of the time to comply with code requirements. Id. To conclude, World Wide held that "municipalities are allowed to `keep the pig out of the parlor' by devising regulations that target the adverse secondary effects of sexually-oriented adult businesses." Id.
During the federal proceedings, WWV and Mr. Barbanti filed petitions challenging the Spokane hearing examiner's decision pursuant to chapter 36.70C RCW (the Land Use Petition Act). The two cases were consolidated and on April 25, 2003 the superior court affirmed the decision of the hearing examiner. In its findings and conclusions on the order of dismissal, the superior court found that Mr. Barbanti had an identity of interest and stood in privity with WWV in the federal litigation. Consequently, he was bound by the decision in World Wide rejecting First Amendment claims. Mr. Barbanti also unsuccessfully challenged the adult store ordinance as a bill of attainder and as unconstitutionally impairing his contract rights. The trial court additionally found that none of the petitioners' rights were violated under the state constitution. Finding no error in the extension procedures or the hearing examiner's interpretation of law and facts, the trial court denied the petitioners' complaints.
WWV and Barbanti timely appealed the superior court's decision to this court and their cases were consolidated for review. During the pendency of this appeal, the Ninth Circuit's decision in World Wide was filed.
STATE CONSTITUTIONAL FREE SPEECH PROTECTION
WWV's sole contention on appeal is that ordinances C-32778 and C-33001 violate article I, section 5 of the Washington State Constitution. This court addresses the Gunwall factors[3] to determine whether, in a particular context, it is appropriate to resort to the state constitution for independent analysis of constitutional issues. Ino Ino, Inc. v. City of Bellevue, 132 Wash.2d 103, 114-15, 937 P.2d 154, 943 P.2d 1358 (1997). The same factors are used to determine whether the state constitution provides broader protection than its federal counterpart. State v. E.J.Y., 113 Wash.App. 940, 945, 55 P.3d 673 (2002). The superior court here declined to apply a Gunwall analysis and found that no rights were violated under the state or the federal constitutions. We review this issue of law de novo, focusing on the specific context of the state constitutional challenge. Ino Ino, 132 Wash.2d at 114, 937 P.2d 154; E.J.Y., 113 Wash.App. at 946, 55 P.3d 673. Our question is whether adult stores selling sexually explicit books, magazines, and movies should be afforded broader free speech protection under article I, section 5 of the Washington Constitution than under the First Amendment.
The first Gunwall factor requires examination of the text of the state constitution. Article I, section 5 is expansive: "Every *1272 person may freely speak, write and publish on all subjects, being responsible for the abuse of that right." CONST. art. I, § 5. Due to its broad language, article I, section 5 has been held to provide greater protection for pure noncommercial speech in a public forum and to strictly prohibit prior restraints on free speech. Ino Ino, 132 Wash.2d at 117-18, 937 P.2d 154; E.J.Y., 113 Wash.App. at 946, 55 P.3d 673. Time, place, and manner restrictions on noncommercial speech in a public forum must be supported by a compelling state interest. Ino Ino, 132 Wash.2d at 116-17, 937 P.2d 154. Speech in a non public forum, however, is not entitled to greater protection under article I, section 5. City of Seattle v. Mighty Movers, Inc., 152 Wash.2d 343, 350-51, 96 P.3d 979 (2004). Restrictions on speech in a nonpublic forum may be imposed if the restrictions are viewpoint neutral and are reasonable in light of the purpose served by the forum. Id. at 351, 96 P.3d 979 (quoting City of Seattle v. Huff, 111 Wash.2d 923, 926, 928, 767 P.2d 572 (1989)). Public fora are those places devoted to assembly and debate or those channels of communication used by the public or speakers for assembly and speech. Huff, 111 Wash.2d at 927, 767 P.2d 572.
The sexually explicit books, magazines, and movies here qualify as pure noncommercial speech. World Wide, 227 F. Supp. 2d at 1170; see also World Wide Video, Inc. v. City of Tukwila, 117 Wash.2d 382, 388, 816 P.2d 18 (1991) (written or filmed sexually explicit materials are pure speech for the purposes of the First Amendment). Adult stores are not, however, public fora. Consequently, the text of article I, section 5 does not justify extending greater state constitutional protection to the adult stores.
The second Gunwall factor requires consideration of the differences in the texts of the state and federal constitutional provisions. Ino Ino, 132 Wash.2d at 118, 937 P.2d 154. The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech." U.S. CONST. amend. I. Federal courts have interpreted this language to mean that speech in a public forum is subject to restrictions on time, place, and manner that are content neutral, are narrowly tailored to a significant government interest, and leave open ample alternative channels of communication. Mighty Movers, 152 Wash.2d at 350, 96 P.3d 979; World Wide, 368 F.3d at 1192. Article I, section 5 of the Washington Constitution, on the other hand, requires that restrictions on speech in a public forum must be tailored to a compelling government interest. Mighty Movers, 152 Wash.2d at 350, 96 P.3d 979. Although the difference in the texts of the federal and state constitutions supports an independent interpretation under the state provision, Ino Ino, 132 Wash.2d at 118, 937 P.2d 154, this difference does not compel application of the heightened protections of article I, section 5 to speech in a nonpublic forum. See Mighty Movers, 152 Wash.2d at 350-51, 96 P.3d 979; World Wide, 227 F. Supp. 2d at 1169-70.
The third Gunwall factor constitutional history does not help us determine whether the drafters intended article I, section 5 to give enhanced protection in the context of sexually explicit materials. See Ino Ino, 132 Wash.2d at 120, 937 P.2d 154 (nude dancing) and E.J.Y., 113 Wash.App. at 947, 55 P.3d 673 (threatening speech). Although the State Constitutional Convention adopted the most protective of three proposed drafts of free speech provisions, there is no indication that the convention considered the effect of these provisions in this context. Ino Ino, 132 Wash.2d at 120, 937 P.2d 154.
The fourth factor in a Gunwall analysis is the examination of preexisting state law. Id. Our focus is on the cases and statutes from the time of the state constitution's ratification. Id.; E.J.Y., 113 Wash.App. at 947, 55 P.3d 673. WWV offers no argument that the constitution's drafters intended to impose stricter standards for ordinances restricting the time, place, or manner of selling sexually explicit materials. See Ino Ino, 132 Wash.2d at 120-21, 937 P.2d 154. Even protected speech in a nonpublic forum is subject to intermediate scrutiny under the First Amendment rather than the stricter scrutiny provided by article I, section 5. Mighty Movers, 152 Wash.2d at 350-51, 96 P.3d 979. Thus, preexisting state law does not justify "the more rigorous time, place, and manner analysis developed in the context of pure *1273 speech in a traditional public forum." Ino Ino, 132 Wash.2d at 121, 937 P.2d 154.
The fifth Gunwall factor is simply a comparison of the structural difference between the federal and state constitutions. Id. This comparison is the same in every case: "The federal constitution is a grant of enumerated powers, while the state constitution acts as a limitation on the otherwise plenary powers of state government." Id. Consideration of this factor will usually support application of independent state analysis and broader protection. Id.
Finally, the sixth factor in a Gunwall analysis is whether this particular case raises a matter of state or local concern. Id. at 122, 937 P.2d 154. The record shows that numerous local ordinances have attempted to regulate the sale of sexually explicit material. See, e.g., ordinance C-31261 (regulating adult arcades) and ordinances C-30808 and C-31010 (regulating line-of-sight, illumination, and door requirements for adult movie booths); chapter 10.08 SMC. Although this factor favors independent state analysis, it does not necessarily support greater protection under the state constitution. See Ino Ino, 132 Wash.2d at 122, 937 P.2d 154.
On balance, the Gunwall analysis supports the trial court's conclusion that regulation of the time, place, and manner of the sale of sexually explicit books, magazines, and movies is not subject to the broader protection of article I, section 5 of the state constitution. WWV agreed to be bound by the federal court on the First Amendment issues. Because application of the state constitutional standard is not appropriate in this case, we affirm the trial court's dismissal of WWV's constitutional claims regarding time, place, and manner restrictions.
WWV additionally argues that the ordinances warrant application of the more protective state standard because they impose prior restraints. It is true that a governmental attempt to restrict the content of future speech is unconstitutional per se under article I, section 5. DCR, Inc. v. Pierce County, 92 Wash.App. 660, 670, 964 P.2d 380 (1998). However, a regulation does not qualify as a prior restraint if it merely restricts the time, place, or manner of expression. Id. at 671, 964 P.2d 380 (quoting Ino Ino, 132 Wash.2d at 126, 937 P.2d 154). The ordinances here do not completely ban the sale of sexually explicit materials; they merely create setback and zoning requirements for adult stores. Consequently, they do not rise to the level of prior restraints. Ino Ino, 132 Wash.2d at 126, 937 P.2d 154; Collier v. City of Tacoma, 121 Wash.2d 737, 747, 854 P.2d 1046 (1993).
ISSUES BARRED BY COLLATERAL ESTOPPEL
Mr. Barbanti's first issue on appeal relates to his claim that the ordinances violate federal constitutional rights. The trial court found that he was collaterally estopped from raising the issue of the ordinances' constitutionality by the United States district court's decision in World Wide, 227 F. Supp. 2d 1143. Mr. Barbanti argues collateral estoppel is not applicable to his claims because he was not a party to the suit in federal court. We review the decision to apply collateral estoppel de novo. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wash.2d 299, 305, 96 P.3d 957 (2004).
As a threshold matter, Mr. Barbanti argues that the trial court erred in considering collateral estoppel because the city did not timely present the issue as a defense pursuant to RCW 36.70C.080. The statute, which sets out the procedure for the initial hearing on a land use petition, provides that "[t]he parties shall note all motions on jurisdictional and procedural issues for resolution at the initial hearing." RCW 36.70C.080(2). However, the statute specifically provides further that "[t]he defenses of lack of standing, untimely filing or service of the petition, and failure to join persons needed for just adjudication are waived if not raised by timely motion noted to be heard at the initial hearing, unless the court allows discovery on such issues." RCW 36.70C.080(3).
Collateral estoppel is not one of the defenses subject to waiver for untimely notice by motion. Even if it were, the trial court had discretion to allow discovery on such issues after the initial hearing. RCW 36.70C.080(3). Nothing in RCW 36.70C.080 prevented the city from raising this issue in *1274 its response brief to the land use petition. Mr. Barbanti had ample opportunity which he utilized to address the issue of collateral estoppel before the trial court.
The doctrine of collateral estoppel bars relitigation of an issue after the party estopped has had a full and fair opportunity to present its case. Barr v. Day, 124 Wash.2d 318, 324-25, 879 P.2d 912 (1994). The party seeking to apply the doctrine must show that
(1) the issue decided in the earlier proceeding was identical to the issue presented in the later proceeding; (2) the earlier proceeding ended in a judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party to, or in privity with a party to, the earlier proceeding; and (4) application of collateral estoppel does not work an injustice on the party against whom it is applied.
Christensen, 152 Wash.2d at 307, 96 P.3d 957. In this case, the issues of the ordinances' constitutionality (including time, place, and manner restrictions, over breadth, and due process) were resolved in World Wide, 368 F.3d 1186. Mr. Barbanti raised identical issues before the superior court. Additionally, the Ninth Circuit's decision was a judgment on the merits. Consequently, our focus is on the remaining tests: whether Mr. Barbanti was a party or in privity with a party to the federal litigation, and whether collateral estoppel works an injustice against him.
Mr. Barbanti was not a party to the federal action. He participated, however, as an expert witness and testified regarding the leases. Generally privity describes a "mutual or successive relationship to the same right or property." Hackler v. Hackler, 37 Wash.App. 791, 794, 683 P.2d 241 (1984). Its binding effect flows from the fact that the successor who acquires an interest in the right is affected by the adjudication in the hands of the former owner. United States v. Deaconess Med. Ctr., 140 Wash.2d 104, 111, 994 P.2d 830 (2000) (quoting Owens v. Kuro, 56 Wash.2d 564, 568, 354 P.2d 696 (1960)).
Mr. Barbanti is not a successor to WWV's interests in the adult stores. However, he meets the definition of a recognized exception to the privity requirement. This exception applies to certain interested witnesses in the prior adjudication: "One who was a witness in an action, fully acquainted with its character and object and interested in its results, is estopped by the judgment as fully as if he had been a party." Hackler, 37 Wash.App. at 795, 683 P.2d 241. If this interested witness could have intervened but chose not to for tactical reasons, he or she suffers no injustice from application of collateral estoppel. Garcia v. Wilson, 63 Wash.App. 516, 521-22, 820 P.2d 964 (1991); Hackler, 37 Wash.App. at 795, 683 P.2d 241.
Mr. Barbanti testified in the federal action, was fully acquainted with its character and object, and was clearly interested in its results. Not only did he testify regarding the local real estate market and the leases with WWV, but he argued that the ordinances were unconstitutional. His decision not to intervene appears purely tactical. Under these circumstances, he was properly estopped from raising the issues of First Amendment violations and due process in the amortization extension process.
The trial court addressed Mr. Barbanti's remaining issues in its findings of fact and conclusions of law. He claims, however, that the trial court orally ruled that he was estopped from arguing all of his issues. It must be noted that a trial judge's oral decision is treated as an informal opinion that may be altered, modified, or completely abandoned in the formal findings, conclusions, and judgment. Ferree v. Doric Co., 62 Wash.2d 561, 566-67, 383 P.2d 900 (1963). The trial court properly distinguished in its written findings and conclusions those issues precluded by application of collateral estoppel, and decided the remaining issues on their merit.
ADDITIONAL CONSTITUTIONAL CLAIMS
Mr. Barbanti raises several constitutional issues that survive the doctrine of collateral estoppel. On review of a superior court's decision on an administrative land use appeal, we stand in the shoes of the superior court. Young v. Pierce County, 120 Wash.App. 175, 180-81, 84 P.3d 927 (2004). We *1275 review issues of law de novo and the hearing examiner's findings for substantial evidence. Id. at 181, 84 P.3d 927. The evidence is viewed in the light most favorable to the party who prevailed in the highest fact-finding forum. Id. The city prevailed in all prior fact-finding proceedings.
Mr. Barbanti first contends the process used to grant extensions of the amortization period pursuant to former SMC 11.19.395 violated due process because the planning director exercised uncontrolled discretion in granting or denying the extension. Statutes or codes that allow public officials to exercise unbridled discretion to grant or deny permits to engage in constitutionally protected expression are invalid as prior restraints. Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1361-62 (11th Cir.1999). Here, of course, the ordinances do not authorize the planning director to deny a permit to sell sexually explicit material. The discretion of the planning director applies solely to the decision to grant a grace period beyond the automatic 12-month grace period for compliance with the location requirements. Former SMC 11.19.395. Further, the code provides precise criteria for the planning director's decision: the applicant must clearly demonstrate "extreme economic hardship based upon an irreversible financial investment or commitment" made prior to the effective date of the ordinance. Former SMC 11.19.395. The process for obtaining an extension of the amortization period is sufficiently prescribed to prevent unbridled discretion by the planning director.[4] Mr. Barbanti is collaterally estopped from arguing his additional prior restraint argument because it was resolved in the federal decisions.
In his next assignment of error, Mr. Barbanti contends ordinance C-32778 is an unconstitutional bill of attainder, citing United States Constitution article I, section 10, and article I, section 23 of the Washington Constitution. A bill of attainder is a legislative act that inflicts punishment on a named individual or on easily ascertained members of a group without the procedural safeguards of a trial. State v. Manussier, 129 Wash.2d 652, 665-66, 921 P.2d 473 (1996); City of Richland v. Michel, 89 Wash.App. 764, 773, 950 P.2d 10 (1998). Legislative acts are not bills of attainder, however, merely because they compel an individual or defined group to bear unpopular burdens. Manussier, 129 Wash.2d at 666, 921 P.2d 473.
The ordinance here is a legislative act that applies to an easily ascertained group: adult stores. However, the element of punishment is absent. Municipalities have long had the power to require termination of nonconforming uses within a reasonable period of time. Northend Cinema, Inc. v. City of Seattle, 90 Wash.2d 709, 720, 585 P.2d 1153 (1978). Mr. Barbanti's argument that the ordinance deprived him of vested property rights without a trial is without merit. Rights are vested only if they are more than a mere expectation that an existing law will continue. Harris v. Dep't of Labor & Indus., 120 Wash.2d 461, 475, 843 P.2d 1056 (1993) (quoting Godfrey v. State, 84 Wash.2d 959, 963, 530 P.2d 630 (1975)). Adult stores historically have been subject to restrictions and regulations. The leases reflect that fact by providing that the tenants may not do anything on the premises forbidden by ordinance. Further, ordinance C-32778 provides for a hearing to extend the termination period. The ordinance does not qualify as a bill of attainder.
Mr. Barbanti also contends the ordinance violates the contract clauses of the federal and state constitutions. U.S. Const. art. I, § 10; Const. art. I, § 23. The clauses are given the same effect. Margola Assocs. v. City of Seattle, 121 Wash.2d 625, 653, 854 P.2d 23 (1993). Both prohibit legislative action that substantially impairs the obligation of contracts. Id. However, the prohibition against impairment of contracts is not absolute and is not read with literal exactness. Wash. Fed'n of State Employees v. State, 127 Wash.2d 544, 560, 901 P.2d 1028 (1995) (quoting Tyrpak v. Daniels, 124 Wash.2d 146, 151, 874 P.2d 1374 (1994)). We will find substantial *1276 impairment if the complaining party relied on the supplanted part of the contract and on existing state law pertaining to the contract's enforcement. Margola, 121 Wash.2d at 653, 854 P.2d 23. Even so, if the complaining party entered into the contract with knowledge that the portion subject to impairment is already regulated, then he or she entered into the contract subject to further legislation. Id.
In Margola, a new ordinance affecting the right of a landlord to evict a tenant was challenged as an unconstitutional impairment of contract. Noting that the right to evict a tenant was already regulated, and that case law has established the right of municipalities to enact additional defenses to eviction, Margola held that the parties entered into residential leases subject to further regulations on the right to evict. Id. Mr. Barbanti and WWV entered into their leases cognizant of the city's right to adopt ordinances affecting the sale of sexually explicit material the leases specifically recognize that right. They entered into the leases subject to further regulation by ordinance. Consequently, ordinance C-32778 did not unconstitutionally impair the leases.
EXTENSION OF THE AMORTIZATION PERIOD
Mr. Barbanti next challenges the administrative procedure employed in his petition for an extension of the amortization period. He contends he never got an open record hearing before the planning director or the hearing examiner. He also argues the hearing examiner's decision was not supported by the evidence.
We review the interpretation of an ordinance de novo to best advance the city's legislative purpose. Eugster v. City of Spokane, 118 Wash.App. 383, 405, 76 P.3d 741 (2003), review denied, 151 Wash.2d 1027, 94 P.3d 959 (2004). Applying the same interpretative standards as are applied to statutes, we interpret the ordinance in its entirety, using the plain meaning of its language. Id. at 405-06, 76 P.3d 741. Ordinance C-32778 added a new section to the municipal code entitled "Adult Retail Use Establishments Nonconforming Use." See ordinance C-32778, § 7; former SMC 11.19.395. That section provided the following procedure for the appeal of a planning director decision on extension of the amortization period:
The applicant may within the time for notice of appeal request a hearing by the hearing examiner to be held within ten (10) days of the request. The notice of appeal shall be accompanied by a memorandum or other writing setting out fully the grounds for said appeal and all arguments in support thereof. The Planning Director or his designee may submit a memorandum in response to the memorandum filed by the applicant on appeal. After reviewing the relevant information the hearing examiner shall decide to uphold or overrule the Planning Director's decision.
Former SMC 11.19.395. Based on this provision, the hearing examiner decided he was limited to conducting a closed record hearing. Mr. Barbanti contends other provisions in the city code required the hearing examiner to take additional evidence.
SMC 11.02.0620(A) states that
[u]nless otherwise provided, the hearings under this chapter are formal public hearings. They are conducted as prescribed in the particular agency's rules so as to afford the affected parties opportunity to present factual evidence relevant to the determination of individual rights and responsibilities under existing law.... Hearings under this chapter are administrative proceedings intended to afford interested persons notice and an opportunity to be heard, to the extent appropriate to the subject matter, before a governmental agency makes an order regulating individual property rights or imposing a penalty in the exercise of the police power.
Under the plain terms of former SMC 11.19.395, the appeal afforded the applicant for an extension of the amortization period is based on the "memorandum or other writing setting out fully the grounds for said appeal and all arguments in support thereof" as well as the response memorandum of the planning director. The purpose of the appeal hearing is to decide whether to "uphold or overrule" the planning director's decision. Former SMC 11.19.395. A hearing under this provision does not determine whether or not a nonconforming use can continue; it merely *1277 establishes how long beyond the one-year amortization period a nonconforming use may continue. Accordingly, limiting the appeal to the record before the planning director provides the petitioner with an opportunity to be heard "to the extent appropriate to the subject matter." SMC 11.02.0620(A). Read in its entirety, Title 11 of the Spokane Municipal Code supports the hearing examiner's decision to limit the appeal to the record.
Additionally, the hearing examiner's decision is supported by substantial evidence. As the hearing examiner found, Mr. Barbanti and WWV failed to demonstrate extreme economic hardship based on an irreversible financial commitment that precludes reasonable alternative uses of the nonconforming property. Mr. Barbanti's claimed adverse economic impact from the loss of the lucrative lease payments is not sufficient to constitute "extreme economic hardship." Former SMC 11.19.395; see also Deja Vu-Everett-Federal Way, Inc. v. City of Federal Way, 96 Wash.App. 255, 261, 979 P.2d 464 (1999) (an ordinance's adverse economic effects will not be unconstitutional unless it bars market entry). And the record shows sufficient reasonable alternative uses of the leased properties. The hearing examiner found that the properties were located in commercial and business zones with a number of permitted uses. He also noted that no evidence was submitted that showed the buildings were constructed in such a way that precluded other uses. Viewed in the light most favorable to the city, the record supports the hearing examiner's conclusion that extension of the amortization period was not necessary beyond what was granted by the planning director. Young, 120 Wash.App. at 181, 84 P.3d 927.
SEPA REQUIREMENTS
Finally, Mr. Barbanti contends the city failed to properly assess the environmental impact of ordinance C-32778 by filing an environmental checklist that complies with the State Environmental Policy Act (SEPA), chapter 43.21C RCW. According to Mr. Barbanti, he requested a copy of the environmental checklist, but the city was unable to locate it during the pendency of this appeal. The record shows that the city prepared an environmental checklist and that a determination of nonsignificance was issued in November 2000.
Even if the city has failed to respond to Mr. Barbanti's request for the environmental checklist, his challenge is without merit, because the record also contains no indication that he appealed the SEPA decision in a timely manner. SMC 11.10.170(8) provides that threshold determinations issued prior to a decision on a project action must be appealed within 14 days after the determination was made. Mr. Barbanti clearly did not meet this deadline and accordingly waived this issue. See Lakeside Indus. v. Thurston County, 119 Wash.App. 886, 901-02, 83 P.3d 433 (even though a SEPA decision cannot be appealed without appealing the underlying land use decision, the SEPA appeal must be filed within the time limits set by statute), review denied, 152 Wash.2d 1015, 101 P.3d 107 (2004).
MOTION TO STRIKE
In its respondent's brief, the city moves to strike Mr. Barbanti's brief or any issues he did not raise with sufficient clarity to allow a response. The city contends Mr. Barbanti's brief makes general, broadly-worded assignments of error and gives no statement of the issues pertaining to the assignments of error, violating RAP 10.3(a)(3). According to the city, the contradictory and logically inconsistent arguments in Mr. Barbanti's brief made it impossible to craft a response. Mr. Barbanti responds that his brief contains assignments of error sufficient to put the parties on notice of the matters challenged on appeal. Brock v. Tarrant, 57 Wash.App. 562, 789 P.2d 112 (1990).
Although Mr. Barbanti's brief raises numerous arguments that are sometimes difficult to follow, he sets out his issues in labeled sections, and supports his arguments with citation to authority. We find no violation of RAP 10.3(a)(3) and deny the motion to strike.
Affirmed.
WE CONCUR: SWEENEY, A.C.J., and BROWN, J.
NOTES
[1] These stores sell books, movies, and magazines of a sexually explicit nature. WWV's corporate headquarters are in Anaheim, California.
[2] Mr. Barbanti is a member of the Washington Bar and was in private practice until 1991, when he began working full time as a real estate property manager.
[3] State v. Gunwall, 106 Wash.2d 54, 58, 720 P.2d 808 (1986). The nonexclusive Gunwall criteria include: (1) the text of the state constitutional provision; (2) differences between the state and federal texts; (3) constitutional history; (4) preexisting state law; (5) structural differences between the state and federal provisions; and (6) state or local concern for the issues in question. Ino Ino, Inc. v. City of Bellevue, 132 Wash.2d 103, 114-15, 937 P.2d 154, 943 P.2d 1358 (1997); State v. E.J.Y., 113 Wash.App. 940, 946-48, 55 P.3d 673 (2002).
[4] Nothing in former SMC 11.19.395 prohibits the planning director from on site inspections or other attempts to garner information to assist in his or her decision. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632714/ | 103 P.3d 729 (2004)
153 Wash.2d 256
Rose ANTONIUS, Respondent,
v.
KING COUNTY, a political subdivision of the State of Washington, Petitioner.
No. 74759-8.
Supreme Court of Washington, En Banc.
Argued September 30, 2004.
Decided December 23, 2004.
As Changed February 4, 2005.
*731 Diane Hess Taylor, Mercer Island, John Robert Zeldenrust, Prosecuting Attorney, King Co. Prosecutors/Appellate Unit, Seattle, for Petitioner.
Philip Albert Talmadge, Talmadge Law Group PLLC, Tukwila, Candiss Anne Watson, Olympia, Carol Hepburn, Campiche Hepburn McCarty & Bianco, Seattle, for Respondent.
Michael Craig Subit, Frank Freed Subit & Thomas LLP, Andrea Brenneke, MacDonald Hoague & Bayless, Emily Lieberman, Seattle, for Amicus Curiae Northwest Women's Law Center, Washington Employment Lawyers Association.
Bryan Patrick Harnetiaux, Debra Leigh Williams Stephens, Spokane, for Amicus Curiae Washington State Trial Lawyers Association Foundation.
MADSEN, J.
Petitioner King County (County) claims that the Court of Appeals erred in applying the analysis in National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002) to determine whether under state law an employer may be liable in a sex discrimination action based on a hostile work environment for acts occurring more than three years before suit was filed. In Morgan, the United States Supreme Court treated individual discriminatory acts as constituting a unitary, indivisible hostile work environment claim. This view is in contrast to previous case law from the Court of Appeals treating the discriminatory acts as a continuing violation giving rise to an equitable exception to the statute of limitations. We believe that Morgan's analysis for determining liability under Washington's Law Against Discrimination for hostile work environment claims more fully advances the legislature's intent to end discrimination. Accordingly, we affirm the Court of Appeals' reversal of partial summary judgment, and remand this case for further proceedings consistent with Morgan.
FACTS
Respondent Rose Antonius began working for the County's Department of Adult and Juvenile Detention as a bookkeeper in 1983. In 1985 she was promoted to a position as a corrections officer and worked at the Seattle jail, where she supervised male inmates. It is undisputed that, until she was transferred to the all-female Alder Street corrections facility in February 1996, she was frequently subjected to sexually derogatory comments and name-calling by inmates, co-workers and supervisors, and was exposed to sexually explicit inmate conduct. She often encountered pornographic materials, including magazines and videos, in inmate areas, as well as pornographic materials left at correctional officers' workstations. At the Alder Street facility, Antonius did not encounter this discriminatory conduct. In December 1996, she was promoted to Sergeant and reassigned to the Seattle jail. In March 1997, she was transferred to the newly opened Regional Justice Center Correctional Facility in Kent. There, she did not encounter inmates' sexually explicit conduct because she supervised other correctional officers. She still saw pornographic materials in inmates' residential areas and at workstations, and was exposed to sexually explicit videos, though not as frequently as at the Seattle jail. She also was subjected to derogatory comments toward herself and other females, although not as often as had occurred at the Seattle jail. She did not complain, believing it would not be productive and that it would subject her to ridicule and possible reprisal. She did not want to be labeled a troublemaker. Apparently acting on advice from the King County prosecutor, the County provided pornographic materials to inmates and corrections staff through the commissary until 1999, and did not prohibit possession and display of such matter in inmates' cells until 2000.
In 1997, female corrections officers brought a sex discrimination class action against the County based on a hostile work environment. Holloway v. King County, No. 97-2-23951-6SEA (King County Super. Ct. Dec. 16, 2003). Antonius was not part of the class, though her deposition was taken in connection with that suit in 1999. The Holloway case was settled by a consent decree in December 1999.
*732 Antonius filed suit against the County on December 22, 2000, alleging the County violated chapter 49.60 RCW by fostering and maintaining a sex-based hostile work environment. Both Antonius and the County moved for summary judgment, the County on statute of limitations grounds. The County maintained that Antonius's suit was untimely as to events occurring more than three years before suit was filed and that she did not face sex-based discrimination during the limitations period itself. Antonius countered by arguing that the hostile work environment was a continuing violation giving rise to an equitable exception to the statute of limitations and that she encountered discriminatory conduct during the limitations period. The trial court granted partial summary judgment in favor of the County as to acts occurring more than three years before Antonius brought suit. The court determined that as to one form of continuing violation, a systemic violation, Antonius failed to support her claim with sufficient facts. As to a second form of continuing violation, a serial violation, the court reasoned that the hiatus in events occurring while Antonius was assigned to the all-female Alder Street facility precluded application of the continuing violation exception to the statute of limitations. The trial court certified the statute of limitations issue under RAP 2.3(b)(4).
On discretionary review the Court of Appeals applied the standard in Morgan to determine if Antonius's hostile work environment was timely as to all alleged acts, and reversed the grant of partial summary judgment. Antonius v. King County, No. 50492-4-I, 118 Wash.App. 1011, 2003 WL 21958392 (Wash.Ct.App. Aug.18, 2003). The County petitioned for discretionary review by this court.
ANALYSIS
Washington's law against discrimination (WLAD), chapter 49.60 RCW, prohibits employment discrimination based on sex. RCW 49.60.010, .030, .180. RCW 49.60.180(3) makes it an unfair practice for an employer "[t]o discriminate against any person in compensation or in other terms or conditions of employment because of ... sex." RCW 49.60.030(2) authorizes a person discriminated against in violation of WLAD to bring a civil action. The statute provides for the recovery of actual damages, as well as for equitable remedies. Martini v. Boeing Co., 137 Wash.2d 357, 367-68, 374-75, 971 P.2d 45 (1999).
Two types of sex discrimination claims are recognized the quid pro quo sexual harassment claim, where the employer requires sexual consideration from the employee for job benefits, and the hostile work environment claim. The four elements of a prima facie hostile work environment claim are: (1) The harassment was unwelcome, (2) the harassment was because of sex, (3) the harassment affected the terms and conditions of employment, and (4) the harassment is imputable to the employer. Glasgow v. Ga-Pac. Corp., 103 Wash.2d 401, 406-07, 693 P.2d 708 (1985). The third element requires that the harassment be "sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment[,] ... to be determined with regard to the totality of the circumstances." Glasgow, 103 Wash.2d at 406-07, 693 P.2d 708.
WLAD does not contain its own limitations period. Discrimination claims must be brought within three years under the general three-year statute of limitations for personal injury actions. RCW 4.16.080(2). Prior to the decision in Morgan, the Court of Appeals employed the "continuing violation doctrine" analysis also used by some federal Circuits to determine whether conduct occurring more than three years before suit was filed could result in employer liability in a discrimination action under chapter 49.60 RCW. The continuing violation doctrine acted as an equitable exception to the statute of limitations for such suits, allowing a plaintiff to recover damages for otherwise time-barred acts. Washington v. Boeing Co., 105 Wash.App. 1, 8, 19 P.3d 1041 (2000). The doctrine is explained in Provencher v. CVS Pharmacy, 145 F.3d 5 (1st Cir.1998), overruled in part by Morgan, Crowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir.2002).
Continuing violations could be serial or systemic. Provencher, 145 F.3d at 14; see *733 Washington, 105 Wash.App. at 8, 19 P.3d 1041; Milligan v. Thompson, 90 Wash.App. 586, 595, 953 P.2d 112 (1998). A systemic violation was rooted in a discriminatory policy or practice, and if the policy or practice continued into the limitations period, a plaintiff could be deemed to have filed a timely complaint. Provencher, 145 F.3d at 14. No identifiable act of discrimination was required in the limitations period, and systemic violations were found, for example, with regard to general policies or practices in hiring, promotion, training and compensation. Provencher, 145 F.3d at 14.
Serial continuing violations could be alleged "where a chain of similar discriminatory acts emanating from the same discriminatory animus exist[ed] and where there ha[d] been some violation within the statute of limitations period that anchor[ed] the earlier claims ." Provencher, 145 F.3d at 14; see Washington, 105 Wash.App. at 8, 19 P.3d 1041; Milligan, 90 Wash.App. at 595, 953 P.2d 112. The Court of Appeals used three factors to evaluate a serial continuing violation claim, i.e., to determine whether there was the necessary substantial relationship between the timely and untimely conduct:
(1) [W]hether the alleged acts involve[d] the same type of discrimination tending to connect them in a continuing violation; (2) whether the alleged acts [were] recurring; and, (3) most importantly, whether the untimely act ha [d] the degree of permanence that should have triggered the employee's awareness of and duty to assert his or her rights.
Milligan, 90 Wash.App. at 595, 953 P.2d 112; see Washington, 105 Wash.App. at 8-9, 19 P.3d 1041. Thus, a serial continuing violation could not prevail if "the plaintiff was or should have been aware that he [or she] was being unlawfully discriminated against while the earlier acts, now untimely, were taking place." Provencher, 145 F.3d at 14. "`[T]he purpose... [was] to permit the inclusion of acts whose character as discriminatory acts was not apparent at the time they occurred.'" Provencher, 145 F.3d at 15 (quoting Speer v. Rand McNally & Co., 123 F.3d 658, 663 (7th Cir.1997)). The Seventh Circuit explained: "In its early stages [the acts] may not be diagnosable as sex discrimination ... or may not cause sufficient distress ... or may not have gone on long enough to charge the employer with knowledge and a negligent failure to take effective remedial measures." Galloway v. Gen. Motors Serv. Parts Operations, 78 F.3d 1164, 1166 (7th Cir.1996), overruled in part by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 n. 11, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002).
While the Court of Appeals has used the continuing violation analysis in discrimination cases, we have not previously addressed the matter. Similarly, while some federal Circuits applied the doctrine, until recently the United States Supreme Court had not addressed whether the continuing violation doctrine as an equitable exception to the statute of limitations has application in discrimination cases. In Morgan, the Court took up the matter in a Title VII case involving a claim of employment discrimination based on race. The Court rejected the continuing violation doctrine.
In Morgan, the plaintiff filed a charge of discrimination and retaliation with the Equal Employment Opportunity Commission (EEOC) claiming, among other things, a racially hostile work environment extending over six years. The employer argued that it was entitled to summary judgment as to acts occurring before the relevant 300-day limitations period for filing such charges under Title VII. The Court distinguished those cases involving discrete retaliatory or discriminatory acts, such as termination, failure to promote, denial of transfer, or refusal to hire, from cases involving claims of a hostile work environment. For discrete acts, the limitations period runs from the act itself, and if the limitations period has run, a discrete act is not actionable even if it relates to acts alleged in timely filed charges. Morgan, 536 U.S. at 108-113, 122 S. Ct. 2061. However, the Court concluded that hostile work environment claims "are different in kind from discrete acts" and "[t]heir very nature involves repeated conduct." Morgan, 536 U.S. at 115, 122 S. Ct. 2061. The Court said that the
"unlawful employment practice" therefore cannot be said to occur on any particular *734 day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.... Such claims are based on the cumulative effect of individual acts.
Morgan, 536 U.S. at 115, 122 S. Ct. 2061. The Court explained that "[a] hostile work environment claim is composed of a series of separate acts that collectively constitute one `unlawful employment practice.'" Morgan, 536 U.S. at 117, 122 S. Ct. 2061 (quoting 42 U.S.C. § 2000e-5(e)(1)).
Because Title VII's filing provision requires only that the charge be filed within a certain period after the unlawful practice occurred, the Court reasoned, "[i]t does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period." Morgan, 536 U.S. at 117, 122 S. Ct. 2061. The Court held that "[p]rovided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Morgan, 536 U.S. at 117, 122 S. Ct. 2061.
The Court also rejected the rule applied by several of the Circuits that a plaintiff could not base suit on acts occurring outside the statute of limitations' period unless it would have been unreasonable to expect the plaintiff to sue before the statute ran. It did so "precisely because the entire hostile work environment [c]laim encompasses a single unlawful employment practice." Morgan, 536 U.S. at 117, 122 S. Ct. 2061. Thus, it does not matter that a plaintiff knows or should know at the time discriminatory acts occur outside the statute of limitations period that the acts are actionable. Morgan, 536 U.S. at 118, 122 S. Ct. 2061. The Court said that its holding did not leave employers defenseless, because if an employee unduly delayed suit an employer could assert equitable defenses such as waiver and unreasonable delay, as well as laches if the employer could establish lack of diligence on plaintiff's part and prejudice to the employer as a result of the delay. Morgan, 536 U.S. at 121, 122 S. Ct. 2061 (O'Connor, J. concurring at 122, 127).
In applying Morgan's analysis to this case, the Court of Appeals concluded that Antonius presented sufficient evidence of one or more acts of harassment within three years of her suit filed in December of 2000, and therefore the trial court could consider the discriminatory conduct occurring throughout the time the acts constituting a hostile work environment occurred, i.e., acts occurring before December 1997. Antonius, No. 50492-4-I, 118 Wash.App. 1011, 2003 WL 21958392, slip op. at 5-6. Accordingly, the Court of Appeals ruled partial summary judgment was improperly granted in favor of the County.
The County argues that the Court of Appeals erroneously applied Morgan. The County contends that Morgan is inconsistent with state case law regarding WLAD, specifically Washington and Milligan.
Morgan departs substantially from the analysis set out in Washington and Milligan. The United States Supreme Court did not view the issue of acts occurring before the limitations period in a hostile work environment case as a matter of an equitable exception to the statute of limitations. Instead, the Court focused on the nature of the claim itself as a series of acts that collectively constitute one unlawful employment practice. As a unitary whole, the claim is not untimely if one of the acts occurs during the limitations period because the claim is brought after the practice, as a whole, occurred and within the limitations period.[1] The acts must be, however, "part of the same unlawful employment practice." Morgan, 536 U.S. at 122, 122 S. Ct. 2061.
Even though Morgan does state an analysis that is quite different from that in Washington and Milligan, this does not mean the Court of Appeals erred in applying *735 Morgan. We have frequently recognized that while federal discrimination cases are not binding, they may be persuasive and their analyses adopted where they further the purposes and mandates of state law. E.g., Hill v. BCTI Income Fund-I, 144 Wash.2d 172, 180, 185-86, 23 P.3d 440 (2001) (following the analysis in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000) rejecting "pretext-plus" evidentiary standard for a chapter 49.60 RCW employment discrimination claim); Xieng v. People's Nat'l Bank of Wash., 120 Wash.2d 512, 518-22, 527-30, 844 P.2d 389 (1993) (discussing cases where this court has followed federal cases interpreting Title VII when addressing issues under RCW 49.60.180, and, in accord with federal case law, rejecting good faith as a complete defense to claim of employment discrimination; in addition, in accord with rationale of federal cases construing federal attorney fees provision in Title VII for employment discrimination cases, determining that expert witness fees are proper under RCW 49.60.030(2)); Glasgow, 103 Wash.2d at 406 n. 2, 693 P.2d 708 (federal cases interpreting Title VII, while not binding, are instructive).
Conversely, where Title VII and the state discrimination statutes are different and following federal cases would not further the purposes of state law, the court has declined to find federal authority persuasive. E.g., Martini, 137 Wash.2d at 372-75, 971 P.2d 45 (declining to follow federal cases on question whether back pay is recoverable in a successful discrimination action without a showing of constructive discharge).
The County argues, though, that state and federal law are too dissimilar to apply Morgan's analysis under chapter 49.40 RCW. The County points out that the limitation period for RCW 4.16.080(2) is more than three times longer than for Title VII actions, which requires a claim with the EEOC to be filed within 300 days. The County also relies on this court's statement that the remedies under Title VII are "radically different" from remedies under Washington law. Martini, 137 Wash.2d at 375, 971 P.2d 45. While state law allows actual damages and equitable remedies, Title VII limits back pay awards to two years and imposes caps on compensatory and punitive damages.
When we described the remedies of Title VII as "radically different" from those in WLAD, we did so in rejecting federal cases that would have provided a more limited remedy under state law than WLAD would allow. Martini, 137 Wash.2d at 372-75, 971 P.2d 45. Thus, while the County is correct that we said in Martini that the two laws provide for "radically different" remedies, we do not see Martini as providing a reason to reject Morgan. Instead, Martini suggests that federal case law that provides the potential for greater recovery is consistent with WLAD's broad scope and the requirement that the act be liberally construed to accomplish its purposes, RCW 49.60.020.
The County says, however, that damage awards will be unbounded under state law if Morgan is adopted. The County is correct that potential liability may be broader under Morgan than under the continuing violation exception. However, the possibility that liability may be greater under Morgan's analysis must be weighed against the need to eradicate unlawful sex discrimination and the legislature's command that WLAD be liberally construed. A person has the right to hold employment without discrimination, RCW 49.60.030(a), and the discrimination statutes embody "public policy of `the highest priority' "Xieng, 120 Wash.2d at 521, 844 P.2d 389 (quoting Allison v. Housing Authority of City of Seattle, 118 Wash.2d 79, 86, 821 P.2d 34 (1991)). Discrimination "threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state." RCW 49.60.010. "Sexual harassment as a working condition unfairly handicaps an employee against whom it is directed in his or her work performance and as such is a barrier to sexual equality in the workplace." Glasgow, 103 Wash.2d at 405, 693 P.2d 708. We do not agree that the fact that potential liability may be greater under Morgan than under previous Court of Appeals' decisions is a basis to reject Morgan's analysis.
Moreover, the nature of the hostile work environment claim strongly indicates that it should not be parsed into component parts *736 for statute of limitations purposes. Morgan underscores the fact that the law does not usually allow a remedy in a hostile work environment case unless there is a pervasive pattern of unlawful treatment over a period of time.
We conclude that Morgan provides a logical analysis for determining liability under WLAD for a hostile work environment claim. The rule of liberal construction and the purposes of the statutes prohibiting sex discrimination in the workplace will be served by adopting Morgan's analysis, permitting suits based on acts that individually may not be actionable but together constitute part of a unified whole comprising a hostile work environment.
The County argues, however, that adopting Morgan will effectively eliminate the limitation period for hostile work environment claims. The County urges this court to hold that hostile work environment claims accrue when the plaintiff has notice of the harm, however slight, and to adhere to the third prong of the substantial relationship multifactor inquiry for serial continuing violations, which incorporates an inquiry into plaintiff's knowledge of whether the alleged discriminatory acts were actionable prior to the limitations period. The County points out that, unlike under Title VII, where the limitations period runs from the date the discriminatory practice "occurred," 42 U.S.C. § 2000e-5(e)(1), RCW 4.16.005 states that except as otherwise provided in chapter 4.16 RCW, actions must be commenced "within the periods provided in this chapter after the cause of action has accrued." The County maintains that under the three year statute of limitations of RCW 4.16.080(2) a "discovery rule" of accrual applies.[2]
Because we reject the continuing violation doctrine, we also reject the "substantial relationship" inquiry that constitutes part of the serial continuing violation inquiry, including its knowledge prong. Thus, we reject the argument that the statute of limitations commences to run when the plaintiff has notice of harm, however slight.
And although, unless otherwise specified, RCW 4.16.005 bases the running of statutes of limitations on accrual of the cause of action, it does not contain a discovery rule. As noted, chapter 49.60 RCW does not contain a limitations period for civil causes of action and does not define accrual for such causes. There is no statutory discovery rule of accrual that applies to hostile work environment claims.
In the absence of a specific statute, this court has defined those cases where a discovery rule of accrual will apply. We have not done so in hostile work environment cases.[3] In describing the hostile work environment claim as "collectively... one `unlawful employment practice'" the court in Morgan expressly rejected a discovery rule for triggering the running of the statute of limitations. Morgan, 536 U.S. at 117, 122 S. Ct. 2061.[4] The Court said that the hostile work environment "occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.... Such claims are based on the cumulative effect of individual acts." Morgan, 536 U.S. at 115, 122 S. Ct. 2061. We agree, and accordingly decline to *737 adopt a discovery rule of accrual for hostile work environment claims.[5]
In light of the rule of liberal construction and the purposes of the law prohibiting sex discrimination, we affirm the Court of Appeals and adopt Morgan's analysis for liability on a hostile work environment claim.
The next issue is whether the trial court properly granted summary judgment to the County as to any acts allegedly occurring more than three years before suit was filed. The trial court reasoned that Antonius had failed to show sufficient facts to show a systemic continuing violation and that she could not show that acts occurring more than three years before suit were part of a serial continuing violation because of the hiatus in events while she was at the Alder Street facility for women inmates. The Court of Appeals, applying Morgan, held that the County was not entitled to summary judgment because Antonius alleged sufficient facts to show an act contributing to the hostile work environment occurred within the limitations period. The County maintains, however, that even under Morgan partial summary judgment was proper.
Under Morgan, a "court's task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any act falls within the statutory time period." Morgan, 536 U.S. at 120, 122 S. Ct. 2061. The acts must have some relationship to each other to constitute part of the same hostile work environment claim, and if there is no relation, or if "for some other reason, such as certain intervening action by the employer" the act is "no longer part of the same hostile environment claim, then the employee cannot recover for the previous acts" as part of one hostile work environment claim. Morgan, 536 U.S. at 118, 122 S. Ct. 2061.
Here, the trial court did not assess the County's motion for summary judgment under Morgan. In these circumstances, where the trial court applied the wrong legal standard to determine whether summary judgment was appropriate, the proper course is to remand this case to the trial court. If the County again moves for summary judgment, the trial court can then determine if material issues of fact exist under Morgan. See Shields v. Fort James Corp., 305 F.3d 1280, 1281 (11th Cir.2002) (remanding for further proceedings under Morgan where summary judgment had been granted in a hostile work environment case by a trial court applying the continuing violation doctrine; court noted that the Court in Morgan had "eschewed the use of the continuing violation doctrine in hostile work environment cases" and thus "essentially redefined the application of statutes of limitations to cases such as the one at hand"). On remand, the County may assert any equitable defenses it may have, as the Court explained in Morgan.
For purposes of remand, we address one additional matter. The County maintains that under Morgan a gap in the events, such as the approximately one year period that Antonius was assigned to the Alder Street facility, precludes, as a matter of law, a court from considering previous acts to be sufficiently related to any acts occurring within the statute of limitations period to constitute a single hostile work environment. Morgan is to the contrary. The Court presented two hypothetical situations:
The following scenarios illustrate our point: (1) Acts on days 1-400 create a hostile work environment. The employee files the charge on day 401. Can the employee recover for that part of the hostile work environment that occurred in the first 100 days? (2) Acts contribute to a hostile [work] environment on days 1-100 and on day 401, but there are no acts between days 101-400, Can the act occurring on day 401 pull the other acts in for the purposes of liability? In truth, all other things being equal, there is little difference between the two scenarios as a hostile environment constitutes one "unlawful employment practice" and it does not matter whether nothing occurred within *738 the intervening 301 days so long as each act is part of the whole. Nor, if sufficient activity occurred by day 100 to make out a claim, does it matter that the employee knows on that day that an actionable claim happened; on day 401 all incidents are still part of the same claim.
Morgan, 536 U.S. at 118, 122 S. Ct. 2061. Thus, a gap, in and of itself, is not a reason to treat acts occurring before and after that gap as not constituting parts of the same unlawful employment practice under Morgan.
Moreover, the cases upon which the County relies do not support its argument. The facts in Lucas v. Chicago Transit Authority, 367 F.3d 714 (7th Cir.2004) are complex, but led to the court's conclusion that an approximate three-year gap between alleged discriminatory acts was not part of the same hostile work environment. The case is distinguishable both because of the length of time involved, and because the last act alleged, the court concluded, occurred entirely by "happenstance" when the employee unexpectedly encountered his former superior and an altercation ensued. Lucas, 367 F.3d at 727-28. Other alleged acts within the three year period were insufficiently supported, the court said, or constituted discrete acts within Morgan's analysis. Lucas, 367 F.3d at 727. The other case cited by the County, Selan v. Kiley, 969 F.2d 560 (7th Cir.1992), was decided under the continuing violation doctrine, not Morgan.
In contrast, in Lively v. Flexible Packaging Ass'n, 830 A.2d 874, 892 (D.C.Ct.App.2003), the court reasoned that under Morgan's analysis "even if there are significant gaps in the occurrence of the acts constituting the unitary hostile work environment claim, the filing of that claim still may be timely." The court reasoned that this is true because the acts constituting a hostile work environment are treated as an indivisible whole. Lively, 830 A.2d at 892. Thus, despite an approximately two year gap in events, the court concluded that a reasonable jury could regard the alleged conduct as part of one unlawful employment practice. Lively, 830 A.2d at 895-96 (also discussing the evidence).
Finally, Antonius requests that she be granted reasonable attorney fees on appeal under RCW 49.60.030(2), RAP 18.1(a) and (i), and Hinman v. Yakima School District No. 7, 69 Wash.App. 445, 452-53, 850 P.2d 536 (1993). The Court of Appeals declined to award attorney fees on the basis that Antonius's request was premature because she had not yet prevailed on her hostile work environment claim. Antonius, No. 50492-8-4-I, slip. op. at 9. For the same reason, we decline to award fees at this stage of the proceedings.
CONCLUSION
We adopt the analysis in Morgan for purposes of determining under state law whether a hostile work environment claim is timely as to all acts alleged to constitute the unlawful employment practice, and affirm the Court of Appeals on this issue. The Court of Appeals also properly reversed the grant of partial summary judgment in favor of the County. We remand the case to the trial court for further proceedings consistent with Morgan, in which the County may, if it chooses, move for summary judgment under Morgan. The County may assert any equitable defenses it may have.
ALEXANDER, C.J., and BRIDGE, JOHNSON, CHAMBERS, SANDERS, OWENS, IRELAND, FAIRHURST, JJ., concur.
NOTES
[1] The Court in National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 109, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002) explained that the limitation period under Title VII begins when "`the alleged unlawful employment practice occurred.'" (Emphasis omitted). (Quoting 42 U.S.C. § 2000e-5 (e)(1)).
[2] Under a discovery rule, a cause of action accrues when the plaintiff discovers or reasonably should discover the elements of a cause of action. Douchette v. Bethel Sch. Dist. No. 403., 117 Wash.2d 805, 813, 818 P.2d 1362 (1991). "The discovery rule does not require knowledge of the existence of a legal cause of action itself, but merely knowledge of the facts necessary to establish the elements of the claim." Douchette, 117 Wash.2d at 814, 818 P.2d 1362.
[3] In Douchette, 117 Wash.2d at 813-15, 818 P.2d 1362, we declined to apply a discovery rule to an age discrimination claim under chapter 49.60 RCW.
[4] While the Court in Morgan declined to rule on whether a "discovery rule" of accrual would apply as to a discrete act, Morgan, 536 U.S. at 114 n. 7, 122 S. Ct. 2061 its discussion of that matter is unrelated to its analysis of hostile work environment claims. The Court expressly said that whether the plaintiff knew or should have known that the acts occurring before the limitations period were actionable has no bearing on the timeliness of a hostile work environment claim. Morgan, 536 U.S. at 117-18, 122 S. Ct. 2061. That knowledge could be relevant, however, if the employer asserts an equitable defense to which plaintiff's actual or constructive knowledge is relevant.
[5] The County also says that Court in Morgan did not "clearly address whether the timely events of claimed discrimination must impact the terms and conditions of employment." Pet. for Review at 18. The Court did engage in this analysis, however. Morgan, 536 U.S. at 115-17, 122 S. Ct. 2061. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1133860/ | 430 P.2d 799 (1967)
Charles R. SMITH, Jr., Will H. Smith and Marie S. Smith, Plaintiffs in Error,
v.
E. C. DAVIS and Helen Davis, Defendants in Error.
No. 40820.
Supreme Court of Oklahoma.
July 18, 1967.
R. Rhys Evans, Otey, Johnson & Evans, Ardmore, for plaintiffs in error.
Wallace & Bickford, by Harry L. Bickford, Ardmore, for defendants in error.
*800 IRWIN, Vice Chief Justice.
Defendants in error, herein designated as plaintiffs commenced this action to recover damages allegedly caused by salt water escaping onto their land from salt water pits on an oil and gas lease, which was owned and operated by plaintiffs in error, (defendants).
The jury returned a verdict for plaintiffs and judgment was rendered thereon. Defendants have appealed from the order overruling their motion for a new trial.
Plaintiffs acquired the tract of land involved in January, 1961. Defendants' oil and gas operations were conducted on land that joined plaintiffs' land on the south. Plaintiffs alleged that defendants stored salt water from their oil and gas operations in two open salt water pits and in May and June of 1961, permitted salt water to overflow from the pits and flow over plaintiffs' land. In so far as pertinent to this appeal, plaintiffs sought damages for permanent damage to a portion of their land, for loss of lespedeza and bermuda grass, and for loss of a pecan crop from 10 pecan trees.
Defendants contend that plaintiffs' evidence was not sufficient to justify any recovery for these alleged damages. Defendants state the sole evidence presented by plaintiffs as to the cause of the alleged damages was the two different overflows of defendants' salt water pits. They argue the evidence fails to show the overflows carried any salt or deleterious substance, which would cause any detriment to plaintiffs' land; that there was no analysis of water samples from the salt water pits nor of the water flowing down the ravine during the rain; that the only expert evidence as to the salt content of the soil on plaintiffs' land was offered by the defendants and it reflects the salt content as about normal; and that there was no evidence showing any permanent damage to plaintiffs' land or that the pecan crop was in any way affected or damaged by the two overflows.
The force and effect of defendants' contentions and argument is that plaintiffs failed to prove any cause of action entitling them to any relief. This is an action of legal cognizance and in considering the issues presented, this Court is guided by well established rules of law. The case of Leslie v. Hammer, 194 Okl. 535, 153 P.2d 101, involved an action for failure to keep salt water impounded and letting the same escape into a pasture where plaintiffs kept livestock. In Leslie we held:
"As a general rule the proximate cause of an injury is a question of fact and only becomes a question of law where the evidence together with all inferences which may be properly deduced therefrom is insufficient to show a causal connection between the alleged wrong and the injury."
In Kennedy v. Deckard, Okl., 278 P.2d 843, we held that the sufficiency of the evidence to sustain a judgment in a law action will be determined in the light of the *801 evidence tending to support the same, together with every reasonable inference deducible therefrom, rejecting all evidence adduced by the adverse party which conflicts with it.
We will now review the evidence to determine if plaintiffs have proved their cause, or causes of action, entitling them to the judgment rendered on the jury's verdict, and in making our determination we will be guided by the above legal concepts.
Plaintiff Davis testified that he was raised in the area and was well acquainted with this particular tract of land; that when he purchased it, about six months before the alleged incidents, there were no specific spots where grass was not growing but there were spots that didn't have any grass; that during two different heavy rains in May and June of 1961, he observed water flowing upon and across his land from the south and he followed said flow to its source, which he stated was defendants' salt water pits; that these two pits were located about three or four hundred feet south of his property line; that he observed the salt water pits overflowing into a ditch or ravine and then draining upon and spreading out across the more level portion of his land; that after these two incidents, and his land dried out, he observed deposits of a white material on the surface in places subjected to these overflows, as reflected in photographs he submitted and supported by other witnesses; that he tasted this white substance and identified it as salt. He testified that in these described places his lespedeza and bermuda grass died; that the leaves on said 10 pecan trees in the affected area wilted and dropped off but his other pecan trees located where the overflow water did not reach them were not affected; that at the time of said overflows the ten pecan trees were in bloom prior to the formation of the pecan and said trees did not produce their crop.
Plaintiffs submitted photographs taken two years after the overflows, which reflect the condition of vegetation in the same general areas shown in photographs taken shortly after said overflows. As to the damaged areas previously growing lespedeza and bermuda grass, plaintiff stated he re-seeded them with vetch and fertilized them but they failed to respond with much success and are now occupied mostly with weeds.
Although defendants produced testimony that they had never observed the salt water pits overflowing, there was sufficient evidence submitted on behalf of plaintiffs for the jury to find that at least one of the salt water pits did overflow in May and June, 1961, and that the overflow flowed onto plaintiffs' land. And, even though defendants presented an expert witness who had taken and analyzed samples of soil from plaintiffs' land at four different locations and testified the salt content as being about normal, with the exception of one sample which reflected a much greater salt content than the other three, there was sufficient evidence submitted on behalf of plaintiffs for the jury to find that the overflow from defendants' salt water pits did contain salt or other deleterious substance that could cause damage to plaintiffs' land and crops. And there is sufficient evidence for the jury to find that the salt or other deleterious substance in the water that overflowed from defendants' salt water pits permanently damaged a portion of plaintiffs' land and caused the loss of his lespedeza and bermuda grass.
However, the sufficiency of the evidence to sustain the verdict for loss of the pecan crop on 10 pecan trees presents another issue. Plaintiff testified that only 10 of his pecan trees were subjected to or affected by the salt water; that said trees averaged about 8 inches in diameter to about one foot; that these ten pecan trees have not produced any nuts since they were subjected to the salt water and some of them have some leaves on them but others have none; that these ten trees were in bloom preparatory to forming the pecans at the time they were subjected to or affected by the salt water; and thereafter their leaves wilted and fell off; that all of plaintiffs' other pecan *802 trees, which the salt water did not contact were not affected in any manner.
Plaintiff testified as to the market price of pecans and calculated the gross sum the crop from these ten trees would have returned; he described various items or expenses that would be deducted from this gross sum to ascertain the net profit from said crop, which he calculated to be about $220.00 for that year and this evidence was uncontradicted. However, plaintiff Davis testified "I didn't gather my pecans that year".
Plaintiffs argue that it is immaterial whether or not they harvested the pecan crop from any of the other trees as it was their prerogative.
However forcible as plaintiffs' argument might be there is no evidence that they would have harvested the pecan crop from the 10 pecan trees allegedly damaged had they not been damaged and the 10 pecan trees had yielded pecans. In other words, plaintiffs sought damages for a crop of pecans but failed to offer evidence that they would have harvested the pecans had they not been damaged. This lack of evidence is more apparent when considered with the evidence that they didn't even harvest the pecan crop from the pecan trees that were not damaged. In our opinion the evidence is insufficient to support any award for damages for the pecan crop from the 10 pecan trees allegedly damaged as a result of the salt water flowing onto plaintiffs' land.
The verdict and judgment was rendered in a lump sum. It is impossible to determine whether the same included or did not include any damages for the pecan crop. In plaintiffs' second cause of action they sought $200.00 for destruction of the pecan crop. Since the evidence will not support damages for loss of the pecan crop, that portion of the judgment which may or could be attributable to the loss of the pecan crop can not stand.
The judgment of the trial court is affirmed on condition that plaintiffs, within 15 days after mandate is filed in the trial court, will file a remittitur of $200.00, together with such sum as was allowed for interest thereon. If the remittitur is not filed within the time allowed, the cause will stand reversed and remanded for a new trial. See Stricker v. Vahldick, Okl., 293 P.2d 367.
JACKSON, C.J., and DAVISON, WILLIAMS, BERRY, HODGES and McINERNEY, JJ., concur.
BLACKBIRD and LAVENDER, JJ., concur in part and dissent as to remittitur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1133863/ | 199 Kan. 312 (1967)
430 P.2d 188
ROBERT C. LONDERHOLM, Attorney General of the State of Kansas, Appellant and Cross-Appellee, and KANSAS CITY, KANSAS, BRANCH NAACP, Intervener-Appellant and Cross-Appellee,
v.
UNIFIED SCHOOL DISTRICT No. 500 and RALPH E. EVANS, JOE H. VAUGHN, ROBERT A. FOTHERGILL, RALPH A. FULTON, JOHN O. YULICH and MRS. R.W. SCOVILLE, As Members of Said Board, Appellees and Cross-Appellants, and JOHN E. HIRSCH, RANDALL R. DUNN, MARY WOLFE, PHOEBE MAY and GERALD W. HALL, Individually and on Behalf of the Kansas City, Kansas, Teachers Association, Interveners-Appellees and Cross-Appellants.
No. 44,920
Supreme Court of Kansas.
Opinion filed July 6, 1967.
Park McGee, Assistant Attorney General, argued the cause, and Robert C. Londerholm, Attorney General, and Richard H. Seaton, Assistant Attorney General, were with him on the brief for the appellant and cross-appellee.
Hartzell J. Whyte, of Kansas City, argued the cause, and Robert H. Waters, also of Kansas City, was with him on the brief for the intervener-appellant and cross-appellee.
Willard L. Phillips, of Kansas City, argued the cause, and P.B. McAnany and Thomas M. Van Cleave, Jr., both of Kansas City, were with him on the brief for the appellees and cross-appellants.
Roger D. Stanton, of Kansas City, argued the cause, and Lee E. Weeks and Leonard O. Thomas, both of Kansas City, were with him on the brief for the interveners-appellees and cross-appellants.
The opinion of the court was delivered by
SCHROEDER, J.:
This is a statutory action under the Kansas act against discrimination (K.S.A. 44-1001, et seq.) brought by the Attorney General of Kansas charging that the Board of Education of the city of Kansas City, Kansas, discriminated against negroes in several respects.
The basic question of law presented involves a construction of the Kansas act against discrimination whether the act requires public school authorities to integrate their teaching staff at the various schools under their jurisdiction.
*314 This action was instituted by the Attorney General (plaintiff-appellant and cross-appellee) by filing a complaint, authorized by K.S.A. 44-1005, against Unified School District No. 500 and individual members of the school board (defendants-appellees and cross-appellants), charging that the Board of Education of the city of Kansas City, Kansas, has continually and within six months immediately prior to the filing of the complaint on August 26, 1963, engaged in unlawful employment practices in violation of G.S. 1961 Supp. (now K.S.A.) 44-1009(a). The unlawful practices were alleged to consist of:
"(A) Refusing to hire or consider for employment qualified negro applicants as teachers in schools attended predominantly by white children.
"(B) Segregating its negro elementary school supervisor from its white elementary school supervisors in furnishing office accommodations to such supervisors, and by limiting its negro supervisor to work in schools attended predominantly by negro children while its white supervisors are assigned to both white and negro schools.
"(C) By giving official sanction to separate city-wide teachers' associations for negro and white elementary teachers and making membership in such segregated associations compulsory for its elementary school teacher employees."
The answer of the school board specifically denied each of the charges alleged to be unlawful employment practices.
The act created a state commission having power to eliminate discrimination in employment to be known as the antidiscrimination commission, and provided that after the effective date of the act such commission was to be known as the commission on civil rights. At the hearing before this commission the NAACP was permitted to intervene in the action as a complainant (intervener-appellant and cross-appellee).
Before the matter was heard by the commission a fourth issue was injected into the case. At the pretrial conference, counsel for the Attorney General stated, although not in the pleadings, that the most important issue in the controversy was the refusal of the school board to transfer a teacher, over his objection, from one school to another solely for the purpose of integrating or mixing the faculties.
Before the commission heard the case the school board by motion attempted to learn which individuals had been discriminated against by the refusal of the board to hire them or consider them for employment in predominantly white schools; but the commission denied the motion.
*315 The case was heard by the commission on the three issues enumerated in the complaint and the fourth issue injected at the pretrial conference, despite the recommendation of its own investigating officer that there was no probable cause upon the third issue in the complaint.
After hearing the matter the commission found against the school board on all four issues, and concluded that the school board "has engaged and at the time of the hearing was engaged in unlawful, discriminatory practices in violation of the Kansas Act Against Discrimination." It thereupon issued a sweeping order as follows:
"THE COMMISSION THEREFORE ORDERS RESPONDENT:
"1. To forthwith cease and desist from such unlawful and discriminatory practices.
"2. To employ and consider for employment as teachers in its schools Negro applicants on the basis of training, qualification and school need and not on the basis of the racial makeup of the pupils of such school.
"3. To assign its Negro elementary school supervisors for duty as it does its white supervisors and not on a basis of a Negro supervisor to a predominantly Negro school.
"4. To furnish its supervisors, Negro and white alike, office and school accommodations on the basis of position and not on the basis of color.
"5. To cease and desist from recognizing and encouraging separate and segregated teachers' associations.
"IT IS FURTHER ORDERED, that respondent take the following affirmative actions:
"1. To reassign its teachers and to establish procedures so as to eliminate the condition whereby Negro teachers are being assigned to predominantly Negro schools and white teachers to predominantly white schools.
"2. To employ and consider for employment qualified Negro applicants as teachers in schools attended predominantly by white children.
"3. To issue a public statement on its policy of no discrimination in employment and assignment of teachers and to use the same in the recruitment, selection and hiring of its teachers.
"4. To make known to the various teachers' associations its disapproval of separate teachers' associations for Negro and white elementary school teachers.
"5. To provide the Kansas Commission on Civil Rights, within ninety days hereafter, with a written report of the manner of compliance with the above orders."
Thereupon the school board appealed to the Wyandotte County district court.
After the commission announced its decision that teachers should be transferred from one school to another to effect integration, the teachers became alarmed and intervened by a class action so that their rights might be fully protected.
*316 The motion by the teachers to intervene recites:
"Come now John E. Hirsch, Randall R. Dunn, Mary Wolfe, Phoebe May and Gerald W. Hall, acting for themselves individually and as officers of and as designated agents for Kansas City, Kansas Teachers Association and move for leave to intervene as respondents...."
The teachers' motion to intervene is intermingled with the third issue in the complaint, which charged that the school board discriminated by supporting separate teachers' associations some only for negro teachers, and some only for white teachers. There was absolutely no testimony at the hearing before the civil rights commission to support this charge. The superintendent of schools testified positively that such separate associations did not exist, and the investigating commissioner found there was no probable cause to submit this issue to the commission for decision. In fact, counsel arguing the teachers' cause before this court on appeal stated that the teachers' association which intervened represented all tenure teachers, both colored and white, in the Kansas City, Kansas, school system. Furthermore, the individuals named as interveners and officers of the Kansas City, Kansas, Teachers' Association constitute a biracial group.
The trial court heard the appeal in accordance with the authority conferred by statute (K.S.A. 44-1011), and determined the matter on motion for summary judgment filed by the respective parties after discovery proceedings had been completed. The trial court had before it the pleadings, the record on appeal, additional evidence in the form of admissions and answers to interrogatories produced in the district court, together with the briefs of the respective parties.
Findings of fact and conclusions of law incorporated by the trial court in its journal entry of judgment filed on the 17th day of October, 1966, are as follows:
"FINDINGS OF FACT:
"1) Respondents-Appellants filed an appeal from orders made by the Kansas Commission on Civil Rights as of April, 1965, the appeal having been taken on April 28, 1965.
"2) That by its findings and conclusions Kansas Commission on Civil Rights directed Respondent-Appellant to `reassign its teachers and to establish procedures so as to eliminate the condition whereby Negro teachers are being assigned to predominantly Negro schools, and white teachers to predominantly white schools.'
"3) That the evidence presented against Respondents-Appellants was based *317 mainly on charts prepared by Respondent-Appellant Board of Education and conversations and letters; no teacher employed by Respondent-Appellant and no applicant for a teacher's position with Respondent-Appellant testified for Complainant-Appellee; that therefore complainant did not sustain the burden of proof put upon him.
"4) That in September of 1960, Respondent-Appellant was defendant in a case known as the `Downs Case', filed in the United States District Court; that the decision in that case was handed down on July 19, 1963; and that during this period of time no change was made by Respondent-Appellant in its operation in the City of Kansas City, Kansas.
"5) That since July 19, 1963, some teachers have voluntarily accepted assignments to schools in which the predominance of pupils was not of the same race and color as that of the transferring teacher; and this is the situation that has existed to February, the date of the hearing.
"6) That teachers working for Respondent-Appellant are divided into two categories: (a) Tenure teachers, those who have worked three years and more, and (b) probationary teachers, who must teach for three years before being admitted as tenure teachers.
"7) That there is now and has been for many years an association known as the Kansas City, Kansas, Teachers' Association, comprising all tenure teachers, this being the only association recognized by Respondent-Appellant.
"CONCLUSIONS OF LAW:
"1) Chapter 44, Article 10, K.S.A., is the `Kansas Act Against Discrimination.' Chapter 72, Article 54, K.S.A., is `Tenure of Instructors, cities over 120,000.'
"2) That the Attorney General is authorized by Chapter 44, Article 10, K.S.A., to make, sign and file a complaint under the Kansas Act Against Discrimination; that Respondent-Appellant is an `employer' under that act.
"3) That before 1961 school districts were not included within the term `employer'. But in the 1961 Supplement to the General Statutes of Kansas, 1949, the legislature, by legislative enactment, deleted the words `school districts', so that in 1961 Respondent-Appellant did come within Chapter 44, Article 10, K.S.A.
"4) That by virtue of legislative enactment, Respondent-Appellant District was thus subject to Chapter 44, Article 10, K.S.A., in 1961, but that there was pending in the United States District Court an action designated Downs et al. v. The Board of Education of Kansas City, Kansas, et al., which case was not decided until July of 1963 [affirmed in Downs v. Board of Education of Kansas City, 336 F.2d 988 (10th Cir.1964)]; that Respondent-Appellant was not in position to comply with the Kansas law until the judgment in the Downs case.
"5) That beginning in 1963 voluntary acts of teachers resulted in some changes, as suggested by the Kansas Commission on Civil Rights.
"6) That in addition to the laws relating to school districts and educational associations, and with particular reference to teachers, Chapter 72, Articles 5401 to 12, inclusive, are in full force and effect, these articles being the `tenure' section of Kansas laws, and by this teachers attain tenure.
*318 "7) That tenure teachers by contract with Respondent-Appellant District have a contractual right, which in turn becomes a property right so far as said teachers are concerned; that in fulfilling their duties, they are subject to the Respondents-Appellants and to require the Respondents-Appellants to transfer tenure teachers only because of race or color, over his or her objection, is a violation of the contractual and property right of the teacher; that teachers serving their probationary period are not included within the term `tenure teacher' and are subject to K.S.A. Chapter 44, Article 10.
"8) The Court finds that the evidence presented as to the Kansas City, Kansas, Teachers' Association and as to discriminatory practice against Supervisor Lewis does not warrant the Court sustaining the action of the Kansas Commission on Civil Rights on these points.
"9) The motions for summary judgment by the Respondents-Appellants and by the Intervener Kansas City, Kansas, Teachers' Association are sustained insofar as they concern teachers with tenure; the balances are overruled. The motion for summary judgment by Complainant-Appellee is overruled except insofar as it concerns probationary teachers, who are subject to Chapter 44, Article 10; with regard to these teachers, it is sustained.
"10) The costs are to be equally divided between Complainant-Appellee and Respondents-Appellants."
The Attorney General and the NAACP have appealed only from a part of the trial court's decision: (1) That part of the decision finding against them on the first charge of discrimination stated in the complaint; and (2) that part of the decision which held that teachers with tenure cannot be transferred from one school to another to effect integration, over their objection (the issue injected at the pretrial conference before the commission on civil rights).
The first portion of the appeal is from the findings of fact made by the trial court, and the second raises a question of law.
The school board and the intervening teachers have cross-appealed from that portion of the order of the trial court holding that teachers without tenure can be transferred, over their objection or protest, from one school to another to effect integration.
While the Attorney General and the NAACP did not appeal from the decision of the trial court on the second and third charges of discrimination set up in the complaint, some mention should be made of these issues in view of the findings made by the commission on civil rights.
The second charge of discrimination concerned the negro supervisor of elementary schools. His testimony was not for the Attorney General and the NAACP but for the school board. Briefly, his testimony was that he despised discrimination but that he was not discriminated against. He felt he was a trusted supervisory member *319 of the staff of the school board; that his opinions were sought and valued, not only by the superintendent of schools but by other members of the staff as well. He was consulted whether the problems involved negro students or not.
Notwithstanding this uncontroverted testimony, the civil rights commission found the school board guilty of this charge of discrimination without any evidence whatever, and the trial court properly reversed the commission.
The third charge of discrimination in the complaint has already been discussed in connection with the intervention by the teachers. In the face of no evidence whatever to support this charge in the complaint, the commission nevertheless found the school board guilty on this point, which the trial court also properly reversed.
The first issue on appeal is whether the trial court erred in finding that the Attorney General and the NAACP did not sustain the burden of proof on the first charge in the complaint.
The record discloses the school board operates the public school system in Kansas City, Kansas. These schools consist of elementary schools (kindergarten through sixth grade); junior high schools (seventh through ninth grade); senior high schools (tenth through twelfth grade); and a junior college (thirteenth and fourteenth grades). There are thirty elementary schools in the system, four junior high schools, four senior high schools and one junior college. On the date the complaint was filed the system employed more than 840 teachers, all or many of whom could be vitally affected by the decision in this case.
Prior to 1950 the school system was completely segregated. In that year the white and negro junior colleges were combined. In 1954 after the Supreme Court of the United States held that segregated schools were unlawful (Brown v. Board of Education, 347 U.S. 483, 98 L.Ed. 873, 74 S.Ct. 686 [1954]), a program to eliminate segregation was launched by the school board to take effect by a series of steps.
In October, 1960, the NAACP, one of the appellants in this case, filed an action in the United States District Court for the District of Kansas (Downs v. Board of Education of Kansas City, 336 F.2d 988 [10th Cir.1964]) charging the school board of the city of Kansas City with practicing segregation in its school system.
While that action was pending in the federal district court, the school board refrained from taking any action tending to integrate *320 the staff members of its schools. The school board believed that with the pendency of litigation it should not change existing procedure until after a decision was rendered by the court. The Downs case was decided by the United States District Court in July, 1963, and from that time on the Board of Education has taken positive and active steps toward integration of staff members of all schools.
A history of the Kansas City, Kansas, school system concerning its problems with respect to the white and colored population in the city may be found in the Downs case. The memorandum decision of Judge Stanley in the Federal District Court of Kansas in the Downs case was introduced in evidence before the commission on civil rights, and was made a part of the record on appeal to this court.
When the Downs decision was announced in July, 1963, teaching assignments in the Kansas City, Kansas, school system for the year 1963 had already been made. Nevertheless, a number of negro teachers were interviewed in an attempt to obtain teachers who would voluntarily transfer to the Quindaro school, which was then staffed by white teachers. Three were obtained. During that year a vacancy occurred on the staff of the junior college, and it was filled with a negro teacher. A few other changes were also made. The following year, many negro teachers were employed in predominantly white schools, and many white teachers were employed in predominantly negro schools. The board not only hired for any vacancy in the system without regard to race, but it actually tried to employ negro teachers for white schools and vice versa. The big stumbling block was in finding qualified negro teachers.
It was not until July, 1961, that the Kansas act against discrimination became effective as to public school systems. (See, K.S.A. 44-1002, and L. 1961, ch. 248, § 2.)
The instant action was not filed until the 26th day of August, 1963, and it was not filed by or at the instigation of any teacher or teachers.
The appellants rely upon complainant's exhibit No. 11, which is a chart showing a breakdown of the teachers of the school system within Kansas City, Kansas. It shows the total number of teachers in each school, and it also shows how many of the teachers in each school were negro and how many were white. The chart also shows the percentage of negro students in each of those schools. While the exhibit does not disclose the date it purports to represent, the *321 chart does disclose that the teaching staff in the thirty-five different schools listed was either all negro or all white. Dr. Orvin L. Plucker became the superintendent of schools in Kansas City, Kansas, in September, 1962. He testified that the faculties were segregated at that time, and this appeared to him to be the result of an old policy. The record discloses the testimony of two witnesses concerning a conversation with Dr. Plucker July 19, 1963, in which he was asked as superintendent whether negro applicants were considered for jobs only in negro schools, to which the superintendent answered, "I am afraid that's true."
A witness by the name of Mrs. Porteous related that on December 11, 1963, Mr. Fothergill, a member of the school board, stated that if she wished to have a negro teacher for her child, she should move into a negro community. On cross examination as to this point Mrs. Porteous testified:
"Q. Now, don't you recall at that meeting that they told you they were planning some integration steps?
"A. It was explained that they had already hired a teacher in one incident. This was explained by the Superintendent. The Board did not explain that they had any definite plans at that time.
"Q. No, but you knew that Dr. Plucker was speaking, and the Board members were sitting there, and they didn't contradict him, did they, when he said they were making some plans for integration?
"A. They indicated that there were plans for hiring without discrimination. There was no indication that there was anything definite. Insofar as that would bring integration, yes, but there was no overall plan for reassignment.
"Q. I see. So they did tell you that `When we hire teachers from now on, we will hire them without regard and assign them without regard to race or color,' didn't they?
"A. Yes, and I knew that before that.
"Q. You knew that that was their policy before that?
"A. Yes, sir.
"Mr. Edwards told the witness that the primary purpose of the Board of Education was education not integration. The Board indicated that there were plans for hiring without discrimination."
The foregoing evidence must be analyzed in view of the claimed charge of discrimination on point one in the complaint, and the antidiscrimination statute. The complaint charged that the school board discriminated against negroes in "Refusing to hire or consider for employment qualified negro applicants as teachers in schools attended predominantly by white children." In other words, if a qualified negro teacher made an application to the school board to *322 teach in the system, or made an application to be assigned to a predominantly white school and the school board refused to hire or assign him, then a claim for relief might exist. The record presented on appeal in this case discloses there was no such application involved in any of these proceedings. The word "refuse" has a well-defined meaning which is frequently used and not difficult to understand.
When the record is examined there is no evidence that the school board refused either to hire or assign a negro applicant in a predominantly white school. In fact, there is no evidence that any qualified negro applicant requested the school board to employ him, or that any qualified negro applicant or teacher requested the school board to assign him to a predominantly white school. The school board cannot be convicted of refusing an offer unless some showing is made that an offer had been proposed. The trouble in this case is that, although the charge is clear and positive, there is not one scintilla of evidence to support it.
The Attorney General and the NAACP argue that the trial court found a violation of the act on the first ground of the complaint because it granted summary judgment for the Attorney General and the NAACP with regard to all teachers who have probationary status within the school system. It is argued this conclusion is inconsistent with its finding that there was no evidence to support the charge on count one.
The position was taken by the trial court that immediately upon the rendering of the decision in the Downs case, it became necessary for the school board to do something to start integrating the faculties in the public school system of Kansas City, Kansas; that while the Downs case was pending, the Board of Education was under no obligation to comply with the Kansas act against discrimination by reason of the pending litigation against it.
Be that as it may, we regard the conclusion of the trial court to which reference has just been made as raising a question of law which is to be determined by a construction of the act, and not as an inferential finding of fact adverse to its specific finding on the first charge in the complaint.
The Attorney General and the NAACP argue where the complainant makes a showing that virtually all of the employer's negro employees are assigned to one group of schools, and virtually all of its white employees are assigned to a different school, a presumption *323 arises that these employees have been segregated on the basis of race. It is contended the duty of rebutting this presumption should fall upon the respondent, and if he does not do so a violation of the act should be held to have been established. (Citing, Gainer v. School Board of Jefferson County, Ala., 135 F. Supp. 559 [N.D. Ala. 1955], where there was actual discrimination against negro teachers in the payment of salaries.)
The Attorney General and the NAACP also cite Hernandez v. Texas, 347 U.S. 475, 98 L.Ed. 866, 74 S.Ct. 667 (1954); and Norris v. Alabama, 294 U.S. 587, 79 L.Ed. 1074, 55 S.Ct. 579 (1935), where the systematic and arbitrary exclusion of members of the defendant's race from the jury lists solely because of their race or color denied the criminal defendant the equal protection of the laws guaranteed to him by the Fourteenth Amendment. It is argued the same reasoning should be applied where neither the complainant nor any teacher in the Kansas City, Kansas, school system has direct access to the process by which teachers are assigned; that it would be virtually impossible for them to establish by direct evidence any instance in which a teacher was assigned to any particular school on the grounds of race; that they must rely on a pattern giving rise to a presumption of segregation.
Presumptions are discussed under the code of evidence in K.S.A. 60-413 through 60-416. The presumption to which the Attorney General and the NAACP allude is not a conclusive or irrebuttable presumption.
K.S.A. 60-414 in pertinent part provides:
"... (b) if the facts from which the presumption arises have no probative value as evidence of the presumed fact, the presumption does not exist when evidence is introduced which would support a finding of the non-existence of the presumed fact, and the fact which would otherwise be presumed shall be determined from the evidence exactly as if no presumption was or had ever been involved."
Another section of interest is K.S.A. 60-415, which reads:
"If two presumptions arise which are conflicting with each other the judge shall apply the presumption which is founded on the weightier consideration of policy and logic. If there is no such preponderance both presumptions shall be disregarded."
Attention is called to the fact that in the instant case not one single teacher was called to testify that the school board discriminated against him or her in any way. Under the law of Kansas as found in numerous cases (including Donley v. Amerada Petroleum *324 Corp., 152 Kan. 518, 106 P.2d 652; and Blackburn v. Colvin, 191 Kan. 239, 380 P.2d 432) when a party to a case has failed to offer evidence or produce witnesses within his power to produce, an inference arises that the evidence or testimony which would have been produced would have been adverse to that party. This inference in and of itself gives rise to a presumption which conflicts with the presumption asserted by the Attorney General and the NAACP. It cannot reasonably be said which of these presumptions is founded on the weightier consideration of policy and logic. The result is both presumptions must be disregarded. This leaves the complainant without any evidence whatever to support the charge of discrimination on the first point in the complaint.
In fact, there is evidence in the record of a specific nature reflecting that discrimination did not exist. There is evidence in the record that the school board was actively seeking to employ negro teachers. One of the Attorney General's witnesses was Roland Swain, director of placement at Kansas State University. He testified the school board was actually advertising for negro teachers. While this may have been a technical violation of the civil rights act to refer to any person by race, evidence that the school board was advertising for negro teachers can hardly support the charge that it refused to hire them. Dr. Plucker positively testified he never at any time refused to hire a teacher because of race, and that he never refused to assign a teacher to a school of predominantly another race because of race. He also testified that at no time did he ever refuse to employ a qualified negro teacher; that he was on directive to employ negro teachers, and was making an effort to do so the directive being by the Board of Education.
The Attorney General and the NAACP suggest in their brief the reason teachers did not testify that they sought reassignment and were refused was because of the fear that if they did, their positions would be in jeopardy. This can hardly be advanced as a valid reason in view of the Kansas act against discrimination establishing the civil rights commission. If a teacher was discharged because he testified to the truth in a trial, the school board would be squarely within the grips of the commission. This argument is fortified by the fact that when the civil rights commission decided that some teachers would have to be transferred from one school to another, over their objection, in order to effect integration, the *325 teachers, both white and negro, immediately became alarmed and employed counsel of their own and entered the case as interveners, opposing the decision of the commission.
There is federal authority which supports the proposition that while litigation was pending against the school board concerning discrimination, it was under no obligation to change its position. Under this theory the charts and exhibits introduced by the Attorney General disclosed the situation existing only during the pendency of the Downs case in the federal courts. While the Downs case was pending, the antidiscrimination statute became effective. (July 1, 1961.) The authority justifying such inaction on the part of the school board pending litigation is Springfield School Committee v. Barksdale, 348 F.2d 261 (1st Cir.1965), a civil rights case. In the opinion the court said:
"... Plaintiffs have pointed to the fact that defendants ceased, or virtually ceased, assertedly on advice of counsel, their voluntary activities upon the institution of suit. We attach no great significance to this. The application of a stick is hardly an encouragement to egg-laying proclivities, golden or otherwise. We forbear wondering whether plaintiffs could not have expected this, and were more interested in a court order itself than in actual performance. We similarly forbear wondering whether defendants' cessation was entirely motivated by concern that their work to find an educationally feasible way to reduce imbalance would be wasted if the court ordered another route to be taken, or was due in part, at least, to pique. Rather, we recognize, as was said in Taylor v. Board of Education, D.C.S.D.N.Y. 1961, 191 F. Supp. 181, at 197, aff'd 2 Cir., 1961, 294 F.2d 36, cert. den. 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339.
"`Litigation is an unsatisfactory way to resolve issues such as have been presented here. It is costly, time consuming causing further delays in the implementation of constitutional rights and further inflames the emotions of the partisans.' Where no order is called for, we are unprepared to use defendants' inactivity following suit as an excuse for retaining dormant, or anticipatory, jurisdiction...." (pp. 265, 266.)
In Downs a class action was brought by a group of negro children through their parents as next of friends to enjoin the Board of Education of the city of Kansas City, Kansas, from continuing allegedly discriminatory practices. The United States District Court for the District of Kansas, Arthur J. Stanley, Jr., J., rendered a judgment from which the plaintiffs appealed. In the Tenth Circuit Court of Appeals the decision of Judge Stanley, finding that the Board of Education's overall policy met constitutional requirements, with the exception of its policy permitting transfers of students from schools in which they were in racial minority, was upheld on September *326 25, 1964. It was held the policy of the school board had served to effect a racially nondiscriminatory school system even though certain elementary schools were still composed of predominantly negro students, and certain of white students, a junior high school and a senior high school were still virtually entirely negro, boundary lines for junior high schools were changed and assertedly negro schools were staffed by negro personnel, and white schools by only white personnel. (Downs v. Board of Education of Kansas City, supra.)
The Attorney General and the NAACP in their brief say:
"... The equal protection clause of the Fourteenth Amendment, which has similar purposes with regard to public education, has been held to have been violated on precisely the kind of pattern evidence produced here. In Dowell v. School Board of Oklahoma City Public Schools, 219 F. Supp. 427, 442-443 (W.D. Okla. 1963), the court found just such a pattern of faculty segregation to be a violation of the equal protection of the laws as guaranteed to Negro school childen. A similar result was reached in Christmas v. Board of Education of Hartford County, Md., 231 F. Supp. 331, 336-337 (D. Md. 1964). Board of Public Instruction of Duval County, Fla. v. Braxton, 326 F.2d 616, 620-621 (5th Cir.1964), cert. den. 377 U.S. 924, 12 L.Ed.2d 216, 84 S.Ct. 1223."
The above decisions cited are a counterpart to Downs in the rash of federal litigation that followed Brown v. Board of Education, 347 U.S. 483, 98 L.Ed. 873, 74 S.Ct. 686 (1954), which held it unlawful to maintain segregated schools in the public school system. While it is true charts were introduced in the Dowell case to disclose the number of white and negro students in the various schools in the Oklahoma City public school system, there was specific evidence in the record that of the integrated schools the school board had employed no negro principals or negro teachers since the Brown decision, except in schools where the school attendance was overwhelmingly negro students. The federal court concluded from all the evidence the time had come for the Oklahoma City school board to begin the integration of its teaching staff.
In the other two cases there was specific evidence of discrimination on the basis of race in hiring new teachers for desegregated schools.
As to the first charge of discrimination stated in the complaint, we hold the record presented on appeal supports the trial court's finding that the complainant did not sustain the burden of proof put upon him.
The Attorney General and the NAACP contend the trial court erred in holding that teachers with tenure cannot be transferred *327 from one school to another in order to break down an existing pattern of racial segregation in school faculties. Conversely, the school board and the teachers contend the trial court erred in holding that teachers who have not acquired tenure under K.S.A. 72-5401 to 72-5412 can be transferred from the school to which they have been regularly assigned to another school, over their objection, solely for the purpose of making a more complete integration of faculties.
This is the real nub of this lawsuit. The school board has refused to transfer teachers legally employed by it, from one school to another, over their objection, to effect integration. The civil rights commission ruled that the school board must do so. On appeal the trial court held the school board was not required to do so as far as teachers with tenure are concerned; but that it was required to transfer teachers who had not yet attained tenure. The reasons advanced by the school board for its refusal to make such transfers are as follows:
(1) To do so would be a violation of the civil rights act because to require a teacher to transfer from one school to another on the basis of race is the rankest kind of discrimination.
(2) A more practical reason is because if the school board should attempt to do so, it would lose from forty to fifty teachers. Teachers are not so easily come by that the school board can afford to take any step which would alienate such a large number of its professional staff.
(3) Even teachers who felt they could not afford to leave the school system would be dissatisfied and troubled; and it is well recognized in educational circles that teachers who are dissatisfied and troubled do not function well, and do not achieve the best results with the education of children. It is the primary function of teachers to educate children.
It should be emphasized the controversy is over teachers who are satisfied with their current assignments and do not want to teach elsewhere, particularly under circumstances which are different. It does not concern teachers who are willing to take part in the integration of the school system because as to those teachers, when the matter was heard in the district court, they were already teaching in integrated positions. The school board is not willing to transfer teachers from one school to another over their objection, and the Attorney General and the NAACP will accept nothing less.
*328 The federal courts have held that the Fourteenth Amendment to the United States Constitution does not command integration of races in public schools.
After the original opinion in Brown v. Board of Education, supra, the court set the case for further argument on the question of how its decision should be implemented. Thereafter, a three-judge district court was designated in Kansas to consider the Kansas aspects of the instructions in the Brown case. The district court in Brown v. Board of Education of Topeka, 139 F. Supp. 468 (D. Kans. 1965), stated:
"... Desegregation does not mean that there must be intermingling of the races in all school districts. It means only that they may not be prevented from intermingling or going to school together because of race or color." (p. 470.)
The foregoing language was approved in Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir.1963). The court there also said:
"We approve also of the statement in the District Court's opinion, `Nevertheless, I have seen nothing in the many cases dealing with the segregation problem which leads me to believe that the law requires that a school system developed on the neighborhood school plan, honestly and conscientiously constructed with no intention or purpose to segregate the races, must be destroyed or abandoned because the resulting effect is to have a racial imbalance in certain schools where the district is populated almost entirely by Negroes or whites....'" (p. 213.)
A recent case in the United States Court of Appeals for the Sixth Circuit is Deal v. Cincinnati Board of Education, 369 F.2d 55 (1966). The court there said:
"Although boards of education have no constitutional obligation to relieve against racial imbalance which they did not cause or create, it has been held that it is not unconstitutional for them to consider racial factors and take steps to relieve racial imbalance if in their sound judgment such action is the best method of avoiding educational harm. Balaban v. Rubin, 14 N.Y.2d 193, 250 N.Y.S.2d 281, 199 N.E.2d 375 (1964), cert. denied 379 U.S. 881, 85 S.Ct. 148, 13 L.Ed.2d 87 (1964); Morean v. Board of Education of Montclair, 42 N.J. 237, 200 A.2d 97 (1964)." (p. 61.)
The federal district judge for the Eastern District of Tennessee was concerned with a revised plan for the complete desegregation of the city schools in Knoxville, Tennessee, in Goss v. Bd. of Ed., City of Knoxville, Tenn., (1965) 10 Race Rel. L. Rep. 1642 [Vanderbilt *329 University School of Law]. The trial court after the pretrial conference ordered, among other things:
"... Without limiting the generality and effectiveness of the foregoing, all teachers, principals and other school personnel shall be employed by defendants and assigned or re-assigned to schools on the basis of educational need and other academic considerations, and without regard to race or color or the persons to be assigned, and without regard to the race or color of the children attending the particular school or class within a school to which the person is to be assigned. No transfer or re-transfer of a teacher, principal or other school personnel may be granted or required for considerations based upon race and color and no assignment or re-assignment of such teacher, principal or other school personnel may be made for considerations based upon race or color.
"All tenure and seniority rights are to be observed and the defendants will not utilize or attempt to utilize the provisions of the State Teacher Tenure Law or any other law, custom or regulation conferring discretion upon them in the employment and discharge of teachers or the abolition of teaching positions in such manner as to discriminate either directly or indirectly on account of race or color in the employment, discharge, re-employment, assignment, or reassignment of teachers, principals or other school personnel in the Knoxville City School System." (p. 1643.)
Another case holding that a person may not be compelled to transfer from one school to another because of his race or color is Brown v. County School Board of Frederick County, Va., 245 F. Supp. 549 (W.D. Va. 1965). While that case involves students in the public school system, the issue is the same as the one presently before the court. There the court said:
"It is well established in this Circuit and elsewhere that a freedom of choice plan, in which the school authorities allow the student, or his parents, to freely choose the school which he is to attend, is `an acceptable device for achieving a legal desegregation of schools.' Bradley v. School Board, 345 F.2d 310, 318-319 (4th Cir.1965), and cases cited therein, n. 17. Such a view is the logical result of the accepted principle that the Fourteenth Amendment does not outlaw voluntary separation of the races, but only discrimination which forces separation. Bradley v. School Board, 317 F.2d 429, 438 (4th Cir.1963); Jeffers v. Whitley, 309 F.2d 621, 629 (4th Cir.1963); Briggs v. Elliott, 132 F. Supp. 776, 777 (E.D.S.C. 1955) (three-judge court on remand)...." (p. 555.) (Emphasis added.)
While the Attorney General and the NAACP throughout their brief speak of the teachers in the Kansas City, Kansas, school system as being segregated on the basis of race, it appears from the issue injected at the pretrial conference that what they are actually concerned with is the compulsory integration of teaching staff in the *330 various schools. They argue the present practices of the school board are inconsistent with the Kansas act against discrimination.
The Attorney General and the NAACP refer to the purposes of the antidiscrimination statute set forth in the first section of the act, and emphasize that the opportunity to secure and to hold employment is a civil right of every citizen; and that it is to protect these rights that the act was passed and the commission established. They argue K.S.A. 44-1006 enjoins the court to give the act a liberal construction for the accomplishment of these purposes. Certainly, they argue, these purposes will be furthered by a construction of the act which prohibits discrimination against an entire class as well as against individual members of a class. From this point they conclude the act requires integration of the teaching staff of the various schools in the public school system. They then jump to their ultimate conclusion that a teacher can be transferred from the school to which he has been regularly assigned to another school, over his objection, solely for the purpose of making a more complete integration of the teaching staff.
The declaration of the state policy and purpose of the Kansas act against discrimination is set out in the first section. (K.S.A. 44-1001.) It states, among other things:
"... The practice or policy of discrimination against individuals in relation to employment or in relation to full and equal accommodatons in hotels, motels, cabin camps and restaurants by reason of their race, relations, color, national origin or ancestry is a matter of concern to the state, that such discrimination threatens not only the rights and privileges of the inhabitants of the state of Kansas but menaces the institutions and foundations of a free democratic state. It is hereby declared to be the policy of the state of Kansas to eliminate discrimination in all employment relations and to eliminate and prevent discrimination, segregation, or separation in hotels, motels, cabin camps and restaurants." (Emphasis added.)
The complaint in the instant case charged the school board with unlawful employment practices. The second section of the act (K.S.A. 44-1002) defines unlawful employment practices as:
"(g) The term `unlawful employment practices' includes only those unlawful practices and acts specified in section 44-1009 of the General Statutes Supplement of 1961, and includes segregate or separate."
K.S.A. 44-1009 in pertinent part provides:
"It shall be an unlawful employment practice:
"(a) For an employer, because of the race, religion, color, national origin or ancestry of any individual to refuse to hire or employ, or to bar or to discharge *331 from employment such individual or to otherwise discriminate against such individual in compensation or in terms, conditions, or privileges of employment." (Emphasis added.)
The construction of the language in the Kansas act against discrimination, as is true with the construction of the language of any statute, is a matter of law and not a matter of fact. (State, ex rel., v. Mills, 171 Kan. 397, 233 P.2d 720.)
It should be emphasized that the foregoing act prohibits discrimination against any individual, and it is not confined to members of any minority group. Thus, discrimination can be against white individuals, as well as against negro individuals, or others.
Would it be proper for the school board under the foregoing act to say to a teacher because you are white you must be transferred to a school other than the one where you are now teaching in order that the faculty may be better integrated?
It is obvious this would be just as much a violation of the anti-discrimination act as for the school board to say to a negro teacher because you are a negro you cannot teach in a certain school.
It is abundantly clear the Kansas act against discrimination bars discrimination only, and is not concerned with the integration of the races.
The word "discriminate" is defined in Webster's Third New International Dictionary as:
"to ... distinguish between ... to make a difference in treatment or favor on a class or categorical basis in disregard of individual merit."
The word has been judicially defined in Wimberly v. Ga. So. & Fla. Ry. Co., 5 Ga. App. 263, 63 S.E. 29 (1908), as "treating one differently from another." (p. 266.)
The foregoing definitions do not indicate that the word "discriminate" can be used synonymously with the word "integrate," which has an entirely different meaning. "Integrate" has been defined as "to unite with something else." (Webster's Third New International Dictionary.)
It can therefore be said if the school board does not discriminate against any individual in refusing to hire, in refusing to employ, in compensation, or in terms, conditions or privileges of employment, it has satisfied the admonition of the Kansas act against discrimination. In other words, it has no duty or obligation under this act to take any affirmative step to effect integration.
*332 The foregoing is based upon the complaint filed herein and the assertion of the Attorney General and the NAACP that the present employment practices of the school board are inconsistent with the Kansas act against discrimination. (But see, United States v. Jefferson County Board of Education, 372 F.2d 836 [5th Cir. Dec. 29, 1966], construing the two Brown decisions [Brown v. Board of Education, 347 U.S. 483, 98 L.Ed. 873, 74 S.Ct. 686 (1954); and Brown v. Board of Education, 349 U.S. 294, 99 L.Ed. 1083, 75 S.Ct. 753 (1955)], and re-examining school desegregation standards in the light of the Civil Rights Act of 1964 and the Guidelines of the United States Office of Education, Department of Health, Education, and Welfare.)
The Attorney General and the NAACP argue in their brief as follows:
"The provisions of Sec. 44-1002(g) and Sec. 44-1009(a) (1), being parts of the same act, should be read together. Harris v. Shanahan, 192 Kan. 629, 635, 390 P.2d 772 (1964). When this is done, it becomes clear that segregation or separation of employees on racial grounds constitutes an unlawful employment practice. Racial segregation or separation of employees is the simplest and most fundamental kind of discrimination against individual employees in the terms, conditions and privileges of their employment. It is for this reason that the legislature, while aiming the provisions of K.S.A. 44-1009(a) (1) at the discrimination against any individual, went on to state in K.S.A. 44-1002(g) that segregation and separation are included within the practices outlawed by K.S.A. 44-1009."
Aside from the ambiguity of the expression "and includes segregate or separate" added at the end of subparagraph (g) in 44-1002, supra, when the statute is analyzed in the face of the declared state policy and purpose of the act as expressed in 44-1001, supra, in view of the issue here to be determined, we cannot say the act compels the school board to transfer a teacher in the public school system, over his objection, because of his race, to a school other than the one to which he has been regularly assigned in order that the faculty may be better integrated.
Under the Kansas act against discrimination the school board has no right to compel such transfer, and the civil rights commission has no authority to attempt to compel such transfer.
When the teachers intervened and the district court accepted the case for determination, the process of integrating the teaching staff of the various schools in Kansas City, Kansas, was voluntarily under way.
*333 While the school board may have no trouble assigning new teachers to the various schools in a voluntary plan aimed to encourage integration, the problem, as indicated by the intervening teachers, is whether or not teachers who are presently teaching in the system and have obtained tenure can be involuntarily removed from their present teaching position and transferred to another school where the faculty makeup is predominantly of a race other than their own. Both colored and white teachers would be affected.
The trial court seized upon the distinction between probationary teachers (K.S.A. 72-5403) and teachers who have obtained tenure (K.S.A. 72-5404) in construing the Kansas act against discrimination. We fail to see how the construction of the antidiscrimination act can be affected by the tenure status of a teacher under the act providing for the tenure of instructors in cities having a population of more than 120,000 inhabitants. (K.S.A. 72-5401 to 72-5409, inclusive.)
Furthermore, under the state of the record we fail to see a need to consider the property rights of teachers, if any, under their teaching contract with the school board. On the facts in this case, as indicated by the record, the contract which the various teachers have with the school board specifies only that they teach in the Kansas City, Kansas, school system. The teachers' contract does not specify a particular school. Thus, insofar as the teachers' contracts are concerned, the school board could assign a teacher to teach anywhere within its school system. But it may not be wise administration or professionally efficient to transfer a teacher to another school against that teacher's wishes. Dr. Plucker testified concerning the transfer of teachers that he confers at length with teachers and gives weight to their thoughts and opinions in regard to a transfer.
When the Attorney General filed the complaint in the instant case, he set forth three specific unlawful employment practices in which the school board was alleged to have discriminated against persons of the negro race in violation of the Kansas act against discrimination. On each of these charges he failed to sustain the burden of proof cast upon him to show a violation of the act. The issue injected at the pretrial conference presented a question of law to the trial court on the construction of the act, which it erroneously determined.
We hold the Kansas act against discrimination bars discrimination only. It does not purport to be concerned with the integration of *334 the races as such on the teaching staff of a public school system or anywhere else. Therefore, the school board cannot be compelled under the Kansas act against discrimination to transfer a teacher in the public school system, over his objection, because of his race, to a school other than the one to which he has been regularly assigned in order that the faculty may be better integrated.
For the reasons heretofore assigned, the order of the lower court is affirmed in all respects, except that portion thereof sustaining the complainant's motion for summary judgment as it concerns probationary teachers, which is reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1621653/ | 733 So.2d 1188 (1999)
Henry KENNEDY
v.
WAL-MART STORES, INC.
No. 98-C-1939.
Supreme Court of Louisiana.
April 13, 1999.
*1189 Vicki C. Warner, Nancy N. Butcher, Richard G. Barham, Barham & Warner, Shreveport, for Applicant.
Curtis R. Harrington, Natchitoches, for Respondent.
PER CURIAM.[*]
We granted certiorari in this case to determine whether the lower courts erred in finding plaintiff met his burden of proof under La. R.S. 9:2800.6. After reviewing the record, we conclude the plaintiff failed to meet his burden of proof under the statute, and accordingly, we reverse the judgments below.
FACTS AND PROCEDURAL HISTORY
On the evening of September 15, 1994, plaintiff, Henry Kennedy, was shopping in a Wal-Mart store located in Natchitoches, Louisiana. Plaintiff selected two cans of peanuts from a display near the back of the store, then proceeded toward the cash registers, located in the front of the store, to pay for his purchase. When plaintiff was within three or four feet of the check-out lanes, he allegedly slipped in what appeared to be a puddle of water and fell onto his right shoulder.
Plaintiff subsequently filed suit against Wal-Mart Stores, Inc. ("Wal-Mart"). At a trial before the bench, plaintiff testified that it was raining on the evening of the accident. Although he had not seen any water on the floor before he fell, plaintiff stated that after he got to his feet, he discovered the right leg of his pants was "soaking wet" with a non-sticky substance which he presumed to be water. Plaintiff testified that the checkout area was within view of a customer service podium, and plaintiff "thought" one of the cashiers should have been able to see whatever was on the floor before he fell.
The only other witness called at trial was Schuyler Wayne Davis, Sr., a manager of the Natchitoches Wal-Mart. Mr. Davis testified as to Wal-Mart's inspection procedures, including routine sweeping and mopping of the store. He stated that a maintenance crew conducts random spot checks at 11 a.m., 2 p.m., and 7 p.m., while all associates look for potential safety hazards during once-hourly "zone defense" checks.
At the conclusion of trial, the trial court rendered judgment in favor of plaintiff and against Wal-Mart, finding that Wal-Mart had constructive notice of the puddle.[1]*1190 The court awarded plaintiff $23,000 in general damages, plus documented special damages.
Wal-Mart appealed, contending that the trial court committed legal error in finding plaintiff met his burden of proof under La. R.S. 9:2800.6, as interpreted in White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081. In support, it argued plaintiff failed to prove that the condition "existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care." La. R.S. 9:2800.6(C)(1).
The court of appeal affirmed.[2] In its opinion, the court of appeal found that, under the facts of the instant case, the analysis set forth in White "will not lead to a different conclusion than that found by the trial court."
Upon Wal-Mart's application, we granted certiorari to consider the correctness of this ruling.[3]
DISCUSSION
In a slip and fall case, the plaintiff's burden of proof is set forth in La. R.S. 9:2800.6. Although the statute was later amended, at the time of the instant accident, it provided in relevant part as follows:
B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, and in addition to all other elements of his cause of action, that:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable;
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence; and
(3) The merchant failed to exercise reasonable care.
C. Definitions:
(1) "Constructive notice" means the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.
In White, we found that subsection (B)(2) of the statute clearly and unambiguously requires proof by plaintiff that the merchant either created the condition causing the damage or, prior to the occurrence, had actual or constructive notice of the condition. Moreover, we noted that in subsection (C)(1) of the statute, the legislature has set forth a clear and unambiguous definition of the term "constructive notice":
There is a temporal element included: "such a period of time ..." The statute does not allow for the inference of constructive notice absent some showing of this temporal element. The claimant must make a positive showing of the existence of the condition prior to the fall. A defendant merchant does not have to make a positive showing of the absence of the existence of the condition prior to the fall. Notwithstanding that such would require proving a negative, the statute simply does not provide for a shifting of the burden.
Though there is no bright line time period, a claimant must show that "the condition existed for such a period of time..." Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite showing of *1191 some time period. A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall. This is not an impossible burden.
White, 97-0393 at pp. 4-5, 699 So.2d at 1084-85 [emphasis added; footnote omitted].
In the instant case, plaintiff produced evidence showing that the general area where he fell was within view of a customer service podium and that it was raining on the evening in question. However, plaintiff presented absolutely no evidence as to the length of time the puddle was on the floor before his accident. Therefore, plaintiff did not carry his burden of proving Wal-Mart's constructive knowledge of the condition. Because plaintiff failed to prove an essential element of his cause of action under La. R.S. 9:2800.6, the trial court committed legal error in allowing plaintiff to recover, and the court of appeal erred in affirming this judgment. Accordingly, we must reverse.
DECREE
For the foregoing reasons, the judgment of the court of appeal affirming the judgment of the trial court is reversed. Judgment is hereby rendered in favor of defendant, Wal-Mart Stores, Inc., dismissing the suit of plaintiff, Henry Kennedy, with prejudice. All costs in this court are assessed against plaintiff.
JOHNSON, J., dissents.
NOTES
[*] Knoll, J., not on panel. Rule IV, Part II, § 3.
[1] In the trial court's reasons for judgment, it stated:
In the case at bar this plaintiff has proved constructive, if not actual, notice on the part of the defendant. When Mr. Kennedy got up from the floor his clothing was wet thus indicating more than a small spot of dampness. It was also raining that day. Since the customer service manager and the cashier were within a few feet of where Mr. Kennedy fell and it was raining that day, they knew or should have known that wet footed customers were likely to create a hazard. They certainly were in a better position to know than Mr. Kennedy, and they clearly had a good close-up look at the area where he fell before he arrived there.... [T]he court accepts the facts as testified to by the plaintiff's witnesses and finds that the plaintiff has made a prima facie case of constructive notice.
[2] Kennedy v. Wal-Mart Stores, Inc., 98-270 (La.App. 3d Cir.6/17/98), 715 So.2d 593.
[3] Kennedy v. Wal-Mart Stores, Inc., 98-1939 (La.11/6/98), 726 So.2d 913. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1671846/ | 707 So.2d 1308 (1998)
Jason E. HARKINS, Plaintiff-Appellant,
v.
Father Gilbert GAUTHE, et al., Defendants-Appellees.
No. 97-912.
Court of Appeal of Louisiana, Third Circuit.
February 4, 1998.
Writ Denied April 24, 1998.
James Paul Lambert, James Lowell Landry, Jr., Lafayette, for Jason E. Harkins.
Franklin White Dawkins, Lafayette, for Father Gilbert Gauthe, et al.
Bob F. Wright, Lafayette, Donald Edward McKay, Jr., New Orleans, for the Society of the Roman Catholic Church, etc.
John Hatch Hughes, Lafayette, for Houston General Ins. Co.
C. Michael Pfister, Jr., Metairie, for Roman Catholic Church of the Diocese of Lafayette.
Before YELVERTON, WOODARD and AMY, JJ.
AMY, Judge.
The plaintiff, Jason E. Harkins, filed this lawsuit alleging that, as a child, he was sexually molested by a priest. Named as defendants *1309 in the action were Father Gilbert Gauthe, The Society of the Roman Catholic Church of the Diocese of Lafayette, Inc., The Roman Catholic Church, Preferred Risk Mutual Insurance Co., Pacific Employers Insurance Company, and Houston General Insurance Company. All the defendants, except Gauthe, filed a Motion for Summary Judgment. Following a hearing on the motion, at which time the vicarious liability theory was dismissed, the trial court granted the Motion for Summary Judgment on the remaining negligence claim. The plaintiff now appeals. For the following reasons, we reverse the summary judgment and remand for further proceedings.
DISCUSSION OF THE RECORD
The plaintiff in this matter, Jason E. Harkins, alleges that, as a child, he was sexually molested by Father Gilbert Gauthe, a priest of the Roman Catholic Church. He maintains that the single incidence of contact took place in 1978[1] at a motor-cross event held in Eunice, Louisiana, when he was eight years of age. Harkins alleges that he attended the event as the guest of friends and, during the course of the weekend, met Gauthe who was also attending the motor-cross races. He states that, although not a member of Gauthe's parish, he was a Catholic school boy at the time, had recently taken his first Catholic communion, and was a member of the Diocese of Lafayette. Harkins also maintains that he was introduced to Gauthe and was aware of his status as a priest.
Harkins alleges that the sexual contact took place when the family, with whom he had traveled to the event, left him alone with Gauthe when they went to register for the event. He asserts that, at that time, he and Gauthe went for a walk on a nearby trail. While on this walk, Harkins alleges, he and Gauthe sat down on a bridge and began talking, in particular about his parents' divorce. Harkins maintains that while sitting on this bridge, Gauthe began touching him, both on the chest and the groin, and, ultimately, sexually molested him. Harkins states that, following this contact, Gauthe told him that God would punish him if he ever told anyone of the incident. Because of this instruction, which he states he believed at the time, Harkins argues that he suppressed the memories of the event.[2] Gauthe denies the plaintiff's allegations.
The record indicates that, following the alleged retrieval of these memories in 1992, the plaintiff filed a petition against Father Gilbert Gauthe and both The Society of the Roman Catholic Church of the Diocese of Lafayette, Inc. and The Roman Catholic Church. Additionally, Preferred Risk Mutual Insurance Co., Pacific Employers Insurance Co.,[3] and Houston General Insurance Co. (hereinafter referred to collectively as "Insurers"), were joined as the above-named defendants' insurers. In that petition, Harkins alleged that the Church knew or should have known of Gauthe's tendencies, but failed to take appropriate measures. Further, he *1310 argued that the Church was vicariously liable to him under the doctrine of respondeat superior[4] as well as by their own negligent retention/supervision.
Both the Church and Insurers filed a Motion for Summary Judgment alleging no genuine issue of material fact. Following a hearing on April 7, 1997, the trial court entered the summary judgment in favor of the defendants. The plaintiff now appeals asserting the following assignment of error:
The trial judge erred in concluding that, as a matter of law, the Church and its supervisory employees owed no duty to plaintiff with respect to acts committed by Gauthe, which were outside of the course and scope of his employment.
LAW
The plaintiff argues that the Diocese and the Church had knowledge of Gilbert Gauthe's pedophilic tendencies and, because of the unique position of a priest in the community, had a duty to prevent Gauthe from perpetrating sexual crimes against children. In particular, the plaintiff maintains that this duty certainly extended to him as he was a Catholic child and, therefore, trusting of the priest in question and, ultimately, more susceptible to the type of injury alleged in the present matter. He argues that genuine issues of material fact exist as to the extent of the influence of Gauthe's position in the alleged incident, the nature of priestly counseling performed by Gauthe on the day of the incident, the extent of the knowledge of the Church's officials, and the reasonableness of the Church's response to any such knowledge.
La.Code Civ.P. art. 966 contains the provisions for summary judgment. The newly amended version of this article provides, in part, as follows:
A. (1) The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff's motion may be made at any time after the answer has been filed. The defendant's motion may be made at any time.
(2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.
B. The motion for summary judgment and supporting affidavits shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
This recent amendment to the summary judgment provision has changed the traditional rule that summary judgments are not favored and that documents submitted by the *1311 movant were to be strictly scrutinized while the indulgent treatment was given to those submitted by the party in opposition. Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96); 685 So.2d 691, writ denied, 97-0281 (La.3/14/97); 690 So.2d 41. The provision no longer favors a trial on the merits and now requires that the supporting documents submitted by each of the parties receive equal scrutiny. Id.
With regard to "material fact" as used in the above provision, the supreme court has explained this key term as follows:
A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Penalber v. Blount, 550 So.2d 577, 583 (La.1989). "[F]acts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute." South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3d Cir.1991), writs denied, 596 So.2d 211 (La. 1992). Simply put, a "material" fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Sassone v. Elder, 626 So.2d 345, 352 (La.1993); Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Co., 427 So.2d 1152, 1153-54 (La.1983) (collecting cases); McCoy v. Physicians & Surgeons Hospital, Inc., 452 So.2d 308, 310 (La.App. 2d Cir.), writ denied, 457 So.2d 1194 (La.1984) (noting that "[s]ummary judgment may not be used as a substitute for trial").
Smith v. Our Lady of the Lake Hosp., 93-2512, p. 27 (La.7/5/94); 639 So.2d 730, 751.
As for the standard of review applied to this matter and whether issues of material facts exist, "[a]ppellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate." Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94); 634 So.2d 1180, 1183.
In order to succeed under a negligence theory of recovery, a plaintiff is required to prove the following by a preponderance of the evidence: (1) the existence of a duty; (2) the breach of that duty; (3) the defendant's conduct was a cause-in-fact of the plaintiff's injuries; (4) the conduct was a legal cause of the injuries; and (5) actual damages which resulted from the conduct. Roberts v. Benoit, 605 So.2d 1032 (La.1991)(on rehearing).
In the present case, the trial judge found that the facts presented did not indicate that the defendants owed a duty to the plaintiff. After listening to the arguments of the parties' counsel, the trial judge explained his ruling as follows:
I think in this case that Mr. Lambert[5] suggests when is a priest not a priest. Obviously, a priest is in a unique situation in our society as minsters [sic] are, but no more unique than a police officer is in our society. And I beg to differ with you, they're a little bit different than the Orkin man[6]than maybe a public official is. And the issue in this case, as it is in many cases which are on the books, is you still have to show a duty to a particular plaintiff, that duty must still exist when applying a theory of liability, whether it be negligent retention, whether it be failure to supervise. Even if those theories exist, you still must owe a duty to a particular individual.
And, Mr. Lambert, I have to differ with you. I think a priest is not a priest 24 hours a day. I think a priest is a priest 24 *1312 hours a day, just as a law enforcement individual is a law enforcement person 24 hours a day, as a lawyer is a lawyer 24 hours a day, as a judge is a judge 24 hours a day. But the difference is thethose individual's employers are only responsible for him during certain portions of a day. And I think in this situation I have a problem in extending a duty to an individual at a motor-cross event while Father Gauthe is not acting as a priest, is not on [sic] his course and scope of his employment, which we all have agreed to, where he has not held himself out by way of either wearing his uniform or by coming forth and saying, "I will counsel all wayward boys at this motor-cross event," or something to that tune.
And I think the case is totally distinguishable from the Orkin case, in that Orkin went to a particular customer/client's home, went in uniform to that client's home, as I remember the facts, and I may be wrong on this, but I think, came back in uniform when he committed that crime. Even if that's not the factual scenario, it shouldn't matter because he went the first time in uniform.
I don't believe in this situation that the events which transpired are ones that the duty risk analysis set forth by our courts extends this far. And so with regards to that, I'm going to grant the motion by the defendants for summary judgment in this matter.
We initially note that the trial judge couched his findings in terms of a lack of duty and, further, correctly stated that a duty must be owed to the "particular plaintiff." Louisiana courts have recognized that "an actor has no duty to control the conduct of a third person so as to prevent him from causing physical harm to another unless a special relationship exists between the actor and the other so as to afford the other a right to protection."[7]Miller v. Everett, 576 So.2d 1162, 1164 (La. App. 3 Cir.1991)[8]quoting L.P. v. Oubre, 547 So.2d 1320, 1324 (La.App. 5 Cir.), writ denied, 550 So.2d 634 (La.1989). See also Lambert v. Word of Faith Ministries, 95-1436 (La.App. 3 Cir. 4/17/96); 673 So.2d 1150, writ denied, 96-1001 (La.5/31/96); 673 So.2d 1037.[9] However, while the trial judge found that the evidence presented precludes a finding of duty to this particular plaintiff, we conclude that the factual basis offered by the parties raises genuine issues concerning whether such a relationship existed, whether the Church owed an attendant duty, and whether the remaining factors necessary for a recovery in negligence can be proven. It is for this reason that we reverse the trial court's determination.
"The question of whether a duty exists in a particular set of circumstances is a question of law for the court to decide."
*1313 Mathieu v. Imperial Toy Corp., 94-0952, p. 5 (La.11/30/94); 646 So.2d 318, 322. See Mundy v. Dep't. of Health & Human Res., 620 So.2d 811 (La.1993). However, the existence of a duty cannot be determined in the absence of a case's factual background and knowledge of what the surrounding circumstances may be. We are mindful that the elements of a negligence or duty-risk analysis are necessarily flexible and are not always clearly legal or factual because of these considerations. Professors Maraist and Galligan have explained this fluid nature of the analysis as follows:
Duty generally is considered a question of law for the judge, but legal causation is a mixed question of law and fact that the jury decides if reasonable minds could differ. Thus the place in the negligence formula at which the specific risk inquiry is made may control whether the decision is always made by the judge or is sometimes by a jury. It is not surprising to find a lack of uniformity among jurisdictions, or, indeed, within jurisdictions, as to whether the specific risk inquiry is one of duty (for the court) or one of breach or legal cause (for the jury).
FRANK L. MARAIST & THOMAS C. GALLIGAN, LOUISIANA TORT LAW § 5-2, at 102 (1996). In the present case, we conclude that the circumstances surrounding the alleged negligent conduct are not, at this time, such that they render summary judgment proper.
The plaintiffs do not contend that Gauthe was attending the motor-cross event in his capacity as a priest representing the church but that, although he was attending the races on his personal time, his priestly status was a factor in the alleged incident. The defendants submitted an affidavit by Monsignor H.A. Larroque, a former Vicar General of the Lafayette Diocese of the Roman Catholic Church, who testified that he was familiar with "canon law as it pertains to the priesthood." He stated that priests are not on duty twenty-four hours a day nor are they on duty seven days a week. Rather, priests have personal days off in which they are not required to report to the Diocese, perform priestly functions, nor wear clerical dress. Larroque affied that "[i]f a priest counsels a person with respect to God in accordance with Church doctrine on his day off and while on his own initiative, he does so as an individual priest, and not on behalf of the Diocese."
Additionally, Gauthe indicated in his deposition testimony that, as a priest, he received one day per week and vacation time for his personal hobbies. Although Gauthe denies the allegations made against him in the present matter, he acknowledged that he attended motor-cross events. Gauthe stated that the events were "strictly for [his] own recreation and competition." He further indicated that he wore civilian clothing rather than priestly attire to the races and that the only time he could recall wearing a clerical collar to an event was for a memorial service held after two participants had been killed. As for priestly functions at the motor-cross events, Gauthe stated that he had said Mass at one race when asked to do so, but that he had never heard confession while at the event. As for any counseling performed at the races, Gauthe explained as follows when questioned at his deposition:
Q ... Did you ever counsel people in a priestly fashion at the races or race sites?
A Gee, that's hard to answer. You know, if someone was having a problem and they wanted to talk about it, I would sit and talk. But it was not the reason that I went or looking for that opportunity.
Q Okay. That's an interesting point. As a priest, while you had days off and vacation days and things like that, were you ever not a priest
A I don't know what that means.
Q at those motocross races? I understand that you can be off duty. But were you ever not a priest any more?
A I hear what you're saying.
No sir. You know, I don't want to downplay my responsibility in all this. But with the exception of this pedophile problem that I have, I did pretty good work. And I really did try to project an image that would be in keeping with the position.
Q So if someone had sought your counseling at a motocross event, you would have been open to that?
A Probably so. But I have done the same thing in jail, too. I mean, you know, people know who you are.
(Emphasis added). This priestly status, which is conferred by the church, and its *1314 influence in this particular matter along with other factual issues, could possibly support various elements necessary to succeed in the present case, in particular legal cause. We are not here confronted with a situation where a priest's status and the public's knowledge thereof are not important to the alleged damage. See Weatherford v. Commercial Union Ins. Co., 93-0841 (La.App. 1 Cir. 5/20/94); 637 So.2d 1208, writ granted, 94-1793 (La.11/4/94); 644 So.2d 1062, affirmed on other grounds, 94-1793, 94-1793 (La.2/20/95); 650 So.2d 763.[10] Rather, we are confronted by a situation wherein that status is alleged to be critical to the alleged wrongdoing and the issue of liability.
Although Harkins testified that he was a Catholic school boy and that he had just received his first communion, he stated that he had not met Gauthe prior to the weekend of the alleged incident nor had he ever attended a church function involving Gauthe. He stated that his only contact with Gauthe was when they were introduced by the family with whom he spent the weekend at the race. There is no indication in the record that he placed any greater trust in Gauthe because of his status, but, he did state that, because he was a priest, he believed Gauthe's threats that God would punish him if he told of the molestation. The following exchange regarding Harkins' belief in the threat and Gauthe's status is contained in the record:
Q Do you believe that?
A Because they introduced me?
Q What?
A Because I knew he was Father Gauthe because they said, this is Father Gauthe, so I believed him since he was a Father.
It is the reliance or trust placed on this church-given status which is of concern here and which could give rise to the factors integral to the claim of negligent supervision or negligent retention.
The plaintiff maintains, in brief, that at the time he and Gauthe went for a walk and the alleged molestation occurred, Gauthe was counseling him regarding his parents' divorce. While the plaintiff's deposition testimony does not indicate with enough specificity for a final determination whether the conversation rose to the level of priestly counseling, this material fact is put at issue.
Neither do we find conclusive Monsignor Larroque's affidavit wherein he stated that a priest is given time away from the church and that any priestly function he performs on that time off is not on behalf of the church. Rather, it is possible that a church has responsibility because of the status which it has conferred; a status which could affect any type of priestly function performed whether on the church's behalf or the priest's behalf.
Additionally, we find other factual issues that may not be exclusively relevant to the duty element, but which could also be important for determinations regarding breach of duty and legal causation. In particular, we note issues related to whether the defendants had prior knowledge of Gauthe's previous questionable conduct with minors. Although Gauthe testified that he was not removed from his position and stripped of all priestly duties until 1983, Monsignor Larroque's deposition testimony indicates that he had knowledge as early as 1976 or 1977 that "some parents had complained because ... [Gauthe] kissed the children awake in the morning." Larroque stated that he informed Bishop Frey of these reports and that the Bishop recommended treatment for Gauthe. Bishop Frey's deposition confirms that he was told of the kissing incident as well as an incident involving a newspaper boy in Broussard, Louisiana.[11] However, the timing of *1315 this knowledge is unclear from the portions of the depositions before us. We conclude that the quality of the Church's knowledge and the timing of that knowledge are important considerations to be weighed by the trier of fact in deciding the duty as well as the breach of duty elements.[12]
Although summary judgments are now favored, the newly amended La.Code Civ.P. art. 966(C)(2) provides that the burden of proof remains with the movant to "point out to the court that there is an absence of actual support for one or more elements essential to the adverse party's claim, action, or defense." Our review of the record indicates that the defendants have not met this burden. While the evidence may ultimately indicate that the Church owed no duty to the plaintiff and that, even if such a duty existed, there was no breach of that duty or that any breach was neither a cause-in-fact nor legal cause of any damages, we conclude that the record, at this point, does not eliminate the possibility of the Church's liability. Accordingly, summary judgment was improper.
DECREE
For the foregoing reasons, the decision of the lower court is reversed, and the case is remanded to the lower court for further proceedings. All costs of this proceeding are assigned to the defendants, The Roman Catholic Church of the Diocese of Lafayette, Inc., The Society of the Roman Catholic Church, Preferred Risk Mutual Insurance Company, and Houston General Insurance Company.
REVERSED AND REMANDED.
NOTES
[1] We note that, in the petition instituting this matter, the plaintiff alleged that the incident in question occurred in the summer of 1979. However, Harkins changed this date to 1978 in an answer to an interrogatory from Houston General Insurance Company. The plaintiff answered as follows: "Although plaintiff stated in his deposition that he believed the incident happened in the summer of 1979, after speaking with his mother and stepfather regarding their place of residence at the time of the overnight trip with the Gauthier's to the races at Eunice, LA, plaintiff now believes this incident occurred in the summer of 1978."
[2] The plaintiff alleges that he did not tell anyone of the contact with Gauthe and that he suppressed any thoughts of the events. It was only through subsequent counseling that the memories were retrieved. As these events occurred in 1978, the defendants in the matter filed Exceptions of Prescription which were denied by the trial court. This decision was initially reversed in a writ application to this court, however, on rehearing this court set aside its original opinion and affirmed the original holding of the trial court. See Harkins v. Gauthe, W95-769 (La.App. 3 Cir. 3/22/96). The supreme court subsequently denied the writ and held that the defendants "[m]ay reraise on appeal in event of adverse judgment." See Harkins v. Gauthe, 96-0988 (La.6/28/96); 675 So.2d 1122. Although reurged by Defendant Gauthe, the trial court once again denied the exception of prescription on April 14, 1997. Given the lower court's disposition in favor of the defendants, the issue of prescription is not now before this court.
[3] Following the Summary Judgment, Pacific Employers Insurance Co. was dismissed with prejudice on a Joint Motion for Voluntary Dismissal. Accordingly, the company is not a party to the instant matter.
[4] Although the petitioner originally argued that the defendants were vicariously liable pursuant to La.Civ.Code art. 2320, this argument was dropped by stipulation of both parties. Thus, the negligent retention and supervision theories of recovery are the sole theories presently before the court.
[5] The record evidences that James Lambert is counsel for the plaintiff.
[6] Smith v. Orkin Exterminating Co., Inc., 540 So.2d 363 (La.App. 1 Cir. 1989), wherein a customer sued for Orkin's negligent retention/supervision of one of its employees who entered her home on a service call, unlocked a window, and later reentered her home through the window and sexually assaulted her. The first circuit found Orkin liable for their own negligent administration of a yearly polygraph test which was designed to screen employees' behavior. Despite having committed a similar assault in the year prior to the one suffered by the plaintiff, the employee passed the polygraph. The first circuit determined that the employer breached their duty to the plaintiff by failing to ask questions which would have prevented the assault and, thus, the negligent administration of the test was a cause-in-fact of the injuries sustained by the plaintiff.
[7] In considering this "special relationship" and its applicability, or lack thereof, to the instant matter, we are mindful that this is not a "duty to warn" case as are many in this area of jurisprudence.
[8] In Miller, 576 So.2d 1162, the third circuit upheld the trial court's dismissal of the plaintiff's petition on an exception of no cause of action. In this 1991 case, the parents of four minor children sued the pastor of Alpine Assembly of God Church for failure to warn them and legal authorities that the church's youth director had been seeking counseling from him regarding the molestation of children. This court concluded that no special relationship existed between the pastor and the plaintiffs. The court noted that there were no allegations that the molestations were perpetrated by the youth director under the auspices of his church-related job nor was it alleged that the plaintiffs or their children were members of the Alpine Assembly of God Church.
[9] In this third circuit case, the plaintiffs sued individually and on behalf of their two minor children for damages related to the sexual molestation of the children. The plaintiffs named Word of Faith Ministries and its agents as defendants contending that the person who molested the children had, himself, previously been molested by an employee of the church. They alleged that this previous molestation by the Word of Faith Ministries' employee ultimately caused the molestation of the plaintiffs' children. This court affirmed the trial court's determination that no special relationship existed which would have imposed a duty on the defendants. Lambert, 95-1473; 673 So.2d 1150. We note, however, that the relationship, as discussed in Lambert, is different than that under consideration in the present case and that discussed in Miller, 576 So.2d 1162, and in Oubre, 547 So.2d 1320. Rather, in Lambert, a panel of this court discussed the "special relationship" occurring between the "employer" and the "employee" rather than the "employer" and the alleged victim of the abuse.
[10] In this first circuit case, the plaintiff filed suit on behalf of her child who was injured when his bicycle was struck by the vehicle of a priest returning from counseling an ill person. The plaintiff argued that the Church was vicariously liable pursuant to La.Civ.Code art. 2320. However, the first circuit concluded that the priest was not acting in the course and scope of his employment. The court considered that the visit occurred on the priest's day off from work and that he was driving his personal vehicle at the time of the accident. Additionally, the priest testified that he considered counseling people about God on his day off, a personal hobby. The arguments in this case were related exclusively to vicarious liability. There was no allegation that the Church was independently negligent as is the case in the instant matter.
[11] Bishop Frey testified, in a deposition originally taken for an action in the United States District Court, Western District of Louisiana entitled Society of the Roman Catholic Church Diocese of Lafayette v. Arthur J. Gallagher & Co., that he was informed that Gauthe had been involved in an incident with a newspaper boy who delivered newspapers to the rectory. Frey stated that he called Gauthe for a meeting and that Gauthe told him that "the passing contact" with the boy involved "impure acts." Gauthe also told him that "after going to a psychiatrist he saw that he should avoid those things." Bishop Frey stated that he did not know the age of the boy involved.
[12] It is on the basis of knowledge which we distinguish the instant matter from Tichenor v. Roman Catholic Church Of the Archdiocese of New Orleans, 32 F.3d 953 (5th Cir. 1994). In this federal case, the Fifth Circuit concluded that there was no indication that the Church had prior knowledge of a priest's pedophilic tendencies. Mississippi law, on which the case was decided, provides for recovery for employer liability "for an employee's negligence and resulting injuries `if the master should have known' of the employee's misbehavior or incompetence." Id. at 960 quoting Thatcher v. Brennan, 657 F.Supp. 6, 10 (S.D.Miss.1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1856470/ | 701 So.2d 1291 (1997)
O. William REEDER, M.D.
v.
Bruce A. NORTH and Molony, North & Kewley.
No. 97-C-0239.
Supreme Court of Louisiana.
October 21, 1997.
Dissenting Opinion December 9, 1997.
*1293 David L. Colvin, Gretna, Stanhop Bayne-Jones Denegre, New Orleans, for Applicant.
Arthur A. Lemann, IV, Jefferson, Daniel A. Rees, New Orleans, for Respondent.
William E. Wright, Jr., Nancy J. Marshall, Jonathan M. Pierce, New Orleans, for Coregis Insurance Group, Amicus Curiae.
Dissenting Opinion of Justice Johnson December 9, 1997.
VICTORY, Justice.
We granted this writ to determine whether the court of appeal was correct in holding that La. R.S. 9:5605 did not perempt plaintiff's legal malpractice suit even though plaintiff filed suit more than three years after the date of the alleged negligent act. After reviewing the record and the applicable law, we hold that the strict wording of La. R.S. 9:5605 provides that plaintiff's legal malpractice suit is perempted; however, we remand the case to the trial court to allow plaintiff to amend and supplement his petition.
FACTS AND PROCEDURAL HISTORY
On July 10, 1989, Bruce A. North ("North"), as attorney for William Reeder, Jr. ("Reeder"), filed a complaint in the United States District Court of the Eastern District of Louisiana against the Succession of Michael B. Palmer, Lynn Paul Martin, and the Bank of LaPlace. The complaint alleged various violations of federal and state securities laws resulting from a fraudulent check kiting and Ponzi scheme allegedly perpetrated by Martin and facilitated by Palmer and the Bank of LaPlace resulting in damages to Reeder. The district court dismissed the complaint with prejudice in favor of the defendants. Reeder v. Succession of Palmer, 736 F.Supp. 128 (E.D.La.1990). The United States Court of Appeals for the Fifth Circuit affirmed the dismissal on September 27, 1990. Reeder v. Palmer, 917 F.2d 560 (5th Cir.1990). In May of 1990, North filed a petition in state court on behalf of Reeder against the same defendants based on the same course of conduct alleging negligence, negligent misrepresentation, breach of fiduciary duty, breach of contract, and violations of the Louisiana Blue Sky Law. On April 26, 1991, the trial court sustained defendants' exceptions of no cause of action and res judicata and dismissed the case. On September 16, 1992, the Louisiana Court of Appeal for the Fifth Circuit affirmed in part and reversed in part, holding that res judicata barred further claims based on state securities *1294 law, but did not bar further claims against Palmer that were not included in the federal complaint. Reeder v. Succession of Palmer, 604 So.2d 1070 (La.App. 5th Cir. 1992). This Court reversed that ruling on September 3, 1993, holding that because the federal court had pendant jurisdiction over all of Reeder's state law claims against Palmer, the federal judgment precluded the omitted state law claims. Reeder v. Succession of Palmer, 623 So.2d 1268 (La.1993). Rehearing was denied on October 7, 1993. The U.S. Supreme Court denied certiorari on February 28, 1994. Reeder v. Succession of Palmer, 510 U.S. 1165, 114 S.Ct. 1191, 127 L.Ed.2d 541 (1994). North continued to represent Reeder throughout these proceedings.
On September 15, 1994, Reeder filed the present legal malpractice suit against North and his law firm, alleging the following:
XIV.
Because North failed to raise all of Petitioner's claims in the original federal complaint, Petitioner is now barred from recovering under any theory the damages he sustained as a result of his investments in the fraudulent check kiting and Ponzi scheme.
XVI.
Petitioner also avers that the res judicata bar on his subsequent state claims was caused solely by the negligence of North and Malony, North & Kewley in not properly raising all of the claims arising out of the same transaction or occurrence in the federal complaint.
North filed an exception claiming that Reeder's malpractice action was perempted under La.R.S. 9:5605. In his opposition memorandum, Reeder claimed that La. R.S. 9:5605 was unconstitutional. The trial court granted North's exception and dismissed Reeder's suit. On November 3, 1995, Reeder appealed to the Louisiana Court of Appeal for the Fifth Circuit. On April 22, 1996, Reeder filed a motion to stay the appeal and to remand the case back to the trial court in order to specifically plead that the application of La. R.S. 9:5605 would be unconstitutional as applied. Without acting on the motion, the court of appeal reversed the judgment of the trial court and remanded the case for a trial on the merits. Reeder v. North, 96-165 (La.App. 5th Cir. 11/14/96), 683 So.2d 912.
North filed a writ application in this Court alleging two assignments of error: (1) that the appellate court ignored the express provisions of La. R.S. 9:5605 that the peremptive period cannot be renounced, interrupted, or suspended by applying a rule of suspension; and (2) that the appellate court erroneously held that the three-year peremptive period commences only when a cause of action has accrued, rather than on the date of the act, omission or neglect. We granted North's writ to consider these assignments of error. Reeder v. North, 97-0239 (La.3/27/97), 692 So.2d 377.
DISCUSSION
On July 10, 1989, when North filed the initial suit in federal court wherein he allegedly negligently failed to include all causes of action, the prescriptive period for legal malpractice claims was governed by La. C.C. art. 3492, which provides that delictual actions are subject to a liberative prescription of one year commencing to run from the day injury or damage is sustained. Braud v. New England Ins. Co., 576 So.2d 466, 468 (La.1991). The time limits to file legal malpractice actions are now contained in La. R.S. 9:5605, enacted in 1990 and amended in 1992, which provides in part:
A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged *1295 act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
C. Notwithstanding any other law to the contrary, in all actions brought in this state against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional law corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, the prescriptive and peremptive period shall be governed exclusively by this Section.
The court of appeal found, in spite of the clear wording of this statute, that "[i]n determining when the claim against an attorney comes into existence, and hence when prescription or peremption begins to run, we must determine when the facts ripened into a viable cause of action sufficient to support a lawsuit." 683 So.2d at 915. The court of appeal held that "[w]hile the attorney-client relationship is in existence and the attorney is actively attempting to remedy the alleged malpractice until the judgment giving rise to the malpractice claim becomes definitive, a legal malpractice claim does not ripen into a cause of action." Id. at 916. The court found that this did not occur until the U.S. Supreme Court denied certiorari on February 28, 1994. Thus, the court of appeal found that Reeder's malpractice suit was timely filed on September 15, 1994.
We cannot agree with the court of appeal's reasoning. The Legislature was particularly clear in wording La. R.S. 9:5605 so as to leave no doubt as to its intent. "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La. C.C. art. 9. As directed by this Civil Code article, we must apply the statute as written.
La. R.S. 9:5605A expressly provides that all legal malpractice actions must be brought "within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered;...." The Legislature put a three-year limit on these actions by further stating that "however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect." La. R.S. 9:5605A.
The "act, omission, or neglect" complained of in Reeder's petition is North's failure to include all state law claims in his federal court complaint. The complaint was filed on July 10, 1989. La. R.S. 9:5605A was enacted on September 7, 1990, after the negligent act. However, there is no doubt that the three-year peremptive period retroactively applies to Reeder because the Legislature provided that "[t]he provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred." La. R.S. 9:5605B. Further, La. R.S. 9:5605B states that "with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed... on or before September 7, 1993, without regard to the date of the discovery of the alleged act, omission, or neglect." La. R.S. 9:5605B.
*1296 Thus, under the clear wording of the statute, the court of appeal was wrong in holding that the peremptive period did not begin to run until the "facts ripened into a viable cause of action sufficient to support a lawsuit," i.e., the date the U.S. Supreme Court denied certiorari. Because the negligent act occurred before September 7, 1990, Reeder had until September 7, 1993 to file the malpractice action, "without regard to the date of the discovery of the alleged act, omission, or neglect."
We recognize the perceived inequities of this statute. Had Reeder filed his malpractice suit while his state court action against Palmer was proceeding through the appellate process, he argues that his malpractice claim may have been dismissed as premature. But see Braud v. New England Ins. Co., supra.[1] In fact, until September 3, 1993 when this Court reversed the appellate court and held that all of Reeder's claims were barred by the doctrine of res judicata, Reeder argues that he had no malpractice claim because the state appellate court had ruled in his favor, allowing him to bring his state law claims against Palmer. Rehearing was denied on October 7, 1993 and the U.S. Supreme Court denied certiorari on February 24, 1994; in the meantime, Reeder's malpractice claim was perempted under La. R.S. 9:5605 on September 7,1993.
While the terms of the legal malpractice statute of limitations statute may seem unfair in that a person's claim may be extinguished before he realizes the full extent of his damages, the enactment of such a statute of limitations is exclusively a legislative prerogative. La. R.S. 9:5605 is analogous to the medical malpractice statute of limitations wherein a person's cause of action may prescribe before he even knows he has a cause of action because of the latency period of his condition.[2] Nevertheless, we have held that the three-year medical malpractice limitations period begins to run on the date of the alleged act, omission, or neglect, reasoning that:
Statutes of limitation are exclusively a legislative prerogative. In setting a statute of limitation, a legislature does not eliminate the remedy for a civil wrong; it makes a legislative determination that after a certain period of time no cause of action can arise. Until the time that a cause of action vests, a legislature has the power to create new rights and abolish old ones. Dunn v. Felt, 379 A.2d 1140, 1141 (Del.Super.1977). In finding that the right to recover in tort is not a fundamental right, our court has noted that "[w]here access to the judicial process is not essential to the exercise of a fundamental constitutional right, the legislature is free to allocate access to the judicial machinery on any system or classification which is not totally arbitrary." Bazley v. Tortorich, *1297 397 So.2d 475, 485 (La.1981); Everett v. Goldman, 359 So.2d 1256 (La.1978).
Crier v. Whitecloud, 496 So.2d 305, 310 (La. 1986) (on rehearing); see also, Whitnell v. Silverman, 95-0112 (La.12/6/96), 686 So.2d 23.
The legal malpractice statute of limitations is even more strongly worded than the medical malpractice statute of limitations in that La. R.S. 9:5605 expressly states that the period is "peremptive" and "in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended." La. R.S. 9:5605B.[3] Therefore, there is no doubt that the Legislature intended that three years after the "act, omission, or neglect," the cause of action is extinguished, regardless of when the negligence is discovered and regardless of whether a malpractice action may be brought within that three-year period. The Legislature was aware of the pitfalls in this statute but decided, within its prerogative, to put a three-year absolute limit on a person's right to sue for legal malpractice, just as it would be within its prerogative to not allow legal malpractice actions at all. See May 29, 1990 Minutes of the Civil Law and Procedure Committee of the Louisiana House of Representatives, House Bill No. 1338 (John deGravelles, from the Louisiana Trial Lawyers Association testified that the LTLA opposed any bill that provides a three-year peremptive period because it could extinguish a cause of action before it arises and was thus unfair and raised basis constitutional questions. Nevertheless, the Bill was reported favorably by the Committee by a unanimous vote.). Thus, while a three-year peremptive period may not be particularly generous, "[i]t is not our role to consider the policy or the wisdom of the [Legislature] in adopting [t]he statute. It is our province to determine only the applicability, legality and constitutionality of the [statute]." Chamberlain v. State, Through DOTD, 624 So.2d 874, 879 (La.1993) (citing City of New Orleans v. Scramuzza, 507 So.2d 215, 219 (La.1987) (collecting cases); Board of Commissioners of Orleans Levee District v. Dept. of Natural Resources, 496 So.2d 281, 298, n. 5 (La.1986)).
The court of appeal also erred in holding that the peremptive period of La. R.S. 9:5605 was, in effect, suspended during the period in which North continued to represent Reeder in trying to enforce Reeder's claims against Palmer in state court. North's representation of Reeder continued from the time he filed the first suit in federal court in July of 1989, until the U.S. Supreme Court denied certiorari on February 28, 1994. Relying on our earlier case of Lima v. Schmidt, 595 So.2d 624 (La.1992), the court of appeal held that "[w]hile there exists an ongoing, continuous and dependent relationship between the client and the attorney and the attorney is seeking to rectify the alleged act of malpractice, the malpractice action is premature." 683 So.2d at 916.
The court of appeal's reliance on Lima v. Schmidt is misplaced. Lima is a legal malpractice case where the act of negligence took place in June of 1983 and the negligent attorney continued to assure the plaintiffs up until January of 1988 that he was attempting to return the plaintiffs "to the same position they would have enjoyed" had he not acted negligently. The plaintiffs filed a legal malpractice action against the attorney in November of 1988. Both the negligent act occurred and the malpractice suit was filed prior to the enactment of La. R.S. 9:5605 in 1990, so this Court applied the one-year prescriptive period of La. C.C. art. 3492. Because Civil Code Article 3492 is a prescriptive period, this Court held that the period was suspended "during the attorney's continuous representation of the client regarding the specific subject matter in which the alleged wrongful act or omission occurred." 595 So.2d at 630 (citing Braud v. New England Insurance Co., supra at 468). We applied the "continuous representation rule" because Article 3492 provides a prescriptive period, rather than a peremptive period. As we stated in Lima, the "continuous *1298 representation rule" is a "suspension principle... based on the third application of contra non valentem, which suspends prescription when the debtor has done some act effectually to prevent the creditor from availing himself of his cause of action." 595 So.2d at 630 (cites omitted).
As a suspension principle based on contra non valentem,[4] the "continuous representation rule" cannot apply to peremptive periods. This is clear from the wording of La. R.S. 9:5605 ("[t]he one-year and three-year periods of limitations ... are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended") and of Civil Code article 3461 ("[p]eremption may not be renounced, interrupted, or suspended.") In addition, this Court has distinguished prescription from peremption in that contra non valentum does not apply to peremption:
Peremption differs from prescription in several respects. Although prescription prevents the enforcement of a right by legal action, it does not terminate the natural obligation (La. Civ.Code art. 1762(1)); peremption, however, extinguishes or destroys the right (La. Civ.Code art. 3458). Public policy requires that rights to which peremptive periods attach are to be extinguished after passage of a specified period. Accordingly, nothing may interfere with the running of a peremptive period. It may not be interrupted or suspended; nor is there provision for its renunciation. And exceptions such as contra non valentem are not applicable. As an inchoate right, prescription, on the other hand, may be renounced, interrupted, or suspended; and contra non valentem applies an exception to the statutory prescription period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues.
Hebert v. Doctors Memorial Hosp., supra at 723. Thus, the court of appeal erroneously applied the "continuous representation rule" to suspend the peremptive statute of limitations period of La. R.S. 9:5605.
The court of appeal also erred in relying on the following reasoning of the appellate court in Braud v. New England Ins. Co.:
If the client is mandated to file suit against his attorney for malpractice before a judgment in the suit in which the alleged malpractice arose became definitive, he would be placed in the untenable position of asserting on the one hand that the judgments were valid and on the other hand that they were invalid.
683 So.2d at 916 (citing Braud v. New England Ins. Co., 562 So.2d 1116 (La.App. 4th Cir.1990)). This holding by the Fourth Circuit in Braud was specifically rejected by this Court on appeal. We held because parties are frequently required to maintain alternative, inconsistent and even mutually exclusive positions, the prescriptive period was not suspended while the negligent attorney was still trying to represent the client on the underlying claim. Braud, 576 So.2d at 469.[5] Thus, we agree with both of defendant's assignments of error and hold that the three-year peremptive period of La. R.S. 9:5606 begins to run on the date of the act, omission, *1299 or neglect and cannot be suspended by the "continuous representation rule."
In his brief to this Court, Reeder offers additional reasons why he should be allowed to bring this legal malpractice action. He alleges that, if we hold, as we do, that the peremptive period began to run on July 10, 1989 according to the allegations of plaintiff's petition, then he had a vested property right that may not be constitutionally divested through the retroactive application of La. R.S. 9:5605. See Segura v. Frank, 630 So.2d 714 (La.1994); Cole v. Celotex, 599 So.2d 1058 (La.1992); Lott v. Haley, 370 So.2d 521 (La.1979). He also alleges that La. R.S. 9:5605 is unconstitutional in that it violates the open courts doctrine of La. Const. art. I, § 22. However, although he has tried, Reeder did not specifically plead the constitutionality of La. R.S. 9:5605. As we explained in Vallo v. Gayle Oil Co., Inc.:
The long-standing jurisprudential rule of law is: a statute must first be questioned in the trial court, not the appellate courts, and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.
The pleadings allowed in civil actions are petitions, exceptions, written motions and answers. Therefore, when the unconstitutionality of a statute is specifically pled, the claim must be raised in a petition (the original petition, an amended and supplemental petition or a petition in an incidental demand), an exception, a motion or an answer. It cannot be raised in a memorandum, opposition or brief as those documents do not constitute pleadings.
Vallo v. Gayle Oil Co., Inc., 94-1238 (La.11/30/94), 646 So.2d 859, 864-865; see also Hillman v. Akins, 93-0631 (La.1/14/94), 631 So.2d 1, 4 (plaintiff first raised constitutionality of medical malpractice statute in opposition memorandum to defendant's exception).
Reeder first raised the unconstitutionality of the statute in an opposition memorandum to North's exception of prescription/peremption in the trial court. After a hearing, the trial court nonetheless held that Reeder's action was perempted. When Reeder appealed this ruling to the Fifth Circuit, he also filed a motion to stay the appeal and remand the matter to the trial court so that he could amend and supplement his petition to specifically plead the unconstitutionality of the statute. Without ruling on this motion, the Fifth Circuit reversed the trial court and held that Reeder's action was not perempted and remanded the matter for trial. Therefore, Reeder did not specifically plead the matter in trial court and was not allowed to do so by the appellate court.[6]
However, the law takes a liberal approach toward allowing amended pleadings in order to promote the interests of justice. Whitnell v. Menville, 540 So.2d 304, 309 (La. 1989). La.Code of Civil Procedure Article 934 provides as follows:
When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.
We have held that "if the new allegations raise the possibility that the claim is not prescribed, even if the ultimate outcome of the prescription issue, once the petition is amended, is uncertain," then opportunity to amend should be allowed. Id. (cites omitted). Thus, while it is uncertain whether Reeder's new assertions will be sufficient to overcome a peremptory exception of peremption, we will allow Reeder time to amend his petition in the trial court.
*1300 DECREE
For the reasons stated herein, the judgment of the court of appeal is reversed and the judgment of the trial court sustaining the exception of peremption is reinstated; however, the case is remanded to the trial court to allow plaintiff time to amend and supplement his petition.
REVERSED; JUDGMENT OF TRIAL COURT REINSTATED; REMANDED.
LEMMON, J., not on panel. Rule IV, Part 2,§3.
JOHNSON, J., dissents and assigns reasons.
JOHNSON, Justice, dissenting.
I agree with the holding of the Court of Appeal which reasoned if a client is required to file suit against his attorney while the suit is being litigated and before a judgment is definitive, the client is placed in the untenable position of asserting that a judgment is both valid and invalid.
To follow the reasoning of the majority would lead to absurd results. An attorney need only litigate a claim past the three (3) year preemptive period to avoid all consequences of his malpractice. In my mind, this cause of action did not ripen into a legal malpractice claim until February 28, 1994 when all legal avenues were exhausted.
NOTES
[1] In Braud, an attorney represented his client and got a default judgment against Citicorp for $4,000,000.00. Citicorp filed a nullity action in federal court attacking the validity of the default judgment. The client was then forced to settle with Citicorp for $72,000.00. After the client sued his former attorney who obtained the deficient default judgment for malpractice, the attorney filed an exception of prescription because the action was filed more than one year after the nullity action was filed. The appellate court reversed, holding that prescription did not begin to run until the nullity suit was concluded. This Court held that "[a]ny appreciable and actual harm flowing from the attorney's negligent conduct establishes a cause of action upon which a client may sue." 576 So.2d at 468. This Court found that the client "sustained appreciable and actual harm when the validity of his right or asset was attacked by a third party because of the alleged negligence of his former attorney and he was compelled to incur and pay attorney's fees, legal costs and expenditures. Accordingly, [the client's] cause of action against [the attorney] accrued the day Citicorp filed suit against [the client] to annul his $4,000,000 judgment against the corporation." Id. at 469.
[2] La. R.S. 9:5628 provides:
A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
[3] We have held that the medical malpractice statute of limitations period is prescriptive rather than peremptive, with the qualification that the discovery rule is expressly made inapplicable after three years from the act, omission or neglect. Hebert v. Doctors Memorial Hospital, 486 So.2d 717, 724 (La.1986).
[4] Contra non valentem is a judicially-created doctrine which has been applied to prevent the running of prescription in four distinct situations:
(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action;
(2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action;
(4) where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.
Plaquemines Parish Commission Council v. Delta Development Co., 502 So.2d 1034 (La.1987); Corsey v. State Through Dept. of Corrections, 375 So.2d 1319 (La. 1979).
[5] The court of appeal also erroneously relied on the Fourth Circuit's opinion in Jure v. Barker, 619 So.2d 717 (La.App. 4th Cir. 1993). To the extent that Jure held that the peremptive period of La. R.S. 9:5606 does not begin to run until the conclusion of an appeal in the underlying action and that La. R.S. 9:5606 does not displace the "continuous representation rule" of Lima v. Schmidt, Jure is overruled.
[6] In addition, La. R.S. 13:4448 provides as follows:
Prior to adjudicating the constitutionality of a statute of the State of Louisiana, the courts of appeal and the Supreme Court of Louisiana shall notify the attorney general of the proceeding and afford him an opportunity to be heard. The notice shall be made by certified mail. No judgment shall be rendered without compliance with the provisions of this Section; provided where the attorney general was not notified of the proceeding, the court shall hold adjudication of the case open pending notification of the attorney general as required herein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2636193/ | 195 P.3d 957 (2008)
STATE
v.
BRYANT.
No. 81395-7.
Supreme Court of Washington, Department I.
October 1, 2008.
Disposition of petition for review. Denied. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610709/ | 3 Cal.3d 434 (1970)
476 P.2d 406
91 Cal. Rptr. 6
GRIBALDO, JACOBS, JONES AND ASSOCIATES et al., Plaintiffs and Appellants,
v.
AGRIPPINA VERSICHERUNGES A.G. et al., Defendants and Respondents.
Docket No. S.F. 22732.
Supreme Court of California. In Bank.
November 6, 1970.
*439 COUNSEL
Spaeth, Blase & Farman, Spaeth, Blase, Valentine & Klein, Lawrence A. Klein and Guy Blase for Plaintiffs and Appellants.
Jones & Daniels and Robert E. Jones for Defendants and Respondents.
*440 OPINION
BURKE, J.
In this case, involving the interpretation of an errors and omissions indemnity insurance policy, a hearing was granted by this court after decision by the Court of Appeal, First Appellate District, for the purpose of giving further study to the problems presented. After such study we have concluded that the opinion of the Court of Appeal, prepared by Presiding Justice Molinari, correctly treats and disposes of the issues involved, and with certain further comments pertinent to contentions urged, it is adopted as and for the opinion of this court. Such opinion (with appropriate deletions and additions as indicated) is as follows:[1]
This is an appeal by plaintiffs from a declaratory judgment. Plaintiffs commenced this action seeking a judicial determination of their rights and duties under an errors and omissions indemnity insurance policy issued to plaintiff corporations by defendants. In essence, the declaration sought by plaintiffs was directed to the meaning of the deductible feature of the policy and its application to defense costs.
Statement of the Case
Defendants, foreign organizations engaged in the business of writing insurance in California through duly qualified brokers, issued to plaintiffs an architects or engineers professional indemnity insurance policy covering the period from April 13, 1964 to April 13, 1967.
The policy "indemnifies the Assured [plaintiffs] against any claim or claims for breach of professional duty ... which may be made against them during the period ... by reason of any negligent act, error or omission, ..." The policy further provides that defendants "shall not be liable for any claim or claims unless the amount of claim exceeds the amount stated in the said Schedule as the deductible, ..." The deductible stated in the schedule is $2,500.
The policy does not directly impose a duty on defendants to defend actions against plaintiffs. The matters of defense and defense costs are mentioned only in the "conditions" to the policy as follows: ["1. The total liability of the Underwriters hereunder in respect of all claims made against the Assured in any one policy year ... together with the costs and expenses *441 incurred in the defense of any claim shall not exceed the sum stated in the Schedule.] 2. The Assured shall not admit liability for or settle any claim or incur any costs or expenses in connection therewith without the written consent of the Underwriters, who shall be entitled at any time to take over and conduct in the name of the Assured the defense of any claim. Nevertheless, the Assured shall not be required to contest any legal proceedings unless the Lawyer (to be mutually agreed upon by the Assured and the Underwriters) shall advise that such proceedings should be contested. 3. The Underwriters shall not settle any claim without the consent of the Assured. If, however, the Assured shall refuse to consent to any settlement recommended by Underwriters and shall elect to contest or continue any legal proceedings in connection with such claim, then the Underwriters' liability for the claim shall not exceed the amount for which the claim could have been so settled, together with the costs and expenses incurred with their consent...."
The dispute below centered around defendants' position that their liability [] [to indemnify plaintiffs and reimburse defense costs is limited to situations where the actual claim paid by plaintiffs totals] more than the deductible amount of $2,500. It was plaintiffs' position that defendants had an actual duty to defend and that defendants were required to pay defense costs whenever the initial demand against plaintiffs exceeded the deductible, no matter what the outcome of the demand.
Findings of Fact and Conclusions of Law
Among other things the trial court found that the policy was neither ambiguous nor uncertain; that under the terms of the policy defendants were not required to defend plaintiffs against the claims or demands of third parties for alleged breach of professional duty within the purview of the policy; that defendants' obligation under the policy arises only if the liability of plaintiffs is fixed and is discharged in an amount exceeding the deductible $2,500; and that in accordance with the policy and Civil Code section 2778,[2] subdivision 3, defendants are obligated to reimburse plaintiffs for costs and attorney fees incurred and paid by plaintiffs in the defense of claims embraced within the provisions of the policy, that is, those claims in excess of $2,500 actually paid by plaintiffs.[3] [] Judgment was entered accordingly.
*442 The Agreement of Indemnity
(1) Before proceeding to discuss the interpretation of the subject insurance policy we observe that "An indemnity provision of a contract is to be construed under the same rules governing other contracts with a view of determining the actual intent of the parties." (J.A. Payton v. Kuhn-Murphy, Inc., 253 Cal. App.2d 278, 281 [61 Cal. Rptr. 575]; Buchalter v. Levin, 252 Cal. App.2d 367, 375 [60 Cal. Rptr. 369].) (2) In indemnity contracts, moreover, the provisions of section 2778[4] prescribing the rules for interpreting indemnity agreements, are as much a part of such instrument as those set out therein, unless a contrary intention appears. (Thode v. McAmis, 96 Cal. App.2d 833, 836-837 [216 P.2d 548]; Weaver v. Grunbaum, 31 Cal. App.2d 42, 49-50 [87 P.2d 406].)
(3) Plaintiffs place strong reliance upon the case of Gray v. Zurich Insurance Co., 65 Cal.2d 263 [54 Cal. Rptr. 104, 419 P.2d 168], and particularly on the principle they extract therefrom that "In interpreting an insurance policy we apply the general principle that doubts as to meaning must be resolved against the insurer and that any exception to the performance of the basic underlying obligation must be so stated as clearly to apprise the insured of its effect." (P. 269.) We take cognizance of this rule but also observe that it must be applied in conjunction with the rules applicable to the interpretation of contracts.[5]
The Question of Ambiguity
Plaintiffs contend that the insurance policy is ambiguous and uncertain. Accordingly, they offered extrinsic evidence for the purpose of establishing that it was the intent of the parties that the policy afford plaintiffs the right to recover defense costs and expenses regardless of the amount paid by plaintiffs as the result of a claim of a third party. This *443 evidence was admitted subject to defendants' motion to strike, which was timely interposed.[6] The trial court took the motion under submission and in its written memorandum of decision stated that it was unnecessary for the court to rule on the motion on the basis that there was nothing in the evidence offered by plaintiffs which showed an intent of the parties contrary to that expressed in the policy as interpreted pursuant to section 2778.
(4) In Delta Dynamics, Inc. v. Arioto, 69 Cal.2d 525, 528 [72 Cal. Rptr. 785, 446 P.2d 785], the Supreme Court, relying on Pacific Gas & Elec. Co. v. G.W. Thomas Drayage etc. Co., supra, 69 Cal.2d 33, 39-40 [69 Cal. Rptr. 561, 442 P.2d 641], states the applicable principle thusly: "`The test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible.' To determine whether offered evidence is relevant to prove such a meaning the court must consider all credible evidence offered to prove the intention of the parties. `If the court decides, after considering this evidence, that the language of a contract, in the light of all the circumstances, is "fairly susceptible of either one of the two interpretations contended for ..." [citations], extrinsic evidence to prove either of such meanings is admissible.' [Citation.]"
(5) In applying the foregoing test, the preliminary consideration of all credible evidence offered to prove the intention of the parties requires that the trial court consider evidence which includes testimony as to the circumstances surrounding the making of the agreement including the object, nature and subject matter of the writing so that the court can place itself in the same situation in which the parties found themselves at the time of contracting. (Pacific Gas & Elec. Co. v. G.W. Thomas Drayage etc. Co., supra, at p. 40.)
Adverting to the extrinsic evidence offered by plaintiffs and preliminarily considered by the trial court in the instant case, we observe the following testimony. Donald Brown, plaintiffs' insurance broker, testified that he discussed with Ralph Jackson, a surplus line underwriter for Appleton & Cox of California, Inc., [] [the brokerage firm which procured the policy from defendants] how the deductible operated in relationship to the *444 defense costs; that when he told Jackson, following the receipt of a policy form and prior to the issuance of the policy, that he could not "interpret" the exact action that would be taken if claims did occur, Jackson advised him that there would be a $2,500 deductible applicable to a claim under the policy and that legal fees would be taken care of under the policy without a deductible. Brown also testified that he later got a different interpretation from Jackson when he asked Jackson to contact the underwriters directly to get an interpretation from them and that he was advised by the underwriters that the interpretation made by plaintiffs was completely wrong. He testified that this communication was not received until early 1967 [after the policy had been issued].
Guy Blase, an attorney for plaintiffs, also testified that prior to the issuance of the policy he too had a conversation with Jackson concerning defense costs. He testified that Jackson told him that if a claim was in excess of the deductible then defense costs would be paid "from the ground up," that is, that in any case involving a claim in excess of $2,500 defense costs in their entirety would be paid by the insurer, but that if the claim was less than $2,500 defense costs would not be indemnified.
Avery Tindell, vice-president of Appleton & Cox in charge of surplus line operations, testified that on July 24, 1964, he sent a letter to Blase to the effect that [] [defendants were not liable for the defense of claims not "likely to exceed the $2,500 deductible." Ralph Jackson testified that he advised Blase that as far as the deductible was concerned the defense costs would be included "from the ground up" provided the claim exceeded the deductible, and that by the term "from the ground up" he (Jackson) meant from the first dollar, provided the claim exceeded $2,500. Jackson also testified that by the term "claim" he meant the claim made by the assured against the assurer, and not the claim made by a third party against the assured.
In addition to the foregoing extrinsic evidence, several letters and a cablegram were admitted into evidence. A letter dated April 3, 1964, from Jackson to the underwriters' representative in London, indicated an understanding that the deductible would not apply to defense costs and that if the plaintiffs used their own attorney in cases where the claim was under the deductible, the use of such attorney was in order but at the assured's cost. The same letter stated that if the claim was in excess of the deductible and plaintiffs had used their own attorney and his use was approved by the underwriters, the total legal cost would be borne by the underwriters. This letter requested a verification by cable of this understanding. The response to this letter with respect to the matter of defense was by a cablegram, *445 dated April 8, 1964, which, in pertinent part, read: "... please refer to policy Conditions One and Two." Another letter, dated April 8, 1964, from Jackson to Brown, with a copy to Blase, directed attention with respect to defense, to conditions 1, 2 and 3 of the insuring agreement and noted that these "will be found to be self-explanatory." [The foregoing correspondence was exchanged prior to the issuance of the policy. Subsequently,] another letter, dated July 22, 1964, from the claims manager of Appleton & Cox, confirmed the understanding had with Jackson on the question of fees. Blase responded to this letter on July 24, 1964, by a letter wherein he stated, "I feel it is clear that only in the event that a claim appears to exceed $2,500.00 will the Underwriter assume the cost of attorneys fees and your defense expenses of the insured."
As already pointed out the trial court did not formally rule upon defendants' motion to strike the offered extrinsic evidence but stated that it did not do so because that evidence did not show an intent of the parties contrary to that expressed in the policy as interpreted by section 2778.[7] [] In the light of this determination the trial court concluded that the pertinent provisions of the policy were not uncertain or ambiguous, and therefore concluded that these provisions were to be interpreted according to the intention expressed by the words of the policy as interpreted by section 2778. (See Estate of Russell, 69 Cal.2d 200, 211-212 [70 Cal. Rptr. 561, 444 P.2d 353].)
It is appropriate to observe here that neither of the parties contend it was error for the trial court not to admit the extrinsic evidence. Indeed, both of the parties assert that the basic insuring clauses and the subject conditions of the policy should be interpreted according to the provisions of section 2778. Accordingly, plaintiffs' claim of error is based on their contention that the trial court erroneously applied the rules of interpretation specified in section 2778. Our inquiry, therefore is whether the trial court's interpretation was erroneous. (6) In this regard we note that, since the interpretation does not turn on the credibility of extrinsic evidence, the interpretation is solely a judicial function and is, therefore, a question of law. Under these circumstances we are not bound by the trial court's interpretation. (See Parsons v. Bristol Dev. Co., 62 Cal.2d 861, 865-866 [44 Cal. Rptr. 767, 401 P.2d 839]; Estate of Platt, 21 Cal.2d *446 343, 352 [131 P.2d 825]; Estate of Russell, supra, 69 Cal.2d 200, 213.) We, therefore, proceed to make an independent examination of the policy concurrently with the applicable provisions of section 2778.
The "Claim"
As previously noted, the subject policy "indemnifies the Assured against any claim or claims for breach of professional duty...." Plaintiffs contend that under the terms of the policy they are entitled to recover from defendants all costs and expenses incurred by them during the policy period in contesting claims of third parties where the demand of the third party exceeds $2,500. In this connection they assert that the word "claim" means all third party claims, whether or not actually paid.
(7) In considering plaintiffs' contention we observe, initially, that the subject undertaking constitutes a contract of indemnity as against loss or damage, rather than indemnity against liability. (See San Pedro Properties, Inc. v. Sayre & Toso, Inc., 203 Cal. App.2d 750, 755 [21 Cal. Rptr. 844]; where the policy of insurance contained similar language.) (8) As noted in Ramey v. Hopkins, 138 Cal. App. 685, 689 [33 P.2d 443], the distinction between an indemnity against liability and an indemnity against loss is that in the former the essence of the contract is that the event shall not happen while in the latter the indemnity is against the consequences of the event if it should happen. (9) Accordingly, the trial court properly invoked the rule of interpretation provided for in subdivision 2 of section 2778, applying to an indemnity against claims, rather than subdivision 1 of that section applying to an indemnity against liability.
Subdivision 2 of section 2778 provides that "Upon an indemnity against claims, or demands ... or costs ... the person indemnified is not entitled to recover without payment thereof." This rule of interpretation was properly utilized by the trial court in finding that "The obligation of UNDERWRITERS under the policy arises only if the liability of plaintiffs is fixed and plaintiffs discharge the liability by payment and only if such payment by plaintiffs exceeds the deductible amount of $2,500.00."[8]*447 (10) Although it is true that the word "claim" connotes an assertion of a legal right and includes within its meaning a money demand (see San Pedro Properties, Inc. v. Sayre & Toso, Inc., supra, 203 Cal. App.2d 750, 755; Tanner v. Best, 40 Cal. App.2d 442, 445 [104 P.2d 1084]), an indemnitor is not liable for a claim made against the indemnitee until the indemnitee suffers actual loss by being compelled to pay the claim. (San Pedro Properties, Inc. v. Sayre & Toso, Inc., supra, at p. 756; Ramey v. Hopkins, supra, 138 Cal. App. 685, 686; see Sunset-Sternau Food Co. v. Bonzi, 60 Cal.2d 834, 843 [36 Cal. Rptr. 741, 389 P.2d 133].)
Costs of Defense
(11) The trial court properly determined that by applying subdivision 3 of section 2778 defendants were only obligated to reimburse plaintiffs for the costs, expenses and attorney fees in the defense of claims actually paid by plaintiffs in a sum in excess of the deductible amount of $2,500. Subdivision 3 of section 2778 provides that "An indemnity against claims, or demands, or liability, ... embraces the costs of defense against such claims, demands, or liability incurred in good faith, ..." (Italics added.) (12) As properly analyzed by the trial judge in his "Memorandum Decision," subdivision 3 must be considered in connection with subdivision 2 with respect to what is meant by indemnification of a "claim." Accordingly, the costs and expenses referred to in subdivision 3 are those attendant to a claim which results in a loss within the purview of subdivision 2. (See Buchalter v. Levin, supra, 252 Cal. App.2d 367, 372-373.)
[It has been suggested that if plaintiffs may only recoup defense costs with respect to paid claims which exceed $2,500, they will have no incentive to defeat such claims, at least where their defense costs exceed the deductible amount. In other words, it would be to plaintiffs' advantage to lose and pay a claim in excess of $2,500, and to recover defense costs from defendants, rather than to defeat such a claim and thereby forfeit the right to reimbursement of those costs. (13) However, "There is an implied covenant of good faith and fair dealing in every contract that neither party will do anything which will injure the right of the other to receive the benefits of the agreement. [Citation.] This principle is applicable to policies of insurance. [Citation.]" (Comunale v. Traders & General Ins. Co., 50 Cal.2d 654, 658 [328 P.2d 198].) Moreover, defendants have the right to take over and conduct the defense of any claim (Condition "2"), and are willing to "assume the risk" that plaintiffs will deliberately, or through apathy, fail to conduct an adequate defense.]
*448 The Duty to Defend
[ ] As already noted the subject policy does not set out any underlying obligation on the part of defendant to defend against the claims covered by the policy. In condition "2" defendants are given the right [] [to take over and conduct the defense of any claim, and plaintiffs are not required to contest any claim unless an attorney, selected by mutual agreement, so advises.] Plaintiffs urge that the duty to defend arises from an application of the rule of interpretation provided for in subdivision 4 of section 2778 which provides: "The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, if he chooses to do so; ..."
The trial court interpreted the terms of the policy to mean that defendants were not obligated to defend plaintiffs against the claims or demands of third parties and that plaintiffs may be required by defendants to contest legal proceedings arising out of such demand or claim if a mutually agreed upon lawyer advises that such proceedings should be contested. [ ]
(14) It is clear that under the provisions of subdivision 4 of section 2778 the indemnitor is required to defend matters embraced by the indemnity if the indemnitor is requested to do so by the indemnitee. However, it is apparent that with respect to the duty to defend the parties have indicated by the terms of the policy an intent contrary to that expressed in subdivision 4 insofar as defendants' duty to defend is concerned. Accordingly, the policy permits defendants to undertake a defense at their option [ ] [and requires plaintiffs to defend claims where so advised by counsel. These provisions make it apparent that defendants had no affirmative duty to defend plaintiffs, regardless of the size of any particular claim asserted against them. Accordingly, plaintiffs could have had no reasonable expectation that defendants had a duty to defend them. (See Gray v. Zurich Insurance Co., supra, 65 Cal.2d 263, 269.)] The basis for this agreement is apparent because, as we have already indicated, the obligation of defendants to reimburse plaintiffs does not arise until plaintiffs have paid or discharged a claim in an amount in excess of the deductible. As pointed out by the trial court in its "Memorandum Decision" defendants "in each instance could stand by and assume the risk that the loss to the assureds might exceed the deductible amount, in which event they would become obligated not only to pay the assureds the excess loss but also all expenses and costs including attorney fees."
[ ] [Even if we assume, arguendo, that the policy failed to exclude the duty to defend arising under subdivision 4 of section 2778, the record *449 shows that plaintiffs voluntarily incurred defense costs without first obtaining defendants' consent thereto (as required by Condition "2" of the policy), and without first requesting defendants to furnish a defense (as required by section 2778, subdivision 4). (15) The provisions of Condition "2," requiring defendants' prior consent to the expenditure of defense costs and permitting defendants to assume the defense of any claim are common in liability insurance policies. Their purpose "is to prevent collusion as well as to invest the insurer with the complete control and direction of the defense or compromise of suits or claims...." (44 Am.Jur.2d, Insurance, § 1524, p. 398; see 7a Appleman, Insurance Law and Practice, § 4681, pp. 422-423.)
[Similarly, the rationale underlying the statutory requirement of a prior request or demand to defend is evident: "An insurer's unwarranted refusal to defend a suit against the insured has been held to relieve the latter from his contract obligation to leave the management of such suits to the insurer, and to justify him in defending the action on his own account. [Fn. omitted.] And where the insured is thus compelled to conduct his own defense, it is uniformly held that he may recover the expenses of litigation, including costs and attorneys' fees, from the insurer...." (Italics added; 7a Appleman, supra, § 4691, pp. 498-499; see Arenson v. National Auto. & Cas. Ins. Co., 48 Cal.2d 528, 537 [310 P.2d 961].)
(16) [In other words, it is only when the insured has requested and been denied a defense by the insurer that the insured may ignore the policy's provisions forbidding the incurring of defense costs without the insurer's prior consent, and under the compulsion of that refusal undertake his own defense at the insurer's expense. Thus, the sole question at issue is whether Underwriters refused a request to defend plaintiffs or consented to plaintiffs incurring defense costs at Underwriters' expense.
(17) [The trial court expressly found that the plaintiffs made no request or demand that defendants undertake the defense of any claim, but that plaintiffs voluntarily undertook to defend all claims themselves. Nor is there any basis in the record for holding that defendants elected to employ plaintiffs' attorney to discharge their duty to defend. The fact is that defendants simply chose not to exercise their contractual right, under Condition "2," to control the defense themselves. There is no evidence whatsoever to support the theory that in doing so defendants also intended to discharge their statutory duty to defend plaintiffs. Simply put, defendants permitted plaintiffs to continue to use their own attorney, but at plaintiffs' own expense. In the absence of any demand by plaintiffs for a defense, defendants were clearly entitled to do so.
*450 (18) [Nor can it be said that defendants misled plaintiffs by failing to clarify the issue regarding defendants' obligation to reimburse plaintiffs for their own defense costs. When the question was raised, prior to the issuance of the policy, defendants' London broker referred plaintiffs' broker, Jackson, to Condition "2" of the policy which, as we have seen, unambiguously forbade plaintiffs from incurring any defense costs without defendants' prior consent. This reply was sufficient to disabuse plaintiffs of any notion that defendants would assume responsibility for the payment of plaintiffs' defense costs. Nevertheless, plaintiffs voluntarily incurred these costs without first demanding a defense from defendants.
(19) [Had plaintiffs made the statutory demand, defendants would have been required to choose between accepting the defense at their expense, consenting to the expenditure of defense costs by plaintiffs' attorney, or refusing to defend (in which case plaintiffs could have assumed the defense at defendants' expense). Having failed to make such a demand and thereby put defendants to a choice, plaintiffs should not be entitled to recover defense costs voluntarily incurred by them.
Other Claims
(20) [Plaintiffs asked the trial court to determine if defendants were required to reimburse them for two claims of third parties made against plaintiffs. One of these involves the alleged negligence of a company known as Hersey Testing & Control, Inc. This company performed work for William DeJaeger and his wife in 1960. The company was dissolved in 1962 and its assets were distributed to its shareholders, who used the assets to form plaintiff Gribaldo, Jacobs, Jones and Associates. The shareholders of the two companies were identical. After plaintiff Gribaldo purchased the policy involved here the DeJaegers brought suit against Hersey and Gribaldo, alleging that the work had been negligently performed. Gribaldo was apparently joined in the action on the theory that it was Hersey's successor in interest and its alter ego. Gribaldo moved to dismiss on the ground that it was not in existence when the alleged negligence occurred, but the trial court denied the motion. Gribaldo thereupon participated in the settlement and it sought from the trial court in the present case a declaration that defendants were liable under the policy to reimburse it for the amount it was compelled to pay to the DeJaegers.
[The policy indemnifies plaintiffs against any claim for breach of professional duties which may be brought against "them ... or any person who has been, is now, or may hereafter during the subsistence of the Insurance be *451 employed" by them or "any Architect or Engineer ... retained or employed" by them. The trial court found that the claim made against Gribaldo for the negligence of Hersey is not covered by the policy since, by its terms, it applies only to culpable conduct committed by Gribaldo and its employees.
[Gribaldo argues that defendants are liable because the trial court's ruling in the DeJaeger action establishes that Hersey and Gribaldo are identical. We do not know the basis upon which the trial court in the DeJaeger action denied the motion to dismiss Gribaldo. Although it has been held that a person need not be described by name in order to be an insured under the policy, his identity as an insured must be ascertainable by applying the description contained in the policy. (4 Appleman, Insurance Law and Practice, § 2341, p. 328.) Here the description of the insured does not cover a predecessor to Gribaldo. Thus plaintiffs cannot prevail as to this item.
(21) [Another claim which plaintiffs contend defendants must pay involves the Palo Alto Unified School District.[9] Plaintiff Testing & Controls, Inc. performed certain work for the district but determined to forego its fee in order to avoid a potential claim by the district against Testing & Controls. The trial court found that Testing & Controls had failed to obtain defendants' consent for the forgiveness of the debt and that if consent had been obtained defendants would have been liable under the policy for these fees. Admittedly, Testing & Controls did not request defendants' consent to forego payment. However, it is asserted that defendants in effect gave their consent because they were kept informed of the situation involving the district and knew of Testing & Controls' decision to forego payment. The trial court's finding that it failed to obtain defendants' consent to the settlement, as required by the policy, is supported by the evidence. Thus plaintiffs' claim on this item was also properly denied.]
Conclusion
In view of our independent examination of the terms of the policy in question we conclude that these terms were properly interpreted by the trial court. Accordingly, the trial court properly applied the applicable principles of interpretation to the various and several claims against plaintiffs which were submitted to the trial court for its determination as to whether defendants *452 were obligated to pay said claims and the costs of defense of said claims.
The judgment is affirmed.
Wright, C.J., McComb, J., and Sullivan, J., concurred.
MOSK, J.
I dissent.
Plaintiffs are soil engineers and are also engaged in testing construction materials. Underwriters are three foreign insurers who issued a policy to plaintiffs, effective April 13, 1964, insuring them against "any claim or claims for breach of professional duty which may be made" against them "arising from any negligent act, error or omission" committed by them or their employees for which they would be legally liable. It was provided that Underwriters would not be liable for any claim unless the amount exceeded the $2,500 deductible. The policy was procured through the offices of a surplus line broker, Appleton & Cox of California.
The only references in the policy relating to the defense of actions are contained in three paragraphs under the heading "Conditions." They provide as follows:
"1. The total liability of the Underwriters hereunder in respect of all claims made against the Assured in any one policy year ... together with the costs and expenses incurred in the defence of any claim shall not exceed the sum stated in the Schedule.
"2. The Assured shall not admit liability for or settle any claim or incur any costs or expenses in connection therewith without the written consent of the Underwriters, who shall be entitled at any time to take over and conduct in the name of the Assured the defence of any claim.
"Nevertheless, the Assured shall not be required to contest any legal proceedings unless a Lawyer (to be mutually agreed upon by the Assured and the Underwriters) shall advise that such proceedings should be contested.
"3. The Underwriters shall not settle any claim without the consent of the Assured. If, however, the Assured shall refuse to consent to any settlement recommended by Underwriters and shall elect to contest or continue any legal proceedings in connection with such claim, then the Underwriters' liability for the claim shall not exceed the amount for which the claim could have been so settled, together with the costs and expenses incurred with their consent up to the date of such refusal, provided always that Underwriters' *453 total liability under this Insurance shall not exceed the sum specified in the Schedule."
A substantial number of actions was filed against plaintiffs alleging breach of their professional duties and asserting damages in excess of $2,500. The dispute as to Underwriters' liability for defending these actions arose shortly after the policy was issued. Plaintiffs, with the express consent of Underwriters, utilized their own attorney to defend the suits. They filed this action in declaratory relief and prayed for judgment in the amount of their defense costs. Plaintiffs prevailed in some of the actions filed against them, and lost in some, and others were still pending at the time of this trial.
In order to comprehend the problem involved we must discriminate between Underwriters' duty to defend a third party action filed against plaintiffs and the duty to reimburse plaintiffs for their defense costs. As to the latter, the trial court found that the reference in subdivision 3 of Civil Code section 2778 to an insurer's duty to pay "the costs of defense against ... claims" applied only to those defense costs which plaintiffs had paid in satisfying judgments (or settlements) which exceeded $2,500. Thus, it concluded that if plaintiffs prevailed in a suit brought against them by a third party or if they were ultimately required to pay less than $2,500 Underwriters was not compelled to reimburse them for defense costs even if the prayer of the complaint sought more than $2,500.
Subdivision 4 of Civil Code section 2778 relates to the duty to defend actions on request of the insured "in respect to the matters embraced by the indemnity." The trial court determined that Underwriters had no obligation to defend under this subdivision and that plaintiffs made no request of Underwriters to undertake a defense of the claims but voluntarily undertook the defense. In its opinion the court stated that the duty to defend under subdivision 4 would arise only if the obligation to reimburse for a claim paid exceeded the deductible. The Underwriters could stand by, stated the court, and assume the risk that the loss to plaintiffs might exceed the deductible amount, in which event Underwriters would become liable for the excess loss and the costs of defense.
I turn to the applicability of subdivision 4 of Civil Code section 2778 to the policy involved here. At the threshold there is the problem as to whether the subdivision is to be employed in interpreting the policy since, by the terms of the section, it is to be applied only in the event a contrary intention does not appear in the policy itself. Any doubt as to whether there is an obligation to defend must be resolved in the insured's favor (Fireman's Fund Ins. Co. v. Chasson (1962) 207 Cal. App.2d 801, 805 [24 Cal. Rptr. 726]), *454 all ambiguities in a policy must be resolved against the insurer, and any exceptions to the performance of the basic underlying obligation in the policy must be so stated as to clearly apprise the insured of its effect (Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 269 [54 Cal. Rptr. 104, 419 P.2d 168]). In order to avoid importing the duty to defend imposed by subdivision 4 into the policy we must therefore find clear, unambiguous language in the policy stating that Underwriters has no duty to defend claims made against plaintiffs by third parties.
I find no such language here, and the majority point to none. The policy does not in express terms provide either that Underwriters need not defend third party actions brought against plaintiffs or that plaintiffs are required to defend such actions.
Paragraph 1 under "Conditions" in the policy, quoted above, provides merely that Underwriters' total liability, together with defense costs, should not exceed a stated sum.
Paragraph 2 provides that plaintiffs shall not admit liability for or settle any claim or incur costs or expenses in connection therewith without the written consent of Underwriters, who shall be entitled at any time to take over and conduct the defense in the name of plaintiffs.
This provision gives Underwriters the power to refuse to consent to a settlement or an admission of liability by plaintiffs and, if plaintiffs attempt to pursue such a course, i.e., if they do not wish to oppose the claim, Underwriters may take over and conduct the defense in plaintiffs' name. For example, if plaintiffs believe that it would damage their business reputation to proceed to trial on a complaint filed by a third party, they might wish to admit liability or settle but they are prohibited from doing so without Underwriters' consent. Contrary to Underwriters' contention, the fact that the provision states that it has the right to take over the defense in this situation is not inconsistent with its duty to conduct the defense where no desire of plaintiffs for settlement or admission of liability is in issue.
The next sentence of paragraph 2 states that nevertheless plaintiffs "shall not be required to contest any legal proceedings unless a Lawyer (to be mutually agreed upon by the Assured and the Underwriters) shall advise that such proceedings should be contested."
The trial court found that this provision required plaintiffs to defend claims when the lawyer so advised. While the provision conceivably can be interpreted in this manner, it is not the only rational construction of the language.
*455 Plaintiffs maintain that this sentence refers to a decision-making mechanism to be used in the event they wish to settle a claim and Underwriters contrarily insists they should "be required to contest" the claim. That is, should such a dispute arise between plaintiffs and Underwriters, the provision states that it is to be resolved by a lawyer mutually agreed upon between the parties. This construction of the sentence is plausible for several reasons. It provides some measure of protection to plaintiffs by the intervention of a neutral party whenever it would be to their interests to settle or admit liability. Moreover, the sentence is preceded by the word "nevertheless," which indicates that it is concerned with another aspect of the matter set forth in the prior sentence, i.e., admitting liability or settling claims. It must also be noted that paragraph 1 and the first sentence of paragraph 2 refer to the "defence" of claims where Underwriters intended this meaning. There is no reason to suppose that the same word would not have been employed in the second sentence of paragraph 2 (instead of the word "contest") if this is what Underwriters had intended.
The third paragraph refers to a situation the reverse of that covered by the second, i.e., a circumstance in which Underwriters desires to settle a claim but plaintiffs do not. It prohibits Underwriters from settling any claim without the consent of plaintiffs but provides that if plaintiffs refuse to consent to any settlement and elect to contest or continue any legal proceedings, then Underwriters' liability should be limited to the amount for which the claim could have been settled, together with costs up to the date of plaintiffs' refusal.
I do not intend to imply that no other meaning of these provisions is possible. Certainly contrary interpretations may be urged with rationality. Where the majority opinion falters, however, is in failing to recognize that nowhere is Underwriters' duty to defend, imposed by statute, negated by clear, unambiguous language in the policy.
The trial court indicated in its memorandum opinion that subdivision 4 of the statute applies only if the obligation to reimburse for a claim paid exceeded the deductible sum. That is, that Underwriters would discharge its obligation under the subdivision by paying plaintiffs their defense costs if a judgment or settlement against plaintiffs exceeded that amount and was paid by them. This conclusion is incorrect. Subdivision 4 imposes upon Underwriters a duty to defend an action brought against plaintiffs in respect to matters embraced by the indemnity. The provision must mean at the very least that whenever a third party brings an action against plaintiffs within *456 the policy coverage and the prayer is for more than $2,500, Underwriters must provide a defense against the third party's demand.[1]
The duty to defend, as opposed to the duty to reimburse for the costs of defense, can arise only prior to the final determination of the action. As was said in Gray v. Zurich Insurance Co., supra, 65 Cal.2d 263, 271-272, "[T]he nature of the obligation to defend is itself necessarily uncertain. Although insurers have often insisted that the duty arises only if the insurer is bound to indemnify the insured, this very contention creates a dilemma. No one can determine whether the third party suit does or does not fall within the indemnification coverage of the policy until that suit is resolved.... The carrier's obligation to indemnify inevitably will not be defined until the adjudication of the very action which it should have defended." (Fn. omitted.) Both Gray and Fireman's Fund Ins. Co. v. Chasson, supra, 207 Cal. App.2d 801, 804-805, make it clear that the obligation to defend is broader than the duty to indemnify and that the duty to defend exists if the complaint shows a potential liability within the policy coverage.
It seems evident that the defense requirement set forth in subdivision 4 necessarily must be discharged prior to final judgment. Thus, the statement in the subdivision that the duty to defend exists "in respect to the matters embraced by the indemnity" must be interpreted to mean at least that the duty arises whenever a complaint alleges a cause of action for damages the indemnitor would be compelled to pay if the third party prevails in the suit against the indemnitee.[2]
*457 Underwriters attempts to distinguish Gray, pointing out that there the requirement of a defense was contained within the four corners of the policy whereas no such provision exists in the policy involved here. It seems obvious without elaboration that there is no substantive difference between defense duties specified by policy provision and those imposed by statute. (See Interinsurance Exchange v. Ohio Cas. Ins. Co. (1962) 58 Cal.2d 142, 148 [23 Cal. Rptr. 592, 373 P.2d 640].)
Subdivision 4 also provides that the insurer must defend an action or proceeding on request of the insured. The trial court found that plaintiffs did not request that Underwriters undertake the defense of these actions and that plaintiffs voluntarily undertook this burden. However, Underwriters was notified of every action brought by third parties against plaintiffs and appropriate claim forms were filed with Underwriters.
An insurance adjuster employed by Underwriters testified that he acted on its behalf in attempting to work out problems with plaintiffs in connection with providing a defense against third party claims. He stated further that there had been a dispute on this subject from the inception and that he was aware of plaintiffs' interpretation of the policy. In order to avoid a multiplicity of lawsuits whenever a third party filed an action against plaintiffs in excess of $2,500, as Underwriters' agent he recommended that plaintiffs' attorney be employed to defend the actions.
This evidence shows that Underwriters, with notice of third party claims in excess of $2,500, and with knowledge of plaintiffs' interpretation of the policy provisions, employed plaintiffs' own attorney to defend the actions. Moreover, as we shall see, Underwriters knew, even before the issuance of the policy, that plaintiffs' attorney would be employed at Underwriters' expense to defend actions in which a third party sought more than $2,500 in damages. Since Underwriters chose to discharge its duty to defend by employing plaintiffs' attorney for this purpose it must be held to have waived the statutory, and in this circumstance the meaningless, requirement that plaintiffs make a demand for a defense.
My interpretation of the defense duties of Underwriters is indicated not only by the legal construction discussed above but also by pragmatic aspects of the parties' relationship. If the policy were to be construed as requiring plaintiffs to defend all actions filed against them by third parties they would have little incentive to seek a defense verdict in many cases. In all superior court actions which were brought by third parties the prayer is for more than $2,500 and in many instances plaintiffs' eventual liability is less than that sum. Attorney's fees and costs exceed $2,500 in a substantial number *458 of the actions filed by these third parties. If plaintiffs lose these cases their liability will be limited to $2,500 but if they win they could be liable for attorney's fees far exceeding that amount.
Even if Underwriters exercises its right under the policy to assume the defense of a claim it might be psychologically difficult for plaintiffs to cooperate fully when a verdict for them would cost them more than an adverse judgment. In one case costs of defense have already mounted to $9,500. Underwriters has assumed the defense, and plaintiffs' liability if the suit is won will be several times over its liability if it is lost.
Underwriters concedes the foregoing possibilities, but insists it will assume the risk. It suggests the danger is obviated by the policy provision that the insurance is void if plaintiffs prefer any claim knowing it to be false or fraudulent. Moreover, it asserts the risk of noncooperation exists theoretically in every policy since whenever a party is fully insured he has no pecuniary interest in defending the suit but the problem rarely arises because an insured is generally sufficiently interested in the outcome of the suit to cooperate with the insurer.
While the foregoing contention may have merit, the undeniable fact is that if the policy is interpreted as Underwriters maintains it should be, plaintiffs would advance their pecuniary interest in many cases by failing to cooperate if Underwriters conducts the defense and by losing the suit if plaintiffs themselves were defending. We do not suggest that a policy may not provide for such consequences, but these practicalities have a bearing upon the reasonable interpretation to be given the terms of the contract. A policy should not be interpreted to compel a party to "indulge in financial masochism." (See Critz v. Farmers Ins. Group (1964) 230 Cal. App.2d 788, 801 [41 Cal. Rptr. 401, 12 A.L.R.3d 1142].)
The trial court's interpretation of the policy was incorrect for other reasons than those set forth above. The court concluded that the policy was not ambiguous, but nevertheless during the trial it admitted evidence regarding the negotiations which led up to the purchase of the policy by plaintiffs, subject to a motion to strike. This evidence consisted largely of conversations between plaintiffs' attorney and Ralph Jackson, an employee of Appleton, the broker through which the policy was purchased. There was also documentary evidence of communications between plaintiffs' attorney and Appleton as well as between Appleton and a London broker who placed the insurance with Underwriters. Underwriters moved to strike this evidence on the grounds that it violated the parol evidence rule, that it was immaterial, and that no proper foundation was laid because Appleton was *459 not an agent of Underwriters and representations by Appleton's employees could not bind Underwriters.
The trial court found that the policy was not ambiguous and that Appleton was not the agent of Underwriters. However, it did not rule on the motion to strike because, according to its memorandum opinion, it found that nothing in the evidence offered by plaintiffs showed an intent of the parties contrary to that expressed in the policy as interpreted by the court.
I assume for the purpose of discussing this aspect of the case that the trial court was correct in concluding that Jackson was not an agent of Underwriters and I shall not consider the testimony regarding his representations to plaintiffs' attorney. However, the court was not correct in its determination that the policy was unambiguous, as is evident from my prior discussion. In any event, it was required to admit the extrinsic evidence under the rule set forth in the majority opinion in Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33 [69 Cal. Rptr. 561, 442 P.2d 641], decided after judgment was rendered by the trial court.
If we confine our consideration of the extrinsic evidence to communications between Appleton and Underwriters, the conclusion is compelled that Underwriters knew that plaintiffs' understanding of the policy prior to its purchase was that Underwriters would pay all legal costs if a third party's claim exceeded $2,500. Plaintiffs' attorney was concerned about who would bear the cost of defending actions under the policy and he contacted Jackson, who made certain representations to him on the subject. Jackson in turn dealt through a London broker who arranged Underwriters' acceptance of the risk and who was the only person involved in the negotiations with the ability to make direct contact with Underwriters. Prior to the purchase of the policy, Jackson wrote the London broker as follows: "A question arose ... on the subject of defense costs, and we have indicated that the deductible would not apply to such costs.... The point also arose regarding the use by the assured of their own attorney. We have indicated that in cases where the claim was under the deductible that, subject to underwriters being put on notice, the use of such attorneys (who are apparently well versed in this type of business) would be in order, but at the assured's cost. If, however, the claim was in excess of the deductible, then underwriters would probably approve the continued use of such attorneys subject to the supervision by an attorney of their own chosing [sic], the total legal cost to be borne by underwriters. We shall be obliged if you will ... verify our understanding regarding defense."[3]
*460 The reply from the London broker was a cablegram stating, "Please refer to policy conditions one and two." Jackson thereafter wrote agents of plaintiffs, "You will recollect that the main question to be resolved is that pertaining to defense, and your attention is drawn to conditions 1, 2 and 3 of the insuring agreement, which will be found to be self-explanatory."
Jackson testified that when he used the term "claim" in the letter quoted he meant the claim by plaintiffs against Underwriters after plaintiffs had satisfied a judgment in an action brought by a third party and not a claim in an action brought by a third party against plaintiffs. However, the letter is not reasonably susceptible of such construction. There would be no need for the continued use of an attorney subject to the supervision of another attorney to collect from Underwriters a sum which plaintiffs had already paid out pursuant to a judgment or a settlement.
Thus, Underwriters knew that plaintiffs had some question regarding defense costs prior to the issuance of the policy and knew that Appleton had represented to plaintiffs that they could use their own attorneys to defend third party claims at Underwriters' cost in the event the prayer was over $2,500. Yet, when asked for a verification of this understanding it merely referred plaintiffs to provisions of the policy which did not clarify the issue. Underwriters must, of course, be charged with knowledge of its statutory duty to defend absent a clear policy provision to the contrary. It is elementary that if Underwriters knew that in purchasing the policy plaintiffs understood a defense would be provided for third party claims over $2,500, in the absence of an unequivocal correction of that understanding plaintiffs' interpretation of the policy must prevail. (See 3 Corbin on Contracts (1960) § 537, p. 45.)
I am convinced that under the circumstances of this case plaintiffs should have been awarded damages. However, I have no disagreement with the majority on the disposition of the two claims involving Hersey Testing & Control, Inc.
I would return the matter to the trial court for the purpose of computing damages sustained by plaintiffs in accordance with the views expressed in *461 this opinion, since it may be that some of the third party claims which were pending at the time of the judgment have now been finally resolved.
The judgment should be reversed.
Peters, J., and Tobriner, J., concurred.
NOTES
[1] Brackets together, in this manner [], are used to indicate deletions from the opinion of the Court of Appeal; brackets enclosing material (other than the editor's added parallel citations) are, unless otherwise indicated, used to denote insertions or additions by this court. (Keizer v. Adams, 2 Cal.3d 976, 978, fn. 1 [88 Cal. Rptr. 183, 471 P.2d 983].)
[2] Unless otherwise indicated, all statutory references hereinafter made are to the Civil Code.
[3] Other findings and conclusions of the court are discussed below where particularly pertinent to the contention under consideration.
[4] Section 2778 reads in pertinent part: "In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears: 1. Upon an indemnity against liability, expressly, or in other equivalent terms, the person indemnified is entitled to recover upon becoming liable; 2. Upon an indemnity against claims, or demands, or damages, or costs, expressly, or in other equivalent terms, the person indemnified is not entitled to recover without payment thereof; 3. An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in good faith, and in the exercise of a reasonable discretion; 4. The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, if he chooses to do so; ..."
[5] With respect to Gray v. Zurich Insurance Co., supra, we note that the construction of the insurance policy was based upon its terms without the aid of extrinsic evidence.
[6] The procedure of admitting evidence conditionally by either reserving its ruling on the objection or by admitting the evidence subject to a motion to strike is proper where the trial court is not in a position to determine, whether in the light of all the offered evidence, the item objected to will turn out to be admissible. (See Pacific Gas & Elec. Co. v. G.W. Thomas Drayage etc. Co., 69 Cal.2d 33, 40, fn. 7 [69 Cal. Rptr. 561, 442 P.2d 641]; and see Evid. Code, § 403.)
[7] The trial judge, in his memorandum opinion, states as follows: "A fair interpretation of the correspondence of the parties relating to the negotiations for the insurance coverage and the testimony given at the trial confirms the understanding of the underwriters as expressed in the policy. It demonstrated that the underwriters did not agree to pay costs of defense unless they authorized and undertook the defense or unless the plaintiffs paid a claim in an amount exceeding $2500.00 previously consented to by them in writing."
[8] The "Memorandum Decision" which we are entitled to use for the purpose of discovering the process by which the trial judge arrived at his conclusions (Union Sugar Co. v. Hollister Estate Co., 3 Cal.2d 740, 750 [47 P.2d 273]; Henderson v. Fisher, 236 Cal. App.2d 468, 472 [46 Cal. Rptr. 173]), indicates that the trial court specifically applied this rule. The trial court notes that "... a policy which indemnifies against any claim is not one which indemnifies against `liability' but, rather, is one which imposes the obligation upon the indemnitor only if the indemnitee has paid a claim for which coverage is provided in the policy. Thus the liability occurs only when an actual loss has been sustained by the indemnitee."
[9] Defendants aver that the forgiveness of a fee cannot properly be called a "claim" under the policy. The term is used here for purposes of literary convenience.
[1] I do not mean to imply that the duty to defend is limited to a situation in which the complaint alleges a cause of action relating to a risk within the policy. In Gray v. Zurich Insurance Co., supra, 65 Cal.2d 263, we held that even where the complaint alleged a risk outside the carrier's liability to indemnify the insured, the carrier would be compelled to defend the action if potential liability was created by the suit. Thus, the insurer was required, in determining potential liability, to take cognizance of facts outside the complaint which would raise the possibility that it would be liable under the policy. Here we have a stronger case than Gray i.e., the complaint alleges coverage within the policy but the carrier nevertheless argues that it has no duty to defend.
[2] In connection with the holding in Gray that there may exist a duty to defend even if the complaint alleges a risk outside the policy coverage, we stated that the third party should not be permitted to act as the arbiter of the policy's coverage by confining the insurer's duty to defend to the face of the complaint. (65 Cal.2d at p. 276.) Underwriters, relying upon this statement, contends that if we require an insurer to defend whenever the complaint shows on its face a liability within the policy coverage, we would be rendering the third party complainant the arbiter of the insured's rights under the policy, contrary to the statement in Gray. If we were to accept this argument the duty to defend imposed upon an insurer would be rendered virtually meaningless. Clearly, Gray held that the insurer must defend in all cases in which the complaint upon its face alleges a risk within the policy but it extended the duty even further in a situation involving knowledge by the insurer of a potential risk from information dehors the policy.
[3] It should be noted that Jackson used the phrase "... subject to Underwriters being put on notice ..." and not the statutory term in subdivision 4, "... on request of the person indemnified...." The evidence is uncontradicted, as discussed above, that Underwriters was notified of every action brought by third parties. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1760502/ | 704 So. 2d 361 (1997)
Edwin L. BARTON, Sr., et ux., Plaintiffs-Appellees,
v.
WAL-MART STORES, INC., Defendant-Appellant.
No. 97-801.
Court of Appeal of Louisiana, Third Circuit.
December 10, 1997.
*362 Philip Gardiner Hunter, Alexandria, for Edwin L. Barton Sr., et ux.
James Dey Kirk, Alexandria, for Wal-Mart Stores, Inc.
Before THIBODEAUX, AMY and SULLIVAN, JJ.
AMY, Judge.
Plaintiffs, Edwin and Alice Barton, filed suit against the defendant alleging that Edwin was injured after a near fall caused by an allegedly hazardous condition inside a Wal-Mart store. The trial court found in favor of the plaintiffs. The defendant, Wal-Mart, now appeals. For the following reasons, we affirm.
DISCUSSION OF THE RECORD
This case arises from an accident which occurred on November 15, 1993, at approximately 11:30 a.m., inside a Wal-Mart store located in Alexandria, Louisiana. The undisputed testimony in the record reveals that, on the morning in question, there was inclement weather in the area, ranging from moderate to light rain. Mr. Barton testified that, on the drive to Wal-Mart from his residence in Forest Hill, Louisiana, he experienced moderate rain which tapered off to "just a mist, what's called a sprinkle." Mr. Barton further testified that he noted the existence of puddles in Wal-Mart's parking *363 lot. Then, upon entering the store and wiping his feet on two different sets of mats, Mr. Barton slipped and nearly fell injuring his left knee and ankle.
Mr. Barton filed suit against Wal-Mart for the injuries he allegedly sustained as a result of the near fall. Mr. Barton alleged that the condition of the floor inside the store presented an unreasonable risk of harm to him and other patrons, Wal-Mart knew or should have known that the condition could cause injuries like those suffered by him, and Wal-Mart failed to exercise reasonable care to prevent the accident. Along with the damages sought by the plaintiff, his wife, Mrs. Barton, sought damages for loss of companionship, security, love and affection, which resulted from her husband's injuries.
On January 23, 1997, before hearing evidence, the trial judge considered the defendant's motion in limine to exclude the testimony of Joel McMickens, a mail carrier and a pastor. The trial judge denied Wal-Mart's motion. Following the trial on the merits, the trial judge found in favor of the Bartons. In the reasons for ruling, the trial judge found that, on the rainy day in question, Mr. Barton was injured when he slipped and nearly fell on a mixture of water and a foreign substance inside the defendant's store, a condition which presented a foreseeable, unreasonable risk of harm. The trial judge noted that Wal-Mart had actual notice that more customers used the main entrance to the store, and, therefore, on rainy days, "more water would accumulate in the vestibule than in the other entrances because the majority of the customers used that entrance." Additionally, the trial judge noted that although the defendant presented testimony concerning its "`written rainy day procedure', [the procedure] was not properly implemented." Accordingly, the trial judge awarded Mr. Barton $36,405.50 for his damages. The trial court also awarded $1,000.00 to Mrs. Barton on her loss of consortium claim.
Wal-Mart filed this appeal and asserts the following as error: (1) the trial court erred in finding that the condition of the floor or the level of monitoring of the condition of the entrance floor presented an unreasonable risk of harm to Mr. Barton; and (2) the trial court erred in allowing into evidence the testimony of Joel McMickens, testimony which was inconsistent with prior rulings and unfairly prejudicial to the defense.
LAW
Liability
Wal-Mart first contends that, assuming the factual findings of the trial court are correct, the trial court erred in concluding those factual findings were sufficient to support the finding that Mr. Barton's injuries were caused by an unreasonably dangerous condition in the store. Wal-Mart further contends that the trial court, effectively imposing on it a higher standard of care, "held [it], not to a standard of reasonableness, but strictly liable based only on finding causation and damages."
In order for a merchant to be liable to a patron under a theory of negligence in a slip and fall case, the plaintiff must satisfy the burden of proof set forth in La.R.S. 9:2800.6[1]. At the time of the plaintiff's accident, La. R.S. 9:2800.6 provided in pertinent part:
A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on the merchant's premises, the claimant shall have the burden of proving, *364 in addition to all other elements of his cause of action, that:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable;
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence; and
(3) The merchant failed to exercise reasonable care.
C. Definitions:
(1) "Constructive notice" means the condition existed for such a period of time that it would have been discovered if the merchant failed to exercise reasonable care.
In evaluating the reasonableness of the protective measures employed by a merchant, this court has considered the following factors to be viewed in light of the circumstances present in each case: "the risk involved, the merchant's type and volume of merchandise, the type of display, the floor space used for customer service, the volume of business, the time of day, [and] the section of the premises[.]" Thompson v. Stalnaker's Restaurant, 93-1447, pp. 4-5 (La.App. 3 Cir. 6/1/94), 640 So. 2d 733, 736, writ denied, 94-1799 (La.10/14/94), 643 So. 2d 165. A trial court's finding of liability for damages caused by a slip and fall accident at the defendant's place of business, as well as the presence of comparative fault, are factual determinations that will not be disturbed absent manifest error or unless clearly wrong. Myles v. Brookshires Grocery Co., 29,100 (La.App. 2 Cir. 1/22/97), 687 So. 2d 668.
In its recent decision of White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So. 2d 1081, the Louisiana Supreme Court, finding that La.R.S. 9:2800.6 was clear and unambiguous, overruled Welch v. Winn-Dixie Louisiana, Inc., 94-2331 (La.5/22/95), 655 So. 2d 309. In doing so, the court held that "[t]he statute does not allow for the inference of constructive notice absent some showing of the temporal element. The claimant must make a positive showing of the existence of the condition prior to the fall." White, 97-393, p. 3, 699 So.2d at 1084. Whether this period of time is sufficient to result in a finding that the merchant had constructive notice of the hazardous condition is a question of fact. Id.
In White, Justice Traylor, writing for the majority, noted several cases where the plaintiff carried his burden of showing actual or constructive notice, including Oalmann v. K-Mart Corp., 630 So. 2d 911 (La.App. 4 Cir.1993), writ denied, 94-0244 (La.3/18/94), 634 So. 2d 859. See id. at 5, n. 4, 699 So.2d at 1084 n. 4. In Oalmann, the fourth circuit affirmed the trial judge's finding that K-Mart, the defendant in that case, was liable pursuant to La.R.S. 9:2800.6. Similar to the case sub judice, the plaintiff in that case, Ms. Oalmann, slipped and injured herself upon entering K-Mart on a rainy day. The protective measures employed by K-Mart included two sets of mats at the entrance. However, no warning cones were visible to alert customers of the wet conditions. Ms. Oalmann testified that, once she fell, her hand landed in a puddle of water on the floor. The fourth circuit determined that the puddle Ms. Oalmann slipped on created an unreasonable risk of harm, which K-Mart could reasonably foresee that a customer could slip on. Next the fourth circuit, addressing whether the "merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence[,]" wrote:
Ms. Oalmann testified that it had been raining on the day of her fall. K-Mart does not controvert this fact.... Thus, K-Mart did have knowledge of the weather conditions on the day of the accident. Consequently, K-Mart should have known that the rain would cause the floor where the accident occurred to become wet and slippery. The evidence does not clearly establish precisely how long the floor was wet prior to Mrs. Oalmann's fall. Considering the volume of business conducted at a large retail store such as the K-Mart in Meraux and the constant influx of customers, it is foreseeable that the floor near an entrance would become wet, and thus slippery, in a relatively short period of time. It is the opinion of the Court that the accumulation of water at the entrance existed *365 for such a time that K-Mart should have discovered the danger. Given the totality of the circumstances, the Court finds that K-Mart had the requisite constructive notice of the wet floor which caused the fall.
Oalmann, 630 So.2d at 913.
The trial judge, in the case sub judice, in his written reasons for judgment, made the following factual findings:
On November 15, 1993, Edwin Barton (hereinafter "Plaintiff") and his wife went shopping at the Wal-Mart Store (hereinafter "Defendant") located on MacArthur Drive in Alexandria. It rained that day. Therefore, plaintiff walked into the entrance of the store and wiped his boots on a rug. Past the vestibule, and inside the store, he wiped his feet again on another rug. However, after walking a few more steps inside the store, he slipped and almost fell due to a mixture of water and a foreign substance on the floor.
After the incident, plaintiff made his way to a bench near the entrance and removed his boots. He noticed that his ankle had begun to swell. Consequently, he also saw and felt a foreign substance on his neoprene sole cowboy boots and described it as being sticky like liquid detergent or Karo syrup. At that time, a store employee appeared with a mop to clean the area where plaintiff slipped.
Also, as found in the "Law and Argument" section of his reasons, the trial judge made these additional findings:
Although mats were placed in the entrance of Wal-Mart, they only absorbed some of the water in the vestibule. Apparently it was not enough to prevent plaintiff's accident. Furthermore, Wal-[M]art has high volume traffic even on rainy days.
* * * * * *
Wal-[M]art has three (3) entrances: the garden section; automotive; and the front door. However, it is an undisputed fact that most customers enter through the front door. Rainy days are no exceptions. On the day of plaintiff's accident it rained. Therefore, defendant had actual notice that more water would accumulate in the vestibule than in the other entrances because the majority of the customers used that entrance.
Although testimony deduced that defendant had a "written rainy day procedure", it was not properly implemented. Since most customers use the front entrance, defendant could have simply placed more mats in that area. Hence, defendant's failure to adequately respond to an unsafe condition infers a failure to exercise reasonable care.
Mr. Barton testified that, after opening the outside door for his wife, he wiped his cowboy boots on the mats located in the vestibule. Mr. Barton further testified that they continued through the second set of double doors where a second set of mats was located. With regard to the accident that followed, Mr. Barton testified:
We wiped our feet again on that little rug that was on the inside of it and then walked on past, and I spoke to the greeter lady. And probably three or four steps past her, I slipped and injured my left knee and ankle.
* * * * * *
... [W]e were walking in and I made a step. And as my left footwhen I touched the floor with my left foot, well, itslipped forward andand it rolled my ankle over and then threw all the weight onto my knee.
Mr. Barton's account of his accident mirrored the testimony of his wife, Alice Barton, and Wilma Davis, another patron of Wal-Mart who witnessed the accident on the morning of November 15, 1993.
The conflicting testimony concerns the condition of the entranceway on this particular morning. The Bartons both testified that the floor was visibly wet, whereas, Wal-Mart personnel maintained that the floor was dry. Mr. Barton testified that the wetness, a mixture of rain and debris tracked in from outside, extended past the people greeter. Mrs. Barton made a similar observation. Mr. Barton further testified that, after regaining his balance, he noted:
[The spot he slid on] was approximately eight inches wide and probably a foot long. *366 And ... the floor was ... dirty. It wasn't mud, but it was dirt from people tracking in. And ... it extended on probably almost to the little Wal-Mart greeting face that's usually on the floor there.... [T]he dirt and wetness tapered out further in the store you get.... And it looked like something had been spilled and incorporated into the water into the trash[.]
Mr. Barton further testified that it appeared that other people had also stepped on the spot that he did because "you could see the sliding marks where shoe soles had slid on... this stuff." Additionally, Mr. Barton testified that the mats located in the vestibule and inside the main entrance were saturated and he did not notice any warning cones to alert the patrons of the slippery conditions. Both Mr. and Mrs. Barton testified that, while waiting for the co-manager to come up front after the accident, a Wal-Mart employee appeared with a dry mop and mopped the area where Mr. Barton slipped. The Bartons testified that someone from the customer service counter remarked to the unknown maintenance worker, "Don'tyou shouldn't be mopping that up?"
Rita Epps, a longtime employee of Wal-Mart, testified as to the size of the store, type of business, and general working procedures of Wal-Mart. According to Ms. Epps, the Wal-Mart store where Mr. Barton allegedly was injured is 122,000 square feet. Additionally, Ms. Epps testified that a majority of the customer traffic comes through the main entrance. Ms. Epps, discussing Wal-Mart's rainy day procedure, testified that the purpose of the mats at the doors on rainy days was "to catch the rain from people coming into the store." Also, there was no regular interval for management personnel to make inspections of the front area to insure that, on rainy days, this high traffic area was maintained properly. Ms. Epps further confirmed that on previous rainy days she witnessed rain water extending beyond the floor mats which created a hazardous condition. Ms. Epps also stated that, if the mats were saturated, the mats should be replaced. However, in her fourteen years of employment with Wal-Mart, she had no personal knowledge of a mat being replaced during working hours. Instead, mats were commonly replaced at night, when necessary, because the task required that the doors be blocked off. Lastly, Ms. Epps admitted that, if water was extending past the mats, it would be no problem to add additional dry mats, which were available, on the floor of the entranceway. The decision of how many mats and in what configuration the mats would be placed was made by the maintenance worker on duty. There was no set procedure.
Keith Blanchard, who was co-manager of the MacArthur Drive Wal-Mart at the time of Mr. Barton's accident, also testified. Mr. Blanchard testified that, after being informed of Mr. Barton's accident, he went to the front of the store and inspected the floor for debris or wetness. Mr. Blanchard testified that he ran his hand across the floor and found it to be dry. However, Mr. Blanchard testified that he had no knowledge of any employee dry mopping the area between the time of the accident and his arrival to the front of the store. Mr. Blanchard, when questioned as to the average shopping volume at Wal-Mart, a mass merchandiser, testified, as follows:
A In that store, probably between, and this is three yearstwoyears later, between five and eight thousand a day.
Q Do you know what the average dollar volume of sales is daily?
A I don't know the average.
Q Just a ballpark.
A Anywhere from fifty to over a hundred thousand a day on abusy day.
Like Ms. Epps, Mr. Blanchard testified that it would be ordinary safety to add additional mats if water was being tracked past the existing mats. Mr. Blanchard does not recall noticing any warning cones placed in the area.
Velma Page was the People Greeter on duty at the time of Mr. Barton's accident. Ms. Page confirmed the specific duties of the People Greeter on rainy days. Ms. Page testified that the People Greeter was supposed to greet patrons, as on ordinary days, but, additionally, she was to put umbrellas in bags, make sure the mats and warning cones were in place at the entrance, and that the *367 floor was dry. To aid her in her task of keeping the floor dry, Ms. Page testified that she maintained a dry mop to pass across the floor, as needed. Ms. Page testified that, on the morning of the accident, five mats and warning cones were in place. Although, Ms. Page did not see the actual accident, she testified that she did see a heel mark approximately six inches long at the point where Mr. Barton says he slipped. Ms. Page further testified that she did not see anyone dry mop the area between the time of Mr. Barton's accident and Mr. Blanchard's inspection of the area. Additionally, Ms. Page testified that she had no doubt in her mind that the floor was dry at the time Mr. Barton allegedly slipped and almost fell.
We agree with the defendant that La.R.S. 9:2800.6 does not require a merchant to guarantee a totally dry surface. And, while we recognize that the lack of organized protective measures will not necessarily render a merchant liable, we also recognize that the existence of preventive measures alone will not eliminate liability. Protective measures established by a merchant, even if, in theory, reasonable to combat a possible hazard inside the merchant's place of business, are of no effect if not properly implemented. The trial court found that Wal-Mart, in neglecting to follow its own "written rainy day procedure[,]" failed to exercise reasonable care and, therefore, was liable for the damages caused by the unreasonably dangerous condition in the store. Additionally, the trial court credited the testimony of the Bartons when he found that the area had been dry mopped between the time of the accident and the inspection by Mr. Blanchard.
As previously discussed, the findings of a trier of fact are reviewed using the manifest error/clearly wrong standard, and such findings based on the credibility of witnesses are to be accorded great weight. Rosell v. ESCO, 549 So. 2d 840 (La.1989). Our review of the record does not indicate that the trial court was clearly wrong in its findings. Wal-Mart is a high volume business. Furthermore, the area where the accident occurred is a high traffic area where large numbers of patrons enter the store. The risk that water will accumulate in this area on rainy days is great. In fact, Ms. Epps, a Wal-Mart representative, testified that such a situation was an unreasonable risk of harm and had been known to happen on rainy days in the area where Mr. Barton slipped and almost fell. When patrons are made to walk through a known high traffic area, across mats that are saturated with rain, a reasonable trier of fact could conclude that this creates an unreasonable risk of harm where it is foreseeable that a slip and fall accident is likely to occur. And, Wal-Mart's "written rainy day procedure" "cannot be effective, or reasonable if not followed." Thompson, 93-1447, p. 6, 640 So.2d at 737.
Accordingly, this assignment lacks merit.
Testimony of Joel McMickens
Wal-Mart next contends that the trial court erred in allowing into evidence the testimony of Joel McMickens, the mail carrier who delivered mail to Wal-Mart on the morning of the accident, arguing that the evidence was unfairly prejudicial to the defense. In support of this contention, Wal-Mart argued that the testimony of Mr. McMickens was neither relevant nor admissible pursuant to La.Code Evid. art. 401.
The trial judge denied Wal-Mart's motion in limine. In so ruling, the trial judge, noting that it was a bench trial, found the defendant's arguments applicable to the weight of Mr. McMickens testimony rather than the relevance. As such, the trial judge ruled, as follows:
The Court, since this is a judge trial, will make a determination as to credibility or the accuracy of his testimony, whether the testimony is derived from his own personal knowledge or whether came about as a result of reflected conversation with the plaintiff in this case. Since this is a bench trial, the Court will allow that to take place and will give it its proper weight, if any, at the time that it is deduced at trial. And, for that reason, your motion is denied. I will allow that person to testify.
The following testimony was presented at trial. Mr. McMickens testified that, at church services held on the Wednesday following the accident, he noticed Mr. *368 Barton was using crutches. Mr. McMickens, explained further:
Well, I had seen him on Sunday, and he was feeling fine. No crutches or anything. And then on Wednesday night when we got to church, all of a sudden, here he is on crutches. So I inquired as to what's happened, you know. And he shared with me the incident at Wal-Mart.
Mr. McMickens further explained that "as [Mr. Barton] told me [about the accident], I was thinking to myself, this isthis is really a big coincidence because I almost fell myself that day. It was raining." Mr. McMickens recalled having a similar experience on the same day as the accident, when he was inside the store delivering the mail. Mr. McMickens testified that he generally delivers the mail to Wal-Mart between 10:00 and 11:30 a.m. On the day of the accident, Mr. McMickens testified that, to the best of his recollection, he delivered the mail between 10:30 and 11:30 a.m. Recalling that occasion, Mr. McMickens testified:
Well, as I went through, I got through the exterior door and went through the what I call foyer and then on into the inner part of the store there. And after around a few steps, I would say approximately six to eight feet, all of a sudden both feet went forward like Iscooted approximately about a foot or a foot and a half. Enough that I almost lost my footing, but yet I maintained it. And I looked back out of curiosity to see how far I'd scooted....
Q Was that six or eight feet pass [sic] thespot where the mats were?
A Well, at the time, the mats were just in thebetween those two doors ...
* * * * * *
Q And what was the condition of the floor that you were walking on when you slipped?
A It was pretty wet.
Q And could you see footprints on it?
A Well, I see where I skidded.
Q All right. Was itdid it appear to be water?
A It appeared to be aan accumulation of water due to the rain that had been coming down.
Q And this was water that would have been getting past the mats?
A Right. Apparently so.
From the trial judge's written reasons, it is impossible to ascertain what weight, if any, was given to Mr. McMickens' testimony. Evidence and testimony can be excluded if its probative value is outweighed by the danger of unfair prejudice, despite the fact that it is relevant. La.Code Evid. art. 403. A trial judge is vested with great discretion in weighing the probative value of evidence with its potential prejudice. Hebert v. Angelle, 600 So. 2d 832 (La.App. 3 Cir.), writ denied, 604 So. 2d 997 (La.1992). It is clear that the trial court was well within its discretion to allow the testimony into evidence. Accordingly, this assignment also lacks merit.
DECREE
For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendant/appellant, Wal-Mart Stores, Inc.
AFFIRMED.
NOTES
[1] This statute was substantively amended by Act No. 8 of the First Extraordinary Legislative Session of 1996, effective May 1, 1996. Section 2 of that Act declares that "the provisions of the Act shall apply only to those causes of action arising on or after the effective date of this Act." We note that the trial court cited to the revised version of La.R.S. 9:2800.6. However, we find this error harmless. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2141901/ | 47 Cal.App.3d 783 (1975)
121 Cal. Rptr. 200
ELAINE CAIN et al., Plaintiffs, Cross-defendants and Respondents,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant, Cross-complainant and Appellant.
Docket No. 34842.
Court of Appeals of California, First District, Division Four.
April 30, 1975.
*789 COUNSEL
Nagle, Vale, McDowall & Cotter and Vernon V. Vale for Defendant, Cross-complainant and Appellant.
Bishop & Barry, Nelson C. Barry and Neil R. Bardack for Plaintiffs, Cross-defendants and Respondents.
OPINION
EMERSON, J.[*]
PRELIMINARY STATEMENT
Elaine Cain was injured in a single car collision. The automobile involved in the accident was owned by Bing Woo Jew and insured by State Farm Mutual Automobile Insurance Co. (State Farm); the liability limits of this policy were $25,000.
Elaine Cain subsequently filed an action against Bing Woo Jew. Prior to trial settlement offers were put forth by Miss Cain's attorney; these were rejected by State Farm although the offers were within the policy limits. The jury found that Jew had been operating the vehicle at the time of the accident, and returned a verdict in the amount of $57,883 in favor of Cain. Of this amount $25,000 was paid to Cain by State Farm pursuant to the Jew insurance policy.
*790 Jew thereafter executed a written assignment to Cain transferring to her any cause of action he might have against State Farm by virtue of its failure to settle within the policy limits, including the right to sue for the amount of the excess verdict. He reserved to himself, however, any cause of action for physical injuries sustained as a result of the failure to settle. Subsequently, Cain and Jew jointly brought the present action against State Farm alleging bad faith breach of contract and seeking compensatory and exemplary damages. The jury returned a verdict in the amount of $32,883.69 (the amount of excess over the policy limit) in favor of Cain, and a verdict in favor of Jew in the amount of $25,000 compensatory damages and $115,000 punitive damages. Judgment was entered on these verdicts and State Farm appeals.
ADDITIONAL FACTS
Immediately after the accident Jew told investigating police officers that he had been driving the car. Shortly thereafter, upon learning that Cain had been seriously injured and might die, Jew changed his statement and said that Cain had been driving at the time of the accident. He disclosed these facts to his insurer.
State Farm referred the file to counsel and unquestionably investigated the case most thoroughly. State Farm's attorney testified at the trial of this case that he realized that Cain had been seriously injured, and that were liability established her damages would exceed the policy limits of $25,000. The attorney also recognized Jew's credibility problem and apprised State Farm as follows: "`First of all, our man damaged his credibility by lying at first to the police assuming it was a lie telling them that he was the driver ... it will come out that Woo [Bing Woo Jew] did not change his story until after the officer had found out from the hospital and told Woo that the girl might die and ... of the possibility that the case would involve a manslaughter charge. It can be argued with some force that as between the two versions that Woo gave the police he had a more compelling reason to lie in the second version....'" Counsel for State Farm also informed the company that Miss Cain would be "`... a very good witness in her own behalf ... [and] that the plaintiff would have the advantage on the all-important issue of witness ability and credibility as opposed to our 39-year-old, married Chinese sailor insured.'"
Also known to State Farm and its attorneys, arising out of the initial investigation of this accident, were other factors that weighed on the *791 issue of the credibility of its insured. The windshield of the vehicle was broken on the right side generally in front of the passenger's seat, yet Jew sustained no severe head injuries. Cain however had a depressed skull fracture on the right side of her head which ran in a horizontal fashion. State Farm recognized this as a factor bearing on the issue of credibility.
After the receipt of Cain's demand to settle the lawsuit for $25,000 the ambulance driver was deposed by State Farm. It was his opinion that Jew was the driver of the vehicle at the time of the accident. He stated that Jew was standing outside the vehicle when the ambulance arrived at the scene, that Miss Cain was found on the passenger side of the car, and that it appeared to him that Cain had been thrown into the windshield from a position in the passenger's seat. A second settlement offer was thereafter made by plaintiff Cain. At this point State Farm realized that there was sufficient evidence to support a plaintiff's verdict, and that if there were a plaintiff's verdict, it would be far in excess of Jew's policy limits. Nonetheless, State Farm refused to consider the settlement offers, apparently taking the position that the issue of liability was worth the risk of litigation.
SUFFICIENCY OF THE EVIDENCE AS TO THE AWARDS OF COMPENSATORY DAMAGES
State Farm urges that the Cain award, and the award to Jew of damages for mental distress, should be reversed on the grounds that there is insufficient evidence to support a finding of bad faith.
(1a) Under California law, every liability insurance policy carries an implied covenant obligating the insurer to act in good faith in considering settlement offers. (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 659 [328 P.2d 198, 68 A.L.R.2d 883].) This obligation requires that the insurer give the offer its intelligent and informed consideration; that the insurer advise the insured of any settlement offers, together with the results of its investigations; and that the insurer give equal consideration to the interests of its insured. A breach of any of these obligations, when coupled with a refusal to settle within the policy limits, renders the insurer liable for the entire amount of a judgment against its insured, including any portion in excess of policy limits. (Davy v. Public National Ins. Co. (1960) 181 Cal. App.2d 387, 394-396 [5 Cal. Rptr. 488].) (2a) It is not disputed that State Farm retained experienced counsel, undertook extensive investigation, and informed Jew of all settlement offers. The issue therefore is whether State Farm failed to give *792 equal consideration to the interests of its insured, Bing Jew, in refusing the settlement offers. The test to be applied in making such a determination is "... whether a prudent insurer without policy limits would have accepted the settlement offer." (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 429 [58 Cal. Rptr. 13, 426 P.2d 173] [italics added].)
(1b) Liability need not be predicated upon a showing of dishonesty, fraud or concealment, although evidence of the latter is obviously relevant to a determination that the insurer failed to give consideration to the insured's interest. Liability is not imposed for a bad faith breach of the contract, but for failure to meet the duty to accept reasonable settlements; thus, liability may exist when the insurer unwarrantedly refuses an offered settlement where the most reasonable manner of disposing of the claim is by accepting the settlement. (Crisci v. Security Ins. Co., supra, 66 Cal.2d 425, 430.) "[W]hen `there is great risk of a recovery beyond the policy limits so that the most reasonable manner of disposing of the claim is a settlement which can be made within those limits, a consideration in good faith of the insured's interest requires the insurer to settle the claim.'" (Crisci v. Security Ins. Co., supra, at p. 429.)
(3) Whether the insurer has acted unreasonably, and hence in bad faith, in rejecting a settlement offer is a question of fact to be determined by the jury. If there is any substantial evidence to support the jury verdict, it must be sustained on appeal. (Marsango v. Automobile Club of So. Cal. (1969) 1 Cal. App.3d 688, 696 [82 Cal. Rptr. 92].) (2b) There is clearly sufficient evidence in the case at bench to sustain the jury's findings. In addition to the facts set forth above, there was testimony from Wilson Young, Jew's attorney,[1] to the effect that State Farm had indicated to him that it was definitely not interested in settlement; he further testified that he had received no correspondence or other communication from State Farm which led him to believe that State Farm was giving equal consideration to Jew's financial interests. There was also expert testimony to the effect that State Farm failed to give any consideration at all to Jew's interests. It may therefore be concluded that State Farm, through its agents and attorneys, knew of the severity of damages suffered by Cain and of the probability of an excess verdict. The evidence as a whole supports a finding that State Farm acted unreasonably in rejecting the settlement offers and that it failed to give equal consideration to the interests of its insured.
*793 PUNITIVE DAMAGES
(4a) Appellant argues that this was not a proper case for an award of punitive damages, that the record did not justify submitting the question of punitive damages to the jury, and that it was therefore error to instruct on punitive damages.
(5) It is established that an insurer owes to its insured an implied-in-law duty of good faith and fair dealing, and that it should do nothing to deprive the insured of the benefits of the policy. Included within this duty in the case of a liability insurance policy is the duty to act reasonably and in good faith to settle claims against the insured by a third person. The violation of that duty sounds in tort, notwithstanding that it may also constitute a breach of contract. (Crisci v. Security Ins. Co., supra, 66 Cal.2d 425, 429, 432-434.) Consequently, punitive damages may be awarded in an action arising out of a breach of the covenant of good faith and fair dealing which is implied in every liability insurance policy. (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal. App.3d 376, 401-402, 404 [89 Cal. Rptr. 78, 47 A.L.R.3d 286].)
The holding in the Fletcher case was upheld by the Supreme Court in the decision of Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566 [108 Cal. Rptr. 480, 510 P.2d 1032].[2] Although the Supreme Court did not explicitly discuss the issue of punitive damages, "... the major thrust of the Gruenberg holding is that such action on the part of insurers will not be tolerated and a breach of ... [the covenant] of good faith and fair dealing will lead the imprudent insurer down the path of exemplary damages." (Note, Good Faith and Fair Dealing in Insurance Contracts: Gruenberg v. Aetna Insurance Co. (1974) 25 Hastings L.J. 699, 714.)
Appellant relies on the case of Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452 [113 Cal. Rptr. 711, 521 P.2d 1103], in support of its contention that this was not a proper case for an award of punitive damages. There, the reviewing court concluded that the trial court did not abuse its discretion in finding that the evidence was insufficient to support a finding of exemplary damages and in ordering a new trial on that issue. The basis of the trial court's order was that defendant was not put on notice by cases previously decided, that its interpretation of the *794 policy was incorrect and there was insufficient evidence of a practice in the insurance industry to pay the disputed claim and then file a lien in the workmen's compensation proceeding to recover payments made. The Supreme Court in Silberg reiterated the basic principle that punitive damages may be awarded where the defendant has acted "... with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiff's rights." (Silberg v. California Life Ins. Co., supra, 11 Cal.3d 452, at p. 462.)
(4b) The record in the instant case supports a finding that defendant State Farm tortiously breached the implied covenant of good faith and fair dealing by its wrongful refusal to settle within the policy limits and by failing to give equal consideration to the interests of its insured. In addition, there is evidence that after the verdict in Cain v. Jew had been rendered against the insured, State Farm refused to accept any responsibility for the excess amount, and, contrary to advice of their own counsel, rejected an offer to settle the verdict for $55,000 even though they were aware that their insured's personal assets would be wiped out without satisfying the excess verdict, thereby forcing him into bankruptcy, and that the relationship between the insured and Miss Cain would be exposed, resulting in the possible termination of Jew's marriage. Thus, there is evidence in the record to support a determination that State Farm not only failed to give equal consideration to the interests of Jew, but acted with a conscious disregard thereof. It was not error to instruct on the issue of punitive damages.
THE EFFECT OF THE JEW-CAIN ASSIGNMENT UPON JEW'S CAUSE OF ACTION
(6) Appellant's next contention is that, as a matter of law, Jew had no cause of action against State Farm. The question is stated by appellant as follows: "`Did Bing Woo Jew waive his right to damages by attempting to improperly split a cause of action?'" Appellant does not challenge the assignability of the cause of action in the instant case; rather, it is argued that the assignment in question totally divested Jew of any right to recover compensatory or punitive damages from State Farm.
At common law, a partial assignee had no legal standing to sue; the underlying rationale was that the original creditor could not split his cause of action and sue the debtor in two actions, and he could not bring about the same result by assigning part of the claim to another and subjecting the debtor to two suits by different plaintiffs. Enforcement of *795 a partial assignment of a claim was permitted in equity, however, by the process of requiring joinder of all interested parties; i.e., the assignor and all partial assignees. (D'Orazi v. Bank of Canton (1967) 254 Cal. App.2d 901, 905 [62 Cal. Rptr. 704].) "... under the codes, which have merged legal and equitable actions and adopted the equity procedure of joinder, there is no longer any procedural obstacle to enforcement of the partial assignment. The plaintiff partial assignee may sue by joining the partial assignor...." (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 99, p. 1775.) It therefore follows that the partial assignor may sue upon joinder of the partial assignee. (3 Witkin, supra, § 100 at p. 1776.)
In approving the above procedure, the Supreme Court in the case of Martin v. Howe (1922) 190 Cal. 187, 193-194 [211 P. 453], observed: "`Under our system of practice ... the real objection... is not a want of facts, but a want of parties. The defendants are entitled, if they so desire, to have all the parties having an interest in the subject-matter before the court, in order that its judgment shall be a final determination of the whole matter, and leave nothing to be done by piecemeal.' [¶] `An entirely different situation is presented here, where these parties are joined, and can defend their rights in the subject-matter in the one action, than in the ordinary case of splitting a cause of action, where one person sues to recover part of his claim in one action, and later brings a second action to recover the remainder.'"
In support of its position, appellant relies upon the case of Purcell v. Colonial Ins. Co. (1971) 20 Cal. App.3d 807 [97 Cal. Rptr. 874]. In that case, an insured brought an action against his insurance company seeking to recover damages for emotional distress resulting from the insurer's wrongful failure to settle with the injured parties. The insured had previously executed a written assignment transferring to the injured parties "... `any and all causes of action which he has now or may have, now or in the future, against Colonial ...'" and a separate suit had been filed against the insurance company by the injured party for the excess verdict. (Purcell v. Colonial Ins. Co., supra, at pp. 810-811.) The court recognized that the wrongful failure to settle within policy limits may give rise to two forms of damages; viz., compensation for pecuniary loss and general damages for mental distress, but concluded that plaintiff insured was possessed of a single cause of action against defendant insurance company. It was held that the assignment of the cause of action to the injured parties resulted in a waiver of any claim for purely personal damages by the insured; i.e., the insured "could not split the cause of action." (Purcell v. Colonial Ins. Co., supra, at pp. 812, 814.)
*796 The case at bench is distinguishable from Purcell in at least two respects. First, the terms of the Jew-Cain assignment explicitly reserved to Jew any cause of action which he might have against State Farm for physical injuries sustained by him as a result of its failure to settle within the policy limits. Unlike the Purcell assignment, this was not a blanket assignment of all causes of action against State Farm. More significantly, the cases also differ procedurally in that here Cain and Jew are joined as parties plaintiff in a single suit against State Farm, while in Purcell separate suits were instituted by the injured party and by the insured. The procedure utilized by plaintiffs Cain and Jew is clearly in accord with the modern rules governing partial assignments, and comports with the "primary right" theory advanced by Pomeroy and followed in California. (See Pomeroy, Code Remedies (5th ed. 1929) pp. 528, 535; see also Holmes v. David H. Bricker, Inc. (1969) 70 Cal.2d 786, 789 [76 Cal. Rptr. 431, 452 P.2d 647].)
Because, in this case, the partial assignor and the partial assignee are joined as parties plaintiff in the same lawsuit, the judgment is binding upon both plaintiffs, and appellant is protected from future litigation arising out of the same facts under the doctrine of res judicata. It therefore appears that appellant's reliance on the Purcell case is misplaced, and that its contentions in this regard are not well taken. (7) The same is also true of appellant's assertion that the wording of the Cain-Jew assignment precludes Jew's recovery of damages for mental distress. By the terms of the assignment, Jew reserved to himself "... that cause of action ... for physical injuries ..." sustained as a result of State Farm's failure to settle within the policy limits. It is argued that the word "physical" cannot be interpreted to include compensatory or punitive damages for mental distress. This contention is untenable. Under California law "... disturbances of the nervous system caused by mental shock, excitement, and so on, are classed as physical injuries...." (Taylor v. Pole (1940) 16 Cal.2d 668, 671 [107 P.2d 614]; see also Dryden v. Continental Baking Co. (1938) 11 Cal.2d 33, 39-40 [77 P.2d 833].)
INSTRUCTIONS GIVEN OR REFUSED
(8) Appellant assigns as error the giving of plaintiff's proposed jury instruction No. 4, which reads as follows: "The size of a judgment recovered in a personal injury action, when it exceeds the policy limits, although not conclusive, presents an inference that the value of the claim is equivalent to the amount of the judgment, and the acceptance of an *797 offer within those limits is the most reasonable method of dealing with the claim."
This instruction is a direct quote from the Supreme Court decision in Crisci v. Security Ins. Co., supra, 66 Cal.2d 425, 431. It is recognized that statements of the law contained in opinions of reviewing courts are the primary source of jury instructions. (4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 202, p. 3020.) Appellant challenges this instruction on the grounds that no mention is made of such an inference in section 600 of the Evidence Code, which sets forth an exclusive list of conclusive and rebuttable presumptions. Appellant's argument is without merit. An inference is clearly not a presumption. The jury was fully instructed on the meaning of the word "inference," its nature and its effect. There was no error in giving the challenged instruction.
Appellant claims that the trial court erred in failing to give its proposed instructions relating to the affirmative defenses of estoppel and failure to state a cause of action. It is not disputed that a party has a right to instructions on his theory of the case, if it is reasonable and finds support in the pleadings and evidence. (4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 192, p. 3012.) In this case, however, the affirmative defenses on which the disputed instructions were based were clearly untenable. Appellant's proposed instruction No. 28 states: "In this case Mr. Jew has assigned to Miss Cain his purported cause of action against State Farm Insurance Company. In doing so he assigned a single and indivisible cause of action. I therefore direct you to find a verdict as to the case of Bing Woo Jew in favor of the defendant State Farm Mutual Automobile Insurance Company and against Bing Woo Jew." As we have earlier pointed out, the Jew-Cain assignment did not preclude Jew's bringing a cause of action against State Farm. Therefore, defendant's proposed instruction was incorrect as a matter of law.
(9) Similarly, the proposed instruction as to estoppel was not warranted under the facts of this case. The Supreme Court in the case of Gruenberg v. Aetna Ins. Co., supra, 9 Cal.3d 566, 578, stated that "... the duty of good faith and fair dealing on the part of the defendant insurance companies is an absolute one;" that even though the duty arises from an existing contractual relationship, it is independent of the performance of plaintiff's contractual obligations. Hence, the defense of estoppel was not available to State Farm.
(10) Appellant's claim that the court should have instructed the jury upon all its affirmative defenses is not well taken. We have previously *798 discussed the defenses of failure to state a cause of action and estoppel, as well as the propriety of the instruction on punitive damages. Appellant did not request instructions on the remaining affirmative defenses. It is well settled that in order to complain of failure to instruct on a particular issue, the aggrieved party must request the specific proper instruction. (4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 194, p. 3013.)
THE SELIGSON LETTER
(11) Appellant assigns as error the introduction into evidence of plaintiff's exhibit No. 82, hereinafter referred to as the "Seligson letter." It is argued that this material should have been excluded under Evidence Code section 352, which gives the trial court the discretion to exclude relevant evidence where its probative value is substantially outweighed by its prejudicial effect. The Seligson letter was written by Attorney Robert A. Seligson to State Farm shortly after the excess verdict was entered against Jew in the initial suit. Mr. Seligson was a member of the law firm retained by State Farm to defend that suit. In the letter he advised State Farm that it should pay the amount of the judgment which had been entered in the Cain-Jew suit and, in support of his opinion, quoted excerpts from the Crisci opinion.
In reviewing the exercise by the trial court of its discretion, under Evidence Code section 352, an appellate court is neither authorized nor warranted to substitute its judgment for that of the trial judge. Relief is available only where the alleged abuse of discretion clearly constitutes a miscarriage of justice. (Brown v. Newby (1940) 39 Cal. App.2d 615, 618 [103 P.2d 1018]; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 242, p. 4234.) The record shows that the trial judge considered appellant's objections, and weighed the probative value of the letter against its possible prejudicial effect. In addition, the court ordered that the more prejudicial passages of the letter be deleted before it was read to the jury. The court also admonished the jury that the Crisci dictum contained in the letter did not reflect the present state of the law. It cannot be said that the trial court's ruling on the admissibility of this exhibit constituted an abuse of discretion resulting in a miscarriage of justice. (Brown v. Newby, supra, 39 Cal. App.2d 615.)
TESTIMONY OF WILSON YOUNG
Appellant claims error in the admission of the testimony of Wilson Young, apparently on the ground that the jury was misled thereby. Mr. *799 Young initially testified that his bill for legal services to Jew was $5,000, but that he was not able at that moment to calculate what portion of this amount was for services after the rendition of the Cain-Jew verdict. The following day Mr. Young was recalled to the stand, and stated that the amount charged for legal services performed after the entry of the excess verdict was $600.
It is difficult to comprehend how this testimony could have misled or confused the jury. Appellant argues that the jury's request during its deliberations for instructions on the issue of attorney's fees related to Mr. Young's testimony. There is nothing in the record to indicate that this was the case; rather, it appears that the jury was considering an award of attorney's fees to Nelson Barry, plaintiffs' counsel in the instant action.
It is well established that on appellate review, error will not be presumed. (Ford v. Holton (1855) 5 Cal. 319, 321.) Appellant fails to demonstrate that the admission of Young's testimony was error, much less prejudicial error necessitating reversal of the verdict in favor of Bing Woo Jew.
EXCLUSION OF TRAVELERS INSURANCE COMPANY CORRESPONDENCE
(12) Appellant assigns as error the trial court's exclusion of certain correspondence with Travelers Insurance Company, with whom Mr. Jew was insured under a homeowner's policy.[3] Appellant contends that the proferred evidence was relevant as tending to show their good faith. The trial court, however, ruled that the evidence was inadmissible on the ground that it was related to an offer of settlement and that it is the policy of the law to exclude such evidence. The court also stated that such evidence was irrelevant and highly prejudicial.
Evidence Code section 1152 provides that evidence of an offer to compromise, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove liability. Appellant argues that the correspondence in question, although clearly involving settlement negotiations, was offered not to prove liability but to establish State Farm's *800 good faith; i.e., that State Farm was giving consideration to the interests of its insured by seeking out other possible coverage.
It would appear, however, that the fact of compromise negotiations between Mr. Jew and Travelers (which compromise never took place) was, as the trial court ruled, irrelevant to the issue of whether State Farm had unreasonably refused to settle within the policy limits. Furthermore, there was already evidence in the record to the effect that State Farm had attempted to secure coverage under this homeowner's policy. Therefore, even if relevant, the evidence in question was cumulative on a collateral issue and could have been excluded on that ground. (Witkin, Cal. Evidence (2d ed. 1966) § 1094 at pp. 1012-1013.) Thus, it appears that the trial court did not err in excluding the Travelers correspondence.
MISCONDUCT OF RESPONDENTS' ATTORNEY
(13) As its final assignment of error, appellant argues that reversal is required by the improper argument of counsel. This contention is based upon the fact that plaintiffs' attorney made the following statement with respect to the issue of punitive damages during rebuttal argument: "One thing about the punitive damages, I didn't mention a figure to you then, and I'm not going to mention a figure to you now, but I say if you are thinking in the area of $100,000, that's not enough, that's not even stubbing their toes, they would laugh at you, you know, `If that's all they can do to us, it's not costing us anything.'" Appellant submits that "... this was improper rebuttal argument which ordinary diligence could not have guarded against and that in view of the jury's finding of $115,000.00 punitive damages was extremely prejudicial, ..."
It should be noted that no objection to this line of argument was interposed by defense counsel. The court itself admonished plaintiffs' counsel by saying, "I think since you did not mention any figure in your opening argument, you better not mention any figure now, Mr. Barry." Mr. Barry immediately responded, "Right" and thereafter no mention of any dollar amount was made.
"A long established principle of appellate review calls for raising the error in the trial court. In the usual case (an improper question or remark) it is seldom possible to object in advance; the procedure is to `assign' the statement as misconduct and ask that the jury be instructed to disregard it. If this is not done the error is waived unless the misconduct was of so aggravated a character that it could not be cured by any *801 instruction." (4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 163, p. 2983; see also Horn v. Atchison T. & S.F. Ry. Co. (1964) 61 Cal.2d 602, 610 [39 Cal. Rptr. 721, 394 P.2d 561].)
As noted above, defense counsel made no objection to the challenged statement; it was not assigned as misconduct at trial, nor was any further admonition requested. Furthermore the remark, while technically impermissible in rebuttal argument, was not so prejudicial that it could not have been cured by a timely admonition by the court.
The judgment is affirmed.
Caldecott, P.J., and Rattigan, J., concurred.
A petition for a rehearing was denied May 20, 1975, and appellant's petition for a hearing by the Supreme Court was denied June 26, 1975.
NOTES
[*] Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.
[1] Mr. Young was retained by Bing Woo Jew, and consulted with State Farm's counsel, but he did not direct or control settlement negotiations or the defense of Miss Cain's suit.
[2] The Fletcher and Gruenberg cases both dealt with the failure of the insurer to act in good faith and fairly in handling the claim of an insured, and extended the Crisci-Comunale principle to hold that the implied covenant of good faith encompasses a duty not to unreasonably withhold payments due under a policy.
[3] It was initially believed that Jew might be partially covered under his homeowner's policy with Travelers. However, Travelers ultimately denied any coverage and the Supreme Court in the case of Huggins v. Yoshiwara (1970) 2 Cal.3d 200 [84 Cal. Rptr. 709, 465 P.2d 845], held that a similar homeowner's policy did not provide coverage for an automobile accident occurring away from the premises of the insured. (See also Herzog v. National American Ins. Co. (1970) 2 Cal.3d 192, 197 [84 Cal. Rptr. 705, 465 P.2d 841].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2633672/ | 141 P.3d 1129 (2006)
STATE of Idaho, Plaintiff-Respondent,
v.
Andrew Michael HOREJS, Defendant-Appellant.
No. 30490.
Court of Appeals of Idaho.
February 1, 2006.
Review Denied August 9, 2006.
*1130 Molly J. Huskey, State Appellate Public Defender; Erik R. Lehtinen, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kristina M. Schindele, Deputy Attorney General, Boise, for respondent.
*1131 LANSING, Judge.
Defendant-Appellant Andrew Horejs challenges his judgment of conviction for aggravated assault, arguing that there was insufficient evidence to support the jury's verdict. He also appeals his consecutive sentences for the aggravated assault and related misdemeanor counts on the ground that the district court lacked authority to direct that misdemeanor sentences be served after the felony sentence. We affirm.
I.
FACTUAL & PROCEDURAL BACKGROUND
One summer night, Horejs and four of his friends launched a scheme to accost random strangers and bind them with duct tape. The same group had engaged in this prank within their circle for some time and believed that extending it to strangers would be funny. Sometime around 2 a.m., the group purchased duct tape and then began driving around Boise seeking their prey. They found two victims: the first was a young man riding inline skates to work. Minutes after that attack, they found a second victim, a young man returning home on his bicycle after working a late shift at a restaurant. Horejs and his friends ambushed both victims, knocking them to the ground and holding them down while attempting to bind parts of their bodies with duct tape. The second victim also received several punches and at least one kick to his body. Each attack lasted no more than a couple of minutes and neither victim was seriously injured. Still, both victims suffered minor scrapes and bumps to various parts of their bodies, including their heads.
The police apprehended Horejs and his friends shortly after the second attack. All members of the group were charged with four felonies: two counts of kidnapping, Idaho Code § 18-4501, and two counts of aggravated assault, I.C. §§ 18-901(b), 18-905(b). Horejs' friends pleaded guilty to kidnapping in exchange for the State dropping the aggravated assault charges. Horejs, on the other hand, exercised his right to a jury trial.
At trial, Horejs moved for a judgment of acquittal on the charge of aggravated assault, asserting the State had not provided sufficient evidence that his acts were likely to produce great bodily harm to the victims. That motion was denied. The jury acquitted Horejs of kidnapping but found him guilty of two counts of a lesser included misdemeanor, false imprisonment, I.C. § 18-2901. They also found him guilty of aggravated assault on the second victim and of the lesser included offense of simple assault, a misdemeanor, I.C. § 18-901, for the attack on the first victim. For the aggravated assault, the district court imposed a unified five-year sentence with a two-year determinate term. For the misdemeanors, the court sentenced Horejs to one year in the county jail for each count of false imprisonment and three months in jail for simple assault.[1] The court ordered that the sentences would be served consecutively, with the felony sentence to be served first. The district court suspended the sentences, however, and placed Horejs on four consecutive terms of probation totaling eleven years (five years for aggravated assault, and two years for each misdemeanor count).
Horejs now appeals. He argues that there was insufficient evidence to sustain his aggravated assault conviction. Specifically, Horejs contends his actions could not be considered "likely to produce great bodily harm," an element of aggravated assault. I.C. § 18-905(b). In addition, Horejs argues that his sentences are illegal because misdemeanor jail sentences may not be made to run consecutive to a felony prison sentence and because the consecutive probationary periods exceed the maximum aggregate period for which he could be incarcerated for these offenses.
II.
ANALYSIS
A. Sufficiency of Evidence Supporting Horejs' Conviction for Aggravated Assault
Horejs first argues that his felony conviction for aggravated assault on the second *1132 victim cannot stand because there was insufficient evidence to prove he used means or force that was likely to produce great bodily harm. This Court will not set aside a jury's judgment of conviction if there is "substantial evidence upon which a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Medina, 128 Idaho 19, 27, 909 P.2d 637, 645 (Ct.App.1996); State v. Reyes, 121 Idaho 570, 572, 826 P.2d 919, 921 (Ct.App.1992). It is the province of the jury to determine the credibility of the witnesses, to weigh the evidence, and to draw reasonable and justifiable inferences. Therefore, where a defendant stands convicted, we must view the evidence in the light most favorable to the prosecution. Medina, 128 Idaho at 27, 909 P.2d at 645; Reyes, 121 Idaho at 572, 826 P.2d at 921.
The elements of aggravated assault, as charged in this case, are set forth in I.C. § 18-901(b) and § 18-905(b). The former section defines misdemeanor assault as an "intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent." Section 18-905(b) specifies that an assault is "aggravated," and thus a felony, if it is accomplished "[b]y any means or force likely to produce great bodily harm." Horejs argues the evidence presented to the jury showed no more than a misdemeanor assault because the only force he used against the second victim was a kick to the victim's backsidea kick that resulted in no visible mark or injury and was unlikely to produce great bodily harm.
In addressing Horejs' argument, it must be borne in mind that even though the charged and admitted acts of Horejs and his group included actual violent physical contact with the victim, the offense charged was aggravated assault, not aggravated battery. As noted above, an assault is aggravated pursuant to I.C. § 18-905(b) if it is accomplished by means or force "likely" to produce great bodily harm. Therefore, in discerning whether the evidence is sufficient on this element, we do not look to the injuries or harm actually inflicted, but to whether the jury could reasonably find that the means or force used by the group was likely to cause great bodily harm.
With this in mind, even if we assume, arguendo, that Horejs' lone kick was not "likely to produce great bodily harm," we nevertheless must affirm his conviction because the actions of his group as a whole were sufficient for a reasonable jury to find a likelihood of great bodily harm. Idaho law concerning criminal culpability makes no distinction between the person who directly commits a criminal act and a person who aids and abets in its commission. Rather, those who aid and abet a crime are culpable as "principals." I.C. §§ 18-204, 19-1430;[2]State v. Butcher, 137 Idaho 125, 134, 44 P.3d 1180, 1189 (Ct.App.2002). Aiding and abetting includes such acts as facilitating, promoting, encouraging, soliciting, and inciting the actions. State v. Holder, 100 Idaho 129, 132, 594 P.2d 639, 642 (1979), overruled on other grounds by State v. Humpherys, 134 Idaho 657, 8 P.3d 652 (2000); Howard v. Felton, 85 Idaho 286, 297, 379 P.2d 414, 421 (1963). The district court instructed the jury on this point of law, and the record contains sufficient evidence by which a jury could find *1133 that Horejs aided and abetted the acts of the other members of his group who participated in the assault on the victim. Indeed, Horejs admitted his involvement at trial, thus providing sufficient evidence that he aided and abetted the acts of his friends and could be charged as a principal for those acts.
Horejs points out that he was never expressly charged with aiding and abetting, and relies on State v. Chapa, 127 Idaho 786, 906 P.2d 636 (Ct.App.1995), to support his assertion that a defendant not charged with aiding and abetting cannot be convicted on that basis. His reliance on Chapa is misplaced, however, for in Chapa we held a conviction for aiding and abetting improper where the charging instrument did not alert the defendant that he was being prosecuted for two separate actsthe rape committed by an accomplice in addition to his own separate act of raping the victim. Id. at 789-90, 906 P.2d at 639-40. This violated the defendant's due process rights because it resulted in his prosecution for a crime not charged against him. Id. In this case, by contrast, the indictment put Horejs on notice that he was being prosecuted for aiding and abetting because it alleged that Horejs and his cohorts collectively kidnapped and assaulted the two victims. Thus, Horejs was made fully aware of the acts he was charged with committing his own acts as well as his confederates' acts and he was "presumed to know that he would be a principal and guilty as such whether he directly committed the acts charged or aided and abetted in their commission by another." State v. Wheeler, 109 Idaho 795, 796, 711 P.2d 741, 742 (Ct. App.1985). See also State v. Ayres, 70 Idaho 18, 27-28, 211 P.2d 142, 147 (1949).
We conclude that the record provides sufficient evidence to support the jury's verdict that the group's acts as a whole amounted to aggravated assault. The evidence shows, and Horejs admits, that his friends ambushed the second victim, knocked him off of his bicycle and to the ground, held him down, and attempted to duct tape him; during this episode one of Horejs' cohorts punched the victim one or more times, and Horejs kicked the victim. Even if neither the kick nor the punches were of sufficient force to be likely to cause significant injury, a jury could reasonably conclude that a sneak attack by a gang of adult males who knock an unsuspecting bicyclist off his bicycle to the pavement is a situation that is likely to result in great bodily harm. Therefore, the guilty verdict will not be disturbed.
B. Sentences
Horejs next argues that the district court had no authority to order that his misdemeanor sentences of incarceration would be served consecutive to his felony sentence. Horejs acknowledges that I.C. § 18-308 authorizes imposition of consecutive terms of incarceration, but argues that this does not provide explicit authority to run misdemeanor sentences consecutive to felony sentences. This argument is without merit.
Section 18-308 is entirely sufficient to authorize consecutive sentences, whether for felonies or misdemeanors. It states:
When any person is convicted of two (2) or more crimes . . . the imprisonment to which he is sentenced upon the second or other subsequent conviction, in the discretion of the court, may commence at the termination of the first term of imprisonment ... or at the termination of the second or other subsequent term of imprisonment, as the case may be.
The statute clearly and expressly provides for consecutive sentences for multiple "crimes" and makes no distinction between felonies and misdemeanors.[3] In State v. Lawrence, 98 Idaho 399, 401, 565 P.2d 989, 991 (1977), the Idaho Supreme Court noted that the primary effect of section 18-308 is to reinstate the common law rule that Idaho courts have discretionary power to impose cumulative sentencesa power that had *1134 been modified by a prior version of the statute. Accordingly, neither legislation nor judicial decision precludes running misdemeanor sentences consecutive to sentences for felonies.
Horejs also contends that the stacking of his sentences is illegal because it is "logistically impossible" for misdemeanor sentences to be served in a county jail following service of a felony sentence with both determinate and an indeterminate components. We disagree. The transfer of inmates between state prison facilities and county jails are necessarily a common occurrence. The county jails are required under I.C. § 20-604 to accept a person for confinement upon receiving a judgment or other judicial order for confinement. If the district court here were someday to revoke Horejs' probation and order execution of the underlying sentences, Horejs could serve his initial two-year determinate term in the custody of the Department of Correction and then be released on parole for the duration of his indeterminate term, during which time he could serve his consecutive misdemeanor sentences in the county jail. Should Horejs' felony parole be revoked for violations committed while in jail serving his misdemeanor sentences, the county could relinquish custody back to the Department of Correction.
Finally, Horejs argues that serving a misdemeanor sentence consecutive to a felony sentence defeats the rehabilitative aspect of the felony imprisonment. We acknowledge that it may not optimize rehabilitation potential to place an inmate who has completed rehabilitative programs at the state prison into the non-rehabilitative environment of a county jail for an extended period. Horejs has no right to an optimum sentence, however, and such a possible incongruity does not make the sentence illegal.
Horejs also contends that the district court erred by giving him consecutive terms of probation that cumulatively exceed the maximum term of incarceration that could be imposed for his offenses. Horejs argues, first, that terms of probation may not run consecutively and, second, that the cumulative duration of probation may not exceed the cumulative statutory maximum terms of imprisonment. We disagree with both of Horejs' positions.
Horejs is correct in observing that his total probation term of eleven years exceeds the maximum sentences of incarceration that could be imposed for his offenses. The trial court imposed the longest permissible probation terms for all of Horejs' crimes. For felonies, Idaho law authorizes probation for a period up to the maximum for which the defendant might be imprisoned, but for misdemeanors the law allows probation of up to two years regardless of the maximum jail sentence for the misdemeanor. I.C. §§ 19-2601(7), 19-3921.[4] Consequently, the term of Horejs' probation is nearly three years longer than the maximum period for which he *1135 could have been consecutively incarcerated for these offenses.
Horejs' contention that Idaho law does not allow for consecutive terms of probation is without merit. Although no Idaho statute expressly refers to consecutive probation periods, two statutes, when read together, implicitly authorize successive probations. As discussed above, I.C. § 18-308 authorizes consecutive sentences of imprisonment for two or more crimes. Idaho Code § 19-2601 then empowers a trial court to suspend the execution of sentences of imprisonment and place the defendant on probation. It is implicit under section 19-2601 that if the terms of imprisonment that are being suspended are consecutive, the corresponding probation terms may likewise be consecutive. We find nothing in Idaho law that prohibits successive probation periods for multiple convictions.
Horejs next contends that even if Idaho law allows imposition of consecutive probation terms, his aggregated period of probation still is unlawful because I.C. § 20-222 caps the aggregate probation term at "the maximum period for which the defendant might have been imprisoned."[5] This provision of section 20-222, he argues, conflicts with and overrides sections 19-2601(7) and 19-3921, which authorize probation terms of up to two years for misdemeanors, regardless of the length of the suspended jail sentences.
Statutes that deal with the same subject matter are to be construed together to the end that legislative intent will be effected. State v. Barnes, 133 Idaho 378, 382, 987 P.2d 290, 294 (1999); Meyers v. City of Idaho Falls, 52 Idaho 81, 89-90, 11 P.2d 626, 629 (1932); State v. McNair, 141 Idaho 263, 266, 108 P.3d 410, 413 (Ct.App.2005); Winter v. State, 117 Idaho 103, 106, 785 P.2d 667, 670 (Ct.App.1989). In construing statutes it is our obligation, where possible, to adopt a construction that will harmonize and reconcile statutory provisions and to avoid an interpretation that will render a statute a nullity. State, Dep't of Health & Welfare v. Housel, 140 Idaho 96, 104, 90 P.3d 321, 329 (2004); Emery v. United Pac. Ins. Co., 120 Idaho 244, 248, 815 P.2d 442, 446 (1991); State v. McNeil, 141 Idaho 383, 385, 109 P.3d 1125, 1127 (Ct.App.2005); State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct.App. 2001); State v. Nelson, 119 Idaho 444, 447, 807 P.2d 1282, 1285 (Ct.App.1991).
Horejs' contention that there is a conflict in the statutes governing the length of misdemeanor probation terms does not withstand close scrutiny, for I.C. § 20-222 is directed only to felony probations. That section is located in Title 20, chapter 2 of the Idaho Code, which addresses the formation, powers and duties of the Board of Correction and governs parole procedures. Because only felons are placed in the custody of the Board of Correction or are placed on parole, it is apparent that I.C. § 20-222 was legislatively intended to address only felonies. This legislative intent is verified by the fact that I.C. § 20-222 uses precisely the same language that the legislature used in I.C. § 19-2601(7) to define the maximum term of probation for felonies. Examining all of the statutory provisions together, it is apparent that I.C. § 19-2601(7) addresses both misdemeanors and felonies. Section 19-3921 applies only to misdemeanors, and section 20-222 applies only to felonies. This interpretation harmonizes and gives effect to all of the statutory provisions and reconciles any superficial inconsistencies without nullifying the specific terms of sections 19-2601(7) and 19-3921 that authorize two-year probation periods for misdemeanants.
Accordingly, we hold that the district court possessed authority to impose two-year periods of probation for each of Horejs' misdemeanors and to direct that all of his periods of probation be served consecutively.
III.
CONCLUSION
The jury was presented sufficient evidence to conclude that Horejs was guilty of aggravated *1136 assault and Horejs has demonstrated no error in the sentences imposed by the district court. Therefore, the judgment of conviction and sentences are affirmed.
Chief Judge PERRY and Judge GUTIERREZ concur.
NOTES
[1] The maximum terms of incarceration allowed for these crimes are: for aggravated assault, five years, I.C. § 18-906; for false imprisonment, one year, I.C. § 18-2902; and for misdemeanor assault, three months, I.C. § 18-902.
[2] Idaho Code § 18-204 provides:
All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense or aid and abet in its commission, or, not being present, have advised and encouraged its commission, or who, by fraud, contrivance, or force, occasion the intoxication of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command or coercion, compel another to commit any crime, are principals in any crime so committed.
Idaho Code § 19-1430 provides:
The distinction between an accessory before the fact and a principal and between principals in the first and second degree, in cases of felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, shall hereafter be prosecuted, tried, and punished as principals, and no other facts need be alleged in any indictment against such an accessory than are required in an indictment against his principal.
[3] Although section 18-308 uses the term "imprisonment," it does not limit its application to felony offenses. Numerous Idaho statutes employ the word "imprisonment" when referring to incarceration in either the state prison or a county jail. See, e.g., I.C. § 18-303 (using the term "imprisonment" to describe incarceration in the "state prison" and the "county jail" as well as in the context of felonies and misdemeanors); I.C. § 20-601 (stating county jails are "[f]or the confinement of persons sentenced to imprisonment therein upon a conviction for crime").
[4] Idaho Code § 19-2601 provides:
Whenever any person shall have been convicted, or enter a plea of guilty, in any district court of the state of Idaho, of or to any crime against the laws of the state, except those of treason or murder, the court in its discretion, may:
....
2. Suspend the execution of the judgment at the time of judgment or at any time during the term of a sentence in the county jail and place the defendant on probation under such terms and conditions as it deems necessary and expedient; or
7. The period of probation ordered by a court under this section under a conviction or plea of guilty for a misdemeanor, indictable or otherwise, may be for a period of not more than two (2) years; and under a conviction or plea of guilty for a felony the period of probation may be for a period of not more than the maximum period for which the defendant might have been imprisoned.
Idaho Code § 19-3921 provides:
When the defendant pleads guilty, or is convicted either by the court or by a jury, the court must render judgment thereon of fine or imprisonment, or both, as the case may be: provided, however, it appearing to the court that it is a proper case, the court may, in its discretion, suspend the execution of judgment, and at such time, or any time during the period of sentence in a county jail, may put the defendant on probation on such terms and for such time as it may prescribe. The period of probation ordered by the court under this section under a conviction or plea of guilty for a misdemeanor, indictable or otherwise, may be for a period of not more than two (2) years. The court may withhold judgment on such terms and conditions as it deems necessary or expedient.
[5] Idaho Code § 20-222 provides in part:
The period of probation or suspension of sentence may be indeterminate or may be fixed by the court, and may at any time be extended or terminated by the court. Such period with any extension thereof shall not exceed the maximum period for which the defendant might have been imprisoned. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2410931/ | 872 S.W.2d 732 (1994)
Edward B. LYON, Jr., Appellant,
v.
The STATE of Texas, Appellee.
No. 225-89.
Court of Criminal Appeals of Texas, En Banc.
January 12, 1994.
*733 Roy E. Greenwood, Austin, for appellant.
Edward B. Lyon, Jr., pro se.
John F. Miller, Jr., Dist. Atty., and James Elliott, Asst. Dist. Atty., Texarkana, Robert Huttash, State's Atty., Austin, for State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
McCORMICK, Presiding Judge.
Appellant was convicted of murder based on a negotiated guilty plea. The trial court sentenced appellant to life imprisonment within the terms of his agreed plea-bargain with the State. See Article 1.15, V.A.C.C.P.
Acting pro se, appellant filed a notice of appeal pursuant to Tex.R.App.Pro. 40(b)(1). In that notice, appellant requested the trial court to grant him permission to appeal (1) pretrial motions,[1] (2) violations of appellant's due process rights, and (3) ineffective assistance of counsel. The trial court denied this request by written order. Appellant also filed an affidavit of indigence and moved the trial court to furnish him with the transcript and statement of facts so he could pursue a pro se appeal. The trial court found appellant was indigent and granted that motion.[2]
In his appeal to the Texarkana Court of Appeals, appellant presented the following points of error: (1) the trial judge was disqualified from sitting in appellant's case under Article V, Section 11 of the Texas Constitution, Article 30.01, V.A.C.C.P., and the Texas Code of Judicial Conduct, because the trial judge's daughter was married to the victim's brother, and the trial judge's son was the prosecutor in appellant's case, (2) appellant's guilty plea was coerced and involuntary, (3) the trial court erred in failing to admonish appellant concerning his appellate rights as required by Article 26.13(a)(3), V.A.C.C.P., (4) the trial court erred in accepting appellant's guilty plea because there was insufficient evidence to support his plea and conviction, (5) appellant received ineffective assistance of counsel in connection with his guilty plea, and (6) appellant's counsel had a conflict of interest in representing appellant during *734 the plea proceedings because he also represented appellant's codefendant.
The Court of Appeals, in effect, held it had jurisdiction to address only appellant's jurisdictional issues because appellant's notice of appeal did not comply with the "but" clause of Rule 40(b)(1).[3]Lyon v. State, 764 S.W.2d 1 (Tex.App.Texarkana 1988). The Court of Appeals addressed the issues relating to the trial judge's relationship to the victim and the prosecutor, and held it had no jurisdiction to address the other issues. Id. at 1 n. 2. The Court of Appeals affirmed the conviction and held the trial judge's relationship to the victim and the prosecutor did not disqualify him from sitting in the case. Id. at 1 n. 2, and 2.
We granted the following grounds for review in appellant's petition for discretionary review: whether the Court of Appeals erred (1) in holding it had jurisdiction to review only jurisdictional issues, (2) in failing to address appellant's ineffective assistance of counsel claim, (3) in failing to address appellant's sufficiency claim, and (4) in holding the trial judge's relationship to the victim did not disqualify him from presiding over appellant's prosecution under Article V, Section 11, supra, Article 30.01, supra, or the Texas Code of Judicial Conduct. We affirm the judgment of the Court of Appeals.
Our caselaw on how a defendant, in an appeal from a plea-bargained conviction, confers jurisdiction on a Court of Appeals to address certain issues is not exactly a model of clarity and concise legal analysis. See, e.g., Lemmons v. State, 818 S.W.2d 58, 63 n. 6 (Tex.Cr.App.1991); Morris v. State, 749 S.W.2d 772, 778, 778-80 (Tex.Cr.App.1986) (Clinton, J., dissenting) ("Appellant has been blindsided!"); Morgan v. State, 688 S.W.2d 504, 507 (Tex.Cr.App.1985) ("some [defendants] have `successfully navigated the procedurally hazardous passageway of [former Rule 40(b)(1)],'.... but most have failed to steer clear of rocks and shoals"); Morgan, 688 S.W.2d at 508-24 (Onion, P.J., dissenting); King v. State, 687 S.W.2d 762, 764-66 (Tex.Cr.App.1985); King, 687 S.W.2d at 767 (Teague, J., dissenting) ("Color me not only amazed, but do it in chartreuse"). Although these cases are not exactly on point with this case, they illustrate the conflicting views of this Court in this area of the law. There also are conflicting views among the Courts of Appeals on the effect of the "but" clause in Rule 40(b)(1). See Lemmons, 818 S.W.2d at 62.
The right to appeal a criminal conviction is a substantive right solely within the province of the Legislature. Lemmons, 818 S.W.2d at 62. Before 1977, a defendant in a criminal action had a general right to appeal anything. Article 44.02, V.A.C.C.P., as enacted in 1925;[4] former Article 813, C.C.P. 1925; Lemmons, 818 S.W.2d at 59; Morris, 749 S.W.2d at 778-80. However, as a matter of decisional law, we held a guilty plea waived all nonjurisdictional defects in the prior proceedings; this rule is commonly known as the Helms rule.[5] See also Morris, 749 S.W.2d at 779. But, the Helms rule discouraged guilty pleas, and caused a defendant, who wanted to preserve his appellate issues, to force the State to a full trial on the merits. See Morris, 749 S.W.2d at 779; but see Morgan, 688 S.W.2d at 513-14. Apparently, this cost the State a lot of money. See Morris, 749 S.W.2d at 779.
*735 In response to this situation, the Legislature added the following proviso to Article 44.02 in 1977:[6]
"... provided however, before the defendant [who has been convicted based on a negotiated plea and the trial court assesses punishment recommended by the prosecutor and agreed to by the defendant and his attorney] may prosecute his appeal, he must have the permission of the trial court, except on those matters which have been raised by written motion filed prior to trial...."[7] (Emphasis Supplied).
This proviso was a limited abrogation of the Helms rule; it allowed some appellate issues to be addressed on their merits in negotiated plea situations where the Helms rule otherwise applied in order "to conserve judicial resources by encouraging guilty pleas," and to prevent "windy" appeals. See Morris, 749 S.W.2d at 779 n. 12; Morgan, 688 S.W.2d at 513-14; King, 687 S.W.2d at 765.[8]
This Court eventually decided a defendant's failure to comply with the proviso to Article 44.02 was jurisdictional, and a defendant had to obtain the trial court's permission to appeal a nonjurisdictional defect occurring after entry of the plea. See Morris, 749 S.W.2d at 774-75. In Morris, we held the Court of Appeals lacked jurisdiction to address the sufficiency of the evidence to support the defendant's plea-bargained conviction under Article 1.15, a nonjurisdictional defect occurring after entry of the plea, because the defendant failed to comply with the proviso to Article 44.02 by not obtaining the trial court's permission to appeal that issue. Morris, 749 S.W.2d at 774-75; see also Morgan, 688 S.W.2d at 515 ("If a defendant falls within the [proviso to Article 44.02], he has no right of appeal at all without the permission of the trial court save and except the appeal from rulings on certain pretrial matters").
By order dated December 18, 1985, this Court repealed the proviso to Article 44.02, and replaced it with Rule 40(b)(1), effective September 1, 1986.[9] See Lemmons, 818 S.W.2d at 62. In delegating authority to this Court to promulgate a comprehensive body of appellate rules in criminal cases, the Legislature expressly provided that these rules could not abridge, enlarge or modify the substantive rights of a litigant.[10] In promulgating Rule 40(b)(1), this Court acted on the assumption "that the body of caselaw construing the proviso [to Article 44.02] would prevail and still control." Lemmons, 818 S.W.2d at 62. In Jones v. State, 796 S.W.2d 183, 187 (Tex.Cr.App.1990), we held compliance with Rule 40(b)(1) was jurisdictional.[11]
In Davis v. State, 870 S.W.2d 43 (Tex.Cr. App.1994, decided this date), we held, based on Morris, the defendant's "general" notice of appeal under Rule 40(b)(1) in an appeal from a plea-bargained conviction failed to confer jurisdiction on the Court of Appeals to address the defendant's sufficiency of the evidence claim, a nonjurisdictional defect occurring after entry of the plea, and the trial court's ruling on the defendant's pretrial suppression motion, a nonjurisdictional error occurring prior to entry of the plea. Davis, 870 S.W.2d at 46-47. This holding also was based on a plain reading of Rule 40(b)(1) that made the rule consistent with Morris and the *736 admonishment contained in Article 26.13(a)(3), V.A.C.C.P. Davis, 870 S.W.2d at 46. We have to interpret Rule 40(b)(1) this way so as not to modify a defendant's substantive right of appeal that previously existed under the proviso to Article 44.02. See Davis, 870 S.W.2d at 46; Tex. Gov't Code Ann. § 22.108(a) (Vernon 1988).
Therefore, we hold Rule 40(b)(1) requires a defendant, in an appeal from a plea-bargained conviction, to obtain the trial court's permission to appeal any matter in the case except for those matters raised by written motion and ruled on before trial. See Davis, 870 S.W.2d at 46-47; Morris, 749 S.W.2d at 774-75. A defendant's "general" notice of appeal confers no jurisdiction on a Court of Appeals to address nonjurisdictional defects or errors that occur before or after entry of the plea; a defendant's notice of appeal has to comply with the applicable provisions of the "but" clause of Rule 40(b)(1) to confer jurisdiction on a Court of Appeals to address these types of defects or errors. See Davis, 870 S.W.2d at 46-47; Morris, 749 S.W.2d at 774-75. A "general" notice of appeal confers jurisdiction on a Court of Appeals to address only jurisdictional issues. See Davis, 870 S.W.2d at 46-47; Morris, 749 S.W.2d at 774-75.
Appellant argues the trial court's order granting him a "free" transcript and statement of facts constituted implied permission to appeal the issues set out in his notice of appeal. We disagree. The record clearly reflects the trial court refused to grant appellant permission to appeal the issues set out in his notice of appeal. Therefore, the Court of Appeals had jurisdiction to consider only appellant's jurisdictional issues. Appellant's first ground for review is overruled.
Appellant also argues the Court of Appeals erred in failing to address his sufficiency and ineffective assistance of counsel claims. These are not jurisdictional issues; therefore, the Court of Appeals had no jurisdiction to address them. See Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Cr.App.1981) (jurisdiction is the power of the court over the "subject matter" of the case, conveyed by statute or constitutional provision, coupled with "personal" jurisdiction over the accused). Appellant's second and third grounds for review are overruled.
Appellant argues the trial judge's relationship to the victim constitutionally and statutorily disqualified him from sitting in the case. This issue is jurisdictional, and the Court of Appeals was correct in addressing it on the merits. See Ex parte Vivier, 699 S.W.2d 862, 863 (Tex.Cr.App.1985). The record reflects the trial judge's daughter is married to the victim's brother. The Court of Appeals held the trial judge's relationship to the victim did not disqualify him from sitting in the case. Lyon, 764 S.W.2d at 2.
Article V, Section 11 of our Constitution states, in pertinent part:
"No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity, or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case."
Article 30.01, supra, states:
"No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State or the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree."
Appellant argues the trial judge and the victim were related by affinity within the third degree. We disagree.
"Affinity is the tie which exists between one of the spouses with the kindred of the other: thus, relations of my wife, her brothers, her sisters, her uncles, are allied to me by affinity, and my brothers, sisters, etc., are allied in the same way to my wife. But my brother and the sister of my wife are not allied by ties of affinity."
Washburn v. State, 167 Tex. Crim. 125, 318 S.W.2d 627, 629 (1958) cert. denied, 359 U.S. 965, 79 S. Ct. 876, 3 L. Ed. 2d 834 (1959). Here, the victim is not part of the kindred of the trial judge's wife; therefore, no affinity exists between the trial judge and the victim even though the trial "judge's daughter was *737 related by affinity to the victim." Lyon, 764 S.W.2d at 2; see also Johnson v. State, 169 Tex. Crim. 146, 332 S.W.2d 321, 322 (1960); Washburn, 318 S.W.2d at 639.[12]
Finally, appellant contends the trial judge was biased against him in violation of the Texas Code of Judicial Conduct, Tex. Gov't Code Ann., Title 2, Subtitle GAppendix (Vernon 1988). Where a trial judge is not constitutionally or statutorily disqualified to preside over a case, as here, a trial judge's bias, standing alone, is not error. See Vera v. State, 547 S.W.2d 283, 285 (Tex.Cr.App. 1977); Aldridge v. State, 170 Tex. Crim. 502, 342 S.W.2d 104, 107 (1960). Therefore, this is not a jurisdictional issue. Appellant's fourth ground for review is overruled.
The judgment of the Court of Appeals is affirmed.
CLINTON, Judge, dissenting.
This Court has addressed the issues raised in this case too recently and with too much unanimity to let today's sudden change of course go unremarked. Because the majority ignores the plain meaning of its own rules and the clear direction of its own precedent, I must dissent.
The majority concedes that "[o]ur caselaw [construing Tex.R.App.Pro., Rule 40(b)(1) and its predecessor, former Article 44.02, V.A.C.C.P.] is not exactly a model of clarity and concise legal analysis." 870 S.W.2d at 45. I agree. See Morris v. State, 749 S.W.2d 772, 778-80 (Clinton, J., dissenting). Unfortunately, the majority's opinions today, both in the instant case and in Davis v. State, 870 S.W.2d 43 (Tex.Cr.App.1994, delivered this day), serve only to further muddy our jurisprudential waters. This is done in two distinct ways: in the finding that "[a] defendant's `general' notice of appeal confers no jurisdiction on a Court of Appeals to address nonjurisdictional defects or errors that occur before or after entry of the plea," 870 S.W.2d at 47; and in the analysis of both the genesis of Rule 40(b)(1) and the extent of the right of appeal granted criminal defendants by the Legislature in Article 44.02, supra. Contrary to the majority's assertions, (1) compliance with Rule 40(b)(1) is in no way jurisdictional; (2) the Legislature did not limit a defendant's substantive right of appeal through its 1977 amendment to Article 44.02; and (3) this Court did, indeed, alter the procedural requisites of an appeal in repealing the proviso to Article 44.02 and replacing it with Rule 40(b)(1). I will address these issues seriatim.
I. Jurisdiction
The majority asserts that "[i]n Jones v. State, 796 S.W.2d 183, 187 (Tex.Cr.App.1990), we held compliance with Rule 40(b)(1) was jurisdictional." 870 S.W.2d at 47 (footnote omitted). In this, the majority misreads Jones, which quite clearly held:
"We agree with the state that appellant failed to preserve any non-jurisdictional defects for his appeal, but not because the Court of Appeals lacked jurisdiction.
Once a notice of appeal has been filed in a case, the Court of Appeals has obtained jurisdiction of that cause. Art. V., § 6, Texas Constitution, confers jurisdiction of all non-death penalty cases on the courts of appeals."
Jones, 796 S.W.2d at 186 (emphasis added).
Rule 40(b)(1) does not limit a court of appeals' jurisdiction. It, instead, "regulates the extent of the grounds upon which a defendant can appeal." Id. It is true, of course, that Morris v. State, 749 S.W.2d 772 (Tex.Cr.App.1988) held that the "proviso" to Article 44.02 was jurisdictional. It is equally true, however, that, to this extent, Morris was wrongly decided, see id. (Clinton, J., dissenting), and that it was superseded by *738 later decisions from this Court, see Jones, supra; Miles v. State, 842 S.W.2d 278 (Tex. Cr.App.1989) (appeal bond sufficient to confer jurisdiction under Rule 40(b)(1)); Lemmons v. State, 818 S.W.2d 58 (Tex.Cr.App. 1991) ("the `but' clause in Rule 40(b)(1) is not a jurisdictional prerequisite"); Riley v. State, 825 S.W.2d 699 (Tex.Cr.App.1992) ("notice of appeal is sufficient to vest jurisdiction in a court of appeals").
Our decisions in Lemmons and Riley make the majority's pronouncements today especially distressing. Lemmons, which specifically finds that compliance with Rule 40(b)(1) is not jurisdictional, was a per curiam opinion without dissent.[1] See Lemmons, 818 S.W.2d at 63, n. 6. Riley drew a dissent from only two judges. Riley, 825 S.W.2d at 701.[2] The same jurists who found Rule 40(b)(1) not to be jurisdictional yesterday are finding that it is jurisdictional today. Can we wonder at the confusion in the courts of appeals when this Court blows hot one day and cold the next? See Moreno v. State, 866 S.W.2d 660 (Tex.App.Houston [1st Dist.], 1993).
Let us acknowledge forthrightly the limitations of our own constitutional grant: This Court neither cedes nor rescinds jurisdiction. The jurisdiction of the courts of appeals is set out by the Texas Constitution. That venerable document grants to the courts of appeals "appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law." Tex. Const. art. V, § 6 (1891, amended 1980). What the Constitution grants, this Court cannot take away. Short of a proper amendment by the People of Texas, the jurisdiction of the courts of appeals is inviolate.
This is not to say that either Rule 40(b)(1) or its predecessor, the proviso to Article 44.02, are without constitutional authority. Quite the contrary: The jurisdiction of the courts of appeals is expressly given "under such restrictions and regulations as may be prescribed by law." Id. The Legislature, in amending Article 44.02 in 1977, "prescribed by law" the manner in which the courts of appeals are to exercise their jurisdiction. It then delegated that authority to this Court. Tex.Gov't Code Ann. § 22.108. This Court, in promulgating Rule 40(b)(1), likewise "prescribed by law" the manner in which the courts of appeals are to exercise their jurisdiction. We did not limit or otherwise rescind that jurisdiction for the simple reason we had no authority to do so.
This Court, without dissent, implicitly recognized this limitation on its own authority in Lemmons.[3] We held that Rule 40(b)(1) "instruct[s] that an appeal is perfected by giving written notice to invoke general appellate jurisdiction of the appropriate court of appeals." Lemmons, 818 S.W.2d at 62-63. We further noted that the rule "specifies `when' an appeal is perfected by appellant" and that "[t]hus the `but' clause in Rule 40(b)(1) is not a jurisdictional prerequisite." Id. at 63 n. 6 (emphasis in the original). That the Court today finds otherwise, without even a nod to its recent precedent to the contraryindeed, without even an acknowledgement of its sudden, inexplicable change of coursemight be called sophistry but for its lack of subtlety.
II. Article 44.02
The majority compounds its error by misconstruing the historical misadventure that created the need for legislation regulating appeals from guilty pleas. Since time out of mind, the Legislature has granted to criminal defendants an unlimited right of appeal. See Article 44.02, supra; Articles 813, 826 & 829, V.A.C.C.P. (1925). That right of appeal has extended to all criminal matters, whether they have arisen from jury verdicts or pleas of guilty or nolo contendere. The first inroad on the unlimited right of appeal was not *739 enacted by the Legislature, but manufactured by this Court.
I refer, of course, to the so-called Helms rule. Helms v. State, 484 S.W.2d 925 (Tex. Cr.App.1972). Borrowing uncritically from the habeas corpus jurisprudence of federal courts, we decided that "[w]here a plea of guilty is voluntarily and understandingly made, all non-jurisdictional defects including claimed deprivation of federal due process are waived." Id., at 927. As I have pointed out on other occasions, the importation of the Helms rule into our jurisprudence was both improper, see Dees v. State, 676 S.W.2d 403, 405 (Tex.Cr.App.1984) (Clinton, J., dissenting), and flawed, see King v. State, 687 S.W.2d 762, 766 (Tex.Cr.App.1985) (Clinton, J., concurring). Nevertheless, the Helms rule was adopted by this Court,[4] bringing with it, as the majority correctly notes, a major fiscal wart: "[T]he Helms rule discouraged guilty pleas, and caused a defendant, who wanted to preserve his appellate issues, to force the State to a full trial on the merits." Maj. op. at 734.
The majority also correctly turns to my dissent in Morris (without acknowledging it as such) for explanation of the Legislature's response to the Helms rule. Id. (citing Morris at 779). That response was the 1977 "proviso" amendment to former Article 44.02, which the majority opinion sets forth in full. Id.
As I pointed out in Morris:
"The effect of the 1977 amendment, as noted by a panel of the Court in Ferguson v. State, 571 S.W.2d 908, 910 (Tex.Cr.App. 1978), was to abrogate the Helms rule.... Apparently the purpose behind such legislative abrogation was to `conserve judicial resources by encouraging guilty pleas' where an accused would otherwise find it necessary to force a full trial on the merits in order to preserve error in the trial court's ruling on a pretrial matter."
Morris, 749 S.W.2d at 779 (footnote omitted). Or, as the majority so succinctly puts it: "Apparently, this cost the State a lot of money." Maj. op. at 734. The "main thrust" of the 1977 amendment was not, as former Presiding Judge Onion once opined in a dissenting opinion, "to eliminate as many appeals as possible and reduce the appellate caseload." Morgan v. State, 688 S.W.2d 504, 513 (Tex. Cr.App.1985) (Onion, P.J., dissenting). The "main thrust" was, instead, to unburden the dockets of the district and county courts by allowing defendants to appeal without the necessity of a full trial on the merits. Morris, 749 S.W.2d at 779 n. 12. On this issue, the majority and I apparently agree. See Maj. op. at 734 (citing Morris, 749 S.W.2d at 779 n. 12).
Where the majority and I disagree is on the nature and extent of the right of the appeal granted to criminal defendants by the Legislature through amended Article 44.02. The majority reads the 1977 amendment as a restriction on a defendant's right of appeal. The amendment to Article 44.02 was, instead, manifestly permissive. Morris, 749 S.W.2d at 779. The Legislature granted an unlimited right of appeal in originally enacting Article 44.02; this Court manufactured a limit to that right by its importation of the Helms rule; the Legislature then soundly rapped our collective knuckles by abrogating the Helms rule in causes arising from a negotiated plea. The 1977 amendment was not intended as a restriction on a defendant's right of appeal; it was, instead, an attempt by the Legislature to remove a restriction on that right created by this Court. For this Court to now read the 1977 amendment as an attempt by the Legislature to restrict a defendant's right of appeal is to turn the Legislature's intent on its head.
The better interpretation, one in step with the Legislature's clear intent, is that a criminal defendant's substantive right of appeal remained unchanged, and unlimited, following the 1977 amendment, and that the proviso *740 added to former Article 44.02 merely set forth the procedural requisites for prosecuting such an appeal. The majority thus lays a false foundation, viz: that the 1977 amendment to former Article 44.02 limited a defendant's right of appeal. Upon that foundation, it constructs a house of cards: the proposition that our promulgation of Rule 40(b)(1) did not in any way change the procedure mandated by the proviso to Article 44.02. That proposition, without its foundation, does not survive close scrutiny.
III. Rule 40(b)(1)
The majority notes that this Court did not have the authority "to modify a defendant's substantive right of appeal that previously existed under the proviso to Article 44.02." Maj. op. at 736. The majority further reasons that, because this Court did not have the authority to make a change, ipso facto, no change was made. As I have demonstrated, however, the first leg of the majority's argument is not supportable: Rule 40(b)(1) is in no way jurisdictional, and the amendment to Article 44.02 in no way limited a criminal defendant's substantive right of appeal. Our task thus becomes to determine what procedural change was brought about by the repeal of the proviso to Article 44.02 and the subsequent promulgation of Rule 40(b)(1), and then to determine what effect that change has on the cause sub judice.
I would have thought that the change would be apparent from the plain language of both the repealed proviso and the new rule. This apparently is not the case. I will therefore parse and compare the proviso to the former article with the "but clause" of the new rule.
The proviso to Article 44.02 began, "provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney." The "but clause" of Rule 40(b)(1) begins, "but if the judgment was rendered upon his plea of guilty or nolo contendere pursuant to Article 1.15, Code of Criminal Procedure, and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney."
Thus we come to the first change wrought by the promulgation of Rule 40(b)(1). Under Article 44.02, as amended in 1977, the proviso was brought into play by any plea agreement followed by the trial court. Under current Rule 40(b)(1), the "but clause" requires not only a plea agreement, but one made "pursuant to Article 1.15, Code of Criminal Procedure." It therefore follows that plea agreements which do not comport with the requirements of Article 1.15 fall outside the ambit of the "but clause" of Rule 40(b)(1).
The proviso to Article 44.02 continued, "[before a defendant] may prosecute his appeal, he must have permission of the trial court, except in those matters which have been raised by written motion prior to trial." The "but clause" to Rule 40(b)(1) continues, "in order to prosecute an appeal for a nonjurisdictional defect or error that occurred prior to entry of the plea the notice shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial."
We first note that Article 44.02 required only that the matters appealed be "raised by written motion prior to trial," while Rule 40(b)(1), in contrast, requires the matters appealed be "raised by written motion and ruled on before trial." This is a significant difference, albeit one of no import to the discussion today. We next note that the proviso to Article 44.02 applied to any appeal, while the "but clause" of Rule 40(b)(1) applies only to an appeal "for a nonjurisdictional defect or error that occurred prior to entry of the plea." This is also a significant change, one which, combined with the inclusion of the mandates of Article 1.15 within Rule 40(b)(1), speaks directly to the issue before this Court today.
Article 1.15 has its own "proviso." It allows a felony defendant to waive trial by jury and enter a plea of guilty "provided, however, that it shall be necessary for the state to *741 introduce evidence into the record showing the guilt of the defendant ... and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same." Article 1.15 is, in effect, a statutory mandate for trial court review of the sufficiency of the evidence.
Such a review is not barred by operation of Rule 40(b)(1) for two independent reasons. First, by its very terms, the "but clause" of Rule 40(b)(1) applies only to pleas made "pursuant to Article 1.15." For pleas not in compliance with Article 1.15, only the first section of Rule 40(b)(1) applies, viz: "Appeal is perfected in a criminal case by giving timely notice of appeal.... Such notice shall be sufficient if it shows the desire of the defendant to appeal from the judgment."[5] Second, and independent of the incorporation of Article 1.15 within the rule, the "but clause" of Rule 40(b)(1) applies only to errors that "occurred prior to entry of the plea." Sufficiency of the evidence and compliance with the statutory requirements of Article 1.15 necessarily arise as issues only after entry of the plea.
We see, then, that Rule 40(b)(1) was a very real departure from the former proviso to Article 44.02. Indeed, had we not wanted to change the proviso, we could have easily transcribed it verbatim into our rules of appellate procedure. That is exactly what we did, for example, in replacing Article 44.24(a), V.A.C.C.P. (presumptions on appeal) with Tex.R.App.Pro., Rule 80(d) (presumptions in criminal cases). And while it seems incongruous to speak of our intent in adopting the appellate rules (McCormick, P.J., and Clinton, Miller and Campbell, JJ., sat on the Court which adopted the appellate rules), such intent is apparent in reviewing the history of Article 44.02, viz: We incorporated the legislative abrogation of the Helms rule into our appellate rules by using the language of the Helms rule itself. That is, we took the permissiveness of the proviso to Article 44.02which allowed appeals from written pre-trial motionsand combined it with the language of the Helms rule as properly construed (i.e., limited to "non-jurisdictional defects in the prior proceedings"). See note 4, ante.
We did this to impose a logical parallelism on appeals from a plea of guilty, whether arising from a plea agreement or not. Properly interpreted, Rule 40(b)(1) dictates the procedure to follow in appealing "error that occurred in the prior proceedings" in causes involving plea agreements. For pleas made without agreement, the Helms rule, as properly formulated, imposes a waiver for all "non-jurisdictional defects in the prior proceedings." See note 4, ante. And for errors that arise after entry of the plea, neither Rule 40(b)(1) nor the Helms rule hinders a criminal defendant's right of appeal. This, at least, was how we viewed the Helms rule itself until the irrational majority opinion in Morris.[6] And this is the way we both reevaluated the Helms rule and interpreted Rule 40(b)(1) in this Court's nearly unanimous decision in Lemmons. 818 S.W.2d at 60 n. 2 & 60-61.
IV. The Instant Case
That said, the task remains to apply a properly interpreted Rule 40(b)(1) to the facts and proceedings of the cause sub judice. In a pro se brief, appellant raised six *742 points of error in the court of appeals. He complained of 1) a coerced and involuntary plea; 2) an uninformed plea; 3) insufficiency of the evidence; 4) ineffective assistance of counsel; 5) a conflict of interest by the trial judge; and 6) the dual representation of the appellant and his co-defendant.
The court of appeals considered the appellant's fifth point of error, which it construed as a complaint that "the trial judge was disqualified as a matter of law from sitting in this case, thus the trial court lacked jurisdiction." Lyon v. State, 764 S.W.2d 1 (Tex. App.Texarkana 1988). The court of appeals found the other points of error barred by Rule 40(b)(1), which it held "eliminates the defendant's rights of direct appeal except for pretrial motions and other matters as permitted by the trial court." Id. As the majority notes, we granted appellant's petition to review "whether the Court of Appeals erred in (1) holding that it had jurisdiction to review only jurisdictional issues, (2) in failing to address appellant's ineffective assistance of counsel claim, (3) in failing to address appellant's sufficiency claim, and (4) in holding the trial judge's relationship to the victim disqualified him." Maj. op. at 734. Only grounds for review numbered one through threethat is, the nonjurisdictional errors urged by appellantare implicated by the current discussion.
The proper resolution of appellant's first ground for review should be apparent from the preceding discussion. The court of appeals' jurisdiction is neither granted nor taken away by Rule 40. See Tex. Const. art. V, § 6 (1891, amended 1980) and Part I, ante. That court's jurisdiction is invoked, and appeal perfected, "by giving timely notice of appeal [which] shall be sufficient if it shows the desire of the defendant to appeal." Rule 40(b)(1), supra. Such notice, although not meeting the requirements of the "but clause" of Rule 40(b)(1), was given here. Thus, the court of appeals had jurisdiction to consider all the matters raised by the defendant.
That a court is vested with appellate jurisdiction, however, does not authorize it to exercise appellate power. Rule 40(b)(1), while not a jurisdictional limitation, may serve as a procedural bar to certain issues in certain circumstances. Which issues? "Nonjurisdictional defect(s) or error(s) that occurred prior to entry of the plea." Rule 40(b)(1), supra. Which circumstances? Causes in which proper, timely notice has not been given, i.e., notice which does not state "that the trial court granted permission to appeal or [which] specif(ies) that those matters were raised by written motion and ruled on before trial." Id.
Appellant's third point of error in the court of appeals falls outside the purview of the procedural bar raised by the "but clause" of Rule 40(b)(1). He complained that "the (trial) court erred in accepting appellant's guilty plea because there is no evidence to support the conviction." As discussed ante, a complaint of insufficient evidence is doubly allowed by Rule 40(b)(1), both because that rule incorporates the requirements of Article 1.15 and because a complaint of legal insufficiency arises only after a plea is made. The court of appeals should have addressed this point of error on its merits.
That court also should have addressed appellant's fourth point of error. Ineffective assistance of counsel, in a cause arising from a plea of guilty, is, in effect, a complaint that the plea was not understandingly made. As such the complaint does not arise until after the plea is made. Thus it is reviewable by the appellate court under Rule 40(b)(1) and is not barred by the Helms rule. Indeed, as I noted ante, the genesis of Rule 40(b)(1) was the Helms rule, which was predicated on the assumption that "a plea of guilty is voluntarily and understandingly made." Helms, 484 S.W.2d at 927.
Under our current case law and a proper interpretation of our appellate rules, I would hold that the court of appeals erred in not considering appellant's claim of insufficient evidence and that it had jurisdiction to consider all the claims brought by the appellant once timely notice of appeal was filed. Because the Court does not, I dissent.
BAIRD and OVERSTREET, JJ., join.
OVERSTREET, Judge, dissenting.
The majority holds that Rule 40(b)(1) requires a defendant, in an appeal from a plea *743 bargained conviction, to obtain the trial court's permission to appeal any matter in the case except for those matters raised by written motion and ruled on before trial and that a "general" notice of appeal confers jurisdiction on a Court of Appeal to review only jurisdictional issues, citing Davis v. State, No. 1212-89, 870 S.W.2d 46-47 (Tex. Cr.App.1993) and Morris v. State, 749 S.W.2d 772, 774-75 (Tex.Cr.App.1986).
For the reasons outlined in my dissent in Davis, slip opinion, I disagree with the majority's holding in this case. While my Davis dissent is fairly lengthy, I feel compelled to succinctly restate that there are no prerequisites under Rule 40(b)(1), other than a timely notice of appeal, that mandate that a defendant gain trial court's permission to appeal a nonjurisdictional defect or error that occurs after the entry of the plea. With these comments, I dissent.
BAIRD, J., joins.
NOTES
[1] The record reflects no pretrial motions were filed in the case.
[2] The record also reflects appellant was unrepresented by counsel in his appeal to the Court of Appeals even though the trial court made a finding appellant was indigent and ordered the preparation of the transcript and statement of facts at taxpayers' expense to be furnished "to the Defendant, Pro-se." The record reflects appellant has refused court-appointed counsel from Bowie County. After granting appellant's pro se petition for discretionary review, we allowed pro bono counsel to represent appellant "without court appointment or being retained." We have considered the briefs and other documents filed by appellant and pro bono counsel. The State has not filed a brief; it filed a document here stating its position is adequately set out in the five-page brief it filed in the Court of Appeals.
[3] In relevant part, Rule 40(b)(1) states:
"Appeal is perfected in a criminal case by giving timely notice of appeal; except, it is unnecessary to give notice of appeal in death penalty cases. Notice of appeal shall be given in writing filed with the clerk of the trial court. Such notice shall be sufficient if it shows the desire of the defendant to appeal from the judgment or other appealable order; but if the judgment was rendered upon his plea of guilty or nolo contendere pursuant to Article 1.15, Code of Criminal Procedure, and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, in order to prosecute an appeal for a nonjurisdictional defect or error that occurred prior to entry of the plea the notice shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial...." (Emphasis Supplied).
[4] Article 44.02 provided:
"A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed."
[5] Helms v. State, 484 S.W.2d 925 (Tex.Cr.App. 1972).
[6] See Acts 1977, 65th Leg., p. 940, ch. 351, § 1, eff. August 29, 1977.
[7] This proviso literally required a defendant to obtain the trial court's permission to appeal any matter except for those matters raised by written motion filed prior to trial.
[8] The Helms rule remains viable in an appeal from a conviction based on a guilty plea where no plea bargain has been reached. See Morgan, 688 S.W.2d at 515; King, 687 S.W.2d at 765.
[9] See Act of August 26, 1985, 69th Leg., ch. 685, §§ 1-4, 1985 Tex.Gen.Laws 2472-2475 (authorizing this Court to promulgate rules of procedure and evidence in criminal cases).
[10] See Act of August 26, 1985, 69th Leg., ch. 685, § 1, 1985 Tex.Gen.Laws 2472. Now codified in Tex. Gov't Code Ann. § 22.108(a) (Vernon 1988).
[11] In Jones, the State argued that "appellant's [general] notice of appeal only invoked jurisdiction of the Court of Appeals to consider the limited issues of jurisdictional defects or matters arising after the entry [of the] plea, and not on the merits of appellant's pre-trial motion [to quash the indictment]." (Emphasis Supplied) This position is inconsistent with our holdings in Morris, Davis, and this case.
[12] Appellant also claims Article 30.01 incorporates the definition of "secondary affinity" contained in Black's Law Dictionary (4th Ed.), which is defined as affinity between "the husband and the wife's relations by marriages [and vice versa]." Appellant argues the trial judge and the victim were related by secondary affinity. Article 30.01 clearly does not include "secondary affinity" as defined in Black's. See also Johnson, 332 S.W.2d at 322. Moreover, assuming "affinity" under Article 30.01 included "secondary affinity" as defined in Black's, the victim is not a relation of the trial judge's wife; therefore, appellant's argument fails because the relationship between the trial judge and the victim does not come within the definition of "secondary affinity."
[1] Judge Campbell, without stating his reasons, concurred in the result.
[2] Judges Campbell and Overstreet concurred in the result.
[3] See also Carter v. State, 656 S.W.2d 468 (Tex. Cr.App.1983) ("Once jurisdiction of an appellate court is invoked, exercise of its reviewing function is limited only by its own discretion or a valid restrictive statute.").
[4] Properly stated, with due regard for its federal precedents, the Helms rule should read thus:
"The guilty plea under the circumstances is conclusive as to the defendant's guilt, admits all the facts charged and waives all non-jurisdictional defects in the prior proceedings."
Morris v. State, 749 S.W.2d 772, 779 (Tex.Cr.App. 1986) (Clinton, J., dissenting) (quoting King, 687 S.W.2d at 766) (emphasis in the original).
[5] Moreover, for any appeal, the unrepealed portion of Article 44.02 remains applicable. The order by this Court adopting the Texas Rules of Appellate Procedure repealed only the proviso to Article 44.02, which now reads, in toto: "A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed."
[6] 749 S.W.2d 772. As I pointed out in my dissent to that decision:
"[P]rior to amendment of Art. 44.02 in 1977 an accused pleading guilty or nolo contendere was said to have waived appellate complaint as to such matters as lawfulness of a search, voluntariness of a confession, competency to stand trial or sufficiency of the charging instrument. He had not waived, however, defects in the entry of the plea itself ... or, as in the instant cause, insufficiency of the evidence."
Morris, 749 S.W.2d at 779.
Indeed, what the Morris majority overlooked in finding that the Helms rule barred appellate review of a claim of insufficient evidence was that the Helms casethe very case for which the rule was namedinvolved a review of the sufficiency of the evidence! See Helms, 484 S.W.2d at 927 ("We find the foregoing evidence sufficient to support the conviction under Art. 1.15, V.A.C.C.P."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2414895/ | 384 F. Supp. 2d 618 (2004)
Mohammed FEZZANI, Cirenaca Foundation, Dr. Victoria Blank, Lester Blank, James and Jane Bailey, Baydel Ltd., Margaret and Patrick Burgess, Bootlesville Trust and Adam Cung, Plaintiffs,
v.
BEAR, STEARNS & COMPANY, INC., Bear Stearns Securities Corp., Richard Harriton, Andrew Bressman, Arthur Bressman, Richard Acosta, Glenn O'Hare, Joseph Scanni, Brett Hirsch, Garvey Fox, Matthew Hirsch, Richard Simone, Charles Plaia, John Mcandris, Jack Wolynez, Robert Gilbert, First Hanover Securities, Inc., Banque Audi Suisse Geneve, Fozie Farkash, Rawairaes, Basil Shablaq, Ken Stokes, Issac R. Dweck, Individually and as custodian for Nathan Dweck, Barbara Dweck, Morris I. Dweck, Ralph I. Dweck, Millo Dweck, Beatrice Dweck, Richard Dweck, Jack Dweck, Issac B. Dweck, Hank Dweck, Morris Wolfson, Arielle Wolfson, Aaron Wolfson, Abraham Wolfson, Tovie Wolfson, Anderer Associates, Boston Partners, Wolfson Equities, Turner Scharer, Chana Sasha Foundation, United Congregation Mesarah, Fahnestock & Co., Inc., Donald & Co., Barry Gesser, Michael Ryder and Apollo Equities, Defendants.
No. 99 Civ.0793 RCC.
United States District Court, S.D. New York.
April 6, 2004.
*619 *620 *621 *622 *623 *624 Max Folkenflik, Folkenflik & McGertity, New York City, for Plaintiffs.
Richard Acosta, Raybrook, NY, Pro se.
David L. Wales, Howard Wilson, Rosenman & Colin, L.L.P., John Edward Tardera, Winston & Strawn LLP, Stuart L. Melnick, Stuart L. Melnick, LLC, John Edward Tardera, Winston & Strawn LLP, Marc J. Ross, Sichenzia, Ross & Friedman & Ference, L.L.P., New York City, for Defendants.
Memorandum Opinion & Order
CASEY, District Judge.
This action was brought on February 2, 1999 by eleven investors (collectively, "Plaintiffs") against more than fifty individual and corporate defendants (collectively, "Defendants") arising out of the activities of A.R. Baron & Co. ("Baron"), a New York securities broker-dealer. The complaint alleges claims for federal securities fraud, violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), aiding and abetting breach of state-law fiduciary duties, and common-law fraud. Now before the Court are seven motions to dismiss the complaint. As detailed below, the motions are GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
A. Baron's History
Baron was a broker-dealer which operated from 1992 until 1996.[1] (Compl.¶ 1.) *625 During that period, Baron and its employees engaged in a widespread fraudulent scheme to manipulate the price of certain securities. The majority of Baron's business consisted of underwriting securities for initial public offerings. (Id. ¶ 5.) Baron brokers used cold calling to sell as much stock as possible in the companies. Because there was no true public market for the stocks, they were able to control both purchases and sales. (Id. ¶ 7.)
Baron first sought to increase sales by disseminating favorable information about the stocks while suppressing adverse information, as well as inventing favorable information. (Id. ¶ 8.) In addition, Baron made unauthorized purchases on behalf of customers. (Id.) When customers complained about the purchases, Baron transferred the securities to an "error account," effectively making Baron the purchaser of those securities and depleting its capital. (Id. ¶ 18.) Alternatively, Baron would rebill the unauthorized trade to a different customer's account. (Id. ¶ 21.) Baron also engaged in "parking" stock. (Id.) "Parking" is defined in the complaint as executing trades to a buyer, actually a coconspirator, by which the stock would be placed in the coconspirator's account while Baron maintained the risk of loss. The transactions would be reported to create a false appearance of trading in certain securities, thereby increasing the securities' price and inducing customers to execute transactions. (Id. ¶¶ 120-23.)
These acts of manipulation were intended to inflate the market price of the securities that Baron was selling and convince customers to purchase those stocks. Baron and its coconspirators then sold the shares they held before the stock price crashed. (Id. ¶¶ 10-11.) As stated above, however, Baron's practices caused its capital to decrease, placing it in constant danger of dipping below the minimum capital level required by regulations. (Id. ¶ 23.) The National Association of Securities Dealers ("NASD") and the Securities and Exchange Commission ("SEC") investigated Baron on a number of occasions, imposing large fines and temporarily suspending some of its brokers. (Id. ¶ 94.) By the end of 1995, Baron had a net capital deficiency of $1,110,675; customer complaints amounted to $80 million. (Id. ¶ 247.) Baron temporarily went out of business in October 1995, as it had previously done in 1993. (Id.) The company finally filed for bankruptcy in July 1996. (Id.)
The complaint alleges that Baron's activities cost investors in excess of $80 million and inflated the market value of the securities that Baron manipulated by billions of dollars. (Id. ¶ 24.) Baron's activities generated litigation, both civil and criminal, in more than one federal district court, the bankruptcy courts, New York state supreme court, and before arbitral tribunals. In 1994, a federal civil suit was filed against Baron; the NASD initiated another investigation; and an arbitration proceeding was commenced seeking over $1 million in damages. (Id. ¶ 116.) By the end of 1994, the numerous litigation actions sought over $10 million in damages. (Id.) In 1995, an investor brought another suit in federal court against Baron and some of its brokers seeking $1 million in compensatory and $5 million in punitive damages. (Id. ¶ 212.) On December 19, 1995, the State of Alabama procured an order to show cause why Baron's broker license should not be suspended for failure to report claims and proceedings against it. (Id. ¶ 231.)
Baron's woes did not end with its 1996 bankruptcy. In March 1997, the NASD filed a complaint against eighteen Baron representatives. (Id. ¶ 269.) Then, on May 13, 1997, Baron and its employees were indicted by a grand jury in New York Supreme Court, New York County. (Id. *626 ¶ 270.) All of the defendants in that criminal case either pled guilty or were convicted of charges of, among other things, enterprise corruption, the state-law analogue to RICO. (Id. ¶¶ 271-72.)
B. The Manipulated Securities
The claims here arise out of public offerings of stock in the following companies: Cryomedical Sciences, Inc. ("CMSI"), Health Professionals, Inc. ("HPI"), Cypros, Innovir, Voxel, Cardiac Sciences, Inc. ("Cardiac"), PaperClip, Mammo, Symbollon, Aqua, Laser Video, and Jockey Club. Both CMSI and HPI were cofounded by Jeffery Weissman, who, along with Andrew Bressman, founded Baron. (Id. ¶ 64.) The complaint alleges that Weissman engaged in manipulation of CMSI and HPI stock prices before he and Bressman established Baron. (Id. ¶¶ 68-69.) After Baron's conception, its brokers began using the boiler room tactics described above to inflate the price of CMSI and HPI. (Id. ¶ 90.)
In mid-1992, Baron acted as underwriter for Cypros, a bio-pharmaceutical company without any marketable products. (Id. ¶ 91.) Baron placed 20% of the initial public offering with itself and its coconspirators, in violation of NASD regulations. (Id. ¶ 92.) Baron also executed a large amount of purchase orders for customers who never agreed to buy Cypros shares. (Id. ¶ 93.) The NASD later sanctioned Baron for the unauthorized trading in Cypros, and suspended Baron's top executives for sixty days. (Id. ¶ 155.)
Baron allegedly profited from the manipulation of CMSI, HPI, and Cypros stock prices. However, Baron ran into some difficulty when HPI lost its allure as an attractive investment. The SEC began an investigation of HPI in 1993, and newspaper articles appeared that accused HPI of fraud. (Id. ¶ 100.) Baron had misrepresented to customers that Hoffman-LaRoche was offering to purchase HPI, and that HPI rejected the offer because of the company's high value. (Id. ¶ 99.) Baron's involvement with HPI was publicized in Barron's Magazine, a widely read Wall Street publication. (Id. ¶¶ 101, 152.) The article caused HPI stock to drop in value, causing Baron to attempt to resuscitate the price through purchasing approximately 780,000 shares, then transferring the shares to unknowing customers or parking the shares with coconspirators. (Id. ¶ 104.) The manipulation financially strained Baron, causing its net capital to fall below the level required by the NASD and resulting in a short suspension from full trading activities. (Id. ¶ 107.)
Baron returned to its fraudulent activities with the initial public offering of Innovir, a biomedical company with no revenue and high debts. (Id. ¶ 109.) Baron instituted the same manipulation techniques it had used with the other securities. In 1994, a new group of brokers joined Baron and began manipulating certain securities: Mammo, Symbollon, Aqua, and Laser Video. (Id. ¶ 113.) These brokers made misrepresentations to Baron customers such as telling one of the plaintiffs here that Mammo's technologies and equipment were being installed and tested at Sloan Kettering Institute. (Id. ¶ 115.) The price of Innovir rose from $2½ per share to $4 15/16 per share; soon after Baron's bankruptcy, the price returned to $2 per share and is now virtually nothing. (Id. ¶ 245.)
Voxel was another company whose initial offering Baron underwrote. (Id. ¶ 118.) Baron hid or deceptively explained Voxel's lack of revenue, high debts, and short-term cash needs. (Id. ¶ 119.) Baron's brokers used high-pressure sales tactics and unauthorized purchases to inflate the price of Voxel shares as well. Shares of Voxel common stock went from $1 7/8 per share *627 to $8 3/16 per share, until Baron's bankruptcy when the price collapsed. (Id. ¶ 244.)
The complaint describes the sale of Mammo shares as one of the most blatant of Baron's fraudulent enterprises. According to the complaint, the market for Mammo shares consisted entirely of Baron and its affiliates. (Id. ¶ 175.) When the price of Mammo dropped 40%, Baron created fictitious sales of 300,000 to 400,000 shares, including unauthorized customer trades. (Id.) Two such trades in 1995 involved the accounts of Diaward Steel Works Ltd. and Jose Mugrabi, neither of whom are plaintiffs in this suit. (Id. ¶¶ 185-94.) In October 1995, Diaward sued Baron for fraud. (Id. ¶ 212.)
Also in 1995, Baron underwrote an initial public offering of PaperClip, obtaining subscriptions in excess of the maximum offering amount provided for by the terms of the initial offering. (Id. ¶ 196.) Baron used the investments beyond the maximum offering amount to support the other securities it was manipulating. (Id. ¶ 196.) Baron then used a "bait and switch" technique to procure investments from customers, ostensibly for the PaperClip stock, that would be used to fund other trades. (Id. ¶ 198.) Baron inflated the price of PaperClip stock from $2.00 to a high of $11 3/8 per share. (Id. ¶ 243.)
Finally, Baron entered into a scheme in 1995 to purchase large quantities of stock in Jockey Club at inflated prices and then resell those shares to Baron customers. (Id. ¶ 233.) The Jockey Club shares were, in reality, worth very little. (Id. ¶ 234.) Baron either persuaded its customers to purchase the securities through misrepresentations and omissions, or made unauthorized trades in customer accounts. (Id. ¶¶ 238-40.)
C. Parties to this Action
Baron's widespread fraud is not contested. Baron is no longer in business; its principals are currently incarcerated. Baron and some of its senior executives are shielded from suit by bankruptcy proceedings. At issue here, however, is Defendants' liability for defrauding Plaintiffs, who were all Baron customers.
1. Plaintiffs
Plaintiffs all allege that they were defrauded into purchasing stocks whose price was a result of Baron's manipulation. They further claim that Defendants here are liable for their losses. To the extent relevant, the Court discusses the Plaintiffs' individual allegations below.
2. Defendants
To simplify the discussion, the Court has adopted the complaint's grouping of Defendants. While Baron and some of its top executives are not named in this suit, many of its employees are. Andrew Bressman, Arthur Bressman, Richard Acosta, Glenn O'Hare, Joseph Scanni, Brett Hirsch, Garvey Fox, Matthew Hirsch, Richard Simone, Charles Plaia, Mark Goldman, John McAndris, Jack Wolynez, and Robert Gilbert are collectively labeled as the "Baron Defendants." Andrew Bressman was Baron's President and Chief Executive Officer; he pled guilty in state court to enterprise corruption and grand larceny. (Id. ¶ 27, 45.) Arthur Bressman is his father, and steered prospective initial public offerings and other deals to Baron, as well as advised his son. (Id.) All of the other Baron Defendants were Baron brokers who have since been convicted of state crimes. (Id.) Of all the Baron Defendants, only Acosta has appeared in this case.
Bear, Stearns & Co., Bear Stearns Securities Corp., and Richard Harriton are described *628 herein as the "Bear Stearns Defendants." Bear, Stearns Securities Corp., a subsidiary of Bear, Stearns & Co. (together referred to as "Bear Stearns") acted as Baron's clearing house from April 1992 through approximately February 1993, and from July 1995 through July 1996. (Id. ¶ 28.) Harriton was, at the time of the complaint, a senior director of Bear Stearns Securities Corp. and its head of clearing operations. (Id. ¶ 50.) As a clearing house, Bear Stearns processed transfers of securities and transaction payments; it was Bear Stearns responsibility to ensure that trades made through Baron were completed on the settlement date so that the securities were delivered to the customer and cash paid to the seller. (Id. ¶ 79.) If a buyer or seller defaulted, Bear Stearns, as clearing house, had to pay the cash or deliver the promised securities; it then had to seek restitution from the defaulting party. (Id.)
The complaint alleges that the Bear Stearns Defendants knew of Baron's fraudulent activities, provided financial support to Baron, and directed Baron at times to sell the manipulated securities to the public. (Id. ¶ 29.) In addition, the Bear Stearns Defendants allegedly aided Baron in arranging fictitious sales by knowingly recording them as actual trades to deceive regulatory agencies. (Id.) And, at times, the Bear Stearns Defendants chose which of Plaintiffs' purchase and sale orders it would execute based on the benefit to themselves. (Id. ¶ 30.)
Donald & Co., First Hanover Securities, and Fahnestock & Co. ("Broker Defendants") are alleged to have knowingly engaged in parking and other fictitious transactions to create the appearance of an active market in the manipulated securities. (Id. ¶ 31.)
Isaac Dweck, Morris Wolfson, Basil Shiblaq, Ken Stokes, and Fozie Farkash are collectively labeled as the "Individual Defendants."[2] These defendants allegedly assisted Baron in the fraud by, among other things, providing financing and engaging in parking transactions to create the appearance of an active trading market. (Id. ¶ 32.) The Individual Defendants were permitted to sell their securities at inflated prices before the stocks crashed to their true values. (Id.)
Finally, Plaintiffs claim that Apollo Equities, Barry Gesser, and Michael Ryder ("Apollo Defendants") paid bribes to Baron in exchange for Baron recommending that Plaintiffs and other customers purchase *629 securities such as Jockey Club. (Id. ¶ 33.) This agreement, outlined in the discussion of the Jockey Club stocks above, allegedly was meant to, and did, artificially inflate market prices, deceive investors, and cause Plaintiffs to purchase securities at the inflated prices. (Id. ¶ 34.)
D. The Causes of Action and the Motions to Dismiss
Plaintiff's first claim for relief arises under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and its implementing regulation, Rule 10b-5, 17 C.F.R. § 240.10b-5. Plaintiffs allege that they traded in the manipulated securities as a result of Defendants' fraudulent misrepresentations and omissions. (Id. ¶ 274.) Defendants' acts allegedly caused Plaintiffs to believe that the price of the stocks was the result of an orderly market, when, in fact, it was a result of Defendants' and Baron's fraudulent manipulation. (Id.) Defendants are also accused of using manipulative devices in connection with the purchase and sale of securities, and engaging in practices intended to and with the effect of defrauding Plaintiffs. (Id. ¶ 276.)
Defendants are each alleged to have violated section 10(b) and Rule 10b-5 through their own acts; Plaintiffs also claim that Defendants are liable for Baron's acts as control persons of Baron pursuant to section 20(a) and (b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78. (Id. ¶¶ 35, 279.) Plaintiffs seek damages on the first cause of action in the amount of $6,500,000. (Id. ¶ 288.)
The second cause of action alleges violations of section 9 of the Securities and Exchange Act, 15 U.S.C. § 78i. The basis of this claim is that Defendants knowingly or recklessly manipulated the market for certain securities traded on national securities exchanges, with the purpose of inducing the purchase or sale of the securities. (Id. ¶¶ 290-93.) Plaintiffs allegedly relied on the integrity of the market in executing their transactions. (Id. ¶ 291.) Damages are sought on this claim in the amount of $6,500,000.
Third, Plaintiffs sue for violations of section 10(b) and Rule 10b-5 based on Defendants knowing or reckless market manipulation. (Id. ¶¶ 297-99.) Plaintiffs also seek $6,500,000 in damages on their third cause of action. (Id. ¶ 300.)
Plaintiffs fourth assert claims under RICO, 18 U.S.C. § 1962. The alleged pattern of racketeering activity included "tens of thousands of acts" of securities, mail, and wire fraud. (Id. ¶ 302.) The complaint describes Baron as an enterprise and Defendants as an enterprise-in-fact; Defendants allegedly participated in both enterprises' conduct through a pattern of racketeering activity. (Id. ¶¶ 302-05.) However, the RICO claim is only pursued against the Baron Defendants. Plaintiffs again seek $6,500,000 in damages, which they argue should be trebled, plus costs and attorney's fees. (Id. ¶ 310.)
Claims five and six are based on New York State law. The fifth cause of action alleges that Defendants aided and abetted Baron and its brokers in violating Baron's fiduciary duties to Plaintiffs. (Id. ¶¶ 315-16.) The sixth cause of action alleges common law fraud. (Id. ¶ 318-19.) Plaintiffs seek $6,500,000 in damages on both claims. (Id. ¶¶ 317, 319.)
Seven groups of defendants have filed motions to dismiss the complaint. Generally speaking, Defendants move to dismiss on the following grounds: (1) the federal securities fraud and aiding and abetting claims are barred by the applicable statute of limitations; (2) the securities fraud and common-law fraud claims are not pled with sufficient particularity under Federal Rule of Civil Procedure 9(b) and the Private Securities Litigation Reform Act of 1995 *630 ("PSLRA"), 15 U.S.C. § 78u-4(b)(2); and (3) the securities fraud, aiding and abetting, and common-law fraud claims fail to state causes of action under Federal Rule of Civil Procedure 12(b)(6).[3] Defendants further ask that the Court not exercise supplemental jurisdiction over the state-law claims if the federal claims are all dismissed.
II. DISCUSSION
A. Legal Standard on Motions to Dismiss
The Court can only grant a motion to dismiss pursuant to Rule 12(b)(6) if it appears beyond doubt that Plaintiffs can prove no set of facts in support of their claim that would entitle them to relief. Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995). Failure to sufficiently plead the elements of a cause of action is grounds for dismissal. Goldin Assocs., L.L.C. v. Donaldson, Lufkin, Jenrette & Securities Corp., 2003 WL 22218643, at *1 (S.D.N.Y. Sept. 25, 2003). Plaintiffs, alleging fraud and violations of federal securities laws, must plead the elements of their causes of action with specificity. Fed.R.Civ.P. 9(b) ("In all averments of fraud ... the circumstances constituting fraud ... shall be stated with particularity."); PSLRA, 15 U.S.C. § 78u-4(b)(2). In addition, it is proper to dismiss claims when it is apparent from the complaint and documents referenced therein that they are barred by the applicable statute of limitations. See In re Gen. Dev. Corp. Bond Litig., 800 F. Supp. 1128, 1135-36 (S.D.N.Y.1992) (collecting cases).
B. Claims Under Sections 9 and 10(b) and Rule 10b-5
1. Statute of Limitations on Plaintiffs' Security Fraud Claims
Defendants move to dismiss the complaint on the ground that the security fraud claims are barred by the applicable statute of limitations. Section 9 of the Securities Exchange Act of 1934 states, "No action shall be maintained to enforce any liability created under this section unless brought within one year after the discovery of the facts constituting the violation and within three years after such violation." 15 U.S.C. § 78i(e). The same limitations periods apply to claims based on § 10(b) and Rule 10b-5. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 364, 111 S. Ct. 2773, 115 L. Ed. 2d 321 (1991). Thus, the first three causes of action here are time-barred unless filed within one year from the date Plaintiffs discovered Defendants' fraud and three years from any violations of the federal securities laws.
(a) Three-Year Prong
The Court begins its analysis with three-year prong of the statute of limitations because its application is more straightforward. Plaintiffs cannot sue for any act of securities fraud that occurred more than three years before they filed the complaint in this case. See id. at 363, 111 S. Ct. 2773. "The three-year period is an absolute limitation which applies whether or not the investor could have discovered the violation." Jackson National Life Ins. Co. v. Merrill Lynch & Co., 32 F.3d *631 697, 704 (2d Cir.1994). Thus, "no claims under ... Section 10(b) of the Exchange Act, or Rule 10b-5 may be brought more than three years after the sale or public offering from which those claims arise." Stamm v. Corp. of Lloyd's, No. 96 Civ. 5158(SAS), 1997 WL 438773, at *4 (S.D.N.Y. Jan. 4, 1997). This is true for Plaintiffs' claims under section 9 as well. See Lampf, 501 U.S. at 363, 111 S. Ct. 2773.
The Second Circuit has held that "[t]he statute of limitations in federal securities law cases starts to run on the date that the parties have committed themselves to complete the purchase or sale transaction." Grondahl v. Merritt & Harris, Inc., 964 F.2d 1290, 1294 (2d Cir.1992) (emphasis omitted); see also In re Colonial Ltd. P'ship Litig., 854 F. Supp. 64, 85 (D.Conn.1994); Vassilatos v. Ceram Tech Int'l, Ltd., No. 92 Civ. 4574(PKL), 1993 WL 177780, at *2 (S.D.N.Y. May 19, 1993). Or, as the Seventh Circuit has put it, "In securities fraud cases, the federal rule is that the plaintiff's cause of action accrues on the date the sale of the instrument is completed." McCool v. Strata Oil Co., 972 F.2d 1452, 1460 (7th Cir.1992) (internal quotation marks and citation omitted).
Thus, any claim of fraud arising from a purchase of securities that occurred prior to February 2, 1996-three years before the complaint was filed-is time-barred. See Scott v. Steingold, No. 97C7871, 1999 WL 618109, at *4 (N.D.Ill. Aug. 9, 1999) (stating three-year period begins on date securities sold); Aizuss v. Commonwealth Equity Trust, 847 F. Supp. 1482, 1486 (E.D.Cal.1993) ("Of the multitude of purchases listed in the first amended complaint, only three ... are alleged to have occurred within three years of the filing of the original complaint...."). The date of Plaintiffs' investments is the latest possible date on which the three-year limitations period could have begun. See Isanaka v. Spectrum Techs. USA Inc., 131 F. Supp. 2d 353, 357 (N.D.N.Y.2001) ("[A] violation of section 10(b) and Rule 10b-5 can take place before and up to the time when the sale of securities took place, but not after the investment is made." (internal quotation marks and citation omitted)).
Most of the securities fraud allegations in the complaint occurred prior to 1996, as Baron ceased its activities in July of that year. (See Compl. ¶ 268.) The entire complaint centers on fraudulent activities from 1992 until July 1996, the period in which Baron operated as a securities broker-dealer. (Id. ¶ 1.) None of Defendants' allegedly fraudulent acts are claimed to have occurred after July 1996. Thus, the only securities fraud claims that can survive the three-year limitations period are those arising from purchases that took place between February 2, 1996 and Baron's bankruptcy in July.
Throughout the 102-page complaint, only three securities purchases occurred between February and July 1996. In February 1996, a Baron broker made an unauthorized purchase of over 120,000 Jockey Club shares in Plaintiff James Bailey's account. (Id. ¶ 240.) On or about April 30, 1996, a Baron broker caused two unauthorized purchase of PaperClip shares, one in Margaret Burgess's account, and the other in the Burgesses' joint account; the Burgesses refused to authorize payment for the transactions and losses were recorded in their accounts. (Id. ¶ 255.) All other transactions entered into by Plaintiffs occurred before February 2, 1996. Thus, all of the securities fraud claims arising from the other transactions are barred by the three-year limitations period unless, as Plaintiffs argue, the period was tolled.
Tolling the Statute of Limitations as to the Bear Stearns Defendants
Plaintiffs assert that the class action complaint in Berwecky v. Bear Stearns & Co., No. 97 Civ. 5318 (S.D.N.Y. *632 filed July 21, 1997), tolled the statute of limitations as to the claims against the Bear Stearns Defendants. Plaintiffs are members of the class in that case, which Judge Sprizzo certified. See Berwecky v. Bear Stearns & Co., 197 F.R.D. 65, 71 (S.D.N.Y.2000). Plaintiffs argue that, because they were putative class members, the statute of limitations as to their claims against the defendants in Berwecky was tolled, even though Plaintiffs opted out of the class.
In American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974), the Supreme Court held that putative class members could move to intervene in the suit after the district court had denied class certification under Federal Rule of Civil Procedure 23, even though the statute of limitations as to the intervening plaintiffs had run. See id. at 553-54, 94 S. Ct. 756. The Court held that the filing of the class action "suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." Id. at 554, 94 S. Ct. 756. The Supreme Court later held that the American Pipe rule also applies to putative class members who file separate suits instead of moving to intervene after a district court denies class certification. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350, 103 S. Ct. 2392, 76 L. Ed. 2d 628 (1983).
It must first be noted that there is some dispute over whether the three-year limitation period can ever be tolled. The Supreme Court held in Lampf, "Because the purpose of the 3-year limitation is clearly to serve as a cutoff ... tolling principles do not apply to that period." 501 U.S. at 363, 111 S. Ct. 2773. However, some lower courts have interpreted that statement only to apply to equitable tolling and not to principles of legal tolling. See, e.g., Joseph v. Wiles, 223 F.3d 1155, 1166-67 (10th Cir.2000); Official Comm. of Asbestos Claimants of G-I Holding, Inc. v. Heyman, 277 B.R. 20, 31-32 (S.D.N.Y.2002). The Court therefore will address the merits of Plaintiffs' tolling argument.
This case presents a different question from American Pipe and Crown, Cork. Those cases involved tolling of the limitations period to allow intervention or separate suits after class certification was denied. Plaintiffs commenced this suit before Judge Sprizzo made a determination on class certification. And Judge Sprizzo certified the class. These distinctions lead the Court to conclude that the rationale behind American Pipe and Crown, Cork does not apply here.
The Supreme Court crafted its rulings to uphold "the principal purposes of the class-action procedure-promotion of efficiency and economy of litigation." Crown, Cork, 462 U.S. at 349, 103 S. Ct. 2392. Federal Rule of Civil Procedure 23 was meant to encourage putative class members to allow the named plaintiffs to pursue their claims for them. See id. at 350-51, 103 S. Ct. 2392. Failing to toll the statute of limitations would force class members to intervene or take other action to protect their rights, and would disenable the efficient function of the class-action system. See id. at 350, 103 S. Ct. 2392. Thus, tolling the statute of limitations until after a determination on class certification is made means that putative class members are not forced to bring separate suits or seek to intervene in anticipation of certification being denied.
Tolling the statute of limitations for those individuals who file separate suits before class certification is determined does nothing to promote judicial efficiency. Instead, holding as Plaintiffs urge the Court to do would simply allow putative class members the benefits of the American Pipe doctrine free of the concomitant *633 burden; that is, Plaintiffs here could rely on the class action plaintiffs without having to put their faith in the class representatives to adjudicate their rights.
Other courts have reached the same conclusion. See, e.g., In re WorldCom, Inc. Secs. Litig., 294 F. Supp. 2d 431, 450-51 (S.D.N.Y.2003); In re Ciprofloxacin Hydrochloride Antitrust Litig., 261 F. Supp. 2d 188, 221 (E.D.N.Y.2003); Primavera Familienstifung v. Askin, 130 F. Supp. 2d 450 (S.D.N.Y.2001); Wahad v. City of New York, 1999 WL 608772, at *5-*6 (S.D.N.Y. Aug. 12, 1999); In re Brand Name Prescription Drugs Antitrust Litig., No. 94 Civ. 897, 1998 WL 474146, at *8 (N.D.Ill. Aug. 6, 1998); Wachovia Bank & Trust Co., N.A. v. Nat'l Student Mktg. Corp., 461 F. Supp. 999, 1012 (D.D.C.1978), aff'd, 650 F.2d 342, 346 n. 7 (D.C.Cir.1980).
These cases instruct that plaintiffs who file separate suits before class certification is determined cannot benefit from the class action's tolling of the statute of limitations. "Applying the tolling doctrine to separate actions filed prior to class certification would create the very inefficiency that American Pipe sought to prevent." Worldcom, at 450-51. In Worldcom, Judge Cote rejected the same argument that Plaintiffs assert here. In that case, as in this one, the plaintiffs maintained that the statute of limitations should be tolled for class members who filed separate suits before a decision was made on class certification. See id. at 451-52. In disagreeing with the plaintiffs, Judge Cote aptly noted, "Plaintiffs who choose, as is their right, to pursue separate litigation may not enjoy the benefits of that separate litigation without bearing its burdens. One of the burdens plaintiffs bear is the obligation to commence their actions within the applicable statute of limitations." Id.
Therefore, the statute of limitations as to the Bear Stearns Defendants was not tolled by the filing of the Berwecky class action. All of their securities fraud claims with the exception of the three trades noted above are barred by the three-year statute of limitations. Accordingly, the first three causes of action asserted by Plaintiffs Fezzani, Cirenaca Foundation, the Blanks, Jane Bailey, Baydel Ltd., Bootlesville Trust, and Cung against the Bear Stearns Defendants are dismissed as time-barred.
Tolling the Statute of Limitations as All Other Defendants
Plaintiffs also maintain that the statute of limitations as to the securities fraud claims against all other Defendants was tolled by the proceedings before the bankruptcy court. Pursuant to the Securities Investor Protection Act of 1970 ("SIPA"), 15 U.S.C. §§ 78aaa-78lll, a trustee was appointed to stand in the place of Baron as debtor in the bankruptcy proceedings. See 15 U.S.C. § 78fff-1. Plaintiffs state that the trustee filed complaints against all Defendants other than the Bear Stearns Defendants on behalf of all those eligible to recover under SIPA, including Plaintiffs. Plaintiffs argue that these actions are akin to class actions and therefore qualify to toll the statute of limitations under American Pipe and Crown, Cork.
This novel theory is completely barren of precedential support. In any event, even if the trustee's actions were analogous to a class action, the Court has already determined that the purposes of the American Pipe tolling doctrine are incompatible with Plaintiffs' actions here. Therefore, this tolling argument must also fail.
The only securities fraud claims not barred by the three-year limitation period are those arising from the three trades noted above. The Court now turns to the application of the one-year prong as to Bailey's and the Burgesses' claims.
*634 (b) One-Year Prong
The one-year prong of the statute of limitations runs from the date on which Plaintiffs discovered Defendants' fraud. "`[D]iscovery under the 1934 Act limitations provisions includes constructive or inquiry notice, as well as actual notice.'" Menowitz v. Brown, 991 F.2d 36, 41 (2d Cir.1993). A plaintiff is put on inquiry notice when the circumstances were "such as to suggest to a person of ordinary intelligence the probability that" the person was defrauded. Armstrong v. McAlpin, 699 F.2d 79, 88 (2d Cir.1983); see also In re In-Store Adver. Secs. Litig., 840 F. Supp. 285, 288-89 (S.D.N.Y.1993). "To trigger the underlying duty to inquire... defendant[s] must establish that plaintiff[s] acquired information that suggested the probability and not merely the possibility that fraud had occurred." Lenz v. Associated Inns & Rests. Co. of Am., 833 F. Supp. 362, 370 (S.D.N.Y.1993).
Once there is a duty to inquire, Plaintiffs' actions dictate the date they are held to have knowledge of the fraud. "The duty of inquiry results in the imputation of knowledge of a fraud in two different ways, depending on whether the investor undertakes some inquiry. If the investor makes no inquiry once the duty arises, knowledge will be imputed as of the date the duty arose." LC Capital Partners, LP v. Frontier Ins. Group, Inc., 318 F.3d 148, 154 (2d Cir.2003). If an inquiry is made, constructive knowledge of the fraud will be attributed to Plaintiffs at the time that they possessed "knowledge of facts which in the exercise of reasonable diligence should have led to actual knowledge." Robertson v. Seidman & Seidman, 609 F.2d 583, 587 (2d Cir.1979) (internal quotation marks and citations omitted).
Thus, if Plaintiffs possessed actual knowledge of the fraud more than one year before filing the complaint, their securities fraud claims are time-barred. If, more than one year prior to filing suit, Plaintiffs were put on inquiry notice and failed to exercise reasonable diligence, then the securities fraud claims would also be time-barred. Finally, if Plaintiffs acted with reasonable diligence, the Court must determine whether a reasonable investor would have discovered the fraud prior to February 2, 1998 (one year prior to when they filed the complaint).
Defendants argue that Plaintiffs were put on inquiry notice of the fraud as early as 1996 and 1997, when a series of government investigations were initiated as to Baron and its employees. Plaintiffs respond with three arguments: (1) Plaintiffs had no actual or constructive knowledge of Baron's fraud prior to February 2, 1998; (2) even if Plaintiffs had such knowledge, they had no reason to know or to inquire more than they did about Defendants participation in the fraud; and (3) the statute of limitations should be tolled by the filing of the class action and other suits against Defendants.
First, the Court finds that Plaintiffs were on inquiry notice about Baron's fraud more than one year prior to filing suit. The complaint details numerous examples of public information that would have alerted a reasonable person to Baron's fraud many years before this suit was commenced. The Court discusses the most prominent examples.
The SEC began an investigation of Baron's activities in 1993. (Compl.¶ 100.) In May 1994, a civil suit was filed against Baron seeking $2 million in damages for its fraudulent practices. (Id. ¶ 116.) A flood of private litigation apparently followed that suit, as well as a formal NASD investigation of Baron. (Id.) In July 1995, the NASD imposed sanctions on Baron for unauthorized trading, in what Plaintiffs describe as a "widely publicized settlement." (Id. ¶ 155.) In October 1995, Baron and some of its officers were again sued for *635 fraud. (Id. ¶ 212.) Baron and some of its officers filed for bankruptcy in July 1996. (Id. ¶ 268.) In May 1997, Baron and its former employees, including the Baron Defendants here (with the exception of Arthur Bressman), were indicted in New York Supreme Court in connection with their fraudulent activities. (Id. ¶ 270.)
The aforementioned facts were all in the public domain and thus Plaintiffs, including Bailey and the Burgesses, are charged with knowledge of them. See Dietrich v. Bauer, 76 F. Supp. 2d 312, 343 (S.D.N.Y.1999). As the Court in Dietrich explained:
The information that triggers inquiry notice of the probability of an alleged securities fraud is any financial, legal, or other data, including public disclosures in the media about the financial condition of the corporation and other lawsuits alleging fraud committed by the defendants, available to the plaintiff providing him with sufficient storm warnings to alert a reasonable person to the [probability] that there were either misleading statements or significant omissions involved in the sale of the [securities].
Id. (internal quotation marks and citation omitted). The various civil lawsuits, regulatory investigations, and criminal indictments were, to say the least, sufficient storm warnings to put Plaintiffs on inquiry notice at least in May 1997. Thus, Plaintiffs were on inquiry notice more than one year prior to filing the complaint as to all Defendants that they allege participated in Baron's fraud. See In re Merrill Lynch Ltd. P'ships Litig., 7 F. Supp. 2d 256, 266 (S.D.N.Y.1997) ("A plaintiff need not be aware of all aspects of the alleged fraud to be on inquiry notice; rather a plaintiff is on inquiry notice `at the time at which the plaintiff should have discovered the general fraudulent scheme.'" (quoting In re Integrated Resources, Inc. Real Estate Ltd. P'ships Sec. Litig., 851 F. Supp. 556, 568 (S.D.N.Y.1994))).
Plaintiffs are correct, however, that the issue before the Court is whether they knew or should have known of Defendants' fraud prior to February 1998.[4]See Klein v. Goetzmann, 810 F. Supp. 417, 425 (N.D.N.Y.1993) (stating issue was whether plaintiffs should have discovered individual defendant's participation in general fraudulent scheme of which plaintiffs had inquiry notice). The Court cannot conclude on the information in the complaint that Plaintiffs could have stated a cause of action for securities fraud against any defendant before February 1998.
Bear Stearns Defendants[5]
As the Second Circuit has noted with regard to a similar case also involving *636 Bear Stearns as a clearing broker, "[T]his is not a typical storm warnings case...." Levitt v. Bear Stearns & Co., 340 F.3d 94, 103 (2d Cir.2003). In Levitt, the Second Circuit reversed Judge Spatt's exhaustive opinion in which he had determined that the plaintiffs had constructive knowledge of Bear Stearns' fraud more than one year prior to filing suit. See id. at 104. An earlier suit had been filed against Bear Stearns alleging participation in the same fraudulent scheme involved in the suit before Judge Spatt. Id. at 103. The Levitt court held that there were some allegations against Bear Stearns in the suit pending before Judge Spatt that had not been made in the prior case. Id. The district court erred in not examining whether any of the additional factual allegations would have been necessary for Plaintiffs to have known in order to state a claim against Bear Stearns more than one year before the complaint was filed. See id. Additionally, the court held that the knowledge derived or imputed from the prior suit against Bear Stearns must have been sufficient to state a claim against Bear Stearns as a primary wrongdoer, that is, one directly liable under the federal securities laws, and not merely as an aider and abettor. Id.
The Bear Stearns Defendants maintain that the complaint establishes Plaintiffs' actual or constructive knowledge of their alleged participation in the fraud, at the latest, by July 1997 when the Berwecky class action was filed. It would have taken no Herculean effort to identify Bear Stearns' integral relation to Baron's operations from public information available before 1997, and, after the class action was filed, to identify a potential claim against the Bear Stearns Defendants for securities fraud. However, the Second Circuit's decision in Levitt suggests that such identification is not enough.
First, this Court would need to determine that the allegations raised against Bear Stearns in the Berwecky suit were sufficient to state a cause of action against the Bear Stearns Defendants for direct violations of the securities laws. The Second Circuit's opinion would also require this Court to determine whether the facts alleged in Berwecky were sufficient fodder for Plaintiffs here to allege securities fraud claims then with sufficient particularity to meet the pleading requirements of Rule 9(b) and the PSLRA. See id. at 103-04. In sum, the Court would need to decide whether the complaint in Berwecky should survive a motion to dismiss for failure to state a claim and failure to plead with particularity.
Thus, the Levitt case erects high barriers to dismissal of a suit under the one-year limitations period against secondary wrongdoers. The facts stated in the complaint, together with the documents referenced therein, provide no basis for making these determinations. Therefore, the Bear Stearns Defendants' motion to dismiss under the one-year prong must be denied as to James Bailey's and the Burgesses' securities fraud claims.
All Other Defendants
If a prior suit involving the fraud allegations stemming from the same acts by the same defendant is not enough to constitute discovery under the statute of limitations, then neither are the other allegations in the complaint. While the Court finds that *637 Plaintiffs certainly had a duty to inquire as to the overall scheme at the latest in 1997 when the Baron Defendants were indicted, the Court cannot factual determine at this stage whether a reasonable investor would have discovered the other Defendants' fraud any earlier than February 2, 1998. The Court therefore holds that Bailey's and the Burgesses first three causes of action against Defendants are not barred by the one-year limitations period.
The Court concludes that all Plaintiffs' securities fraud claims are time-barred under the three-year limitations period except for those brought by the Burgesses and James Bailey. Thus, the first three causes of action brought by Plaintiffs Fezzani, Cirenaca Foundation, the Blanks, Jane Bailey, Baydel Ltd., the Bootlesville Trust, and Cung are dismissed. The Court shall refer to Bailey and the Burgesses hereinafter as "Remaining Plaintiffs."
2. Failure to State a Claim / Particularity of Allegations Regarding Remaining Plaintiffs Transactions
Defendants also move to dismiss all three securities fraud claims on the grounds that Remaining Plaintiffs have failed to meet the heightened pleading requirements under Federal Rule of Civil Procedure 9(b) and the PSLRA, and have failed to state a claim under Rule 12(b)(6).
"To state a cause of action under section 10(b) and Rule 10b-5, a plaintiff must plead that the defendant made a false statement or omitted a material fact, with scienter, and that plaintiff's reliance on defendant's action caused plaintiff injury." San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 808 (2d Cir.1996). Section 10(b) and Rule 10b-5 also prohibit market manipulation. To state a claim on this theory, "Plaintiffs must plead with particularity the manipulative scheme itself, the intent to defraud the investing public, reliance on the integrity of the market (i.e., that they believed it was not manipulated) and resulting damages." In re Initial Public Offering Secs. Litig., 241 F. Supp. 2d 281, 296 (S.D.N.Y.2003).
On a market manipulation theory under section 9 a complain must allege: "(1) a series of transactions in a security creating actual or apparent trading in that security or raising or depressing the price of that security, (2) carried out with scienter, (3) for the purpose of inducing the security's sale or purchase by others, (4) was relied on by the plaintiff, (5) and affected plaintiff's purchase or selling price." Connolly v. Havens, 763 F. Supp. 6, 11 (S.D.N.Y.1991) (internal quotation marks and citation omitted).
Scienter, the requisite state of mind, is defined as "an intent to deceive, manipulate or defraud." Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n. 12, 96 S. Ct. 1375, 47 L. Ed. 2d 668 (1976). The PSLRA states with regard to scienter:
In any private action arising under this chapter in which the plaintiff may recover money damages only on proof that the defendant acted with a particular state of mind, the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.
15 U.S.C. § 78u-4(b)(2). Thus, "[P]laintiffs must allege facts that give rise to a strong inference of fraudulent intent." Acito v. IMCERA Group, Inc., 47 F.3d 47, 52 (2d Cir.1995). This standard can be satisfied by either demonstrating motive and opportunity to commit fraud or strong circumstantial evidence of conscious misbehavior or recklessness. Id. Defendants argue that Plaintiffs have failed to satisfy the standard on both their misrepresentation/omission *638 and market manipulation claims.
Remaining Plaintiffs' allegations must satisfy the standard as to each defendant. See In re Blech Secs. Litig., 961 F. Supp. 569, 580 (S.D.N.Y.1997) ("Blech II"). However, the only relevant allegations relate to PaperClip and Jockey Club securities because these are the only securities that Remaining Plaintiffs purchased.
As an initial matter, the Court rejects the argument that Remaining Plaintiffs lack standing under section 10(b) and Rule 10b-5 because all their purchases were unauthorized. The Second Circuit has held that "claims under Rule 10b-5 arise when brokers purchase or sell securities on their clients' behalf without specific authorization." Caiola v. Citibank, N.A., NY, 295 F.3d 312, 323 (2d Cir.2002). In Caiola, the court determined that the plaintiff had sufficiently pled the purchase or sale of securities when he alleged that Citibank had made purchases on his behalf; it was irrelevant that he did not authorize those purchases. Id. at 324.
This result is also dictated by the Supreme Court's decision in SEC v. Zandford, 535 U.S. 813, 122 S. Ct. 1899, 153 L. Ed. 2d 1 (2002). In Zandford, the Court construed the phrase "in connection with the purchase or sale of any security" to encompass a broker's unauthorized sales of customer securities for the broker's own benefit. See id. at 820-21, 122 S. Ct. 1899. Because the fraud coincided with the sale of securities, it fell within section 10(b)'s flexible ambit. See id. at 822-23, 122 S. Ct. 1899; see also In re Enron Corp. Securities, Derivative, & ERISA Litig., 235 F. Supp. 2d 549, 577-78 (S.D.Tex.2002). Therefore, Remaining Plaintiffs' claims do not fail merely because Baron made the stock purchases without their permission.
a. Bear Stearns Defendants[6]
Allegations of Misrepresentations/Omissions
The Bear Stearns Defendants attack the securities fraud claims based on misrepresentations and omissions on the following grounds: (1) all misrepresentations and omissions were made by Baron and its employees, not by the Bear Stearns Defendants; (2) the complaint fails to allege that Plaintiffs relied on any of the Bear Stearns Defendants' statements or omissions; and (3) there are no allegations that their statements or omissions caused the economic loss claimed. In addition, Harriton argues, with regard to the PaperClip allegations, that Plaintiffs fail to claim he took any direct action or affirmative act on which they relied.
The complaint alleges that the Bear Stearns Defendants were "on notice of" the unauthorized trading in Bailey's account because, as clearing broker, Bear Stearns generated customer confirmations of trades and made a daily tally of commissions. (Compl.¶ 241.) In addition, the Bear Stearns Defendants were "likely aware of Jockey Club's reputation in the community," and "noticed that" Baron was not charging commissions for selling shares of Jockey Club when it normally *639 charged excessive commissions. (Id. ¶ 241-42.) With regard to PaperClip, the Bear Stearns Defendants allegedly were informed of the "bait-and-switch" scheme and overselling during the initial public offering. (Id. ¶¶ 196-200.) Harriton was informed that Baron would use the fraudulently obtained funds to clear up its trade-date debit, something that would benefit the Bear Stearns Defendants.
Plaintiffs argue that Bear Stearns made material misrepresentations when it sent the confirmation notices underreporting commissions earned by Baron, and that the notices were an intentional misrepresentation that the price paid for the security was reasonably related to that in an open market. In addition, Bear Stearns sent monthly account statements stating the market value of stocks in each customer's portfolio; market values which the Bear Stearns Defendants allegedly knew were false. Finally, Bear Stearns allegedly sent a welcome letter to Plaintiffs, presumably also to Remaining Plaintiffs, designed to inspire Plaintiffs to feel confident about investing in Baron, something the Bear Stearns Defendants knew was not warranted.
Along with these misrepresentations, Plaintiffs submit that the complaint adequately alleges the Bear Stearns Defendants' omissions because they knew of, but failed to disclose Baron's manipulative schemes, the high commissions that Baron was receiving, Baron's nearly continuous insolvency, and that the price of the securities would collapse if Baron went out of business.
The misrepresentations alleged do not state a claim against the Bear Stearns Defendants with regard to Remaining Plaintiffs' purchases of Jockey Club and PaperClip securities. First, the confirmation notices and market accounts misrepresenting the value of the securities are irrelevant because they occurred after-the-fact. The gravamen of a securities fraud claim based on misrepresentations or omissions is that the plaintiff made a securities transaction that he or she would not have made had the defendant spoke or refrained from speaking. See Kalnit v. Eichler, 85 F. Supp. 2d 232, 240 (S.D.N.Y.1999). Remaining Plaintiffs cannot claim that the confirmation notices or monthly statements caused their injuries because their injuries had already occurred, that is, the stock purchases had already been made. The fraud was complete once the purchases were made. See Alfadda v. Fenn, 935 F.2d 475, 478-79 (2d Cir.1991) (holding securities fraud complete upon purchase of securities); Flickinger v. Harold C. Brown & Co., 947 F.2d 595, 598 (2d Cir.1991) (holding no claim for securities fraud when purchase of securities completed before alleged fraud occurred); Dietrich, 76 F.Supp.2d at 341 ("[A]n alleged fraud cannot be in connection with the purchase or sale of a security if the transaction occurs prior to the fraud."); Samuel M. Feinberg Testamentary Trust v. Carter, 652 F. Supp. 1066, 1080 (S.D.N.Y.1987) ("Where the only manipulative or deceptive acts identified in a complaint occur after a challenged securities purchase or sale, a court must dismiss the complaint as failing to state a cause of action for federal securities fraud.").
Here, there are no allegations of additional purchases by or on behalf of Remaining Plaintiffs after they received a confirmation notice or a monthly account statement. Thus, Remaining Plaintiffs can seek no solace in their allegations regarding the confirmation notices and account statements.
Second, Remaining Plaintiffs cannot predicate liability on the "welcome letter." Plaintiffs argue that the welcome letter was a material misrepresentation because the Bear Stearns Defendants knew *640 that Baron was not worthy of the confidence and sense of security that the letter was meant to inspire. The welcome letter cannot be a misrepresentation on the part of the Bear Stearns Defendants because it was issued by Baron. (See compl. ¶ 156.) The complaint merely alleges that Bear Stearns approved the letter, not that it wrote or distributed it. (Id.) The Bear Stearns Defendants cannot be held liable for misrepresentations that they did not make. See Dinsmore v. Squardron, Ellenoff, Plesent, Sheinfeld, & Sorkin, 135 F.3d 837, 842-43 (2d Cir.1998); Scone Invs. L.P. v. Am. Third Mkt. Corp., No. 97 Civ. 3802, 1998 WL 205338, at *6-7 (S.D.N.Y. April 28, 1998). This result is dictated by the fact that section 10(b) and Rule 10b-5 do not provide a cause of action for aiding and abetting securities fraud. Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 191, 114 S. Ct. 1439, 128 L. Ed. 2d 119 (1994).
Plaintiffs suggest that the Second Circuit's decision in SEC v. U.S. Environmental, Inc., 155 F.3d 107 (2d Cir.1998), supports their claims regarding the Bear Stearns' Defendants misrepresentations. That case, however, dealt with the liability of a brokerage firm employee for participation in a market manipulation scheme. See id. at 112. It lends little aid to Plaintiffs' allegation in the misrepresentation/omission context. In any event, the court in U.S. Environmental held that the defendant employee could be held liable as a primary violator of section 10(b) when he executed trades, at the direction of a stock promoter, that he knew or should have known were manipulative. See id. at 110. Thus, it was no great stretch to hold the defendant accountable as a primary violator. Here, Baron sent the welcome letter, not the Bear Stearns Defendants. And, while Bear Stearns sent the confirmation notices and account statements, they were sent after the harm occurred. Therefore, Remaining Plaintiffs have not stated a claim against the Bear Stearns Defendants based on material misrepresentations.
Similarly, the alleged omissions are insufficient to state a claim under section 10(b) and Rule 10b-5. A duty to disclose "arises when one party has information that the other [party] is entitled to know because of a fiduciary or other similar relation of trust and confidence between them." Grandon v. Merrill, Lynch & Co., 147 F.3d 184, 189 (2d Cir.1998) (internal quotation marks omitted) (quoting Chiarella v. United States, 445 U.S. 222, 228, 100 S. Ct. 1108, 63 L. Ed. 2d 348 (1980)). It has been consistently held that clearing brokers owe no duty of disclosure to customers of introducing brokers such as Baron. See Connolly, 763 F.Supp. at 10; Dillon v. Militano, 731 F. Supp. 634, 634 (S.D.N.Y.1990); In re Blech Secs. Litig., 928 F. Supp. 1279, 1295-96 (S.D.N.Y.1996) ("Blech I").
Plaintiffs argue that the cases cited above to not change the rule that "once one undertakes to speak, that disclosure may not be misleading." (Plfs.' Mem. at 26.) This proposition of law says nothing about the Bear Stearns Defendants' omissions, but relates to their purported misrepresentations; a claim, the Court has already held, that cannot be sustained.
The Court holds that the complaint fails to state a claim against the Bear Stearns Defendants for securities fraud based on misrepresentations and omissions. Therefore, Remaining Plaintiffs' first cause of action against the Bear Stearns Defendants is dismissed.
Allegations of Market Manipulation
Defendants, including the Bear Stearns Defendants, argue that Plaintiffs' claim under section 9 of the Securities Exchange Act must fail because the complaint does not allege that the manipulated *641 securities were registered on a national securities exchange.
Section 9 prohibits certain acts of manipulation with regard to securities traded on a national securities exchange. See 15 U.S.C. § 78i(a). Here, the complaint alleges that the manipulated securities were traded through the National Association of Securities Dealers Automated Quotations System ("NASDAQ"). (Compl.¶ 293.) This is the only allegation regarding the markets on which the manipulated securities were traded. NASDAQ has been held not to be a national securities exchange within the meaning of section 9. See Connolly, 763 F.Supp. at 12 n. 4; Martin v. Prudential-Bache Secs., Inc., 820 F. Supp. 980, 983-84 (W.D.N.C.1991); Cowen & Co. v. Merriam, 745 F. Supp. 925, 930-31 (S.D.N.Y.1990); Cammer v. Bloom, 711 F. Supp. 1264, 1277 n. 18 (D.N.J.1989); Gavron v. Blinder Robinson & Co., 115 F.R.D. 318, 320 n. 3 (E.D.Pa.1987).
Plaintiffs contest this conclusion, but cite no case holding that NASDAQ qualifies as a national securities exchange; the Court has located no such precedent. Plaintiffs argue that NASDAQ has dramatically changed since these cases were decided and is now the most important national securities exchange as the volume of trading surpasses that on the New York Stock Exchange. However, NASDAQ's volume of trading and national importance say nothing about the way in which securities are traded there. See Bd. of Trade v. SEC, 923 F.2d 1270, 1275 (7th Cir.1991) ("[W]e can be certain that volume plays no role in the determination of whether a market constitutes an exchange....") (Flaum, J., dissenting).
Given the unanimous authority on this issue and Plaintiffs' failure to articulate any justification for departing from that authority, the Court holds that NASDAQ is not a national securities exchange, and thus Remaining Plaintiffs have failed to state a claim under section 9 of the Securities Exchange Act. The second cause of action is dismissed as to all Defendants. Market manipulation claims under section 10(b) and Rule 10b-5, however, do not require allegations of trading on a national securities exchange.
The Bear Stearns Defendants maintain that the third cause of action should also be dismissed against them because: (1) clearing brokers cannot be held liable for the actions alleged in the complaint; (2) the allegations of manipulation in PaperClip stock only relate to the initial public offering and the Burgesses have not alleged that the purchases occurred during the initial offering; (3) the complaint fails to adequately allege which manipulative acts were taken by which defendant, improperly lumping defendants together.
"Market manipulation comprises a class of conduct prohibited by Section 10(b), which typically involves `practices such as wash sales, matched orders, or rigged prices, that are intended to mislead investors by artificially affecting the market activity.'" In re Blech Secs. Litig., No. 94 Civ. 7696, 2002 WL 31356498 (S.D.N.Y. Oct. 17, 2002) ("Blech III"). "A plaintiff asserting a market manipulation claim must allege direct participation in a scheme to manipulate the market for securities." Blech II, 961 F.Supp. at 580. As has been stated above, no claim can lie against the Bear Stearns Defendants for aiding and abetting Baron's market manipulation in the PaperClip and Jockey Club securities. See Central Bank of Denver, 511 U.S. at 191, 114 S. Ct. 1439. However, similar claims of market manipulation against Bear Stearns have withstood motions to dismiss in some circumstances. See Blech III, 2002 WL 31356498, at *4
In Blech III, Judge Sweet confronted similar claims as the Court does here. *642 Judge Sweet distinguished between allegations of primary and secondary liability:
When Plaintiffs allege mere clearing conduct against Bear Stearns, such allegations amount to no more than a non-existent claim of aiding and abetting because, at most, they allege only that Bear Stearns knowingly and substantially assisted... [in the fraud] by clearing the fraudulent trades.... However, the Complaint crosses the line dividing secondary liability from primary liability when it claims that Bear Stearns `directed' or `contrived' certain allegedly fraudulent trades. Under these circumstances, the Complaint adequately alleges that Bear Stearns engaged in conduct, with scienter, in an attempt to affect the price of ... securities.
Id. Here, the allegations against the Bear Stearns Defendants, and certainly against Harriton, do not cross the threshold laid out in Blech III. The complaint alleges that the Bear Stearns Defendants were "on notice" of Baron's unauthorized trading in Jockey Club, were "closely monitoring" the transactions, and were "likely to have been aware of Jockey Club's reputation in the community." (Compl.¶¶ 241, 242.)
Similarly, with regard to Baron's dealings in PaperClip, the Bear Stearns Defendants had knowledge of Baron's fraud through conversations between Harriton and Andrew Bressman. (Id. ¶¶ 197-99.) Harriton allegedly "agreed that Bear Stearns would go along with the plan." (Id. ¶ 199.) In contrast, the plaintiffs in Blech III alleged that Bear Stearns "contrived and agreed to fund" the fraudulent sale of certain securities. 2002 WL 31356498, at * 4. Knowledge of Baron's fraud and clearing fraudulent transactions are insufficient to make the Bear Stearns Defendants primary violators on the basis of market manipulation. See id.
All the complaint alleges, with regard to the market manipulation of PaperClip and Jockey Club, is that the Bear Stearns Defendants knew of Baron's fraud and cleared the transactions that were fraudulently made. In a regime under which aiding and abetting liability existed, Remaining Plaintiff's market manipulation claims against the Bear Stearns Defendants might survive. They have not, however, stated a claim for primary violations. Remaining Plaintiff's third cause of action against the Bear Stearns Defendants accordingly is dismissed.
b. Broker Defendants
There are no allegations in the complaint that the Broker Defendants committed any fraudulent acts specifically with regard to Jockey Club and PaperClip securities. The complaint merely states that the Broker Defendants conspired with Baron "to create an artificial appearance of trading activity through repeatedly `parking' of Baron securities in customer and proprietary trading accounts at each firm." (Compl.¶ 123.) Such pleading is entirely insufficient.
It may be true that market manipulation claims are not held to as high a pleading standard as other fraud claims because the "facts relating to a manipulation scheme are often known only by the defendants." Baxter v. A.R. Baron & Co., No. 94 Civ. 3913, 1996 WL 586338, at *8 (S.D.N.Y. Oct. 11, 1996). However, a complaint still must state "what manipulative acts were performed, which defendants performed them, when the manipulative acts were performed, and what effect the scheme had on the market for the securities at issue." Baxter v. A.R. Baron & Co., No. 94 Civ. 3913, 1995 WL 600720, at *6 (S.D.N.Y. Oct. 12, 1995). The general statements noted above do not specify which Defendants were involved, which securities were manipulated in what way, *643 how such manipulation affected the market for the specific security, and in what way Remaining Plaintiffs were harmed by the manipulation. Accordingly, the third cause of action is dismissed as to the Broker Defendants for failure to plead with particularity. The first cause of action is dismissed for failure to state a claim.
c. Individual Defendants
The extent of the allegations against the Individual Defendants are that some of them traded in PaperClip securities. None are mentioned in connection with the Jockey Club scheme. Therefore, only the Burgesses may have a sustainable claim against the Individual Defendants because James Bailey's account experienced no transactions in PaperClip stocks. Beatrice, Isaac, Jack, Morris, Nathan, and Ralph Dweck received shares in the initial public offering of PaperClip. (Compl.¶ 259.) Basil Shiblaq received 80,000 shares in the PaperClip initial offering, more than the number for which he subscribed. (Id. ¶ 202.) Individual Defendants are also alleged to have profited from sales of PaperClip. (Id. ¶ 262.) Thus, the securities fraud claims against these defendants rest on a few allegations that they purchased or sold, and profited from, PaperClip securities.
No misrepresentations or even omissions have been alleged on the part of the Individual Defendants. The securities fraud claims against the Individual Defendants focus on market manipulation. However, the complaint is also insufficient to state a claim for market manipulation against them.
As with many other areas of the complaint, Plaintiffs' claims against the Individual Defendants for market manipulation suffer from the defect of group pleading. The only specific allegations as to the Individual Defendants are not adequately specific to establish a claim for market manipulation. Allegations that some Individual Defendants owned PaperClip securities and benefited from the market manipulation performed by Baron is not enough. See Baron, 1995 WL 600720, at *7. Furthermore, the complaint contains no specifications as to how the Individual Defendants' actions affected Remaining Plaintiffs' transactions (which were all unauthorized).
Finally, there are no allegations as to how each Individual Defendant acted with scienter. Indeed, in the few instances when the complaint mentions an Individual Defendant by name in connection with manipulated securities, there are no allegations of any intent to deceive. The Burgesses' third cause of action is dismissed as to the Individual Defendants for failure to plead with sufficient particularity. Their first cause of action is dismissed for failure to state a claim, as are both James Bailey's first and third causes of action against the Individual Defendants.
d. Apollo Defendants
The complaint does not allege that the Apollo Defendants made any statements or had a fiduciary duty to speak. Neither does it allege that Remaining Plaintiffs relied on anything said or not said by the Apollo Defendants. Plaintiffs argue that the Apollo Defendants can be held liable for misrepresentations or omissions regarding Jockey Club securities because they masterminded and directly participated in the fraudulent conduct. As Plaintiffs themselves recognize, however, there is difference between violations based on misrepresentations or omissions and those based on market manipulation. See Rule 10b-5, 17 C.F.R. § 240.10b-5(a), (b) (distinguishing between violations through any "device, scheme, or artifice to defraud," and material misrepresentations or omissions).
*644 Plaintiffs rely on the general principle stated in SEC v. First Jersey Securities., Inc., 101 F.3d 1450 (2d Cir.1996), that "[p]rimary liability may be imposed not only on persons who made fraudulent misrepresentations but also on those who had knowledge of the fraud and assisted in its perpetration." Id. at 1471 (internal quotation marks omitted). The court in First Jersey Securities held that the sole owner of a broker-dealer could be held liable as a primary violator of section 10(b) and Rule 10b-5 when the broker-dealer engaged in widespread fraud against its customers. See id. The court determined that the individual owner was properly liable because he helped plan the pattern of trading that violated the securities laws. See id. at 1472. First Jersey Securities, therefore, stands for the proposition that one intricately involved in the planning and execution of a fraudulent scheme can be held accountable as a primary violated of section 10(b) and Rule 10b-5. There is little in the Second Circuit's discussion to support the contention that the Apollo Defendants could be held liable for Baron's misrepresentations or omissions.
Plaintiffs also cite Breard v. Sachnoff & Weaver, Ltd., 941 F.2d 142, 144 (2d Cir.1991), and In re Union Carbide Corp. Consumer Products Business Securities Litigation, 676 F. Supp. 458, 468-69 (S.D.N.Y.1987). The court in Breard held that the law firm that wrote an offering memorandum replete with material misrepresentations could be held liable by individuals who relied on the memorandum in purchasing shares in the company. See 941 F.2d at 143-44. Similarly, in Union Carbide, the court concluded that an investment firm could be held liable as a primary violator for fraudulent sales projections that it prepared but that were officially disseminated by its corporate client. See 676 F.Supp. at 467-69. Both Breard and Union Carbide involved defendants who prepared the fraudulent statements that were then disseminated to the public by another entity. Here, not only did the Apollo Defendants not prepare any fraudulent statements, the complaint does not identify any fraudulent statements at all in connection with Jockey Club securities.
However, James Bailey has established a claim against the Apollo Defendants on the basis of market manipulation. In contrast to the other Defendants, there are sufficient allegations against the Apollo Defendants relating to their role in the Jockey Club scheme. It was the Apollo Defendants who approached Baron about causing shares to be sold to Baron customer accounts. (Compl.¶ 233.) The Apollo Defendants also proposed to split the proceeds of the fraudulent transactions with Baron brokers. (Id.) The complaint then details how the Apollo Defendants and Baron carried out the plan. (Id. ¶¶ 234-36.) As part of the scheme, Bailey received unwanted securities that caused him to lose funds from his account. Thus, there are sufficient allegations regarding the scheme to defraud and the harm suffered. See In re Initial Public Offering Secs. Litig., 241 F.Supp.2d at 296. There are no allegations, however, regarding the Apollo Defendants' manipulation of PaperClip securities, the only securities allegedly received by the Burgesses. Thus, the Burgesses have not stated a claim for market manipulation against the Apollo Defendants.
The complaint also adequately pleads scienter as to the Apollo Defendants. The facts alleged give rise to a strong inference that the purpose of the Apollo Defendants' plan was to defraud the public. This intent is inferred from their bribe of Baron to sell stock that was without value, and their proposition that they and Baron split the proceeds of the sales. The complaint sufficiently alleges conscious *645 misbehavior and motive/opportunity to commit fraud.
The Court therefore concludes that Bailey's third cause of action against the Apollo Defendants survives a motion to dismiss. Remaining Plaintiffs' first cause of action and the Burgesses' third cause of action are dismissed for failure to state a claim.
C. Claims Based On Control Person Liability
The complaint alleges that the Bear Stearns Defendants, Kenneth Stokes, the Dwecks, and the Wolfsons and the entities associated with them, see supra note 2, were control persons of Baron who are therefore responsible for Baron's wrongdoing.[7] (Compl.¶ 35.)
Section 20(a) of the Securities Exchange Act provides:
Every person who, directly or indirectly, controls any person liable under any provision of this chapter or any rule or regulation thereunder shall also be liable jointly and severally with and to the extent as such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action.
15 U.S.C. § 78t(a). To state a claim for control person liability, the complaint must allege: (1) a primary violation by Baron, and (2) control of Baron by each defendant. First Jersey Secs., Inc., 101 F.3d at 1472 (citations omitted). There is some dispute over whether a third requirement is that the defendant acted culpably in the fraud. See Neubauer v. Eva-Health USA, Inc., 158 F.R.D. 281, 284 (S.D.N.Y.1994) (collecting cases on both sides of the dispute). The one and three-year statute of limitations also apply to claims under section 20. See Dodds v. Cigna Secs., Inc., 12 F.3d 346, 349 (2d Cir.1993) (applying statute of limitations in section 9(e) to claims under section 20). Thus, any claims based on primary violations by Baron that occurred before February 2, 1996 are time-barred.
There is no argument that the complaint fails to allege primary violations by Baron; instead, the defendants who are named in this count maintain that the complaint fails to allege control and culpable conduct.[8]
"[C]ontrol over a primary violator may be established by showing that the defendant possessed `the power to direct or cause the direction or the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.'" Id. at 1472-73 (quoting 17 C.F.R. § 240.12b-2). Allegations of influence are not the same as the power to direct the management and policies of the primary violator. See Blech II, 961 F.Supp. at 587. "Actual control is essential to control person liability." Id. at 586. However, the Rule 9(b) heightened pleading standard does not apply to averments of control person liability. See Duncan v. Pencer, No. 94 Civ. 0321(LAP), *646 1996 WL 19043, at *18 (S.D.N.Y. Jan. 18, 1996).
Here, the complaint provides sparse facts regarding Defendants' control over Baron, a defect Plaintiffs recognize in their Memorandum of Law. Plaintiffs argue that the Wolfsons, the Dwecks, and Kenneth Stokes "played a significant role in the relationship between Baron and other ... Defendants." (Plfs.' Mem. at 50.) The Wolfsons were "important as parking participants, a key link to Bear Stearns, and recipients of enormous payments." (Id.) "Stokes was also a participant in parking...." (Id.) Participation, even significant participation, in Baron's scheme to defraud is not equivalent to directing Baron to engage in that scheme. The complaint therefore fails to state a cause of action under section 20(a) as to the Wolfsons and the entities associated with them, the Dwecks, and Stokes.[9]
Plaintiffs contend that the Bear Stearns Defendants actually controlled Baron because, at certain times, they took over Baron's offices and executed transactions, as well as approved or disapproved of all of Baron's trading orders after November 1995. According to the complaint, towards the end of 1995, Bear Stearns assumed control of all trading activities at Baron and sent its employees to Baron's offices to enforce that control. (Compl.¶ 208.) However, as noted above, the statute of limitations bars this claim and no tolling doctrine applies. Therefore, the claims against the Bear Stearns Defendants are time-barred.[10]
D. Aiding and Abetting Breach of Fiduciary Duty
Plaintiffs also seek to hold all Defendants liable for aiding and abetting Baron's breach of its fiduciary duties to Plaintiffs. Defendants move to dismiss this claim on a variety of grounds. The majority of the claim is time-barred because New York imposes a three year statute of limitations on suits for breach of fiduciary duties. See N.Y. C.P.L.R. 214(4) (setting three-year limitations period for damages to property); see also Ackerman v. Nat'l Prop. Analysts, Inc., 887 F. Supp. 494, 507 (S.D.N.Y.1992) (dismissing aiding and abetting breach of fiduciary duties claims because time-barred); Loengard v. Santa Fe Indus., Inc., 573 F. Supp. 1355, 1359 (S.D.N.Y.1983) (same). Any aiding and abetting claims that arose from Baron's actions before February 2, 1996 are accordingly barred by the statute of limitations.
For those claims that are not time-barred, Plaintiffs must allege (1) Baron's breach of its fiduciary duties, (2) knowledge of that breach by each defendant, (3) substantial assistance by the defendants in the breach, and (4) a nexus between Plaintiffs' injuries and Defendants' conduct. See Ackerman, 887 F.Supp. at 508. Only the Burgesses and James Bailey are alleged to have sustained losses. The complaint adequately alleges that Baron violated its fiduciary duties to Remaining Plaintiffs through its unauthorized transactions in their accounts. See De Kwiatkowski v. Bear, Stearns & Co., 306 F.3d 1293, 1306 (2d Cir.2002). However, the *647 complaint does not state in connection with any of the unauthorized transactions that any defendant participated in the breach of fiduciary duties. The one exception is the allegations with regard to the Apollo Defendants. The complaint alleges that the Apollo Defendants proposed that Baron place Jockey Club securities in their customers' accounts with authorization, and that, in February 1996, Baron brokers made an unauthorized purchase for James Bailey's account. (Compl.¶¶ 234-40.) Therefore, all aiding and abetting claims are dismissed except for James Bailey's claim against the Apollo Defendants.
E. Common-Law Fraud
Finally, Defendants move to dismiss the sixth cause of action for common-law fraud. To avoid a motion to dismiss, Plaintiffs must plead "a material false representation, an intent to defraud thereby, and reasonable reliance on the representation causing damage...." S.Q.K.F.C., Inc. v. Bell Atlantic Tricon Leasing Corp., 84 F.3d 629, 633 (2d Cir.1996) (internal quotation marks and citations omitted). In response to Defendants' arguments that the complaint fails to identify which defendants made what statements on what dates, Plaintiffs argue that each defendant can be held liable for the misrepresentations of their codefendants because they were involved in a conspiracy, and that no misrepresentations need be pled because fraud through market manipulation is actionable under New York law. The Court rejects both these arguments.
Plaintiffs rely on First Federal Savings & Loan Association of Pittsburgh v. Oppenheim, Appel, Dixon & Co., 629 F. Supp. 427, 443 (S.D.N.Y.1986), for the proposition that Defendants are liable for Baron's fraudulent acts because Defendants were coconspirators with Baron. The plaintiffs in First Federal, however, had sued the defendants for civil conspiracy to defraud. See id. Here, the cause of action was for common-law fraud and made no mention of civil conspiracy. Considering a separate cause of action now would effectively allow Plaintiffs to amend their complaint through a memorandum of law on a motion to dismiss. This the Court cannot permit. See Goel v. U.S. Dep't of Justice, No. 03 Civ. 0579(HB), 2003 WL 22047877, at *1 n. 4 (S.D.N.Y. Aug. 29, 2003) ("Allegations in a memorandum of law ... cannot serve as a means to amend ... [a] complaint and therefore this additional allegation will not be treated as part of... [the] complaint.").
Additionally, Plaintiffs maintain that there is a cause of action under New York law for fraud based on market manipulation. There is case law in this district to support their contention. See Blech II, 961 F.Supp. at 587; Minpeco, S.A. v. ContiCommodity Servs., Inc., 552 F. Supp. 332, 336-38 (S.D.N.Y.1982). The court in Minpeco confronted a situation in which the plaintiffs brought suit for common-law fraud based on the defendants' actions rather than their statements. See 552 F.Supp. at 336. The plaintiffs sought to establish liability based on the defendants' fraudulent acts in manipulating the silver market. See id. at 334-35. The court first stated that New York law imposed no duty to speak on the defendants who were on opposite sides of the market from the plaintiffs. See id. Finding no New York cases directly on point, the court then reasoned that "a duty to speak does arise where defendants have engaged in `some act or conduct which deceived plaintiffs.'" Id. (quoting Moser v. Spizzirro, 31 A.D.2d 537, 295 N.Y.S.2d 188, 189 (2d Dep't 1968)). The gravamen of a common-law fraud claim is the fraudulent production of a false impression in the mind of another, regardless of whether the result was carried out by word or deed. Id. The court concluded that the complaint stated *648 a cause of action for fraud because the defendants' actions in creating an artificial price in the silver market lured the plaintiffs into the market to their detriment. Id. at 337.
Even assuming that Minpeco's approach is correct, the common-law fraud claims are still infirm. As explained above, the only sustainable market manipulation claim for the period February 1996 until the date of the complaint was against the Apollo Defendants. Scrutiny of the rest of the complaint that is time-barred under the federal securities laws yields no other action that satisfies the elements of a market manipulation claim. Plaintiffs repeatedly assert Defendants' responsibility for actions Baron's actions, do not specify who committed which acts, and assert fraud merely based on Defendants' profits from their investments with Baron. Thus, only the claims against the Apollo Defendants might survive with the help of the Minpeco rationale.
But the presence of market manipulation does not absolve Plaintiffs from satisfying the other elements of New York fraud. Judge Sweet in Blech II relied on Minpeco in determining that market manipulation could form the basis for a common-law fraud claim. See 961 F.Supp. at 587. However, he also held that plaintiffs had to plead reliance on the market. See id. The transactions for which the Apollo Defendants are allegedly liable were all unauthorized. It is not possible for Plaintiffs to have relied on the integrity of the market in making a decision to purchase securities when they never made such a decision. Thus, unlike a federal securities claim, Plaintiffs cannot assert common-law fraud based on unauthorized transactions. The common-law fraud claims are therefore dismissed for failure to state a claim.
F. Leave to Replead
Plaintiffs argue that they should be permitted leave to replead any claims which have been dismissed. The general rule is that leave to replead should be granted when a complaint is dismissed. In re Initial Public Offering Securities Litig., 241 F.Supp.2d at 397. However, repleading should not be granted when a claim is dismissed under Rule 12(b)(6) because such repleading would be futile. See Lucente v. Int'l Bus. Mach. Corp., 310 F.3d 243, 258 (2d Cir.2002). Thus, Plaintiffs will not be granted leave to replead on causes of action dismissed for failure to state a claim. They will, however, be granted leave to replead when the Court has dismissed for failure to plead with sufficiently particularity.
III. CONCLUSION
The Court summarizes its holdings here:
(1) The first, second, and third causes of action based on primary violations of the securities laws as they relate to Plaintiffs Fezzani, Cirenaca, Jane Bailey, the Blanks, Baydel, Bootlesville, and Cung are dismissed against all Defendants except Arthur Bressman (who has not appeared in this action) because they are time-barred;
(2) James Bailey's and the Burgesses' first three causes of action against the Bear Stearns Defendants are dismissed for failure to state a claim;
(3) James Bailey's and the Burgesses' second cause of action as to all Defendants is dismissed for failure to state a claim;
(4) James Bailey's and the Burgesses' first cause of action against the Individual and Broker Defendants is dismissed for failure to state a claim;
(5) James Bailey's and the Burgesses' third cause of action against the Broker Defendants is dismissed with leave to replead *649 for failure to plead with particularity;
(6) James Bailey's third cause of action against the Individual Defendants is dismissed for failure to state a claim;
(7) The Burgesses' third cause of action against the Individual Defendants is dismissed with leave to replead for failure to plead with particularity;
(8) James Bailey's and the Burgesses' first cause of action is dismissed against the Apollo Defendants for failure to state a claim;
(9) The control person liability claims against Bear Stearns are dismissed as untimely; all other control person claims are dismissed for failure to state a claim;
(10) All claims against Bank Audi are dismissed for improper service of process;
(11) All claims for aiding and abetting breach of fiduciary duty are dismissed for failure to state a claim, except for those of James Bailey against the Apollo Defendants; and
(12) All claims for common-law fraud are dismissed for failure to state a claim.
The effect of this decision is to leave the following claims intact: the RICO claims against the Baron Defendants, the federal securities fraud claims against Arthur Bressman, James Bailey's third cause of action based on market manipulation against the Apollo Defendants, and his aiding and abetting breach of fiduciary duty claim against the Apollo Defendants. Finally, Remaining Plaintiffs have sixty days from the date this decision is entered to replead their third cause of action against the Broker Defendants; the Burgesses also have sixty days to replead their third cause of action against the Individual Defendants.
NOTES
[1] The facts recounted here are taken from the complaint and must be assumed to be true for the purposes of these motions. See Connolly v. McCall, 254 F.3d 36, 40 (2d Cir.2001).
[2] The complaint names various other individuals and entities included in the "Individual Defendants" group. Nathan, Barbara, Morris, Ralph, Millo, Beatrice, Richard, Jack, Isaac, and Hank Dweck held accounts at Baron over which Isaac Dweck allegedly exercised control. (Id. ¶ 54.)
Iyad Shiblaq is Basil Siblaq's son. (Id. ¶ 55.)
Bank Audi Suisse-Geneve ("Bank Audi") is a financial institution located in Geneva, Switzerland which allegedly maintained securities trading accounts on behalf of Fozie Farkash, who the complaint describes as an employee or client of, or otherwise affiliated with, Bank Audi. (Id. ¶ 58.) However, Bank Audi was never served in this case, a fact Plaintiffs concede, and are therefore not a party to this suit. (See Plaintiffs' Memorandum of Law in Opposition to Motions to Dismiss ["Plf's Mem."], at 1 n. 1.)
Rawai Raes allegedly maintained an account at Baron, but Farkash is claimed to have been the true beneficial owner of that account. (Compl.¶ 59.)
Arielle, Aaron, Abraham, and Tovie Wolfson are also named among the Individual Defendants, as are the entities over which they maintained control: Anderer Associates, Boston Partners, Wolfson Equities, Turner Scharer, Chana Sasha Foundation, and United Congregation Mesarah. (Id. ¶ 60.) Morris, Aaron, and Abraham Wolfson are claimed to have controlled these defendants' accounts. (Id. ¶ 61.)
[3] In addition, various Defendants raise other, more minor arguments. For example, the Wolfsons and the entities associated with them, see supra note 2, move to dismiss for failure to comply with Federal Rule of Civil Procedure 8(a), requiring a short and plain statement of the facts. In addition, Kenneth Stokes's Memorandum of Law purports to move for summary judgment as well as to dismiss, but the Court is hard-pressed to locate any arguments regarding a lack of genuine issue of material fact. Both those motions are denied.
[4] The Baron Defendants here, with the exception of Arthur Bressman, were all among those indicted in 1997, and later convicted. (See Compl. ¶¶ 12, 270, 272.) Plaintiffs had actual or constructive knowledge of the fraudulent acts of Defendants Andrew Bressman, Acosta, O'Hare, Scanni, Brett and Matthew Hirsch, Fox, Simone, Plaia, McAndris, Wolynez, and Gilbert. The claims against the Baron Defendants are therefore time-barred and are accordingly dismissed. The Court has the power to dismiss portions of a complaint sua sponte on statute of limitations grounds when, as here, the basis for dismissal is apparent from the complaint. See Baker v. Cuomo, 58 F.3d 814, 819 (2d Cir.1995); Leonhard v. United States, 633 F.2d 599, 609 n. 11 (2d Cir.1980). However, the application of the one-year statute of limitations as to Arthur Bressman is not so clear-cut; the Court therefore declines to dismiss the securities act claims as to him.
[5] The statute of limitations issue as to the Bear Stearns Defendants is further complicated by an arbitral award rendered against Bear Stearns & Co. and Bear, Stearns Securities Corp. That award was confirmed in an opinion by Judge Scheindlin. See McDaniel v. Bear, Stearns & Co., 196 F. Supp. 2d 343 (S.D.N.Y.2002). Arbitral awards do have collateral estoppel effect on a legal issue if the issue was raised, actually litigated and decided, the party had full and fair opportunity to litigate the issue, and resolution of the issue was necessary to support a valid judgment on the merits. See Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir.1998). However, neither the award nor the judgment confirming it actually decided the statute of limitation issue. The arbitral award does not collaterally estop consideration of whether the federal securities claims are time-barred as to the Bear Stearns Defendants.
[6] At this point in the proceedings, the Court need not determine whether the arbitral award noted above, see supra note 5, estops the Bear Stearns Defendants' arguments here. Plaintiffs were not parties to the arbitration, but ostensibly seek to assert offensive nonmutual collateral estoppel against the Bear Stearns Defendants. While Plaintiffs may be able to assert such estoppel some time in the future, see Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331-32, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979), this is not the occasion for the Court to make that conclusion. The Court's only obligation now is to decide whether Plaintiffs have sufficiently pled a cause of action, not whether Defendants can mount a substantive defense against the complaint. Therefore, the Court does not consider the arbitral award's effect at this time.
[7] The Court notes that the complaint is ambiguous as to which defendants are sued under a control person theory. (Compare Compl. ¶ 35, with id. ¶¶ 279-80.) As with many areas of the complaint, the resort to group pleading makes it difficult to distinguish which causes of action are asserted against which defendants. However, Plaintiffs' Memorandum of Law at 46, states that only Defendants that the Court has listed above are allegedly liable as control persons, as well as "certain others not relevant to the pending motions." The Court is not clear on who those "others" may be, but only considers the motions of Defendants named in Plaintiffs' Memorandum of Law. Plaintiffs have waived their arguments as to any other Defendants who have moved to dismiss the control person cause of action and those motions are accordingly granted.
[8] The Bear Stearns Defendants, however, rest their arguments entirely on the "control" requirement.
[9] Plaintiffs' reliance here on the difference between the pleading standards under Rule 9 and under Rule 8 is not no avail. The Court does not hold that the complaint is insufficiently vague or unspecific, but that Plaintiffs' control person claims must be dismissed under Rule 12(b)(6).
[10] The Court would also dismiss the control person claims against Harriton for failure to state a claim. Plaintiffs' seek to hold Harriton responsible based on tertiary liability-his control of Bear Stearns, which in turn allegedly controlled Baron. Plaintiffs' cannot stretch the concept of control liability so far. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441317/ | 972 S.W.2d 26 (1998)
Jeanne Barnes BRYANT, as Liquidator of Anchorage Fire & Casualty Insurance Company, Petitioner,
v.
UNITED SHORTLINE INC. ASSURANCE SERVICES, N.A. and Surety Bank, N.A., Respondents.
No. 97-0093.
Supreme Court of Texas.
Argued November 3, 1997.
Decided May 8, 1998.
Rehearing Overruled August 25, 1998.
*27 Harold B. Gold, Dallas, for Petitioner.
James D. Shields, Dallas, Kleber C. Miller, Sterling W. Steves, Richard G. Williams, Christopher G. Lyster, Fort Worth, Jerome H. Ferguson, III, Lawrence E. Ackels, Joseph E. Ackels, Dallas, for Respondents.
ENOCH, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and GONZALEZ, SPECTOR and ABBOTT, Justices, join.
In this case, we consider whether a Tennessee chancery court order that gives that court exclusive jurisdiction over the assets of an insolvent insurer precludes a Texas lawsuit by a judgment creditor to satisfy the judgment from funds in a Texas bank, the ownership of such funds being in dispute. The court of appeals held that the Tennessee order exceeded the chancery court's jurisdictional limits, and therefore affirmed the trial court's refusal to enjoin or stay the Texas proceedings. We affirm the court of appeals' judgment, but for reasons different than those expressed in the court of appeals' opinion.
I. BACKGROUND
A. The Tennessee Liquidation Order
Anchorage Fire & Casualty Insurance Company ("Anchorage") is in liquidation in Tennessee. In March 1993, a Tennessee chancery court issued a conservation order placing Anchorage in receivership pursuant to the Tennessee Insurers Rehabilitation and Liquidation Act ("TIRLA"). Tenn.Code Ann. §§ 56-9-101 to -510 (1994). The conservation order directed the Tennessee Commissioner of Commerce and Insurance (the "Commissioner") to take possession of and administer Anchorage's assets; the order specifically authorized the Commissioner to act outside of Tennessee to marshal and conserve Anchorage's assets. The order also temporarily enjoined all persons from transferring or disposing of Anchorage's property, from interfering with the conservator or the conservatorship, from instituting or further prosecuting any actions or proceedings against Anchorage, and from obtaining preferences, judgments, attachments, or other liens against Anchorage or its assets.
The Tennessee court later converted the conservation order into a liquidation order, invoking section 56-9-402 of TIRLA as its jurisdictional basis. Section 56-9-402 allows liquidation of the "assets found in [Tennessee]" of a foreign or alien insurer not domiciled in Tennessee. TIRLA § 56-9-402. The liquidation order converted the temporary injunction into a permanent injunction. More importantly for purposes of this opinion, the order also empowered the liquidator to take possession of all Anchorage assets wherever located. The order named the Commissioner as the liquidator, and authorized him to act through petitioner Jeanne Barnes Bryant (the "Liquidator").
B. The USI Suit
Meanwhile, United Shortline, Inc. Assurance Services, N.A. ("USI") had a $2 million Florida judgment against MacGregor General Insurance Company ("MacGregor"), a foreign general casualty insurance company. Both MacGregor and Anchorage had assets on deposit with Surety Bank, N.A. (the "Bank") in Hurst, Texas. USI sued MacGregor in a Texas district court seeking to preserve MacGregor's assets, including those deposited at the Bank.
The Bank intervened in this action, interpleading several entities, including Anchorage and the state of Tennessee, with claims to the disputed assets. The funds at issue originated from the Bank's insurance premium financing business with MacGregor and Anchorage. The Bank was unsure about ownership of the disputed funds in part because of reinsurance agreements and correspondence between MacGregor and Anchorage suggesting that Anchorage may be entitled to insurance premium finance payments owed to MacGregor. The Bank had been collecting from insureds of both companies. The Bank deposited about *28 $600,000 into the registry of the court pending resolution of the conflicting claims.
The Liquidator moved to dismiss or stay, arguing that the Texas court should afford full faith and credit to the Tennessee liquidation order and require the Bank to adjudicate ownership of the disputed funds in the Tennessee liquidation proceeding. The trial court denied the Liquidator's motion to dismiss or stay and granted summary judgment for USI, awarding it the interpleaded funds.
The Liquidator appealed. The court of appeals affirmed in part and reversed in part the trial court's judgment. The court of appeals held that the liquidation order showed on its face that it was void for lack of jurisdiction, and therefore the trial court did not err in refusing to dismiss or stay the action. However, the court of appeals held that a fact question remained about ownership of the disputed funds. The court of appeals therefore remanded the case for trial.
The Liquidator asserts that the court of appeals erred in several respects. First, the Liquidator contends that the court of appeals should have held that the liquidation order was entitled to full faith and credit, and that, so entitled, the order required that the USI lawsuit be dismissed or stayed. Second, the Liquidator argues that principles of comity require staying or dismissing the suit. Finally, the Liquidator urges that intervention by the Bank was improper and that the interpleader action was inappropriate. We take up these arguments in turn.
II. FULL FAITH AND CREDIT
The United States Constitution requires each state to give full faith and credit to the public acts, records, and judicial proceedings of every other state. U.S. Const. art. IV, § 1; see also Barber v. Barber, 323 U.S. 77, 79, 65 S. Ct. 137, 89 L. Ed. 82 (1944). Both the United States Supreme Court and this Court have held that the full faith and credit clause applies to orders placing insurance companies into receivership. See Underwriters Nat'l Assurance Co. v. North Carolina Life & Accident & Health Ins. Guar. Ass'n, 455 U.S. 691, 707, 102 S. Ct. 1357, 71 L. Ed. 2d 558 (1982); Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791, 795 (Tex.1992). In Underwriters, the United States Supreme Court noted that the full faith and credit clause requires only that an order be given the same effect in the sister state that it has in the rendering state; thus, a void order is no more enforceable in a sister state under the full faith and credit clause than it is in the rendering state. See Underwriters, 455 U.S. at 704 n. 10, 102 S. Ct. 1357 n. 10 ("One State's refusal to enforce a judgment rendered in another State when the judgment is void for lack of jurisdiction merely gives to that judgment the same `credit, validity, and effect' that it would receive in a court of the rendering state.").
The parties vigorously contest how the full faith and credit clause should be applied in this case. The Liquidator contends that the liquidation order precludes the Texas action, as the order requires all claims against the estate or the property of the estate to be brought in the Tennessee liquidation court.
The Bank and USI respond that the liquidation order is void insofar as it purports to authorize the Liquidator to marshal assets located outside Tennessee. They argue that TIRLA gives the Tennessee court jurisdiction over only those assets of Anchorage located in Tennessee. See TIRLA § 56-9-402(a) (authorizing chancery court to order commissioner to liquidate "the assets found in this state of a foreign insurer or an alien insurer not domiciled in this state") (emphasis added). The court of appeals agreed with this argument, finding that the liquidation order "shows on its face that it was entered in excess of the jurisdiction granted to the court by [TIRLA]." The court of appeals therefore refused to give full faith and credit to the order. Id.
The Liquidator contends that such an argument is an improper collateral attack on the jurisdiction of the Tennessee chancery court, and that such an attack can be brought only on direct appeal in the Tennessee proceeding. Moreover, the Liquidator urges that TIRLA in fact affords jurisdiction to the Tennessee chancery court over Anchorage's assets located in other states. See TIRLA § 56-9-402(c) ("If it appears to the court *29 that the best interests of creditors, policyholders and the public so require, the court may issue an order to liquidate in whatever terms it deems appropriate.") (emphasis added). The Texas Department of Insurance has filed amicus briefs in support of the Liquidator's position, arguing that there is a strong public policy interest in affording full faith and credit to liquidation proceedings in other states, and that this Court recognized such an interest in Bard.
We agree with the Liquidator and the Department of Insurance that Texas recognizes a compelling policy interest in having claims against an insolvent insurer's estate resolved in a single proceeding. See Bard, 839 S.W.2d at 797 (noting that adjudication in receivership proceedings of all claims against insolvent insurer's estate ensures "fair and consistent treatment of all claims"); see also Tex. Ins.Code art. 21.28, § 8. Thus, we have no difficulty in stating that, had the Bank or USI proceeded against Anchorage or the Liquidator, the full faith and credit clause may very well have necessitated dismissal of such a suit. Bard, 839 S.W.2d at 795. What is overlooked in the parties' and the amicus's arguments about the full faith and credit clause, however, is the fact that the action at issuethe Bank's interpleader of funds, the ownership of which is in disputeis not within the scope of the Tennessee liquidation order.
We need not decide in this case whether TIRLA authorizes the Tennessee chancery court to order the Liquidator to marshal Anchorage assets located outside of Tennessee.[1] In this case, there has been no adjudication, in Texas or in Tennessee, that the funds at issue belong to Anchorage.[2] The liquidation order incorporates the conservation order, which by its terms applies to Anchorage's property. Thus, even if we assume that the Tennessee court had jurisdiction over Anchorage assets located in other states, we are still left with the fact that we do not yet know if the funds at issue even are Anchorage assets.
None of the parties contest the court of appeals' conclusion that the Bank's interpleader action is quasi in rem. The funds were located in Texas and the Bank tendered them into the Texas trial court's registry when it filed the interpleader. This gave the trial court jurisdiction over the funds to disburse them upon determining ownership. See Northshore Bank v. Commercial Credit Corp., 668 S.W.2d 787, 789 (Tex.App.Houston [14 th Dist.] 1984, writ ref'd n.r.e.); cf. State v. Approximately $2,000,000.00 in United States Currency, 822 S.W.2d 721, 726 (Tex.App.Houston [1 st Dist.] 1991, no writ) ("The general rule of in rem jurisdiction is the court's jurisdiction is dependent upon its control over the res."). Nothing about the Tennessee liquidation order precluded the trial court from exercising jurisdiction over the disputed funds, nor did the liquidation order purport to give the Tennessee court jurisdiction over funds located in another state that do not belong to Anchorage.[3]
The Liquidator argues that the result it seeks is compelled by two other decisions, one by the Dallas court of appeals in Bryant v. Shields, Britton & Fraser, 930 S.W.2d 836 (Tex.App.Dallas 1996, writ denied), and the other by a United States District Court for the Northern Division of Texas in Tennessee ex rel. Sizemore v. Surety Bank, N.A., 939 F. Supp. 511 (N.D.Tex.1996). We disagree.
In Bryant, the law firm of Shields, Britton & Fraser ("SBF") brought a direct action in Texas against Anchorage for fees allegedly incurred in representing an Anchorage insured. Relying on Bard, the Dallas court of *30 appeals held that the liquidation order at issue in this case precluded SBF from bringing the Texas action, affording full faith and credit to the order. Bryant, 930 S.W.2d at 842-44.
We agree with the court of appeals' conclusion in this case that Bryant is easily distinguishable. SBF made a direct claim against the undisputed assets of Anchorage; such a claim directly contravenes the liquidation order. No such claim is made here. Rather, the issue here is ownership of disputed funds that were located in Texas and are now in the possession of the trial court.
Sizemore, although it involved the same parties and the same assets, also is not determinative of this case. In Sizemore, the federal district court addressed only whether the Tennessee chancery court exceeded its jurisdiction in ordering the liquidation of Anchorage assets outside the state of Tennessee, and whether the order could be collaterally attacked in a Texas court. Sizemore, 939 F.Supp. at 516. It is significant that in refusing to entertain a collateral attack on the Tennessee court's liquidation order, the court assumed for the purposes of its decision that the bank account funds were Anchorage assets. Sizemore, 939 F.Supp. at 516 ("assuming arguendo that the Chancery Court erred in liquidating [Anchorage's] out-of-state assets ...").
Unlike the issues presented in Sizemore, the issue in this case is precisely whether the funds in the Texas court's registry are Anchorage's assets. The liquidation order simply has no application to these funds until they are shown to be Anchorage's. Accordingly, Sizemore is inapposite.
Finally, we note that nothing in our disposition of this case in any way conflicts with Bard. In Bard, a Vermont liquidation order required all claims, including counterclaims and set offs, against the insolvent insurer, Ambassador, or its liquidator to be brought in the Vermont receivership court. Bard, 839 S.W.2d at 792-93. The Vermont liquidator filed a claim on Ambassador's behalf in a Texas district court against Charles R. Myers Insurance Agency ("Myers"), seeking to recover monies allegedly owed for insurance policy premiums. Myers filed a counterclaim in the Texas action. The Vermont liquidator moved to dismiss the counterclaim on the ground that the Vermont order was entitled to full faith and credit, and that the order required the counterclaim against the liquidator to be brought in the Vermont receivership court. We held that the trial court should have dismissed the counterclaim without prejudice. Id. at 795-97. We noted that the fact that the Vermont liquidator brought suit in Texas to recover assets belonging to Ambassador did not allow Myers to defy the liquidation order by proceeding directly against Ambassador by way of counterclaim. Id. at 796.
Here, again, there was no direct action by the Bank against Anchorage, its assets, or the Liquidator. Rather, the Bank tendered funds to the registry of the court through an interpleader action to determine ownership of those funds. Nothing about this action violated the terms of the Tennessee liquidation order. Thus, there is no "full faith and credit" to be given. The assets at issue were located in Texas, and their ownership was unclear. The fact that the Liquidator has appeared in Texas to make a claim against the interpleaded assets does not make them Anchorage's assets; indeed, that is precisely the issue to be determined in the interpleader action. Unless and until such a determination is made, the Tennessee order does not apply. Under these circumstances, the trial court properly refused to dismiss or stay the lawsuit.
III. OTHER ISSUES
A. Comity
The Liquidator argues that the trial court should have stayed or dismissed the lawsuit on comity grounds, contending that Texas courts should defer to the Tennessee court's exercise of jurisdiction over Anchorage's assets. We agree with the Liquidator that generally it is appropriate for courts to apply the comity doctrine where another court has exercised jurisdiction over the matter and where the states agree about the public policy at issue. See Twin City Bank v. Mutual Fire Marine & Inland Ins. Co., 646 F. Supp. 1139, 1141-42 (S.D.N.Y.1986), *31 aff'd, 812 F.2d 713 (2d Cir.1987) (table). However, we see no reason for the doctrine to be applied here. Because we have found that the Tennessee court did not exercise jurisdiction over assets that do not belong to Anchorage, it would make no sense to find that the trial court erred in refusing to apply the comity doctrine in this case.
B. Intervention
The Liquidator asserts that the Bank was not a proper intervenor because it had no legal or equitable interest in the USI lawsuit, and because the intervention complicated the case by excessively multiplying the issues. See Guaranty Fed. Savings Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex.1990). We agree with the court of appeals that the Liquidator waived this argument by failing to move to strike the plea in intervention. See id. The Liquidator urges that the court of appeals elevated form over substance; she contends that she brought her opposition to the Bank's intervention to the trial court's attention through her plea to the jurisdiction, her answer, and her motion to dismiss or stay. However, these pleadings did not address the impropriety of intervention; rather, they put forth the Liquidator's general complaint that the action was brought in Texas rather than in the Tennessee liquidation court. The trial court did not err in failing to strike the intervention.
C. Interpleader
Finally, the Liquidator complains that there was no basis for the interpleader action. However, there is no record evidence showing that the trial court abused its discretion in ruling that the interpleader action was appropriate. See Danner v. Aetna Life Ins. Co., 496 S.W.2d 950, 953 (Tex.Civ.App.Fort Worth 1973, no writ) ("Granting a party's right to interplead is within the sound discretion of the trial court."). We indulge every presumption in favor of the trial court's findings in the absence of a statement of facts. See Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363, 365 (1945). Moreover, every reasonable doubt should be resolved in favor of the stakeholder's right to interplead. See Petro Source Partners, Ltd. v. 3-B Rattlesnake Ref. (1990), Ltd., 905 S.W.2d 371, 375 (Tex.App.El Paso 1995, writ denied). Accordingly, we hold that the court of appeals did not err in affirming the trial court's ruling that the interpleader was appropriate.
* * * * *
For the foregoing reasons, we affirm the court of appeals' judgment.
BAKER, Justice, filed a dissenting opinion, in which HECHT and OWEN, Justices, join.
HANKINSON, Justice, did not participate in the decision.
BAKER, Justice, joined by HECHT and OWEN, Justices, dissenting.
The Court concludes that Surety Bank's interpleader action in this case is not within the scope of the Tennessee liquidation order. To the contrary, I believe that it is and that the liquidation order should be afforded full faith and credit. Accordingly, I dissent.
I. SCOPE OF TENNESSEE LIQUIDATION ORDER
The Court concedes that it would have no difficulty in stating that had the Bank or USI proceeded against Anchorage or the Liquidator, the full faith and credit clause may have very well necessitated dismissal of the suit. The Court concludes that the full faith and credit clause does not apply here because the interpleader action that is part of the USI suit is not within the scope of the liquidation order. The Court reasons that the ownership of the interpleader funds is in dispute and that the liquidation order only applies to claims against Anchorage's assets. However, I do not believe that the record supports the Court's reasoning. The Court simply mischaracterizes the record to reach its conclusion.
In its analysis, the Court ignores the fact that the record clearly shows that the accounts the Bank interpleaded were held in Anchorage's name. While the Bank may have been concerned about other parties claiming certain funds in the account, they *32 were clearly held in Anchorage's name. Accordingly, on the face of the record, the funds at issue belong to Anchorage. I do not express an opinion on the true ownership of the funds held in Anchorage's name or whether USI or McGregor have a legitimate claim to the funds. Rather, my sole intent is to point out that, on their face, the accounts were Anchorage's property, and that any claim a party may have against Anchorage to the funds in the account fall within the scope of the liquidation order.
The record shows that after the Bank interpleaded the Anchorage accounts into court, USI amended its pleadings to join Anchorage and the Liquidator as parties and to allege that it was entitled to the funds in the Anchorage accounts because
it is entitled to recover from Anchorage or its Liquidator all sums that would otherwise be due MacGregor under any claim or any reinsurance agreement.... Any claim that Anchorage may have to the funds on deposit should be subordinated to USI's claim because any contract upon which Anchorage or its Liquidator may base a claim was not supported by consideration or failed in its consideration or was materially breached by Anchorage or its Liquidator or was in fraud of creditors of MacGregor ... and represent the fruits of such wrongful transfer.
This is the precise evil the liquidation order seeks to preventclaims against Anchorage's assets outside of the receivership proceeding. Notably, USI dropped its claims against Anchorage and the Liquidator when the trial court rendered summary judgment awarding USI the funds. However, the court of appeals has reversed on that issue and USI may seek to reinstate its claims. Accordingly, there may be an issue about whether USI can assert a claim against Anchorage or the Liquidator. In Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791 (Tex.1992), the Court held that a party could not file a counterclaim against a receiver, even though the receiver initiated the suit. Thus, if USI has a claim against Anchorage, it may be precluded from asserting its claim in the interpleader action.
The record also shows that the Bank had actual knowledge of the Tennessee receivership proceedings. Over a month before the Bank filed its interpleader action, the Liquidator domesticated the Tennessee receivership order and served it on the Bank. Yet, despite the fact that the Bank knew Anchorage was in receivership, that proceedings were pending in Tennessee, and that any claims to Anchorage's assets had to be brought in the Tennessee receivership court, the Bank still chose to file its action in a Texas court.
In Bard this Court reinforced its strong commitment to enforce sister state's injunctions against interference with receivership proceedings. We expressly recognized "the benefit, if not the practical necessity, of requiring that all claims against the insolvent insurer's estate be adjudicated in the receivership proceedings to ensure the fair and consistent treatment of all claims." Bard, 839 S.W.2d at 797 (emphasis omitted). Requiring parties to make claims against receivers in a single receivership proceeding is instrumental in ensuring that all policyholders, claimants, and creditors are treated equally. See Bard, 839 S.W.2d at 796-97. The Court's conclusion that the Bank's interpleader action is not within the scope of the liquidation order does violence to this policy. Under the Court's interpretation of the liquidation order, parties could merely bypass receivership orders by filing interpleader actions instead of direct claims. Yet, this would "defeat the goal of state insurance insolvency statutes and would greatly increase the expense and complexity of insurance insolvency proceedings." Bard, 839 S.W.2d at 796.
The argument that the interpleader action is not within the scope of the liquidation order does not hold up under scrutiny. The Bank's interpleader action in this case clearly interferes with Anchorage's assets by allowing parties to attack Anchorage's ownership interest in its accounts. I conclude that the Bank's interpleader action is within the scope of the liquidation order.
II. FULL FAITH AND CREDIT
As the Court correctly notes, both the United States Supreme Court and our Court *33 have recognized that full faith and credit applies to receivership orders. See Underwriters Nat'l Assurance Co. v. North Carolina Life & Accident & Health Ins. Guar. Ass'n, 455 U.S. 691, 102 S. Ct. 1357, 71 L. Ed. 2d 558 (1982); Bard, 839 S.W.2d 791. However, in Underwriters, the United States Supreme Court concluded that full faith and credit only requires courts to give judgments the same credit, validity, and effect that the judgment would have in the rendering state. See Underwriters Nat'l Assurance Co., 455 U.S. at 704 n. 10, 102 S. Ct. 1357 n. 10. Thus, if a judgment is void and unenforceable in the rendering state, it void and unenforceable in all states.
Here, the Bank and USI claim that Texas courts should not give full faith and credit to the liquidation order because it is void. The Bank and USI contend that the Tennessee Chancery Court lacked jurisdiction to issue any order affecting Anchorage's assets that are outside Tennessee. The Liquidator responds that this is an impermissible collateral attack on the liquidation order.
The liquidation order here has already been challenged in two other suits. See Bryant v. Shields, Britton & Fraser, 930 S.W.2d 836 (Tex.App.Dallas 1996, writ denied); Tennessee ex rel. Sizemore v. Surety Bank, N.A., 939 F. Supp. 511 (N.D.Tex.1996). In Bryant, Shields, Britton & Fraser sued the Liquidator to recover on a sworn account. The Liquidator asserted that the trial court should afford full faith and credit to the liquidation order and dismiss the action. SBF countered by claiming that the liquidation order was not final or enforceable, and that the order did not enjoin foreign proceedings. The court of appeals disagreed with SBF and afforded the liquidation order full faith and credit. See Bryant, 930 S.W.2d at 844. I agree with the Court, however, that this case is distinguishable and of little help because SBF did not attack the Tennessee Chancery Court's jurisdiction to enjoin parties from interfering with assets outside of the state of Tennessee.
However, I again part ways with the Court because I believe that Sizemore is dispositive of this case. The Court's quote from Sizemore, 939 F. Supp. 511, shows that the Court seriously misreads what Sizemore stands for. In Sizemore, the district court does not assume that the assets are Anchorage's property. Rather, the district court, as evident by the Court's quote, merely assumes that the Tennessee Chancery Court erred in liquidating Anchorage's out of state assets. Moreover, the district court recognized that there was a potential dispute over the ownership of the funds and that the accounts were held in Anchorage's name. See Sizemore, 939 F.Supp. at 512-13. Yet, the district court still concluded that a collateral attack was not allowed. See Sizemore, 939 F.Supp. at 516. Thus, the Court's conclusion that "unlike the issue presented in Sizemore, the issue in this case is precisely whether the funds in the Texas court's registry are Anchorage's assets," is simply incorrect. 939 F. Supp. 511. Sizemore is directly on point. In Sizemore, not only did the district court review the exact issue presented here whether the Bank can collaterally attack the liquidation orderbut the case also involves the same interpleader action, the same liquidation order, and virtually the same parties. In Sizemore the district court conducted a thorough and extensive analysis on whether the Bank can collaterally attack the liquidation order. See Sizemore, 939 F.Supp. at 513-17.
In determining the validity of another state's judgments, courts looks to the rendering state's law. See Bard, 839 S.W.2d at 795. Tennessee Insurers Rehabilitation Act section 56-9-402(a) states that "the commissioner may apply to the [Tennessee Chancery Court] by verified petition for an order directing the commissioner to liquidate the assets found in this state of a foreign insurer or an alien insurer not domiciled in this state." Tenn.Code Ann. § 56-9-402(a) (1994). There is no dispute that Anchorage is a foreign insurer and that the assets involved in this case are outside the state of Tennessee. The court of appeals held that because the liquidation order did not strictly adhere to the statute, the Tennessee Chancery Court did not have jurisdiction to liquidate assets that were outside Tennessee and the order is void. However, it simply cannot be the case that any noncompliance with the *34 TIRLA statutory scheme causes an order to be void. If that were true, then even the most insignificant errors could be used to invalidate receivership proceedings. See Sizemore, 939 F.Supp. at 514.
Instead, the focus should be on whether Tennessee law allows collateral attacks on liquidation orders. The statute does not specify the grounds for collaterally attacking liquidation orders. Therefore, common law controls. Under Tennessee common law, court orders "may be subject to collateral attack when the court exceeds the powers conferred upon it by law." Sizemore, 939 F.Supp. at 515 (reviewing Tennessee case law). This does not mean though that a party can collaterally attack a judgment when a court erroneously exercises its power. Rather, the court must usurp power where none existed. See Sizemore, 939 F.Supp. at 515.
There does not appear to be Tennessee precedent drawing the distinction between an erroneous exercise of power and a usurpation of power. However, in an analogous case, the Seventh Circuit reasoned that only an egregious error results in a void judgment. See Sizemore, 939 F.Supp. at 515-16 (citing In re Edwards, 962 F.2d 641, 644 (7th Cir. 1992)). When the error is reasonable, the rendering court has jurisdiction to determine its own jurisdiction. See Sizemore, 939 F.Supp. at 516. Thus, in this case, to collaterally attack the liquidation order, the Bank and USI must show that the Tennessee Chancery Court committed an egregious error when it allowed for the liquidation of Anchorage's assets outside Tennessee. See Sizemore, 939 F.Supp. at 516.
TIRLA provides that "[i]f it appears to the court that the best interests of creditors, policyholders and the public so require, the [Tennessee Chancery Court] may issue an order to liquidate in whatever terms it deems appropriate." Tenn.Code Ann. § 56-9-402(c). Moreover, TIRLA states that the Act should be liberally construed to protect the public. See TENN.CODE ANN. § 56-9-101(c)-(d). In liberally construing the Act, the Liquidator insists that the Tennessee Chancery Court had the authority to order the liquidation of assets "in whatever terms it deems appropriate," including liquidating assets outside Tennessee. Additionally, the Liquidator points out that under TIRLA courts have the authority to issue conservation orders affecting out-of-state assets. Thus, it does not make sense to limit courts' authority to issue liquidation orders affecting out-of-state assets. See Sizemore, 939 F.Supp. at 516.
The Bank and USI counter that TIRLA's specific language limits the Tennessee Chancery Court's authority to liquidating only assets inside Tennessee. While this is a strong argument, it is not necessary to decide which party is correct. Instead, the focus is whether, assuming it was error to allow liquidation of assets outside Tennessee, the error was egregious. See Sizemore, 939 F.Supp. at 516.
The Liquidator's arguments have credence and the extent of the Tennessee Chancery Court's jurisdiction is not clearly defined. Accordingly, I cannot conclude that the Tennessee Chancery Court's error, if any, was egregious. See Sizemore, 939 F.Supp. at 516. Thus, I would hold that any error by the Tennessee Chancery Court involves a mistaken interpretation of law, not a usurpation of power. The liquidation order is entitled to full faith and credit. The Bank and USI must to challenge the liquidation order in Tennessee.
III. CONCLUSION
The Bank's interpleader action in this case is within the scope of the liquidation order. The Bank and USI cannot collaterally attack the validity of the order. Therefore, I would afford the liquidation order full faith and credit and dismiss the action.
NOTES
[1] Accordingly, we neither approve nor disapprove the court of appeals' finding that TIRLA precludes the Tennessee chancery court from exercising jurisdiction over Anchorage assets located outside of Tennessee.
[2] We express no opinion about the propriety of the court of appeals' reversal of the summary judgment awarding the funds to USI. Neither USI nor the Bank has asked this Court to review that portion of the court of appeals' opinion.
[3] We note that section 64.003 of the Texas Civil Practice and Remedies Code provides that "[a] court outside this state may not appoint a receiver for: ... (2) property located in this state." TEX. CIV. PRAC. & REM.CODE § 64.003(2). Because of our disposition of this case, we need not determine whether or how this provision affects the Tennessee liquidation order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2631361/ | 249 P.3d 1104 (2011)
SOUTHWEST FIDUCIARY, INC., as Conservator of Rhonda Lundy, a single woman, Plaintiff/Appellee/Cross-Appellant, and
James Flynn, a single man, Plaintiff/Appellee,
v.
ARIZONA HEALTH CARE COST CONTAINMENT SYSTEM ADMINISTRATION, an Arizona state agency; Anthony D. Rodgers, Director of AHCCCS; Todd J. Jensen, AHCCCS Administrative Hearing Decision Administrator, Defendants/Appellants/Cross-Appellees.
Nos. 1 CA-CV 10-0300, 1 CA-CV 10-0301.
Court of Appeals of Arizona, Division 1, Department B.
March 10, 2011.
*1105 Goldberg & Osborne By Allen D. Bucknell, Phoenix, Attorneys for Plaintiff/Appellee/Cross-Appellant, Southwest Fiduciary, Inc.
Ira W. Schiffman Attorney at Law and Law Offices of David L. Abney By David L. Abney and Levenbaum & Cohen By Geoffrey M. Trachtenberg, Phoenix, Attorneys for Plaintiff/Appellee James Flynn.
Deconcini McDonald Yetwin & Lacy, P.C. By Gary F. Urman, Tucson, Attorneys for Defendants/Appellants, Arizona Health Care Cost Containment System Administration, Anthony D. Rodgers and Todd J. Jensen.
OPINION
JOHNSEN, Judge.
¶ 1 In these consolidated cases we address a question the Supreme Court left open in Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268, 126 S. Ct. 1752, 164 L. Ed. 2d 459 (2006), concerning the lien rights of a state Medicaid plan after it has paid medical expenses for a victim who subsequently settles with a tortfeasor for less than the full amount of her overall damages. We conclude that the state plan may recover no more than the portion of the victim's settlement that represents recovery of the plan's payments on behalf of the victim, less a deduction for litigation expenses.
*1106 FACTS AND PROCEDURAL BACKGROUND
¶ 2 Southwest Fiduciary, Inc. was appointed conservator of Rhonda Lundy after she was injured severely in an auto accident. Lundy sued third parties in the accident and ultimately settled her case for $842,696. According to a mediator, the "full value" of Lundy's damages was between $3,000,000 and $4,000,000. Included in that total were past medical bills of $920,000. According to the mediator, Lundy agreed to compromise her claims because of "difficult liability issues." The Arizona Health Care Cost Containment System ("AHCCCS"), which had paid $268,080 toward Lundy's medical expenses, filed a lien for that amount against the settlement.
¶ 3 James Flynn was injured in a separate auto accident. Although the estimated value of his damages was $250,000, including billed medical expenses of $138,710, he settled his third-party tort claim for $100,000. AHCCCS, which had paid $51,760 toward Flynn's medical expenses, sought to enforce a lien for that amount against his recovery.
¶ 4 The settlements that Lundy and Flynn entered into with their respective tortfeasors resolved their claims for all manner of damages, including past medical expenses, future medical expenses, pain and suffering, lost wages and other out-of-pocket costs. As is customary, Lundy and Flynn did not limit their medical-expense claims to the amounts they actually paid or were paid on their behalf, but demanded reimbursement from the tortfeasors of the total amount billed by hospitals and other medical providers that treated them.[1]
¶ 5 During separate administrative proceedings, the issue was whether AHCCCS's lien rights were to be measured by what it actually paid or by the victims' total billed medical expenses. Although the director of AHCCCS decided in favor of AHCCCS, on appeal, the superior court in each case held AHCCCS's lien for payments it had made on behalf of the victim would be reduced by the ratio that the settlement amount bore to the victim's total claimed damages.[2]
¶ 6 We have jurisdiction over these consolidated appeals pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-2101(B) (2007) and 12-120.21(A)(1) (2007).
DISCUSSION
A. Standard of Review.
¶ 7 AHCCCS challenges the superior court's interpretation of Arizona's healthcare lien statute, A.R.S. § 36-2915 (2009), and related federal statutes.[3] Statutory interpretation is a question of law that we review de novo. Libra Group, Inc. v. State, 167 Ariz. 176, 179, 805 P.2d 409, 412 (1991).
B. Medicaid, AHCCCS and Ahlborn.
¶ 8 Medicaid was established in 1965 to provide medical care to qualified low-income individuals. See 42 U.S.C. § 1396 (2006). Each state administers its own Medicaid plan, which must conform to federal requirements. See, e.g., A.R.S. §§ 36-2901 to -2999.08 (2009). In Arizona, AHCCCS administers Medicaid services. Arizona Ass'n of Providers for Persons with Disabilities v. State, 223 Ariz. 6, 10-11, ¶ 4, 219 P.3d 216, 220-21 (App.2009).
¶ 9 Federal law requires states to establish procedures by which state Medicaid plans may be reimbursed by third-party tortfeasors for payments the plans make on behalf of injured persons to whom tortfeasors are legally liable. 42 U.S.C. § 1396a(a)(25)(B), (H) (2006); see also Ahlborn, 547 U.S. at 275-76, 126 S. Ct. 1752. In compliance with *1107 federal law, A.R.S. § 36-2915(A) provides in relevant part:
[AHCCCS] is entitled to a lien for the charges for hospital or medical care and treatment of an injured person for which [AHCCCS] or a contractor is responsible, on any and all claims of liability or indemnity for damages accruing to the person to whom hospital or medical service is rendered, or to the legal representative of such person, on account of injuries giving rise to such claims and which necessitated such hospital care and treatment.
¶ 10 Applying federal law, the Supreme Court held in Ahlborn that when a Medicaid recipient settles with a tortfeasor for an amount less than her full damages, Medicaid's share of the settlement may not exceed the portion of the settlement that represents medical expenses. 547 U.S. at 280, 126 S. Ct. 1752. The Medicaid recipient in Ahlborn incurred damages of about $3,040,000, but settled with the tortfeasor for $550,000. Id. at 269, 274, 126 S. Ct. 1752. The Arkansas Department of Health and Human Services stipulated that the settlement included only $35,581 attributable to past medical expenses, but asserted a lien for $215,645, the amount it had paid for the victim's medical care. Id. at 274, 280-81, 126 S. Ct. 1752. The Supreme Court concluded that the state plan could not recover more than the portion of the settlement representing payments for medical care. Id. at 280-81, 126 S. Ct. 1752. Thus, it limited the state's recovery to the portion of the settlement attributable to past medical expenses, $35,581. Id.[4]
¶ 11 In Ahlborn the issue was whether the state Medicaid plan could recover the entirety of its lien against the victim's settlement, and the parties stipulated to the amount the state would recover if the Court ruled against the state. Id. at 280-81, 126 S. Ct. 1752. We address in this case an issue not presented in Ahlborn: Whether a Medicaid lien may be enforced against the portion of a tort settlement that represents medical expenses that are billed but not paid because medical providers have accepted discounted payments in full satisfaction of their bills. See generally Bolanos v. Superior Court, 169 Cal. App. 4th 744, 87 Cal. Rptr. 3d 174, 186 (2008) (Ahlborn does not require specific formula in calculating amount of Medicaid lien that is enforceable against settlement); Lugo v. Beth Israel Med. Ctr., 13 Misc. 3d 681, 819 N.Y.S.2d 892, 897 (N.Y.Sup.Ct.2006) (rejecting application of any specific formula but recognizing the usefulness of the formula applied in Ahlborn).
¶ 12 This issue arises because of the rule in Arizona that injured persons may sue in tort to recover the full amount of their billed medical expenses caused by the tort, even though they may not have paid that amount or (any amount) of medical expenses. This "collateral source rule" prohibits tortfeasors from avoiding liability for damages in situations in which an injured party has been compensated by a third party. Lopez v. Safeway Stores, Inc., 212 Ariz. 198, 202, ¶ 13, 129 P.3d 487, 491 (App.2006). Accordingly, when a plaintiff in a personal injury case calculates damages due from the tortfeasor, the number she includes for medical expenses is the full billed amount of those expenses, even though her health insurer (or AHCCCS) may have negotiated to pay less than that amount on her behalf. As noted, for example, supra ¶¶ 2-3, Lundy's billed medical expenses were $920,000; AHCCCS satisfied those expenses by paying $268,000; Flynn's billed medical expenses were $139,000, but AHCCCS satisfied those expenses by paying $52,000.
¶ 13 Because the parties in Ahlborn stipulated to the relevant formula, that case did not resolve whether the "medical expenses" component of a tort settlement against which a Medicaid lien may be imposed is measured by the payments Medicaid actually made for medical services or by the billed value of those services. Depending on the facts of a particular case, the difference may be significant. In the Flynn case, for example, the negotiated settlement represented 40 percent *1108 of the estimated value of the case.[5] Under the formula applied by stipulation in Ahlborn and now urged by Flynn, AHCCCS's recovery would be calculated by multiplying the amount AHCCCS paid in past medical expenses, $51,760, by 40 percent. The result ($20,704) then would be reduced to $13,043 to account for litigation expenses. AHCCCS, however, argues its lien should be based on the proportion of Flynn's total damages represented by billed medical expenses. It applies that proportion (56.5 percent) against the net settlement amount (the settlement amount less attorney's fees and costs), and arrives at a lien of $32,640.[6]
C. Federal and State Law Require that AHCCCS's Lien Recovery Be Calculated Based on What AHCCCS Has Paid, Not on Total Billed Medical Expenses.
¶ 14 The statute under which AHCCCS asserted the liens at issue, A.R.S. § 36-2915(A), limits the amount of any such lien to "the charges . . . for which [AHCCCS]. . . is responsible." Consistent with 42 U.S.C. 1396a(a)(25)(B), which requires states to enact measures by which a state may seek "reimbursement" for Medicaid assistance payments when a third party is found liable for healthcare services, we interpret "charges . . . for which [AHCCCS] . . . is responsible" to mean charges actually paid by AHCCCS. Applying that principle to a tort settlement, AHCCCS's share of a settlement should be calculated based on amounts it has paid for the victim's medical care, not based on larger amounts reflected in bills issued by medical providers that later agree to accept less than the billed amounts as full payment.
¶ 15 Our conclusion is supported by the statute the Supreme Court labeled the Medicaid "anti-lien" provision. See Ahlborn, 547 U.S. at 284, 126 S. Ct. 1752. The Court pointed out that 42 U.S.C. § 1396p (with exceptions not relevant here) bars states "from placing liens against, or seeking recovery of benefits paid from, a Medicaid recipient." Id. at 283, 126 S. Ct. 1752. "Read literally and in isolation, the anti-lien prohibition contained in § 1396p(a) would appear to bar even a lien on that portion of the settlement proceeds that represents payments for medical care." Id. at 284, 126 S. Ct. 1752. The Court concluded that the reimbursement allowed by 42 U.S.C. § 1396a constitutes an exception to the general prohibition of liens against Medicaid recipients. Id. As applied against settlement proceeds, the Court held, that exception allows only a lien that "encumbers proceeds designated as payments for medical care." Id. Beyond that, the Court held, the anti-lien provision "precludes attachment or encumbrance of the remainder of the settlement." Id.
¶ 16 AHCCCS argues that Ahlborn allowed for the possibility of a lien based not on payments made by a Medicaid plan but on billed medical expenses incurred by the Medicaid recipient. It points to the Court's description of the issue in that case as "whether [the state] can lay claim to more than the portion of Ahlborn's settlement that represents medical expenses." Id. at 280, 126 S. Ct. 1752. From this, AHCCCS argues that the Court intended to permit a lien against a settlement of up to the amount of the settlement that represents total billed medical expenses, rather than some lower number represented by actual Medicaid payments.
¶ 17 Although the Court did not address the issue, we take from its emphasis on the anti-lien provision the general rule that a state plan may recover from a victim's tort settlement no more than the portion of the settlement attributable to payments the plan has made on behalf of the victim. The Court recognized that a typical tort settlement may include not only amounts representing medical costs, but also lost wages and other forms of damage. Id. at 280, 126 S. Ct. 1752. Given the Court's refusal to permit the state *1109 plan in that case to recover from the other components of the settlement, we conclude federal law does not allow a state Medicaid plan to enforce its lien against any portion of a tort settlement not attributable to the plan's actual payments.
¶ 18 AHCCCS argues that limiting its lien in such fashion allows a Medicaid recipient an unfair windfall the amount of the settlement that represents billed medical expenses in excess of AHCCCS's actual payments. Any "windfall" is a consequence of the collateral source rule, however, and may exist whenever the victim of a tort receives a judgment or negotiates a settlement that includes a component for medical expenses. See Lopez, 212 Ariz. at 206-07, ¶ 25, 129 P.3d at 495; Restatement (Second) of Torts § 920A (1979) cmt. b. Under this rule, a tort victim arguably is entitled to recover two sums relating to her medical expenses-the amounts actually paid (by the victim, her insurer or, as in this case, a government payor) and the amounts billed but not paid because medical providers have agreed to accept less in payment. We take Ahlborn's warning that 42 U.S.C. § 1396p(a) bars any lien beyond "proceeds designated as payments for medical care," 547 U.S. at 284, 126 S. Ct. 1752, to mean that a Medicaid lien may be enforced only against the portion of a settlement attributable to payments the state plan has made on behalf of the victim.[7]
¶ 19 AHCCCS argues that while the collateral source rule justifiably may favor an innocent victim over a tortfeasor, the same logic does not justify favoring the victim over a government payor.
¶ 20 In addressing this contention, we first note that Arizona's collateral source rule allows a victim whose medical expenses are paid by a government payor to seek recovery of those expenses from a tortfeasor. Lopez, 212 Ariz. at 206-07, ¶ 25, 129 P.3d at 495; see Restatement (Second) of Torts § 920A (1979) cmt. b ("If the benefit was a gift to the plaintiff from a third party or established for him by law, he should not be deprived of the advantage that it confers. The law does not differentiate between the nature of the benefits, so long as they did not come from the defendant or a person acting for him."); id. cmt. c(4) (Social Security and other welfare benefits are subject to collateral source rule).
¶ 21 Nevertheless, the Arizona legislature narrowed the benefit AHCCCS members may receive from the collateral source rule when it complied with the federal directive by enacting A.R.S. § 36-2915. As we have said, that statute creates in AHCCCS a right to a lien "for the charges . . . for which [AHCCCS] is responsible." Thus, although the collateral source rule would allow an injured person to keep for herself whatever she recovers in a judgment or settlement for medical expenses paid by her private insurer, the same is not true when those medical expenses are paid by AHCCCS. Compare Allstate Ins. Co. v. Druke, 118 Ariz. 301, 304, 576 P.2d 489, 492 (1978) (private insurer may not recover from insured's tort recovery for medical expenses incurred on behalf of insured), with A.R.S. § 36-2915. But the limitation the legislature created in § 36-2915 only applies to amounts that AHCCCS pays on behalf of a plan member, see supra ¶ 14; it does not go so far as to include billed medical expenses that AHCCCS has not paid. To the extent that state law affects the issue posed in this appeal, we decline to expand the legislature's limitation on the collateral source rule to allow AHCCCS a greater share of the benefit the rule reserves for a tort victim in the usual case.
¶ 22 AHCCCS argues In re Matey, 147 Idaho 604, 213 P.3d 389 (2009), supports its claimed lien. The Medicaid recipient in that case settled her personal injury claim for just six percent of its full value. Id. at 391 n. 4. At the time of the settlement, Medicaid had *1110 paid $60,752 in medical expenses; according to the court, other "past medical expenses paid" totaled $345,562. Id. An Idaho statute directed that the state plan "shall have priority to any amount received from a third party or entity which can reasonably be construed to compensate the recipient for the occurrence giving rise to the need for medical assistance." Id. at 393. Enforcing that statute, the court accepted the state's contention that it was entitled to be reimbursed from any settlement amounts designated for medical expenses, past or future. In holding that the federal anti-lien provision did not prevent the state from recovering funds allocated to other medical expenses, the court remarked that "the Supreme Court specifically stated that damages received for medical care did not constitute property subject to the anti-lien provisions." Id. at 394 (citing Ahlborn, 547 U.S. at 284, 126 S. Ct. 1752).[8]
¶ 23 But the Supreme Court's precise statement was that "the exception carved out by §§ 1396a(25) and 1396(a) is limited to payments for medical care." Ahlborn, 547 U.S. at 284-85, 126 S. Ct. 1752 (emphasis added). The Ahlborn court's decision to limit the lien exception to that portion of a settlement allocated to medical payments supports our conclusion in these cases that AHCCCS's lien may not extend beyond those amounts. In any event, at issue in Matey were settlement amounts representing paid medical expenses, not, as here, components of a settlement attributable to billed but not paid medical expenses.
¶ 24 AHCCCS's reliance on Smith v. Agency for Health Care Administration, 24 So. 3d 590 (Fla.Dist.Ct.App.2009), likewise is misplaced. The court in that case allowed reimbursement of $122,783.87, the full amount of the state plan's payments, from a settlement of $2.2 million because the tort victim did not show that the medical expense portion of her settlement was less than what the state plan paid. Id. at 592. In a footnote, the court posed a hypothetical case in which the Florida plan would be able to recover the entire portion of a settlement attributable to medical expenses, even in excess of payments actually incurred. Id. at 592 n. 1. We are not persuaded by the Florida court's suggestion because unlike in Arizona, a tort victim in Florida may not recover damages for medical expenses beyond those a provider has negotiated with Medicaid to accept in full payment. See Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547, 549 (Fla.Dist.Ct. App.2003) (citing Fla. Stat. Ann. § 768.76(1) (2003)).
¶ 25 Finally, AHCCCS argues that pursuant to 42 U.S.C. § 1396k(b), when a state Medicaid plan sues to collect payments from a third party for medical expenses, it is entitled to reimburse itself fully before remitting the remainder to the tort victim. But § 1396k is not at issue here. That provision requires states to require Medicaid recipients to assign their rights to recover "payment for medical care from any third party." 42 U.S.C. § 1396k(a)(1)(A). In these consolidated cases, AHCCCS is not enforcing the victims' rights by way of any assignment; rather than sue the tortfeasors in the names of the tort victims, it chose instead to enforce its lien rights against settlements the tort victims negotiated for themselves. Compare A.R.S. § 36-2915 (AHCCCS lien rights) with A.R.S. § 12-962 (2003) (State's right to recover from tortfeasor the "reasonable value" of the "medical care and treatment to a person who is injured").[9] In any event, the Supreme Court held in Ahlborn that even under the federal assignment statute, "the State's assigned rights extend only to recovery of payments for medical care." 547 U.S. at 281-82, 126 S. Ct. 1752 (emphasis added).
D. Resolution of These Cases.
¶ 26 Having held that AHCCCS may enforce its lien rights only against that portion of a tort settlement attributable to its payments *1111 on behalf of the victim, we must determine the applicability of that rule to these cases.
¶ 27 AHCCCS directs us to Russell v. Agency for Health Care Administration, 23 So. 3d 1266 (Fla.Dist.Ct.App.2010), which allowed a state Medicaid plan to recover the full amount of medical costs it paid even though the tort victim's settlement was only one-tenth of the full value of her damages. Id. at 1267-68. As here, the Medicaid recipient in that case argued the state should be entitled to recover only a tenth of its lien, citing Ahlborn. Id. The Florida court observed that Ahlborn ultimately approved but did not require the formula to which the parties there stipulated. Id. at 1268. Noting the victim had negotiated her settlement "against the backdrop" of a Florida statute that required Medicaid to be reimbursed up to 50 percent of the total settlement, the court concluded the state plan should be fully reimbursed from the settlement. Id. at 1269 (citing Ahlborn, 547 U.S. at 272, 126 S. Ct. 1752); see also McMillian v. Stroud, 166 Cal. App. 4th 692, 83 Cal. Rptr. 3d 261, 269-70 (2008) (affirming order fully reimbursing state Medicaid plan from settlement that represented a tenth of full damages; in violation of state law, tort victim had failed to notify state plan of settlement; victim should bear burden of proving allocation of settlement proceeds because he had exclusive access to information about settlement negotiations).
¶ 28 In the cases before us, however, AHCCCS does not argue that the settlements disproportionately undervalued the medical payments AHCCCS made on behalf of Lundy and Flynn. Its only argument, which we have rejected, is that it should be reimbursed from settlement amounts representing billed medical expenses for which neither it nor the tort victims are liable. Under the circumstances, we cannot conclude the superior court erred in presuming that the settlements in these cases should be attributed proportionately to their various components. In Lundy's case, the court concluded that because the settlement represented 24 percent of the value of her case, AHCCCS was entitled to recover 24 percent of what it paid toward her medical expenses, and in Flynn's case, 40 percent. See Lima v. Vouis, 174 Cal. App. 4th 242, 94 Cal. Rptr. 3d 183, 195-97 (2009) (application of Ahlborn requires "past medical expenses [to be] distinguished in the settlement from other damages on the basis of a rational approach"; suggesting that when settlement is found to be reasonable, "a fair approach" to allocation is to conclude that recovery for past medical expenses was received in same proportion that settlement bore to total claimed damages).
¶ 29 When the proper allocation of the settlement amount to the damage component represented by AHCCCS payments is disputed, the better course is to seek the intervention of the court. See Ahlborn, 547 U.S. at 288 n. 18, 126 S. Ct. 1752; Price v. Wolford, 608 F.3d 698, 707 (10th Cir.2010) (suggesting evidence sufficient to prove allocation). Because AHCCCS did not challenge the allocation in either of these cases, however, we adopt the superior court's presumption that the settlements in these cases include the same proportion of AHCCCS's payments as the settlements bear to Lundy's and Flynn's total claimed damages.
E. AHCCCS Did Not Abuse Its Discretion in Refusing to Reduce Its Lien Against the Lundy Settlement.
¶ 30 Southwest argues on cross-appeal that the director of AHCCCS abused his discretion by not eliminating the agency's lien against the Lundy settlement pursuant to A.R.S. § 36-2915(H) and (I). These provisions require AHCCCS to consider compromising its lien based on "[t]he nature and extent of the patient's injury or illness," available "insurance or other sources of indemnity," and "[a]ny other factor relevant for a fair equitable settlement under the circumstances of a particular case." AHCCCS is required to compromise a claim "if, after considering the factors . . ., the compromise provides a settlement of the claim that is fair and equitable." A.R.S. § 36-2915(H).
¶ 31 We will reverse the director's refusal to compromise AHCCCS's claim only if "it is arbitrary, capricious, or an abuse of discretion." Thompson v. Ariz. Dep't of Econ. *1112 Sec., 127 Ariz. 293, 294, 619 P.2d 1070, 1071 (App.1980). Although Lundy's injuries are extensive, it is undisputed that AHCCCS likely will pay her future medical costs for the remainder of her life. Under the circumstances, we cannot conclude the director abused his discretion in refusing to compromise the AHCCCS lien.
CONCLUSION
¶ 32 For the reasons stated, we hold that AHCCCS's lien rights pursuant to A.R.S. § 36-2915 are limited to that portion of a tort settlement that represents recovery of medical expenses actually paid by AHCCCS. AHCCCS does not dispute that in such circumstances, its lien should be reduced by a proportionate amount to account for litigation expenses. Accordingly, on the records presented, we affirm the superior court's orders. We grant Flynn's request for reasonable attorney's fees pursuant to A.R.S. § 12-348(A)(2) (2003) and grant Flynn and Southwest their costs on appeal contingent on compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCURRING: DONN KESSLER, Presiding Judge and SHELDON H. WEISBERG, Judge.
NOTES
[1] Hospitals and other medical providers frequently negotiate with government programs and private medical insurers to accept lower amounts in satisfaction of their billed charges. See Banner Health v. Med. Sav. Ins. Co., 216 Ariz. 146, 150, ¶ 14, 163 P.3d 1096, 1100 (App.2007); Lopez v. Safeway Stores, Inc., 212 Ariz. 198, 202, ¶ 12, 129 P.3d 487, 491 (App.2006).
[2] Thus, if a hypothetical victim had settled with the tortfeasor for one-half of her total claimed damages, the superior court's formula would allow AHCCCS to recover from the settlement only one-half of the amount it had paid on behalf of the victim.
[3] Absent material revisions, we cite a statute's current version.
[4] The stipulation in Ahlborn resulted in the equivalency that the superior court applied in these cases: The plaintiff settled her case for roughly one-sixth of her full damages, and the state Medicaid plan was reimbursed for roughly one-sixth of what it had paid for her care. 547 U.S. at 269, 274, 281, 126 S. Ct. 1752.
[5] AHCCCS does not dispute Flynn's assertion that his total damages (calculated pursuant to the collateral source rule) were some $250,000.
[6] Applying the Ahlborn formula in the Lundy case would result in a Medicaid lien of $35,221 (i.e., $842,696/$3,500,000 = 24% times $268,000 = $64,320, reduced to account for litigation expenses). By contrast, using the same formula it employed in the Flynn case, AHCCCS asserts it is entitled to a lien of $115,000 against Lundy's recovery.
[7] According to the record, a hospital filed a lien against the settlement negotiated in Lundy's case but eventually agreed to release the lien. Our record does not disclose the extent, if any, to which Lundy's settlement included compensation for any amount she herself may have paid toward her medical bills. The parties' briefs seem to assume that AHCCCS was the only payor in both of these consolidated cases, and our analysis presumes that to be true. Cf. Ahlborn, 547 U.S. at 282, 126 S. Ct. 1752 (discussing state plans' rights under 42 U.S.C. § 1396k(b), which allows a plan to take an assignment of recipient's right to sue for "damages representing payment for medical care").
[8] AHCCCS does not argue in these cases that it is entitled to recover from any portion of these settlements that may have been designated for future medical expenses, and we express no opinion on the merit of such an argument.
[9] As the Supreme Court observed, it is not clear that the Medicaid assignment statute, 42 U.S.C. § 1396k, "applies in cases where the State does not actively participate in the litigation." 547 U.S. at 281, 126 S. Ct. 1752. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2631366/ | 249 P.3d 182 (2011)
170 Wash.2d 1028
VOLLSTEDT
v.
NIKIC.
No. 85253-7.
Supreme Court of Washington, Department I.
March 1, 2011.
Disposition for Petition for Review Denied. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2630207/ | 231 P.3d 761 (2010)
2010 OK CIV APP 35
ACES A/C SUPPLY NORTH, a Texas Corporation, Plaintiff/Appellant,
v.
SECURITY BANK, an Oklahoma Banking Corporation, Defendant/Appellee, and
Terrell Heating & Air Conditioning, Inc., an Oklahoma Corporation, and Brent Terrell, Defendants.
No. 107,346. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.
Court of Civil Appeals of Oklahoma, Division No. 4.
January 13, 2010.
*762 Joe M. Fears, Richard D. White, Jr., Barber & Bartz, Tulsa, OK, for Plaintiff/Appellant.
Barry G. Reynolds, Kelley G. Loud, Titus Hillis Reynolds Love, Dickman & McCalmon, Tulsa, OK, for Defendant/Appellee.
KEITH RAPP, Judge.
¶ 1 The trial court plaintiff, Aces A/C Supply North (Aces), appeals an order granting summary judgment to the defendant, Security Bank (Security). The trial court entered an order pursuant to 12 O.S.2001, § 994. This appeal proceeds under the accelerated appeal provisions of Okla. Sup. Ct. R. 1.36, 12 O.S. Supp.2009, ch. 15, app.
BACKGROUND
¶ 2 The defendant, Terrell Heating & Air Conditioning, Inc. (THAC), is owned and operated by the defendant, Brent Terrell (Terrell). THAC is an air conditioning subcontractor. THAC purchased supplies and equipment from Aces on account.
¶ 3 THAC had a subcontract for a project (Gemstar Project) where Gemstar Construction and Development, Inc. (Gemstar) served as the project construction manager. THAC purchased from Aces the supplies and equipment for the Gemstar Project. THAC had other projects and an account balance with Aces for purchases unrelated to the Gemstar Project.
¶ 4 In order to be paid, THAC had to submit to Gemstar documented applications for payment. In addition, Aces and THAC had an agreement whereby such payments would be made by joint checks, payable to Aces and THAC.[1]
¶ 5 This case involves three of those joint payments. THAC submitted three payment applications: one for $92,753.25, one for $79,478.15, and one for $33,445.44. Gemstar made these three payments, totaling $334,454.44, between April 5, 2007 and May 25, 2007, by check jointly payable to THAC and Aces.
¶ 6 These payments exceeded the total of the underlying invoices from Aces included in the payment application document. Thus, Terrell and his bookkeeper discussed depositing the first check into THAC's operating account at Security and using the excess funds for another obligation.
¶ 7 The three Gemstar payments were deposited into THAC's operating account at Security and without an authorized endorsement by Aces.[2] Security credited the account and forwarded the checks to Gemstar's bank, *763 which paid the checks. Aces learned of these facts when Gemstar requested a lien release.
¶ 8 THAC subsequently sent checks to Aces from its operating account. These checks identified the invoices being paid, which were the invoices attributed to the Gemstar Project and were the ones included in the three Gemstar payments involved here.
¶ 9 In its summary judgment motion, Security states that from April 2007 to October 2007, THAC paid Aces at least $430,000.00 from its operating account. Security further states as a fact that "at times" THAC directed the application of payments to specific invoices as reflected on the checks. On June 15, 2007, THAC paid $59,178.10, with direction to apply the payment to a specific Gemstar Project invoice.[3] Other than the $59,178.10 payment, Security's motion for summary judgment does not itemize and correlate THAC's payments so as to compare them with the three checks in question and the Aces's invoices associated with those three payments. Security argues that the $430,000.00 paid by THAC, along with the $59,178.10 payment, covers the three checks.
¶ 10 Thus, Security maintains that Aces received all that it was due from the three checks in question. Security argues that it is exonerated from all liability to Aces for receiving and processing the three checks without an authorized endorsement because of these THAC payments.
¶ 11 Aces does not dispute that THAC paid it at least $430,000.00, or that THAC directed application in some cases. However, Aces states that not all of the $430,000.00 paid involved the Gemstar Project because there were other projects. Aces also states that the directions were ineffective for two reasons.[4]
¶ 12 First, Aces asserts that its policy was to apply all payments to the oldest balance first, irrespective of THAC's designation of payment. Aces's representative testified that this policy was communicated to THAC.[5] Second, Aces asserts that the directions were unclear or directed payment to invoices already paid or credited.
¶ 13 Next, Aces states that THAC's balance due to Aces exceeds the three Gemstar checks after credit for all of THAC's payments. Aces argues that Security is therefore liable because Aces has not been paid the money from the checks. Alternatively, Aces argues that it was damaged by Security's acceptance of the checks because, otherwise, Aces would have received the entire proceeds, thereby reducing THAC's balance owed by the amount that the three Gemstar payments exceeded the total of the specific Aces's invoices attributed to those payments.[6]
¶ 14 The trial court agreed with Security, finding that THAC's payments totally replaced the amount owed Aces from the three misdirected checks. After making extensive findings, the trial court ruled that Aces had received the amount it was due from the Gemstar checks, notwithstanding the diversion of the checks, and this fact relieved Security of liability. The trial court further found that Aces had not shown either that THAC would have paid the excess funds to its balance or that THAC's balance would have been reduced had the Gemstar checks not been diverted.
¶ 15 The trial court granted summary judgment to Security. Aces appeals.
STANDARD OF REVIEW
¶ 16 The appellate standard of review in summary judgment is de novo. Kirkpatrick v. Chrysler Corp., 1996 OK 136, ¶ 2, 920 P.2d 122, 124. The evidentiary materials will be examined to determine what facts are material and whether there is a substantial controversy *764 as to one material fact. Sperling v. Marler, 1998 OK 81, 963 P.2d 577; Malson v. Palmer Broadcasting Group, 1997 OK 42, 936 P.2d 940. Summary judgment is proper only if the record reveals uncontroverted material facts failing to support any legitimate inference in favor of the nonmoving party. N.C. Corff Partnership, Ltd. v. OXY USA, Inc., 1996 OK CIV APP 92, 929 P.2d 288.
¶ 17 One who defends against a claim and who does not bear the burden of proof is not required to negate the plaintiff's claims or theories in order to prevail on motion for summary judgment. When, a defendant moves for summary judgment without relying upon an affirmative defense, the defendant must show that: 1) no substantial factual controversy exists as to at least one fact essential to plaintiff's theory of the cause of action; and, 2) the fact is in defendant's favor. Once a defendant has introduced evidentiary materials to establish these points, the plaintiff then has the burden of showing that evidence is available which justifies a trial of the issue. Akin v. Missouri Pacific Railroad Co., 1998 OK 102, ¶ 8, 977 P.2d 1040, 1044; Stephens v. Yamaha Motor Co., Ltd. Japan, 1981 OK 42, ¶ 11, 627 P.2d 439, 441; Runyon v. Reid, 1973 OK 25, ¶¶ 12-13, 510 P.2d 943, 946. On the other hand, when the defendant relies upon an affirmative defense then the defendant, as the party with the burden of proof, must meet the same standards as a plaintiff movant. Akin, 1998 OK 102 at ¶ 9, 977 P.2d at 1044.
ANALYSIS AND REVIEW
¶ 18 A bank avoids liability for honoring a check with an unauthorized endorsement if the bank can prove that the intended payee received the proceeds of the check. O'Petro Energy Corp. v. Canadian St. Bank, 1992 OK 126, ¶ 21, 837 P.2d 1391, 1395; Clemens v. First Nat'l Bank of Berryville, 286 Ark. 290, 692 S.W.2d 222, 225 (1985); Coplin v. Maryland Trust Co., 222 Md. 119, 159 A.2d 356, 357-58 (1960); Stella v. Dean Witter Reynolds, Inc., 241 N.J.Super. 55, 574 A.2d 468, 475 (N.J.Super.Ct.App.Div.1990); see American Liberty Ins. Co. v. AmSouth Bank, 825 So. 2d 786, 797 (Ala.2002) (Lyons, J., concurring); Hays v. Friendly Nat'l Bank, 1979 OK CIV APP 9, 591 P.2d 1274 (no liability for honoring non-indorsed instrument absent harm.)[7]
¶ 19 Here, it is undisputed that THAC paid, through directed payments, sums equal to or in excess of the Aces's invoices attributed to the three Gemstar checks. Security's summary judgment singles out the element of damages and submits evidentiary materials to show that Aces cannot prove damages because it received its money. The burden then shifted to Aces to show that a question of fact exists and it failed to meet that burden on this point. Thus, the trial court correctly entered summary judgment.
¶ 20 Also, the trial court correctly awarded summary judgment against Aces's claim of damages premised upon a reduction of THAC's balance had the three checks been paid over. As the trial court observed, Aces has not demonstrated the fact of a reduction of the account balance. For summary judgment purposes, the fact that the total of the three Gemstar checks might exceed the Aces's associated invoices may be inferred from THAC's motivation for diverting the checks.[8]
¶ 21 However, this does not suffice because Aces has not demonstrated any right to receive the excess proceeds. Although there is a rebuttable presumption that the measure of liability is the amount of the checks, Aces's recovery may not exceed the amount of its interest in the checks. 12A O.S.2001, § 3-420(b); Saxon Mortgage Services v. Harrison, 186 Md.App. 228, 973 A.2d 841 (2009); Stapleton v. First Sec. Bank, 207 Mont. 248, 675 P.2d 83 (1983); see Uniform Commercial *765 Code Comment (1), 12A O.S.2001, § 3-420. All that Aces has shown is that it had a legal interest, or right, in the three checks to the extent that they covered applicable Aces's invoices for which sums have been remitted.
¶ 22 Therefore, the judgment of the trial court granting summary judgment to Security National Bank is affirmed.
¶ 23 AFFIRMED.
GABBARD, P.J., WISEMAN, V.C.J. (sitting by designation), concur.
NOTES
[1] "The joint check rule reflects a widespread practice in the construction industry that allows owners and general contractors to protect themselves from lien foreclosure by materialmen whom subcontractors have failed to pay. The issuance of a check payable jointly to the subcontractor and the materialman enables the materialman to withhold endorsement until he is assured that the subcontractor's account with him is or will be satisfied from the proceeds of the check. This may be accomplished in various ways, including the use of gentlemen's agreements or more formal escrow arrangements. The practice of issuing joint checks protects both the owner/general contractor and the materialman, because each has an interest in ensuring that the materialman is paid." Brown Wholesale Elec. Co. v. Beztak of Scottsdale, Inc., 163 Ariz. 340, 788 P.2d 73, 76 (1990).
[2] It is undisputed that the Aces's endorsement was not an authorized signature. Seven other checks were properly endorsed and Aces received those checks. The record does not show whether any or all of those seven checks were for an amount over that which was due to Aces for the invoices covered by these payments. There is a dispute between THAC and Aces as to the balance THAC owes Aces. The summary judgment given to Security did not resolve that separate dispute, but the trial court authorized this appeal.
[3] Record, Tab 6, p. 4.
[4] Record, Tab 7, p. 4.
[5] The written credit terms between THAC and Aces does not include this policy. Aces did not show that this policy had been communicated to Security or Gemstar.
[6] Aces did not demonstrate that it had perfected any lien on the excess proceeds or had an assignment of such excess proceeds. The joint check agreement does not reference any lien or assignment.
[7] The trial court cited additional authorities. This Court perceives no legal distinction between the facts where, as here, the issue is between a payee and an intermediate bank versus the issue being between the drawer and its bank. When the intended payee receives the money it is due, albeit from another source, there is no damage or harm attributed to honoring the instrument without an authorized endorsement.
[8] Terrell and his bookkeeper discussed using the excess to pay other obligations. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441856/ | 2 A.3d 990 (2010)
123 Conn.App. 625
STATE of Connecticut
v.
Michael KENDALL.
No. 30861.
Appellate Court of Connecticut.
Argued April 5, 2010.
Decided September 14, 2010.
*998 James B. Streeto, assistant public defender, for the appellant (defendant).
Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Donna Mambrino, senior assistant state's attorney, and Sandra L. Tullius, former senior assistant state's attorney, for the appellee (state).
BEACH, FLYNN and SCHALLER, Js.
BEACH, J.
The defendant, Michael Kendall, appeals from the judgment of conviction, following a jury trial, of one count of capital felony in violation of General Statutes § 53a-54b(7), one count of capital felony in violation of General Statutes § 53a-54b(8), three counts of murder in violation of General Statutes § 53a-54a and one count of arson in the first degree in violation of General Statutes § 53a-111(a)(1). The defendant was sentenced to a term of life imprisonment without the possibility of release. This appeal, originally filed in our Supreme Court, was transferred to this court by the Supreme Court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. On appeal, the defendant *999 claims that (1) he was deprived of his right to a fair trial as a result of numerous instances of prosecutorial impropriety, (2) the trial court abused its discretion in denying his motion for a competency evaluation, (3) the court improperly denied his Batson[1] challenges, (4) the court erred in allowing into evidence certain hearsay statements of a deceased person under the spontaneous utterance exception to the hearsay rule, (5) the court erred in instructing the jury on the credibility of witnesses and (6) the court erred in refusing to charge the jury on diminished capacity. We affirm the judgment of the trial court.
The following facts, which the jury reasonably could have found, and procedural history are relevant. In December, 2003, the defendant lived at 42 Great Hill Road in East Hartford with his wife, Ramona Kendall and their two daughters, Kayla Kendall, who was sixteen years old, and Alexis Kendall, who was twelve years old. Ramona Kendall's father, Adam Alston, also was staying at the residence. The Kendalls' home was part of a row of six connected apartments. Katrea Anglin and Kiana Alston, daughters from Ramona Kendall's prior marriage, lived in a nearby apartment at 46 Great Hill Road.
The defendant and Ramona Kendall had a contentious relationship during their nineteen year marriage. During that time the defendant physically and emotionally abused her. He told friends that if Ramona Kendall ever left him, he would "take her out" and that "sometimes you feel like you want to kill your whole family." In 2003, Ramona Kendall pursued divorce proceedings against the defendant. As part of those proceedings, the court granted her exclusive use of the premises at 42 Great Hill Road, the defendant was ordered to leave the premises by December 13, 2003, and the children were to remain in the house. The defendant was upset with the court order and wanted to take his daughters with him.
On December 13, 2003, between 4 and 5 a.m., Anglin was awakened from sleep on the couch in her sister's apartment at 46 Great Hill Road by someone's banging on the front door. Kiana Alston, who had been asleep upstairs, also heard the banging and ran down the stairs to the front door. When Anglin opened the door, she saw Adam Alston wearing a thermal undershirt, unzipped pants and no shoes, despite the cold weather. He was shaking, crying and very upset. He stated: "Oh, Lord, oh, Lord, Michael done shot Mona and the kids and caught them on fire." Anglin immediately dialed 911.
Upon arriving at the scene, James Sopelak, a firefighter with the East Hartford fire department, observed flames coming from a second floor window of 42 Great Hill Road. After entering the apartment, Sopelak found a girl lying at the top of a landing on the stairs. Not knowing whether the girl was alive, Sopelak carried her outside and placed her on the lawn. John Colli, a fire department engine company captain, checked for a pulse and determined that the girl, later identified as Alexis Kendall, was deceased. Firefighters Daniel Wasilewski and Richard Stepp then entered the apartment. Upon searching the front bedroom, Wasilewski discovered two more victims, later identified as Ramona Kendall and Kayla Kendall. Wasilewski discovered one victim by the bedroom door and the other near the front window of the bedroom. He concluded that neither victim was "viable" and left both bodies where he had found them.
Michael Laraia, an employee of the state fire marshal's office, investigated the cause *1000 and origin of the fire. On the basis of his investigation, he determined that the fire had two separate origins: the landing on the staircase where the first victim had been found and the front bedroom where the next two victims had been found. Laraia concluded that the cause was of "deliberate human hand and design." Forensic pathologists from the chief medical examiner's office performed autopsies, the results of which revealed that the cause of death of each victim was a gunshot wound to the head. The medical examiners opined that each victim died before the fire started. They based that determination on the lack of soot in the victims' airways and the lack of carbon monoxide in their blood.
Thereafter, the police attempted to locate the defendant. On January 12, 2004, Michael Allen, a Hartford police officer, responded to a call reporting that the defendant had been seen near Asylum Avenue. Allen found the defendant on a staircase inside an apartment building on Asylum Avenue. At the time of his arrest, the defendant had a fully loaded .38 caliber revolver in his left front pants pocket. The bullets recovered from the bodies of the victims were found to have been fired from the handgun found in the defendant's possession at the time of his arrest. Also found on the defendant were newspaper obituaries for all three victims.
The defendant thereafter was charged, by way of long form information, with one count of capital felony in violation of § 53a-54b(7) for the murder of two or more persons at the same time or in the course of a single transaction, one count of capital felony in violation of § 53a-54b(8) for the murder of a person under sixteen years of age, three counts of murder and one count of arson in the first degree.
The defendant testified at trial. He denied killing the victims. According to the defendant, he was awakened on the morning in question by popping or crunching sounds. When he got up to investigate the sounds, he saw that the apartment was on fire and noticed a person lying at the top of a flight of stairs. He testified that he saw a gun, which he previously had found in his deceased uncle's clothing, at the bottom of the stairs. He took the gun and fled.
Following a jury trial, the defendant was convicted of all counts in the information. During the penalty phase, the jury found that the state had not proven an aggravating factor beyond a reasonable doubt. The defendant thereafter was sentenced to a total effective sentence of life imprisonment without the possibility of release for the capital felony charges[2] and a consecutive twenty-five year sentence on the arson charge. This appeal followed.
I
The defendant first claims that he was deprived of his right to a fair trial as a result of numerous instances of prosecutorial impropriety. We disagree.
To the extent that the defendant did not object to the improprieties at trial, he claims on appeal that such a failure to object does not preclude review of his claim. As our Supreme Court has recognized, "a claim of prosecutorial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535-40, 529 A.2d *1001 653 (1987)." State v. Gould, 290 Conn. 70, 77, 961 A.2d 975 (2009).[3]
"[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial...." (Internal quotation marks omitted.) State v. Angel T., 292 Conn. 262, 275, 973 A.2d 1207 (2009). We will address the defendant's claims of prosecutorial impropriety in turn.
A
The defendant claims that throughout the trial, commencing with jury selection, the state attempted to inflame the passions of the jury by injecting emotion into the case. We are not persuaded.
"A prosecutor may not appeal to the emotions, passions and prejudices of the jurors.... [S]uch appeals should be avoided because they have the effect of diverting the jury's attention from [its] duty to decide the case on the evidence.... When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal." (Citation omitted; internal quotation marks omitted.) State v. Mills, 57 Conn.App. 202, 209, 748 A.2d 318, cert. denied, 253 Conn. 914, 915, 754 A.2d 163 (2000).
1
The defendant argues that the prosecutor committed impropriety during jury selection when she commenced her introduction of the state's witnesses with an exegesis of what she alleged the facts of the case to be, which practice the court curtailed. The prosecutor's comments, however, were not improper. During jury selection, the prosecutor presented the basic alleged facts of the case to venirepersons in order for them to determine whether they had personal knowledge of the case.[4] These comments did not constitute an improper appeal to the passions or emotions of the potential jurors. The tone *1002 of the comments appears to be quite neutral. Prior to the state's addressing the next panel of venirepersons, the court reviewed the state's factual introduction, which the state had shortened, and did not find it objectionable.
2
The defendant also argues that the prosecutor committed impropriety when she "introduced, without objection, considerable irrelevant details of the victims' lives and background...." The defendant's claim that the introduction of these details was inappropriate is purely evidentiary. The defendant did not object to the admission of the evidence at issue. "Although our Supreme Court has held that unpreserved claims of prosecutorial impropriety are to be reviewed under the Williams factors, that rule does not pertain to mere evidentiary claims masquerading as constitutional violations.... Evidentiary claims do not merit review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because they are not of constitutional magnitude.... [A] defendant may not transform an unpreserved evidentiary claim into one of prosecutorial impropriety to obtain review of the claim." (Citations omitted; internal quotation marks omitted.) State v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007). We therefore decline to review this unpreserved evidentiary claim.
3
The defendant next claims that the prosecutor committed impropriety by seeking to introduce graphic photographs of the victims' charred bodies and graphic autopsy photographs. We are not persuaded.
In his appellate brief, the defendant draws our attention to the admission of the following exhibits. The state sought to admit into evidence a photograph of the body of Alexis Kendall after her body had been placed outside the apartment. The state argued that the photograph was relevant to establish chain of custody. After defense counsel agreed to stipulate as to the chain of custody concerning a piece of that victim's clothing, which had tested positive for accelerant, the state argued that the photograph was also relevant to establish one of the elements of the crimes, namely, intent. The court overruled the defendant's objection, and thereafter the photograph was admitted into evidence as a full exhibit. The state subsequently introduced into evidence, as a full exhibit, a photograph depicting the charred bedroom where two bodies were found; only one body was visible in the photograph. The state also introduced, over the defendant's objection, autopsy photographs of the victims.
The defendant's claim is purely evidentiary. Although gruesome in nature, the photographs were relevant to the state's case. The defendant acknowledges in his brief that the court did not admit the most graphic photographs or ones that were repetitive. The defendant has not persuaded us that it was an abuse of the court's discretion to admit the photographs or that by seeking to admit these photographs into evidence, the prosecutor engaged in impropriety. See State v. Boykin, 83 Conn.App. 832, 839, 851 A.2d 384, cert. denied, 271 Conn. 911, 859 A.2d 570 (2004).
4
The defendant also argued that the state made several statements during closing argument that improperly aroused the passions and emotions of the jury. We are not persuaded.
*1003 In addressing this claim we first note that "a prosecutor may argue the state's case forcefully, [but] such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.... Nonetheless, closing arguments often have a rough and tumble quality about them, [and] some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument." (Citation omitted; internal quotation marks omitted.) State v. Cromety, supra, 102 Conn.App. at 433-34, 925 A.2d 1133.
First, the defendant argues that the prosecutor's statement that "[t]his twelve year old girl was on her hands and knees looking at her father when he pulled that trigger" was an emotional statement that was unjustified by the evidence in the case. This statement, however, finds support in the evidence. The evidence elicited at trial revealed that Adam Alston told Anglin that he saw one of his granddaughters "crawling on the floor" and saw the defendant light her on fire and shoot her. Adam Alston also heard one of his granddaughters say, "oh, daddy." We cannot say that the prosecutor's comment regarding Alexis Kendall's physical posture moments prior to her death impermissibly strayed beyond the evidence or the inferences the jury reasonably could have drawn from it.
Second, the defendant refers to the prosecutor's comments that the defendant set the victims' bodies on fire in order to make sure they were dead and that he "wasn't satisfied by merely killing [the victims], he had to obliterate them." In context, the prosecutor may have been suggesting that the defendant burned the victims because he wanted to cover up the crime and that he possessed the requisite intent to commit the crimes charged, or the prosecutor may have been suggesting that he was so angry that killing the victims was not enough. The prosecutor, however, was not appealing solely to the emotions of the jurors, but, rather, she was making an argument that had a reasonable basis in the evidence.
Third, the defendant argues that the prosecutor repeatedly referred to the victims as "the girls the defendant claimed to love so much" and made other highly charged references. The prosecutor's comment regarding the victims was a reaction to the defendant's testimony that he loved his daughters and that he did not kill them. As an advocate, the prosecutor permissibly may "employ forceful arguments based upon the facts in evidence and the reasonable inferences drawn from such facts." (Internal quotation marks omitted.) State v. Tate, 85 Conn.App. 365, 374, 857 A.2d 394, cert. denied, 272 Conn. 901, 863 A.2d 696 (2004). We cannot say that the prosecutor's argument strayed impermissibly beyond the evidence or the inferences that the jury reasonably could have drawn from it.
B
The defendant's next claim of prosecutorial impropriety is that the prosecutor denigrated him and the defense case through the improper use of sarcasm during cross-examination of the defendant. The defendant claims that, as a result, he was deprived of his right to a fair trial. We are not persuaded.
"[A] prosecutor may not seek to sway the jury by unfair appeals to emotion and prejudice ... and we have *1004 recognized that the excessive use of sarcasm may improperly influence a jury.... A prosecutor's frequent and gratuitous use of sarcasm can [call on] the jurors' feelings of disdain, and likely sen[d] them the message that the use of sarcasm, rather than reasoned and moral judgment, as a method of argument [is] permissible and appropriate for them to use.... A prosecutor should conduct his examination of a witness fairly, objectively and with decorum, and he should not ridicule or browbeat a witness.... Moreover, a prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses.... Finally ... a prosecutor is not permitted to pose a question that implies the existence of a factual predicate when the prosecutor knows that no such factual basis exists." (Citations omitted; internal quotation marks omitted.) State v. Salamon, 287 Conn. 509, 564, 949 A.2d 1092 (2008). "[N]eedless sarcasm [is] inconsistent with [a] state's attorney's professional responsibility...." (Internal quotation marks omitted.) State v. Rizzo, 266 Conn. 171, 261, 833 A.2d 363 (2003), quoting Gore v. State, 719 So. 2d 1197, 1201 (1998), aff'd after remand, 784 So. 2d 418 (Fla.2001).
The defendant cites several instances of alleged sarcasm by the prosecutor. He argues that the prosecutor's sarcastic tone took the form of "you claim" questions, sarcastic repetitions of his answers and sarcastic exclamations of "lo and behold," "[g]ood luck for you," "just happened," "well, what way did you get up," "somehow that gun ends up," "just standing there placidly" and "daughters that you love so much." We do not determine whether any of these sarcastic remarks taken in isolation would have been improper. Rather, we are mindful of the likely cumulative effect that the prosecutor's repeated and excessive use of sarcasm had on the jury. See State v. Rizzo, supra, at 261, 833 A.2d 363. "[I]t is improper for a prosecutor to express his or her opinion, directly or indirectly, as to a defendant's guilt." State v. Moore, 65 Conn.App. 717, 724, 783 A.2d 1100, cert. denied, 258 Conn. 940, 786 A.2d 427 (2001).[5]
The transcript[6] does not demonstrate necessarily that the prosecutor's use of the phrase "you claim" and repetitions of the defendant's answers were sarcastic. There is little indication that the state was doing anything other than confirming or clarifying the defendant's responses. See State v. Chance, 236 Conn. 31, 58, 671 A.2d 323 (1996) ("[c]ross-examination is the principal means by which the credibility of witnesses and the truth of their testimony is tested" [internal quotation marks omitted]).
*1005 The prosecutor's remarks "lo and behold," "[g]ood luck for you," and "just happened," occurred in the context of questioning the defendant regarding how he came to possess a loaded .38 caliber handgun. The defendant testified that he took clothes from the apartment of his deceased uncle and a handgun was inside the clothes. The prosecutor then asked: "So, you said I'll take the clothes and lo and behold, a gun just happened to be in them." (Emphasis added.) After the defendant answered affirmatively, the prosecutor then stated: "Good luck for you. And then you kept the gun." (Emphasis added.) The defendant again answered affirmatively. The defendant testified that he discovered the gun when it fell from the clothes onto the floor of his car. He stated that he found a box of bullets in the pocket of a suit that he had taken. The prosecutor then asked: "And the gun just happened to fall out of one of those pockets." (Emphasis added.) The defendant answered affirmatively. It is not entirely clear from the transcript that the prosecutor was using these phrases in a sarcastic tone. See State v. Rizzo, supra, 266 Conn. at 261, 833 A.2d 363 (noting sarcasm when transcript reveals phrases that could only have been said in sarcastic tones). It seems likely, however, that the "lo and behold" and "just happened" comments were stated in a sarcastic tone.
The state's remark, "[w]ell, what way did you get up," does not appear from the transcript to be sarcastic. The defendant testified that on the morning of December 13, 2003, he was awakened by crunching sounds. The prosecutor asked: "And you got up to investigate what those crunching sounds were." The defendant responded: "In a way, yes." Given the defendant's answer, the prosecutor asked: "In a way. Well, what way did you get up, sir?" (Emphasis added.) In asking the question, the prosecutor was seeking to have the defendant clarify his previous answer that he got up "[i]n a way." There is no indication that the prosecutor's remark was sarcastic.
The transcript also does not reveal that the state's remark, "somehow that gun ends up," was sarcastic. On cross-examination, the defendant testified that upon leaving the apartment he grabbed and took with him a gun, which he had not seen for a couple of days. He did not know whether it had been used. The prosecutor then asked: "And somehow that gun ends up with its shell casings removed in your home at 42 Great Hill Road on the morning of December 13 ... fully loaded, with one extra bullet on you one month later. Isn't that right, sir?" (Emphasis added.) The defendant responded: "Yes." The prosecutor's remark was based on the evidence that the murder weapon was found, fully loaded, on the defendant at the time of his arrest, and the remark was relevant to his credibility regarding his statement that he did not know whether the weapon had been used. There is no indication from the transcript that this remark was sarcastic. See State v. Coney, 266 Conn. 787, 812, 835 A.2d 977 (2003) (credibility of defendant who testifies subject to scrutiny and close examination).
The defendant next takes issue with the prosecutor's comment that he was "just standing there placidly." On cross-examination, the defendant denied having struggled with the police during his arrest. He testified that an officer was trying to handcuff him but was unable to do so, not because he was struggling with the officer but, rather, because the officer had pushed him. The prosecutor then asked: "Were you just standing there placidly, put your hands behind your back and got handcuffed, sir?" (Emphasis added.) The defendant responded: "Well, he grabbed me, *1006 and I guess by me yanking, he pushed me down the stairs." The prosecutor, by asking whether the defendant was standing there placidly, was challenging the defendant's testimony that he was unable to be handcuffed because the officer had pushed him and not because the defendant was struggling with the officer.
We last turn to the prosecutor's comment regarding the defendant loving his daughters. On cross-examination, the defendant testified that after he woke up, he saw someone lying on the floor at the top of the stairs. The prosecutor then asked: "You didn't look to see if that was one of these daughters that you loved so much?" (Emphasis added.) This phrase may have been somewhat sarcastic, though it also had a foundation in the evidence.
Of the defendant's claimed instances of misconduct, only a limited number, as detailed previously in this subpart, amount to likely use of sarcasm, specifically the prosecutor's comment about the defendant's loving his daughters and the prosecutor's "lo and behold" and "just happened" comments. Even if we were to assume that these comments were said in a sarcastic tone, the comments were isolated and limited. Accordingly, the state's use of this rhetorical device three times did not rise to the level of impropriety. "[O]ur Supreme Court has recognized that repetitive and excessive use of sarcasm is one method of improperly swaying the fact finder.... The use of sarcasm only once or twice does not, however, constitute such an appeal." (Citation omitted; internal quotation marks omitted.) State v. Glenn, 97 Conn.App. 719, 732, 906 A.2d 705 (2006) (state's limited use of sarcasm not improper), cert. denied, 281 Conn. 913, 916 A.2d 55 (2007); see also State v. Boyd, 89 Conn.App. 1, 41, 872 A.2d 477 (same), cert. denied, 275 Conn. 921, 883 A.2d 1247 (2005); cf. State v. Spiegelmann, 81 Conn. App. 441, 457-58, 840 A.2d 69 (improper to inject sarcasm in cross-examination), cert. denied, 268 Conn. 921, 846 A.2d 882 (2004). "Although we neither encourage nor condone the use of sarcasm, we also recognize that not every use of rhetorical language or device is improper.... The occasional use of rhetorical devices is simply fair argument." (Internal quotation marks omitted.) State v. John M., 87 Conn.App. 301, 315, 865 A.2d 450 (2005), aff'd, 285 Conn. 822, 942 A.2d 323 (2008). The prosecutor's limited use of sarcasm was not improper.[7]
*1007 C
The defendant next claims that the prosecutor committed impropriety by making disparaging remarks directed toward defense counsel, the defendant and the defense case during rebuttal closing arguments.
1
The defendant claims that the prosecutor committed impropriety when she "repeatedly accused" defense counsel of "taking the jury as far away from the evidence as possible" and "trying to take [the jury] away from the evidence that really matters." (Internal quotation marks omitted.)
"It is improper for a prosecutor to denigrate the function of defense counsel.... [T]he prosecutor is expected to refrain from impugning, directly or through implication, the integrity or institutional role of defense counsel.... It is proper for the prosecutor, however, to comment on matters that are directly related to the evidence and material to the issue of the defendant's guilt." (Citation omitted; internal quotation marks omitted.) State v. Antonio A., 90 Conn.App. 286, 302, 878 A.2d 358, cert. denied, 275 Conn. 926, 883 A.2d 1246 (2005), cert. denied, 546 U.S. 1189, 126 S. Ct. 1373, 164 L. Ed. 2d 81 (2006).
According to State v. Antonio A., supra, 90 Conn.App. at 303, 878 A.2d 358, it is not improper for the state to distinguish the defendant's version of the facts from the state's version of the facts. In this case, the prosecutor, following the defendant's closing argument, was highlighting the difference between her version and the defendant's version of the facts and the inferences properly drawn from those facts. The prosecutor's remarks did not impugn the integrity or institutional role of defense counsel and, thus, did not constitute impropriety.
2
The defendant next claims that the prosecutor denigrated him when she commented that he was "try[ing] to manipulate the outcome of this trial" and tailoring his testimony to fit the evidence.[8] We are not persuaded.
The prosecutor did not, as the defendant contends, denigrate the defendant during closing argument. It is perfectly proper to try to defeat an argument. In closing argument, the defendant highlighted the difference between the state's version of the facts and his version. The prosecutor commented that the defendant heard the evidence during trial and tailored his testimony accordingly. It is not improper for a prosecutor to call the jury's attention to the fact that the defendant had the opportunity to hear all the other witnesses testify and had the ability to tailor his testimony accordingly. State v. Perez, 78 Conn.App. 610, 628, 828 A.2d 626 (2003), cert. denied, 271 Conn. 901, 859 A.2d 565 (2004); see also State v. Sells, 82 Conn.App. 332, 341, 844 A.2d 235 ("[i]n a case that essentially reduces to which of two conflicting stories is true, it may be reasonable to infer, and hence to argue *1008 that one of the two sides is lying" [internal quotation marks omitted]), cert. denied, 270 Conn. 911, 853 A.2d 529 (2004).
3
The defendant also claims that the prosecutor denigrated the defense case by characterizing it, during rebuttal closing argument, as "ludicrous" and "incredulous [sic]." We are not persuaded.
To put the prosecutor's challenged remarks in context, the state commented during rebuttal argument in pertinent part: "And then the defendant himself wants you to believe this ludicrous scenario. He sees this flickering of fire at the top of the stairs. He sees a person [lying] on the floor, who coincidentally happens to be where Alexis [Kendall] is found. He doesn't even look to see who that person is. He doesn't even look to see where his wife is. He does look to see where [Adam Alston] is. He doesn't look to see where these two daughters are that he claims to have loved so much. He just runs away from the burning building.... And then this defendant wants you to believe the most incredulous statement of all. He has the obituaries [for the victims] out of the Hartford Courant on his person when he's caught on January 12, 2004, and then he claims, even though he's got those obituaries, he doesn't know they're dead." (Emphasis added.)
The prosecutor's use of rhetorical comments was not improper. The prosecutor was highlighting the inconsistencies in the defendant's testimonyfirst, that he loved his daughters but then did not try to save them from the fire, and second, that he was unaware that his wife and daughters were dead despite having on his person their obituaries. When read in context, the challenged remarks fell within the bounds of proper commentary on the defendant's theory of defense. See State v. Jenkins, 70 Conn.App. 515, 537-38, 800 A.2d 1200, cert. denied, 261 Conn. 927, 806 A.2d 1062 (2002); see also State v. Long, 293 Conn. 31, 38, 975 A.2d 660 (2009) (prosecutor should not be put in rhetorical straight-jacket).
D
The defendant next claims that the prosecutor committed impropriety by vouching for the credibility of witnesses. He focuses his argument on the prosecutor's statement during closing argument that there was "no credible evidence" that he had his personal belongings ready to leave on December 13, 2003. The defendant argues that because he had testified that he had his personal belongings ready to leave on that date, the prosecutor's comment impliedly suggested that his testimony was not credible.
"[I]t is improper for a prosecuting attorney to express his or her own opinion, directly or indirectly, as to the credibility of witnesses.... Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor's special position.... The prosecutor, however, is not barred from commenting on the evidence presented at trial or urging the jury to draw reasonable inferences from the evidence that support the state's theory of the case, including the defendant's guilt. It is not improper for the prosecutor to comment [on] the evidence presented at trial and to argue the inferences that the [jury] might draw therefrom.... We must give the jury the credit of being able to differentiate between argument on the evidence and attempts to persuade [it] to draw inferences in the state's favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand." (Citations omitted; internal quotation *1009 marks omitted.) State v. Long, supra, 293 Conn. at 38, 975 A.2d 660.
The prosecutor's comment was not improper. The prosecutor implicitly was arguing that the evidence demonstrated that the defendant had not taken steps to pack his personal belongings, despite his testimony to the contrary. "[A] prosecutor may not interject personal opinion about the credibility or truthfulness of a witness, [but] he may comment on the credibility of the witness as long as the comment reflects reasonable inferences from the evidence adduced at trial." (Internal quotation marks omitted.) State v. Luster, 279 Conn. 414, 440, 902 A.2d 636 (2006); see also State v. Wickes, 72 Conn. App. 380, 389, 805 A.2d 142 (prosecutor entitled to argue that evidence shows defendant's testimony not credible), cert. denied, 262 Conn. 914, 811 A.2d 1294 (2002); cf. State v. Cruz, 71 Conn.App. 190, 206, 800 A.2d 1243 (improper for prosecutor to express personal opinion regarding credibility of witnesses), cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002). There was evidence to support the inference that the defendant's testimony in this regard was not credible. The evidence revealed the following: Shirley Pripstein, Ramona Kendall's divorce attorney, testified that she filed a motion for her client's exclusive use of the premises at 42 Great Hill Road, and that her motion was granted by the court, Gruendel, J., and was to take effect on December 13, 2003. Anglin testified that despite the fact that the defendant was to leave the home on December 13, 2003, she was unaware of any steps made by the defendant to vacate the home. Kiana Alston testified similarly.
The defendant has failed to cite any acts of prosecutorial misconduct. Accordingly, his claim that misconduct deprived him of a fair trial fails.
II
The defendant next claims that the court abused its discretion in denying his motion for a competency evaluation. He argues that the court should have ordered a competency evaluation or, at a minimum, conducted a more extensive colloquy. We are not persuaded.
The following additional facts are relevant. On January 2, 2007, the day evidence was to start, defense counsel filed a motion for a competency evaluation. In support of the motion, defense counsel argued that the evidence of the defendant's guilt was overwhelming; the best possible outcome for the defendant was life imprisonment; the state would recommend life imprisonment if the defendant took legal responsibility for the victims' deaths;[9] defense counsel had extensive discussions with the defendant regarding the advisability of taking legal responsibility for the victims' deaths; from the perspective of defense counsel, the defendant is incapable of rationally dealing with his situation as it relates to either accepting legal responsibility or presenting an appropriate defense to the charges.
The court addressed the motion prior to the start of evidence. The court observed that the defendant was "looking a little surprised that ... somebody thinks he's not competent." The court further observed that the defendant looked "as always, intelligent and competent to me, but I'm not an expert." The court thereafter canvassed the defendant as follows:
"The Court: Do you understand what we're doing here today?
*1010 "[The Defendant]: My understanding is that he want me to plead
"The Court: Yes, but don't tell me the deal.
"[The Defendant]: Okay.
"The Court: And you don't want to plead.
"[The Defendant]: No.
"The Court: Okay. Do you understand that the state has the burden of proof to prove guilt, if it can, by evidence beyond a reasonable doubt?
"[The Defendant]: Yes.
"The Court: And you want your trial.
"[The Defendant]: Yes.
"The Court: Okay. Do you have a sense as to what it is that my job is?
"[The Defendant]: Yeah.
"The Court: What is it?
"[The Defendant]: Your job is, you the judge, so
"The Court: I know, but say a little more.
"[The Defendant]: Well, you the one to oversee what's going on here in this court
"The Court: Okay.
"[The Defendant]:do I get a fair trial.
"The Court: Very good. Okay. The motion for an order to evaluate the defendant's competence is denied."
When asked if he had anything further to say, defense counsel noted that the court's inquiry did not address the reasons why defense counsel believed that the defendant was not competent. Defense counsel argued that the defendant believes in God and believes that he could not have committed the crimes because he loves his daughters. Further, he argued that the defendant believes that divine intervention can occur at trial so as to produce evidence of his innocence. Defense counsel noted that in his opinion, the defendant's belief in divine intervention was a "delusion...."
The court noted that the test for competency is whether the accused is able to understand the nature of the proceedings against him, participate meaningfully in his own defense and cooperate with counsel. The court stated: "I've ordered a lot of competency evaluations, and I've talked to a lot of people whose competency was clearly questionable, but [the defendant] is not one of those people." The court reiterated that the motion was denied.
"As a matter of constitutional law, it is undisputed that the guilty plea and subsequent conviction of an accused person who is not legally competent to stand trial violates the due process of law guaranteed by the state and federal constitutions.... This constitutional mandate is codified in our state law by [General Statutes] § 54-56d(a), which provides that [a] defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.... General Statutes § 54-56d(b), however, posits a presumption in favor of a defendant's competence." (Citations omitted; internal quotation marks omitted.) State v. Monk, 88 Conn.App. 543, 548, 869 A.2d 1281 (2005). Every criminal defendant is presumed to be competent. General Statutes § 54-56d(b). During the course of the criminal proceedings, however, if it appears that the defendant is not competent, either party or the court may request an examination to determine the defendant's competency. General Statutes § 54-56d(c).
*1011 "The provisions of § 54-56d state that if it appears that the defendant is not competent, and if the trial court finds that a request for a competency evaluation is justified, the court must order a competency examination. We have interpreted this standard as requiring a competency evaluation any time a reasonable doubt is raised regarding the defendant's competency.... To establish such reasonable doubt, the defendant must present substantial evidence, not merely allegations, that he is incompetent.... Substantial evidence is a term of art. Evidence encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is substantial if it raises a reasonable doubt about the defendant's competency...." (Citations omitted; internal quotation marks omitted.) State v. Ross, 269 Conn. 213, 272, 849 A.2d 648 (2004).
We review the court's ruling on a motion for a competency evaluation under the abuse of discretion standard. State v. Collazo, 113 Conn.App. 651, 662, 967 A.2d 597, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009). "In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action.... Our review of a trial court's exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did." (Internal quotation marks omitted.) State v. Williams, 65 Conn.App. 59, 84, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001).
The court did not abuse its discretion in denying the defendant's motion for a competency evaluation because it was reasonable for it to have concluded that the defendant had failed to raise a reasonable doubt about his competency. After defense counsel brought his § 54-56d motion, the court canvassed the defendant about his understanding of the proceedings against him and his understanding of the plea bargain. The canvass revealed that the defendant understood that defense counsel wanted him to plead guilty but that the defendant wanted a jury trial.[10] It also revealed that he understood that the state had the burden of proving his guilt beyond a reasonable doubt. The court was not required to conduct a more extensive colloquy.[11] The *1012 canvass supported a finding of competency. "Connecticut appellate courts have repeatedly held that a trial court may not be required to order a competency examination when the defendant's canvass supports a finding of competency." State v. Silva, 65 Conn.App. 234, 249, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001).
The defendant argues, however, that the court's canvass failed to address the defendant's firmly held "delusion" that divine intervention would occur during trial and that it would come to light that he was innocent. He contends that the court should have ordered a competency evaluation because the defendant's "delusion" raised a reasonable doubt regarding his competency. Following the canvass, defense counsel discussed with the court the issue that the defendant believed that divine intervention would occur during trial. The court noted that it was defense counsel's "opinion" that the defendant's belief in divine intervention was a "delusion...." The court further noted that it has ordered many competency evaluations and "talked to a lot of people whose competency was clearly questionable, but [the defendant] is not one of those people." The court apparently determined that the defendant's belief in divine intervention did not create a reasonable doubt as to the defendant's competency. In this case, such a determination cannot be said to be an abuse of discretion. See Higgenbottom v. United States, 923 A.2d 891, 897 n. 4 (D.C.2007) (defendant's belief in divine intervention consistent with that of many competent persons).[12]
The defendant draws attention to the fact that approximately two weeks prior to his making the motion, the court was made aware of his mental health history. On December 19, 2006, the court and counsel engaged in a discussion regarding one of the defendant's proposed mitigating factors: "an underlying mental health condition that cannot be diagnosed at this time." During this discussion, defense counsel noted that the defendant had been seen by mental health professionals within the department of correction. The defendant did not raise this issue when arguing his motion for a competency hearing or offer any additional insight into any underlying mental health condition. Even if true, the fact that the defendant had seen mental health professionals but has not been diagnosed does not necessarily raise a reasonable doubt as to the defendant's competency. See State v. Ross, supra, 269 Conn. at 272, 849 A.2d 648 (to establish reasonable doubt defendant must present substantial evidence, not merely allegations of incompetence). Indeed, the suggestion that the defendant had seen a mental health professional and the concomitant failure to produce evidence from the professional do not raise a reasonable doubt regarding competence *1013 to stand trial. The defendant has not met his burden of showing that, at the time of the denial of his motion for a competency examination, the court had before it specific factual allegations that, if true, would constitute substantial evidence of mental impairment. See State v. Johnson, 22 Conn.App. 477, 488, 578 A.2d 1085 (discussing defendant's burden), cert. denied, 216 Conn. 817, 580 A.2d 63 (1990). The record reveals no abuse of the court's discretion.
III
The defendant next claims that the court improperly denied his claim that the state, during jury selection, exercised two peremptory challenges in a racially discriminatory manner. He argues that the court improperly permitted the state to exercise two of its peremptory challenges to remove two African-American venirepersons, G.C. and B.D.,[13] from the jury, thereby depriving him of a fair trial in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). We are not persuaded.
We begin by setting forth the relevant legal principles and the standard of review. "In Batson [v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) ] the United States Supreme Court recognized that a claim of purposeful racial discrimination on the part of the prosecution in selecting a jury raises constitutional questions of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.... The court concluded that [a]lthough a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his [or her] view concerning the outcome of the case to be tried ... the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race....
"Under Connecticut law, [o]nce a [party] asserts a Batson claim, the [opposing party] must advance a neutral explanation for the venireperson's removal.... The [party asserting the Batson claim] is then afforded the opportunity to demonstrate that the [opposing party's] articulated reasons are insufficient or pretextual.... [T]he trial court then [has] the duty to determine if the [party asserting the Batson claim] has established purposeful discrimination.... The [party asserting the Batson claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination....
"We have identified several specific factors that may indicate that [a party's removal] of a venireperson through a peremptory challenge was ... motivated [by race or gender]. These include, but are not limited to: (1)[t]he reasons given for the challenge were not related to the trial of the case ... (2) the [party exercising the peremptory strike] failed to question the challenged juror or only questioned him or her in a perfunctory manner... (3) prospective jurors of one race [or gender] were asked a question to elicit a particular response that was not asked of the other jurors ... (4) persons with the same or similar characteristics but not the same race [or gender] as the challenged juror were not struck ... (5) the [party exercising the peremptory strike] advanced *1014 an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically... and (6) the [party exercising the peremptory strike] used a disproportionate number of peremptory challenges to exclude members of one race [or gender]....
"In assessing the reasons proffered in support of the use of a peremptory challenge ... [a]n explanation ... need not ... be pigeon-holed as wholly acceptable or wholly unacceptable ... and even where the acceptability of a particular explanation is doubtful, the inquiry is not at an end. In deciding the ultimate issue of discriminatory intent, the judicial officer is entitled to assess each explanation in light of all the other evidence relevant to prosecutorial intent.... As with most inquiries into state of mind, the ultimate determination depends on an aggregate assessment of all the circumstances....
"Finally, the trial court's decision on the question of discriminatory intent represents a finding of fact that will necessarily turn on the court's evaluation of the demeanor and credibility of the attorney of the party exercising the peremptory challenge.... Accordingly, a trial court's determination that there has or has not been intentional discrimination is afforded great deference and will not be disturbed unless it is clearly erroneous.... A finding of fact is clearly erroneous when there is no evidence in the record to support it... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) State v. Holloway, 116 Conn.App. 818, 822-24, 977 A.2d 750, cert. denied, 294 Conn. 902, 982 A.2d 646 (2009).
A
During voir dire, B.D. revealed that she had a bachelor's degree in chemistry, lived with her mother and had worked at a CVS pharmacy for approximately seven years. She also stated that her boyfriend recently had been arrested and was in jail for possessing a revolver, which crime she believed he did not commit. She further revealed that her cousin was murdered in North Carolina when he was seventeen. The murderer was never found.
The state exercised a peremptory challenge excusing B.D. The defendant objected. The court recognized that B.D. had indicated on her questionnaire that she was African-American. The state then gave the following reasons in support of its use of a peremptory challenge as to B.D.: she was only twenty-three years of age and demonstrated an extreme lack of maturity; her boy-friend had a pending criminal charge against him involving the use of a weapon; and, the state added, the murder of her cousin in North Carolina remained unsolved. Defense counsel argued that despite her age, B.D. had worked for the past seven years and had substantial career plans, and that although the issue with B.D.'s boyfriend could have formed a neutral reason for the state to excuse her, B.D. believed that she could keep that factor separate from the case. The court found the state's reasons for its peremptory challenge to be race neutral. The court noted that the difference in the maturity level of B.D. as compared to similarly aged jurors was "startling."
We conclude that the court's rejection of the defendant's Batson challenge was not clearly erroneous. One of the reasons given by the state was lack of maturity. B.D. was twenty-three years old. Despite being a college graduate, she had worked *1015 at only one place and lived at home with her mother. Lack of maturity is a race neutral reason. State v. McDougal, 241 Conn. 502, 512-20, 699 A.2d 872 (1997) (peremptory challenges based on youth permissible); see also State v. Hodge, 248 Conn. 207, 257, 726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999). A second reason given by the state was that B.D.'s boyfriend had a pending criminal case against him, which involved possession of a weapon. B.D. believed her boyfriend to be innocent. "Courts consistently have upheld the use of peremptory challenges to excuse a venireperson with a close relative who has been prosecuted because of the real possibility that the venireperson may harbor resentment against prosecuting authorities generally." (Internal quotation marks omitted.) State v. Jackson, 95 Conn.App. 400, 410, 896 A.2d 137, cert. denied, 279 Conn. 904, 901 A.2d 1226 (2006). Another reason given by the state was the unsolved murder of B.D.'s cousin. This was a race neutral ground for excusing her. "Prosecutors commonly seek to exclude from juries all individuals, whatever their race, who have had negative encounters with the police because they fear that such people will be biased against the government." (Internal quotation marks omitted.) State v. Kalican, 110 Conn.App. 743, 759, 955 A.2d 1261, cert. denied, 289 Conn. 949, 960 A.2d 1038 (2008). These reasons individually and collectively support the state's peremptory challenge of B.D.
In further support of his claim that the state discriminated against B.D. because of her race, the defendant argues that persons with similar characteristics but not the same race as B.D. were not struck. In response, the state argues, citing State v. Hodge, supra, 248 Conn. at 207, 726 A.2d 531, that the defendant's argument fails because the failure "to strike a white juror who shares some traits with a struck black juror does not itself automatically prove the existence of discrimination." (Internal quotation marks omitted.) Id., at 237, 726 A.2d 531. In his reply brief, the defendant argues that the state's reliance on this holding in Hodge is misplaced because the recent United States Supreme Court case of Snyder v. Louisiana, 552 U.S. 472, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008),[14] overrules cases such as State v. Hodge, supra, at 207, 726 A.2d 531.
In Snyder,[15] the court held that the prosecutor's proffered explanation for *1016 striking the venireperson at issue scheduling conflictswas suspicious because serving on a jury would not have interfered seriously with the venireperson's other obligations and was implausible because the prosecutor accepted white jurors who disclosed conflicting obligations that appeared to have been at least as serious as those of the venireperson at issue. Snyder v. Louisiana, supra, 552 U.S. at 479-86, 128 S. Ct. 1203. The court stated that "[t]he prosecution's proffer of this pretextual explanation naturally gives rise to an inference of discriminatory intent." Id., at 485, 128 S. Ct. 1203. The court further noted that in light of the fact that the trial judge made no findings regarding the prosecutor's other proffered explanationthe venireperson's nervousnessthe record did not show that the prosecution would have preemptively challenged the venireperson at issue based on his nervousness alone. Id. This case is not at odds with our Supreme Court's holding in State v. Hodge, supra, 248 Conn. at 237, 726 A.2d 531, that the failure "to strike a white juror who shares some traits with a struck black juror does not itself automatically prove the existence of discrimination." (Internal quotation marks omitted.)
In the present case, the defendant argues that the state's discriminatory intent is demonstrated by the fact that the state had accepted venireperson C.R., a non-black juror, despite her having been arrested. C.R. indicated that it was a misdemeanor offense for which she received accelerated rehabilitation. C.R.'s offense was not of a serious nature, but the offense involving B.D.'s boyfriend involved a weapons charge, of which B.D. believed that her boyfriend was innocent. In light of the fact that the defendant was charged with three fatal shootings, it would be reasonable for the prosecutor to have been concerned that the charges against B.D.'s boyfriend could affect her ability to be a fair and impartial juror. The defendant also argues that the state's contention that B.D. lacked maturity is pretextual because the state accepted as jurors J.B. and E.G., who were twenty-six and twenty-three years old, respectively. The court compared B.D.'s maturity level with the twenty-six and twenty-three year old jurors and noted that the difference in maturity level was "startling."
Accordingly, we conclude that the court's rejection of the defendant's Batson challenge was not clearly erroneous. "[T]he fact-bound determination concerning the propriety of the use of peremptory challenges is a matter that necessarily must be entrusted to the sound judgment of the trial court, which, unlike an appellate court, can observe the attorney and the venireperson and assess the attorney's proffered reasons in light of all the relevant circumstances." State v. Hodge, supra, 248 Conn. at 261, 726 A.2d 531. Here, *1017 the court determined that the reasons offered by the prosecutor for striking B.D. were race neutral. We conclude that the court properly determined that the state had not exercised its peremptory challenge in a racially discriminatory manner.
B
During the state's questioning of G.C. on voir dire, G.C. revealed that he had worked with the department of correction (department) for approximately twelve years as a correction officer and had worked with death row inmates. He declined to discuss why he left the department, citing a nondisclosure agreement. G.C. also revealed that his niece and three of his brothers have been incarcerated. The state twice asked G.C. if he would be able to follow the court's instructions even if he were to disagree with them. Both times, G.C. answered that he "would have to go with [his] feelings." When the state asked if he would hold the state to a burden of proof that is higher than the beyond a reasonable doubt standard because this is a capital felony case, G.C. responded affirmatively. In both instances, the court rehabilitated G.C.
Following defense counsel's questioning of G.C., the state exercised a peremptory challenge to remove G.C. Defense counsel raised a Batson challenge. The state then articulated, inter alia, the following reasons in support of its peremptory challenge: G.C. was a correction officer who had worked with death row inmates but was not permitted to discuss why he left because of a nondisclosure agreement; three of G.C.'s brothers and his niece had been incarcerated; and G.C., prior to rehabilitation, indicated that he would not necessarily follow the court's instructions and that he would hold the state to a higher burden of proof than legally required. In response, defense counsel argued that the state spent more time questioning G.C. about his personal life experiences than it had with other jurors it had accepted and that G.C.'s responses were reasonable.
The court found that the state's reasons for exercising the peremptory challenge were "completely race neutral." The court noted that the reason for the length of the state's voir dire of G.C. was due to the court's rehabilitating him and G.C.'s "voluminous answers." The court observed that the state's questions were the same as it had used for other venirepersons. The court further noted that G.C.'s nondisclosure agreement with the department of correction was "remarkable." The court summarized that G.C. was a correctional officer who left after twelve years with a nondisclosure agreement regarding the reasons for the departure, has three siblings and a niece incarcerated and initially gave troublesome answers to questions regarding the burden of proof and following the court's instructions. The court concluded that "[a]ll of those reasons are race neutral ... and I find that ... there is no racial motive to the challenge that has been exercised."
We conclude that the court's rejection of the defendant's Batson challenge was not clearly erroneous. G.C. had worked for the department for twelve years and had worked with death row inmates during that time. Due to a nondisclosure agreement, which the court found "remarkable," G.C. refused to reveal any details regarding his work as a correctional officer or his reasons for leaving. This reason alone was a constitutionally acceptable ground for his excusal. "[P]eremptory challenges based on employment reasons have been upheld." (Internal quotation marks omitted.) State v. Collazo, 115 Conn.App. 752, 764, 974 A.2d 729 (2009), cert. denied, 294 Conn. 929, 986 A.2d 1057 (2010). Additionally, the state *1018 reasoned that G.C. had three brothers and a niece who had been incarcerated. "[C]ourts consistently have upheld the use of peremptory challenges to excuse a venireperson with a close relative who has been prosecuted because of the real possibility that the venireperson may harbor resentment against the prosecuting authorities generally." (Internal quotation marks omitted.) State v. Kalican, supra, 110 Conn.App. at 759, 955 A.2d 1261. Last, when the state asked if he would follow the court's instructions even if he disagreed with them, G.C. indicated that he "would have to go with [his] feelings." He also indicated that he would hold the state to a higher burden of proof because this was a capital felony case and would require absolute certainty. Although the court rehabilitated G.C. on both issues, "a prosecutor is not bound to accept the venireperson's reassurances but, rather, is entitled to rely on his or her own experience, judgment and intuition in such matters.... [E]quivocation with respect to holding the state to a higher burden of proof than proof beyond a reasonable doubt ... [is a] valid, nondiscriminatory [reason] for excusing [the venireperson]." (Citation omitted; internal quotation marks omitted.) State v. Acosta, 119 Conn.App. 174, 186, 988 A.2d 305, cert. denied, 295 Conn. 923, 991 A.2d 568 (2010).
The defendant further argues that the state's discriminatory intent is demonstrated by the fact that the state has accepted venirepersons who had former or pending charges against themselves or relatives. As to the latter, the fact that the state accepted other venirepersons who were not black and who shared a similar trait with G.C., does not automatically prove the existence of discrimination. See State v. Hodge, supra, 248 Conn. at 237, 726 A.2d 531 (failure to strike white juror who shares some traits with struck black juror does not automatically prove existence of discrimination). Furthermore, the state also accepted an alternate venireperson, who in the opinion of the court was African-American, who had been arrested for breach of the peace and who had a brother who had been arrested for rape. This undercuts the defendant's claim of purposeful discrimination. See id., at 260, 726 A.2d 531.
The defendant also argues that state's discriminatory intent is demonstrated by the fact that the state accepted at least two venirepersons who had connections to the department: one whose husband and son had worked for the department and another whose husband worked for the department. G.C. was unique in that despite having worked for the department for twelve years and having worked with death row inmates, he was unable to reveal any details regarding his work as a correctional officer or his reasons for leaving due to a nondisclosure agreement. The court noted that such an agreement was "remarkable."
We conclude that the court's rejection of the defendant's Batson claim with respect to G.C. was not clearly erroneous.
IV
The defendant next claims that the court erred in admitting into evidence certain hearsay statements of a deceased person under the spontaneous utterance exception to the hearsay rule. We disagree.
Anglin testified during direct examination by the state that Adam Alston, her maternal grandfather, was "banging" on her door in the early morning hours of December 13, 2003. She observed that Adam Alston was wearing a thermal undershirt, unzipped pants and no shoes, despite the cold weather. She further observed that he "was shaking ... crying *1019 [and] seemed very upset, in shock. He wasn't himself." When the state asked Anglin what Adam Alston then said to her, defense counsel objected, and the jury was excused. Anglin noted, when asked by the court, that Adam Alston had repeated the phrase: "Oh, Lord, oh, Lord, Michael done shot Mona and the kids and caught them on fire." Adam Alston died prior to trial. The state sought to introduce the statements Adam Alston had made shortly after the homicides under the spontaneous utterance exception to the hearsay rule. Defense counsel argued that the spontaneous utterance exception did not apply because the state had failed to establish that Adam Alston had an opportunity to observe anything other than the aftermath of what had occurred. The state noted that Adam Alston had told Anglin that he had seen one of his granddaughters crawling on the floor and then saw the defendant light her on fire and shoot her and that he had to step over his granddaughter's burning body to come down the stairs. The court overruled the defendant's objection and concluded that it was a reasonable inference that Adam Alston had witnessed what he had reported.
Anglin thereafter testified that when Adam Alston arrived at her door, he stated: "Oh, Lord, oh, Lord, Michael done shot Mona and the kids and caught them on fire." She additionally testified that Adam Alston said that he had heard several popping sounds, saw one of his granddaughters crawling on the floor and saw the defendant set her on fire and shoot her. According to Anglin, Adam Alston said that to exit Ramona's apartment and get help, he had to climb over the burning body of one of his granddaughters.
"The excited utterance exception is well established. Hearsay statements, otherwise inadmissible, may be admitted into evidence to prove the truth of the matter asserted therein when (1) the declaration follows a startling occurrence, (2) the declaration refers to that occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant.... Whether an utterance is spontaneous and made under circumstances that would preclude contrivance and misrepresentation is a preliminary question of fact to be decided by the trial judge.... The trial court has broad discretion in making that factual determination, which will not be disturbed on appeal absent an unreasonable exercise of discretion." (Citation omitted; internal quotation marks omitted.) State v. Davis, 109 Conn.App. 187, 193, 951 A.2d 31, cert. denied, 289 Conn. 929, 958 A.2d 160 (2008); see also Conn.Code Evid. § 8-3(2). "[T]he state is not required to establish such personal observation by the declarant beyond any possible doubt. Rather, the question for the trial court is whether a reasonable inference may be drawn that the declarant had personal knowledge of the facts that are the subject of his or her statement.... Consequently, [d]irect proof of observation is not necessary; if the circumstances appear consistent with opportunity [to observe] by the declarant, the requirement is met." (Citations omitted; internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 128-29, 763 A.2d 1 (2000).
The defendant challenges the third requirement and argues that the state failed to establish that Adam Alston had the opportunity to observe the occurrence. He further argues that Adam Alston's statement to the police suggested that he had not seen the defendant shoot the victims or ignite their bodies but, rather, that *1020 he left without seeing the shootings.[16] He further notes that the medical examiner, who conducted an autopsy on the victim found in the hallway, Alexis Kendall, testified that because the victim had no soot or carbon monoxide in her lungs, the best explanation would be that the victim died before the fire was set or very rapidly afterward.
The court reasonably could have determined that the state adduced sufficient evidence to demonstrate that Adam Alston's statements logically could have resulted from his firsthand observations of the incident. According to Anglin, Adam Alston was "banging" on her door on the morning in question. He appeared disheveled with unzipped pants and without shoes and appeared very upset. He said that he had seen one of his granddaughters crawling on the floor, saw the defendant set her on fire and shoot her, and further explained that he had to climb over the burning body of one of his granddaughters to exit the apartment. A reasonable inference may be drawn that Adam Alston had personal knowledge of the facts that are the subject of his statement. See State v. Wargo, supra, 255 Conn. at 129, 763 A.2d 1. The defendant's argument that Adam Alston did not have firsthand knowledge of the events because his statements to Anglin contradict his statement to the police and the medical examiner's testimony is unavailing. The fact that his spontaneous utterances may be inconsistent with other testimony affects the weight of Adam Alston's statements, not their admissibility.[17]
The defendant additionally argues that the court improperly admitted Adam Alston's statements to Anglin because the prejudicial impact of the statements outweighs the probative value. He argues that Adam Alston's descriptions that one of the victims was on her hands and knees when the defendant first shot her and lit her on fire unnecessarily aroused the emotions of the jury particularly in light of the fact that Adam Alston was not available for cross-examination. We are not persuaded.
"[R]elevant ... evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value.... [B]ecause of the difficulties inherent in this balancing process ... every reasonable presumption should be given in favor of the trial court's ruling.... Of course, [a]ll adverse evidence is damaging to one's case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted.... *1021 [Accordingly] [t]he test for determining whether evidence is unduly prejudicial is not whether it is damaging to the [party against whom the evidence is offered] but whether it will improperly arouse the emotions of the jur[ors]." (Citations omitted; internal quotation marks omitted.) State v. Sandoval, 263 Conn. 524, 544, 821 A.2d 247 (2003); see also Conn.Code Evid. § 4-3.
Adam Alston's statements were relevant to establish the events that occurred on the night in question. He was the only living eyewitness, other than the perpetrator, after the incident occurred. The defendant was able to cross-examine Ellen Stoldt, the detective who took Adam Alston's statement, and Anglin regarding the circumstances surrounding Adam Alston's statements to them. Although we do not doubt that Adam Alston's statements were damaging to the defendant, we cannot say that that evidence was unfairly prejudicial such that the court lacked discretion to admit it.
V
The defendant, who testified at trial, claims that the court erred in instructing the jury on the credibility of witnesses by indicating that the defendant's interest in the outcome of the case could be considered in evaluating his testimony.[18] The defendant seeks review pursuant to State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823,[19] of his unpreserved claim. The defendant's claim is reviewable under Golding because the record is adequate for review and the claim is of constitutional magnitude. See State v. Mack, 197 Conn. 629, 637, 500 A.2d 1303 (1985).
"Connecticut appellate courts repeatedly have held that a court's instruction that the jury evaluate the defendant's testimony in the same manner as that of any other witness after pointing out the defendant's interest in the outcome is neither improper nor transcends the bounds of evenhandedness." State v. Mann, 119 Conn.App. 626, 637, 988 A.2d 918 (2010). "[Our Supreme Court in State v. Williams, 220 Conn. 385, 396-97, 599 A.2d 1053 (1991)], relying on its precedent in State v. Mack, [supra, 197 Conn. at 629, 500 A.2d 1303], and State v. Avcollie, 188 Conn. 626, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983), held that the trial court's reference to the defendant's interest in the outcome of the trial did not deprive him of a fair trial." State v. Elson, 116 Conn.App. 196, 221, 975 A.2d 678 (2009).
*1022 In his brief, which originally was filed in the Supreme Court prior to the case being transferred to this court, the defendant essentially seeks to have this precedent overruled on the basis of several federal and out-of-state cases. At oral argument, the defendant noted that although he was not waiving this claim, he nevertheless recognized that we, as an intermediate appellate court, are bound by the decisions of our Supreme Court and are not at liberty to contradict those decisions. See State v. Colon, 71 Conn.App. 217, 245-46, 800 A.2d 1268 ("[w]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them" [internal quotation marks omitted]), cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002). In light of Williams and its progeny, the defendant's claim fails under the third prong of Golding. It was not improper for the court to mention in its charge the defendant's interest in the outcome of the case and it did not unduly emphasize the defendant's interest. Accordingly, the defendant's claim fails under the third prong of Golding.
VI
The defendant next claims that the court erred in refusing to charge the jury on diminished capacity. We disagree.
"A fundamental element of due process is the right of a defendant charged with a crime to establish a defense.... [A] defendant is entitled to have the court present instructions to the jury relating to any theory of the defense for which there is any foundation in the evidence, even if weak or incredible.... We must consider the evidence presented at trial in the light most favorable to supporting the defendant's request to charge.... An instruction on a legally recognized theory of defense, however, is warranted only if the evidence indicates the availability of that defense.... The trial court should not submit an issue to the jury that is unsupported by the facts in evidence." (Citations omitted; internal quotation marks omitted.) State v. Adams, 225 Conn. 270, 283, 623 A.2d 42 (1993).
Following the filing of defendant's request to charge on diminished capacity, the court, at the charging conference, "decline[d] the defense request to charge on diminished capacity because there [was] no evidence of diminished capacity."
In his request to charge, the defendant did not state what evidence had been presented at trial to support his request.[20] We note that in failing to cite to any evidence in his request to charge, the defendant did not comply with Practice Book § 42-18(a), which provides in relevant part: "When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply...." To the extent that the court's decision could be construed to mean that it denied the *1023 defendant's request on this basis, it would not have been an abuse of discretion for the court to have done so.[21] See State v. Bettini, 11 Conn.App. 684, 690, 528 A.2d 1180 ("[i]n the absence of compliance with the rules of practice, the trial court is entitled to deny a request to charge"), cert. denied, 205 Conn. 804, 531 A.2d 937 (1987).
Furthermore, even if we were to review this claim on the basis of the evidence the defendant claims on appeal supports the charge, we would conclude, nonetheless, that the court did not abuse its discretion in denying the defendant's request to charge. In his appellate brief, the defendant argues that his testimony during cross-examination and redirect examination that he was out of his mind on the night in question provided sufficient foundation to warrant a charge on diminished capacity. On cross-examination the defendant testified that on the night of the fire, he saw someone lying at the top of the stairs, did not stop to identify the person, grabbed a gun and did not call for help. The prosecutor asked: "You fled, didn't you?" The defendant responded: "I ran because I was out of my mind." On redirect examination, defense counsel asked: "[C]an you say what you were thinking when you ran up the stairs of your house on the morning of December 13 [2003]?" After the court overruled the prosecutor's objection, the defendant answered: "I know I wasn't in my right mind, that's for sure." The court reasonably could have concluded that the defendant's testimony had nothing to do with his state of mind at the time of the crimes but, rather, was offered to explain his flight from the crime scene. Accordingly, the defendant's claim is without merit.[22]
The judgment is affirmed.
In this opinion SCHALLER, J., concurred.
FLYNN, J., concurring.
I concur in the result reached and that the defendant's conviction should be affirmed. There was overwhelming evidence of the defendant's guilt. This evidence is pointed out in the majority opinion and needs no repetition. Its weight under the Williams factors militates against reversal. See State v. Pereira, 72 Conn.App. 545, 563-67, 805 A.2d 787 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003).
I disagree with part I of the opinion holding that there was no impropriety. It has been said that nothing exceeds like excess. Several of the prosecutor's questions were excessively sarcastic. Injection of sarcasm into a cross-examination is improper. State v. Spiegelmann, 81 Conn. App. 441, 457, 840 A.2d 69, cert. denied, 268 Conn. 921, 846 A.2d 882 (2004). The question before the jury was whether the defendant shot his wife and two daughters and then burned their bodies, intentionally causing their death. Despite the horror of the defendant's crime, the jury's deliberation could have been better able to proceed without the mocking, caustic tone inviting *1024 ridicule that the cross-examination of the defendant took.
NOTES
[1] See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
[2] The court merged the conviction of the three counts of murder into the conviction of the two counts of capital felony.
[3] "This does not mean, however, that the absence of an objection at trial does not play a significant role in the application of the Williams factors." (Internal quotation marks omitted.) State v. Therrien, 117 Conn.App. 256, 267, 978 A.2d 556, cert. denied, 294 Conn. 913, 983 A.2d 275 (2009).
[4] The prosecutor stated in relevant part: "As far as the basic facts of this case, the state does allege that on or about December 13, 2003, [the] defendant ... resided at 42 Great Hill Road, and that's in the town of East Hartford. That area of East Hartford is also known as Mayberry Village. [The defendant] resided there with his wife, Ramona Kendall, his sixteen year old daughter, Kayla Kendall, and his twelve year old daughter, Alexis Kendall. Also staying in the Kendall home on this date was Adam Alston, who was Ramona Kendall's seventy-three year old father. He was here for a visit from South Carolina. It's alleged that the defendant ... pursuant to a court order, was to remove himself from 42 Great Hill Road on the morning of December 13, 2003. It's alleged that [at] approximately five in the morning on December 13, 2003, the defendant shot his wife, Ramona Kendall, in the head, and shot his sixteen year old and twelve year old daughters in the head, killing all three. It's further alleged that the defendant then set the apartment on fire where the three shooting victims were located. Adam Alston was able to escape the fire, and he alerted others in the row of apartments."
[5] We do not present in this case a searching analysis of why sarcasm is disfavored. In itself, it means little, and, as an advocacy tool, probably is counterproductive most of the time. Used improperly, however, it may, depending on context, convey the sense that the speaker has undisclosed knowledge of facts that render foolish the position of the person who is the object of the speaker's sarcasm; it implicitly may be presenting argument in the guise of a question; it may be injecting emotion unfairly. There may be other impermissible goals as well. We leave for another day an analysis of the underlying values served by disfavoring sarcasm.
[6] In its appellate brief, the state argues that the record was inadequate to review the defendant's claim of improper sarcasm in light of the fact that there are no rulings by the court pertaining to this issue because the defendant failed to object to the challenged remarks and because the record does not include an audible recording. In his reply brief, the defendant notes that he did provide us with an adequate record because an audible recording of the tone of the prosecutor's questions is available through the court reporter's office. In this case, the transcript provides an adequate record for our review.
[7] To the extent that the prosecutor's use of sarcasm was improper, we fail to see how the state's use of sarcasm a few times during a lengthy two week trial deprived the defendant of his right to a fair trial in light of the factors enunciated in State v. Williams, supra, 204 Conn. at 540, 529 A.2d 653, which include "the extent to which the [impropriety] was invited by defense conduct or argument ... the severity of the [impropriety] ... the frequency of the [impropriety] ... the centrality of the [impropriety] to the critical issues in the case ... the strength of the curative measures adopted ... and the strength of the state's case." (Internal quotation marks omitted.) State v. Salamon, supra, 287 Conn. at 566, 949 A.2d 1092.
With respect to the Williams factors, the state's conduct was not invited by the defense, but it was not particularly severe or frequent when viewed in the context of the lengthy trial. The defendant did not object and failed to seek curative measures. With respect to centrality, how the defendant originally obtained the gun and whether he loved his daughters was not of particularly central importance to the case. At any rate, the state's case against the defendant was strong. The defendant was not deprived of his right to a fair trial. See State v. Spiegelmann, supra, 81 Conn.App. at 457-58, 840 A.2d 69 (any impropriety that may have occurred from prosecutor's isolated use of sarcasm did not deprive defendant of right to fair trial); see also State v. Salamon, supra, 287 Conn. at 566-69, 949 A.2d 1092.
[8] In context, the prosecutor commented during rebuttal closing argument: "This is the last step on [the defendant's] journey for control. He tried to control his wife, he tried to control his daughters and now he's trying to control the outcome of this case. He took the [witness] stand and told you his version of what he claimed happened in an effort to try to manipulate the outcome of this trial. He's trying to control even when he's testifying. Remember, the defendant sat here in this courtroom and listened to all of the evidence.... But when he gets up there, he tailors his story to go and fit in somehow with the evidence that he sat here and listened to." (Emphasis added.)
[9] The court stated to counsel prior to argument on the motion that it did not read the portion of the motion regarding the details of the plea deal because if the defendant were convicted of noncapital crimes it would be the sentencing court.
[10] The defendant's decision to proceed to trial, despite defense counsel's belief that to do so was not in the defendant's best interest, is not evidence of incompetence. See Jarrett v. Commissioner of Correction, 108 Conn.App. 59, 73, 947 A.2d 395 ("courts may not construe a defendant's decision to proceed to trial as evidence of incompetence merely because others conclude the decision is not in the defendant's best interest"), cert. denied, 288 Conn. 910, 953 A.2d 653 (2008).
[11] To the extent that the defendant also is claiming that the court should have conducted an evidentiary hearing, his claim fails because he did not present substantial evidence of mental impairment. "[T]he rule of Pate v. Robinson [383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966)] imposes a constitutional obligation, under the due process clause, to undertake an independent judicial inquiry, in appropriate circumstances, into a defendant's competency to stand trial.... When a Pate inquiry is required, a court may not rely on the defendant's subjective appraisal of his own capacity or on the court's personal observations of the defendant but must hold an evidentiary hearing into the defendant's competence.... Competence to stand trial is a legal question, which must ultimately be determined by the trial court.... The decision to grant [an evidentiary] hearing [into a defendant's competence] requires the exercise of sound judicial discretion." (Citation omitted; internal quotation marks omitted.) State v. Cuesta, 68 Conn.App. 470, 481-82, 791 A.2d 686, cert. denied, 260 Conn. 914, 796 A.2d 559 (2002). "The trial court should carefully weigh the need for a hearing in each case, but this is not to say that a hearing should be available on demand. The decision whether to grant a hearing requires the exercise of sound judicial discretion." (Internal quotation marks omitted.) State v. Johnson, 253 Conn. 1, 22, 751 A.2d 298 (2000).
[12] The record shows only that the defendant's attorney urged that the defendant hoped for or was expecting "divine intervention." Even if we were to agree, in this secular age, that divine intervention was not a realistic prospect, the functional difference between a hope for divine intervention in itself and a hope for an improbable result is minimal. A defendant may hope for a favorable verdict contrary to a mass of evidence and not be incompetent solely by virtue of the hope. Competent people can make choices that turn out to be poor.
[13] References to venirepersons will be made by use of initials to protect their legitimate privacy interests. See, e.g., State v. Wright, 86 Conn.App. 86, 88 n. 3, 860 A.2d 278 (2004).
[14] The defendant also relies on Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005) (prosecutor's race neutral reasons for strikes pretextual where reasons at odds with evidence, prosecutor struck ten of eleven qualified black venire members and selection process replete with evidence that prosecutor rejected jurors on the basis of race), and Johnson v. California, 545 U.S. 162, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005) (holding California's "more likely than not" standard inappropriate as to Batson's first prong to measure sufficiency of prima facie case of purposeful discrimination), to support his claim. Neither of these cases changes our analysis in this case.
[15] In Snyder, the Supreme Court made comparisons between one of the stricken minority venirepersons and several nonminority venirepersons who were accepted and concluded that based on the comparison, the state's race neutral reason was pretextual. The prosecutor offered two race neutral reasons for using a peremptory challenge on venireperson Brooks, a college senior who was attempting to fulfill his student-teaching obligation, in response to defense counsel's Batson challenge. Snyder v. Louisiana, supra, 552 U.S. at 477-78, 128 S. Ct. 1203. Because of a lack of factual findings by the trial court regarding the state's first explanation, nervousness, the court focused on the state's second explanation. Id., at 479, 128 S. Ct. 1203. The second proffered explanation was that Brooks, as a student teacher, might be inclined to come back with a lesser verdict so as to avoid a penalty phase and thus return home quickly. Id., at 478, 128 S. Ct. 1203. When Brooks' schedule conflict became apparent during voir dire, the court instructed a law clerk to telephone a dean of the university Brooks was attending. Id., at 481, 128 S. Ct. 1203. The telephone call revealed that the dean would work with Brooks and did not foresee a problem so long as it was just for that week. Id. Because the prosecutor anticipated, during voir dire, that the trial would be brief and thus serving on a jury would not have seriously interfered with Brooks' student teaching obligation, the United States Supreme Court noted that the proffered explanation was suspicious. Id., at 482-83, 128 S. Ct. 1203. The court noted that the "implausibility of [the prosecutor's second] explanation is reinforced by the prosecutor's acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as ... Brooks'." Id., at 483, 128 S. Ct. 1203. The court stated that "[t]he prosecution's proffer of this pretextual explanation naturally gives rise to an inference of discriminatory intent." Id., at 485, 128 S. Ct. 1203. The court reversed on this basis. Id., at 485-86, 128 S. Ct. 1203.
[16] Adam Alston's statement to the police, which was admitted as a full exhibit at trial states in part: "On [December 12, 2003], I went to bed about eight p.m. At this time, Ramona [Kendall], [the defendant], Kayla [Kendall], and Alexis [Kendall] were all home. Between four a.m. and five a.m., I woke up and went to the bathroom. I returned to my room and closed the door. I then heard loud popping noises, and one of the kids say, `Oh, Daddy.' I thought someone was shooting a gun outside the house. I put my pants on. I opened my bedroom door, and I saw one of the kids on the floor in the hallway. I walked into the hallway, and I suddenly saw that the child in the hallway was on fire. I began to walk down the stairs, and I called for [the defendant]. I went out the front door, and I walked to my granddaughter Kiana Alston's house, and I told her the house was on fire."
[17] There may be some situations in which incontrovertible extrinsic evidence renders direct observation by the declarant impossible. This is not such a situation. Even if the extrinsic evidence is fully credited, then Adam Alston was mistaken in some details. The extrinsic evidence is not necessarily inconsistent with Adam Alston's presence at the scene or with his ability to make firsthand observations.
[18] The court instructed the jury in relevant part: "[T]he defendant in this case took the [witness] stand and testified. In weighing the testimony of an accused person, you should apply the same principles by which the testimony of other witnesses is tested, and that necessarily involves a consideration of [the defendant's] interest in the outcome of the case. You will consider the importance to him of the outcome of the trial. An accused person, having taken the witness stand, stands before you, then, just like any other witness, and is entitled to the same consideration and must have his testimony measured in the same way as any other witness, including his interest in the verdict you're about to render."
[19] State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823, holds that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.)
[20] The defendant filed the following request to charge on diminished capacity: "Evidence has been presented during the trial from which you could conclude that the [d]efendant's behavior at and after the incident indicated a diminished mental capacity at the time of the incident. You may consider this in deciding whether the [d]efendant was mentally capable of forming the specific intent necessary to constitute the crimes charged, as I have previously defined the required specific intent for you. If you have a reasonable doubt as to whether the [d]efendant acted with the specific intent necessary to constitute the crimes charged you must find him not guilty of those crimes. State v. Hines, 187 Conn. 199 [445 A.2d 314] (1982); State v. Thurman, 10 Conn.App. 302 [523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152] (1987)."
[21] We note that to the extent that there is any ambiguity in the court's ruling, it is the defendant's responsibility to provide us with an adequate record for review, and we read an ambiguous record to support rather than to undermine a court's determination. See, e.g., State v. Reynolds, 264 Conn. 1, 30 n. 21, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).
[22] We need not reach the question whether a witness' statement that he was out of his mind at the time of the crime would be sufficient, in itself, to require an instruction on diminished capacity. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2016466/ | 16 Ill. App.2d 79 (1958)
147 N.E.2d 383
Cereal Byproducts Company, Plaintiff-Appellant,
v.
Roy Hall, J. Leonard Penny, et al., Defendants-Appellees.
Gen. No. 47,249.
Illinois Appellate Court First District, Third Division.
January 15, 1958.
Released for publication February 10, 1958.
*80 Norman, Engelhardt, Zimmerman & Prince, of Chicago (Harold W. Norman, and William R. Engelhardt, of counsel), for appellant.
Lord, Bissell & Brook, of Chicago (Gordon R. Close, and Richard E. Mueller, of counsel), for appellees-cross appellants.
PRESIDING JUSTICE BURKE delivered the opinion of the court.
This is an action arising out of the alleged negligence of the defendants in auditing plaintiff's books in 1947 and thereby failing to uncover certain embezzlements. The plaintiff charged that defendants failed to properly perform the audit for the year 1947 and that as a result certain defalcations of their trusted employee and shareholder, Richard Zastrow, went undiscovered. These defalcations were $15,414.32 in 1947, $66,645.05 in 1948 and $13,620.21 in 1949. On a former appeal we reversed a judgment for the defendants and remanded the cause with directions to find them guilty of negligence in making the 1947 audit *81 and for the trial court to pass on the affirmative defenses. (8 Ill. App.2d 331.) On remand the trial court held that the defendants were liable for the 1948 and 1949 defalcations but were not liable for the 1947 loss of $15,414.32. The court gave the defendants the following credit: (1) Recovery from Eva Swanson (a person to whom the embezzler apparently gave some of the embezzled funds) $7,252.60; (2) Continental Illinois National Bank and Trust Co. of Chicago, $19,500 in settlement of a claim against the bank for wrongful payment of checks; (3) Estate of Richard Zastrow, $5,093.95; (4) Defendants' fee for 1949 audit, $725; and (5) Income tax refund "obtained as a result of embezzlement loss" $26,653.12. Plaintiff appeals from the judgment entered in its favor in the sum of $24,265.59 and asks judgment for $66,333.03. The defendants ask that the original judgment be reinstated, and in the alternative that we find that the trial judge erred in overruling the affirmative defense of release. They say that the rulings on the 1947 losses and the income tax recovery are correct.
[1] Plaintiff asserts that the income tax refund of $26,653.12 cannot be considered in mitigation of damages. The defendants answer that the trial court correctly held that the fixed and ascertainable tax benefit received by plaintiff as the result of its employee's embezzlement should be deducted from plaintiff's claim. Whether the plaintiff has received a tax refund on account of its loss is a matter that concerns only the plaintiff and the government. Hall v. Chicago & North Western Ry. Co., 5 Ill.2d 135. See also O'Brien v. Chicago City Ry. Co., 305 Ill. 244, 262-3; Byalos v. Matheson, 328 Ill. 269, 272-3; Majestic v. Louisville & N.R. Co., 147 F.2d 621, 627; Restatement of the Law of Torts, Sec. 920 d and e; Sutherland on Damages, 4 ed. Sec. 158. The defendants did not cause nor did they provide the funds for the tax refund. On defendants' *82 theory every suit for damages would necessitate consideration of the income taxes saved by the plaintiff on account of the loss and taxes payable on account of the recovery. The same principle applies as would apply in the event plaintiff had carried insurance against these embezzlements. Neither payments by the insurance carrier nor tax refunds can mitigate defendants' liability. The insurance carrier would have an interest in the recovery from the defendants just as the federal government has a tax interest in the recovery by plaintiff. We think that the court erred in giving the defendants credit for the income tax refund.
[2] The trial court absolved defendants from liability for the 1947 embezzlements on the ground that this loss occurred before defendants commenced their defective audit and even if defendants had found the embezzlements plaintiff would have sustained that loss. Plaintiff insists that the defendants are liable for the loss caused by the 1947 embezzlements and says that if the defendants had discovered Zastrow's embezzlements by January 20, 1948, when they completed their field work, plaintiff could have recouped its 1947 losses. The trial judge pointed out that some of the funds recovered by plaintiff "may relate to the loss of 1947" and that the claim for the loss during that year "would be a great deal of speculation." We are of the opinion that the finding by the trial judge as to the 1947 loss was proper.
Defendants assert that our prior opinion is unsupported by law or fact, that it should be corrected and that the first judgment in their favor should be reinstated. On remand the trial court entered judgment on the same record previously considered. No new or different facts are presented. Having re-examined our opinion and the authorities cited in the briefs we have decided to adhere to the views therein expressed.
*83 [3] Finally, the defendants say that the trial court erred in overruling their affirmative defense of release on the ground that the bank and the defendants are not joint tort-feasors. They argue that in so ruling the court overlooked the fact that whether the defendants are or are not joint tort-feasors is immaterial under the well-established principle that a release of one wrongdoer, which is intended as a complete discharge of the releasee's liability and full compensation for the wrong, will operate to release the others where the injury is single and indivisible. There is no dispute that the injuries suffered by plaintiff were the result of the unauthorized use of checks which either had the name of the payee altered or which had been signed in blank by corporate officers and therefore did not require alteration by the embezzler. On June 14, 1950, plaintiff executed a release in consideration of the payment to it of $19,500 and thereby discharged the bank from any and all claims and demands arising out of the payment by it of checks aggregating $71.173.34. These checks for which plaintiff made claim against the bank, are the identical checks which make up $71,173.34 of the claim against the defendants. We think that the court correctly decided that the release of the bank does not absolve the defendants. The bank was not acting in concert or in cooperation with the defendants. The bank's liability was based upon its contractual obligation to account to plaintiff for the funds improperly dispersed on forged or altered checks. The defendants' liability is for all the damages suffered by plaintiff as the result of defendants' negligence in making the 1947 audit. The settlement with the bank did not purport to nor did it constitute compensation for the entire injury. United States Cold Storage Co. v. Central Mfg. Dist. Bank, 343 Ill. 503, 513; Stella Flour & Feed Corp. v. National City Bank, 285 App. Div. 182, affirmed 308 N.Y. 1023. Since the bank and *84 the defendants were not liable for the same single injury and were in no sense joint wrongdoers, the release does not benefit the defendants. People v. Becker, 253 Ill. 131, 137; Western Tube Co. v. Zang, 85 Ill. App. 63, 65; Zboinsky v. Wojcik, 347 Ill. App. 226, 231-2; Carneghi v. Gerlach, 208 Ill. App. 340, 347.
We think that the trial judge was right in giving defendants credit for the recoveries of $5,093.95 from Zastrow's Estate, $7,252.60 from Eva Swanson and $19,500 from the bank.
The judgment is reversed and the cause is remanded with directions to enter judgment for the plaintiff and against defendants in accordance with the views expressed.
Judgment reversed and cause remanded with directions.
FRIEND and BRYANT, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2000503/ | 19 Ill.2d 524 (1960)
168 N.E.2d 728
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
JOSEPH NASTASIO, alias Anthony Noletti, Appellant.
No. 35462.
Supreme Court of Illinois.
Opinion filed May 18, 1960.
Rehearing denied September 12, 1960.
*525 *526 ROBERT WEINER, of Springfield, for appellant.
GRENVILLE BEARDSLEY, Attorney General, and J. WALDO ACKERMAN, JR., State's Attorney, both of Springfield, (FRED G. LEACH, Assistant Attorney General, and JOHN E. HOWARTH, and J. CALVIN BOSTIAN, Assistant State's Attorneys, of counsel,) for appellee.
Reversed and remanded.
Mr. JUSTICE SCHAEFER delivered the opinion of the court:
After hearing many witnesses, the Sangamon County grand jury refused to indict the defendant, Joseph Nastasio, for murder. It did, however, return indictments charging him with various sex offenses. Instead of prosecuting the criminal charges, the State's Attorney filed a petition in the circuit court of Sangamon County under the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1959, chap. 38, par. 820.1-825e), alleging the defendant to be a sexually *527 dangerous person within the meaning of the act, and praying for a hearing to determine that issue. A jury found the defendant to be a sexually dangerous person and the court entered judgment committing him to the custody of the Director of Public Safety for confinement and treatment. The defendant appeals directly to this court.
Jurisdiction of appeals in these cases is governed by the Civil Practice Act. (Ill. Rev. Stat. 1959, chap. 38, par. 822.01; chap. 110, par. 75.) It is defendant's position that this court, rather than the Appellate Court, has jurisdiction because the admission in evidence of two depositions taken in the defendant's absence violated section 9 of article II of the Illinois constitution. That section provides: "In all criminal prosecutions the accused shall have the right to appear and defend in person and * * * to meet the witnesses face to face." Ill. const., art. II, sec. 9.
The People's challenge of our jurisdiction rests first upon the assertion that it does not appear that the constitutional objection was raised and passed upon in the trial court. The defendant first presented his objection in opposition to the People's motion to take depositions. The objection was overruled. The defendant preserved the question in his motions to suppress the depositions, and for judgment n.o.v. and for a new trial. Although the abstract does not contain the trial court's rulings on these motions, the court could not have denied them without ruling adversely on the defendant's constitutional claim. We find, therefore, that the constitutional challenge to the depositions was properly raised and passed upon in the court below.
The People also contend that the admission of the depositions in evidence presented only a question of practice which is not of constitutional dimension. It is true that jurisdiction on direct appeal has regularly been denied when the only asserted basis was that alleged errors in trial practice and procedure deprived the appellant of due process of law. (E.g., Biggs v. Plebanek, 407 Ill. 562; People v. *528 Jiras, 340 Ill. 208, 211-212.) Such errors in the application of procedural rules are rarely, if ever, sufficiently serious to deprive the appellant of a fair judicial hearing, which is the essence of procedural due process. They are therefore regarded as matters of practice reviewable in the Appellate Court. The case now before us, however, involves the alleged violation of a constitutional command which regulates specific aspects of judicial procedure. The question of constitutional construction here raised is similar to that involved when a defendant in a criminal case seeks to suppress evidence allegedly seized in an unreasonable search. We have recently reaffirmed that such cases present constitutional questions reviewable on direct appeal to this court. People v. Watkins, 19 Ill.2d 11.
We conclude that the cause is properly here on direct appeal because it involves a debatable constitutional question raised and passed upon in the trial court. That we find it unnecessary to reach the constitutional issue in our decision on the merits does not affect the existence of the constitutional question and does not defeat our jurisdiction. City of Detroit v. Gould, 12 Ill.2d 297; People v. Metcoff, 392 Ill. 418.
To sustain the use of depositions in this case, the People emphasize the civil nature of proceedings under the Sexually Dangerous Persons Act, and point out that "the authority to use depositions in a civil case is of course unquestioned." Section 3.01 of the act provides: "The proceedings under this Act shall be civil in nature. The provisions of the Civil Practice Act including the provisions for appeal, and all existing and future amendments of said Act and modifications thereof and the rules now or hereafter adopted pursuant to said Act shall apply to all proceedings hereunder except as otherwise provided in this Act." Ill. Rev. Stat. 1959, chap. 38, par. 822.01.
Despite this legislative direction that proceedings under the act shall be civil and that the Civil Practice Act shall *529 apply, the proceedings in fact closely resemble criminal prosecutions in many critical respects. A hearing may be had only after the defendant is charged with a criminal offense, evidence of crimes may be introduced at the trial, and an adverse verdict subjects the defendant to indefinite incarceration. (Ill. Rev. Stat. 1959, chap. 38, pars. 822, 824, 825a.) This court had these similarities in mind when it held that admission in evidence of statements in the nature of confessions, without preliminary proof of their voluntary character, violates due process of law in commitment proceedings under the act as well as in trials for criminal offenses. People v. Capoldi, 10 Ill.2d 261.
Similar considerations are operative here. Many decisions suggest that difficult constitutional issues would be raised by the use of depositions in proceedings which so closely resemble criminal prosecutions. (Tucker v. People, 122 Ill. 583, 593; Gillespie v. People, 176 Ill. 238, 243-44; People v. Crump, 5 Ill.2d 251, 267-68.) The General Assembly has not specifically directed that depositions may be used in these proceedings, and it is questionable that by the broad language which it employed it intended to adopt procedures of doubtful validity under the constitution. It is our duty so to interpret the statute as to promote its essential purposes and to avoid, if possible, a construction that would raise doubts as to its validity. Both ends will be served by holding, as we do, that while the general structure of the Civil Practice Act has been adopted, the use of depositions taken out of the presence of the defendant has not been authorized.
One of the depositions in this case was taken in Kansas City, Missouri, and the other in Springfield, Illinois. The defendant's attorney appeared on both occasions and cross-examined the witnesses, but the defendant was in custody and so was unable to attend. Because the defendant's attorney was present, the People also suggest that "the use of a deposition where the defendant or his attorney appears *530 and cross-examines satisfies the provision that the defendant should meet his accusers face to face." But even if a defendant is represented by counsel when a deposition is taken, the defendant may be prejudiced by his own absence because his suggestions to his attorney may be indispensable to effective cross-examination.
Proof of a mental disease that has existed for at least one year prior to the filing of the petition was essential to support the jury verdict finding the defendant to be a sexually dangerous person. (Ill. Rev. Stat. 1959, chap. 38, par. 820.01; People v. Sims, 382 Ill. 472, 476.) The two depositions contained the only testimony that related to sexual offenses which occurred more than one year prior to the filing of the petition. Erroneous admission of this testimony was therefore prejudicial.
Since we hold that it was prejudicial error to admit the two depositions in evidence, we would ordinarily reverse the judgment and remand the cause for a new trial. The defendant urges, however, that the cause should be reversed without remanding because "the indictments upon which the petition * * * [was] filed are null and void and of no legal effect." This suggestion is based primarily upon the defendant's contention that 14 persons whose names did not appear on the jurors' list then in effect, were seated on the grand jury in violation of sections 1 and 2 of the Jurors Act. (Ill. Rev. Stat. 1959, chap. 78, pars. 1, 2.) He asserts also that four grand jurors, including the foreman, had served on from two to seven grand juries in the three years preceding the indictments in this case, and that he was subjected to the deliberations of a grand jury which had become a "rubber stamp" for the State's Attorney, all in violation of section 5 of the Jurors Act (Ill. Rev. Stat. 1959, chap. 78, par. 5,) and of rights guaranteed by the State and Federal constitutions.
The People assert that this contention is entirely frivolous. It is their view that the indictments are not a part *531 of the proceeding under the Sexually Dangerous Persons Act. That proceeding, however, is wholly dependent on a criminal prosecution. A hearing may be commenced only after the defendant is "charged with a criminal offense." (Ill. Rev. Stat. 1959, chap. 38, par. 822.) And if the defendant is convicted of the criminal offense, any orders entered in the course of the hearing under the act become null and void. (People v. Redlich, 402 Ill. 270.) The close relationship between the criminal prosecution and the statutory proceeding requires that the proceeding must fail if the indictment on which it is based is void.
The indictments in this case, however, are not void. The defendant's contentions are based largely on a misapprehension of the applicable law. Selection of the grand jury is governed by section 9 of the Jurors Act. (Ill. Rev. Stat. 1959, chap. 78, par. 9.) This section does not incorporate the provisions of sections 1, 2 and 5 which require the preparation of a list of jurors and the selection of petit jurors from that list. Grand jurors need not be selected from any list but may be selected by the county board from the county at large. People v. Thurman, 377 Ill. 453, 457.
In support of his charge that the grand jury was a rubber stamp for the State's Attorney, the defendant has shown only that four of the grand jurors served on prior panels. We do not doubt that selection of a grand jury composed of persons who have not served in recent years would be preferable. Repeated service will produce familiarity with the State's Attorney, and this may in turn produce sympathy for his aims to the disadvantage of those accused of crime. But prejudice to the accused cannot be presumed from repeated service of a fraction of the panel. Indeed in this case the grand jury refused to indict the defendant for murder after hearing over 70 witnesses.
The judgment is reversed and the cause is remanded for a new trial.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1363685/ | 215 Va. 27 (1974)
A. E. SLAYTON, JR., SUPERINTENDENT OF THE VIRGINIA STATE PENITENTIARY
v.
ARCHIE ALLEN PARRIGAN.
Record No. 730270.
Supreme Court of Virginia.
June 10, 1974.
Present, All the Justices.
1. Under Rules of Court, except for good cause, objection requiring ruling of trial court must be made during trial when identification testimony is given or it will not be noticed on appeal.
2. In interest of finality of judgments, habeas corpus restricted to inquiry into jurisdictional defects amounting to want of legal authority for detention. Constitutional claims must be raised at trial and upon appeal, not during post-conviction processes.
Error to a judgment of the Circuit Court of Dickenson County. Hon. Glyn R. Phillips, judge presiding.
Robert E. Shepherd, Jr., Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for plaintiff in error.
No brief or argument on behalf of defendant in error.
I'ANSON
I'Anson, J., delivered the opinion of the court.
On June 18, 1969, Archie Allen Parrigan was convicted by a jury on an indictment charging him with robbery, and he was sentenced by the trial court in accordance with the jury's verdict to confinement in the State penitentiary for a period of twenty years. We denied his petition for a writ of error to the judgment of conviction.
On February 8, 1971, Parrigan, petitioner herein, filed in the court below a petition for a writ of habeas corpus, which was later amended, alleging that he was unlawfully detained by the respondent, the Superintendent of the Virginia State Penitentiary. He averred that his court-appointed attorney was *28 ineffective, that his pretrial identification was impermissibly suggestive, and that it tainted his in-court identification.
After an evidentiary hearing the trial court, in a memorandum opinion, held as a fact that petitioner was effectively represented by his court-appointed attorney, but the court awarded petitioner a writ of habeas corpus, set aside his conviction, and ordered a new trial solely on the ground that petitioner's pretrial identification was impermissibly suggestive. We granted the respondent a writ of error to this judgment.
The sole issue on this appeal is whether the petitioner has standing in a habeas corpus proceeding to attack an alleged impermissibly suggestive pretrial identification as tainting the in-court identification when he did not present that defense at his criminal trial and upon appeal from that conviction.
The record in Parrigan's trial on the robbery charge shows that about 6 p.m. on February 14, 1969, Rufus Hawkins Yates entered Club 83 in Haysi, Virginia. While waiting for his ride home, he consumed five or six beers. During his wait three men arrived at the club and subsequently offered him a ride home. Yates consented to go with them. After the car was stopped at a place unknown to Yates, he was robbed of $340. At trial, Yates positively identified Parrigan as one of the three men who robbed him. Two other witnesses identified Parrigan as having been in Club 83 on the night of the robbery. One of these witnesses further testified that Parrigan was a member of the trio who offered Yates a ride home that night.
Parrigan presented an alibi defense which was rejected by the jury's verdict of guilty.
At petitioner's habeas corpus evidentiary hearing, it was revealed for the first time that shortly after the Yates robbery Deputy Sheriff Stanley had Parrigan accompany him to Haysi. When they arrived, Stanley advised Parrigan that he wanted to see whether he (Parrigan) could be identified by a robbery victim. Sometime after both men entered Club 83, Yates, the robbery victim, appeared at the club.
Yates testified that Stanley requested him to look around the club to see if he could identify any of the persons who robbed him. He first looked into the back room of the club and then in the main room. He identified Parrigan, who was sitting in a booth with Stanley in the main room, as one of the men.
Parrigan testified that he and Stanley were sitting in a booth *29 when Yates identified him as one of the robbers; and that Stanley said to Yates: "Isn't this one of the boys?" or "Does this look like the man?" Parrigan said that he did not tell his attorney of this pretrial identification.
We agree with the respondent's contention that the petitioner lacked standing to raise on habeas corpus the question whether his in-court identification by Yates was tainted by an impermissibly suggestive pretrial identification when he did not advance that defense at his trial and upon appeal from that conviction.
Assuming, without deciding, that petitioner was subject to an unconstitutional identification procedure, [1] the court below erred, absent a showing of ineffective assistance of counsel in failing to raise that question, in permitting inquiry on this question for the first time in the habeas corpus proceeding.
We have repeatedly held that under Rule 1:8, now Rule 5:7, an objection requiring a ruling of the trial court must be made during trial when identification testimony is offered or it will not be noticed upon appeal. Poole Commonwealth, 211 Va. 258, 260, 176 S.E.2d 821, 823 (1970); Henry Commonwealth, 211 Va. 48, 52, 175 S.E.2d 416, 419 (1970).
A petition for a writ of habeas corpus may not be employed as a substitute for an appeal or a writ of error. Brooks Peyton, 210 Va. 318, 321-22, 171 S.E.2d 243, 246 (1969); Smyth Bunch, 202 Va. 126, 131, 116 S.E.2d 33, 37-38 (1960).
It is true we said in Griffin Cunningham, 205 Va. 349, 355, 136 S.E.2d 840, 845 (1964): "It is well settled that the deprivation of a constitutional right of a prisoner may be raised by habeas corpus." But in the interest of the finality of judgments and since the original function of the writ of habeas corpus was to provide an inquiry into jurisdictional defects, [2] we hold that the principle enunciated in Griffin is inapplicable when a prisoner has been afforded a fair and full opportunity to raise and have adjudicated the question of the admissibility of evidence in his trial and upon appeal. See Powell State, 244 So. 2d 746 (Fla. App. 1971); People
Ward, 48 Ill. 2d 117, 120-21, 268 N.E.2d 692, 695 (1971); In re Terry, 4 Cal. 3d 911, 926-27, 484 P.2d 1375, 1378, *30 95 Cal. Rptr. 31, 43, cert. dismissed, 404 U.S. 980 (1971); In re Sterling, 63 Cal. 2d 486, 488-89, 407 P.2d 5, 7-8, 47 Cal. Rptr. 205, 207-08 (1965); State White, 274 N.C. 220, 232, 162 S.E.2d 473, 480 (1968). See also concurring opinion of Mr. Justice Powell in Schneckloth Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 2059 (1973); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441 (1963); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 160 (1970).
The trial and appellate procedures in Virginia are adequate in meeting procedural requirements to adjudicate State and Federal constitutional rights and to supply a suitable record for possible habeas corpus review. A prisoner is not entitled to use habeas corpus to circumvent the trial and appellate processes for an inquiry into an alleged non-jurisdictional defect of a judgment of conviction. Since the issue of the alleged constitutionally improper pretrial identification could have been raised and adjudicated at petitioner's trial and upon his appeal to this court, Parrigan had no standing to attack his final judgment of conviction by habeas corpus.
For the reasons stated, the judgment of the court below is reinstated.
Reversed, the petition is dismissed, and the judgment of conviction is
NOTES
[1] See Stovall Denno, 388 U.S. 293, 301-02 (1967); Neil Biggers, 409 U.S. 188, 196-99 (1972).
[2] Brooks Peyton, supra, 210 Va. at 321, 171 S.E.2d at 246. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2633683/ | 176 P.3d 317 (2007)
2008-NMCA-006
STATE of New Mexico, Plaintiff-Appellee,
v.
Joseph A. GLASCOCK, Defendant-Appellant.
No. 26,337.
Court of Appeals of New Mexico.
October 25, 2007.
Certiorari Granted January 7, 2008.
*318 Gary K. King, Attorney General, Katherine Zinn, Assistant Attorney General, Santa Fe, NM, for Appellee.
John Bigelow, Chief Public Defender, Sheila Lewis, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
Certiorari Granted, No. 30,755, January 7, 2008.
OPINION
PICKARD, Judge.
{1} Defendant appeals his convictions for four counts of forgery and one count of conspiracy to commit forgery, arising from several checks taken from his employer and signed in the employer's name. All of Defendant's convictions were based on making false signatures. See NMSA 1978, § 30-16-10(A) (1963). On appeal, Defendant argues that his forgery convictions violate double jeopardy. He asserts that, under a multiple punishment unit of prosecution theory, the New Mexico Legislature did not intend a separate conviction for each forged check. He also contends that, under the dual sovereignty doctrine, he should be immune from prosecution in New Mexico because he has previously been convicted of forgery of the same checks in a Texas court. Finally, Defendant argues that the trial court erred by allowing the State to introduce into evidence two additional checks that were not used to obtain money, arguing that the additional checks were impermissibly used as evidence of uncharged, prior bad acts. We reject Defendant's contentions, but nonetheless reverse one of Defendant's forgery convictions for insufficient evidence that the crime occurred in New Mexico.
FACTS
{2} On March 31, 2003, Defendant was a trainee at Henderson Tire Company in Chaparral, New Mexico, when he took six checks from the company checkbook without permission. It is undisputed that Defendant forged the account holder's signature on four of these checks, and gave three of them to his co-conspirator, John Dowd, to cash at a Wal-Mart in El Paso, Texas. Defendant himself cashed the fourth check at a cash checking service also located in El Paso. Defendant was convicted by a New Mexico jury of four counts of forgery for falsely signing the four negotiated checks, as well as one count of conspiracy to commit forgery. Defendant now appeals his convictions.
{3} For purposes of our review, the critical questions of fact posed to the jury in this case were (1) whether Defendant signed each of the four checks at one time or on separate occasions and (2) whether Defendant signed each of the four checks in New Mexico. No direct evidence was introduced at trial on either of these issues. The trial testimony of the State's witnesses is susceptible to conflicting inferences.
{4} A detective who investigated the stolen checks and took the voluntary statement of Defendant testified that Defendant told her *319 that he took a total of six checks and forged four of them while sitting in Dowd's automobile outside Henderson Tire. Also testifying for the State, Dowd testified that Defendant gave him all of the checks in the office of Henderson Tire. Either version of events would tend to support an inference that the four checks were forged by Defendant in New Mexico in a single episode.
{5} However, evidence was offered at trial which would support an inference that each check was signed on a separate day. Each check bears a different date, ranging from March 31, 2003, to April 24, 2003. Dowd testified that he made several trips to Chaparral to socialize with Defendant over the course of a year. During one of these visits, on or about March 31, 2003, Defendant asked him if he had a checking account. When Dowd responded in the affirmative, Defendant gave him one of the forged checks and asked Dowd to cash it for him. This check bears the date March 31, 2003. Dowd testified that he filled in the "Pay to the Order of line in his name, endorsed the check, cashed it in El Paso, and gave Defendant the full proceeds. Dowd did not ask any questions of Defendant about this check, but Defendant told him that his employer was "trying to help him out." He "totally believed" Defendant's story.
{6} Dowd continued to return to Chaparral to visit Defendant after the first check was forged and cashed. During this time, Dowd cashed a second check in the same manner as the first, and Dowd gave Defendant the full proceeds. This check bears the date April 1, 2003. Dowd testified that he still believed Defendant's story when he cashed this second check. He testified that he never saw Defendant forge a check in front of him.
{7} Dowd was asked by Defendant to cash another check, dated April 24, 2003. Dowd testified that, unlike the first two checks, this check was already made out to him when Defendant transferred it, and Defendant gave Dowd a portion of the proceeds of the check. It was at this point that Dowd "figured something out." When later questioned by police, Dowd made a statement to the effect that he "got caught up in something." He told the investigating officer that "when [he] found out," he was "already in too deep." In summary, Dowd described an epiphany that runs contrary to an inference that he was given all four forged checks on March 31, 2003, either in his car outside Henderson Tire, or in the office of the same establishment. Dowd's testimony suggests that the more reasonable inference is that Defendant was forging the stolen checks one at a time in a series of events in which Dowd was progressively more involved.
{8} Defendant himself cashed one of the stolen checks, dated April 4, 2003, at a check cashing service in El Paso. The police detective testified that Defendant, upon taking the checks from the company checkbook on March 31, 2003, had proceeded to write them out both to Dowd and to himself, supporting an inference that this check was written in New Mexico at the same time as the others. However, no additional evidence was introduced that would support this inference. Dowd was apparently not aware of this forgery, and testified that he had never seen Defendant forge a check in his presence.
{9} The remaining two checks were never negotiated. However, the "Pay to the Order of" line was completed in Dowd's handwriting on at least one of these checks, and at least one of these uncharged checks was endorsed by Dowd. The State never charged Defendant with forgery of these two checks, but introduced them at trial over defense counsel's objection as evidence of conspiracy.
DISCUSSION
A. Double JeopardyUnit of Prosecution
{10} Defendant contends that his convictions on four counts of forgery violate double jeopardy because the New Mexico Legislature never intended for Defendant's acts to give rise to multiple convictions. We disagree.
{11} This Court recently had occasion to consider a similar double jeopardy challenge in State v. Turner, 2007-NMCA-105, ¶ 25, 142 N.M. 460, 166 P.3d 1114. We explained that the "constitutional prohibition against double jeopardy protects against both successive prosecutions and multiple punishments for the same offense." Id. ¶ 10 (internal quotation marks and citation omitted). *320 In multiple punishment cases, there are two types of potential issues: "(1) multiple violations of the same statute, referred to as `unit of prosecution' cases; and (2) violations of multiple statutes, referred to as `double-description' cases." Id. ¶ 10 (internal quotation marks and citation omitted). Because Defendant is challenging his four convictions for forgery under the same statute, we are presented with a "unit of prosecution" case. See id. ¶ 25. Double jeopardy challenges raising the issue of the unit of prosecution are reviewed de novo. State v. Boergadine, 2005-NMCA-028, ¶ 12, 137 N.M. 92, 107 P.3d 532.
{12} Unit of prosecution problems are analyzed in two steps. State v. Bernal, 2006-NMSC-050, ¶ 14, 140 N.M. 644, 146 P.3d 289. "First, we review the statutory language for guidance on the unit of prosecution." Id. If we are unable to ascertain the unit of prosecution from the statutory language, "we move to the second step, in which we determine whether a defendant's acts are separated by sufficient `indicia of distinctness' to justify multiple punishments under the same statute." Id.
{13} This Court recently conducted the first step of this analysis, in Turner, 2007-NMCA-105, 142 N.M. 460, 166 P.3d 1114, concluding that "the language in the forgery statute is sufficiently ambiguous such that we cannot resolve the unit of prosecution simply by examining the language of the statute." Id. ¶ 28. Although we cited the 2006 version of the statute in Turner, id, ¶ 26, the pertinent language was carried forward verbatim from the earlier version of the statute, and no issue was raised in Turner concerning the effect of the 2006 statute. To the extent that Defendant in this case argues the effect of the 2006 statute, we need only say that Defendant's conduct occurred in 2003, Defendant was formally charged in 2003, and article IV, section 34 of the New Mexico Constitution would preclude the 2006 statute from applying in this case. See State v. Lucero, 2007-NMSC-041, ¶¶ 14-15, 142 N.M. 102, 163 P.3d 489. We therefore proceed with the second step of the analysis. See Turner, 2007-NMCA-105, ¶ 29, 142 N.M. 460, 166 P.3d 1114.
{14} Under the second step, "we determine whether a defendant's acts are separated by sufficient `indicia of distinctness' to justify multiple punishments under the same statute." Bernal, 2006-NMSC-050, ¶ 14, 140 N.M. 644, 146 P.3d 289. "Such indicia include the timing, location, and sequencing of the acts, the existence of an intervening event, the defendant's intent as evidenced by his conduct and utterances, and the number of victims." State v. DeGraff, 2006-NMSC-011, ¶ 35, 139 N.M. 211, 131 P.3d 61 (citing Herron v. State, 111 N.M. 357, 361, 805 P.2d 624, 628 (1991)). These are flexible factors intended to guide appellate courts in unit of prosecution analyses. Boergadine, 2005-NMCA-028, ¶ 21, 137 N.M. 92, 107 P.3d 532. No single factor is controlling. Id.
{15} Our primary concern is to ensure that sufficient evidence exists to establish that each false signing was distinct from the others. State v. McClendon, 2001-NMSC-023, ¶ 5, 130 N.M. 551, 28 P.3d 1092. In reviewing the facts of the case to determine if each signing is distinct from the others, we must indulge "in all presumptions in favor of the verdict." Id. (quoting Herron, 111 N.M. at 362, 805 P.2d at 629). Applying the foregoing factors to the evidence presented in our case, we conclude that the State demonstrated that each of the signings was distinct enough to warrant separate forgery convictions. We reverse the conviction arising from the check Defendant forged and cashed on his own, because there was insufficient evidence without fragmenting the evidence to the point of distortion to support the jury's determination that the forgery of this check took place in New Mexico.
{16} The first factor, timing, is an ambiguous indicator in the case. At trial, the State presented no direct evidence of the dates upon which Defendant signed the various checks. The indirect evidence was capable of supporting conflicting inferences. On the one hand, Defendant took all of the checks on the same date, and he told the detective he signed all of the checks in the same location, in Dowd's automobile outside his employer's place of business. Dowd also testified that Defendant gave him all of the checks in one place, at Henderson Tire. No matter which *321 version the jury believes, such testimony tends to support a reasonable inference that Defendant forged all of the checks in a single episode.
{17} Oh the other hand, the checks all reflected different dates, ranging from March 31 to April 24. Dowd's testimony in particular supports a rational inference that the checks were signed on separate occasions. The facts that .Dowd made multiple visits to Chaparral and cashed two of the three checks before "figuring out" that they were forged further support such an inference. Dowd stated, "[A]fter the first two [checks], I figured something out." The jury could have rejected Defendant's version of events as told to the police detective after hearing Dowd describe his epiphany and his testimony that Defendant gave him "a check" on the first occasion, and after that, he cashed more checks. The jury could have reasonably inferred that the checks were not signed together in Dowd's car on March 31, 2003. In fact, by its verdict, the jury made an implicit finding that each of the forged checks was signed by Defendant on a different date. We are required to indulge all presumptions in favor of this verdict. See McClendon, 2001-NMSC-023, ¶ 5, 130 N.M. 551, 28 P.3d 1092, After reviewing the record before us, we hold that there is sufficient evidence to support the jury's finding that all four checks were forged on separate dates.
{18} However, for the jury to infer that the check that Defendant cashed himself in El Paso, Texas, was forged in New Mexico would require fragmentation of the testimony to such a degree as to distort it. See State v. Manus, 93 N.M. 95, 101, 597 P.2d 280, 286 (1979), overruled on other grounds by Sells v. State, 98 N.M. 786, 653 P.2d 162 (1982); State v. Gaitan, 2002-NMSC-007, ¶ 24, 131 N.M. 758, 42 P.3d 1207. The only way the jury could have found that the check in question was written in New Mexico would have been to believe Defendant's statement to the police detective, which described a single act of forgery in Dowd's car in Chaparral, New Mexico on .March 31, 2003. No other evidence was introduced at trial which would support such an inference. Yet, the jury clearly disbelieved this testimony because it drew an inference that this particular check was one in a series of separate forgeries. Accordingly, we hold that there is insufficient evidence to support a finding that the check Defendant drafted and cashed himself was forged in New Mexico, and we reverse Defendant's conviction for this count of forgery.
{19} Continuing our unit of prosecution analysis, the second and fourth factors, location of the victim and sequencing of the acts, are tailored to address unit of prosecution issues in cases involving sex offenses. Boergadine, 2005-NMCA-028, ¶ 23, 137 N.M. 92, 107 P.3d 532. As such, we regard them as unhelpful in this context. See a
{20} The third factor, concerning the existence of an intervening event, supports multiple convictions as the dates of March 31, April 1, and April 24 are different dates, with the discreet events of check writing and cashing separated by the host of other events of the days. With respect to the fifth factor, we must determine whether Defendant's conduct and utterances suggested a single criminal intent. In this case, the jury found that Defendant forged four separate checks on four separate dates, and as we have indicated above, we hold that there is sufficient evidence to support such an inference. This course of conduct suggests multiple instances of intent to obtain monies from the victim under false pretenses. See, e.g., State v. Baca, 1997-NMSC-018, ¶ 13, 123 N.M. 124, 934 P.2d 1053 (concluding that there was "no evidence of a single intent" where the defendant negotiated five of the victim's checks, each in a different amount, on four separate dates); cf. Boergadine, 2005-NMCA-028, ¶ 25, 137 N.M. 92, 107 P.3d 532 (concluding that the defendant's acts of taking different sums of money on different dates, based on separate assurances, allegedly for distinct purposes, did not suggest a single criminal intent),
{21} Turning to the sixth factor, as previously stated, there was a single victim in this case. While the existence of multiple victims lends powerful support for multiple offenses, Bernal, 2006-NMSC-050, ¶ 18, 140 N.M. 644, 146 P.3d 289, "the reverse is not always true." Boergadine, 2005-NMCA-028, ¶ 27, 137 N.M. 92, 107 P.3d 532. Here, *322 the existence of a single victim weighs slightly in favor of a single conviction, but is by no means a controlling factor. See, e.g., id. (finding sufficient indicia of distinctness between fraudulent acts involving a single victim). We conclude that on balance, the evidence is capable of supporting three of Defendant's four convictions.
B. Double JeopardyDual Sovereignty
{22} Defendant argues that his convictions for forgery should be overturned on grounds that he has already been convicted and sentenced for the same acts in Texas. By this argument, Defendant invites the Court to reconsider the scope and applicability of the dual sovereignty doctrine. For the reasons that follow, we decline the invitation.
{23} The United States Supreme Court has described the nature and foundation of the dual sovereignty doctrine as follows.
The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the peace and dignity of two sovereigns by breaking the laws of each, he has committed two distinct offenses. . . . Consequently, when the same act transgresses the laws of two sovereigns, it cannot be truly averred that the offender has been twice punished for the same offense[.]
Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) (internal quotation marks and citations omitted).
{24} The New Mexico Supreme Court explicitly adopted the dual sovereignty doctrine in the case of State v. Rogers, 90 N.M. 604, 605-07, 566 P.2d 1142, 1143-45 (1977). "Accordingly, where a defendant's conduct amounts to the commission of a criminal offense within the geographical authority of more than one sovereign, each sovereign may prosecute regardless of what the other has done." Id. at 605, 566 P.2d at 1143.
{25} Rogers is largely dispositive of Defendant's objection. To avoid this result, however, Defendant urges us to limit Rogers and the dual sovereignty doctrine to cases in which separate prosecutions are pursued by state and federal authorities with overlapping geographical jurisdictions. However, in the Heath opinion, the United States Supreme Court rejected this narrow approach, concluding that the dual sovereignty doctrine applies to all cases in which multiple sovereigns have a legitimate interest in pursuing prosecutions, including cases in which defendants are prosecuted in more than one state. 474 U.S. at 89-91, 106 S.Ct. 433.
{26} Defendant invites us to diverge from the federal jurisprudence in this particular on the ground that the double jeopardy clause of the New Mexico Constitution should afford greater protection than its federal counterpart. However, in Rogers, the New Mexico Supreme Court ruled that the New Mexico double jeopardy clause "should be construed and interpreted in the same manner" as the federal double jeopardy clause where the dual sovereignty doctrine is concerned. Id. at 606, 566 P.2d at 1144. Accordingly, if any departure from federal precedent is to be made, it must be initiated by the New Mexico Supreme Court or the Legislature. See, e.g., State v. Wilson, 116 N.M. 793, 796, 867 P.2d 1175, 1178 (1994) (noting that the Court of Appeals "remains bound by Supreme Court precedent"); Rogers, 90 N.M. at 606, 566 P.2d at 1144 ("[I]f there is to be a change in the dual sovereignty doctrine, public policy would dictate that such a change should be initiated by the Legislature.").
{27} Moreover, we hold that Defendant failed to properly preserve for appeal the issue of dual sovereignty under the New Mexico constitution. Following State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1, our first inquiry must be "whether the state constitution has been held to provide greater protection under similar circumstances than the federal constitution does." State v. Jimenez, 2007-NMCA-005, ¶ 13, 141 N.M. 106, 151 P.3d 67, cert. granted, 2007-NMCERT-001, 141 N.M. 164, 152 P.3d 151. Rogers held that since the double jeopardy provisions of the New Mexico and federal constitutions are "so similar in nature, we are of the opinion that they should be construed and interpreted in the same manner." 90 *323 N.M. at 606, 566 P.2d at 1144. No New Mexico case since Rogers has applied an expansive interpretation to the dual sovereignty aspect of the New Mexico double jeopardy clause. "Accordingly, proper preservation requires a defendant to raise this claim in the trial court and provide a basis to interpret the state constitution differently." Jimenez, 2007-NMCA-005, ¶ 13, 141 N.M. 106, 151 P.3d 67 (internal quotation marks and citation omitted). Because Defendant did not present to the trial court any argument or authority in support of a more ex, pansive interpretation of article II, section 15 of the New Mexico Constitution as it relates to the dual sovereignty aspect of double jeopardy, Defendant failed to preserve'this argument for appeal. Jimenez, 2007-NMCA-005, ¶ 13, 141 N.M. 106, 151 P.3d 67.
C. Bad Acts Evidence
{28} Finally, Defendant contends that the district court erred in admitting evidence of the two checks that were never negotiated and that did not provide the foundation for any of the charges. Generally speaking, evidence of prior bad acts, including uncharged crimes, is inadmissible to prove the character of a person in order to show action in conformity therewith. See Rule 11-404(B) NMRA. However, such evidence may be admitted for other purposes, such as proving motive, preparation, plan, or intent. Id. Below, the district court concluded that the checks were admissible for these purposes. We agree.
{29} In addition to the various counts of forgery discussed at length above, Defendant was charged with one count of conspiracy. This charge was based upon evidence that Defendant agreed with another, Dowd, to obtain money in exchange for the various forged checks by negotiating the signed instruments. One or both of the additional, un-negotiated checks that are at issue contained Dowd's name, as payee, written in Dowd's handwriting. This writing provided compelling circumstantial evidence that Dowd knowingly participated with Defendant in a common scheme. Because direct evidence of knowledge and intent are rarely available, see State v. Motes, 118 N.M. 727, 729, 885 P.2d 648, 650 (1994) (noting that because intent is subjective, it is rarely proved by direct evidence and is almost always inferred from other facts in the case), the district court acted well within its discretion in concluding that the indirect evidence of knowledge and intent that was supplied by the un-negotiated checks was relatively strong. See generally State v. Romero, 2006-NMCA-045, ¶ 73, 139 N.M. 386, 133 P.3d 842 ("We review a trial court's decision to admit evidence under Rule 11-404(B) for abuse of discretion."), aff'd, 2006-NMCA-045, 139 N.M. 386, 133 P.3d 842. By contrast, the prejudicial effect of the two checks is slight in this case involving another four checks whose admissibility is unquestioned. Consequently, we uphold the district court's implicit determination that the checks' probative value outweighed their prejudicial effect. See generally Rule 11-403 NMRA; State v. Chamberlain, 112 N.M. 723, 726, 819 P2d 673, 676 (1991) (observing that the district court is vested with great discretion in applying Rule 11-403, and it will not be reversed absent an abuse of that discretion).
CONCLUSION
{30} For the foregoing reasons, we reverse one of Defendant's four convictions for forgery, Count Three, involving the check that Defendant himself cashed. Finding no merit in Defendant's remaining contentions, we affirm his remaining convictions, and remand to the district court for entry of a new judgment and resentencing consistent with this opinion.
{31} IT IS SO ORDERED.
WE CONCUR: CELIA FOY CASTILLO and IRA ROBINSON, Judges. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2631554/ | 249 P.3d 452 (2011)
Damon VONTRESS, Appellant,
v.
STATE of Kansas, Appellee.
No. 102,904.
Court of Appeals of Kansas.
February 25, 2011.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, for appellee.
Before HILL, P.J., LEBEN and STANDRIDGE, JJ.
STANDRIDGE, J.
Damon Vontress appeals from the district court's decision to summarily deny his K.S.A. 60-1507 motion as untimely. For the reasons stated below, we affirm.
FACTS
In August 1996, Vontress was convicted of premeditated first-degree murder, aggravated robbery, aggravated battery, and criminal possession of a firearm. The district court imposed a mandatory 40-year prison sentence for the first-degree murder conviction *453 and consecutive prison sentences of 78 months, 41 months, and 8 months, respectively, for the remaining convictions. Vontress appealed his convictions and sentences to our Supreme Court. On appeal, the court found that Vontress' convictions for aggravated robbery and aggravated battery were multiplicitous and, as a result, reversed the aggravated battery conviction. Finding no other error, the court affirmed Vontress' remaining convictions and sentences. See State v. Vontress, 266 Kan. 248, 257, 259-64, 970 P.2d 42 (1998).
On November 10, 2008, Vontress filed a K.S.A. 60-1507 motion for relief alleging that his conviction for first-degree murder must be overturned on grounds that it is constitutionally invalid. Specifically, Vontress asserted (1) Kansas case law on premeditation violates principles of equal protection and due process; and (2) the legislature's failure to define, and the Kansas Supreme Court's act of defining, the element of premeditation violates the separation of powers doctrine. The court appointed counsel to represent Vontress and subsequently held a nonevidentiary hearing to hear argument on the motion. At the hearing, the State argued Vontress' motion should be summarily denied as untimely under K.S.A. 60-1507(f)(1). The district court agreed and summarily denied Vontress' motion without addressing the merits thereof.
ANALYSIS
On appeal, Vontress argues this case should be remanded to the district court for an evidentiary hearing on the merits of his K.S.A. 60-1507 claim for relief because failing to address the merits of his claim would be manifestly unjust.
When the district court denies relief under K.S.A. 60-1507 based solely upon its review of the files and records of the case and legal argument presented at a nonevidentiary hearing, an appellate court is in as good of a position as the district court to consider the merits of the claim. Thus, appellate review is de novo. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
K.S.A. 60-1507(f)(1) requires that a motion be brought within 1 year of the final order of the last appellate court to exercise jurisdiction over a direct appeal or the termination of such appellate jurisdiction. The 1-year time period in K.S.A. 60-1507(f)(1) did not become effective until July 1, 2003. Hayes v. State, 34 Kan. App. 2d 157, 158, 115 P.3d 162 (2005). In Hayes, this court held that a defendant whose conviction became final before the effective date of the statute could comply with the 1-year time period by filing a 60-1507 motion by June 30, 2004. 34 Kan. App. 2d at 161-62, 115 P.3d 162.
The 1-year time limit, however, may be extended by the district court to prevent a manifest injustice. K.S.A. 60-1507(f)(2). Although manifest injustice has not been defined in the context of K.S.A. 60-1507(f)(2), "this court has interpreted the phrase in other contexts to mean `obviously unfair' or `shocking to the conscience.'" Ludlow v. State, 37 Kan. App. 2d 676, 686, 157 P.3d 631 (2007).
In this case, Vontress' convictions became final before the effective date of K.S.A. 60-1507(f)(1); thus, he had until June 30, 2004, to file a timely motion. Vontress did not file his motion until November 10, 2008, which was more than 4 years after the deadline expired. Pursuant to K.S.A. 60-1507(f)(1), then, there is no question that Vontress' motion was untimely.
Vontress does not dispute that his motion was untimely filed; instead, he argues the district court should have extended the deadline under K.S.A. 60-1507(f)(2) because failing to address the merits of his claim would be manifestly unjust. Stated another way, Vontress argues that the underlying substantive issues raised in his motion must be addressed in order to determine the preliminary procedural issue of timeliness.
Notably, a panel of our court rejected a similar argument in Toney v. State, 39 Kan. App. 2d 944, 187 P.3d 122, rev. denied 287 Kan. 769 (2008). In Toney, the movant filed an untimely K.S.A. 60-1507 motion asserting a claim of ineffective assistance of trial counsel. After a nonevidentiary hearing, the district *454 court denied the motion, in part, due to its untimely filing. On appeal, the movant argued that his case should be remanded to the district court for an evidentiary hearing to address the merits of his ineffective assistance of counsel claim because failing to address the merits of his claim would be manifestly unjust.
The Toney court was not persuaded by the movant's argument, reasoning that if it were to accept such an argument, "we would have to remand for an evidentiary hearing every time the trial court dismisses a K.S.A. 60-1507 motion as untimely. This cannot be done as it would render the 1-year time limitation under K.S.A. 60-1507(f)(l) essentially meaningless." 39 Kan. App. 2d at 947, 187 P.3d 122. In affirming the decision to deny the movant's motion, the Toney court noted that the movant failed to allege any circumstances preventing him from filing his motion before the expiration of the 1-year time period. Thus, the court concluded that the movant had failed to make a showing of manifest injustice that would allow him to proceed forward with his motion despite its untimely filing. 39 Kan. App. 2d at 947, 187 P.3d 122.
As in Toney, Vontress does not allege any circumstances preventing him from filing his motion prior to June 30, 2004. In the absence of such circumstances, there is no basis upon which to find that addressing the merits of his claim would prevent a manifest injustice. Accordingly, we find no error in the district court's decision to deny Vontress' motion as untimely without addressing the merits set forth therein.
Affirmed.
LEBEN, J., concurring.
Because Damon Vontress filed his K.S.A. 60-1507 motion 4 years too late, his claim may only be heard "to prevent manifest injustice." K.S.A. 60-1507. I agree with the majority that Vontress has not made that showing, but my rationale is somewhat different.
The majority relies on Toney v. State, 39 Kan. App. 2d 944, 187 P.3d 122, rev. denied 287 Kan. 769 (2008), which found no manifest injustice when the prisoner had not shown that "circumstances prevented him from asserting his claim before the 1-year time limitation had expired." 39 Kan. App. 2d at 947, 187 P.3d 122. In my view, if Toney stands for the proposition that a prisoner must make that showing as a precondition to consideration of a K.S.A. 60-1507 motion filed outside the 1-year time limit, that is too narrow a definition for manifest injustice. If a person can show actual innocence, for example, I would not leave him or her in prison even if that person failed for unexplained reasons to meet the 1-year time limit.
In this case, Vontress has presented neither a reason for his delayed filing nor a potentially valid claim. In a recent, though unpublished opinion, a panel found a claim very similar to his to have no merit. See Washington v. State, No. 100,657, 2009 WL 3082582, at *1-5 (Kan.App.2009), rev. denied 290 Kan. ___ (2010). I therefore agree with the majority that he has not shown manifest injustice. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632682/ | 103 P.3d 177 (2004)
2004 UT App 419
In the Matter of the ADOPTION OF E.H., a minor.
T.H., Appellant,
v.
R.C. and S.C., Appellees.
No. 20030780-CA.
Court of Appeals of Utah.
November 18, 2004.
*178 Linda Faye Smith, Salt Lake City, for Appellant.
Melvin G. Larew, Draper, and Gregory P. Hawkins and Rick L. Sorensen, Hawkins & Sorensen, Murray, for Appellees.
Before Judges BENCH, ORME, and THORNE.
OPINION
ORME, Judge:
¶ 1 T.H. appeals the trial court's ruling that the parties' stipulation for evaluation and final resolution of a contested adoption would not be enforced. We reverse and remand.
BACKGROUND
¶ 2 Faced with an unplanned pregnancy, T.H. contacted the Adoption Law Center, a California law office, in the fall of 2000, to explore the option of placing her unborn child for adoption. Around the same time, a Utah couple (the Cs) hired Families for Children, a licensed Utah child placement agency, to perform a home study of their family so as to be eligible to adopt a child. Suzanne Stott, Director of Families for Children, handled the home study, which she based on a *179 family group interview she conducted in the Cs' home. Stott submitted her report on the Cs to the Families for Children adoption panel and recommended approval of the family as eligible to adopt. The panel approved the Cs for adoption privileges.
¶ 3 On November 14, 2000, the Cs, who are Caucasian, contacted the Adoption Law Center and expressed interest in adopting an African-American baby. They sent a letter to the Adoption Law Center that described their family, which an employee subsequently read over the telephone to T.H. The employee then arranged for T.H. and the Cs to talk via telephone. After their conversation, they informed the Adoption Law Center that they wished to arrange for the Cs' adoption of T.H.'s expected baby. The Cs retained Families for Children to provide adoptive services to T.H. and to take her relinquishment for the adoption.
¶ 4 On November 24, 2000, T.H. flew to Utah and gave birth to her baby three days later. On November 29, T.H. signed a document relinquishing her parental rights and granting custody of the child to Families for Children.
¶ 5 T.H. and her other two children lived with the Cs for approximately two and one-half months following the birth. During the course of her stay at the Cs' home, and after close observation of the family, T.H. became concerned with the way the Cs were raising their children. She concluded that the home study evaluation conducted by Stott, which was the basis for Families for Children's decision to approve the Cs to adopt and was influential in T.H.'s decision to select the Cs to adopt her baby, inaccurately described the Cs' family and the way the Cs were raising their children.[1]
¶ 6 The evaluation reported that two of the C children were honor students. However, T.H. noted that the children were actually home schooled, were far from "honor students" in any usual sense of the term, and appeared to be delayed in their education for their ages. She also noted that the children appeared to have no healthy relationships outside the family and that the children with disabilities seemed to be totally isolated from the rest of the family.[2] T.H. was particularly surprised that the ten-year-old with Down syndrome was still in diapers, as her own Down syndrome brother had been out of diapers since age three.
¶ 7 Based upon these postrelinquishment concerns, T.H. moved out of the Cs' home and filed a verified petition for custody of her child. Shortly thereafter, the Cs filed a petition for adoption. The court consolidated both the custody case and the adoption case on joint motion of the parties.
¶ 8 On August 31, 2001, the Cs filed a motion to dismiss T.H.'s petition, to which T.H. timely responded. In October 2001, T.H. filed a motion for summary judgment. Instead of waiting for the court to rule on the motions, the two sides, both represented by counsel, agreed to stipulate to a final resolution of the case. The stipulation provided that a clinical psychologist "shall determine what custody arrangement or decree of adoption should be ordered and whether any order for visitation or other contact should also be entered in this case." The parties further stipulated to "be bound by the recommendation(s) of the [clinical psychologist] and said recommendation(s) may be entered as the Judgment(s) of this Court without further proceedings." Based upon this stipulation, Judge Taylor entered an order approving and implementing the stipulation, and authorizing the appointment of a clinical psychologist to conduct the evaluation and recommend "an equitable and just outcome to promote the best interests of the infant." The parties ultimately appointed Dr. Chris Wehl, "a psychologist with expertise in conducting *180 custody evaluations," to evaluate the issues in this case.
¶ 9 Approximately one year after the parties appointed Dr. Wehl to evaluate the case, Dr. Wehl completed the custody evaluation.[3] He concluded that the Cs' petition for adoption should be dismissed and that the child should be returned to T.H. T.H. filed a motion to adopt the evaluator's recommendation, dismiss the Cs' adoption petition, and grant custody to T.H. immediately. The Cs objected to this motion and to the custody evaluation, asserting that the custody evaluation "contains factual inaccuracies and may be biased as a result of a conflict of interest." Judge Jones, who replaced the recently retired Judge Taylor as the judge responsible for this case, determined that it would be inappropriate to adopt Dr. Wehl's recommendations.[4] At a later evidentiary hearing, convened to determine whether T.H. could legally revoke her consent, Judge Jones granted the Cs' petition for adoption. T.H. appeals.
ISSUES AND STANDARD OF REVIEW
¶ 10 T.H. argues that Judge Jones erred in ignoring the parties' stipulation and deviating from Judge Taylor's order implementing the stipulation. Issues involving the deviation from prior orders are ordinarily reviewed under an abuse of discretion standard. See Mascaro v. Davis, 741 P.2d 938, 942, 946-47 (Utah 1987).
ANALYSIS
¶ 11 Judge Jones voided the stipulation between the parties, reasoning that although they had in fact agreed to be bound by the findings and recommendation of Dr. Wehl the court "does not believe it is in the best interest of the baby to enforce the stipulation." T.H. argues that the parties' stipulation was indeed a binding settlement agreement that should have been enforced by the court. Accordingly, the central issue in this case turns on whether it was an abuse of discretion for Judge Jones to refuse to adopt the recommendation of Dr. Wehl, especially given that Judge Taylor had expressly approved the stipulated arrangement which culminated in the recommendation.
¶ 12 The Utah Supreme Court has stated that "[i]t is a basic rule that the law favors the settlement of disputes." Mascaro, 741 P.2d at 942. Such "[s]ettlements are favored in the law, and should be encouraged, because of the obvious benefits accruing not only to the parties, but also to the judicial system." Tracy-Collins Bank & Trust Co. v. Travelstead, 592 P.2d 605, 607 (Utah 1979). Moreover, the Court noted, "so simple and speedy a remedy serves well the policy favoring compromise, which in turn has made a major contribution to its popularity." Id. at 609 (internal quotations and citation omitted). Thus, "the trial court has power to summarily enforce on motion a settlement agreement entered into by the litigants while the litigation is pending before it." Id. (internal quotations and citation omitted).
¶ 13 The determination of whether to enforce a settlement agreement is governed by "basic contract principles." Mascaro, 741 P.2d at 942. The Mascaro Court noted that "whether a court should enforce such an agreement does not turn merely on the character of the agreement." Id. Rather, a settlement agreement "constitutes an executory *181 accord. Since an executory accord `constitutes a valid enforceable contract,' basic contract principles affect the determination of when a settlement agreement should be so enforced." Id. (footnotes and citations omitted).
¶ 14 Given the background of this case, it is clear that both sides intended for the stipulation to be a binding settlement agreement. Each had much to lose in forging ahead to a purely legal resolution, and each had, to their credit, the desire to do what was best for the child. At the same time, each side recognized its own lack of objectivity and the wisdom of trusting a neutral professional to make a sound recommendation to the court. The stipulation to which they agreed specifically had as its goal not just the resolution of litigation, but advancing "the best interests of the infant."[5]
¶ 15 Prior to the time the parties entered into the stipulation, both sides had submitted winner-take-all motions. T.H. had filed a verified petition for custody, seeking to prevent the Cs from adopting the child because of her concerns about the child's welfare under the Cs' care. Around the same time, the Cs sought closure in the adoption matter and filed a petition for adoption and a motion to dismiss, averring that the child would fare better in the Cs' home than in T.H.'s home. Instead of pursuing these motions to their respective ends, however, both parties prudently agreed to abandon their claims against one another and stipulated to an evaluation and final resolution of the case.[6] The stipulation provided, in part, for a neutral custody evaluator, which both parties would agree upon as they ultimately did to determine who should exercise parental rights over the child.
¶ 16 The stipulation is valid under basic contract principles, and the Cs do not argue otherwise. Rather, the Cs appear to concede that under general principles of contract, settlement, and stipulation, the order entered by Judge Jones and challenged in this appeal cannot be sustained. Instead, they argue that the stipulation is invalid on other grounds, and that Judge Jones's order invalidating it should be affirmed on the basis of other criteria. We address each of the Cs' assertions in turn, while noting with admitted skepticism that none of these concerns about the validity of the stipulation or enforceability of Judge Taylor's order based thereon were raised by the Cs with the trial court until after Dr. Wehl had made his recommendation in favor of T.H.
¶ 17 First, the Cs argue that the stipulation was invalid when entered into because it impermissibly vested a nonjudge, Dr. Wehl, with final decisionmaking authority. While a court is prohibited from delegating its "core judicial function[s]," such as entering final orders and judgments, it is not prohibited from employing individuals to aid the court in its role as decision maker. Salt Lake City v. Ohms, 881 P.2d 844, 848 (Utah 1994).[7] The Utah Supreme Court has recognized *182 that a trial court may "utilize referees, court commissioners, and other assistants for various purposes." Id. Here, the Cs fail to distinguish between the circumstances that prohibit a court from delegating its core judicial functions to a nonjudge and those that permit a court to utilize an expert assistant to aid in the judicial process.
¶ 18 In Ohms, the defendant was charged with providing false or misleading information to a police officer. See id. at 846. Prior to his trial, the defendant signed a consent form in which he "consented to have his case tried and final judgment entered by a circuit court commissioner." Id. The Court held that the commissioner could not serve as a de facto judge and perform core judicial functions, such as entering final orders and judgments or imposing sentence. See id. at 851. However, the Supreme Court specifically noted that its ruling did not prohibit a commissioner from aiding the court in a variety of other functions, including "mak[ing] recommendations to the court regarding any issue in domestic relations and spouse abuse cases" or "conduct [ing] hearings with parties and their counsel present ... for the purpose of submitting recommendations to the court[.]" Id. at 851 n. 17 (second alteration in original) (internal quotations, emphasis, and citation omitted). Clearly, the Court recognized the propriety of judges relying upon nonjudicial recommendations in appropriate cases.
¶ 19 In this case, at the parties' behest, Judge Taylor entered an order approving and implementing the parties' stipulated arrangement for settling their dispute while advancing the child's best interest. At the center of this arrangement was their mutual pledge to rely upon a licensed clinical psychologist to recommend custody arrangements and/or a decree of adoption. While the parties agreed to be bound by the recommendation, the court still retained the ultimate authority to enter the final order of the court. Unlike in Ohms, where the commissioner presided over the trial and entered the judgment of the court, Dr. Wehl had no power to enter an order. Rather, Dr. Wehl's only assignment entailed conducting an unbiased evaluation and making recommendations relative to the best interests of the child. The parties contracted to abide by those recommendations and to waive all claims inconsistent therewith. The court held the ultimate authority to preside over the proceedings, to make sure the recommendations were properly arrived at, and to enter the final order.[8] Of course, the stipulation of the parties waiving their respective claims and defenses and indicating they would be bound by the recommendations of the evaluator, and the court's approval of the arrangement, did restrict the usually unfettered prerogative of the court to ignore a mere recommendation.
¶ 20 Second, the Cs maintain that the stipulation was invalid because it caused the parties to stipulate to an "erroneous legal standard." The Cs assert that section 78-30-4.16 of the Utah Code expressly requires that it first be determined whether T.H. could show the grounds necessary to revoke her relinquishment of rights before determining what would be in the best interests of the child. The Cs argue that the parties stipulated to an erroneous legal standard by agreeing to have an evaluator determine what custody arrangement would be best for *183 the child without having the court address whether T.H.'s original relinquishment was valid. Section 78-30-4.16 contains no such express requirement.[9]See Utah Code Ann. § 78-30-4.16 (2002). Regardless, the case before us does not require us to address whether, in the ordinary case, the validity of a relinquishment must be determined before the best interests of the child are determined. This is because the Cs failed to raise this argument when T.H. first contested the adoption, and subsequently waived the right to raise it by entering into the stipulation and agreeing to be bound by the recommendations of the evaluator. The Cs cannot now renege on their obligation to accept the recommendation of the evaluator, raising an argument they waived by entering into the stipulation, solely because they do not agree with Dr. Wehl's recommendation. Similarly, Judge Jones's determination that "whether or not the Relinquishment was valid must be determined before the best interest of the child is determined," while generally true,[10] is incorrect in this case, where the validity of the relinquishment was put in issue and the parties, by stipulation, then waived their respective claims concerning the validity of the relinquishment. In other words, the stipulation is not invalid because it permitted resolution of the case without determining whether the relinquishment was enforceable. Instead, the enforceability of the relinquishment was among the issues swept away by the parties' stipulation and their decision to compromise their mutually inconsistent legal theories by having the case resolved in the best interests of the child, as evaluated by a neutral expert.
¶ 21 In the Cs' final argument opposing the validity of the settlement stipulation, they argue that, notwithstanding the law of the case doctrine, Judge Jones properly departed from Judge Taylor's prior order. T.H. argues, on the other hand, that in light of the law of the case doctrine, Judge Jones was bound by Judge Taylor's prior order and was powerless to deviate from it.
¶ 22 While T.H.'s rigid view of the doctrine is often advanced by parties who would benefit from its application, we reiterate that the law of the case doctrine is a flexible principle-not an absolute limit on the court's power nor "`an inexorable command that rigidly binds a court to its former decisions.'" Gillmor v. Wright, 850 P.2d 431, 439 (Utah 1993) (Orme, J., concurring) (citations omitted). Rather, it "merely expresses the practice of courts generally to refuse to reopen what has been decided." Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912). "The law of the case doctrine is not a limit on judicial power, but only a practice designed `to protect both court and parties against the burdens of repeated reargument by indefatigable diehards.'" Gillmor, 850 P.2d at 439 (Orme, J., concurring) (quoting 18 Charles A. Wright et al., Federal Practice and Procedure § 4478, at 789-90 (1981)). In the context of this case, it is important to emphasize that, properly understood, the law of the case doctrine did not restrict the scope of Judge Jones's discretion any more than Judge Taylor's was restricted by the court's prior order approving and implementing the parties' stipulation. With one exception not relevant here, see Utah Code Ann. § 78-7-19(1) (2002), initial and subsequent judges of the same court are on the same footing as concerns the effect of a prior order on later judicial action. See Trembly v. Mrs. Fields Cookies, 884 P.2d 1306, 1311 n. 4 (Utah Ct.App.1994) ("`[I]n a sense, the two judges, while different persons, constitute a single judicial office for law of the case purposes.'") (quoting Gillmor, 850 P.2d at 439-40 (Orme, J., concurring)).
¶ 23 Although we have explained that the doctrine is not an "inexorable command," we *184 view it as a sound presumptive rule and its application should not be disregarded in the exercise of unfettered discretion. Because of the rule's sensible principles, "[t]he standards announced for departing from the law of the case commonly demand strong justification," 18B Charles A. Wright et al., Federal Practice and Procedure § 4478, at 670 (2002), and judges should not depart from the doctrine unless a compelling reason exists.
¶ 24 No such reason exists in this case. The Cs have not demonstrated that the stipulation and resulting order were so flawed that they demanded repudiation by Judge Jones, nor that Dr. Wehl's recommendation was so outlandish as to compel rejection. The Cs primary argument is that the stipulation was breached because the evaluation was flawed and the recommendation was not in the best interests of the child. We disagree.
¶ 25 The stipulation's guiding principle was that a neutral evaluation would go a long way in meeting the child's best interest. It is apparent that Dr. Wehl had only this goal in mind, as evidenced by the exhaustive evaluation he prepared and submitted.[11] In conducting the evaluation, he was instructed to primarily consider the conduct of all the parties in determining what would be in the child's best interest, as well as to consider the interests of the other minor children of both parties.[12] To comply with these guidelines, Dr. Wehl personally interviewed each member of both families and prepared a summary of his observations. He allowed each party to present their version of the events relevant to this case and allowed them to respond to and submit documents refuting any accusations made by the opposing party.
¶ 26 During his home visits, Dr. Wehl made observations about child autonomy, family interactions, and the physical environment. Time spent away from the parties was used for reviewing court documents, affidavits, DCFS records, school records, medical records, and depositions. He used a variety of psychological assessments of the parties to examine various dimensions of their personalities, including multiphasic personality inventories, a parent-child relationship inventory, and various intelligence achievement tests. When reviewing all the data compiled during the course of his evaluation, Dr. Wehl weighted the data differentially, depending upon the reliability of the data or source. Highest priority was given to information coming from independent third parties and other objective information, while lowest priority was given to inconsistent or clearly biased statements.
¶ 27 It is apparent that, when the parties entered into the stipulation, their intent was to rely upon the evaluation of a qualified clinical psychologist who could provide them with an unbiased recommendation. As shown in the record, Dr. Wehl's impartial methods provided this reliable avenue for determining the best interests of the child.
¶ 28 As evidence that the child would not fare as well if raised by the Cs, Dr. Wehl identified specific conditions in the Cs' home that could be inimical to the child's best interest. For example, among many other things, he noted that the C children were delayed in their educational development and exhibited minimal social skills, which was supported by his observation that the "level of social isolation experienced by the [C] family is quite severe"; one child had "no friends and no social outlets"; and the Cs' solution to family problems was "to isolate" the children.
¶ 29 Confirming T.H.'s concern, he noted that the average range for successful toilet training in a Down syndrome child is from two to seven years old. However, the Cs' ten-year-old child with Down syndrome still *185 wore diapers and received no active toilet training from any family members. With apparent concern, he identified the two children with cerebral palsy and Down syndrome as receiving differential treatment and experiencing possible neglect.[13] The evaluation set forth the following reasoning for Dr. Wehl's final recommendation:
It is evident that the decisions of [the Cs] have seriously hampered the development of the [C] children socially and educationally. All of the children are many years delayed in their educational development. The social needs of the children have not been met to any significant extent. [T.H.'s c]hildren, by contrast, are functioning quite well, socially and educationally. What difficulties they have [T.H.] is aware of, and working with appropriate people (e.g., schools, tutors) to remedy.[14]
¶ 30 The Cs argue that Dr. Wehl's recommendation was not in the best interests of the child. However, given Dr. Wehl's findings, we cannot say the evidence weighs against his ultimate recommendation much less to the degree required to overcome the presumptive effect of the law of the case. Dr. Elizabeth Stewart, an attorney and clinical psychologist with recognized expertise in the area of child custody, reviewed Dr. Wehl's detailed custody evaluation and attested to its competency:
[T]he process complied with professional standards and ... the evidence relied upon comported with professional standards and with legal standards in custody and adoption cases. Given the facts reported, the ultimate recommendation to disallow the adoption and return custody to [T.H.] appears to be appropriate and in the best interests of the child. I find no reason to question that ultimate recommendation on either psychological or legal grounds.[15]
¶ 31 Because the Cs have not demonstrated that Dr. Wehl's evaluation was biased, not in the best interests of the child, or otherwise flawed, we hold that Judge Jones abused his discretion in not enforcing the parties' stipulation, in departing from the prior order entered by Judge Taylor, and in rejecting Dr. Wehl's recommendation in the absence of demonstrated irregularities in his methods or conclusions.
CONCLUSION
¶ 32 We hold that the stipulation was intended to be a binding settlement agreement, to provide a process for a full, fair, and complete resolution of the contested adoption. Because there appears to be no reason for noncompliance with the settlement agreement other than the Cs' disagreement with the outcome of the evaluation, we see no basis on which the parties' stipulation and the resulting order of Judge Taylor can properly be renounced, especially given the presumptive effect of the law of the case doctrine. Because we do not detect any fatal flaws in the creation or implementation of the settlement agreement, it should have been enforced by Judge Jones. Judge Jones abused his discretion in departing from Judge Taylor's order and should have enforced the stipulation for evaluation and final resolution. Accordingly, we vacate Judge Jones's order and remand for such other proceedings as may now be appropriate.
¶ 33 I CONCUR: WILLIAM A. THORNE JR., Judge.
*186 ¶ 34 I CONCUR IN THE RESULT: RUSSELL W. BENCH, Associate Presiding Judge.
NOTES
[1] T.H. also claimed to have been misled about Mr. C's "alcohol problem," and indeed Mrs. C "acknowledged that her husband was a recovering alcoholic," but Judge Jones specifically found that T.H. had not been misled on this point. Judge Jones also found that T.H. was not materially misled by Mrs. C's exaggeration of her professional credentials. (Mrs. C represented herself to T.H. as a "nurse," but was actually a "certified nurse assistant," having completed the six-month course in three weeks time.)
[2] At the time, the Cs had five children between the ages of ten and seventeen, all of whom were adopted, and some of whom had disabilities.
[3] There is no question that Dr. Wehl submitted a thorough evaluation. He clearly exercised great care and appropriate professional judgment in undertaking the evaluation. At the same time, a year in the life of an infant is a very long time, and the need for greater haste should have been apparent, particularly if there was any possibility the recommendation would be to restore the child to T.H. While taking a full year to complete the work seems questionable, we note that, during the course of Dr. Wehl's work, neither side complained to the court about how long it was taking and neither side asked the court to set a deadline for completion of the evaluation.
[4] Judge Jones concluded that the stipulation was unenforceable because Dr. Wehl's evaluation was flawed. He based this determination on the opinions of the Cs, Suzanne Stott, Dr. Matthew Davis, and J. Neil Birch, a licensed sociologist, who posited that the best interests of the child would be served by adoption. Other grounds for Judge Jones's decision included the amount of money the Cs spent on the adoption and related legal proceedings, the fact that Dr. Wehl's professional practice focused more heavily on custody in divorce proceedings than adoption cases, and Dr. Wehl's choice of guidelines in undertaking the evaluation.
[5] Thus, the stipulation and Judge Taylor's implementing order pose none of the evils that could arise in settling litigation of this sort, e.g., compromise induced by the payment of cash; or resolution on the basis of a legal standard other than the best interests of the child, such as on the basis of which family has the greater net worth or is more devoutly religious; or entrusting the recommendation not to a clinical psychologist with expertise in custody evaluations, but to a welder or astrophysicist.
[6] The stipulation outlines the rights forfeited by both parties and imposes related obligations on them:
[T.H.] having waived any right to proceed on her claim to set aside the relinquishment for fraud, constructive fraud, violation of procedures, breach of contract, or for any other good cause in light of the parties' Stipulation, it is hereby ordered that she shall not challenge the Judgment in this case or in the adoption case on the basis of such claims. [The Cs] and Families for Children having waived any right to object to or challenge the propriety or enforceability of a Judgment for post-adoption contact in this case in light of the parties' Stipulation, it is hereby ordered that they shall not challenge such an order or Judgment for post-adoption contact should such an order or Judgment be recommended.
[7] The Court in Salt Lake City v. Ohms, 881 P.2d 844 (Utah 1994), described certain powers as nondelegable core judicial powers. The Court explained that "[t]he term `judicial power of courts' is generally understood to be the power to hear and determine controversies between adverse parties and questions in litigation." Id. at 849 (citations omitted). See, e.g., Holm v. Smilowitz, 840 P.2d 157, 165 (Utah Ct.App.1992). Nondelegable judicial powers include "the authority to hear and determine justiciable controversies[;] ... the authority to enforce any valid judgment, decree or order[;]... [and the] power[] that [is] necessary to protect the fundamental integrity of the judicial branch." Ohms, 881 P.2d at 849 (internal quotations and citations omitted).
[8] The Cs argue that Judge Taylor agreed to be impermissibly bound by Dr. Wehl's recommendation. However, the stipulation mandated that Dr. Wehl conduct his evaluation "in accordance with [the best interests of the child], in accordance with best practices in custody and adoption studies and evaluations, and as counsel shall specifically request." If Dr. Wehl had conducted the evaluation in a manner that subverted the best interests of the child, departed from the best practices in custody and adoption studies and evaluations, deviated from counsel's specific requests, or otherwise varied from the provisions of the stipulation, Judge Taylor of course retained the authority to deviate from Dr. Wehl's recommendation. As his successor, Judge Jones likewise had this same authority to make sure the terms of the stipulation had been faithfully implemented and to deviate from Dr. Wehl's recommendations if it became clear the stipulation had been breached.
[9] Section 78-30-4.16(1) insures that all parties entitled to notice and consent have not been denied that right, and section 78-30-4.16(2) requires a court to conduct an evidentiary hearing when an adoption petition is denied. See Utah Code Ann. § 78-30-4.16(1), (2) (2002).
[10] See In re Adoption of B.T.D., 2003 UT App 99,¶ 19, 68 P.3d 1021 ("A parent's consent to adoption is irrevocable in Utah, see Utah Code Ann. § 78-30-4.20 (2001), unless the parent can show that the consent `was not entered into voluntarily but was induced through duress, undue influence, or under some misrepresentation or deception; or other grounds which would justify release from the obligations of any contract.'") (citation omitted).
[11] As one justification for voiding the stipulation between the parties, Judge Jones stated that Dr. Wehl used the wrong guidelines to conduct the evaluation because he used the guidelines for a custody evaluation in a divorce proceeding rather than the guidelines for an adoption proceeding. However, Dr. Elizabeth Stewart, a clinical psychologist with forty-four years experience in conducting adoption evaluations, reviewed Dr. Wehl's evaluation and averred that it complied with the proper standards used in both custody and adoption cases.
[12] At the time Dr. Wehl completed his evaluation, T.H. had two minor children and the Cs had four minor children and one eighteen-year-old son who no longer lived at home.
[13] Dr. Wehl reported that the child with cerebral palsy was, on several occasions, left alone curbside to wait twenty-five to thirty-five minutes for the bus in near freezing temperatures. He also noted that the room shared by the children with disabilities emitted a strong odor of feces and urine.
[14] In a final attempt to discredit the validity of the stipulation, the Cs assert that the enforcement of the stipulation violates public policy because in his evaluation, Dr. Wehl indicated race as "[a]nother element of importance in this case." However, after viewing the evaluation in its entirety, it is clear that Dr. Wehl did not base his recommendation upon race, but upon his conclusions about the Cs' inability to properly socialize their children.
[15] The affidavits of school principal Art Stowers, Professor John McDonnell, and Phillip Johnson also indicate that Dr. Wehl's recommendation was in the best interests of the child at that time. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632685/ | 103 P.3d 153 (2004)
2004 UT App 410
STATE of Utah, Plaintiff and Appellant,
v.
Candelo Perez LOPEZ, Defendant and Appellee.
No. 20030568-CA.
Court of Appeals of Utah.
November 12, 2004.
*154 Mark L. Shurtleff, Atty. Gen., and Karen A. Klucznik, Asst. Atty. Gen., Salt Lake City, for Appellant.
Denise M. Williamson and Linda M. Jones, Salt Lake City, for Appellee.
Before BILLINGS, P.J., BENCH, Associate P.J., and JACKSON, J.
OPINION
JACKSON, Judge:
¶ 1 In this interlocutory appeal, the State challenges the district court's order, which dismissed a charge of aggravated kidnapping but allowed the State to proceed on a separate charge of attempted murder. We vacate the order and remand.
BACKGROUND
¶ 2 In 2002, the State charged Candelo Perez Lopez with aggravated kidnapping, a first degree felony, and attempted murder, a second degree felony. See Utah Code Ann. §§ 76-5-302 (2001); -5-203 (1999); -4-101 (1999). Lopez waived his right to a preliminary hearing and was bound over on both counts. Prior to trial, Lopez moved to dismiss the aggravated kidnapping charge. The district court held a pretrial evidentiary hearing, at which Lopez's alleged victim testified. Relying on State v. Finlayson, 2000 UT 10, 994 P.2d 1243, the district court ruled that the kidnapping charge merged with the attempted murder charge.
ISSUE AND STANDARD OF REVIEW
¶ 3 The issue before us is whether a trial court can decide whether charges merge in a pretrial evidentiary hearing. This is a question of law, which we review for correctness. See State v. Pena, 869 P.2d 932, 936 (Utah 1994).
ANALYSIS
¶ 4 The question of merger arises when "[t]wo statutes or two portions of a single statute proscribe certain conduct, and the question is whether the defendant can be *155 punished twice because his conduct violates both proscriptions." Gore v. United States, 357 U.S. 386, 393-94, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958) (Warren, C.J., dissenting). For example, as part of the crime, a rapist necessarily physically detains the victim. This crime comprises activity that could be charged as both kidnapping and rape. See id.; State v. Couch, 635 P.2d 89, 93 (Utah 1981). When the conduct comprising one charge is "slight, inconsequential, and merely incidental to the other crime," a court should rule that the charges merge together for punishment purposes. Finlayson, 2000 UT 10 at ¶ 23, 994 P.2d 1243 (quotations and citation omitted). When charges merge, "[i]t is not the case that the defendant is not guilty of the lesser offense; it is rather the case that he is guilty of those lesser offenses but simply is not to be twice punished." White v. Maryland, 100 Md.App. 1, 639 A.2d 194, 199 (Ct.Spec.App.1994).
¶ 5 The State argues that the Finlayson merger doctrine applies only after the defendant is convicted on multiple charges. Finlayson and our subsequent cases do indeed contain language that can lead to confusion regarding when a trial court should rule on a defendant's motion to merge charges. In Finlayson, the defendant was convicted of forcible sodomy, rape, and aggravated kidnapping. See 2000 UT 10 at ¶ 1, 994 P.2d 1243. On appeal, Finlayson argued that he had been provided ineffective assistance of counsel. See id. at ¶ 27. The Utah Supreme Court agreed that the trial counsel's assistance was ineffective, noting that trial counsel had "failed to raise [the merger argument] at any time, either during trial, or following the conviction on a motion to vacate." Id. at ¶ 24.
¶ 6 Then, in State v. Hawatmeh, at the preliminary hearing, the magistrate had ruled that aggravated kidnapping charges merged with aggravated assault and kidnapping charges. See 2001 UT 51, ¶¶ 1, 17 n. 3, 26 P.3d 223. The supreme court reversed, holding that the State had met the burden to bind over the defendants on the aggravated kidnapping charge. See id. at ¶ 20. Because the district court had relied on Finlayson in its ruling, the supreme court noted "Finlayson is not applicable to the instant case, however, because we are not dealing with convictions for aggravated kidnapping, but merely aggravated kidnapping charges." Id. at ¶ 17 n. 3.
¶ 7 Next, in State v. Smith, the defendant appealed after the trial court had denied his motion to merge his convictions. See 2003 UT App 179,¶ 11, 72 P.3d 692, cert. denied, 84 P.3d 239 (Utah 2003). Relying on the Hawatmeh footnote, the State argued in response that the defendant had not preserved the issue because he had raised the issue only before he was convicted. See id. at ¶ 11 n. 4. The court dismissed the State's argument, noting
[t]he State interprets [the Hawatmeh footnote] to mean that the issue of merger cannot be properly considered until after a jury has rendered its verdict and defendant is subject to multiple convictions for the same act. However, a brief review of Finlayson clearly contradicts this interpretation.... [In the Hawatmeh footnote] the court was merely explaining that double jeopardy considerations were not properly implicated at the bindover phase of a criminal prosecution.... Smith preserved this issue.
Id. (quotations and citation omitted). Because the court was addressing how a defendant can preserve a merger argument, the Smith court's conclusion, "the issue of merger cannot be properly considered," id., refers to when the defendant should make the argument not when the court should make its ruling. Thus, these cases hold that a defendant can preserve the merger argument by raising the issue "at any time, either during trial, or following the conviction on a motion to vacate." Finlayson, 2000 UT 10 at ¶ 24, 994 P.2d 1243. However, these cases do not address when the court should rule on the issue of merger.
¶ 8 Courts apply the merger doctrine as one means of alleviating the concern of double jeopardy that a defendant should not be punished twice for the same crime. See Smith, 2003 UT App 179 at ¶¶ 11-12, 16, 72 P.3d 692; see also, U.S. Const. amend V; Utah Const. art. I, § 12. The merger doctrine does not apply before trial because the *156 double jeopardy protections attach only "`when an accused is put on trial ... and a jury has been sworn and impaneled.'" State v. Cram, 2002 UT 37,¶ 8, 46 P.3d 230 (quoting State v. Ambrose, 598 P.2d 354, 358 (Utah 1979)) (alteration in original). Accordingly, the protections provided by the merger doctrine are not applicable before trial. The trial court cannot assess whether, under the particular facts of the case, one charge merges into another until the prosecution has presented its case and the jury has convicted the defendant of multiple charges. To rule otherwise would provide protection against a danger that does not exist.
¶ 9 We recognize that trial courts have a compelling interest in running trials efficiently and in imposing as little burden on juries as possible. However, a premature dismissal of a charge in this context would deprive the jury of a legitimate option and create a new danger. The jury would not have the choice to convict on the aggravated kidnapping charge and acquit on the attempted murder charge. Hence, a premature merger ruling presents the possibility that Lopez could go free on both charges even if the state could have proved the aggravated kidnapping charge. Thus, the defense can object that charges merge "at any time, either during trial, or following the conviction on a motion to vacate," id. (citing Finlayson, 2000 UT 10 at ¶ 24, 994 P.2d 1243), but the trial court should rule on the objection only if the jury returns convictions.[1]
CONCLUSION
¶ 10 The trial court erred by ruling on the merger objection prior to trial. The merger doctrine's protections do not apply until the jury has returned convictions, and premature merger rulings create a new danger. Accordingly, we vacate the dismissal and remand.
¶ 11 WE CONCUR: JUDITH M. BILLINGS, Presiding Judge and RUSSELL W. BENCH, Associate Presiding Judge.
NOTES
[1] "Although resolution of the above issue is dispositive of the present case," our general rule is that "where an appellate court finds that it is necessary to remand for further proceedings, it has the duty of pass[ing] on matters which may then become material." Bair v. Axiom Design, L.L.C., 2001 UT 20,¶ 22, 20 P.3d 388 (alteration in original) (quotations and citation omitted); see also Utah R.App. P. 30(a). In this case, it would be improper to determine whether merger should apply because, like the trial court, we do not have all of the relevant facts before us. We do note, however, that where merger applies, generally the lesser offense merges into the greater offense. In this case, the trial court would have departed from this practice and merged the greater offense into the lesser offense. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632686/ | 103 P.3d 171 (2004)
2004 UT App 423
Rebecca J. CASE, Petitioner and Appellee,
v.
Clark P. CASE, Respondent and Appellant.
State of Utah, Amicus Curiae.
No. 20030971-CA.
Court of Appeals of Utah.
November 18, 2004.
*172 David R. Hartwig, Salt Lake City, for Appellant.
Michael R. Labrum and Heather Jensen, Michael R. Labrum PC, Richfield, for Appellee.
Mark L. Shurtleff, Atty. Gen., and Karma K. Dixon, Asst. Atty. Gen., Salt Lake City, for Amicus Curiae.
Before BILLINGS, P.J., GREENWOOD, and ORME, JJ.
OPINION
GREENWOOD, Judge:
¶ 1 Clark Case (Father) appeals from the trial court's summary judgment in favor of Rebecca Case (Mother), ordering Father to pay $530 per month child support. Father argues that (1) the trial court lacked subject matter jurisdiction to modify the provision of the California Judgment of Dissolution addressing child support; (2) absent subject matter jurisdiction, the trial court erred in granting summary judgment in favor of Mother; and (3) the trial court erred in modifying the child support order without requiring a showing of a substantial change in circumstances. We reverse.
BACKGROUND
¶ 2 Father and Mother were married in California, in 1992. During their marriage, two children were born. In March 2002, the parties obtained a Judgment of Dissolution *173 (Divorce Judgment) in the Superior Court of Stanislaus County, California. At the time of the divorce, and as reflected in the Divorce Judgment, Mother and the two children had moved to Utah, and Father had moved to Maryland. Under the Divorce Judgment, "[c]hild support is ordered as set forth in the attached." Attached to the decree was "Attachment 4.o.," which states:
The issue of child support shall be reserved until the first of the following events:
a. The children attain age 18, and are not full-time high school students residing with a parent or until the time the children complete the 12th grade or attain the age of 19 years;
b. The children die;
c. The children enter into a valid marriage, are on active duty with any of the armed forces of the United States of America or receive a declaration of emancipation under California law;
d. Further order of the court.
¶ 3 The parties also signed a "Marital Settlement Agreement" which includes the same statement reserving the issue of child support as found in "Attachment 4.o." However, it also states, "[t]he parties stipulate that, if the child support awarded is less than the mandatory minimum level, no change of circumstances need be demonstrated to obtain a modification of the child support award to the applicable mandatory minimum level or above."[1]
¶ 4 In March 2003, Mother filed a "Verified Petition for Domestication of Decree and Modification of Decree" in Utah's Sixth District Court. Mother's petition asked the Utah court, after communicating with the California court, to determine that Utah was the best venue to make child support determinations and to modify the Divorce Judgment to order Father to pay an appropriate amount of child support. In April 2003, Father was served in Maryland with Mother's petition, to which he filed a pro se answer. Mother filed a motion for summary judgment with an attached affidavit and memorandum. Father failed to file a response to Mother's motion. Pursuant to Mother's notice to submit, and without holding a hearing, the trial court issued a ruling granting Mother's motion for summary judgment. Father then filed a motion for relief from judgment, which the trial court denied. The trial court also entered findings of fact and conclusions of law relating to the summary judgment previously granted. Father filed a timely appeal.
ISSUE AND STANDARD OF REVIEW
¶ 5 Father argues that the trial court lacked subject matter jurisdiction to modify the child support provisions of the California Divorce Judgment. Whether a trial court has subject matter jurisdiction presents a question of law which we review "`under a correction of error standard, giving no particular deference to the trial court's determination.'" Barton v. Barton, 2001 UT App 199,¶ 7, 29 P.3d 13 (citation omitted).[2]
ANALYSIS
I. Trial Court's Subject Matter Jurisdiction Under UIFSA
¶ 6 Father argues that the Utah trial court lacked subject matter jurisdiction to modify the Divorce Judgment and order him to pay child support. "`[B]ecause it is a threshold issue, we address jurisdictional questions before resolving other claims.'" Fisher v. Fisher, 2003 UT App 91,¶ 15, 67 P.3d 1055 (quoting Housing Auth. v. Snyder, 2002 UT 28,¶ 11, 44 P.3d 724).
¶ 7 The Utah Constitution gives the district courts subject matter jurisdiction "in *174 all matters except as limited by this constitution or by statute." Utah Const. art. VII, § 5. By statute, Utah district courts are given "exclusive jurisdiction over matters relating to divorce, child custody, paternity, and child support." Department of Human Servs. v. Child Support Enforcement, 888 P.2d 690, 692 (Utah Ct.App.1994). However, the district courts' jurisdiction over child support proceedings was modified when Utah passed the Uniform Interstate Family Support Act (UIFSA). See Utah Code Ann. §§ 78-45f-100 to -902 (2002). Congress required that all states adopt UIFSA "to further national uniformity in the enforcement of child support orders." Department of Human Servs. v. Jacoby, 1999 UT App 52,¶ 14, 975 P.2d 939.
¶ 8 UIFSA regulates the establishment, enforcement, or modification of support orders across state lines. See generally Utah Code Ann. §§ 78-45f-100 to -902. The primary purpose of UIFSA is to provide uniform child support enforcement laws between the states. See id. § 78-45f-901; Jacoby, 1999 UT App 52 at ¶ 14, 975 P.2d 939. "UIFSA is intended to `recognize that only one valid support order may be effective at any one time.'" LeTellier v. LeTellier, 40 S.W.3d 490, 493 (Tenn.2001) (quoting UIFSA, U.L.A. (1996) (prefatory notes)).
¶ 9 Utah's UIFSA confers subject matter jurisdiction upon Utah courts to modify child support orders issued by another state as long as certain conditions are met. See Utah Code Ann. § 78-45f-611 (2002). Section 78-45f-611 provides:
(1) After a child support order issued in another state has been registered in this state, the responding tribunal of this state may modify that order only if Section 78-45f-613 does not apply and after notice and hearing it finds that:
(a) the following requirements are met:
(i) the child, the individual obligee, and the obligor do not reside in the issuing state;
(ii) a petitioner who is a nonresident of this state seeks modification; and
(iii) the respondent is subject to the personal jurisdiction of the tribunal of this state.
Id. § 78-45f-611(1)(a)(i)-(iii) (emphasis added).[3]
¶ 10 Although Mother stated in her petition that she sought modification of the California child support order, the State, in its amicus memorandum, contends that Mother more appropriately seeks an initial order of support because the California court did not do so, but rather reserved the issue of child support. UIFSA similarly grants jurisdiction to Utah courts to establish a support order where an order otherwise entitled to recognition under UIFSA has not been issued if:
(a) the individual seeking the order resides in another state; or
(b) the support enforcement agency seeking the order is located in another state.
....
(3) Upon finding, after notice and opportunity to be heard, that an obligor owes a duty of support, the tribunal shall issue a support order directed to the obligor and may issue other orders pursuant to Section 78-45f-305.
Id. § 78-45f-401 (emphasis added). Both section 78-45f-611 and section 78-45f-401 clearly and unequivocally require that a petitioner be a nonresident of Utah in order to seek an initial order or a modification of child support under UIFSA in the State of Utah.
¶ 11 In this case, Mother and Father were divorced in California, and a California court issued the Divorce Judgment. The parties agreed at that time to reserve the issue of child support. After Father moved to Maryland and Mother moved to Utah, Mother sought a modification of the California order in a Utah court. Because she sought to modify the Divorce Judgment in Utah, the requirements of UIFSA were triggered. Whether the trial court was asked to modify the Divorce Judgment, or establish a new *175 child support order, it lacked jurisdiction over the matter because Mother, as a resident of Utah, fails to meet the necessary requirements to establish a new support order or modify an existing order from another state. See id. §§ 78-45f-401, - 611.
¶ 12 Mother does not dispute that she does not meet the requirements of sections 78-45f-401 and 78-45f-611. Rather, she argues that those sections are inapplicable because under section 78-45f-202, the trial court obtained subject matter jurisdiction over the case by virtue of its personal jurisdiction over Father. Section 78-45f-202 reads:
A tribunal of this state exercising personal jurisdiction over a nonresident under Section 78-45f-201 may apply Section 78-45f-316 to receive evidence from another state, and Section 78-45f-318 to obtain discovery through a tribunal of another state. In all other respects, Parts 3,4,5,6, and 7 do not apply and the tribunal shall apply the procedural and substantive law of this state, including the rules on choice of law other than those established by this chapter.
Id. § 78-45f-202.
¶ 13 Mother argues that under section 78-45f-202, parts 3, 4, 5, 6, and 7 of UIFSA do not apply to this case because the trial court obtained personal jurisdiction over Father. Included in parts 4 and 6 are sections 78-45f-401 and 78-45f-611, requiring the petitioner to be a nonresident. Accordingly, it is necessary to determine if section 78-45f-202 trumps the subject matter jurisdiction requirements found in sections 78-45f-401 and 78-45f-611. We conclude that the statutory language is ambiguous. Without any Utah case law on the subject, in order to determine the meaning of section 78-45f-202, we first turn to the official comments by the drafters of UIFSA. See Wilcox v. CSX Corp., 2003 UT 21,¶ 8, 70 P.3d 85 (stating that when statutory provision is ambiguous, "we then seek guidance from the legislative history...." (quotations and citations omitted)). Unlike the practice in some states, "comments by the drafters of uniform acts are not written into the statute when Utah adopts a version of a uniform act but are nevertheless considered relevant when seeking legislative intent." Carlie v. Morgan, 922 P.2d 1, 7 (Utah 1996) (Howe, J., concurring); see also Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1113 (Utah 1991) (stating that comments by the drafters of the Uniform Commercial Code provide "the only thing that could be described as legislative history on the issue").
¶ 14 The official comments to UIFSA sections 201[4] and 202 do not mention subject matter jurisdiction. Rather, they appear to assume that the forum state's court already has subject matter jurisdiction over the case. Instead, the comment to section 201 states that the purpose of sections 201 and 202 is to address long-arm jurisdiction over a nonresident respondent. See UIFSA, U.L.A., 18, (1996) (comment § 201). The drafters' intent was to "insure that every enacting State has a long-arm statute as broad as constitutionally permitted." Id. Thus, when a state has subject matter jurisdiction over a case, and the respondent lives in another state, sections 201 and 202 provide the basis for asserting the forum state's long-arm jurisdiction over the respondent.
¶ 15 The drafters' intent is further explained in the official comment to section 202. The comment states: "Assertion of long-arm jurisdiction over a nonresident essentially results in a one-state proceeding, notwithstanding the fact that the parties reside in different States." Id. at 20 (comment § 202). A one-state proceeding occurs when the forum state exercises its long-arm statute to bring the nonresident within the jurisdiction of the forum state, thus eliminating the interstate nature of the action. See id. In this one-state type of proceeding, section 202 provides that "[i]n all other respects, Parts 3, 4, 5, 6, and 7 [of UIFSA] do not apply and the tribunal shall apply the procedural and substantive law of this state...." Utah Code Ann. § 78-45f-202.[5] Thus, the *176 UIFSA drafters intended the exclusions of section 202 to apply in one-state proceedings where the forum state's court has subject matter jurisdiction over the case, and asserts personal jurisdiction over the out-of-state party. See UIFSA, U.L.A., 18, (1996) (comment § 202). Accordingly, section 202 only applies to proceedings to establish, enforce, or modify support orders of the forum state against an out-of-state respondent. It is not applicable when the support order was rendered by a state other than the forum state.
¶ 16 This analysis of the UIFSA drafters' intent is consistent with LeTellier v. LeTellier, 40 S.W.3d 490 (Tenn.2001), where the Tennessee Supreme Court faced a similar factual scenario and the same statutory interpretation question as is presented in this case. In LeTellier, a District of Columbia court had entered an order adjudging paternity and ordering the father to pay child support. See id. at 492. The mother later moved to Tennessee, and the father moved to Virginia. See id. Some years later, the mother filed a petition in Tennessee seeking to modify the child support award. See id. The trial court granted the father's motion to dismiss for lack of subject matter jurisdiction. See id. The Tennessee Court of Appeals reversed on the basis that UIFSA was preempted by federal law on the question of jurisdiction. See id. at 492-93. On appeal to the Tennessee Supreme Court, the mother argued that under section 202 of UIFSA, when a Tennessee court has personal jurisdiction over a nonresident, the other jurisdictional provisions of UIFSA are not applicable.[6]See id. at 494. The Tennessee Supreme Court rejected this argument, holding that section 202 applied only to "proceedings to establish, enforce, or modify Tennessee support decrees against an out-of-state resident." Id. The mother in LeTellier argued that because personal jurisdiction was obtained, she should be able to obtain a modification in Tennessee. Id. at 495. The supreme court stated:
[T]he order [the mother] sought to modify was issued by a state other than Tennessee. Tennessee courts lack subject matter jurisdiction to modify out-of-state orders when the provisions of UIFSA are not satisfied. Because this case still retains its interstate character, [section 202] has no application to this case. The remaining provisions of UIFSA, including the subject matter jurisdiction provisions of [section 611], still apply.
Id. (footnote omitted).
¶ 17 The Tennessee court also observed that the comments to section 201 and 202 "make no reference to subject matter jurisdiction and appear to presume that subject matter jurisdiction exists." Id. at 494. The court further observed that UIFSA "attempts to achieve a rough justice between the parties ... by preventing a litigant from choosing to seek modification in a local tribunal to the marked disadvantage of the other party." Id. at 495 (quotations and citation omitted). We agree with the analysis of the Tennessee Supreme Court and find it to be consistent with the UIFSA drafters' intent.
¶ 18 A petitioner under UIFSA must first establish subject matter jurisdiction under section 401 or 611. Without such compliance, the petition must be dismissed. Personal jurisdiction achieved under sections 201 and 202 does not confer the prerequisite subject matter jurisdiction. In the case before us, Mother asked a Utah court to modify a California support decree and order Father, a Maryland resident, to pay child support. Because this case does not involve a Utah support order, it still retains its interstate character, and Mother must satisfy the jurisdiction requirements of UIFSA for modifying an out-of-state support decree. Mother's residency in Utah precludes a Utah court from establishing or modifying child support pursuant to the parties' California Divorce Decree. See Utah Code Ann. §§ 78-45f-401, - 611.[7] Mother's remedies are to *177 initiate proceedings in a Maryland court, which would have both personal jurisdiction over Father and subject matter jurisdiction over the case pursuant to UIFSA, or in California where the court would have continuing jurisdiction.
CONCLUSION
¶ 19 The trial court lacked subject matter jurisdiction over this case because under UIFSA, a Utah court cannot establish, modify, or enforce a foreign support order unless the petitioner is a nonresident of Utah. Accordingly, we reverse the trial court's grant of summary judgment and its order requiring Father to pay child support and remand with instructions to dismiss Mother's petition.
¶ 20 WE CONCUR: JUDITH M. BILLINGS, Presiding Judge and GREGORY K. ORME, Judge.
NOTES
[1] The parties dispute the applicability of the "Marital Settlement Agreement." Father contends that it was not incorporated as part of the Divorce Judgment. In the record, it was not attached to the Divorce Judgment when Mother filed it along with her original petition. It was only filed later as an attachment to Mother's memorandum in opposition to Father's motion for relief from judgment. However, the Divorce Judgment indicates that in addition to "Attachment 4.o," a marital settlement agreement was also attached.
[2] Because of our disposition of the case on the first issue, it is unnecessary for us to consider Father's remaining two arguments.
[3] It appears that the trial court did not give notice and hold a hearing to determine whether the requirements of Utah Code section 78-45f-611 were met prior to modifying the California Divorce Judgment. See Utah Code Ann. § 78-45f-611 (2002).
[4] Utah Code section 78-45f-201 provides the circumstances under which a Utah court may exercise personal jurisdiction over a party to establish, enforce, or modify a support order. See Utah Code Ann. § 78-45f-201 (2002).
[5] Utah Code section 78-45f-202 provides two exceptions to the inapplicability of UIFSA in a one-state proceeding. See Utah Code Ann. § 78-45f-202 (2002). These exceptions allow the trial court to receive evidence from another state and to obtain discovery through a tribunal of another state. See id.
[6] The mother in LeTellier relied on Tennessee's UIFSA statutes which, while numbered differently, are substantively the same as Utah's UIFSA.
[7] We also recognize, as the State has pointed out, that Mother, who was apparently receiving assistance from the Office of Recovery Services, failed to give notice of her appeal to the Office of Recovery Services as is required under Utah Code section 78-45-9(2)(b)(iii). See Utah Code Ann. § 78-45-9(2)(b)(iii) (Supp.2004). | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632700/ | 103 P.3d 590 (2004)
2004 OK CR 35
Wayne Henry GARRISON, Appellant
v.
STATE of Oklahoma, Appellee.
No. D-2001-1513.
Court of Criminal Appeals of Oklahoma.
November 30, 2004.
Art Fleak, Michael D. Morehead, Kurt Hoffman, Todd Cole, Jaime D. Pybas, Division Chief, Capital Direct Appeals Division, for appellant at trial.
Timothy Harris, Tulsa County District Attorney, District Attorney's Office, Steven L. Sewell, Chad Moody, Assistant District Attorneys, Tulsa, OK, W.A. Drew Edmondson, Attorney General of Oklahoma, Grant M. Elmore, Assistant Attorney General, Oklahoma City, OK, for the State on appeal.
*595 LUMPKIN, J.
¶ 1 Appellant, Wayne Henry Garrison, was tried by jury in the District Court of Tulsa County, Case Number D-2001-1513, and convicted of First Degree Murder, in violation of 21 O.S.Supp.1989, § 701.7. The jury set punishment at death, after finding the existence of two aggravating circumstances: (1) Appellant was previously convicted of a felony involving the use or threat of violence to the person; and (2) the existence of a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society.[1] The trial judge sentenced Appellant in accordance with the jury's determination.
¶ 2 Appellant now appeals his conviction and sentence.[2]
¶ 3 Thirteen year-old Justin Wiles was reported missing from his Tulsa home on June *596 20, 1989.[3] Four days later, his right hand and arm were discovered in the mud on the bank of Lake Bixhoma in Wagoner County, Oklahoma, inside a plastic bag. Law enforcement officials later found Justin's thigh inside a plastic bag, and his dismembered torso was discovered two tenths of a mile away behind some rocks. Justin's head, arms, legs, and genitalia had been dissected, post-mortem, from the torso with precise cuts through the soft tissue by a sharp instrument. His head was eventually found floating in the water with a rock tied to his jaw with a wire. Officials identified Justin's body through fingerprints and unique scars behind his ears.
¶ 4 Justin knew the defendant, who lived five houses down the street. Appellant owned a body shop that was located four blocks from Justin's home. Justin had performed odd jobs for the defendant at the body shop and had previously visited Appellant's home where they had watched a movie.
¶ 5 Justin was last seen alive with Appellant. According to Brian Hestdalen, Justin was at the body shop with Appellant and Scott Essary on June 20, 1989, around noon. At some point, Appellant, Hestdalen, and Essary left to run errands, leaving Justin locked inside the shop. Upon returning, Appellant mentioned fishing at Lake Bixhoma. Hestdalen heard Appellant ask Justin to join him. Hestdalen left the body shop around two to three o'clock p.m.
¶ 6 Scott Essary testified to seeing Justin and Appellant leaving the body shop in Appellant's car. This fact was somewhat corroborated by a fingerprint from Justin that was discovered on the inside passenger window of Appellant's car.
¶ 7 The evidence connecting Appellant to Justin's murder was largely circumstantial. During interviews, Appellant admitted seeing Justin on June 20, 1989, but claimed Justin left about 11:00 a.m., saying he would be back in an hour. Justin never returned. At noon, Appellant spoke with a neighbor. He went to see his insurance agent and then headed to Lake Skiatook to fish.
¶ 8 Appellant admitted to fishing at Lake Bixhoma, owning a six and a half inch combat knife, and being familiar with the area where Justin's body was found. During one interview at the police station, a police officer walked by and announced some body parts had been found in Lake Bixhoma. At this point, Appellant said, "I didn't do it" and left the station.
¶ 9 Inside Appellant's trunk, police found some red wire that had been cut and had a piece missing. A forensic specialist compared that wire with the wire affixed to the victim's head and testified they were of the same type.[4] Testing revealed that both wires had black strip caulk on them.
¶ 10 On June 27, 1989, police took a photo of a wound on Appellant's right forearm.[5] A State expert testified the wound was a "probable partial bite-mark". A defense witness, however, testified that the State's expert had insufficient data to make the determination he did, and that no definitive conclusion could be made regarding whether or not the injury was a bite-mark.
¶ 11 In order to get to the cove where Justin's head was found, officers had to take a curving dirt road that ran along the lake and had one or more picnic tables along it. *597 Approximately one month before Justin's murder, Appellant had taken his brother Paul Garrison fishing on the south side of Lake Bixhoma. Paul described a similar road Appellant had driven him down.
¶ 12 Another interesting piece of circumstantial evidence was Appellant's odd visit to his insurance agent, Jim Woods, sometime before 4:30 p.m. on June 20, 1989. Supposedly there to make an insurance payment, Appellant "socially forced" Woods to accompany him to the parking lot to view his car. Appellant had Woods examine the car and trunk. Woods thought this was unusual. He described Appellant as nervous, very animated, and speaking fast.
¶ 13 Richard Collins visited Appellant on June 21, 1989,[6] the day after Justin went missing. Appellant told Collins he was going to the salvage yard, but wouldn't allow Collins to accompany him. Collins testified Appellant was very dirty and had an offensive odor, like a gutted dead animal.[7] Later in the week, Collins claimed Appellant was acting nervous and strange, saying he wanted to account for every minute of the week. A week later, when Appellant and Collins went to a drive-in movie, Appellant said the police thought they had something a pair of sweats with red primer they thought was blood.
¶ 14 A witness claimed to have seen Justin and a man eating at a restaurant near Lake Bixhoma at about 12:30 p.m. on June 20, 1989. Police had a composite sketch drawn of the man seen with Justin. The suspect was of a mixed race, possibly Hispanic and African American. Appellant is Caucasian. The witness testified the boy was hard of hearing and he was sure it was Justin Wiles. The witness testified Appellant was not the man accompanying Justin.
Pre-Trial Issues
¶ 15 In proposition one, Appellant claims the ten-year delay in prosecuting him for Justin Wiles's murder deprived Appellant of his rights secured by the Due Process Clause of the Fourteenth amendment to the United States Constitution and Article II, §§ 6 and 7 of Oklahoma's Constitution. Appellant points out he was charged with the murder of Justin Wiles on October 22, 1999, more than ten years after the crime occurred. Appellant claims no new evidence was developed from 1990 to the present. He claims "the only thing `new' about the evidence this time around was that the State finally found `experts' who could tell them what they wanted to hear."
¶ 16 The State, on the other hand, claims there was no due process violation and that the delay was investigative in nature and reasonable. The State also claims prosecutors have the right to delay filing murder charges until satisfied they can prosecute and establish guilt beyond a reasonable doubt.
¶ 17 Appellant filed a motion to dismiss due to the delay on April 12, 2000; arguments were heard on May 5, 2000. The defense argued the State had acted in bad faith and that the deaths of certain witnesses irreparably impaired Appellant's defense. The trial court found no bad-faith and denied the motion.
¶ 18 On January 12, 2001, Appellant filed an amended motion to dismiss due to the ten-year delay. The defense cited prejudice due to several missing records. However the motion was denied on March 28, 2001.
¶ 19 In United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), the U.S. Supreme Court recognized the Due Process Clause of the Fifth Amendment could conceivably require dismissal of the criminal charges if it were shown that pre-indictment *598 delay caused substantial prejudice to the defendant and the delay was an intentional device to gain tactical advantage over the accused. 404 U.S. at 324, 92 S.Ct. at 465. Although it found no such violation had occurred in Marion, the Supreme Court stated it would look at each case according to its own circumstances. This Court will do the same.
¶ 20 In United States v. Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977), the Supreme Court explained that a due process inquiry must consider the reasons for the delay as well as the prejudice to the accused. 431 U.S. at 790, 97 S.Ct. at 2049. However, a due process violation does not exist in the case of "investigative delay", even if a defense may have been somewhat prejudiced by the lapse of time. 431 U.S. at 796, 97 S.Ct. at 2052. An "investigative delay is fundamentally unlike delay undertaken by the Government solely to gain tactical advantage over the accused." 431 U.S. at 796, 97 S.Ct. at 2051, citing Marion. 404 U.S. at 324, 92 S. Ct. at 465. "Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt." 431 U.S. at 791, 97 S.Ct. at 2049.
¶ 21 Here, in looking into the "reasons for the delay," the primary question is whether or not the prosecutorial delay was truly "investigative" in nature. A related question is whether or not there is any evidence of bad faith on the State's part. Appellant points out that all fact witnesses had been interviewed in 1989, the wire had been examined, and Appellant's "bite-mark" photo was in police possession. The evidence was considered "slightly less than enough" needed to prosecute for many years, until the Tulsa Police Department created a "Cold Case Unit" in 1998 to look at unsolved cases in a "new light."
¶ 22 In claiming the delay was reasonable and investigative in nature, the State points to the following evidence: there was some testimony that the murder investigation continued into 1990; in 1998 a detective looked through the photographs in the case file and determined the injury to Appellant's arm could be a bite-mark; an odontologist analyzed the photo and concluded the injury was a "probable partial bite-mark"; and the wire attached to Justin's head which had been analyzed years earlier and found not to match was reanalyzed in 1999 and found to be of the same type of wire with the same type of automotive strip caulk as that in Appellant's car. The State also points out there is no statute of limitations on murder.
¶ 23 It would be difficult to categorize any of this evidence as "new". Clearly, the authorities knew who the witnesses were in 1989 and had the physical evidence in their possession. However, this is not to say the police acted in bad faith, or even unreasonably, for there is no evidence the delay was for the purpose of gaining a tactical advantage. Nevertheless, much of the delay is attributable to the State's analysis and determination of the viability of the evidence in the case, for the State appears to have had the same ability to analyze the wire evidence and the photo in 1989. These were not new discoveries.
¶ 24 However, even if we rest the reasons for the delay entirely on the State's lap, there must be actual prejudice. On this point, Appellant alleges three "key witnesses" died between 1989 and his November, 2001 trial. His mother died in 1995 and supposedly could have testified to the "rapid departure" of Appellant's brother Paul from Tulsa after Justin disappeared.[8] In 1991, Appellant's grandmother Minnie Sperry died. She supposedly could have testified about Appellant's whereabouts and activities during the critical time frame. The same is alleged of attorney Barney Miller, who died in 1997.
¶ 25 Appellant argues, "these witnesses are dead and we have no way of ascertaining their testimony." He thus claims the ability to ascertain what they knew has been lost forever. To a certain extent, this is true.
¶ 26 The State, however, argues these are "bald assertions of prejudice" that are not supported by the record or affidavits as to *599 what the deceased witness would have testified to." See Williamson v. State, 1991 OK CR 63, ¶ 25, 812 P.2d 384, 394 (citing Johnson v. State, 1988 OK CR 145, 761 P.2d 484 on this point). Of course, this reasoning is somewhat circular, for there is no ability to procure such affidavits when a witness is dead, unless those witnesses previously detailed what they knew to third parties. On the other hand, constitutional claims cannot be based purely on speculation.[9]
¶ 27 The record reflects Appellant was a suspect in this crime from the very beginning and was questioned within days of the murder. Indeed, he told one friend he needed to account for every minute. While the State has the burden of proof with respect to criminal prosecutions and a criminal defendant has the constitutionally protected right to remain silent, it is certainly not uncommon for those suspected of crimes to report circumstances amounting to a partial alibi or at least gather up fact witnesses and ask them to tell what they know. There is no evidence Appellant originally alerted police to interview any of these witnesses in the ten years before his arrest.
¶ 28 Regarding Appellant's mother, who lived in Arkansas, her testimony would have offered little, for the record reflects she had an antagonistic relationship with Appellant and her family for many years. Concerning her son Paul, he testified in this trial and was subject to cross-examination. This claim is simply too speculative to attach prejudice to it.
¶ 29 If Minnie Sperry had been able to testify, she might have mentioned that Appellant had her wash some bloody clothes and a bloody knife, thereby leading her to believe Appellant murdered Justin Wiles.[10] If true, Sperry's non-availability was possibly more prejudicial to the State than to Appellant. We have no hard evidence from anyone that Sperry knew of Appellant's whereabouts during the critical time frame. It also appears police interviewed her. Furthermore, Appellant's statements never mentioned spending any time with Barney Miller on the day Justin went missing.
¶ 30 Appellant's better claim is prejudice relating to witnesses who supposedly changed their testimony about important events to a material degree over time. For example, according to an August 31, 1989 police report, Brian Hestdalen originally told the police he did not hear Appellant say anything to Justin Wiles about going fishing on June 20, 1989. But at trial, Hestdalen claimed Appellant asked Justin if he wanted to go fishing at Lake Bixhoma on June 20, 1989, to which Justin said he would have to ask his mom. When confronted with this contradiction, Hestdalen at one point admitted what he originally said was probably correct, but later suggested his trial testimony was correct.
¶ 31 Scott Essary testified he saw Appellant, Hestdalen, and the victim at Appellant's shop on June 20, 1989. However, in June of 1989, Essary told police he tried to see Appellant at his house on June 20, but Appellant was in a hurry to see his insurance agent. Essary explained the discrepancy by referring to a court minute, which indicated he had been in Court to pay a ticket on June 19. He recalled that he went to Appellant's house from there, i.e., on June 19, and this was when Appellant was leaving.
¶ 32 Two witnesses, Rick Collins and Christy Steenveld, originally told police they had seen Appellant on June 19, 1989 between four and six in the afternoon. He was dirty with a foul odor. At trial, however, the witnesses claimed this event actually happened on June 20 or 21. Collins claimed Appellant had smelled like a gutted deer, thereby giving jurors the impression Appellant had just completed the process of cutting up his victim.
¶ 33 On cross-examination, Collins admitted this event likely occurred on June 19, as he originally reported. Steenveld, however, claimed her original report was a mistake Nine months after the events, she had refreshed *600 her memory by looking at a calendar and recalling she bought medicine for her son on June 19.[11] At trial, both witnesses acknowledged their fading memories.
¶ 34 We agree the passage of time had an impact on this trial. The trial judge essentially found so during sentencing. Some amount of prejudice is bound to occur when a trial is held twelve years after the crime, for memories fade. However, "no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution." Marion, 404 U.S. at 324, 92 S. Ct. at 465. The question is whether or not the amount of prejudice suffered rises to a constitutional magnitude, i.e., did it deprive Appellant of Due Process?
¶ 35 We think it significant that all of the points Appellant brings up were also pointed out to the jury during cross-examination. Collins recanted his testimony to a certain degree. Steenveld stated, "it's been a long time ago...." Hestdalen wavered back and forth on his change of testimony, and Essary had an explanation for his change.
¶ 36 The point is the jury knew the evidentiary problems due to the passage of time and would have taken them into account during deliberations. We find Appellant's Due Process rights were not denied under the facts of this case.[12]
First Stage Trial Issues
A.
¶ 37 In proposition two, Appellant claims the State produced no evidence demonstrating the crime may have occurred in Tulsa County. Appellant claims this deficiency was a violation of the Fourteenth Amendment to the United States Constitution and Article II, § 20 of the Oklahoma Constitution.
¶ 38 This proposition is without merit.
¶ 39 Although the circumstances of Justin Wiles's murder are unknown, including exactly where the crime occurred, the State produced sufficient evidence that the crime may have been committed in Tulsa County. See Okla. Const. Art. II, § 20; Patterson v. State, 2002 OK CR 18, ¶ 27, 45 P.3d 925, 932. Justin disappeared from his Tulsa home. Appellant lived nearby. Justin was last seen at Appellant's Tulsa-based body shop. One witness saw Justin getting into Appellant's car in Tulsa County. Although the body was found in Wagoner County, dismemberment occurred after death, and there was some testimony Appellant had smelled unusually bad when persons saw him in Tulsa County. Appellant was acting nervous and strangely when he visited his Broken Arrow insurance agent on the day Justin went missing. Appellant's grandmother told a witness she had washed Appellant's knife at her home.[13]
B.
¶ 40 In proposition three, Appellant claims the evidence was insufficient to convict him of first-degree murder beyond a reasonable doubt. Appellant further claims the evidence against him was entirely circumstantial and was thus required to exclude every reasonable hypothesis except that of guilt under our cases. See, e.g., Hooks v. State, 2001 OK CR 1, ¶ 8, 19 P.3d 294, 305 ("Circumstantial evidence must exclude every reasonable hypothesis other than guilt.") Appellant claims the evidence cannot pass that test. The State, however, claims the evidence excludes "all reasonable theories of innocence."
¶ 41 Based upon the lengthy delay in filing charges against Appellant, one could easily surmise the strength of the evidence would be an issue in this case. The evidence here *601 is entirely circumstantial and, at times, contradictory.
¶ 42 In the past, this Court has used a separate test for cases involving entirely circumstantial evidence, the so-called "reasonable hypothesis" test. Members of this Court have disagreed over the use of that test for many years.[14] However, in recent days, the Court has decided that the reasonable hypothesis test has lost its usefulness, is confusing, and no longer deserves to be followed. See Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d 556, 559 ("In the future, we will review sufficiency of evidence issues under the Spuehler standard, regardless of whether the evidence is wholly circumstantial or whether it is based in whole or in part on direct evidence.") That being so, Spuehler controls Appellant's sufficiency claims.
¶ 43 The evidence against Appellant primarily consists of the following. Appellant lived nearby Justin and had asked Justin to perform various odd jobs at his Tulsa body shop. Justin had visited Appellant at his Tulsa home on one occasion, and they had watched a movie. Appellant once took Justin with him to K-Mart. Thus, Appellant had an opportunity to commit the crime.
¶ 44 Phone records show Appellant was home at 11:06 a.m. on June 20. Police were able to confirm Appellant spoke with his neighbor at about noon.
¶ 45 Two witnesses, Brian Hestdalen and Scott Essary, testified they saw the victim at Appellant's body shop on the day he disappeared. Appellant admitted to police he had seen Justin Wiles that day.[15]
¶ 46 Hestdalen and Essary claimed they were with Appellant and Justin on the afternoon of June 20, 1989 at Appellant's body shop. The three men left to run some errands, leaving Justin behind at the body shop. They cashed a check[16], grabbed some food, and then returned to the shop to eat it. Essary saw Appellant leaving with the victim in Appellant's car sometime around 1:30 to 3 p.m. Based upon Hestdalen's testimony, the time would have been after 2 p.m., for he left between 2 and 3 p.m. and Essary was still there.
¶ 47 Hestdalen testified Appellant and Justin had discussed going fishing at Lake Bixhoma, but admitted, during cross-examination, he had originally said this had occurred earlier in the week. Hestdalen conceded his original statement was probably correct. Nevertheless, there is evidence in this record that Appellant was with the victim shortly before he disappeared.[17]
¶ 48 Sometime before 4:30 p.m. that same day, Appellant arrived at his insurance agent's office in Broken Arrow, acting nervously. He demanded to see his agent, and then socially forced the agent to accompany him to his car for no apparent insurance-related reason. Appellant then had his agent inspect his car, including the trunk. The agent found these requests unusual.
¶ 49 If jurors believed the testimony of Hestdalen and Essary, there was certainly time for Appellant to have killed Justin, hidden his body, and then driven over to the office of his insurance agent, where he was acting nervous.
¶ 50 Furthermore, two witnesses claimed they saw Appellant on June 21, 1989. He was extremely dirty with an offensive odor *602 on his person. One witness associated the smell with a "gutted" animal. However, both witnesses had originally claimed the event happened on June 19, 1989, not June 21, 1989.
¶ 51 The victim's body had been dismembered post-mortem. Parts of it were discovered in Lake Bixhoma four days after Justin disappeared. Appellant was familiar with the lake and had fished there. Appellant had taken his brother Paul fishing on Lake Bixhoma, and they had traveled a winding road that curved around one or more picnic tables similar to the one by the cove where Justin's body was found. Appellant drew a map of the lake for police. The picture had an "X" drawn on it in the place where Justin's body was found.
¶ 52 Appellant's friend Richard Collins testified about Appellant acting "very nervous" during the week Justin disappeared. Appellant's wife and son were out of town. Appellant would not allow Collins to accompany him to a salvage yard, although he always had on previous occasions.
¶ 53 Later in the week, Appellant told Collins he had been trying to account for every minute of the week. When Collins asked why, Appellant associated his comment with the legal matter between he and his brother Paul, which had happened more than a week earlier. As Appellant and Collins were preparing to go to the drive-in, Appellant told Collins the police thought they had something, but they really didn't. Appellant said the police had a pair of his sweats that they thought had blood on them, when in fact the sweats only had red ox-blood primer on them. A day or two later, Collins saw Appellant at his grandmother's house, washing clothes. Collins thought this was strange. Furthermore, after Appellant moved he phoned Collins and told Collins he had better forget what he knew, because Collins had a daughter.
¶ 54 During a voluntary interview with police, when confronted by the fact that body parts had been found in Lake Bixhoma, Appellant blurted out, "I didn't do it." The trial judge instructed jurors to ignore part of the officer's answer, however, because the officer was about to mention Appellant exercising his right to counsel. It is unclear whether the trial judge meant for jurors to disregard the "I didn't do it" statement. Be that as it may, Appellant's voluntary statement was admissible.
¶ 55 An expert testified the wire attached to the victim's head was the same type of wire taken from the trunk of Appellant's car. A section of the wire from Appellant's trunk was missing. The two wires also had what appeared to be strip caulk on them, which was a substance regularly used in the body shop business. It was possible, however, that strip caulk had been transferred from one wire to the other during the handling of the evidence (the wire attached to Justin's head had only a miniscule amount, while the other had much more). Furthermore, wire is fairly common, with only a few manufacturers nationwide.
¶ 56 Additionally, a photograph of Appellant's right forearm, taken on June 27, 1989, showed what one expert testified was a probable partial bite mark. There was nothing tying this evidence to the victim, however. Appellant claimed the arm injury was caused by his brother Paul, who had attacked him with an entrenching tool. However, on June 11, 1989, Appellant had called police to inform them of his brother's attack to his left arm. An officer examined Appellant's arm that day, but found no visible injuries.
¶ 57 A defense witness, Danny Beck, testified that he saw Justin Wiles at a restaurant near Lake Bixhoma at 11:40 to 1:10 p.m. on what he thought was June 20, 1989. Mr. Beck and his two associates saw a man yelling at a boy who was hard of hearing. Justin Wiles was hard of hearing. Mr. Beck said the boy looked right at him. The boy and the man then left together, heading south towards Lake Bixhoma.
¶ 58 Beck later saw a report on Channel 8 that Justin Wiles had been murdered. He recognized the boy right away and called the police. He was absolutely sure the person he saw was Justin Wiles. Mr. Beck testified the man with the boy did not look anything like Appellant, but did have similarities to Ray Farrar, Justin's stepfather. Mr. Beck had seen Ray Farrar in the hallway just before *603 testifying. He had been unable to pick Mr. Farrar out of a lineup, however, and there was other testimony that Mr. Farrar was at work that day. However, Mr. Beck was not exactly sure of the day. It occurred two to four days before he saw a report on the television about Justin. It is possible, therefore, that this event happened on June 19.
¶ 59 The evidence in this record is not as strong as one would like when dealing with the issue of capital murder. The record contains significant circumstantial evidence indicating Appellant murdered Justin Wiles and then attempted to cover his tracks. Appellant's odd behavior in the hours and days following the crime, including his statements about "a boy" and what appears to be deliberate attempts to establish an alibi, indicate he had guilty knowledge of what had transpired. Appellant's strange activities with his insurance agent near the significant time period is circumstantial evidence of guilt, as is his threat to Richard Collins and his voluntary statement, "I didn't do it," when confronted with the fact that body parts were found in the Lake. The bite-mark evidence, while certainly not decisive of the case, is relevant, considering Appellant's earlier visit by police, which led to the discovery of no wound.
¶ 60 Even though the first stage evidence is wholly circumstantial, the question of whether or not it excludes every reasonable hypothesis other than guilt is a determination to be made by the trier of fact. In this case, the jury found that it did, after being instructed, "all of the facts and circumstances, taken together, must be inconsistent with any reasonable theory or conclusion of a defendant's innocence" (emphasis added). We presume the jury followed this instruction in making its determination that Appellant was guilty beyond a reasonable doubt.
¶ 61 Twelve people reviewed the weight and credibility of the evidence and arrived at a unanimous decision that it was sufficient under the law. We find the evidence supports their decision. Most certainly, the evidence is sufficient to sustain the verdict when applying the test used by this Court in Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04. In other words, after viewing the evidence in the light most favorable to the State and accepting all reasonable inferences and credibility choices that tend to support the jury's verdict, any rational trier of fact could have found the essential elements of First Degree Murder beyond a reasonable doubt.
C.
¶ 62 In proposition four, Appellant claims his trial was infected with improper, irrelevant, and purely speculative expert opinions, which, when considered as a whole, deprived him of a fair trial in violation of the Fourteenth Amendment to U.S. Constitution, Article II, § 7, of the Oklahoma Constitution, and 12 O.S.2001, §§ 2401-2403 and 2702.
¶ 63 Appellant claims the "dubious expert opinion testimony" about bite-marks and speaker wire did not assist the jury and was far more prejudicial than probative. He claims the evidence violated Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and Taylor v. State, 1995 OK CR 10, ¶ 15-17, 889 P.2d 319, 328-30. He also claims the evidence was not relevant under the Evidence Code and does not comply with an unpublished case from this Court.[18]
¶ 64 Concerning the bite-mark evidence, we find no error occurred. This Court has upheld bite-mark evidence by qualified expert witnesses, finding such evidence "can be a valuable aid to a jury in understanding and interpreting evidence in a criminal trial." Kennedy v. State, 1982 OK CR 11, ¶ 35, 640 P.2d 971, 978. Here, the expert, Dr. Brian Chrz, was a forensic odontologist and dentist with twenty-four years experience.[19]
¶ 65 The crux of Dr. Chrz's conclusion was that the patterned mark shown in photographs taken of Appellant on June 27, 1989, was a "probable bite-mark", which means, "the pattern strongly suggests or supports origin from teeth, but could-conceivably be caused by something else." Dr. Chrz did not *604 render an opinion regarding whether or not Justin Wiles was the biter, because the trial court excluded such testimony in a bench hearing, after considering Crider.
¶ 66 Appellant's real complaint in this proposition is not to Dr. Chrz's credentials or the science used to reach his opinion. Rather, Appellant complains the testimony was not relevant, for there was no showing of a connection between the "probable bite-mark" and Justin Wiles. Without this link, Appellant claims the testimony was simply irrelevant and inadmissible.
¶ 67 While we agree that testimony concerning who was the biter would have been highly relevant and would have assisted the jury, such evidence was not available here. That being so, the trial court would not permit Dr. Chrz to testify Justin was only a "possible" biter or could not be excluded as the biter. That was wise, based upon the unpublished Crider opinion, which found such testimony violated Daubert and 12 O.S.2001, § 2403.[20]
¶ 68 Be that as it may, we disagree with the claim that the bite-mark evidence was not relevant or that its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, etc. The presence of a bite-mark on Appellant's right arm on June 27, 1989 was an important piece of circumstantial evidence. Appellant had claimed his brother Paul had caused the wound by striking him with an entrenching tool. However, he had originally reported Paul struck him on the left arm. On June 11, 1989, an officer examined both arms, but saw no observable injuries.
¶ 69 The sudden presence of a probable bite-mark on Appellant's right arm eight days later circumstantially suggested Appellant was concocting an alibi. Moreover, such evidence would add weight to malice aforethought, which the State was required to prove. While there are legitimate questions concerning how much weight to give such bite mark evidence, we find the question of its admissibility and relevance survive Appellant's constitutional and statutory attack, under the specific facts of this case.[21]
¶ 70 The speaker wire evidence is more problematic. As mentioned above, in 1989, police compared the wire taken from the speakers in Appellant's car to the wire affixed to the victim's head and concluded they did not match. Nevertheless, at trial, criminalist Jon Paulson testified for the State regarding the wires. The police had asked him to compare the two wire samples. Paulson admitted he was not optimistic in the beginning because wire "doesn't really yield itself to a lot of unique characteristics."
¶ 71 During the Daubert hearing held outside the jury's presence, Paulson admitted he originally believed the wires were not the same, since the one attached to the victim was a single strand black wire, while the speaker wire from Appellant's car was a dual strand red wire. Paulson explained, however, that the black wire was not a "natural discoloration" for red would normally turn to pink. He theorized the black wire may have been an overspray, but had no evidence to back up that opinion.[22] He further concluded the single strand wire had originally been part of a dual strand wire that had been separated, based upon his examination of a ridge on the single strand.[23] The wire in each strand consisted of twenty small strands of copper twisted together. The dual strand wire was coated with a black tarry substance, which was probably strip caulk, based upon Paulson's analysis. The single strand wire had one speck of this material on it, measuring the size of a period on a printed page.
*605 ¶ 72 Paulson concluded, outside the jury's presence, that the two wires could not be distinguished that they are "the same type of wire." This was not all that surprising, for Paulson told the trial judge "there are probably three manufacturers of wiring, and they manufacture all the wire that's put out."
¶ 73 Defense counsel objected to Paulson's testimony, claiming it would not assist the jury in making their determination. Defense counsel argued Paulson's testimony was simply the two wires may or may not be the same, and, as to the source, Paulson could only say the wires "may or may not be" from the same source. Counsel pointed out that Paulson could not say the wire affixed to the victim came from Appellant's car with any certainty.
¶ 74 The trial judge overruled the objection and allowed Paulson to testify to his scientific analysis and comparison of the two wires. However, the trial judge sustained defense counsel's objection as to the source, ruling Paulson could not give an opinion on that issue.[24] Thus, Paulson was not allowed to testify the two wires may or may not be from the same source. Defense counsel argued this further confused matters, but his objection was overruled.
¶ 75 In the jurors' presence, Paulson spoke of the wires' similarities. He concluded the wires were indistinguishable except for the outside color. (One had some discoloration, which he never explained.) Other than that, the wires had the same type of plastic, same number of twisted strands, and were both "18 gauge." Paulson concluded they "are the same type of wire." Both had a smudged gray metallic or black substance, which he believed to be strip caulk, although one had much more than the other. Paulson theorized the single strand wire had once been part of a dual strand, by comparing its ridges.[25]
¶ 76 During cross-examination, Paulson admitted the strip caulk could have been cross-transferred from one wire to the other during his examination or by someone handling the evidence at a previous time. He admitted it was not surprising that the two wires had the same insulation or copper inside, for that would be common to almost all wire. He did not know how much of the wire is produced at any time, but acknowledged this was a common type of wire.
¶ 77 Jurors never heard testimony about the wire's source. Appellant claims this was error, i.e., Paulson's testimony should have either been excluded in its entirety or should have covered both the similarities and his conclusion that the wires may or may not have come from the same source. This argument has some merit.
¶ 78 We find no error in the trial court's ruling allowing Paulson to compare the wire taken from Appellant's car to the wire attached to the victim's head. Jurors were entitled to know that the wires were very similar. Moreover, Paulson's testing methods appear to have been reliable and relevant. Taylor, 1995 OK CR 10, ¶ 17, 889 P.2d at 329. Those methods did not violate Daubert for they assisted the jury in determining how the one strand wire could have come from the dual strand.
¶ 79 However, we find defense counsel should have been allowed to cross-examine Paulson and highlight his conclusion that the wires may or may not have come from the same source. In the absence of such information, jurors only heard part of the story. Having been told of the wires' similarities, there was some danger they would give the evidence more weight than it deserved. While one could argue this evidence was not relevant, as it concerned only "possibilities," we see this as an issue of cross-examination and adversarial testing. The State was allowed to present all the good, without all the bad.[26]
*606 ¶ 80 Be that as it may, the error was somewhat invited, as defense counsel argued before the trial judge that the information as to source did not help the jury in making its determination. Furthermore, cross-examination brought out several important points regarding the wire, including that the wires tested were "common." Also, jurors were told the wires differed in color, without ever hearing any theory as to why. Defense counsel had the opportunity to provide its own expert on this issue, but did not. And last but not least, defense counsel argued extensively during closing arguments regarding the wire, stating the prosecution's evidence only showed the wires were of the same type and that to find the wire affixed to the victim was the same as that in the car was to "jump to a conclusion or to an assumption."
¶ 81 We find any error relating to the wire evidence was harmless under the facts of this case. Simpson v. State, 1994 OK CR 40, ¶ 36, 876 P.2d 690, 702.
D.
¶ 82 In proposition five, Appellant claims other evidence and exhibits were improperly admitted in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution and Article II, §§ 6 and 7 of Oklahoma's Constitution.
¶ 83 Appellant first complains about Rick Collins's "gutted deer" testimony. Collins testified at the pretrial about an encounter he had with Appellant during the crucial week, sometime between June 19 and June 24, 1989. Appellant came to his home, looking pretty dirty and having a bad odor on him. Collins likened the smell to that of a "gutted deer or castrated hog."
¶ 84 Defense counsel moved in limine to exclude this testimony, claiming it was far more prejudicial than probative and lacked relevance and foundation. The State gave its theory that Appellant was fresh from having dismembered the victim. The trial court overruled the motion. Defense counsel re-urged his motion during Collins's testimony, but was again overruled.
¶ 85 During trial, Collins testified again about Appellant's "very bad odor" on the day in question, supposedly June 21, 1989. Appellant likened the odor to the smell of a gutted animal or castrated hog. Collins acknowledged that he himself had "gutted" a deer in the past, so he was familiar with the smell.
¶ 86 We find the trial judge did not abuse his discretion by allowing this evidence to be admitted. Although gruesome, such was to be expected with the instant crime. We find this evidence was somewhat relevant, for the State had to prove a link between Appellant and the victim's death. Appellant points out that Justin Wiles was not himself gutted. However, he was disarticulated. Moreover, one witness spoke of a smell of decomposing tissue on the body at the time it was found. Thus, Collins's description of the smell on Appellant's person cannot be considered unduly prejudicial under 12 O.S.2001, § 2403.[27] Any possible error in admitting this evidence was harmless. Simpson, 1994 OK CR 40, ¶ 36, 876 P.2d at 702.
¶ 87 Next, Appellant complains about Collins's testimony that Appellant called him sometime after Appellant left Oklahoma. Collins testified Appellant called Collins and said that Collins knew a lot about Appellant and that Collins had "better forget" what he knew because Collins had a daughter.
¶ 88 Defense counsel did not object to this testimony, waiving all but plain error. We find no plain error, because attempts to improperly influence or cause the absence of a material witness at trial is admissible to infer a consciousness of guilt. Powell v. State, 2000 OK CR 5, ¶ 66, 995 P.2d 510, 527, cert. denied, 531 U.S. 935, 121 S. Ct. 321, 148 L. Ed. 2d 258 (2000).
*607 ¶ 89 Finally, Appellant objects to the post-autopsy photograph of the victim's dismembered torso, with the medical examiner's "Y" incision down the middle was error. Appellant points out that he objected to this photograph before trial and during trial, but was overruled by the trial judge, after the State argued the "Y" incision was the least of anyone's concern and that the photograph was the only available photograph of the torso the State had. Furthermore, the State argued the evidence was necessary to prove the nature, extent, and location of the wounds.
¶ 90 In its brief, the State goes through much analysis to show a photo of the torso was relevant, more probative than prejudicial. We agree with some of this argument. However, this was not simply a photograph of the torso as it was found. It was a photograph of the torso after it has been cut through the middle during the autopsy and then crudely stitched up. The medical examiner testified the disarticulation and castration occurred post-mortem,[28] so it can hardly be said this evidence established anything with respect to the crime charged. At best, it was a circumstantial link to the foul odor on Appellant's person. In that respect, it is relevant. However, the State's claim that only one photo of the torso was available the one showing the autopsy incisions is a matter touching upon the failure of the State to timely preserve a photographic record of the evidence and the quality of the investigative work in that regard, the brunt of which should not be borne by a person who is innocent until proven guilty.
¶ 91 We find the post-autopsy photograph here, showing the "Y" incision and admitted without any sort of cropping, was substantially more prejudicial than it was probative under § 2403. See Fairchild v. State, 1999 OK CR 49, ¶ 68, 998 P.2d 611, 625-26 (distinguishing the case from others where "the post-autopsy photographs showed the irrelevant crudely stitched Y-incision on the exterior of the body in addition to the relevant wound caused by the murderer"), cert. denied, 532 U.S. 1039, 121 S. Ct. 2002, 149 L. Ed. 2d 1004 (2001). This is especially true considering the prosecutor's use of the photo during closing arguments in conjunction with "gutted deer" references.
¶ 92 We find, however, the erroneous admission of this photo, standing alone, did not render Appellant's trial unfair. Other photos equally startling were properly admitted at trial, and the jury was clearly informed the incision was the result of an autopsy. The photograph's admission in and of itself does not leave us with grave doubts concerning the trial's outcome. Simpson, 1994 OK CR 40, ¶ 37, 876 P.2d at 702. Combined with closing arguments, however the error is more problematic and will be addressed further as cumulative error.[29]
E.
¶ 93 In proposition six, Appellant claims the trial court abused its discretion by failing to grant a mistrial after the State elicited testimony concerning his pre-arrest exercise of his constitutional right to remain silent and consult his attorney, in violation of the Fifth, Eighth and Fourteen Amendments to United States Constitution and Article II, §§ 7, 9, and 21 of Oklahoma's Constitution.
¶ 94 During Detective Makinson's testimony by the State in its case-in-chief, the prosecutor asked questions pertaining to a voluntary interview Appellant had with police at the police station on June 27, 1989. The prosecutor asked what emotional affect Appellant had during the interview. Makinson testified: "He initially said he knew Justin. We talked about him, his disappearance. He after we started questioning further, he began to get nervous about what we were questioning him about." The prosecutor then asked: "Okay. What lead you to the conclusion that he was nervous?" Makinson *608 responded: "The way he was the way he was acting and and the answers he was giving, and eventually he said that he needed to phone his lawyer."
¶ 95 Defense counsel objected at this point, claiming the testimony pertained to Appellant exercising his right to remain silent. The trial judge sustained the objection, but overruled counsel's motion for mistrial. The trial judge then issued a strong admonishment, sua sponte, telling jurors to "disregard every single thing this witness has said. It's not for your consideration at this time, nor should you consider it when you retire to decide your verdict in this case. In fact, you shouldn't even discuss any part of his testimony whatsoever." This admonishment wiped the slate clean, as jurors were told to disregard three and a half pages of testimony in its entirety.
¶ 96 Any comment on a defendant's exercise of his right to remain silent is error. White v. State, 1995 OK CR 15, ¶ 22, 900 P.2d 982, 992.[30] However, such an error may be "cured" where the trial court sustains the defendant's objection and admonishes the jury. Id. This is precisely what happened here. Thus the error in this comment has been cured, for we presume the jury followed the trial judge's directive.
¶ 97 This does not end the matter. Appellant points out the trial judge was concerned about such comments pertaining to the right to remain silent being made to the jury before Detective Makinson ever testified. On the previous day, the prosecution team called Detective Cook to testify and went through the same type of questions. The trial judge, obviously looking at a written report, called a bench hearing, in which it was made clear to steer the witness clear of any statement regarding Appellant's exercise of the right to remain silent.
¶ 98 Following Detective Cook's testimony, the State should have instructed Makinson, a police veteran, from making the comment he did. The record is unclear whether a forewarning was issued. However, the State's failure to prevent such testimony will be considered in our review of cumulative error.
F.
¶ 99 In proposition eight, Appellant claims the prosecutor argued Appellant's departure from Oklahoma to North Carolina was flight, which thereby suggested a consciousness of guilt. Thus, Appellant claims the trial court committed reversible error by failing to instruct the jury, sua sponte, on the proper use of such evidence. Appellant claims this was a violation of his right to due process and a fair trial under the Fourteenth Amendment to the United States Constitution and Article II, § 7 and 20 of the Oklahoma Constitution.
¶ 100 This is a variation of the issue presented in Appellant's seventh proposition. But here, Appellant claims that once the prosecutor raised the specter of flight, the trial judge had an absolute duty to instruct the jury regarding proper consideration of this evidence. See OUJI-CR (2d) 9-8.
¶ 101 The State argues the evidence "clearly established" Appellant was in flight and had a "consciousness of guilt". But that is an exaggeration. Appellant was interviewed by police before leaving town, and there is no suggestion he packed bags and fled in the middle of the night. The evidence could easily be construed as a defendant with a checkered past who knew he was a suspect and then departed to avoid media attention, angry neighbors, and, perhaps, continued police investigation.
¶ 102 Nevertheless, our cases and uniform instruction on flight have made it clear that an instruction on flight is warranted whenever evidence pertaining to conduct associated with flight is introduced, regardless of its low probative value on the question of consciousness of guilt, on the ground that whether the defendant's conduct actually constitutes flight in its legal sense is a question for the trier of fact. See e.g., Farrar v. State, 1973 OK CR 28, ¶ 16, 505 P.2d 1355, 1360 (such evidence which shows consciousness of guilt "should be held inadmissible only when the probative value of the evidence is diminished *609 by a lack of relevance to the charge"); see also OUJI CR 2d 9-8, Notes on Use.
¶ 103 The instruction probably should have been given,[31] but Appellant's counsel did not request it. We see valid strategic reasons for not requesting the instruction, however, for the instruction spells out how the evidence may be considered as circumstantial evidence of guilt. In light of the trial judge's admonishment to jurors to disregard the comments regarding "innocent people don't need to leave" during the trial and during jury deliberations, we find no plain error in the omission of this instruction, sua sponte. See Hill v. State, 1995 OK CR 28, ¶ 21, 898 P.2d 155, 163 (such statutory error can be waived by failing to object); Paxton v. State, 1993 OK CR 59, ¶ 14, 867 P.2d 1309, 1318, cert. denied, 513 U.S. 886, 115 S. Ct. 227, 130 L. Ed. 2d 153 (1994).
Sentencing Stage Issues
A.
¶ 104 In proposition ten, Appellant claims the victim impact evidence violated his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article II, §§ 7, 9, and 19 of Oklahoma's Constitution. Appellant points to the victim impact statements from the victim's mother and sister, both of which had been put into writing, reviewed by the trial judge, and redacted in certain areas. Appellant argues the witnesses' opinions as to a recommended sentence violated his right to Due Process and to a fair trial and sentencing hearing, in violation of Booth v. Maryland, 482 U.S. 496, 508-09, 107 S. Ct. 2529, 2535-36, 96 L. Ed. 2d 440 (1987). He also argues victim impact evidence violates the Eighth Amendment and acts as a "super-aggravator."
¶ 105 However, both of these arguments have already been addressed in numerous cases and rejected. See, e.g., Lockett v. State, 2002 OK CR 30, ¶¶ 28-30, 53 P.3d 418, 427, cert. denied, 538 U.S. 982, 123 S. Ct. 1794, 155 L. Ed. 2d 673 (2003); Murphy v. State, 2002 OK CR 24, ¶¶ 40-47, 47 P.3d 876, 884-85, cert. denied, 538 U.S. 985, 123 S. Ct. 1795, 155 L. Ed. 2d 678 (2003); Turrentine v. State, 1998 OK CR 33, ¶ 94, 965 P.2d 955, 980, cert. denied, 525 U.S. 1057, 119 S. Ct. 624, 142 L. Ed. 2d 562. Moreover, the allowance for victim impact statements to include a recommendation regarding sentencing is statutorily based. See 22 O.S.2001, § 984(1), and Appellant raises no complaint regarding its constitutionality. This claim is without merit.
B.
¶ 106 In proposition eleven, Appellant claims the "continuing threat" aggravating circumstance is unconstitutional on its face and as applied in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article II, §§ 2 and 9 of Oklahoma's Constitution. Appellant claims the aggravator is unconstitutionally vague and impermissibly shifts the burden of proof to defendants.
¶ 107 This Court has repeatedly rejected this argument, and no new reason is presented here to convince us that our prior decisions were in error. See, e.g., Williams v. State, 2001 OK CR 9, ¶ 82, 22 P.3d 702, 722-23, cert. denied, 534 U.S. 1092, 122 S. Ct. 836, 151 L. Ed. 2d 716 (2002).
C.
¶ 108 In proposition twelve, Appellant claims the "prior violent felony" and "continuing threat" aggravating circumstances in this case relied upon the same evidence, thereby resulting in "double counting" in violation of the Eighth and Fourteenth Amendments to the United States Constitution. He cites to United States v. McCullah, 76 F.3d 1087 (10th Cir.1996), cert. denied, 520 U.S. 1213, 117 S. Ct. 1699, 137 L. Ed. 2d 825 (1997) which found the use of duplicative aggravating factors creates an unconstitutional skewing of the weighing process, which necessitates a reweighing of the aggravating and mitigating factors.[32] The *610 Tenth Circuit, in a subsequent decision, emphasized that factors do not impermissibly overlap unless one "necessarily subsumes" the other. Cooks v. Ward, 165 F.3d 1283, 1289 (1998), cert. denied, 528 U.S. 834, 120 S. Ct. 94, 145 L. Ed. 2d 80 (1999).
¶ 109 The U.S. Supreme Court, however, has never ruled that aggravating factors could be duplicative so as to render them constitutionally invalid, nor has it passed on McCullah's "double counting" theory. See Jones v. United States, 527 U.S. 373, 398, 119 S. Ct. 2090, 2106-07, 144 L. Ed. 2d 370 (1999). Thus, Appellant's constitutional claim stands, at the outset, on shaky grounds.
¶ 110 Be that as it may, assuming arguendo that a constitutional claim is available on this issue, we find the evidence supporting the two aggravating circumstances was not predicated on the same acts, nor did the evidence offered in support of one aggravating circumstance subsume the other.
¶ 111 Although there was some overlapping, the prior violent felony aggravator was supported by the Judgment and Sentence relating to Appellant's 1975 conviction for second-degree manslaughter in relation to three year old Craig Neal and Appellant's own stipulation that this was a crime of violence.
¶ 112 Furthermore, the continuing threat aggravator was supported by Appellant's admitted role in strangling his four year old cousin Dana Dean to death, when Appellant was thirteen.[33] Additionally, the Court allowed evidence relating to the similarity between the murders of Justin Wiles and Craig Neal, including that both were castrated, to support this aggravator.
¶ 113 Clearly, two separate crimes supported two separate aggravators, and Appellant's Eighth and Fourteenth Amendment rights were not violated.
Issues Affecting Both Stages
A.
¶ 114 In proposition seven, Appellant claims the prosecution engaged in deliberate misconduct in both stages of trial, thus depriving him of a fair trial and reliable sentencing hearing. He lists seven instances from the record.
¶ 115 First, Appellant claims the prosecutor made improper first stage appeals to sympathy for the victim and his family. He points to instances in opening statements and first stage closing arguments when the prosecutors emphasized the victim was young and innocent, defenseless, a "little boy", and afraid of the dark. He also points to incidents in opening statements and first stage closing when the prosecutorial team spoke about effects of the crime on the victims.[34]
¶ 116 Appellant argues the State should not have distracted jurors from their responsibility to determine Appellant's guilt or innocence by focusing on these melodramatic pleas for sympathy, which had no relevance to any issue before the jury. The State claims Appellant received a fundamentally fair trial despite any sympathy that may have flowed from the prosecutor's arguments.
¶ 117 We have consistently held it is improper for the prosecution to ask jurors to have sympathy for victims. Spears v. State, 1995 OK CR 36, ¶ 59, 900 P.2d 431, 445, cert. denied, 516 U.S. 1031, 116 S. Ct. 678, 133 L. Ed. 2d 527 (1995); Pickens v. State, 1993 OK CR 15, ¶ 57, 850 P.2d 328, 342, cert. denied, 510 U.S. 1100, 114 S. Ct. 942, 127 L. Ed. 2d 232 (1994). While victim *611 impact evidence may be appropriate in the sentencing phase of trial, it is error to introduce victim impact evidence in the guilt/innocence phase of trial. Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 2609, 115 L. Ed. 2d 720, 736 (1991); Spears, 1995 OK CR 36, ¶ 59, 900 P.2d at 445. While the prosecution and the defense have the right to discuss fully from their standpoint the evidence, and the inferences and deductions arising there from, the guilt/innocence phase of trial is no place for subtle appeals for victim sympathy. Id.; Pickens, 1993 OK CR 15, ¶ 57, 850 P.2d at 342.
¶ 118 However, many of these incidents were not objected to, thereby waiving all but plain error. Black v. State, 2001 OK CR 5, ¶ 96, 21 P.3d 1047, 1078, cert. denied, 534 U.S. 1004, 122 S. Ct. 483, 151 L. Ed. 2d 396 (2001). When defense counsel did object, the trial judge often sustained the objections and gave an admonishment. In such instances, the errors were "cured." Id. Other objections were properly overruled, although at times the prosecutor was still given direction about the appropriateness of his statement and arguments.
¶ 119 Having closely reviewed all incidents to which Appellant now objects, we find the pleas for sympathy did not individually or cumulatively deny him a fair trial. It is fair to say the prosecutors crossed over the line at times and injected improper sympathy into their arguments and opening statement. But defense counsel did a good job of lodging objections along the way, many of which resulted in sustained objections and admonishments. Some of the prosecutor's comments were within the latitude allowed during closing arguments. The jury was instructed not to allow sympathy, sentiment or prejudice enter into their deliberations. We presume they followed that instruction. Any error concerning this issue was harmless. Simpson, 1994 OK CR 40, ¶ 36, 876 P.2d at 702.
¶ 120 Second, Appellant claims the prosecutor repeatedly vilified him as the "darkness" in the lives of the victim and his family. We find no error.
¶ 121 Third, Appellant claims the prosecutor argued facts not in evidence. He points to several instances, one of which was cured when the trial judge sustained the objection and issued an admonishment. We find no plain error occurred with respect to the incidents that were not objected to. We further find no error with respect to the trial judge's rulings relating to the map Appellant drew. This sub-proposition does not require relief.
¶ 122 Fourth, Appellant claims the prosecutor commented on his failure to produce evidence and thus shifted the burden of proof to the defense. The trial judge issued a strong admonishment regarding the first instance,[35] and we find any error was cured. See Patton v. State, 1998 OK CR 66, ¶ 126, 973 P.2d 270, 302 (finding an admonishment to disregard an improper statement cured error), cert. denied 528 U.S. 939, 120 S. Ct. 347, 145 L. Ed. 2d 271 (1999). Concerning the second instance, we find no error occurred.
¶ 123 Fifth, Appellant claims the prosecutor improperly argued Appellant's departure from the State was flight. Two witnesses were asked during the State's case in chief about Appellant's departure from the State following the murder. One witness testified that Appellant didn't think it was safe because of media coverage and neighborhood threats.
¶ 124 During closing arguments, the prosecutor argued, "Why would this defendant need to leave the State of Oklahoma...." Defense counsel objected as to form. During a bench conference, defense counsel argued the prosecutor was attempting to inflame jurors by insinuating Appellant was running from something. The prosecutor argued the evidence was relevant, and the objection was overruled. We find this ruling was not an abuse of discretion.
¶ 125 The prosecutor then argued, "innocent people don't need to leave the state." Another objection followed, which the trial *612 court sustained. Thereafter, the trial judge, without prior request, admonished the jury to disregard the comment, saying, "It's not for your consideration at this time or when you retire to decide your verdict in the case." We find any misconduct here, again, was cured.
¶ 126 Sixth, Appellant claims the prosecutor made improper cries for justice during second stage closing. No objection was made to the first two comments, and we find no plain error occurred. The trial judge sustained an objection to the prosecutor's plea for jurors to give the ultimate value to the victim's life by their verdict, and instructed jurors to disregard it. This again cured the error.
¶ 127 Seventh, we find the trial judge also cured any error relating to Appellant's so-called lack of remorse. And finally, we find no error occurred with respect to the prosecutor's argument during second stage closing that if this case did not justify the death penalty, "what does?" This was a fair question and fell with the realm of reasonable argument.
¶ 128 Allegations of prosecutorial misconduct do not warrant reversal of a conviction unless the cumulative effect was such to deprive the defendant of a fair trial. Powell, 2000 OK CR 5, ¶ 151, 995 P.2d at 539. No criminal trial is perfect. Id. at ¶ 152. Here, the prosecutorial team was aggressive and consistently pushing the limits of acceptable argument. Defense counsel did not stand idly by, however, and lodged frequent objections. Such is the nature of our adversarial system. The trial judge was vigilant in admonishing jurors throughout the proceedings when improper comments and arguments were made. We thus find the cumulative effect of the instances of prosecutorial misconduct did not deprive Appellant of a fundamentally fair trial. Regardless, we continue to find it unsettling that prosecutors would push the boundaries of professionalism. First, as we have said previously, it defies common sense to use argument that can snatch defeat from the jaws of victory. Kutin v. State, 1967 OK CR 134, ¶ 4, 430 P.2d 848, 849. And second, arguments previously ruled improper by this Court can be grounds for disciplinary complaints to the Oklahoma Bar Association.
B.
¶ 129 In proposition nine, Appellant claims he received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution and Article II, § 20 of Oklahoma's Constitution. He first claims trial counsel was ineffective for failing to object to Rick Collins's graphic description of "gutting a deer." Counsel did object, however, and even moved in limine to exclude such references. Counsel provided effective assistance regarding this issue. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).
¶ 130 Appellant further claims his trial counsel was ineffective for failing to rebut the "evidence" of flight or request a flight instruction. We have already addressed the strategic reasons for not requesting this instruction. Furthermore, counsel effectively cross-examined witnesses and argued Appellant's actions did not amount to flight. Again, we find no constitutionally ineffective assistance.
¶ 131 The majority of Appellant's claim, however, pertains to matters outside the record. Appellant's claims against his trial counsel fall generally into four areas: (1) counsel failed to call an expert witness to testify at the Daubert hearing regarding the "probable partial bite-mark"; (2) counsel failed to investigate the proposed testimony of State's witness Christy Steenveld; (3) counsel failed to investigate and discover a proper witness to verify Appellant's cancelled checks; and (4) counsel failed to investigate an adequate case for mitigation.[36]
*613 ¶ 132 In support of these claims, Appellant filed a lengthy application for evidentiary hearing, pursuant to Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2003). We granted an evidentiary hearing, finding the application and supporting affidavits sufficiently rebutted the strong presumption of regularity of trial proceedings and trial counsel competency and contained sufficient information to show the Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective. We were most concerned about issue four, counsel's failure to investigate and then make an adequate case for mitigation. We listed nine questions to be addressed at the hearing,[37] and requested the trial court to enter findings of fact and conclusions of law regarding those issues.[38] Furthermore, we allowed both parties to submit briefs concerning the matters addressed and trial court's findings concerning the evidentiary hearing.[39]
¶ 133 The hearing was held just two weeks after our March 17, 2004 order remanding for evidentiary hearing was entered and a full month before the time allotted for the hearing expired.[40] Defense counsel presented only four witnesses, and addressed only three of the nine questions raised, i.e., questions 2, 3, and 9. Defense counsel consistently claimed an inability to present evidence on these questions due to short amount of preparation time and unavailability of witnesses during the time the District Court set the matter down for hearing.[41] Thus, no additional evidence beyond that submitted with *614 Appellant's application for evidentiary hearing was entered with respect to the all-important questions raised concerning the failure to use an expert concerning the State's bitemark evidence or failure to investigate and present an adequate case in mitigation.[42]
¶ 134 The first matter arising outside the record concerns trial counsels' failure to call an expert witness to testify at the Daubert hearing regarding the probable "partial bitemark".[43] We have already addressed alleged problems with this evidence, offered by the State. Here, however, we are concerned with counsels' alleged ineffectiveness in declining to call its retained expert, Dr. David Sweet at the Daubert hearing "in order to convince the trial court to preclude Dr.Chrz's bitemark testimony."
¶ 135 Because Dr. Sweet did not appear at the remanded evidentiary hearing and appellate counsel offered no testimony or evidence at that hearing in regard to this matter, the trial judge concluded Appellant had failed, as a matter of law, to establish his trial attorneys were ineffective with respect to this issue. We agree with this conclusion, but base it upon the entire record, not just what happened, or didn't happen, at the evidentiary hearing.
¶ 136 Dr. Sweet is a Canadian citizen with faculty responsibilities at the University of British Columbia, in the area of Dentistry. He had a transplant surgery just before Appellant's trial in late 2001.[44] Due to his medical condition, the defense had a difficult time scheduling Dr. Sweet's attendance at trial. Numerous references are made in the record to problems in this regard.
¶ 137 According to the five-page affidavit attached as Exhibit A to the appendix to Appellant's application for evidentiary hearing, Dr. Sweet strongly believes the methods used by the State's expert, Dr. Chrz, in rendering an opinion that the injury to Appellant's right forearm was a "probable bitemark" were flawed, that Dr. Chrz's methods lacked reliability in the scientific community, had not been subjected to peer review, and did not comport with Daubert. Of course, a review of Dr. Chrz's testimony at the Daubert hearing, makes it clear he took the opposite opinion regarding these same matters. Thus, we have a classic battle of the experts.
¶ 138 It would certainly have been helpful to the defense had they been able to have their expert appear at the Daubert hearing. Then the Court would have been even more aware of the dispute regarding the methods employed by Dr. Chrz, beyond those already referenced in Crider. The possibility of excluding testimony about a probable partial bitemark was important, given the strength of the evidence in this case.
¶ 139 However, Dr. Sweet's presence in Canada, his health, the obvious costs associated with obtaining his attendance on two separate occasions, the uncertainty of exactly when the prosecutors would present witnesses at trial (including Dr. Chrz), and the way Dr. Chrz's testimony developed during the course of the Daubert hearing, along with motions and evidentiary exhibits filed by the defense in an attempt to exclude Dr. Chrz's testimony, lead us to conclude Appellant's trial counsel were not ineffective for failing to have Dr. Sweet or some other expert available at the Daubert hearing. Defense counsel made effective arguments concerning Daubert and Crider at the Daubert hearing, pointed to a report from Dr. Souviron of the Dade County Florida State Medical Examiner's *615 Office,[45] and then presented Dr. Sweet at trial during their case in chief to counter the testimony presented by Dr. Chrz. We find counsel was not constitutionally ineffective for failing to take the additional step of securing Dr. Sweet's attendance at the Daubert hearing, even though this additional effort may have benefited their position. However, we find nothing in the record to indicate his testimony would have been any different at the Daubert hearing than it was at trial. There is always something additional that could have been done, in retrospect. (However, as for appellate counsel's efforts in this regard at the evidentiary hearing, see below.)
¶ 140 Next, we turn to the claim that Appellant's trial counsel failed to investigate the proposed testimony of State's witness Christy Steenveld.[46] According to an affidavit Ms. Steenveld gave in support of Appellant's application for evidentiary hearing, Ms. Steenveld retracted her trial testimony that she witnessed an offensive odor on Appellant's person on June 21, 1989. In the affidavit, she takes the position that her original statement was probably true, i.e., the event occurred on June 19, 1989, the day before Justin Wiles turned up missing. This is significant, because Steenveld's testimony corroborated Richard Collins's testimony as to date of the smell, which corroborated the State's theory that Appellant had been in the process of disarticulating his victim.
¶ 141 Ms. Steenveld testified at the remanded evidentiary hearing and retracted her retraction, again taking the position that her encounter with Appellant likely occurred on June 20 or 21, rather than June 19, 1989. Ms. Steenveld's continued flip-flopping on this important issue leads us to conclude, as did the trial court, that trial counsel was not ineffective with respect to their efforts to secure favorable testimony from Ms. Steenveld.
¶ 142 Next, we address the issue of whether trial counsel failed to investigate and discover a proper witness to verify Appellant's cancelled checks.[47] The gist here is Appellant's claims that his trial counsel was ineffective for not presenting a better witness at trial concerning a check Appellant cashed his bank at or near the critical time period. Appellant claims his witness was effectively discredited or impeached by the State, due to her unfamiliarity with banking procedures.
¶ 143 At trial, two state witnesses testified consistently with the State's theory insofar as the timing of the crime by discussing when they were with Appellant on the day in question. However, according to the defense, a check presented to Appellant's bank at approximately 2:40 p.m. on June 20, 1989, conflicted with the timing to which the State's witnesses testified.
¶ 144 At trial Appellant's counsel presented Pauline Banks, a loan officer at the bank, to testify concerning checking procedures. Ms. Banks had been a loan secretary at the time and was thus unfamiliar with procedures regarding the time-stamping of checks. The State raised the possibility that the check was stamped the next day, suggesting it was actually cashed on June 19, 1989.
¶ 145 Appellant thus claimed, in his application for evidentiary hearing, that his trial counsel were ineffective for not providing a better witness, like Irene Laskey, who was the Chief Operating Officer of the bank in 1989. Ms. Laskey's affidavit indicates the check would have been time stamped with the actual date and time it was received.
¶ 146 At the remanded evidentiary hearing, Ms. Laskey testified that the bank had been closed at 2 p.m. on the day in question. The drive-through remained open, however, until 6 p.m. The customary policy for checks presented after closing hours was that they were stamped at the time they were physically presented. Thus, according to Ms. Laskey, Appellant presented the check at approximate 2:30 to 2:40 p.m. on June 20, 1989.
¶ 147 During cross-examination, it was established that Ms. Laskey did not personally receive the check; one of the bank tellers *616 did. Thus, she was only testifying about customary procedures, not specifically happened with regards to this check. She acknowledged employees don't always follow customary procedure. She also indicated Pauline Banks was very competent in the area of banking procedures.
¶ 148 In its findings of fact and conclusions of law, the trial court found Ms. Laskey and Ms. Banks did not have any personal knowledge concerning how or when Appellant's check was processed. The trial court also found both witnesses had the same weaknesses to cross-examination and that there was not a reasonable probability that the outcome of the trial would have been different if Ms. Laskey would have been called. Furthermore, the trial court found, after listening to the testimony of Appellant's trial counsel, Art Fleak, that Ms. Banks was, at the time of trial, in a managerial position at the bank who was aware of banking procedures. Thus, the trial court found counsel had not been ineffective, but had exercised sound trial strategy.
¶ 149 We agree, for the most part, with these findings. See Rule 3.11(B)(3)(b)(iv), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18 (2003) ("The findings of fact and conclusions of law of the trial court shall be given strong deference by this Court in determining the proposition raised by appellate counsel; however, this Court shall determine the ultimate issue whether trial counsel was ineffective.") We believe Ms. Laskey would have been a better witness for the defense, more emphatic about the timing of the check's presentment. Nevertheless, neither witness was personally involved in the check's cashing, and Ms. Banks's status as a bank manager at the time of trial rendered her a worthwhile witness in her own right. This slight tactical miscalculation, if error at all, cannot be said to rise to the level of constitutionally ineffective assistance.
¶ 150 The final and most troubling claim of ineffective assistance concerns the allegation that Appellant's trial counsel failed to provide a significant case in mitigation during the second stage of Appellant's trial.[48] Trial counsel's case in mitigation came down to one witness, Dr. Dean Montgomery, a counseling psychologist. Dr. Montgomery testified briefly on Appellant's behalf, approximately nineteen transcript pages in all (with about the same amount of effective cross-examination). He had spent four hours or less with Appellant and had not reviewed Appellant's medical, psychiatric, or school records. Dr. Montgomery spoke to Appellant's wife and son, but had not talked to the police, members of the district attorney's office, the Medical Examiner, nor had he seen any of the police reports.
¶ 151 Understand, we are not condemning Dr. Montgomery's work or preparation. It appears he did what he was asked to do in the brief amount of time he was asked to do it. Dr. Montgomery provided a quick overview of Appellant's complicated, troubled background. He briefly addressed several important matters: Appellant's illegitimacy; how he was raised in an environment of substance abuse (alcohol and drugs, including marijuana and inhalants);[49] how his half-brother, to whom he was closest, died of a drug overdose; how he was introverted and socially isolated without many friends; how he was sexually abused by his brother Paul who reportedly "hog-tied" and "sodomized" him;[50] how he spent two years in a children's home;[51] how he spent two years in Griffin Memorial Hospital;[52] his paranoia; and his significant medical problems, including depression, degenerative joint disease, strokes, and headaches. But Dr. Montgomery *617 did not go over any of these matters in any detail. He simply mentioned them casually in a sentence or two, without amplification.
¶ 152 Dr. Montgomery also spoke briefly about how Appellant had risen above his circumstances, to a certain degree, by marrying (although "there are divorce proceedings pending"), raising a son who loves him, graduating from school, pursuing vocational training, and then having his own business.
¶ 153 Nevertheless, due to the extremely short amount of time Dr. Montgomery had with Appellant and his lack of access to key records and people familiar with Appellant, Dr. Montgomery was vulnerable to attack by the State on cross-examination. The State was thus able to point out that most of the mitigation case was based upon a short interview, i.e., Appellant's own self-reporting.
¶ 154 In other words, the State argued Appellant's case in mitigation was only as good as his own word and that Appellant had an undeniable motive to lie. The State made repeated references about how little time Appellant had spent with Dr. Montgomery and how Montgomery had failed to interview key persons.
¶ 155 Overall, Dr. Montgomery's testimony did little to educate the jury about Petitioner's adolescent life or give jurors any mitigating reason to render a verdict less than death. Appellant's attorneys did not call Appellant's son or any sympathetic member of his extended family to testify on his behalf. None of Appellant's treating psychologists or mental health professionals were called to explain his tortured past. His psychiatric records, prison records, and hospital records were not introduced or admitted at trial. There was no corroboration of any of the claims Appellant self-reported to Dr. Montgomery, so the jury may have doubted whether any of these things really happened.
¶ 156 In that sense, counsel's second stage preparation and actual presentation are eerily similar, and arguably more egregious, than those found ineffective and requiring relief in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) and Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003).
¶ 157 Without going too deeply into what may have been admissible or presented by way of mitigation on Appellant's behalf, the record reflects the following facts are at least fairly supported by affidavits and various hospital records attached to the application for evidentiary hearing[53]: Appellant was born illegitimately and never knew his father; his uneducated mother Julie abandoned him at the age of six weeks after trying to abort him; Appellant was raised by his grandmother Minnie, who lived on social security and verbally abused Appellant, calling him names like "sorry bastard"; Minnie was also raising a paranoid schizophrenic son, Hank, who was an alcoholic and abuser of Appellant, and a severely brain damaged son, Ed; his mother Julie, her new husband, and Appellant's three older siblings moved back in with Appellant and Minnie briefly around 1962; Julie had a drinking problem and began abusing Appellant by pulling his hair, kicking him, and slapping him; later, Julie began smothering Appellant by placing her hand over his mouth and sealing his nose with her thumb until he passed out; when Appellant was 3 or 4, his brother Paul began sexually abusing him; the sexual abuse occurred numerous times and included anal rapes, yanking Appellant's testicles, binding him hands and feet, abandoning him, smothering him, twisting Appellant's penis with pliers, hanging him from a tree, and beating him to the point that he required hospitalization.
¶ 158 Additional alleged mitigating factors include: Julie again abandoned the family around 1965, and all her children (except Paul) were placed in custody of the State, in an orphanage; Appellant and his brother Johnnie were thus separated from their grandmother and from their sister Julie, and Johnnie was beaten; this stay lasted three to nine months; Appellant was soon living again *618 with his grandmother and her problematic sons, who were having repeated run-ins with the law; Appellant began having problems in school; at the age of thirteen, Appellant choked his four-year old step-cousin to death with a hair ribbon, then stuffed her under the house; this led to Appellant's commitment to Griffin Memorial Hospital where he stayed for approximately nineteen months; during this time, Appellant's brother Johnnie was found burned to death and possibly died by drug overdose; some family members suspected Appellant's brother Paul was involved; not long afterward, when Appellant was release from Griffin on a pass, he smothered a 3 1/2 year old neighbor boy, Craig Neal, and then severed the boy's penis, post-mortem; Craig was the friend of Appellant's new half brother Hal, who was Julie's three-year old offspring; Appellant pled guilty to second-degree manslaughter and was sentenced to the maximum four years.
¶ 159 Obviously, we were quite concerned about the significant gap between what was presented on Appellant's behalf in the second stage of trial and what we have addressed above. According, we outlined specific questions concerning this topic in our order remanding for evidentiary hearing.
¶ 160 Unfortunately, Appellant's appellate counsel presented no evidence regarding his trial counsel's case in mitigation at the remanded evidentiary hearing. One of Appellant's key witnesses for the hearing, Dr. Jon Barnes, is suffering from stage four cancer and was so ill he could not appear to testify. (Indeed, appellate counsel now seeks to replace Dr. Barnes, due to the uncertain status of his health.) Barnes had provided an extensive affidavit for purposes of the application for evidentiary hearing, indicating he had spent more than thirteen hours with Appellant, had reviewed Dr. Montgomery's prior testimony, had review Appellant's jail, medical, and psychological records, the medical examiner's autopsy report, and nearly every available record concerning Appellant, most of which are also part of the exhibits to the application for evidentiary hearing.
¶ 161 Other key witnesses lived out of the State and were not subpoenaed in time for their attendance. The record is unclear whether any of these witnesses were in fact available, even on such short notice, but it appears they were never contacted. Furthermore, the trial court found appellate counsel made no effort to secure the attendance of nineteen witnesses (many of whom lived in close proximity) and could not give a rational reason for failing to have them present at the evidentiary hearing.
¶ 162 Appellant's counsel indicated they did not have time to secure the attendance of these witnesses. But the record indicates a great amount of time was spent trying, unsuccessfully, to obtain a continuance, instead of obtaining the attendance of fifteen witnesses who lived in the State. Appellate counsel pointed out that he is not a trial attorney, but an appellate lawyer who did the best under the circumstances. But our rules require the evidentiary hearing to be held within thirty days of remand. Therefore, by requesting such relief in its appellate filings, appellate counsel should have been prepared to conduct such a hearing in a short time frame, and this includes obtaining a seasoned trial attorney to handle the hearing, where necessary.
¶ 163 At the remanded evidentiary hearing, the trial judge ruled against Appellant with respect to questions four through eight, based entirely on appellate counsel's failure to present evidence concerning these issues. Essentially, the trial judge found appellate counsel had waived the issue by failing to present evidence regarding it. The State's supplemental brief takes this same position, claiming appellate counsel's actions at the evidentiary hearing do not evince a good faith diligent effort to obtain the witnesses.
¶ 164 In a brief filed after the evidentiary hearing, appellate counsel claims Appellant was denied a full and fair hearing on the remanded issues, in violation of the Compulsory Process Clause of the Sixth Amendment, the Due Process Clause of the Fourteenth Amendment, and Article II, Section 20 of Oklahoma's Constitution. However, it appears fairly clear from the record that appellate counsel made a strategic decision to forego further efforts to present testimony on the issue of mitigation once their main witness, Dr. Barnes, could not attend. *619 Appellate counsel essentially admitted this much during oral arguments before this Court, taking the position that the testimony of these other witnesses was supplemental to Dr. Barnes's testimony and would not have made sense without it. Furthermore, appellate counsel had both of Appellant's trial attorneys on the stand during the evidentiary hearing, but refused to ask any questions concerning the mitigation case the trial attorneys had presented on Appellant's behalf. This is completely unacceptable.
¶ 165 The record indicates Appellant's counsel on appeal resisted the trial judge's efforts at the evidentiary hearing to grant additional time to secure the attendance of some of the witnesses on the first two days of April. During oral arguments on this issue, appellate counsel said appellate counsel were unaware these additional days were going to be offered until the evidentiary hearing. But still, they did not take the trial judge up on his offer. Appellant's counsel on appeal took the position it was Dr. Barnes or nothing, and they were unwilling to put on whatever evidence they could and then seek further relief concerning Dr. Barnes.[54]
¶ 166 Under these unique and utterly bizarre circumstances, we find the district court did not abuse its discretion in failing to grant Appellant a continuance to conduct the evidentiary hearing. We further find Appellant was not denied due process with respect to the hearing he was granted, nor did the failure to grant a continuance violate his right to compulsory process. Furthermore, we reluctantly find the actions of Appellant's counsel on appeal have effectively waived what was otherwise Appellant's strongest claim on appeal, i.e., the failure of his trial attorneys to present an adequate case in mitigation at trial.
¶ 167 By granting the evidentiary hearing on Appellant's claims relating to mitigation, we had already, to a certain degree, announced a lack of confidence in the second stage proceedings, for our rules do not allow for the granting of an evidentiary hearing lightly or on a whim. The fact of the matter is that Appellant is a thrice-convicted child-killer. While his trial attorneys were wise to attack the State's weak evidence in hopes of securing an acquittal, the record strongly suggests they made some grave tactical mistakes with respect to the case in mitigation. Had they anticipated the very real possibility Appellant would be convicted of murdering Justin Wiles, then they would have seen their next best hope was to focus on the reasons why anyone would commit such inconceivable atrocities. And this would have necessarily required a close examination of Appellant's horrendous past.
¶ 168 We find Appellant was likely[55] denied the effective assistance of trial counsel with respect to the presentation of his second-stage case in mitigation, as per the Supreme Court's pronouncements in Williams and Wiggins. However, because that issue was essentially waived by appellate counsel at the evidentiary hearing and, to a certain extent, by appellate counsel's failure to properly address the issues in the appellate brief (rather than the Rule 3.11 application), we find Appellant was denied the effective assistance of appellate counsel in presenting this issue to the Court.[56]See Evitts v. Lucey, 469 U.S. 387, 397, 105 S. Ct. 830, 837, 83 L. Ed. 2d 821 (1985) (recognizing that a criminal defendant's right to counsel on appeal, *620 like the right to counsel at trial, would be a futile gesture unless it comprehended the right to effective assistance of counsel).
¶ 169 Accordingly, due to the serious questions raised under Williams and Wiggins and the waiver of the these issues by appellate counsel, we are required to reverse Appellant's sentence and remand for a resentencing trial, for a reasonable probability exists that, in the absence of these errors, the jury would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Strickland v. Washington, 466 U.S. 668, 695, 104 S. Ct. 2052, 2069, 80 L. Ed. 2d 674 (1984).
C.
¶ 170 In proposition thirteen, Appellant claims the accumulation of errors deprived him of fair trial. We have found harmless error in the inability for defense counsel to effectively cross-examine an expert concerning the wire evidence (proposition four), in the admission of a post-autopsy photo of the victim's torso (proposition five), in the State's omission in preventing a police officer from commenting on Appellant's exercise of the right to counsel (proposition six), and in the prosecution team crossing over the line regarding first stage victim impact and pleas for sympathy (proposition seven). Other errors were cured by the trial judge's excellent habit of admonishing the jury.
¶ 171 We also found ineffective assistance of appellate counsel in presenting and preserving claims relating to second-stage mitigating evidence.
¶ 172 We find the accumulation of errors were harmless as to the guilt stage proceedings, and therefore affirm Appellant's conviction for first-degree murder. Simpson, 1994 OK CR 40, ¶ 36, 876 P.2d at 702. However, we also find some of this evidence likely impacted the sentencing decision.
¶ 173 Appellant's DEATH SENTENCE is hereby REVERSED, and the matter is remanded to the District Court of Tulsa County for a new sentencing trial in accordance with this Opinion.
JOHNSON, P.J., LILE, V.P.J., and STRUBHAR, J.: concur.
CHAPEL, J.: Dissent.
CHAPEL, J., DISSENTING.
¶ 1 I find the evidence presented, which was entirely circumstantial, to be insufficient to convict Garrison of first degree murder beyond a reasonable doubt irrespective of whether the "reasonable hypothesis" standard or the "Spuehler" standard is used. Therefore, I would reverse the conviction.
NOTES
[1] The State's Bill of Particulars originally alleged two additional aggravating circumstances: (1) the murder was especially heinous, atrocious, and cruel; and (2) the murder was committed for the purpose of avoiding or preventing lawful arrest or prosecution. However, the State struck both of these aggravators before commencement of the second stage of Appellant's trial.
[2] Appellant's Petition in Error was filed in this Court on January 18, 2002. His brief was filed June 24, 2003. The State's brief was filed October 23, 2003. Appellant's reply brief was filed November 12, 2003. The case was submitted to the Court October 23, 2003. We ordered an evidentiary hearing on March 17, 2004, to be held on or before April 30, 2004. The hearing was held on March 31, 2004, and findings of fact and conclusions of law were filed on May 13, 2004. Oral arguments were held on May 25, 2004.
[3] Justin's mother saw Justin asleep at home at about 5 a.m. when she got up for work. His sister left the house at about 11 a.m. for forty-five minutes. When she returned, Justin was gone. At 4:30 p.m., his family was conducting a full-blown search. They went to Appellant's body shop, "Choppers," where Justin had done odd jobs, but it appeared to be closed.
[4] Experts originally compared the wires in July of 1989, but determined they did not match. The Tulsa World reported this story, after interviewing Bixby Police Chief Harry Ekiss. The story is, of course, hearsay. Nevertheless, the State has conceded this point.
[5] Appellant had filed a claim for assault against his brother Paul Garrison on June 11, 1989, nine days before Justin went missing. A few days after Justin's body parts were found, officers interviewed Appellant about the assault claim and photographed a wound on his right forearm. Appellant claimed the wound was caused by an entrenching tool his brother had hit him with, although he originally said he'd been hit on the left arm. An officer had examined both of Appellant's arms before Justin went missing, but found no visible injury to either arm.
[6] Collins originally claimed this event occurred on June 19, the day before Justin disappeared. A year later, he claimed the event occurred on June 21, the day after Justin disappeared.
[7] This testimony was somewhat corroborated by Christy Steenveld, who testified to stopping by Appellant's house in and around the same time period. Ms. Steenveld claimed Appellant was nervous and filthy with an offensive odor. However, during her first interview, just ten days after Justin was found to be missing, Ms. Steenveld claimed the event had occurred on June 19. Nine months later she changed the date to June 21.
[8] Appellant points out that his brother was a Vietnam vet who suffered from post-traumatic stress disorder and paranoia and had assaulted him just prior to Justin's murder.
[9] Marion specifically warned against "speculative" claims of prejudice. 404 U.S. at 326, 92 S.Ct at 466. This warning applies to the would-be witnesses, now deceased.
[10] At the motion for new trial, the State indicated Sperry made this statement to Richard Collins.
[11] Indeed. Ms. Steenveld gave an affidavit to Appellant's counsel on appeal in support of an application for evidentiary hearing. Therein, Ms. Steenveld claimed her trial testimony was incorrect; that she had no reason now to doubt her original statement to police that Appellant came to her home on June 19, 1989. However, at the evidentiary hearing, Ms. Steenveld apparently switched positions again and testified consistently with her trial testimony.
[12] As such, Appellant's primary grievance lies with the sufficiency of the evidence, addressed below.
[13] This fact was not presented to the jury, as per a motion in limine. However, the trial judge was made aware of it, and we may rightfully consider it here on the issue of venue.
[14] I began challenging use of the reasonable hypothesis test in my specially concurring opinion in White v. State, 1995 OK CR 15, 900 P.2d 982, 993-995 finding the United States Supreme Court had long ago abandoned the idea that "circumstantial evidence was somehow more suspect or less reliable than direct evidence." I have consistently urged the Court to abandon the test and apply the test enunciated in Spuehler and Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979).
[15] Appellant claimed Justin had left at 11 a.m., which contradicts testimony given by Brian Hestdalen and Scott Essary.
[16] There was evidence admitted that Appellant cashed a check at his bank sometime between 2:40 p.m. and 2:49 p.m. If this was when Hestdalen and Essary were with Appellant, the time frames they have testified, shown below, are too early.
[17] As discussed further below, according to Appellant, he last saw the victim at 11 a.m. According to a defense witness, the victim was later seen at a restaurant with a man other than Appellant. But according to Hestdalen and Essary, Justin Wiles was with Appellant as late as 3:00 p.m.
[18] Crider v. State, F-1999-1422 (Oct.11, 2001).
[19] Dr. Chrz was also the expert used in Crider.
[20] Crider was a hotly-debated case, decided on a 3-2 vote. I dissented, finding the district court did not abuse its discretion in allowing experts to testify that they could not exclude, or say the marks were made by, the victim.
[21] More follows concerning the issue of bitemarks, in our discussion of the remanded evidentiary hearing on ineffective assistance claims.
[22] A photograph of the wire, State's exhibit A, seems to show a wire that is red in places and black in other places, somewhat confirming this theory.
[23] Dual strand wire consists of two separate wires that are joined together by an insulated coating. The individual wires may be pulled apart to form two separate wires. This is essentially what Paulson concluded here.
[24] The trial judge apparently relied upon the Crider decision, but it is clearly distinguishable on this point.
[25] At one point, Paulson testified the wires looked like speaker wire. Defense counsel objected to this as being beyond his expertise. The trial judge sustained the objection and admonished jurors to disregard the testimony that the wire appeared to be speaker wire.
[26] We see a fundamental difference between the bite-mark evidence and the wire evidence, on the issue of source. Bite-mark evidence can draw definitive conclusions as to source, under the right circumstances, whereas wire evidence would rarely be able to draw a conclusion on this issue, due to the fact that wire has few, if any, distinguishing characteristics.
[27] Testimony regarding how one goes about gutting a deer should have been excluded, but Collins essentially volunteered this information after the trial judge had sustained an objection to it.
[28] Thus, there is a good argument to be made that the photos were more relevant to second stage than in the first stage.
[29] This Court has repeatedly held that autopsy photographs are not admissible. See Fairchild, supra. As a part of the exercise of professional responsibility, the prosecutor should not ever offer such photos into evidence. Furthermore, as a part of the gatekeeping obligation, the trial judge should not allow the admission of this type of photo into evidence.
[30] Lumpkin, J., specially concurring.
[31] Arguably, Appellant did not himself offer any evidence on this issue. The testimony came during direct examination of State's witnesses.
[32] McCullah was primarily concerned about overlapping definitions of the aggravating circumstances themselves. However, looking at McCullah as a whole, including the opinion on rehearing, it appears to fairly stand for the proposition that overlapping of two aggravating circumstances occurs when both aggravating circumstances are predicated on the same acts.
[33] Appellant was never convicted for this crime, but was adjudicated a child in need of supervision.
[34] Examples include: the prosecutors frequently pointed out the victim's mother and sister "never got to say goodbye"; the victim's mother never imagined her little boy would end up in pieces, slaughtered like an animal; the family was never able to see Justin's body because he had been butchered and discarded like trash; the victim's mother went through nights of searching and agonizing; the victim's mother couldn't see her child because he "didn't exist"; and the victim would still be alive if his sister had knocked on Appellant's door.
[35] The prosecutor made a misleading comment on Appellant's failure to subpoena a witness. It is not necessarily error to comment on the failure to call witnesses or on the defense and State having the same subpoena power. But such comments may not mislead or draw questionable references from outside the record. White v. State, 1986 OK CR 153, 726 P.2d 905, 907.
[36] Appellant's brief raises these four claims generally in his brief-in-chief, on one half page. His application for evidentiary hearing, however, goes into the specifics in great detail 102 pages of detail to be precise, not including the hundreds of pages attached to the application as exhibits and includes citations to and analysis of the matters within the record. This is a violation of Rule 3.11's provisions relating to applications for evidentiary hearing, the appellate brief content provisions of Rule 3.5, and the 100 page brief limitation of Rule 9.3. Concerning matters of ineffective assistance of trial counsel, an Appellant must set forth his or her assignments of error, supported by citations to the authorities, statutes, and parts of the record, within the appellate brief. An application for evidentiary hearing is meant to be an extract of the pertinent factual matters arising outside of the record, while appellate briefs are to contain the application of law to fact and the arguments pertaining to the issue at hand, ineffective assistance (especially those relating to matters in the record). The failure to raise in an appellate brief an issue within the record waives the issue. Rule 3.5(A)(5) and C(6). In the future, failure to fully raise and support by authority in the brief in chief those issues contained within the record will constitute waiver of those issues on appeal.
[37] (1) Whether Appellant's trial attorneys were ineffective for failing to utilize Dr. David Sweet or some other expert at the Daubert hearing concerning the bite-mark evidence; (2) Whether Appellant's trial attorneys were ineffective in their preparation and investigation of the allegations of Christy Steenveld; (3) Whether Appellant's trial attorneys were ineffective for failing to provide a proper foundation witness concerning a check Appellant presented to his bank during the relevant time period; (4) Whether Appellant's trial attorneys were ineffective for failing to present a detailed history of his life, including his history of child abuse and neglect; (5) Whether Appellant's trial attorneys were ineffective for failing to discover and utilize extensive mental health records relating to Appellant's commitment from 1972 to 1974; (6) Whether Appellant's trial attorneys were ineffective for failing to present expert testimony to explain the connection between his history of child abuse and his crimes; (7) Whether Appellant's trial attorneys were ineffective for failing to present his wife and son as mitigating witnesses; (8) Whether Appellant's trial attorneys were ineffective in their development and presentation of important mitigating evidence in the second stage of his trial; and (9) After considering all of the issues raised above and the matters addressed at the evidentiary hearing, whether Appellant's trial attorneys rendered constitutionally effective assistance of counsel during his trial.
[38] The Trial Court's findings and conclusions were filed with this Court on May 13, 2004.
[39] Briefs from both parties were submitted on May 14, 2004. We hereby grant Appellant's motion to exceed the ten-page limitation we previously set for supplemental briefs, and Appellant's brief is accepted by the Court for filing.
[40] We allowed forty-four (44) days in which to complete the hearing, from March 17 to April 30. Appellant filed two emergency applications to stay the proceedings and extend the time within which to hold the evidentiary hearing, claiming counsel did not have adequate time to prepare for such a complex evidentiary hearing and could not procure critical witnesses within the scheduled time frame. We left the decision with the District Court concerning the time necessary to conduct the remanded evidentiary hearing, but urged the hearing to be held prior to the oral arguments, if possible. The District Court indicated the existence of an exceedingly crowded docket, with nine pending murder cases, but held the hearing on March 31, with additional days scheduled for April 1st and 2nd.
[41] But see Rule 3.11(B)(3)(b)(iii), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2003) ("Upon remand, the trial court shall conduct an evidentiary hearing within thirty [30] days from the date of remand.")
[42] Pursuant to our rules, attachments to the application for evidentiary hearing are not considered evidence in the case until determined admissible during the course of the evidentiary hearing in the district court. Therefore, any references to exhibits/affidavits from that application in the instant case for purpose of explanation of the allegations or a proffer of what a witness would have testified if that witness would have been called does not mean this item has been properly admitted as evidence in the case, unless specifically noted.
[43] See question one of the remanded evidentiary hearing, note 33.
[44] More recently, Dr. Sweet has been undergoing a medical procedure relating to his transplant surgery that, along with his faculty responsibilities, prevented him from attending the evidentiary hearing, although he indicated he was available to testify on April 26, 2004.
[45] O.R. 976-981.
[46] See question two of the remanded evidentiary hearing, note 33.
[47] See question three of the remanded evidentiary hearing, note 33.
[48] See questions four through eight of the remanded evidentiary hearing, note 33.
[49] Dr. Montgomery could not recall the name of Appellant's grandmother, who was his primary caretaker.
[50] Dr. Montgomery indicated he and Appellant "didn't go into a great detail" on the sexual abuse Appellant suffered. He could not remember the age difference between the two boys and believed it was a couple of years, instead of ten years.
[51] Dr. Montgomery could not recall which children's home this was.
[52] Dr. Montgomery had not reviewed the records from that hospital.
[53] We fully recognize many of these documents are hearsay and the witnesses may have a different story when placed under oath and subjected to cross-examination. Unfortunately, appellate counsel called no witnesses to the stand when given the opportunity to at the remanded evidentiary hearing, thereby tying our hands concerning this issue.
[54] The evidentiary hearing record reflects a certain tension between the trial judge and Appellant's counsel on appeal, likely due to an overcrowded docket and appellate counsel's formidable task at hand. Whatever the precise cause, the parties involved were unable to work through their differences of opinion on scheduling, and we are left to mop up the results.
[55] We say "likely" because appellate counsel failed to ask trial counsel any questions regarding preparation, investigation, strategy, etc., of the case for mitigation at trial when afforded the opportunity to do so at the remanded evidentiary hearing. If there was a valid trial strategy in this decision, we cannot discern it from the record.
[56] To the extent appellate counsel's actions and waiver can be considered deliberate, we are required to refer them to the Oklahoma Bar Association for any action deemed appropriate. See Code of Judicial Conduct, Title 5, Ch. 1, App. 4, Canon 3(D) (2004). A copy of this opinion, together with an audio tape of the oral arguments will be transmitted to the General Counsel of the Oklahoma Bar Association and a complete copy of the briefs and pleadings will be made available, at their request. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632701/ | 103 P.3d 967 (2004)
140 Idaho 873
In the Interest of John Doe, A Juvenile.
STATE of Idaho, Plaintiff-Respondent,
v.
John DOE, Defendant-Appellant.
No. 29560.
Court of Appeals of Idaho.
December 20, 2004.
*969 David John Knowlton, Ogden, Utah, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
GUTIERREZ, Judge.
John Doe appeals from the intermediate appellate order of the district court affirming the trial court's finding that Doe falls within the purview of the Juvenile Corrections Act (JCA) for committing lewd conduct upon a child under the age of sixteen. We affirm.
I.
FACTUAL AND PROCEDURAL SUMMARY
Doe, a fourteen-year-old Utah resident, was camping with his family and other relatives at their property in Caribou County, Idaho as part of an annual Memorial Day get-together. After the group finished dinner in a one-room farmhouse located on the property, Doe and his four-year-old niece, E.L., began to "roughhouse" on the upper level of a bunk bed. After being told to settle down several times, Doe and E.L. left the farmhouse to play outside. Approximately twenty minutes later the adults heard E.L. crying hysterically. E.L.'s mother ran outside and found her daughter, who reported that Doe had "put his finger in her bum and that it hurt really bad." Inside the farmhouse, a few seconds later, a still hysterical E.L. repeated her statement to her mother and grandmother and pointed at her vaginal area to show where Doe had put his *970 finger. A subsequent medical examination showed bruising to the introitus area of E.L.'s genitalia. The examining physician later testified that he concluded the injury had been caused by some sort of "penetrating trauma."
The state filed a juvenile petition against Doe, charging lewd conduct with a minor under sixteen years of age, I.C. § 18-1508. After an evidentiary hearing, the magistrate found Doe to be under the purview of the JCA, and ordered a suspended commitment to the Idaho Division of Juvenile Corrections. The magistrate placed Doe on probation for three years and entered a restitution order against Doe's parents. Doe appealed the magistrate's decision to the district court. The district court affirmed the magistrate's finding that Doe fell under the purview of the JCA and also affirmed the restitution order except to the extent that Doe's parents were ordered to pay restitution. Doe appeals from the district court's appellate decision and argues that the magistrate (1) abused his discretion in admitting certain hearsay statements; (2) denied Doe his constitutional right to confront witnesses; (3) erroneously admitted evidence of uncharged conduct; and (4) abused his discretion in ordering restitution.
II.
STANDARD OF REVIEW
On review of a decision of the district court, rendered in its appellate capacity, we examine the record of the trial court independently of, but with due regard for, the district court's intermediate appellate decision. State v. Bowman, 124 Idaho 936, 939, 866 P.2d 193, 196 (Ct.App.1993).
III.
ANALYSIS
A. Hearsay and Right to Confrontation
Doe argues that the magistrate abused his discretion in admitting statements made by E.L. to her mother and grandmother at the farmhouse as well as statements made by E.L. and her mother to the attending physician because the statements were hearsay. Doe also contends that the admission of these statements violated his constitutional right to confront witnesses. We address these issues in turn.
1. Farmhouse statements
The magistrate admitted three of E.L.'s farmhouse statements into evidence finding that the statements fell under the excited utterance exception to Idaho's hearsay rule. The magistrate specifically allowed into evidence (1) E.L.'s statement to her mother that Doe had "put his finger in her bum and that it hurt really bad," (2) E.L.'s reiteration of that statement, a few seconds later, to her mother and grandmother, and (3) E.L.'s pointing to her vaginal area in response to a question from her mother about where Doe had put his finger.
Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." I.R.E. 801(c); State v. Gomez, 126 Idaho 700, 704, 889 P.2d 729, 733 (Ct.App.1994). Hearsay is inadmissible unless otherwise provided by an exception in the Idaho Rules of Evidence or other rules of the Idaho Supreme Court. I.R.E. 802. The excited utterance exception to the hearsay rule authorizes the admission of hearsay if the testimony recounts a "statement relating to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition." I.R.E. 803(2). To fall within the excited utterance exception, an out-of-court statement must meet two requirements. First, there must be a startling event that renders inoperative the normal reflective thought process of the observer and second, the declarant's statement must be a spontaneous reaction to that event rather than the result of reflective thought. State v. Parker, 112 Idaho 1, 4, 730 P.2d 921, 924 (1986); State v. Hansen, 133 Idaho 323, 325, 986 P.2d 346, 348 (Ct.App.1999). Whether a statement falls within the excited utterance exception is left to the sound discretion of the trial court. State v. Bingham, 116 Idaho 415, 421, 776 P.2d 424, 430 (1989); Hansen, 133 Idaho at 325, 986 *971 P.2d at 348. The decision to admit or deny such evidence will not be disturbed on appeal absent a clear showing of abuse of that discretion. State v. Hoover, 138 Idaho 414, 419, 64 P.3d 340, 345 (Ct.App.2003).
Doe asserts that E.L.'s statements do not meet either of the requirements necessary to fall within the excited utterance exception. Doe contends that one might "only speculate" that E.L. was crying in response to some act committed by Doe. Doe argues that the existence of some startling event in this matter can be identified only by assuming the truthfulness of E.L.'s statement. Accordingly, Doe asserts that the occurrence of some startling event in this case needed to be "established independent of the child's declaration." Doe offers no legal authority for this argument. Failure to provide legal citations waives the issue. I.A.R. 35(a)(6); State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996). Furthermore, Doe's argument ignores the corroborative testimony of the examining physician which indicated that the physical injury occurred by penetrating trauma.
In ruling on the admissibility of a statement under the excited utterance exception, the trial court considers the totality of circumstances surrounding the statement. Hoover, 138 Idaho at 419, 64 P.3d at 345. The circumstances to be considered include the amount of time that elapsed between the startling event and the statement, the nature of the condition or event, the age and condition of the declarant, the presence or absence of self-interest, and whether the statement was volunteered or made in response to a question. Hansen, 133 Idaho at 325, 986 P.2d at 348.
With regard to these circumstances, the evidence in this case established that E.L. made the statements within minutes of having suffered injury, as soon as her mother reached her; that the injury suffered was of an intimate and shocking nature; that E.L. was only four years old; and that the statements were made in response to her mother asking what was wrong upon finding E.L. crying hysterically. We conclude, in light of the evidence presented, that the magistrate was within his discretion in determining that E.L.'s statements were not the product of reflective thought. Accordingly, we also conclude that the magistrate did not abuse his discretion in determining that E.L.'s statements to her mother and grandmother, made moments after she was discovered crying hysterically, fell within the excited utterance exception to Idaho's hearsay rule. See State v. Kay, 129 Idaho 507, 927 P.2d 897 (Ct.App.1996); State v. Monroe, 128 Idaho 676, 917 P.2d 1316 (Ct.App.1996); State v. Valverde, 128 Idaho 237, 912 P.2d 124 (Ct.App.1996); State v. Stover, 126 Idaho 258, 881 P.2d 553 (Ct.App.1994).
Doe also contends that the admission of E.L.'s statements at the farmhouse violated his constitutional right to confront witnesses. Doe, relying on Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990), argues that those statements possess no particularized guarantees of trustworthiness and should have been excluded.
In Wright, the United States Supreme Court reiterated and applied an approach adopted in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), for determining when statements admissible under an exception to the hearsay rule also satisfy the Confrontation Clause. The Roberts formulation requires that the prosecution generally must demonstrate the unavailability of the declarant whose out-of-court statement it wishes to use against the defendant; and once the unavailability is established, the statement is admissible only if it bears adequate indicia of reliability. Id. at 66, 100 S. Ct. at 2539, 65 L.Ed.2d at 607. Roberts held that reliability can be inferred where the evidence falls within a "firmly rooted hearsay exception," but if a firmly rooted hearsay exception is not applicable, the Confrontation Clause precludes admission of the evidence unless the prosecution shows the statement carries "particularized guarantees of trustworthiness." Id. at 66, 100 S. Ct. at 2539, 65 L.Ed.2d at 608.
Subsequent to the parties' briefing in this case, the Supreme Court released its opinion in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), which significantly altered Confrontation *972 Clause analysis. Under Crawford, the initial focus is upon whether the statement was testimonial in nature and, if so, whether the defendant had an opportunity to cross-examine the declarant concerning the statement. Crawford, 541 U.S. at ___, 124 S.Ct. at 1374, 158 L.Ed.2d at ___. The Crawford court held that where testimonial hearsay is involved, its use in evidence against the defendant is barred by the Confrontation Clause unless the statement was subjected to "testing in the crucible of cross-examination." Id. at ___, 124 S.Ct. at 1370, 158 L.Ed.2d at ___. Although the Supreme Court specifically declined to delineate a comprehensive definition of "testimonial," it stated that:
Various formulations of this core class of "testimonial" statements exist: [1] ex parte in-court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially ... [2] extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions ... [3] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial....
Crawford, ___ U.S. at ___, 124 S.Ct. at 1364, 158 L.Ed.2d at ___. (Emphasis added.) In the present case, the statements at issue are clearly non-testimonial, and therefore are not subject to the Crawford cross-examination requirement for testimonial hearsay.
Although Crawford overruled Roberts with respect to testimonial hearsay, making such hearsay inadmissible if it was not subjected to prior cross-examination, it is open to dispute whether Crawford also abrogates Roberts with respect to non-testimonial statements. On the one hand, Crawford thoroughly criticizes the failings of the Roberts reliability analysis and the inconsistencies in application that it has wrought. On the other hand, the Crawford court expressly declined to overrule White v. Illinois, 502 U.S. 346, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992), where the Court considered and rejected the proposition that the Confrontation Clause applies only to testimonial statements, leaving regulation of non-testimonial statements to be controlled by hearsay rules. Crawford at ___, 124 S.Ct. at 1370, 158 L.Ed.2d at ___. The Crawford court commented, "Although our analysis in this case casts doubt on [the White] holding, we need not definitively resolve whether it survives our decision." Id. Some courts have interpreted Crawford as exempting non-testimonial hearsay from Confrontation Clause scrutiny, e.g., People v. Conyers, 4 Misc. 3d 346, 777 N.Y.S.2d 274 (2004), but others have concluded that the Roberts standards survive Crawford with respect to non-testimonial statements, e.g., Horton v. Allen, 370 F.3d 75 (1st Cir.2004); United States v. McClain, 377 F.3d 219, 221 n. 1 (2nd Cir.2004); People v. Corella, 122 Cal. App. 4th 461, 18 Cal. Rptr. 3d 770 (2004); State v. Rivera, 268 Conn. 351, 844 A.2d 191 (2004); Miller v. State, 98 P.3d 738 (Okla.Crim.App.2004). We conclude that because the Crawford majority did not expressly overrule Roberts or White, caution requires that we continue to apply the Roberts standard to non-testimonial hearsay. Here, we have held that the child victim's statements to her mother and grandmother fall within the hearsay exception for excited utterances. Because this is a firmly rooted hearsay exception, White, 502 U.S. at 355 n. 8, 112 S. Ct. at 742 n. 8, 116 L. Ed. 2d at 859 n. 8, the evidence satisfied the Roberts standard and did not violate the Confrontation Clause.
2. Hospital statements
Doe also argues that the magistrate erroneously admitted hearsay by allowing Dr. Lee Bules, E.L.'s examining physician, to testify as to what E.L.'s mother had told him and what E.L. herself reported to him. Doe objected to the admission of this testimony as hearsay, and the magistrate sustained this objection. Because the objection was sustained, Doe's current argument that the statements were inadmissible as hearsay is unwarranted.
However, the magistrate did allow the evidence to be admitted for foundational purposes rather than for the truth of the matter *973 asserted. On appeal, Doe asserts that the evidence was irrelevant for such purposes. Evidentiary rulings by the trial court are reviewed for an abuse of discretion. State v. Porter, 130 Idaho 772, 785, 948 P.2d 127, 140 (1997). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." I.R.E. 401. Because the magistrate disallowed use of the statements expressed to the doctor for the truth of the matter asserted, the question before us is whether some other material fact at issue in the trial was made more or less probable by use of the statement.
The magistrate ruled that the statements expressed to Dr. Bule were relevant for purposes of determining whether a proper foundation existed for submission of Dr. Bule's expert opinion. Dr. Bule testified that taking a medical history, including the solicitation of statements explaining what had triggered the medical examination, is standard practice. Accordingly, the medical history solicited by Dr. Bule constituted part of the facts and data relied upon by him in forming his expert opinion. Facts and data that are otherwise inadmissible but relied upon by an expert in forming an opinion are not to be disclosed to the factfinder unless the trial court determines that their probative value in assisting the factfinder to evaluate the expert's opinion substantially outweighs their prejudicial effect. I.R.E. 703. In this case, the trier of fact was a judge, not a jury, and we conclude that Doe has failed to demonstrate that the magistrate abused his discretion in determining that the evidence should be admitted but was not to be considered for the truth of the matter asserted. Doe has presented no reason for us to overturn the trial court's decision to allow the evidence for foundational purposes.
Doe also claims that the admission of Dr. Bule's testimony regarding the out-of-court statements made to him by E.L and her mother also violated his right to confront witnesses. The statements made to Dr. Bule were specifically not admitted as hearsay but were admitted as foundation for the doctor's testimony regarding his examination of E.L. and the conclusions he drew therefrom. Confrontation Clause analysis under Crawford does not apply where, as in the case of foundational evidence, the probative value of a statement is not dependent on its reliability. United States v. Trala, 386 F.3d 536, 544 (3d Cir.2004), citing Tennessee v. Street, 471 U.S. 409, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985). In the instant matter, there was absolutely no risk that the magistrate would mistakenly consider the truth of the statements. We conclude that Doe's rights under the Confrontation Clause were therefore satisfied.
B. Uncharged Conduct
Doe argues that the magistrate erroneously admitted evidence of prior misconduct. During direct examination by Doe's trial counsel, Doe's mother testified that, at the time of the crime, she told everyone that Doe had "never done anything like this before." On cross-examination, the prosecutor requested clarification of this statement and began asking whether Doe had ever been in trouble at school for inappropriate conduct with female classmates. Doe's trial counsel objected under I.R.E 404(b), and the magistrate sustained this objection. However, the magistrate allowed cross-examination on this issue solely for purposes of impeachment. Doe's mother thereafter testified that Doe had been in trouble at school for not being quiet in class.[1]
Evidence of other crimes, wrongs, or acts is not admissible to prove a defendant's criminal propensity. I.R.E. 404(b); State v. Needs, 99 Idaho 883, 892, 591 P.2d 130, 139 (1979); State v. Winkler, 112 Idaho 917, 919, 736 P.2d 1371, 1373 (Ct.App.1987). However, such evidence may be admissible for a purpose other than that prohibited by I.R.E. 404(b). State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct.App.2002). Rule 404(b) lists several permissible purposes such as proof of motive, intent, *974 plan, knowledge, and identity, but this is not an exclusive list. State v. Hairston, 133 Idaho 496, 501, 988 P.2d 1170, 1175 (1999); State v. Arledge, 119 Idaho 584, 588, 808 P.2d 1329, 1333 (Ct.App.1991). Evidence offered for the purpose of impeachment may be admissible, although not listed in 404(b). Id. To be admissible, such evidence must be relevant to show something other than the defendant's character and propensity to commit the crime charged; it must be relevant to a material and disputed issue. Hairston, 133 Idaho at 501, 988 P.2d at 1175. Even if relevant and introduced for a permissible purpose, evidence of uncharged misconduct is subject to exclusion if its probative value is substantially outweighed by the danger of unfair prejudice. Id; I.R.E. 403.
As this Court noted in State v. Arledge, 119 Idaho 584, 588, 808 P.2d 1329, 1333 (Ct.App.1991), "whenever evidence is introduced for purposes of impeachment, it necessarily involves a witness' credibility, and credibility is always relevant." See also State v. Hairston, 133 Idaho at 503, 988 P.2d at 1177. Accordingly, we turn to the second step in the analysis: determination of whether the probative value of the evidence is substantially outweighed by unfair prejudice. State v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct.App.1993). When reviewing this step we use an abuse of discretion standard. Id. The trier of fact in this case was a judge, and there is no evidence that the magistrate considered this testimony for anything other than impeachment, the only purpose for which the cross-examination was allowed. Thus, there was no danger of unfair prejudice. Doe's assignment of error on this point accordingly fails.
C. Restitution
Doe asserts that the magistrate erred in ordering restitution for earnings lost by E.L.'s parents for time they were off work to attend court proceedings or other matters related to Doe's case. Doe argues that I.C. §§ 20-520(3) and 19-5304(2) limit an award of restitution only to the economic loss actually suffered by the victim. We review an award of restitution under the abuse of discretion standard. State v. Bybee, 115 Idaho 541, 544, 768 P.2d 804, 807 (Ct.App.1989). A court may order a juvenile under the purview of the JCA to pay restitution in accordance with the standards and requirements of I.C. §§ 19-5304 and 19-5305. I.C. § 20-520(3). Under I.C. § 19-5304(1)(e)(i), the term "victim" includes the immediate family of a minor. Doe's contention that E.L.'s parents may not receive restitution is therefore without merit.
Doe also argues that the amount of restitution awarded was excessive, and implies that E.L.'s parents have received an economic reward or windfall under the guise of restitution. The district court, acting in its appellate capacity, ruled that Doe's argument on this issue was based upon a mischaracterization of the record, an assessment with which we agree. Doe argues that the father's net income was about $1,000 a month, and then assails the $3,300 awarded as representing 25 percent of the father's annual net income. However, the victim's father testified that he pays nearly $6,000 a month on leases for his business equipment. Doe asserts that these overhead costs are not incurred when one misses work, a contention that lacks support in the record. Because those overhead costs are due regardless of whether one works on a given day, a proper calculation of the amount lost by the victim's father contemplates gross figures. The victim's father testified that he grossed around $60,000 a year; the $3,300 award therefore represents a figure closer to 5 percent of the father's annual gross income. Doe has failed to show that the magistrate's approach was error.
The record also does not support a conclusion that the magistrate abused his discretion in determining the amount of restitution. The magistrate awarded restitution in the amount of $3,300 for lost income from self-employment based on E.L.'s father's gross earnings per day for eleven days and $2,700 in restitution for E.L.'s mother's lost wages based upon her daily average wage and nine days missed from work. The record supports this ruling. A letter from the victim's father, as well as his testimony at the restitution hearing, support the amount of the award, and there is no other evidence *975 in the record to contest these amounts. Doe apparently made no effort to cross-examine witnesses on their economic loss, and we will not presume that such cross-examination would have provided support for Doe's current position. Based on the record as it stands, we conclude the trial court's decision was not an abuse of discretion.
IV.
CONCLUSION
We conclude that the magistrate did not abuse his discretion in determining that E.L.'s statements to her mother and grandmother fell within the excited utterance exception to Idaho's hearsay rules. We furthermore conclude that the statements made to E.L.'s doctor were permissibly admitted solely for foundational purposes. Doe's right to confront witnesses was not violated by the admission of any of these statements. We also conclude that the evidence of prior wrongful acts was admitted solely for impeachment purposes and that the magistrate did not abuse his discretion in ordering restitution. Accordingly, the order of the district court, on intermediate appeal, affirming the magistrate's decree that Doe fell within the purview of the Juvenile Corrections Act, is affirmed.
Chief Judge LANSING and Judge PERRY concur.
NOTES
[1] Evidence at the sentencing hearing indicated that Doe had made improper sexual comments or engaged in improper sexual conduct with girls at his school and in his neighborhood. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2633677/ | 141 P.3d 891 (2005)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Deitrich Franz BOSTELMAN, Defendant-Appellant.
No. 04CA1223.
Colorado Court of Appeals, Div. I.
December 8, 2005.
Certiorari Granted August 28, 2006.[*]
*892 John W. Suthers, Attorney General, Matthew D. Grove, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Jonathan D. Reppucci, LLC, Jonathan D. Reppucci, Denver, Colorado, for Defendant-Appellant.
WEBB, J.
Defendant, Deitrich Franz Bostelman, appeals the trial court's order denying his Crim. P. 35(c) motion for postconviction relief and a separate order granting the People's motion for revocation. We affirm.
The People alleged that defendant committed a burglary eight days before his fourteenth birthday. They direct filed this charge in district court shortly after defendant turned fourteen. Defendant pled guilty to the burglary and received a twelve-year Department of Corrections (DOC) sentence, suspended on the condition that he successfully complete a six-year sentence in the Youthful Offender System (YOS).
Later, the People moved for revocation because defendant had not complied with the minimum YOS requirements. In response, defendant filed a Crim. P. 35(c) motion challenging the district court's jurisdiction because he had committed the burglary before turning fourteen. The trial court denied the motion, revoked defendant's YOS sentence, and imposed the twelve-year DOC sentence.
I.
Defendant first contends the trial court lacked jurisdiction under the direct filing statute, § 19-2-517(1)(a)(IV), C.R.S.2005, because he was thirteen years old when he allegedly committed the crime on which the People direct filed in district court, although he was fourteen years old when he was charged. We disagree.
Statutory interpretation is a question of law that appellate courts review de novo. Hendricks v. People, 10 P.3d 1231 (Colo.2000). When construing statutes, a court's primary purpose is to effectuate the General Assembly's intent. To determine that intent, courts first look to the statutory language, giving words and phrases their commonly accepted meaning. People v. Renfro, 117 P.3d 43 (Colo.App.2004).
*893 If the statute is unambiguous, we look no further. Hensley v. Tri-QSI Denver Corp., 98 P.3d 965 (Colo.App.2004). We rely on statutory construction principles only when the statute is ambiguous. Coffman v. Colo. Common Cause, 102 P.3d 999 (Colo. 2004).
We construe a statute as a whole in order to give "consistent, harmonious and sensible effect to all its parts." Bd. of County Comm'rs v. Costilla County Conservancy Dist., 88 P.3d 1188, 1192 (Colo.2004). We avoid constructions that render any part of a statute meaningless, In re Estate of Hall, 948 P.2d 539 (Colo.1997); that create a conflict between statutes, Lobato v. Indus. Claim Appeals Office, 105 P.3d 220 (Colo.2005); or that lead to an illogical or absurd result. Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585 (Colo.2005).
If statutory language permits alternative constructions, we may also consider the legislative history. L.E.L. Constr. v. Goode, 867 P.2d 875 (Colo.1994); see also § 2-4-203, C.R.S.2005. We then construe the statute to serve the legislative purpose underlying its enactment. Coffman v. Colo. Common Cause, supra.
Section 19-2-517(1)(a)(IV) provides:
(1)(a) A juvenile may be charged by the direct filing of an information in the district court or by indictment only when:
...
(IV) The juvenile is fourteen years of age or older, has allegedly committed a delinquent act that constitutes a felony, and has previously been subject to proceedings in district court as a result of a direct filing pursuant to this section or a transfer pursuant to section 19-2-518; except that, if a juvenile is found not guilty in the district court of the prior felony or any lesser included offense, the subsequent charge shall be remanded back to the juvenile court.
(Emphasis added.)
A.
Defendant argues that § 19-2-517(1)(a)(IV) requires a juvenile to have been fourteen years old when the crime on which the prosecutor direct files in district court was committed. The People respond that a juvenile need only be fourteen years old when charged in district court. In our view, the statute is susceptible of both interpretations, but we conclude the statutory language favors the People's interpretation, which was adopted by the trial court.
At oral argument, both parties acknowledged that the legislative history provides no guidance for interpreting the age fourteen limit in § 19-2-517, C.R.S.2005.
The plain language of § 19-2-517(1)(a)(IV) allows a juvenile to be charged in district court if the juvenile (1) is at least fourteen years old; (2) has allegedly committed a felony; and (3) was previously subject to a district court proceeding. This language does not require that the juvenile have been fourteen years old when either he or she committed the felony or was subject to the previous district court proceeding.
Other subsections of § 19-2-517(1)(a) describe the first condition in identical language ("the juvenile is fourteen years of age or older") and include different crimes as conditions on direct filing. See § 19-2-517(1)(a)(I), (II)(A)-(D), (V), C.R.S.2005. But likewise these subsections do not require that the juvenile have been age fourteen when the crime was committed.
In contrast, another subsection, concerning sentencing, applies "if the juvenile is less than sixteen years of age at the time of commission of the crime." Section 19-2-517(3)(a)(III), C.R.S.2005. A similar phrase appears in § 19-2-518(4)(b)(XII) and (XIII), C.R.S.2005, concerning transfers under § 19-2-518. This language shows that the General Assembly was aware it could require a juvenile to be a certain age when the crime is committed. See People in Interest of C.A.G., 903 P.2d 1229 (Colo.App.1995) (a court is not permitted to add an important limitation or qualification to a statute).
Hence, based on the absence of "at the time of commission of the crime" language in § 19-2-517(1)(a)(IV), we discern no legislative intent that the age fourteen limit should apply to the date the juvenile committed the crime being direct filed. See Allstate Ins. Co. v. Smith, 902 P.2d 1386 (Colo.1995) (use *894 of materially different language in statutory subsections indicates that General Assembly did not intend identical results).
Applying the age limit in § 19-2-517(1)(a)(IV) to the time the juvenile is charged by direct filing finds support in People v. Davenport, 43 Colo. App. 41, 602 P.2d 871 (1979). There, a division of this court interpreted an earlier version of the direct filing statute, then numbered § 19-1-104(4)(b), which provided:
A child may be charged with the commission of a felony only after the hearing as provided in paragraph (a) of this subsection (4), or when the child is:
(I) Alleged to have committed a crime of violence defined by § 18-1-105, C.R.S. 1973, as a class I felony, and is fourteen years of age or older ....
(Emphasis added.)
The defendant in Davenport conceded that he was fourteen when the indictment was filed, but argued that the district court lacked jurisdiction because he was ultimately convicted of a lesser offense. The Davenport division disagreed, concluding that the words "charged" and "alleged" in the statute show that the General Assembly intended the indictment, and not the subsequent conviction, to determine juvenile court and district court jurisdiction.
Similarly, the current § 19-2-517(1)(a)(IV) sets forth the conditions under which a juvenile may be "charged" in district court, including the condition that the juvenile has "allegedly" committed a certain type of crime. Thus, we conclude this language focuses on the indictment or information, not the crime.
Defendant argues that applying the age limit to the time of the information or indictment, rather than to the commission of the crime, would conflict with People v. Trujillo, 983 P.2d 124 (Colo.App.1999). We are not persuaded.
In Trujillo, the division interpreted § 19-2-517(1)(a)(III), C.R.S.2005, which provides that a juvenile may be charged by the direct filing of an information in the district court when "[t]he juvenile has, within the two previous years, been adjudicated a juvenile delinquent... is sixteen years of age or older, and allegedly has committed a [specified] crime." The defendant argued that the district court lacked jurisdiction because, although he had committed the current offenses within two years of his delinquency adjudication, the People did not file the information within two years of that adjudication.
The Trujillo division disagreed, concluding that the two-year period should be measured from the date of the previous adjudication to the date of the current offense, not the later date when the People filed the information based on that offense. The division explained that focusing on the defendant's conduct, rather than on the People's charging decision, furthered the legislative goal of discouraging recidivism by "giving juveniles a concrete period within which to reform their behavior and ensuring that the date of the triggering event for the subsequent offense is within their control." People v. Trujillo, supra, 983 P.2d at 126.
Section 19-2-517 must be interpreted consistently with the legislative declaration in the Children's Code, which recognizes the need to "protect, restore, and improve the public safety." Section 19-2-102(1), C.R.S. 2005. The Trujillo division's "concrete period" analysis discourages recidivism and thus furthers public safety.
In contrast, adopting defendant's interpretation of § 19-2-517(1)(a)(IV) would not further public safety. Affording the People discretion to direct file on a crime committed before the juvenile turns fourteen increases the consequences of that crime to the juvenile who has previously been subject to district court proceedings, which may deter recidivism. Thus, applying the age limit to the indictment or information rather than to the crime furthers the legislative goal of enhancing public safety.
Nor are we persuaded by defendant's argument that applying the age limit to the indictment or information rather than to the crime conflicts with People v. Zamora, 13 P.3d 813 (Colo.App.2000), and People in Interest of M.C., 750 P.2d 69 (Colo.App.1987), aff'd, 774 P.2d 857 (Colo.1989).
People v. Zamora, supra, involved a seventeen-year-old defendant who claimed the district court lacked jurisdiction because the *895 People did not include a separate violent crime count when they direct filed. Thus, Zamora addressed the type of crime needed to direct file, not the timing of either the filing or the underlying crime.
In People in Interest of M.C., supra, the defendant argued that the juvenile court lacked jurisdiction because he had turned eighteen before the dispositional hearing, although he was seventeen when he committed the crime. The division disagreed, concluding that the General Assembly intended eighteen to be the age after which a person's actions would be considered those of an adult. Thus, using the age when the crime was committed, not the age at disposition, was consistent with this intent.
The M.C. decision is not contrary to the People's interpretation here of § 19-2-517(1)(a)(IV). Under § 19-2-104(6), C.R.S. 2005, "[t]he juvenile court may retain jurisdiction over a juvenile until ... the statute of limitations applicable to any offense that may be charged has run, regardless of whether such person has attained the age of eighteen years, and regardless of the age of such person." In contrast, under § 19-2-104(7), C.R.S.2005, the juvenile court does not have jurisdiction over "a person for any offense committed after the person attains the age of eighteen years." Thus, the statute expressly focuses on the age when the offense was committed. As previously noted, § 19-2-517(1)(a)(IV) contains no similar language.
We also reject defendant's assertion that the People's interpretation of § 19-2-517(1)(a)(IV) would allow the prosecution to circumvent § 19-2-518, C.R.S.2005. The latter statute allows a juvenile court on petition to transfer a twelve- or thirteen-year-old, who has committed a delinquent act that constitutes a class 1 or class 2 felony or a crime of violence, to district court if "[a]fter investigation and a hearing, the juvenile court finds it would be contrary to the best interests of the juvenile or of the public to retain jurisdiction." Section 19-2-518(1)(a)(II), C.R.S.2005.
The People's interpretation of § 19-2-517(1)(a)(IV) only allows them to direct file on a juvenile who is at least fourteen years old. Juveniles who are younger when a prosecutor seeks by petition to proceed in district court would still be subject to, and thus in defendant's view protected by, the juvenile court procedures described in § 19-2-518.
Section 19-2-104(1)(b), C.R.S.2005, shows that the General Assembly chose to limit this procedural protection to juveniles below age fourteen. Under this subsection, although a juvenile is subject to transfer under § 19-2-518, after filing charges in juvenile court and before a transfer hearing "the district attorney may file the same or different charges against the juvenile" by direct filing under § 19-2-517. In this event, "the juvenile court shall no longer have jurisdiction over proceedings concerning said charges." Section 19-2-104(1)(b).
The transfer process includes a juvenile who is fourteen years of age and "is a juvenile delinquent by virtue of having committed a delinquent act that constitutes a felony." Section 19-2-518(1)(a)(I)(B), C.R.S.2005. Although the delinquent act could have been committed before the juvenile turned fourteen and a transfer hearing may be pending, once the juvenile reaches that age the prosecution could direct file. The transfer statute no longer includes the restrictive language before the court in J.D.C. v. Dist. Court, 910 P.2d 684, 686 (Colo.1996)("According to the plain language of [the former version of the transfer statute], once a juvenile petition is filed in juvenile court, the only proper method for transferring the case to the district court is a transfer hearing before the juvenile court.").
In this regard, defendant's reliance on Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), is misplaced. In Kent, the Supreme Court addressed the procedural due process that must be afforded in a juvenile court transfer proceeding similar to a proceeding under § 19-2-518. The opinion does not address procedural due process in direct filing.
We are not persuaded by defendant's argument that the People's interpretation would result in district court proceedings against juveniles who committed crimes when they were under twelve years of age, if a prosecutor waited until the juvenile turned fourteen and then direct filed. Under the Children's Code, the legislature has provided *896 a mechanism for charging twelve- and thirteen-year-olds in district court, through the transfer statute, § 19-2-518. Hence, the General Assembly did not intend fourteen to be the minimum age at which criminal responsibility as an adult can attach. In contrast, the Children's Code provides no mechanism for prosecuting a juvenile less than twelve years old as an adult in district court.
Further, this result would be prevented if the juvenile proved prosecutorial delay. See People v. Melanson, 937 P.2d 826, 831 (Colo. App.1996) (apart from the right to a speedy arrest or indictment, "[a] point may be reached at which the delay in prosecution is so great that considerations of due process and fundamental fairness require that the charges be dismissed").
For these reasons we are also not persuaded by defendant's argument concerning a juvenile who committed a crime while age nine, but became subject to direct filing in district court because the prosecutor waited until the juvenile turned fourteen.
Moreover, we note that the juvenile court has "exclusive original jurisdiction" over "any juvenile ten years of age or older" who has, among other things, violated "(I) Any federal or state law [with exceptions]; (II) Any county or municipal ordinance [with exceptions]; or (III) Any lawful order of the court made under this title." Section 19-2-104(1)(a), C.R.S.2005. While this statute also does not require that the law or ordinance violation have occurred when the juvenile was age ten or older, our interpretation does not reach this far.
We decline defendant's invitation to invoke the rule of lenity, which requires courts to resolve ambiguities in a penal code in favor of a defendant's liberty interests. Frazier v. People, 90 P.3d 807 (Colo.2004). This rule is a principle of last resort and will not be applied to defeat the intent of the General Assembly. Frazier v. People, supra. Because the language in §§ 19-2-102 and 19-2-517(1)(a)(IV) sufficiently informs us of legislative intent, we cannot invoke the rule of lenity.
Additionally, defendant sets forth several public policy arguments concerning potential abuse of prosecutorial discretion in deciding which juveniles against whom to direct file and the societal consequences of prosecuting juveniles as adults. We believe that the General Assembly may anticipate the proper exercise of prosecutorial discretion. See W. LaFave & A. Scott, Criminal Law § 3.8, at 243 (2d ed.1986). Further, we view such policy determinations as solely within the domain of the General Assembly and not of this court. See Concerned Parents of Pueblo, Inc. v. Gilmore, 47 P.3d 311 (Colo.2002); Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30 (Colo.2000)(it is not up to the court to make policy or to weigh policy).
Accordingly, we conclude § 19-2-517(1)(a)(IV) does not require a juvenile to have been fourteen years old when the crime charged by direct filing in district court was committed.
B.
Defendant next argues that § 19-2-517(1)(a)(IV) denies him equal protection of the law because offenders thirteen years old or younger are not subject to the jurisdiction of the district court by direct filing. Again, we disagree.
To state an equal protection violation, a defendant must establish that he or she received treatment different from that afforded to similarly situated persons. People v. Oglethorpe, 87 P.3d 129 (Colo.App. 2003). But here defendant was subject to direct filing in the district court only after he turned fourteen. This fact defeats an equal protection challenge based on defendant's comparing himself to juveniles who have not yet reached that age, and thus are not subject to direct filing under § 19-2-517(1)(a)(IV). See People v. Smith, 29 P.3d 347 (Colo.App.2001); Jaffe v. City & County of Denver, 15 P.3d 806 (Colo.App.2000).
Instead, we analyze defendant's equal protection argument as related to other similarly situated fourteen-year-olds, all of whom could be subject to direct filing in the exercise of prosecutorial discretion, and who, like defendant, committed certain crimes before having attained age fourteen. See also § 19-2-517(1)(a)(I), (II)(A)-(D).
*897 In People v. Thorpe, 641 P.2d 935, 940 (Colo.1982), the supreme court said:
[W]e reject the defendant's argument that he was denied equal protection of the law because the district attorney chose to file a criminal action against him whereas another in his same circumstance could be treated as a juvenile and charged with delinquency. We reiterate that the conscious exercise of selectivity in the enforcement of laws is not in itself a constitutional violation of equal protection of the law, absent a showing that a prosecutor has exercised a policy of selectivity based upon an unjustifiable standard such as "race, religion, or any other arbitrary classification," which was not shown here.
Prosecutorial discretion is a hallmark of our criminal justice system that flows from the doctrine of separation of powers. See People in Interest of J.A.L., 761 P.2d 1137 (Colo.1988). In order to preserve the required separation of powers, a prosecutor's charging decision may not be controlled or limited by judicial intervention. People v. Dist. Court, 632 P.2d 1022 (Colo.1981).
Accordingly, we discern no equal protection violation in the exercise of discretion by prosecutors who select which juveniles, at least age fourteen but who committed crimes while younger, on whom to direct file in district court.
II.
Having determined that the trial court had jurisdiction under the direct filing statute, we need not address defendant's argument that his plea counsel was ineffective in failing to raise this issue. See People v. Fulton, 754 P.2d 398 (Colo.App.1987)(need not address claim of ineffective assistance where no harm resulted).
III.
Finally, defendant contends the trial court erred by allowing the prosecution to introduce hearsay evidence at the revocation hearing. We discern no reversible error.
A defendant facing revocation of YOS is not entitled to the same procedural protections guaranteed to an accused at trial. People v. McCoy, 939 P.2d 537 (Colo.App.1997). Yet because revocation entails potential loss of freedom, minimum due process protections are required. People v. McCoy, supra.
As in probation and parole revocation hearings, due process at a YOS revocation hearing requires (1) written notice of the claimed violations; (2) disclosure to the defendant of the evidence against him or her; (3) a fair opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adversarial witnesses, unless there is good cause to deny such a right; (5) a neutral and detached hearing officer or judge; and (6) a written statement by the fact finder as to the evidence relied on and reasons for the revocation. People v. McCoy, supra.
In a revocation hearing, a trial court is not bound by the strict rules of evidence, and all probative evidence is admissible so long as the defendant has the opportunity to rebut any hearsay. Byrd v. People, 58 P.3d 50 (Colo.2002); People v. Kelly, 919 P.2d 866 (Colo.App.1996)(General Assembly expressed its intent to have all probative evidence considered at the revocation hearing, even if that evidence would be excluded in a criminal trial); cf. § 16-11-206(3), C.R.S.2005 (any evidence having probative value shall be received if the defendant is accorded a fair opportunity to rebut hearsay evidence).
Where a defendant does not make a contemporaneous objection when hearsay is admitted, the plain error standard of review applies. People v. Bowers, 801 P.2d 511 (Colo.1990). Such an error must be "obvious, substantial, and grave." Moore v. People, 925 P.2d 264, 268 (Colo.1996). Under this standard, reversal is limited to those circumstances in which "an appellate court, after reviewing the entire record, can say with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." Wilson v. People, 743 P.2d 415, 420 (Colo.1987).
Here, the People neither called any witnesses nor presented any potential witnesses for cross-examination, but instead introduced into evidence a "revocation packet" that contained various progress reports and assessments *898 relating to defendant. When it was introduced, the following colloquy took place:
Defendant: It's my understanding . . . that the People do not intend to present any evidence via witnesses at the hearing today and they're relying solely on [the revocation packet].
Court: Is that right, [People]?
People: That's clear.
. . . .
Court: All right. And no objection to admitting [the revocation packet], considering that here, [defendant], just for the record?
Defendant: No objection, Judge.
Nevertheless, during summation defendant argued that the revocation packet was hearsay.
Defendant was accorded a fair opportunity to rebut the revocation packet during his own testimony. Instead, defendant testified that he had signed a contract with YOS, which "spelled out the terms and conditions [he was] expected to abide by," and then admitted that he had violated several provisions of this contract.
The trial court found: "The evidence at the hearing established that Defendant was made aware of several different types of misconduct which could cause his removal from YOS, and that he subsequently was involved in a variety of these types of misconduct." Although as the trial court acknowledged, "evidence as to all of the misconduct was meticulously detailed in Defendant's revocation packet," defendant's own testimony adequately supported the court's finding. Hence, the revocation decision does not depend on this packet.
Nevertheless, defendant argues that, even if a probation violation can be established by hearsay evidence, the People must still present the offering witness for cross-examination. See People v. Moses, 64 P.3d 904, 908 (Colo.App.2002)("[A] probation violation may be established by hearsay testimony if the offering witness is subject to cross-examination."). According to defendant, he was wrongly forced to choose between holding the People to their burden of making the offering witness available for cross-examination and exercising his right not to testify. We are not persuaded that this "forced the choice," which defendant raises for the first time on appeal.
Defendant expressly disavowed any objection to the revocation packet, after having been told that the People had no witnesses. Under these circumstances the error, if any, in admitting the revocation packet without requiring the People to present an offering witness for cross-examination is not so obvious as to call for inquiry into the reliability of the judgment. See People v. Petschow, 119 P.3d 495 (Colo.App.2004).
Defendant's assertion that Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), applies to revocation proceedings has already been rejected by a division of this court. See People v. Turley, 109 P.3d 1025 (Colo.App.2004)(the right of confrontation in revocation proceedings flows entirely from the Due Process Clause of the Fourteenth Amendment, rather than the Confrontation Clause of the Sixth Amendment). We decline to depart from this holding.
Accordingly, we discern no plain error.
The orders are affirmed.
MARQUEZ, J., concurs.
PICCONE, J., dissents.
Judge PICCONE dissenting.
I disagree with the majority's conclusion that pursuant to § 19-2-517(1)(a)(IV), C.R.S. 2005, so long as the juvenile is fourteen years old at the time he or she is charged in district court, the juvenile's age at the time the offense was committed does not matter. In my view, the juvenile must be at least fourteen years old at the time the offense is committed before the district attorney has the discretion to file the charge in district court. The majority's interpretation is contrary to the objective sought to be achieved by the legislation and leads to an unreasonable result.
The majority recognizes the statute is susceptible to more than one interpretation. Our goal in construing a statute is to ascertain and give effect to the intent of the General Assembly. We must presume that the General Assembly intends a just and *899 reasonable result. We will not follow a statutory construction that either defeats legislative intent or leads to an unreasonable result. People v. Trujillo, 983 P.2d 124 (Colo.App. 1999).
To determine legislative intent, we first look to the language of the statute, giving the words and phrases their plain and ordinary meaning. People v. Dist. Court, 713 P.2d 918 (Colo.1986); Trujillo, supra. When the statutory language is clear and unambiguous, it must be interpreted as written, without resort to interpretive rules and statutory construction. People v. Zapotocky, 869 P.2d 1234 (Colo.1994); see also Trujillo, supra. "If, however, the statutory language lends itself to alternative constructions and its intended scope is unclear, a court may apply other rules of statutory construction to determine which alternative construction is in accordance with the objective sought to be achieved by the legislation." Trujillo, supra, 983 P.2d at 126; see also People v. Terry, 791 P.2d 374 (Colo.1990).
A court may also consider the consequences of a particular construction and the legislative policy declaration at the outset of the legislation to determine legislative intent. Trujillo, supra; see § 2-4-203(1)(d)-(e), C.R.S.2005.
The Children's Code was designed to benefit youthful offenders and should not be construed to diminish their rights. C.C.C. v. Dist. Court, 188 Colo. 437, 535 P.2d 1117 (1975).
[T]he intent of [the Code] is to protect, restore, and improve the public safety by creating a system of juvenile justice that will appropriately sanction juveniles who violate the law . . . . The general assembly further finds that, while holding paramount the public safety, the juvenile justice system shall take into consideration the best interests of the juvenile . . . in providing appropriate treatment to reduce the rate of recidivism in the juvenile justice system and to assist the juvenile in becoming a productive member of society.
Section 19-2-102(1), C.R.S.2005.
One of the fundamental differences between the juvenile system of justice and an adult criminal prosecution "is the overriding goal of the Children's Code to provide guidance and rehabilitation of an adjudicated delinquent child in a manner consistent with the best interest of the child and the protection of society rather than fixing criminal responsibility, guilt, and punishment."
People v. J.J.H., 17 P.3d 159, 163 (Colo.2001) (quoting S.G.W. v. People, 752 P.2d 86, 91 (Colo.1988)); see People in Interest of M.C., 750 P.2d 69, 70 (Colo.App.1987)("The Children's Code's sole emphasis is on rehabilitating children, assisting them in becoming responsible and productive members of society, and preventing them, while at an impressionable and vulnerable age, from becoming criminals."), aff'd, 774 P.2d 857 (Colo.1989).
As pertinent here, § 19-2-517(1)(a), C.R.S. 2005, states:
A juvenile may be charged by the direct filing of an information in the district court or by indictment only when: . . .
(IV) The juvenile is fourteen years of age or older, has allegedly committed a delinquent act that constitutes a felony, and has previously been subject to proceedings in district court as a result of a direct filing pursuant to this section or a transfer pursuant to section 19-2-518 . . . .
Thus, § 19-2-517(1)(a)(IV) provides that if certain conditions are met, a juvenile can only be charged in district court if the juvenile is fourteen years old or older and has committed a delinquent act that constitutes a felony. The statute's two most obvious and basic limitations are the offender's agefourteenand the nature of the offensea felony.
The majority's interpretation focuses on the word "charged" and concludes that the absence of language requiring that the juvenile be fourteen when the offense was committed gives the district attorney discretion to wait to file the charge until the juvenile turns fourteen. Section 19-2-517(1)(a)(IV), however, focuses on the conduct of the juvenile and requires that the juvenile be fourteen years old and have committed a delinquent act. The statute by its very terms requires that the offense be committed when the juvenile is fourteen years of age or older, and has allegedly committed a delinquent act that constitutes a felony, and has previously *900 been subject to proceedings in district court. The statute does not suggest that the delinquent act can be committed before the juvenile turns fourteen.
Colorado case law and the Children's Code support this interpretation.
First, in People v. Trujillo, supra, the defendant argued that pursuant to § 19-2-517(1)(a)(III), C.R.S.2005, the district court did not have subject matter jurisdiction because the People did not file the information within two years of his previous adjudication. The division held that the required two-year period was to be measured from the date of the previous adjudication to the date of the juvenile's current offenses. The division stated:
Focusing on the defendant's conduct is consistent with the legislative purpose of encouraging juveniles to reform their behavior and to become productive members of society. Defendant's interpretation of the statute focuses on the People's conduct, rather than on the juvenile's conduct, and would result in there being different consequences for a juvenile's conduct depending upon the date the People file the information.
Trujillo, supra, 983 P.2d at 126.
Thus, the focus must be on the conduct of the juvenile, not on the date of the indictment or information. Any other interpretation would authorize different consequences for a juvenile's conduct depending on the date the prosecution files the information. For example, if the date of the indictment or information is controlling, a child who commits an offense at age eleven could be charged as an adult by direct filing in district court merely because the information or indictment is filed when he or she turns fourteen. Under the majority's interpretation, the delinquent act turns into an alleged felony merely because of the lapse of time. Likewise, the district court acquires jurisdiction merely because of the lapse of time.
Second, the juvenile court has exclusive, original jurisdiction over juveniles from ten years to eighteen years of age who have violated state law. Section 19-2-104(1)(a), C.R.S.2005; see §§ 19-1-103(18), (68) & 19-2-103(10), C.R.S.2005. The juvenile court's exclusive jurisdiction yields to the jurisdiction of the district court only in certain limited circumstances. See §§ 19-1-104, 19-2-517, 19-2-518, C.R.S.2005.
In People in Interest of M.C., supra, the defendant asserted that the juvenile court did not have jurisdiction because although he was seventeen years old at the time of the offense, he turned eighteen before the dispositional hearing. The division held that "[t]he age at which the acts were committed is the determinative factor [for jurisdiction], not the age at which disposition was imposed." M.C., supra, 750 P.2d at 70.
Further, § 19-2-104(6), C.R.S.2005, states that the juvenile court may retain jurisdiction until the statute of limitations applicable to any offense that may be charged has run, regardless of whether the juvenile has attained the age of eighteen years and regardless of the age of such person. In conferring jurisdiction on the juvenile court, the statute expressly focuses on the age at the time the offense was committed. Thus, the date the offense is committed is determinative to invoke the jurisdiction of the juvenile court.
Third, the purpose of the Code is defeated if prosecutors charged with the execution of the law may defer action until the child turns fourteen. The majority's interpretation would authorize different consequences for a juvenile's conduct, depending upon the date the prosecution files the information.
In enacting the direct filing statute, the General Assembly authorized prosecutors to treat juvenile offenders meeting certain criteria as adults and thereby subject them to adult penalties. It strictly limited the circumstances in which a juvenile may be subject to the general jurisdiction of the district court. The most basic limitation set forth by the legislature is the age of the offender. A juvenile who commits an offense before his or her fourteenth birthday is only subject to prosecution in the district court in extremely limited circumstances as set forth in § 19-2-518, the "transfer" statute, which states in pertinent part:
(1)(a) The juvenile court may enter an order certifying a juvenile to be held for criminal proceedings in the district court if:
*901 (I) A petition filed in juvenile court alleges the juvenile is:
(A) Twelve or thirteen years of age and is a juvenile delinquent by virtue of having committed a delinquent act that constitutes a class 1 or class 2 felony or a crime of violence, as defined in section 18-1.3-406, C.R.S.; or
(B) Fourteen years of age or older and is a juvenile delinquent by virtue of having committed a delinquent act that constitutes a felony; and
(II) After investigation and a hearing, the juvenile court finds it would be contrary to the best interests of the juvenile or of the public to retain jurisdiction.
Thus, a juvenile who commits an offense at thirteen years of age is only subject to prosecution in district court if he or she is alleged to have committed a delinquent act that constitutes a class 1 or class 2 felony, and only if, after an investigation and hearing, the juvenile court determines it is contrary to the best interests of the juvenile or of the public to retain jurisdiction.
This statute must be read in conjunction with §§ 19-2-104 and 19-2-517, resulting in a coherent allocation of jurisdiction based on the age of the child at the time of the offense:
Children who commit offenses before they turn ten years old are presumed incapable of a delinquent act and are immune from proceedings in either the juvenile court or the district court.
Children who commit offenses when they are over the age of ten but younger than the age of twelve are subject to the exclusive jurisdiction of the juvenile court.
Children who commit offenses when they are over the age of twelve but younger than the age of fourteen are subject to the exclusive jurisdiction of the juvenile court except when they commit a delinquent act that constitutes a class 1 or class 2 felony or a crime of violence. In such limited cases, the juvenile court may certify the juvenile for proceedings in the district court but only after a full investigation and hearing.
Children over the age of fourteen who commit felony offenses may be subject to the jurisdiction of the district court through judicial transfer.
Children over the age of fourteen who commit felony offenses also may be subject to the jurisdiction of the district court through prosecutorial direct filing, but only when they meet all the statutory prerequisites.
Thus, the offender's age at the time of the offense is decisive, not the age when proceedings are commenced.
Accordingly, in my view, § 19-2-517 utilizes age and offense criteria to limit prosecutorial discretion to direct file in the district court.
Finally, an interpretation that focuses on the age of the child at the time of the offense also is supported by the legislative declaration in the Children's Code that the juvenile justice system shall take into consideration the best interests of the child and the state and the interest in reducing recidivism and assisting juveniles in becoming productive members of society. Although the majority's opinion focuses on the goal of public safety, it ignores the declaration that the juvenile justice system shall consider the best interests of the child and the interest in reducing recidivism and assisting juveniles in becoming productive members of society.
NOTES
[*] Justice EID does not participate. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2462276/ | 138 F. Supp. 2d 222 (2001)
COMMERCIAL UNION INS. CO., Plaintiff
v.
NORTH AMERICAN PAPER CO., Defendant
No. CIV. A. 00-30135-KPN.
United States District Court, D. Massachusetts.
April 6, 2001.
*223 Stuart G. Blackburn, Law Offices of Stuart Blackburn, Windsor Locks, CT, William e. Gericke, Cozen and O'Connor, Philadelphia, for Commercial Union Insurance Co., as subrogee of Eastwood Carriers, Inc., Danco Industries, Inc., Plaintiffs.
Edward F. Mahoney, Stephen M. O'Shea, Martin, Magnuson, McCarthy & Kenney, Boston, for North American Paper Company, A division of Mississippi River Corporation, Defendants.
MEMORANDUM AND ORDER WITH REGARD TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Docket No. 09)
NEIMAN, United States Magistrate Judge.
This subrogation case seeks to resolve whether the implied coinsured doctrine recognized by the Massachusetts Supreme Judicial Court in Peterson v. Silva, 428 Mass. 751, 704 N.E.2d 1163 (1999), Lexington Ins. Co. v. All Regions Chem. Labs, Inc., 419 Mass. 712, 647 N.E.2d 399 (1995), and Lumber Mut. Ins. Co. v. Zoltek Corp., 419 Mass. 704, 647 N.E.2d 395 (1995) applies to a particular commercial lease between the defendant, North American Paper Company ("North American"), and Eastwood Carriers, Inc. ("Eastwood"), an insured of the plaintiff, Commercial Union Insurance Company ("Commercial Union"). The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c). For the following reasons, the court will allow North American's motion for summary judgment with regard to all claims asserted by Commercial Union as subrogee of Eastwood, but will dismiss, without prejudice, the remaining claims asserted by Commercial Union as subrogee of Danco Industries, Inc. ("Danco").
I. SUMMARY JUDGMENT STANDARD
A court may grant summary judgment pursuant to FED. R. CIV. P. 56(c) if "there is no genuine issue as to any material fact" and "the moving party is entitled to a *224 judgment as a matter of law." Once the moving party has asserted that no genuine issue of material fact exists, the burden is on the opposing party to point to specific facts demonstrating that there is, indeed, a trialworthy issue. National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995). A "genuine" issue is one "that a reasonable jury could resolve ... in favor of the nonmoving party." McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995). Accord United States v. One Parcel of Real Property, Great Harbor Neck, New Shoreham, R.I., 960 F.2d 200, 204 (1st Cir.1992).
Not every genuine factual conflict, however, necessitates a trial. "`It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared.'" Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 448 (1st Cir. 1997) (quoting Martinez v. Colon, 54 F.3d 980, 983-84 (1st Cir.1995)). At bottom, matters of law are for the court to decide at summary judgment. Blackie v. Maine, 75 F.3d 716, 721 (1st Cir.1996).
II. BACKGROUND
The facts of this case are undisputed. Commercial Union has brought this subrogation action against North American on behalf of two of its insureds, Eastwood and Danco. Eastwood owns a building at 170 Lockhouse Road in Westfield, Massachusetts, which was damaged by fire on August 12, 1997. Both Danco and North American were tenants in the building. The fire originated in a dumpster that, allegedly, was in North American's care, custody and control.
To date, Commercial Union has paid Eastwood for property damages to its building in excess of $145,000 and Danco for damages to its personal property in excess of $50,000. Commercial Union claims the fire was the result of North American's negligence and a breach of the lease agreement it had with Eastwood.
The lease is a commercial property lease that ran from December 1, 1994, through November 30, 1997. As lessee, North American paid Eastwood over $7,000 per month. In addition, the lease contained the following "yield-up" clause:
Not later than fifteen days from the last day of the term lessee shall ... surrender the premises in as good condition as they were at the beginning of the term, reasonable wear and tear and damage by fire, the elements, casualty, or other cause not due to the misuse or neglect by lessee or lessee's agents, servants, visitors, servants or licensees, excepted.
(Docket No. 15: Commercial Union's Brief, Exhibit A at 2, third paragraph.) The lease also contained these additional provisions:
Lessee shall commit no act of waste and shall take good care of the premises and the fixtures and appurtenances therein, and shall, in the use and occupancy of the premises, conform to all laws, orders and regulations of the federal, state, and municipal government or any of their departments.
....
Lessee shall not do or suffer anything to be done on the premises which will by the nature thereof itself cause an increase in the rate of fire insurance on the building.
....
If the building is damaged by fire or any other cause to such extent that the cost of restoration, as reasonably estimated by lessor, will equal or exceed 60% of the replacement value of the building as same existed, just prior to the occurrence of the damage, then lessor may, *225 no later than the seventh day following the damage, give lessee a notice of election to terminate the lease. In the event of such election this lease shall be deemed to terminate as of the date of the damage or destruction, and lessee shall surrender the premises within a reasonable time thereafter, and any prepaid rent shall be refunded proportionately.
....
Lessor shall make repairs, except where the repair has been made necessary by misuse or neglect by lessee or lessee [sic], to the structural items defined as the roof, walls, and items within the walls electrical, heating, and cooling systems, floor, structural support, doors, and water and sewer or septic systems (both lavatories and sprinkler). All other repairs shall be the sole responsibility of the lessee.
(Id. at 2, second and fifth paragraphs, and 3, second and sixth paragraphs.) It is undisputed that the lease was drafted by representatives of Eastwood. (See Docket No. 09: North American's Brief, Exhibit B (Robert Snyder Affidavit) ¶ 3.)
Robert E. Snyder, North American's Vice President of Sales, avers that at the time he executed the lease, he understood that Eastwood "would obtain property insurance to cover any fire damage to the building and that the rent paid by North American would be used, in part, to cover the cost of procuring such insurance." (Snyder Affidavit ¶ 4.) As a result, North American did not itself procure property insurance to cover the building; it obtained only personal property insurance.
III. DISCUSSION
North American claims that, pursuant to the lease it entered with Eastwood, it is an implied coinsured under the Commercial Union policy procured by Eastwood. As such, North American contends that Commercial Union cannot maintain this subrogation action insofar as it is based on that policy. See Peterson, 428 Mass. at 752, 704 N.E.2d 1163 ("It is well established that an insurer cannot recover by means of subrogation against its own insured.") (citation and internal quotation marks omitted). For its part, Commercial Union contends that, unlike the defendants in Peterson, Lumber Mutual Ins. and Lexington Ins., North American cannot be considered an implied coinsured under the lease.[1]
The implied coinsured doctrine has sparked some controversy. Two of the three key Supreme Judicial Court decisions were decided over strong dissents. See Lumber Mutual Ins. Co., 647 N.E.2d at 397 (O'Connor, J., dissenting); Lexington Ins. Co., 647 N.E.2d at 400 (O'Connor, J., dissenting). See also John Dwight Ingram, Should An Illinois Tenant Get the Benefit of The Landlord's Insurance, 17 North Ill. U.L.Rev. 51 (1998) (discussing opposing views regarding implied coinsured doctrine). Moreover, the Supreme Judicial Court's approach to the implied coinsured doctrine differs from other jurisdictions', making the analysis that much more difficult. In the end, however, the court believes that Massachusetts law, as interpreted to date by the Supreme Judicial Court, requires with respect to this lease that North American, the tenant, be deemed an implied coinsured of Eastwood, the landlord, and that Commercial Union, *226 Eastwood's subrogee, be barred from pursuing this action against North American.
A. LEGAL BACKGROUND
Given the complexities surrounding the implied coinsured doctrine, the court will describe, in some detail, the doctrine's evolution in Massachusetts. First, however, the court will briefly address lease interpretation.
1. Lease Interpretation
Where, as here, there are no factual disputes, the interpretation of a lease is a question of law and is, therefore, subject to a summary judgment determination. See Derrig v. Wal-Mart Stores, Inc., 942 F. Supp. 49, 53 (D.Mass.1996); Lexington Ins. Co., 647 N.E.2d at 400; Lumber Mutual Ins. Co., 647 N.E.2d at 396. In fact, the parties in the case at bar appear content to have the court interpret the lease at issue.
If the terms of a lease are unambiguous, then it must be enforced according to those terms in accord with their ordinary and usual sense. Ober v. Nat'l Cas. Co., 318 Mass. 27, 60 N.E.2d 90, 91 (1945); Edwin R. Sage Co. v. Foley, 12 Mass.App.Ct. 20, 421 N.E.2d 460, 465 (1981). However, if ambiguity exists, the court must "consider the entire instrument and the general scheme it reveals to determine the significance and meaning of the ambiguous terms." Glick v. Greenleaf, 383 Mass. 290, 419 N.E.2d 272, 276 (1981). In so doing, the court may look to the circumstances under which the parties formed the agreement. Radio Corp. of America v. Raytheon Mfg. Co., 300 Mass. 113, 14 N.E.2d 141, 143 (1938). If ambiguity still exists, then the language of the clauses at issue is to be reasonably construed against the drafter. See Merrimack Valley Nat'l Bank v. Baird, 372 Mass. 721, 363 N.E.2d 688, 691 (1977); Hubert v. Melrose-Wakefield Hosp. Ass'n, 40 Mass.App.Ct. 172, 661 N.E.2d 1347, 1351 (1996).
2. The Implied Coinsured Doctrine in Massachusetts
Lumber Mutual Ins. and Lexington Ins. were decided on the same day in 1995. Peterson was decided in 1999. These three opinions form the basis of the implied coinsured doctrine in Massachusetts.
In Lumber Mutual Ins., the Supreme Judicial Court held that the commercial tenant was an implied coinsured under a policy issued to the landlord. Id., 647 N.E.2d at 396. The court's conclusion was based on three lease provisions: (1) a clause requiring the tenant "to maintain the leased premises in good condition, damage by fire and other casualty only excepted"; (2) a yield-up provision mandating the tenant, at the end of the lease, to surrender the premises "in good condition, damage by fire or other casualty only excepted"; and (3) a clause requiring the tenant to pay "as additional rent" fifty-six percent of the operating expenses, including "hazard and liability insurance on the whole of the premises of which the leased premises are a part." Id. According to the court, this language together with an accompanying letter in which the landlord advised the tenant that, because of its contribution to the premium, it need no carry its own property insurance made it "clear" that the landlord and the tenant were coinsureds. Id.
In dissent, Justice O'Connor argued that the majority's opinion was "bereft of any stated rationale." Id. at 397. "None of [the lease] provisions," Justice O'Connor pointed out, "explicitly or implicitly suggests that the tenant will be a coinsured or will be exempt from liability for its negligence in causing damage to [the lessor]'s building by fire." Id. at 397-98. Moreover, Justice O'Connor noted, courts *227 "should not construe a contract provision as exempting a party from liability for its own negligence." Id. at 398 (citing cases).
In Lexington Ins., the Supreme Judicial Court relied on a yield-up clause similar to the one at issue in Lumber Mutual Ins. The clause provided that the tenants would "peaceably yield up the Demised Premises ... in the same condition and repair as the same were in at the commencement of the term ... damage by fire or other casualty ... only excepted." Id., 647 N.E.2d at 400. Based on this clause alone and in the absence of the "additional rent" clause at play in Lumber Mutual Ins. the court concluded that the commercial tenants in Lexington Ins. were exempt from tort liability to the landlord, and therefore to the landlord's fire insurance carrier, for fire damage caused by the tenants' negligence. Id. "If [the landlord] intended to exclude from its lease with the tenant fires negligently caused," the court continued, "it could have inserted such a limitation. It did not do so." Id. Accordingly, "the tenants were coinsureds with [the landlord]." Id.
Again, Justice O'Connor dissented, arguing as he did in Lumber Mutual Ins. that "[a]pparently, but without setting forth its reasoning, the court has concluded that, when a lease contains a yield-up clause like the one in this case, the [landlord] and the [tenant] somehow become coinsureds." Id. at 400. In contrast, Justice O'Connor noted, Safeco Ins. Co. v. Capri, 101 Nev. 429, 705 P.2d 659 (1985), "the principal case relied on by the court ..., involved a lease that contained a provision by which the [landlord] was committed to provide fire insurance." Lexington Ins. Co., 647 N.E.2d at 401. In Justice O'Connor's view, the lease before the court in Lexington Ins. was "significantly distinguishable from" the one in Safeco Ins. because it "d[id] not contain an undertaking by the [landlord] to furnish fire insurance protection." Id.
In Peterson, when Justice O'Connor was no longer on the court, the Supreme Judicial Court decided unanimously to uphold a summary judgment entered in favor of defendant-tenants on the basis of the implied coinsured doctrine. Id., 704 N.E.2d at 1166. In doing so, the court appears to have gone beyond its holdings in both Lexington Ins. and Lumber Mutual Ins. Unlike the lease in Lexington Ins., "[t]here was no yield-up clause in the lease between [the landlord] and the [tenants]." Id. at 1165, 647 N.E.2d 399. And, unlike the lease in Lumber Mutual Ins., there was no explicit language in the Peterson lease requiring the tenants to contribute to premiums for the policy. Id. Even so, the court held that "absent an express provision in a lease establishing a tenant's liability for loss from a negligently started fire, the landlord's insurance is deemed held for the mutual benefit of both parties." Id. Indeed, the court found the tenants to be implied coinsureds despite another lease provision which required the tenants to indemnify the landlord for their "carelessness, neglect or improper conduct." Id.
B. APPLICATION
In applying the above cases to the matter at hand, the court will first address Lumber Mutual Ins. and Lexington Ins. It will then turn to the heart of the matter, Peterson, the most recent Supreme Judicial Court decision construing the implied coinsured doctrine.
1. Does Lumber Mutual Ins. or Lexington Ins. Apply Here?
Standing alone, Lumber Mutual Ins. does not support North American's position. Unlike the lease at issue there, Eastwood's lease contains no clause which requires North American, as a tenant, to *228 pay additional rent to cover part of Eastwood's hazard insurance. Moreover, there is no evidence here akin to the cover letter mentioned in Lumber Mutual Ins. which informed the tenant that it was not required to carry property insurance on the building. See id., 647 N.E.2d at 395-96.
The yield-up provision at issue here is also different in one important respect from the ones at issue in both Lumber Mutual Ins. and Lexington Ins. In both those cases, surrender of damaged premises was only excepted in the event the premises were "damage[d] by fire or other casualty." Lumber Mutual Ins. Co., 647 N.E.2d at 396; Lexington Ins. Co., 647 N.E.2d at 400. Here, the yield-up exception applies to "reasonable wear and tear or damage by fire, the elements, casualty, or other cause not due to the misuse or neglect by lessee." (Emphasis added.) In many ways, this awkwardly wrought phrase lies at the heart of the parties' dispute.
Commercial Union asserts that the "not due to the misuse or neglect by lessee" language limits each exception in the yield-up provision. Thus, damage by "fire" or the "elements" or other "casualty" caused by North American's negligence is not excepted from the condition in which North American must yield the premises at the end of the term. Accordingly, Commercial Union asserts, North American cannot seek shelter as a coinsured with Eastwood, but had to obtain its own property insurance coverage for damage it might negligently cause.
For its part, North American argues that applying the phrase "not due to the misuse or neglect by lessee" to each exception would render the yield-up provision meaningless since there would be no reason or need to itemize the exceptions; the lessee would simply be required to yield the premises at the end of the term in as good a condition as they were at the beginning of the term, reasonable wear and tear only excepted.
The best that can be said for the clause at issue is that it is inartfully drawn. In the end, however, it appears to the court that the clause applies to each potential cause of damage, i.e., fire, the elements or other casualty. This is not unreasonable. Even damage by the elements can be attributable to a tenant in certain instances, e.g., negligently failing to close windows in a warehouse in anticipation of an oncoming storm. Accordingly, Lumber Mutual Ins. and Lexington Ins. provide little guidance. This conclusion, however, does not end the court's inquiry for, as explained below, Commercial Union must still overcome Peterson in order to defeat North American's motion for summary judgment.
2. What About Peterson?
Commercial Union argues that Peterson is limited to residential, not commercial leases. As Commercial Union points out, the Peterson court does opine that "[e]xtending fire insurance coverage to the occupying tenants comports with public policy and with the realities of apartment renting." Id., 704 N.E.2d at 1165. In this respect, the court was echoing Safeco Ins. Co. and its reliance on Sutton v. Jondahl, 532 P.2d 478, 482 (Okla.Ct.App.1975), a residential lease case. See Safeco Ins. Co., 705 P.2d at 661.[2]
*229 This court, however, is not so easily persuaded. First, Peterson does not explicitly limit itself to the residential context. Second, the four cases upon which Peterson principally relies, Lumber Mutual Ins., Lexington Ins., Safeco Ins. and Alaska Ins. Co. v. RCA Alaska Communications, Inc., 623 P.2d 1216 (Ala.1981), all involve commercial leases. While, as described, the leases in Lumber Mutual Ins. and Lexington Ins. as well as in Safeco Ins., as Justice O'Connor points out are distinguishable in certain ways from the lease at issue here, the distinctions do not turn on the residential/commercial axis. This is true for the lease at issue in Alaska Ins. as well.
Alaska Ins., decided in 1981, recognized the trend denying landlords, and thereby their subrogees, the right to pursue damage actions against negligent tenants when the landlord covenants in the lease to carry fire insurance on the leased premises. Id., 623 P.2d at 1218. The implied coinsured status of the tenant was dependent on a lease provision which "require[d] the landlord to obtain and keep in effect an insurance policy on the leased premises covering loss because of fire." Id. at 1217. See also id. at 1218-19. "Since the ordinary and usual meaning of `loss by fire' includes fires of negligent origin," the court explained, "it would contradict the reasonable expectations of a commercial tenant to allow the landlord's insurer to proceed against it after the landlord had contracted in the lease to provide fire insurance on the leased premises." Id. at 1219.
Although no explicit covenant presents itself here, there is an implied covenant in the lease that Eastwood would obtain fire insurance. For one thing, the lease bars North American from doing anything on the premises which would "cause an increase in the rate of fire insurance on the building." It can be fairly inferred that such fire insurance was to be obtained by Eastwood and assumed that Eastwood had incorporated the base cost of such insurance in the rental amount. See Liberty Mut. Fire Ins. Co. v. Auto Spring Supply Co., 59 Cal. App. 3d 860, 131 Cal. Rptr. 211, 215 (1976) ("even an implied provision for fire insurance in a lease represents the agreement of the parties thereto that nonintentional loss by fire shall be paid ... only from the proceeds of the policy") (citing General Mills v. Goldman, 184 F.2d 359, 365-66 (8th Cir.1950)). In addition, Eastwood also reserved to itself in the lease the right to terminate the tenancy if the building was damaged by fire or any other cause. Taken together, these clauses illustrate that the parties impliedly intended that Eastwood would procure the necessary property insurance to cover fire loss on the premises. See Bray v. Hickman, 263 Mass. 409, 161 N.E. 612, 613 (1928) (in contract interpretation, a court should, "[s]o far as reasonably practicable[,] ... give[] a construction which will make it a rational business instrument and will effectuate what appears to have been the intention of the parties"); Finn v. McNeil, 23 Mass.App.Ct. 367, 502 N.E.2d 557, 561 (1987) (same).
Most importantly for purposes here, the landlord's obligation to obtain insurance in Alaska Ins. outweighed countervailing *230 lease provisions which otherwise implied liability on the tenant's part. Interestingly enough, one of those countervailing provisions, referred to as a "redelivery clause," is quite similar to the "yield-up" provision here. It provided that the tenant would leave the premises "in as good a condition as received, excepting fair wear and tear and/or loss or damage caused by fire, explosion, earthquake or other casualty; provided that such casualty was not caused by the negligent act of the Lessee, its employees or agents." Id., 623 P.2d at 1218. The court acknowledged that the cases on which it relied to deny the insurer's subrogation action had different surrender clauses, namely, clauses in which the latter phrase was not present. Id. at 1219 n. 2. "Nevertheless," the court noted, "we do not find this provision of the lease conclusive on the question of the tenant's liability for fire losses, and we ascribe correspondingly greater significant to the insurance clause of [the lease]." Id.[3]
The distinctions between the lease here and those before the courts in Lexington Ins., Lumber Mutual Ins., Safeco Ins. and Alaska Ins. might well be deemed more significant were it not for Peterson. Peterson made clear what may have been left vague in both Lumber Mutual Ins. and Lexington Ins., namely, the burden on landlords, whether residential or commercial, to make explicit the tenant's obligation to obtain property insurance. Thus, Peterson concluded that a lessor's insurer may not pursue a subrogation claim against a lessee unless there is "an express provision" to the contrary. Id., 704 N.E.2d at 1165. The Peterson court was quite emphatic in this respect, stating that the lessor could have but did not "insist[] that the [tenants] maintain fire insurance." Id. at 1166. Its reliance on Alaska Ins. is similarly revealing. Alaska Ins. made clear that the lease itself must "establish[] the tenant's liability for loss from negligently started fires." Alaska Ins., 623 P.2d at 1217.
Granted, the approach taken in Peterson stands in sharp contrast to another line of cases which allows a landlord's insurer to pursue a subrogation claim against a tenant unless there is an express agreement to the contrary. See Acquisto v. Joe R. Hahn Enterprises, Inc., 95 N.M. 193, 619 P.2d 1237, 1239 (1980) ("In the absence of an agreement between the parties specifying which of them will carry fire insurance for the benefit of both parties, or an express clause in the lease relieving a party from his negligence, each party must bear the risk of loss for his own negligence."). See also 56 Associates ex rel. Paolino v. Frieband, 89 F. Supp. 2d 189, 193 (D.R.I. 2000) (holding that courts have no authority to insert the names of additional insureds into a policy); Neubauer v. Hostetter, 485 N.W.2d 87, 88-90 (Iowa 1992) (similar). The difference in these two approaches as predicted by Justice O'Connor is not insignificant. Nonetheless, the Supreme Judicial Court's trilogy which ends in Peterson creates, in essence, a presumption of implied coinsurance when a landlord fails to make clear in its lease that the tenant needs to obtain its own insurance to cover the landlord's property in case of negligence.[4] While this court *231 may have some reservations about Peterson's ultimate conclusion, it sees no reason why Peterson does not apply here. In this respect, the court is "mindful that federal courts sitting in diversity at a plaintiff's election ought not steer state law into unprecedented configurations." Santiago v. Sherwin Williams Co., 3 F.3d 546, 551 (1st Cir.1993) (citation and internal quotation marks omitted). The court thus turns to that application.
3. Application of Peterson
According to Peterson, the court must determine whether there is "an express provision in [the] lease establishing [North American]'s liability for loss from a negligently started fire." Id., 704 N.E.2d at 1165. North American says no such provision exists. Commercial Union, in response, claims that the yield-up clause as well as the provision requiring North American to repair structural damages to the premises caused by its "misuse or neglect" requires that North American be liable for damages caused by its own negligence. This interpretation, Commercial Union argues, is bolstered by the clause requiring that North American "commit no act of waste."
For all the reasons discussed above, the court does not believe that any of the lease provisions cited by Commercial Union is "an express provision in [the] lease establishing [North American]'s liability for loss from a negligently started fire." Peterson, 704 N.E.2d at 1165. While this may well be considered a particularly strict approach, it is one which is controlled by the Supreme Judicial Court's trilogy of cases. It is also an approach that comports with the understanding of North American's Vice President of Sales that Eastwood would procure property insurance out of rent paid by North American. Finally, to the extent there is any lingering doubt or ambiguity, the lease must be strictly construed against the drafter, here, Commercial Union's insured, Eastwood. At bottom, the court deems North American an implied coinsured with respect to the Eastwood claim and will enter judgment accordingly.
IV. CONCLUSION
For the reasons stated, North American's motion for summary judgment will be granted with respect to the Eastwood claim. That being the case, and as agreed by the parties in such an event, the court will dismiss without prejudice the remainder of the suit, thereby allowing Commercial Union the opportunity to seek appropriate relief for the Danco claim in state court.
IT IS SO ORDERED.
NOTES
[1] North American asserts without any opposition that, should the claim based on the Eastwood subrogation dissolve, the court would no longer have subject matter jurisdiction over the remaining Danco claim insofar as it amounts to less than the $75,000 jurisdictional threshold for diversity actions. See 28 U.S.C. § 1332.
[2] Commercial Union also cites a recent decision by Massachusetts Superior Court Judge John C. Cratsley in which he, at least initially, distinguished Peterson in just this way. See Travelers Indemnity Co. of Ill. v. TGI Friday's, Inc., Superior Court Civil Action No. 98-2777-C (Mem. and Order dated Jan. 28, 2000) (attached as Exhibit C to Commercial Union's Brief). As North American points out, however, Judge Cratsley vacated this opinion on August 18, 2000. In so doing, he accepted new evidence e.g., deposition testimony and documents demonstrating that the commercial tenant in Travelers was charged for and, in fact, had paid a portion of the lessor's building insurance premiums. Travelers, supra (Mem. and Order dated Aug. 18, 2000) (attached as Exhibit A to Docket No. 16: North American's Reply). Citing Lumber Mutual Ins., Judge Cratsley held that "payment of the premiums makes [the tenant] a coinsured under the policy." Id.
[3] Somewhat similarly, the commercial lease in Safeco Ins. Co. specifically provided that the landlord maintain fire insurance. Id., 705 P.2d at 660. The court then went on at some length to explain the underlying policy of the implied coinsured doctrine, much of it grounded in business practices and the allocation of risk. Id. at 660-62.
[4] In this regard, Peterson quoted R.E. Keeton, Insurance Law § 4.4(b), at 210 (1971), as follows:
Probably it is undesirable, from the point of view of public interest, that the risk of loss from a fire negligently caused by a lessee be upon the lessee rather than the lessor's insurer. Allowing the lessor's insurer to proceed against the lessee is surely contrary to expectations ... [P]erhaps [the courts] should at least adopt a rule against allowing the lessor's insurer to proceed against the lessee when lease provisions are ambiguous in this regard and the insurance policy is silent or ambiguous.
Id., 704 N.E.2d at 1165-66. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2633685/ | 176 P.3d 197 (2008)
Raymond DREILING, individually, and as Administrator of the Estate of Loretta Dreiling, deceased, Appellant,
v.
W. Duncan DAVIS, M.D., Kenneth Austin, M.D., and Goodland Regional Medical Center of Goodland, Kansas, Appellees.
No. 97,355.
Court of Appeals of Kansas.
January 18, 2008.
*199 Donald F. Hoffman, of Dreiling, Bieker & Hoffman, LLP, of Hays, for appellant.
Kaylene Brin and kenneth C. Havner, of Havner & Brin, of Hays, for appellee Kenneth Austin, M.D.
Michael R. O'Neal and Shannon L. Holmberg, of Gilliland & Hayes, PA., of Hutchinson, for appellee Goodland Regional Medical Center.
Brian C. Wright, of Law Office of Brian C. Wright, of Great Bend, for appellee W. Duncan Davis, M.D.
Before MARQUARDT, P.J., LEBEN, J., and KNUDSON, S.J.
MARQUARDT, P.J.
Raymond Dreiling, individually, and as administrator of the estate of Loretta Dreiling, appeals the grant of summary judgment in a medical malpractice wrongful death case. We dismiss in part, and reverse in part and remand for further proceedings.
On February 25, 2002, Dr. Duncan Davis performed a laparoscopic cholecystectomy (gallbladder removal) on 70-year-old Loretta at Goodland Regional Medical Center of Goodland, Kansas (Goodland Regional). Dr. Kenneth Austin, Loretta's long-time doctor, assisted Dr. Davis in the surgery.
On March 1, 2002, Loretta died. Dr. Davis issued a death certificate on March 11, 2002, stating that Loretta's cause of death was "acute/fulminant liver failure," with a secondary diagnosis of nodular cirrhosis. Raymond testified that "[t]he funeral director told us that an autopsy probably would not be helpful" and no autopsy was performed at that time.
A month after Loretta's death, in April 2002, Raymond spoke with his attorney about Loretta's death. In May 2002, Raymond contacted a law firm and asked them to investigate Loretta's death; however, a month later, that law firm declined to pursue a claim. Four and one-half months after Loretta's death, another attorney wrote that he and his associate were unable to determine the specific cause of death from Loretta's medical records and recommended an autopsy be performed.
*200 Raymond had Loretta's body exhumed, and on August 9, 2002, Dr. Hubert Peterson conducted an autopsy. Dr. Peterson found severe micronodular cirrhosis in Loretta's liver, but concluded that Loretta's cause of death was acute progressive pulmonary disease and acute bronchopneumonia.
On May 14, 2004, more than 2 years after Loretta's death, Raymond filed suit against Dr. Davis, Dr. Austin, and Goodland Regional, claiming that Loretta's death was caused by medical malpractice. Raymond alleged that "as a result of the autopsy by Dr. Peterson, [he] first learned of the true cause of his wife's death in August, 2002." All defendants asserted in their answers, among other defenses, that Raymond's claim was barred by the statute of limitations.
The district court denied defendants' initial motions for summary judgment in 2005 because a genuine issue of material fact remained as to when the fact of death or negligence was reasonably ascertainable. In June and July 2006, after discovery had closed, all defendants filed supplemental or renewed motions for summary judgment.
In a joint response to all motions, Raymond maintained that summary judgment should not have been granted because Dr. Davis and Dr. Austin knew the actual cause of Loretta's death but prepared a false death certificate, "thereby concealing the true cause of her death." Raymond argued that the 2-year statute of limitations of K.S.A. 60-513(a) did not accrue on the date of Loretta's death, and under KS.A. 60-513(c) the statute of limitations was tolled because:
"The negligence that caused Loretta's death was not reasonably ascertainable until her body was exhumed and an autopsy performed. At that point in time, the Plaintiff learned the true cause of his wife's death. Therefore, the causal connection between the injury and the negligence of the Defendants was not identifiable (at the earliest) until August 23, 2002, the date of the autopsy report. It then became clear to the Plaintiff that the Defendants Austin and Davis had concealed the true reason for [Loretta's] death."
Raymond set forth the details of the legal investigation he undertook, claiming the inaccurate and misleading certificate of death thwarted any "meaningful" investigation. Raymond maintained, `Tait the very least, the statute of limitations accrued when [the first lawyer he consulted] informed [him] that [the lawyer's] firm was not interested in pursuing the medical malpractice claim but informed him to seek a second opinion before deciding." In closing, Raymond argued that the issue of when the cause of action accrued should be decided by a jury.
To support Raymond's arguments, he presented the following evidence:
(1) His own affidavit stating that Dr. Davis "prepared a Certificate of Death stating that [Raymond's] wife died from acute/fulminant liver failure," and "it is [his] belief that Dr. Duncan Davis and other defendants named [t]herein knew the reason for [his] wife's death but prepared a false death certificate stating that she died from cirrhosis rather than pneumonia."
(2) Dr. Peterson's autopsy report.
(3) A June 2005 affidavit from Dr. Peterson, indicating that he determined Loretta's cause of death "to be acute progressive pulmonary disease, acute bronchopneumonia, and not cirrhosis."
(4) An affidavit from Raymond's attorney acknowledging that when he composed his July 21, 2003, notice of claim letter to Goodland Regional pursuant to K.S.A. 12-105b(d), he "was under the impression that the statute of limitations for [Raymond's] claim would run on March 1, 2004, that being two years from the date of his wife's death." However, "after further investigation it was brought to [counsel's] attention that the statute of limitations for [the] claim would actually run two years from the date that [Raymond] reasonably ascertained the fact of the injury to his deceased wife was due to the defendants' negligence, that being August 23, 2004, two years from the date of the autopsy report of Dr. Peterson."
On August 15, 2006, the district court granted summary judgment to all defendants, concluding, in pertinent part, that the action was barred by the 2-year statute of limitations because the fact of injury was *201 reasonably ascertainable as of the date of Loretta's death. Raymond timely appealed.
K.S.A. 60-513(a)(4), (5), and (7) provide that negligence, wrongful death, and medical malpractice actions must be brought within 2 years. The sole issue here is whether the district court properly granted summary judgment, finding that as a matter of law, Raymond's cause of action accrued on March 1, 2002, the date of Loretta's death.
Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c). Although the burden of pleading and proving the applicability of the affirmative defense of statute of limitations rests on the defendant, the plaintiff bears the burden of proving facts sufficient to toll the statute of limitations. Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 (1992). Summary judgment may be proper where there is no dispute or genuine issue as to the time when the statute commenced to run. Biritz v. Williams, 262 Kan. 769, 772, 942 P.2d 25 (1997). On appeal, we review the evidence and reasonable inferences that can be drawn therefrom in the favor of the party that defended against the motion for summary judgment. If reasonable minds could differ as to the conclusions drawn from the evidence, summary, judgment is inappropriate. Biritz, 262 Kan. at 772, 942 P.2d 25.
K.S.A. 60-513(c) provides:
"A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than four years beyond the time of the act giving rise to the cause of action."
This court has unlimited review of the district court's interpretation and application of K.S.A. 60-513 to uncontroverted facts. Davidson v. Denning, 259 Kan. 659, 667, 914 P.2d 936 (1996).
In granting summary judgment, the district court relied upon our Supreme Court's decision in Davidson, which addressed how K.S.A. 60-513 applies in wrongful death actions. Davidson held, inter alia:
"(a) The `discovery rule,' as codified in subparagraphs (b) and (c) of K.S.A. 60-513, expressly applies to the 2-year wrongful death limitation at 60-513(a)(5).
"(b) The term `reasonably ascertainable,' as applied in 60-513(b) and (c) in a wrongful death case, suggests an objective standard based on an examination of the surrounding circumstances.
"(c) K.S.A. 60-513(b) and (c) provide that the limitations period starts when the `fact of injury' becomes `reasonably ascertainable.' Inherent in `to ascertain' is `to investigate.' `Reasonably ascertainable' does not mean `actual knowledge.' The `fact of injury' in a wrongful death action means the `fact of death.' The limitations period should start on the date of death unless the information from which the fact of death or negligence can be determined was either concealed, altered, falsified, inaccurate, or misrepresented. The fact of death should be a starting point for inquiry. The wrongful death plaintiff is charged with constructive knowledge of information that is available through a reasonable investigation of sources that contain the facts of the death and its wrongful causation." (Emphasis added.) 259 Kan. 659, Syl. ¶ 2, 914 P.2d 936.
Here, the district court noted the uncontroverted facts that Raymond consulted an attorney within a month after Loretta's death and engaged counsel to pursue a medical malpractice action on or before May 9, 2002. The district court concluded:
"The Plaintiff has been unable to come forth with evidence showing that the information from which the facts of death or *202 negligence could be determined was either concealed, altered, falsified, inaccurate, or misrepresented. To the contrary, the uncontroverted fact that the plaintiff retained legal counsel to pursue a medical malpractice action within] 69 days of his wife's death reveals that the fact of death or negligence was neither concealed, altered, falsified, inaccurate or misrepresented."
On appeal, Dr. Austin and Dr. Davis focus on Raymond's early discussions with a medical investigator about Loretta's death. Dr. Austin argues that the facts in Davidson are analogous to the instant case.
The facts are not analogous. In Davidson, the widow spoke with an investigator in her counsel's office less than a month after her husband's death, at which time she became aware of possible negligent causation which "suggest[ed] at least suspicion that something was wrong." 259 Kan. at 675-76, 914 P.2d 936.
Davidson did not establish a bright line rule that the wrongful death limitations period may never be extended beyond 2 years from the date of death. 259 Kan. at 679, 914 P.2d 936. Rather, under the facts of the cases before it, the court concluded there were no circumstances justifying an extension under K.S.A. 60-513(c), "such as concealment of the fact of death or of medical records [or] a misrepresentation, alteration, inaccuracy, or falsification of any type." 259 Kan. at 679, 914 P.2d 936. Thus, in Davidson, there was no claim or allegation of any sort of concealment, alteration, or falsification of the medical records, nor was there any suggestion that medical personnel had made any inaccurate or misleading representations concerning the cause of death.
Here, Raymond focuses on the alleged misrepresentation or inaccurate statement concerning Loretta's cause of death certified by Dr. Davis, claiming it should extend the statute of limitations.
The facts that compelled the exhumation of Loretta's body 5 months after her death are not revealed in the record on appeal. The only explanation offered by Raymond is that the funeral director told him an autopsy probably would not have been helpful. Raymond has not alleged he was prevented from obtaining an autopsy because of something the defendants did or failed to do. This seems to lead to the question of whether Raymond acted reasonably in not requesting an autopsy when he was admittedly suspicious about Loretta's death. In other words, should Raymond be charged with constructive knowledge of what the autopsy ultimately revealed as of the date of Loretta's death because it was an available source for investigation?
Generally, reasonableness is a fact question. It is only when it can be said that reasonable persons cannot reach differing conclusions from the same evidence that a material fact question may be decided as a matter of law. Mastin v. Kansas Power & Light Co., 10 Kan. App. 2d 620, 622, 706 P.2d 476 (1985). Resolution of this issue will likely involve credibility determinations, and it appears reasonable persons could reach different conclusions. The district court erred in granting summary judgment to Dr. Davis and Dr. Austin and that issue is reversed and the case is remanded for further proceedings.
Raymond moved this court to dismiss Goodland Regional as an appellee. In his brief, filed the same day as his motion, Raymond "acknowledges that the trial court was correct in dismissing [his] claim against Defendant Goodland Regional Medical Center pursuant to K.S.A. 40-3403(h)." This court denied the motion to dismiss. Goodland Regional filed a brief, which includes this issue.
Raymond's and the estate's claims against Goodland Regional appear to be for direct negligence, not vicarious liability for the actions of Dr. Davis and Dr. Austin. Goodland Regional is, therefore, dismissed.
Dismissed in part. Reversed and remanded for further proceedings. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2633687/ | 176 P.3d 856 (2007)
HEMMANN MANAGEMENT SERVICES and Robert Mcllvane, Plaintiffs-Appellants,
v.
MEDIACELL, INC., Defendant-Appellee.
No. 06CA1904.
Colorado Court of Appeals, Div. I.
December 27, 2007.
*857 Viorst Law Offices, P.C., Anthony Viorst, Denver, Colorado, for Plaintiffs-Appellants.
Shughart Thomson & Kilroy, P.C., John P. Baker, Denver, Colorado, for Defendant-Appellee.
Opinion by Judge DAILEY.
In this contract dispute, plaintiffs, Hemmann Management Services arid Robert Mcllvane, appeal the trial court's dismissal of their claims against defendant, Mediacell, Inc. We reverse and remand with directions.
Plaintiffs and defendant entered into an agreement by which plaintiffs would assist defendant in locating management services for its business. When plaintiffs' fees were not paid on demand, they filed this complaint, alleging breach of contract and quantum meruit.
Defendant answered the complaint and asserted counterclaims against plaintiffs. In addition, defendant contemporaneously filed a motion to dismiss the complaint, arguing that plaintiffs had not asserted sufficient facts to support all the elements of their breach of contract claims, and that plaintiffs were barred from pursuing quantum meruit claims because the latter claims arose from the same facts as the breach of contract claims. Plaintiffs failed to respond to either the counterclaims or the motion to dismiss within the time allowed by C.R.C.P. 12(a) and 121 section 1-15(1).
Several weeks after the expiration of the deadlines to file responsive pleadings, plaintiffs realized their error and moved for leave to file both a response to the motion to dismiss and answers to the counterclaims. In support of the motion, plaintiffs stated that "due to an oversight" in plaintiffs' counsel's office, the motion to dismiss and the counterclaims were not timely reviewed by plaintiffs' counsel, and the deadlines to respond to these pleadings had not been calendared. The trial court summarily denied plaintiffs' motion for leave to file out-of-time, and it thereafter granted defendant's motion to dismiss, noting:
On its face, the Defendant's motion is not without merit. Moreover, failure of a responding party to file a responsive brief may be considered a confession of the motion. C.R.C.P. 121 § 1-15(3). As no response was filed by Plaintiffs, the Court *858 may consider the lack of response as an admission of the facts and law supporting Defendant's Motion. Consequently, the Court finds that the Plaintiff[s] ha[ve] admitted that the purported claims for Breach of Contract and Quantum Meruit lack merit. As such the Court must GRANT Defendant's Motion to Dismiss.
Plaintiffs had also moved to amend their complaint at about the time or shortly before the trial court granted defendant's motion to dismiss. Ultimately, the trial court denied plaintiffs the opportunity to amend their complaint.
I.
Plaintiffs contend that the trial court erred by granting defendant's motion to dismiss without addressing the merits of plaintiffs' claims. We agree.
Initially, we reject defendant's contention that the trial court ruled on the merits of plaintiffs' claims when it entered its order of dismissal. While the trial court in its order stated that "[o]n its face," defendant's motion to dismiss "is not without merit," the court did not address or analyze any of the facts or the sufficiency of the claims asserted in the complaint. Indeed, as we read its order, the court grounded its decision to dismiss firmly on plaintiffs' failure to respond to the motion to dismiss.
When a court rules on a motion to dismiss for failure to state a claim, C.R.C.P. 12(b)(5) mandates that the court analyze the merits of the plaintiff's claims. The purpose of C.R.C.P. 12(b)(5) is to test the legal sufficiency of the complaint to determine whether the plaintiff has asserted a claim or claims upon which relief can be granted. In evaluating a motion to dismiss under C.R.C.P. 12(b)(5), the court must accept as true all averments of material fact and must view the allegations of the complaint in the light most favorable to the plaintiff. Ashton Props., Ltd. v. Overton, 107 P.3d 1014, 1018 (Colo. App.2004). Dismissal of claims under C.R.C.P. 12(b)(5) is proper only "where a complaint fails to give defendants notice of the claims asserted." Shockley v. Georgetown Valley Water & Sanitation Dist., 37 Colo. App. 434, 436, 548 P.2d 928, 929 (1976).
Although C.R.C.P. 121 section 1-15(3) provides that the failure of a party to respond to a motion "may be considered a confession of the motion," courts have not applied that rule where a drastic remedy is at stake. See Seal v. Hart, 755 P.2d 462, 465 (Colo.App.1988) ("[c]onsidering the drastic nature of the remedy of summary judgment, and the fact that a specific rule should govern over a general one, we conclude that the provisions of C.R.C.P. 121 concerning confession of a motion by not filing a response thereto, are inapplicable to a motion for summary judgment under C.R.C.P. 56"); see also Meyer v. State, 143 P.3d 1181, 1184 (Colo. App.2006) (failure to respond to motion for reversal of driver's license revocation would not be deemed a confession of that motion); Artes-Roy v. Lyman, 833 P.2d 62, 63 (Colo. App.1992) (prerequisite findings supporting awards of attorney fees "cannot be held to be confessed by failure to respond to a motion for fees").
We conclude that, like motions for summary judgment, motions to dismiss for failure to state a claim must be considered on their merits and cannot be deemed confessed by a failure to respond. See Issa v. Comp USA, 354 F.3d 1174, 1178 (10th Cir. 2003) ("[E]ven if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted.").
Here, plaintiffs' claims had been pled to the trial court, and the sufficiency of those claims should have been determined by the court, rather than deemed confessed by plaintiffs. Thus, we conclude that the trial court erred in failing to consider the merits of plaintiffs' claims for relief, as required by C.R.C.P. 12(b)(5), in resolving defendant's motion to dismiss.
II.
Defendant contends that the dismissal of plaintiffs' claims should nonetheless be affirmed *859 because, properly analyzed, plaintiffs' complaint failed to state a claim upon which relief could be granted. More specifically, defendant asserts that (1) with respect to their breach of express contract claims, plaintiffs did not and could not plead facts establishing that they had performed their part under the contract; and (2) plaintiffs' quantum meruit claims were mutually exclusive of their breach of contract claims. We are not persuaded.
Initially, we are in as good a position as the trial court to assess the viability of plaintiffs' complaint. See Hurtado v. Brady, 165 P.3d 1871, 873 (Colo.App.2007) (we "review a trial court's ruling on a motion to dismiss de novo," applying "the same standards of review . . . as the trial court applies"). Consequently, we need not remand the matter to the trial court but may ourselves resolve it as a matter of law. See W.O. Brisben Cos. v. Krystkowiak, 66 P.3d 133, 137 (Colo.App.2002) (analyzing sufficiency of complaint for the first time on appeal), aff'd on other grounds, 90 P.3d 859 (Colo.2004).
C.R.C.P. 12(b)(5) motions to dismiss are viewed with disfavor, and should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Dunlap v. Colo. Springs Cablevision, Inc., 829 P.2d 1286, 1291 (Colo.1992) (quoting Davidson v. Dill, 180 Colo. 123, 131-32, 503 P.2d 157, 162 (1972)).
The purpose of a complaint is to provide notice to the defendant of the transaction or occurrence that gave rise to the plaintiffs claims. Wisehart, v. Zions Bancorporation, 49 P.3d 1200, 1208 (Colo.App.2002). A short and plain statement advising the defendant of the relief sought provides such notice. See C.R.C.P. 8(a); Grizzell v. Hartman Enters., Inc., 68 P.3d 551, 553 (Colo. App.2003) ("A complaint need not express all facts that support the claim, but need only serve notice of the claim asserted.").
"In most cases it is sufficient if the pleader clearly identifies the transactions which form the basis of the claim for relief, and if upon any theory of the law relief is warranted by the evidence offered and received in support of the claim. . . ." Hinsey v. Jones, 159 Colo. 326, 329, 411 P.2d 242, 244 (1966) (quoting Weick v. Rickenbaugh Cadillac Co., 134 Colo. 283, 289, 303 P.2d 685, 688 (1956)).
Finally, in assessing a C.R.C.F. 12(b)(5) motion to dismiss, courts liberally construe the pleadings and resolve all doubts in favor of the pleader. Denny Constr., Inc. v. City & County of Denver, 170 P.3d 733, 736 (Colo.App.2007) (cert. granted Nov. 26, 2007).
Defendant correctly points out that a breach of contract claim can only succeed if a plaintiff establishes (1) the existence of a contract; (2) performance under the contract by the plaintiff or some justification for nonperformance; (3) the defendant's failure to perform under the contract; and (4) resulting damage to the plaintiff. Western Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992).
A party may establish justification for nonperformance under a contract if it demonstrates that the other party to the contract caused its nonperformance. One party's failure to perform under a contract precludes that party's demand for performance by the other party. Reid v. Pyle, 51 P.3d 1064, 1067 (Colo.App.2002) ("if a promisor is himself the cause of the failure of performance of a condition upon which his own liability depends, he cannot take advantage of that failure"); see also Kaiser v. Mkt. Square Disc. Liquors, Inc., 992 P.2d 636, 640-41 (Colo.App.1999) (a material breach by a party deprives that party of the right to demand performance by the other).
Here, plaintiffs' complaint alleged sufficient facts to support their breach of contract claims. Plaintiffs' complaint (1) asserts that a contract existed between them and defendant, (2) details steps plaintiffs took to perform under the contract, (3) alleges that defendant's actions obstructed their efforts to complete performance under the contract, and (4) describes the moneys defendant allegedly owes plaintiffs under the contract.
*860 In our view, the complaint adequately sets forth the transaction that is the subject of plaintiffs' contract claims and provides defendant with sufficient notice of the claims asserted against it. Consequently, plaintiffs' breach of contract claims should not have been dismissed. See Denny Constr., 170 P.3d at 738; Wisehart, 49 P.3d at 1208.
We also reject defendant's assertion that the dismissal of plaintiffs' quantum meruit claims should be affirmed because plaintiffs' breach of express contract claims "supersede" the quantum meruit claims.
Colorado law permits a party to advance multiple theories of recovery, even if the party will not be permitted to recover under each of those theories. See City & County of Denver v. Dist. Court, 939 P.2d 1353, 1359 n. 5 (Colo.1997); Gaubatz v. Marquette Minerals, Inc., 688 P.2d 1128, 1130 (Colo.App.1984) (noting that "C.R.C.P. 8 permits inconsistent pleading"). Thus, while plaintiffs may not be permitted to recover under theories of both breach of express contract and quantum meruit, it was not inappropriate to plead both theories of recovery in their complaint.
Consequently, we also conclude that plaintiffs' quantum meruit claims should not have been dismissed.
III.
Because we have concluded that plaintiffs' original complaint sufficiently pled claims of breach of express contract and quantum meruit, we need not address plaintiffs' alternative contention that the trial court should have allowed them the opportunity to amend their complaint.
The judgment is reversed, and the case is remanded to the trial court with directions to reinstate plaintiffs' complaint.
Judge MARQUEZ and Judge NEY[*] concur.
NOTES
[*] Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2007. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2633688/ | 176 P.3d 726 (2007)
In re the Matter of J.C.T., a minor child.
Paula Constantakis Young, Guardian Ad Litem; and Three Affiliated Tribes, Petitioners
v.
C.A.H., Respondent.
No. 06SC780.
Supreme Court of Colorado, En Banc.
December 3, 2007.
*727 Paula Constantakis Young, Denver, Colorado, Guardian Ad Litem for J.C.T.
American Indian Law Clinic, Jill E. Tompkins, Boulder, Colorado, Attorneys for Petitioner Three Affiliated Tribes.
Holme Roberts & Owen LLP, Richard L. Gabriel, Timothy M. Reynolds, David A. Tonini, Denver, Colorado, Attorneys for Respondent C.A.H.
Chief Justice MULLARKEY delivered the Opinion of the Court.
I. Introduction
We granted certiorari to consider the limits of the probate court's jurisdiction with regard to the guardianship of minors and its consideration of their best interests.[1] J.C.T., a now ten-year-old boy, is at the heart of this conflict. Since before his first birthday, J.C.T. has been under the supervision of the Denver probate court. Based on a challenge by Respondent C.A.H. ("Guardian 1"), a former guardian of J.C.T., the court of appeals in In re J.C.T., 155 P.3d 452 (Colo.App.2006), held that the probate court exceeded its subject matter jurisdiction during proceedings involving J.C.T.'s guardianship by intruding into an area of jurisdiction exclusively vested in the juvenile court. The court of appeals therefore vacated the probate court's order denying Guardian 1's petition for guardianship, and remanded the case with instructions to certify the action to the juvenile court. We now reverse the court of appeals' decision and reinstate the probate court's order.
2) Whether the court of appeals erred when it held that the appointment of the guardian ad litem as temporary guardian divested the probate court of jurisdiction and vested jurisdiction with the juvenile court under section 19-3-102, C.R.S. (2006).
We hold that, in evaluating the child's best interests, the probate court did not exceed its jurisdiction by directing the guardian ad litem ("GAL") to find a permanent guardian for J.C.T. or by considering the potential for an eventual adoption. In addition, we find that the appointment of the GAL as temporary guardian for J.C.T. did not divest the probate court of its jurisdiction.
II. Facts and Procedural History
J.C.T. was born on February 25, 1997. When he was only ten months old, his mother placed him in the care of an acquaintance, Guardian 1, and subsequently consented to a probate court granting guardianship of J.C.T. to Guardian 1. Soon thereafter, as part of a later hearing, the probate court appointed Paula Constantakis Young as the GAL to investigate Guardian 1's fitness. Guardian 1 was found to be a proper legal guardian, and J.C.T. remained in her care for a period of four years. J.C.T.'s father has not been identified and has not been involved in this matter.
At the time of her appointment, the GAL requested involvement from the Denver Department of Human Services ("DHS"). DHS declined to participate on the grounds that Guardian 1 was properly caring for J.C.T. and there was an existing forum for Guardian 1 and J.C.T.'s mother to obtain court orders, namely, the probate court.
J.C.T. lived with Guardian 1 and her family in both Colorado and Georgia. During that four year time period, J.C.T. experienced considerable mental and behavioral problems. He was hospitalized for depression for four days in 2001, at the age of four.
In 2002, J.C.T. and Guardian 1's, daughter visited Guardian 1's mother, A.S. ("Guardian *728 2"), and stepfather in Colorado. During the visit, Guardian 2 and her husband initiated a proceeding before a Georgia court, alleging that both children had been sexually and physically abused and seeking custody of them. The GAL was reappointed for J.C.T., and the GAL entered an appearance in Georgia. The Georgia court ultimately entered a directed verdict in Guardian 1's favor, immediately returning custody of Guardian 1's daughter to her. The court refused jurisdiction over J.C.T., however, and instead deferred to the Denver probate court. The probate court then issued an order suspending Guardian 1's guardianship of J.C.T. and appointing Guardian 2 as temporary guardian. In doing, so, the court specifically stated that it was not finding that Guardian 1 acted improperly toward J.C.T.; rather, the court determined that it was in J.C.T.'s best interest that the status quo be maintained, and that J.C.T. should stay in Colorado where he was visiting, because relocating him could further jeopardize his mental health.
In February 2003, the Mandan, Hidatsa, and Arikara Nation, also known as the Three Affiliated Tribes ("the. Tribes"), moved to intervene, asserting their standing on the basis of J.C.T.'s status as an enrolled tribal member and thus, an Indian child under the Indian Child Welfare Act ("the ICWA"), 25 U.S.C. sections 1901-63 (2005). The Tribes also filed a motion to transfer jurisdiction to the tribal court. While acknowledging the applicability of the ICWA, the probate court found good cause not to transfer jurisdiction under 25 U.S.C. section 1911(b), and denied the motion.[2] The Tribes did not appeal this ruling.
J.C.T. continued to live in Colorado with Guardian 2 for approximately two years. Near the end of that time, a therapist, who evaluated J.C.T. under court orders, recommended that J.C.T. stay with Guardian 2, but cautioned that other resources should be considered for the future because Guardian 2 was sixty nine years old and J.C.T. only seven years old. As time went on, the GAL expressed increasing concern to the probate, court regarding Guardian 2's mental state, her communication with J.C.T. about the case, and her inability to properly manage J.C.T.'s asthma.
In August 2004, the probate court issued an order, expressing its doubts as to whether any of the parties were fit to serve as J.C.T.'s guardian. At that time, the court directed the GAL to find a permanent successor guardian for J.C.T. Several weeks later, the court terminated Guardian 2's temporary guardianship and appointed A.B. ("Guardian 3") as a substitute temporary guardian. Guardian 3 is a foster mother and experienced child advocate, and was intended by the probate court to serve as a neutral and independent placement for J.C.T. Over time, the GAL and J.C.T.'s therapist realized that Guardian 3 was actually aligned with Guardian 1, allowing contact between J.C.T. and Guardian 1 that the probate court had previously limited, Moreover, Guardian 3 began to interfere with J.C.T.'s therapy. These acts were in direct violation of the probate court's orders.
During this time, the GAL began working with adoption agencies with the hope of finding a family that could serve as permanent successor guardian for J.C.T., and possibly an eventual adoptive family, in the event that the court did not choose Guardian 1 or Guardian 2. The court heard evidence regarding Guardian 1's petition for permanent guardianship of J.C.T. at two hearings in the spring of 2005. The GAL testified at the second hearing that there was a family of Native American ancestry that was interested in serving as a permanent guardian and possible adoptive family for J.C.T. At the end of this hearing, the court removed Guardian 3 as temporary guardian, citing her previous violations of court orders and noting her inability to remain impartial. In doing so, the court declared J.C.T. to be a ward of the court temporarily and stated that J.C.T. would stay with the GAL until the court *729 made a decision regarding permanent guardianship. In its written order, the court referred to the GAL as the "Guardian Designee."
Soon after that hearing, the probate court denied Guardian 1's petition for guardianship. Guardian 1 appealed from this order. Finding that the probate court exceeded its jurisdiction by engaging in de facto adoption proceedings, the court of appeals vacated the probate court's order and remanded the case with instructions to certify the action to the juvenile court. We now reverse the court of appeals' ruling.
III. The Probate Court's Proper Exercise of Jurisdiction
Subject matter jurisdiction is "a court's power to resolve a dispute in which it renders judgment." Trans Shuttle, Inc. v. Pub. Utils. Comm'n, 58 P.3d 47, 49-50 (Colo. 2002) (citing In re Marriage of Stroud, 631 P.2d 168, 170 (Colo.1981)). The issue of jurisdiction is a legal question that we review de novo. Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1384 (Colo.1997). In doing so, we consider both "the nature of the claim and the relief sought." Trans Shuttle, 58 P.3d at 50.
Under the Colorado Constitution article VI, section 9(3) and section 13-9-103(1)(f), C.R.S. (2007), the Denver probate court has original and exclusive jurisdiction over the "administration of guardianships of minors." Moreover, the court has "full power to make orders, judgments, and decrees and take all other action necessary and proper to administer justice in the matters which come before it." § 15-10-302, C.R.S. (2007). In this case, the court of appeals acknowledged the jurisdiction of the probate court over issues of J.C.T.'s guardianship. However, the court ruled that the probate court, exceeded its jurisdiction when it instructed the GAL in August 2004 to find a permanent guardian for J.C.T., and considered the potential for an eventual adoption in evaluating the best interests of J.C.T.
The court of appeals reasoned that these actions amounted to a de facto adoption proceeding, an area within the exclusive jurisdiction of the juvenile court.[3] The Petitioners, on the other hand, argue that the probate court was merely exercising its jurisdiction over a guardianship matter. The essential question before us, therefore, is whether the probate court was conducting a de facto adoption proceeding. We find that it was not.
The Colorado Children's Code states that proceedings "for the adoption of a person of any age" fall within the exclusive and original jurisdiction of the juvenile court. § 19-1-104(1)(g), C.R.S. (2007). In addition, the Code notes that nothing in its jurisdictional provisions deprives the district court of the authority to appoint a guardian for a child. § 19-1-104(4). A district court is only required to certify a question of legal custody to the juvenile court if "a petition involving the same child is pending in juvenile court or if continuing jurisdiction has been previously acquired by the juvenile court." § 19-1-104(4)(a). That circumstance does not apply here. Moreover, a district court may request that the juvenile court make recommendations regarding guardianship or legal custody at any time, but such requests do not require the district court to certify the case to the juvenile court unless the situation described above exists. See § 19-1-104(4)(b).
Contrary to the court of appeals' holding, an adoption does not occur simply because a court plans for permanency or considers a child's future when exercising its proper jurisdiction. In ruling that the probate court's exclusive focus, as well as that of the GAL, was on the adoption of J.C.T., the court of appeals emphasized the GAL's extensive contacts with various adoption agencies for the purpose of finding J.C.T. a permanent home. In addition, the court highlighted the probate court's discussion of the potential adoptive family at the March 2005 hearing. Indeed, it is true that the probate court wanted to avoid placing J.C.T. in another stranger's home for *730 some temporary time period, and thus strived to find a family that could provide some stability for J.C.T. in the long term. This does not, however, constitute an adoption.
Section 19-5-203, C.R.S. (2007), provides that a child is not available for adoption unless a parent or guardian gives his or her consent, a court receives an affidavit or sworn testimony that the child has been abandoned for one year or more, or a court enters an order "terminating the parent-child legal relationship." No termination of parental rights proceeding has ever occurred in this case. No one has averred in the case of a kinship or custodian adoption that J.C.T. has been abandoned for one year or more. Although J.C.T.'s father has not participated in these proceedings and J.C.T.'s mother long ago ceased her participation, neither has consented to adoption. J.C.T. is not "available" for adoption under section 19-5-203. Mere instructions to find a permanent home for J.C.T. cannot suddenly render him "available" and thus, initiate adoption proceedings.
Generally, probate courts establish guardianships for the purpose of protecting and caring for those in society who cannot fend for themselves, such as minors and incapacitated persons. See Peter Mosanyi, Comment, A Survey of State Guardianship Statutes: One Concept, Many Applications, 18 J. Am. Acad. Matrimonial Law. 253, 255 (2002) (discussing guardianship in the national context). In his or her court-appointed role, a guardian is "responsible for the ward's physical well-being," including the provision of "shelter, food, clothing, medical care or other necessities of life." Id. The guardian has essentially the same authority and responsibilities with regard to the child as a parent would have, with the exceptions that the guardian typically does not provide the financial resources to support the child and serves solely at the pleasure of the appointing court. See id.; see also § 15-14-208(1), C.R.S. (2007) ("[A] guardian of a minor ward has the powers of a parent regarding the ward's support, care, education, health, and welfare.").
In Colorado, the probate court "may appoint a guardian for a minor if the court finds the appointment is in the minor's best interest," and 1) the parents have consented; 2) parental rights have previously been terminated; 3) the parents are incapable or unwilling to exercise their parental rights; or 4) a previously appointed third-party guardian has subsequently died or become incapacitated and did not provide for a successor by will or written instrument. See § 15-14-204(2), C.R.S. (2007) (emphasis added). Moreover, section 15-14-112(3), C.R.S. (2007), allows the court to appoint successor guardians in the event of a vacancy. Ultimately, the probate court "is granted broad discretion in all cases involving protected persons." O.R.L. v. Smith, 996 P.2d 788, 790-91 (Colo.App. 2000) (citing Sweeney v. Summers, 194 Colo. 149, 155, 571 P.2d 1067, 1070 (1977)).
Initially, in this case, Guardian 1 was appointed guardian of J.C.T. upon his mother's consent. Since that time, J.C.T.'s parents have not exercised their parental rights, and the probate court has appointed subsequent guardians in furtherance of J.C.T.'s best interest. Considering J.C.T.'s mental health and utmost well-being, the probate court suspended Guardian 1's guardianship and appointed Guardian 2 as temporary guardian. Later, when Guardian 2 was no longer capable of properly caring for J.C.T., the court appointed Guardian 3 as a substitute guardian. The court made that appointment believing Guardian 3 to be a neutral individual who would protect J.C.T. from unnecessary conflict among the parties. When this failed to be the case, the probate court again looked to J.C.T.'s best interest. Wishing to avoid any greater disruption to J.C.T. that could be caused by placing him with another stranger, the court made J.C.T. its ward and appointed the GAL, who had been part of J.C.T.'s life since he was only one year old, as his guardian designee. In each of these instances, the court was acting pursuant to its authority under sections 15-14-204(2) and 15-14-112(3). We find that, by both considering J.C.T.'s current needs and looking toward his future well-being, the probate court was furthering the intent behind the Probate Code's guardianship of minors provisions.
For over seven years as of the time of this appeal, the probate court supervised J.C.T.'s *731 care, placing him with three different temporary guardians, as well as with the GAL for a limited period. For children like J.C.T., permanency and stability are unquestionably in their best interest.[4] Over the years, the probate court periodically evaluated the appropriateness of each guardian in light of J.C.T.'s needs. Ultimately, the court recognized that the available parties were no longer able to meet those needs; thus, it instructed the GAL to look elsewhere.
In ruling that the probate court exceeded its jurisdiction, the court of appeals found that "the prospect of adoption was a significant factor" in the court's denial of Guardian 1's petition for permanent guardianship. See In re J.C.T., 155 P.3d at 456. To a certain degree, this is true. The probate court did note J.C.T.'s positive visits with the potential adoptive family. It discussed the family's ability to meet J.C.T.'s needs, and it recognized that the family would be an appropriate placement under the ICWA.[5] Consideration of this potential adoptive family, however, was entirely proper. See In re R.M.S., 128 P.3d 783, 788 (Colo.2006) ("A court may consider all relevant facts and circumstances to determine the best interest of the child."). As this court previously explained in L.L. v. People, "guardianship orders are merely a plan for permanency that is subject to change as warranted by the best interests of the children." 10 P.3d 1271, 1277 (Colo.2000) (discussing appropriateness of permanent guardianship in juvenile court). Here, the probate court's consideration of the potential future adoption was warranted by the best interests of J.C.T.[6]
Moreover, the potential adoption was only one of the many factors the probate court considered in denying Guardian 1's petition. For example, in its April 2005 order, the court noted that J.C.T. exhibited many emotional and psychological problems when initially placed with Guardian 1, issues that were not as evident when J.C.T. was placed with either Guardian 2 or Guardian 3. The court stated that, "In no way [could J.C.T.'s] prior placement in [Guardian 1's] home be described as successful." In addition, one of the therapists who evaluated J.C.T. testified in the probate court that J.C.T. would be best served by a placement without younger children in the home, because younger children tend to make J.C.T. feel threatened and cause him to behave aggressively. At the time of her petition, Guardian 1 had three children younger than J.C.T. in her home, as well as one older child, and she operated a *732 day-care center in her home. Further, the probate court specifically recognized the Tribes' opposition to any guardianship placement with Guardian 1. The court concluded that "[a]fter careful consideration of [J.C.T.'s] needs, the likelihood that [Guardian 1] cannot meet his needs, and the potential for a successful adoption elsewhere, the Court finds that the balance tips heavily against placement with [Guardian 1] and in favor of placement with the family recommended by the Guardian ad Litem."
This best interest evaluation was proper with regard to J.C.T.'s guardianship under section 15-14-204. It does not constitute an adoption, or a de facto adoption. If, in the future, J.C.T.'s guardians should wish to adopt him, they must petition the juvenile court, which possesses the sole authority to conduct adoptions. The General Assembly anticipated adoption by a legal guardian when it drafted section 19-5-203(1)(k), which provides that a child may be available for adoption upon:
Submission of an affidavit or sworn testimony of the legal custodian or legal guardian in a custodial adoption that the birth parent or birth parents have abandoned the child for a period of one year or more . . . and that the legal custodian or legal guardian seeking the custodial adoption has had the child in his or her physical custody for a period of one year or more.
While it is possible for a guardian to adopt his or her ward, that is not what occurred in this case.
In sum, we find that the probate court properly acted within its jurisdiction when it considered J.C.T.'s need for stability and instructed the GAL to find a permanent guardian. In reaching this conclusion, we do not intend to minimize the importance of the juvenile court and its expertise in matters regarding children. The expertise of the juvenile court, however, does not pose a jurisdictional defect in terms of the probate court's authority over J.C.T.'s guardianship. Focusing our review of jurisdiction on the nature of the claim and the relief sought, we conclude that the relief sought here was that of a permanent guardianship, and we hold that the court of appeals erred in equating the probate court's actions with a de facto adoption. Despite the court of appeals' assertion to the contrary, the probate court acted appropriately within its jurisdiction.
IV. Appointment of the GAL as Guardian Designee
As a separate ground for vacating the probate court's order, the court of appeals determined that the probate court improperly appointed itself as guardian, and the GAL as guardian designee, of J.C.T. In re J.C.T., 155 P.3d at 456. The court of appeals found that this improper appointment potentially left J.C.T. within the definition of a neglected or dependent child under section 19-3-102(1)(e), C.R.S. (2007), divesting the probate court of jurisdiction and vesting jurisdiction with the juvenile court. We reject the appellate court's reasoning and hold that the appointment of the probate court as guardian was not improper under the facts of this case.
The Colorado Children's Code provides that, in addition to adoption actions, the juvenile court has exclusive original jurisdiction in proceedings "[c]oncerning any child who is neglected or dependent." § 19-1-104(1)(b). Under section 19-3-102(1)(e), in relevant part, a child is considered neglected or dependent if: "(c) [t]he child's environment is injurious to his or her welfare; [or] (e) [t]he child is homeless, without proper care, or not domiciled with his or her parent, guardian, or legal custodian through no fault of such parent, guardian, or legal custodian." In this case, upon concluding that J.C.T. was not domiciled with a parent, and that neither the probate court nor the GAL could serve as an authorized legal guardian for J.C.T., the court of appeals held that these were "grounds to refer the matter to the juvenile court, which has the authority to assume jurisdiction and after an adjudicatory hearing, . . . to determine whether [J.C.T.] is a neglected or dependent child . . ." In re J.C.T., 155 P.3d at 456. Before discussing whether the probate court's actions divested it of jurisdiction and vested jurisdiction in the juvenile court, we first evaluate whether the court properly appointed itself as guardian, and the GAL as guardian designee, of J.C.T.
*733 Following the guardianship hearing in March 2005, the probate court issued its order terminating Guardian 3's appointment as temporary substitute guardian, and stating, "[t]he court is taking Guardianship of [J.C.T.] temporarily and [the GAL] is appointed as the Guardian Designee." Moreover, the court explained that "[J.C.T.] will be temporarily staying with the Guardian ad Litem as he has in the past when necessary.[7] [J.C.T.'s] transfer to the Guardian ad Litem is part of the natural transition in this case." Then, in its April 2005 order denying Guardian 1's petition for guardianship, the court stated that it would "continue its guardianship of [J.C.T.] until the proposed adoptive family's guardianship petition [could] be heard." The court of appeals held that these actions by the probate court were in error.
Under the Colorado Probate Code, a "guardian" is defined as "an individual at least twenty-one years of age, resident or non-resident, Who has qualified as a guardian of a minor or incapacitated person pursuant to appointment by a parent or by the court. The term includes a limited, emergency, and temporary substitute guardian but not a guardian ad litem." § 15-14-102(4), C.R.S. (2007) (emphasis added). Guardian 1 first argues that the probate court could not appoint itself as a guardian because the court is not an "individual." The GAL and the Tribes, however, ask this court to follow the statutory analysis set forth in In re Estate of Morgan, 160 P.3d 356 (Colo.App.2007). Morgan addressed a trial court order appointing the El Paso County Department of Human Services as the permanent guardian for an incapacitated ward. Id. at 357. In that case, the court of appeals held that the appointment was proper under the definition of "guardian" in section 15-14-102(4). We find its analysis in reaching that conclusion to be persuasive, and now apply its reasoning to the case at hand.
Although section 15-14-102(4) provides that a "guardian" means "an individual," our reading of the guardianship provisions as a whole leads us to conclude that the probate court as a government entity may serve as a guardian. See Morgan, 160 P.3d at 358-59 (interpreting guardianship statutes and upholding the appointment of a government agency as the permanent guardian for an incapacitated ward). Section 15-14-310(1), C.R.S. (2007), requires the probate court in appointing a guardian to consider "persons otherwise qualified in the following order of priority" and then sets forth eight categories of "persons." Under section 15-14-310(3), the probate court, "for good cause shown, may decline to appoint a person having priority and appoint a person having a lower priority or no priority." As the Morgan court recognized, the legislature in these provisions used the word "person." Morgan, 160 P.3d at 359. Section 15-14-102(10) defines a "person" as "an individual, . . . government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity." The probate court therefore constitutes a "person" under the terms of the statute and thus, could appoint itself for good cause to serve as J.C.T.'s temporary guardian.
We also find that it was not improper for the court to appoint the GAL as "guardian designee." The term "guardian designee" does not appear in any provision of either the Probate Code or the Children's Code, nor can it be found in Colorado case law. In fact, our review of case law across the country reveals only one case in which the phrase "guardian-designee" was used: In re Estate of Gustafson, 308 A.D.2d 305, 764 N.Y.S.2d 46 (2003). The Gustafson court reversed a trial court's order, removing a relative as guardian of an incapacitated person and appointing an independent attorney as the new guardian. Id. at 308, 764 N.Y.S.2d 46. While the reversal was based on the specific facts in that case, as well as the strong preference in New York for appointing a relative as guardian, it is worth *734 noting that the court referred to the new guardian as the "guardian-designee." Id. at 307-09, 764 N.Y.S.2d 46. The court did not discuss this title in its opinion, but seemed to treat the independent attorney as any other "guardian" for purposes of its analysis. See id. Aside from this case, the term "guardian designee" only appears in two state statutes, both of which seem to deal with a situation, such as this, where a public agency is the guardian. See Md.Code Ann., Fam. Law, § 14-404(a)(1)(iii) (West 2007) (establishing a file review requirement for each guardianship that a public agency has held for more than a year, based on a report to the review board with information including the dates of most recent visits of the "guardian's designee"); Minn.Stat. Ann. § 524.5-313(c)(4)(v) (2007) (limiting liability of "guardian or the public guardian's designee" in providing necessary medical care to an incapacitated ward).
During oral argument in this case, the GAL maintained that in practice, in some guardianship cases in juvenile court, DHS is referred to as the child's guardian, with the department social worker being referenced as the "guardian designee."[8] The GAL explained that the social worker as guardian designee takes direction from the head of DHS, just as the GAL as guardian designee in this case took direction from the probate court. In addition, counsel for the Tribes speculated that the probate court in this case intended its guardianship to be very temporary, and possibly used the term "guardian designee" to describe the GAL as a sort of "placeholder" as opposed to a full guardian. Despite this reasoning, the court of appeals rejected the appointment of the GAL as guardian designee as improper under the definition of "guardian" in section 15-14-102.
More specifically, the court of appeals relied on the last sentence of the "guardian" definition in section 15-14-102(4): "The term includes a limited, emergency, and temporary substitute guardian but not a guardian ad litem." See In re J.C.T., 155 P.3d at 456 (emphasis in original). The court interpreted this language to mean that a guardian ad litem could not also serve as a guardian. The Petitioners, however, contend' that this sentence is merely intended to distinguish between the two roles, not to prohibit a dual appointment.
We agree that the sentence was simply meant to distinguish the role of a guardian from that of a guardian ad litem. The language specifically separates a guardian ad litem from types of probate guardianships provided by statute, specifically, limited, emergency, and temporary substitute guardians. See § 15-14-102(4).[9] Unlike these other listed positions, a guardian ad litem is not a type of guardianship under the Probate Code. He or she is not responsible for the minor ward's "support, care, education, health, and welfare," as if he or she were a parent to the minor. See § 15-14-208(1). Instead, the GAL has a separate and distinguishable role. Under the Probate Code, "a court may appoint a guardian ad litem if the court determines that representation of the interest otherwise would be inadequate." § 15-14-115, C.R.S. (2007). While a guardian *735 is "charged with the duty of taking care of [a ward]," it is the "universally acknowledged responsibility of guardians ad litem . . . `to represent the best interests' of children who are involved in litigation." Roy T. Stuckey, Guardians Ad Litem as Surrogate Parents: Implications for Role Definition and Confidentiality, 64 Fordham L.Rev. 1785, 1785-86 (1996) (discussing role of GAL) (citations omitted).
The wording of the "guardian" definition itself highlights the difference of these `two, roles by stating that the term "guardian" does not include the term "guardian ad litem." In order words, the two roles are not one and the same. The definitional language does not, however, prohibit a person from serving as both guardian and guardian ad litem to the same minor ward. By contrast, section 15-14-310(4) specifically excludes "[a]n owner, operator, or employee of a long-term-care provider from which the respondent is receiving care" from serving as a guardian "unless related to the respondent by blood, marriage, or adoption." Thus, if the legislature had intended to prevent guardians ad litem from serving as guardians, it surely could have established a similar exclusion; yet, it did not. We find, therefore, that the dual appointment of a person as guardian and guardian ad litem of a minor ward is not per se improper under the statute.
In rejecting the appointment of the GAL as guardian designee of J.C.T., the court of appeals also recognized, without any discussion, an inherent conflict of interest between the GAL and the child's guardian. In re J.C.T., 155 P.3d at 456. While we acknowledge that there may be scenarios where an actual conflict of interest exists, thus preventing the dual appointment, we hold that there is no inherent conflict between the two positions.
As we consider the issue of inherent conflict, we seek guidance from both the Chief Justice Directive on appointments of child representatives, as well as the Colorado Rules of Professional Conduct. Chief Justice Directive 04-06 sets forth the authority and responsibilities of the Office of the Child's Representative, the duties of attorneys appointed as child's representatives, the duties of judges and magistrates in cases involving children, and the procedures for complaints and sanctions. Court Appointments Through the Office of the Child's Representative, Chief Justice Directive 04-06 (amended July 2006). Nothing in directive 04-06 indicates that it would be an inherent conflict of interest for a GAL to also serve as a child's legal guardian. Directive 04-06 does state, however, that an attorney appointed as a GAL "shall be subject to all of the rules and standards of the legal profession, including the additional responsibilities set forth by Colorado Rule of Professional Conduct 1.14." Id.
Colorado Rule of Professional Conduct 1.14 delineates a lawyer's ethical duties when dealing with a client under a disability, which includes minority. While the rule itself does not address temporary guardianships, the comment to Rule 1.14 explains that "[i]f the person [under a disability] has no guardian or legal representative, the lawyer must often act as a de facto guardian." By acknowledging the possibility that an attorney might assume two roles in dealing with a client under a disability, this comment suggests the lack of an inherent conflict of interest between the GAL role and the guardian role. Moreover, the ethical rules concerning conflicts of interest do not preclude the dual appointment. See Colo. Rules of Prof'l Conduct R. 1.7-1.9 (2007).
Asking this court to uphold the court of appeals' finding of a conflict of interest, Guardian 1 explains that the GAL, whose role is to look out for the best interests of J.C.T., was not in a position to evaluate herself and determine whether she would be a proper guardian for J.C.T. At first glance, ABA Formal Ethics Opinion 96-404 seems to support this conclusion. It "cautions that a lawyer should not act as or seek to have himself appointed guardian except in the most exigent of circumstances, that is, where immediate and irreparable harm will result from the slightest delay." ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 96-404 (1996) (distinguishing between "seeking the appointment of a guardian for a client" and "seeking to be the guardian"). *736 As an example of the latter situation, the Committee describes a lawyer needing to take action on behalf of his or her incapacitated client, who is about to be evicted, so as to prevent or delay the eviction. Id. While recognizing the need for immediate action in such a case, the Committee advises that the lawyer shall seek the appointment of an alternative formal guardian as soon as possible. Id.
The case at hand presented a similar need for immediate action by the GAL to prevent the irreparable harm to J.C.T. that could have resulted from delay. Despite Guardian 1's claims to the contrary, the exigent circumstance in this case was not that the potential adoptive family could be lost; rather, it was the lack of any ready and available guardian. The probate court determined that Guardian 3 was no longer an appropriate guardian for J.C.T., that Guardian 2 was not capable of caring for J.C.T., and that J.C.T.'s prior placement with Guardian 1 had not been successful. After seven years of probate court supervision with three different guardianship placements, the court recognized that J.C.T. would be irreparably harmed, mentally and emotionally, by being placed with yet another stranger. Thus, even under the ABA Committee's narrow exception to dual appointments provided in Formal Opinion 96-404, the, probate court's appointment of the GAL as J.C.T.'s guardian designee was not improper.
In addition, the dual appointment in this case did not present an actual conflict of interest. Here, both the probate court and the GAL knew that their guardianship appointments would be temporary. In fact, in her order denying Guardian 1's guardianship petition, the probate court judge stated that the court's guardianship would continue only until the potential adoptive family's guardianship petition could be heard. The court did not appoint itself and the GAL without a time frame and only then start considering options for J.C.T. These appointments were made with this specific family in mind as a possible successor guardian. The court and the GAL intended to be placeholders, preserving J.C.T.'s status quo in the sense that he was already extensively familiar with the GAL. Guardian 1 correctly asserts that the temporary duration of a guardianship placement does not ameliorate any conflicts of interest. Here, however, the interests of the GAL as a guardian were in line with those of J.C.T. Both as a guardian and as a GAL, she was acting to further J.C.T.'s best interests. Moreover, she had no desire to serve as J.C.T.'s permanent guardian.[10] While an actual conflict of interest may exist in some scenarios and thus prevent a dual appointment, we find that no such conflict existed in this case.[11]
While the temporary guardianship appointments, both that of the probate court itself and of the GAL, were not ideal or even favored, the appointments were not prohibited by statute or rules of professional conduct. Both the probate court and the GAL were authorized to serve as J.C.T.'s temporary successor guardian. Because there was no period when J.C.T. was not domiciled with a guardian (or "guardian designee"), we conclude that J.C.T. was not a "neglected or dependent" child as defined by section 19-3-102(1)(e), and thus, not within the exclusive original jurisdiction of the juvenile court as *737 provided by section 19-1-104(1). We find that, in making these appointments, the probate court was properly exercising its jurisdiction over the administration of guardianships. See § 19-3-103(1)(f); § 15-10-302,
We also take issue with the argument that the probate court simply should have transferred the case to the juvenile court. While section 19-1-104(4)(b) provides that the probate court "may request the juvenile court to make recommendations pertaining to guardianship," it does not establish a means for a case transfer, particularly where the case merely involves the appointment of a successor guardian for a minor ward. The probate court is only required to certify questions of legal custody to the juvenile court where the juvenile court has a petition regarding the same child already pending or if the court has continuing jurisdiction over the child. § 19-1-104(4)(a). Because that was not the situation here, there was not a means by which the probate court could order the juvenile court to take the case.
Generally, the juvenile court process begins with a report of abuse or neglect, followed by a petition by the state claiming that a child is dependent or neglected. L.L., 10 P.3d at 1275 (explaining the juvenile court process); see also § 19-3-501 (discussing the petition initiation and preliminary investigation in juvenile court proceedings). Once the juvenile court adjudicates the child dependent or neglected, the court has the jurisdiction to place the child with a guardian, with the county department of social services, or in a foster home, among other placements. Id. Here, as discussed above, we find that J.C.T. was not neglected or dependent at the time of the court's appointment of itself as guardian. We have no indication from the record whether DHS would seek involvement and ask the juvenile court to take further action. In her 1998 report to the probate court, the GAL explained that DHS refused to step in because a guardian was caring for J.C.T. and there was a forum in which the guardian, as well as J.C.T.'s mother, could seek court orders. This remains the case today.
In sum, we find that the probate court did not act improperly in appointing itself as temporary guardian of J.C.T., or in appointing the GAL as guardian designee. Further, the probate court has maintained its jurisdiction over J.C.T.'s guardianship.
V. Conclusion
Today we hold that the probate court did not exceed its jurisdiction when it directed the GAL to find a permanent guardian for J.C.T. and considered the potential for an eventual adoption in evaluating J.C.T.'s best interests. These actions did not constitute a de facto adoption proceeding within the exclusive jurisdiction of the juvenile court. In addition, we conclude that the probate court's jurisdiction was not divested by its appointment of the GAL as temporary guardian for J.C.T. The administration of this guardianship proceeding remains within the authority of the probate court under section 19-3-103(1)(f), unless and until the juvenile court assumes jurisdiction. We therefore reverse the court of appeals' decision in In re J.C.T., 155 P.3d 452, and we remand this case to the court of appeals with instructions to reinstate the order of the probate court.
NOTES
[1] We granted certiorari on two specific issues:
1) Whether the court of appeals erred by holding that a probate court exceeded its jurisdiction in directing a guardian ad litem to find a permanent guardian for a ward and considering the potential for an eventual adoption in its evaluation of the best interests of the ward.
2) Whether the court of appeals erred when it held that the appointment of the guardian ad litem as temporary guardian divested the probate court of jurisdiction and vested jurisdiction with the juvenile court under section 19-3-102, C.R.S. (2006).
[2] 25 U.S.C. § 1911(b) (2000) states:
In any State court proceeding [concerning] . . . an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe. . . .
[3] Article VI, section 15 of the Colorado Constitution establishes the juvenile court of the city and county of Denver. Denver is the only county to have separate probate and juvenile courts. Other counties in Colorado handle probate and juvenile matters in their district courts.
[4] See, e.g., L.L. v. People, 10 P.3d 1271, 1274, 1277 (Colo.2000) (recognizing children's need for stability and permanency and thus upholding placement of children in permanent guardianship of foster parents). While L.L. was a case of guardianship in the juvenile court, its best interest of the child standard is also applicable in the context of probate court guardianships. See In re R.M.S., 128 P.3d 783, 787 (Colo.2006) (discussing guardianship in probate court and finding "that the paramount consideration in appointing a guardian is the best interest of the minor'').
[5] The Code of Colorado Regulations provides that the county child welfare department:
shall make placements of eligible Native American children for adoption according to the following order of preference, unless there is good cause to the contrary as determined by the court:
A. A member of the child's extended family.
B. Other members of the Native American child's tribe.
C. Other Native American families.
12 Colo.Code Regs. § 2509-4, 7.309.83 (2007) (delineating order of placement preferences under the ICWA).
In this case, the mother of the potential adoptive family is part Native American. Guardian 1 is not of Native American ancestry; thus, under the ICWA, the potential adoptive family would be a more appropriate placement for J.C.T., absent good cause to the contrary.
[6] At the March 2005 hearing, the probate magistrate initially stated that she intended to treat the hearing similarly to an adoption proceeding in that she would have each party present his or her qualifications, rather than have the contesting parties cross-examine each other and help to determine whether the other party was an appropriate placement for the child. Then, due to a lack of previous consent by Guardian 1 for a magistrate to hear the proceeding, the magistrate stepped down and was replaced by a probate court judge. C.A.H. objected to the proceeding being treated like an adoption and the court took notice of that. There was no further discussion on the subject. We find that while the magistrate may have used an inappropriate choice of words to describe the intended format of the proceedings, the hearing itself did not constitute an adoption.
[7] J.C.T. spent thirteen days with the GAL and her. family over the Thanksgiving holiday in 2004. Guardian 3 had arranged a vacation prior to becoming J.C.T.'s guardian. According to the GAL's Forthwith Motion in October 2005, J.C.T. stayed with the GAL because there was no one else with whom he was familiar who could care for him at the time. The GAL kept a journal of J.C.T.'s time with her.
[8] The GAL did not provide any supplementary materials with her brief to support this contention, and the DHS website does not actually include these terms in its discussion of its programs. Several public agencies in other states, however, seem to employ the terms in the manner described by the GAL. See, e.g., Allegheny County Human Resources Development Commission's Guardianship Program, http://www. alleganyhrdc.org/guardianship.htm (last visited Nov. 28, 2007) (discussing role of "guardian/designee" when Allegheny County Area Agency of Aging serves as guardian of last resort for incapacitated individuals); Guardianship, Iowa Department of Human Services Employees' Manual, http://www.dhs.state.ia.us/p oh: cyanalysis/PolicyManualPages/Manual_Documents/Master/13-d.pdf (last visited Nov. 28, 2007) (discussing procedure when department assumes guardianship of children and citing language of typical court order transferring guardianship "to the Director of Human Services or designee"); Washoe County Public Guardian, http://www.washoecounty.us/guardian/Types. html (last visited Nov. 28, 2007) (describing procedures for appointment of Public Guardian's office as guardian and discussing requirements for "the Public Guardian or the Public Guardian's designee").
[9] Section 15-14-304, C.R.S. (2007), discusses the appointment of a limited or unlimited guardian for an incapacitated person. Section 15-14-204(4)-(5), C.R.S. (2007), addresses both temporary and emergency guardians.
[10] In support of her argument, Guardian 1 points to the court of appeals' questioning of the GAL's objectivity. In its opinion, the court recommended that upon certification of the case, the juvenile court consider removal of the current GAL, because "while the GAL is obviously concerned about the welfare of J.C.T., that concern has grown to the point where it has colored her judgment and may have caused her to lose the objectivity necessary to be an effective GAL on J.C.T.'s behalf." In re J.C.T., 155 P.3d 452, 457 (Colo.App.2006). This concern does not necessary reflect on any potential conflict of interest between the GAL's role and that of a guardian. Because the appointment of a GAL is within the broad discretion of the probate court, we do not address the appropriateness of her continued appointment.
[11] Petitioners argue that even if it were improper to appoint the GAL as guardian due to a conflict of interest between the two roles, the remedy was to appoint someone new as J.C.T.'s GAL, thus keeping the current GAL as J.C.T.'s temporary guardian. The appointment of a GAL is discretionary, and leaving J.C.T. without one would not render him neglected or dependent. Because we find that there was no inherent or actual conflict of interest here, we decline to address this scenario. | 01-03-2023 | 11-01-2013 |
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