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Wachenfeld, J. (dissenting). In In re Woodworth, 15 Fed. Supp. 291; affirmed, 85 F. 2d 50 (C. C. A. 2, 1936), the court held: “On principle, it cannot be doubted that when an attorney makes an agreement to prosecute a case for a fee contingent on success, and is disbarred before the fee is earned, he may not collect compensation from his client for the work done. The agreed fee he cannot have, because he has not performed his engagement and the contingency on which the compensation was to rest has not happened. Reasonable compensation in lieu of the fee he cannot have, because his inability to complete his contract has been brought about by his own wrongful ■conduct.” I subscribe to this reasoning and conclusion and am therefore to affirm. Adopting this rule would not complicate or bring economic ■considerations into disciplinary proceedings nor would it defeat their purpose. It would, in my opinion, be an added incentive to professional conduct, which is foreign to disciplinary complaints. *530Admittedly, the plaintiff was disbarred because of his own wrongful act, and whether it was with reference to this particular case or not, the result, in my opinion, is the same. The penalty falls and he can no longer represent his client because of his wrongful conduct. The result of that misconduct should be uniform, not varying with the degree of culpability or its relationship to any particular case. “I-Iis inability to complete his contract has been brought about by his own wrongful conduct.” I would affirm the judgment. For reversal — Chief Justice Vandeebilt, and Justices Case, Heiiek, Olephant, Bueling and Ackekson — 6. For affirmance — Justice Wachenfeld — 1.

CourtListenerOpinion

2024-06-11T07:23:54.557514

2023-08-26 19:06:15.690553+00

2207251

208 Cal. App. 2d 702 (1962) 25 Cal. Rptr. 530 REGIE NATIONALE DES USINES RENAULT, BILLANCOURT (SEINE), FRANCE, Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; WILLIAM C. FORD, Real Party in Interest. Docket No. 10575. Court of Appeals of California, Third District. October 19, 1962. Bronson, Bronson & McKinnon and Ernest M. Thayer for Petitioner. McCarty & Crow and Richard E. Crow for Respondent and Real Party in Interest. THE COURT. By mandate, petitioner seeks an order of this court compelling the Superior Court in and for the County of Sacramento to set aside and vacate its order denying petitioner's motion to quash service of summons and complaint *703 on petitioner. This court issued its order to show cause and the matter was set for oral argument. After full consideration of the petition, the points and authorities, and the arguments of respective counsel, we are satisfied that the memorandum opinion filed by the Honorable Leonard M. Friedman denying a like motion correctly states the law and we therefore adopt the same as the opinion of this court. [1] "The court has concluded that defendant Regie Nationale des Usines Renault, Billancourt (Seine), France (hereinafter referred to elliptically as `Regie') has had adequate contacts with California and California residents so that the maintenance of the suit against it does not offend our notions of fair play and substantial justice (International Shoe Co. v. Washington, 326 U.S. 310 [66 S. Ct. 154, 90 L. Ed. 95, 161 A.L.R. 1057]). It is, in other words, `doing business' in California and is amenable to substituted service of process on the Secretary of State in the manner provided by Section 6501-6502 of the Corporations Code. "Defendant Regie is a business entity owned by the French government. As an automobile manufacturer, it inaugurates a flow of its products to the California market. It sells its products to defendant Renault, Inc., a wholly-owned subsidiary incorporated in the State of New York. Renault, in turn, sells to various American distributors, who in turn sell to retail dealers. There is a chain of sales leading from defendant Regie to California consumers. The product is such that negligence in manufacture and inspection might well cause injury to California citizens, as is alleged by the plaintiff and by the cross-complainant here. "Regie might choose to arrange its marketing process through a hierarchy of its own agents and employees. Then, by establishing agents in California to sell its products, it would undoubtedly be amenable to suit in this state. For reasons of its own it chooses to market its products through a wholly-owned American subsidiary and a network of independently-owned distributorships and dealerships. These choices on its part effect little, if any, alteration in the jurisdictional situation. The `contacts' exist one way or the other and for precisely the same purposes. The differences are differences only in form and description. "Apparently, where the tort occurs within the state, extensive sales and promotional contacts with California consumers *704 through nonexclusive, independent sales representatives may constitute `doing business' (Cosper v. Smith & Wesson Arms Co., 53 Cal. 2d 77 [346 P.2d 409]). Here there are additional circumstances which, in composite, impel subjection to jurisdiction. These are: (a) the interest of this State in providing a forum for its residents; (b) the relative availability of evidence; (c) the relative burden of defense and prosecution in California rather than at some other place; (d) the case of access to some alternative forum; (e) the extent to which the cause of action arises out of Regie's local activities. Fisher Governor Co. v. Superior Court, 53 Cal. 2d 222, 225-226 [1 Cal. Rptr. 1, 347 P.2d 1]. "As regards `fair play' it is obvious that if California rejects jurisdiction, Regie may successfully bar plaintiff and cross-complainant from access to the courts of all states of the union, including New York. Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333 [45 S. Ct. 250, 69 L. Ed. 634]; see also Fisher Governor Co. v. Superior Court, supra. Regie's argument would, in effect, confine the claimants to the courts of the Republic of France. Fairness to Regie does not entail this disadvantage to the claimants. "Renault, Inc., whether regarded as an individual corporate entity or as alter ego of Regie, is simply a medium through which the latter establishes its business contacts with the California public. As to the mechanics of process serving, Regie has received process via the California Secretary of State without reference to the `presence' of Renault as its purported agent in California. Thus there is no point in deciding whether to respect the separate status of Renault or to regard it as merely the alter ego of Regie." The order to show cause is discharged and the petition is denied. Petitioner's application for a hearing by the Supreme Court was denied December 12, 1962.

CourtListenerOpinion

2024-06-11T07:23:54.590008

2013-10-30 08:36:18.374607+00

2207254

208 Cal. App. 2d 246 (1962) THE PEOPLE, Plaintiff and Respondent, v. SOLLY TERENO, Defendant and Appellant. Crim. No. 8014. California Court of Appeals. Second Dist., Div. One. Oct. 5, 1962. Matthews & Stanley for Defendant and Appellant. Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Norman H. Sokolow, Deputy Attorney General, for Plaintiff and Respondent. LILLIE, J. Having found defendant guilty of four counts of bookmaking in violation of section 337a, subdivisions 1 and 3, Penal Code, the trial judge on February 10, 1961, sentenced *247 him to a term of 180 days in the county jail; he suspended sentence and granted defendant probation for a period of three years on certain specified terms and conditions, among them, that defendant "not gamble or engage in any bookmaking activities or have paraphe[r]nalia thereof in his possession, and not be present in places where gambling or bookmaking is conducted," and that he "obey all laws, orders, rules and regulations of the probation department and of the court." Shortly thereafter defendant was again arrested and charged with four counts of bookmaking; he was found guilty of a violation of section 337a, subdivision 3, Penal Code, as alleged in count 3 of the information (no. 242588). On August 22, 1961, the court denied probation and sentenced defendant to 90 days in the county jail. At the same time, and in the instant case, the court found defendant to be in violation of the probation order of February 10, 1961, and ordered the same modified to provide that he serve the next 90 days in the county jail, probation to continue under the same terms and conditions upon his release. The court ordered the jail terms in case no. 242588 and in the instant case to run concurrently. From the judgment defendant appeals. [1] It appearing that defendant engaged in bookmaking activities on March 23, 1961, for which he was charged and convicted (judgment affirmed by this court on August 29, 1962, People v. Tereno, 207 Cal. App. 2d 246 [24 Cal. Rptr. 501], in violation of section 337a, subdivision 3, Penal Code, and the probation order of February 10, 1961, the lower court properly found defendant to be in violation of the order, and modified the same. The judgment is affirmed. [2] While defendant has also appealed from an order denying a motion for new trial, the record in both cases is silent concerning such a motion and no order relative to denial of a new trial appears therein. Thus, appeal from the purported order is dismissed. Wood, P. J., concurred.

CourtListenerOpinion

2024-06-11T07:23:54.593954

2013-10-30 08:36:18.400331+00

2207256

367 Pa. 159 (1951) Commonwealth v. Chambers, Appellant. Supreme Court of Pennsylvania. Argued November 20, 1950. March 21, 1951. Before DREW, C.J., STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ. *160 Albert S. Oliensis, with him Maxwell L. Ominsky, for appellant. Colbert C. McClain, Assistant District Attorney, with him John H. Maurer, District Attorney, for appellee. OPINION BY MR. JUSTICE BELL, March 21, 1951: This is the second time the defendant was convicted of first degree murder and at each trial the jury in their verdict imposed the death penalty. The defendant in this appeal raises two narrow but very important questions: (1) "Must a suspect in a capital case, prior to police questioning, be furnished counsel or at least advised of his right to counsel and to remain silent upon questioning"; and (2) Did the trial judge commit reversible error in his charge to the jury concerning a man named Phillips? The first question has been ruled adversely to the appellant in a companion case, Commonwealth v. Bryant, 367 Pa. 135, 79 A.2d 193; and we shall therefore proceed to a determination of the second question involved. Joseph Saturno, 65 years old, was found dead in his apartment, 616 Pemberton Street, Philadelphia, about 6:25 p.m. on November 8, 1948. The deceased had been terribly beaten and mutilated, with about 20 wounds in the head; and his apartment was a shambles, with blood over everything. Detectives arrived at the scene of the crime shortly thereafter and as a result of a tip went to defendant's home at 633 Kenilworth Street, less than a block from the deceased's apartment. Defendant was shot by the detectives while he was attempting to escape and was then taken to a hospital. Detectives Lear and O'Donnell were permitted to testify, over objections of counsel, that they questioned defendant at the hospital and that defendant admitted being *161 the lookout while his co-defendant, Bryant, and another man, Phillips, beat the decedent to death. Phillips was then brought to the hospital and identified by defendant. Next morning defendant was taken to Detective Division Headquarters and once more questioned. His statements were then reduced to writing, although not signed by him, and his written statement detailing this exceptionally brutal murder, was read in evidence by Detective Steinberg, over the objections of defendant's counsel. Phillips was again implicated in the crime by defendant. Later the same day defendant signed a confession similar to the ones he had made on the two previous occasions above mentioned. At this time he was warned that any statement he made would probably be used against him at the trial of his case. Once again defendant connected Phillips with the killing. Both Chambers and Bryant confessed that they had come to Saturno's apartment to rob him and gave details of the brutal beating administered to Saturno and how they ransacked his apartment in their search for money, but each blamed the actual beating of Saturno on the other. Bryant's confession was not used or read in defendant's trial. Defendant makes no contention that his confessions were involuntary or coerced or that he did not have a fair trial (except as to the two matters which he specifically raised in his aforesaid statement of the questions involved). In each of defendant's confessions he implicated, as above mentioned, a man named "Phillips" as having, with Bryant, beaten the deceased to death. Phillips denied this when he was arrested by the police in his bedroom about 2 a.m. the morning after the murder and also when Chambers accused him of it at the hospital and again at the Coroner's Inquest, as well as at defendant's trial. *162 Phillips testified at defendant's trial that defendant knocked him unconscious in a crap game on the afternoon of November 8th and that defendant's mother washed the wound; that Phillips then went to the Pennsylvania Hospital at about 4:15 p.m.; that he left the hospital around 5 o'clock and went to the house of Robert Magil, 638 Bainbridge Street, which is less than a block from Saturno's apartment; that he then went home, had supper and because his head hurt him, went right to bed; and that defendant lied when he said that Phillips had anything to do with the murder. Detective O'Donnell testified that defendant (Chambers) definitely told him that Phillips got the patch on his head in his fight with Pop Saturno. Detectives O'Donnell and McColgan each testified that he had investigated these conflicting statements and found out from the hospital records and elsewhere that Phillips received the injury prior to 4:30 on the day of the murder; that they had also investigated Phillips' statement that he had nothing to do with the murder and that they had no proof that he participated in or had any connection with the murder of Saturno. The court then said: "Q. Let's dispose of Phillips. Did you check to see where Phillips was from the time he was discharged from the hospital until the time he was arrested? Did you make an investigation of that matter? A. Yes, we did. He told us the same story he told on the stand here. Q. Where did you ascertain where Phillips was, home in bed? A. We had nothing to prove that he was anywhere else. . . . The Court: He told you all the discussions up to that time, which would determine the status of Phillips. Now, Phillips is out. Q. All right. What happened after Phillips is eliminated?"[*] *163 It is also a fact, for what it is worth, that Phillips was exonerated by the Coroner. Defendant contends that the veracity of his story about Phillips was of very great importance to him because if the jury believed defendant was only a lookout and that the brutal beating had been committed by Bryant and Phillips and not by him, the sentence might have been life imprisonment instead of death. With this contention we agree. In the light of this we shall examine the court's charge to which the defendant objects. The court charged: "The first thing this man did was implicate an innocent man who has successfully established an alibi and who has been vindicated in the community. He had nothing to do with it. The Commonwealth is not in possession of the slightest evidence that he was even near where the crime was committed at the time it was committed. I mention that to you because in determining what are the true facts in this case you have before you statements of this defendant, one of the two witnesses to what took place, and if he lied about Phillips you have a right to ask yourselves whether he lied about Bryant. Was he an innocent bystander or was he a participant in this brutality? Was he the man who beat and beat and beat the poor dead man until he passed out of this life, or was he the man who stood in between the doorway of the two rooms? . . . So, what is the truth? That is what you must ascertain. The law says that all of those who participate in a robbery and other crimes that are enumerated in the Act of Assembly are equally guilty. . . . If A and B are together and A fires the shot, B is just as guilty if he participates in one of these enumerated felonies as though he fired the shot himself. . . . If you believe this defendant is guilty of murder in the first degree, then decide whether it should be life imprisonment or death in the electric chair." *164 It is the exclusive province of the jury, not the court, to decide all the facts, the inferences therefrom, the credibility of the witnesses and the weight and effect to be given to all of the testimony. While the main purpose of a judge is to state and explain the law and briefly review the evidence, it is always the privilege and sometimes the duty of a trial judge to express his own opinion, including his opinion of the weight and effect of the evidence or its points of strength and weakness or even the guilt or innocence of the defendant and the verdict which, in his judgment, the jury should render, provided (1) there is reasonable ground for any statement he may make; and (2) he clearly leaves to the jury the right to decide all the facts and every question involved in the case, regardless of any opinion of the court thereon: Commonwealth v. Cunningham, 232 Pa. 609, 611, 81 A. 711; Commonwealth v. Foster, 364 Pa. 288, 293, 72 A.2d 279; Commonwealth v. Simmons, 361 Pa. 391, 407, 65 A.2d 353; Commonwealth v. Watts, 358 Pa. 92, 97, 56 A.2d 81; Commonwealth v. Jones, 341 Pa. 541, 551, 19 A.2d 389; Commonwealth v. Nafus, 303 Pa. 418, 420-1, 154 A. 485. The question in the instant case is whether the judge in his charge to the jury, by treating controversial questions as established facts, took away from the jury their right to pass upon and decide the evidence and issues presented to them, particularly with reference to Phillips? We are of the opinion that the trial judge unintentionally usurped the power of the jury and for this reason, the appeal must be sustained. Our conclusion is further supported by Commonwealth v. Light, 195 Pa. 220, 45 A. 933. The defendant in that case was indicted for larceny. We there said: "This part of the charge is however open to the objection that it states as an established fact in the case a matter which was the subject of the most serious controversy at the trial, and upon which the guilt or innocence *165 of the defendant in the minds of the jury would depend to a great extent. Whether the defendant Light assisted in taking the turkeys to the buggy was the most important question in the case in determining his guilt. If he assisted in this act, his conduct at the time, shown by the same testimony, together with his denial, and his fabrication of an entirely different account of the matter left little room for doubt. If, as he testified, the turkeys were placed in the buggy by Sholl during his absence and without his knowledge, the case against him was much weakened. The statement that if `. . . at any time between the time they took these turkeys to the buggy,' etc., was an assumption by the court of a fact which had not been established by testimony. This was certainly injurious to the defendant. To what extent it prejudiced his case it is impossible to say. It is enough that it may have done so." The statement of the court during the trial that "Phillips is out. . . . What happened after Phillips is eliminated?"; together with the court's charge exonerating Phillips and stating that he was an innocent man — who had successfully established an alibi and been vindicated in the community and was not even near (he was within half a block one hour before the murder, according to his own testimony) the scene of the crime at the time of its commission — assumed as established and true facts, facts which had not been proved and were, at best, important controversial questions which only the jury and not the judge could decide. Judgment reversed and a new trial granted. NOTES [*] Italics throughout, ours.

CourtListenerOpinion

2024-06-11T07:23:54.599769

2013-10-30 08:36:18.413158+00

2207257

183 Mich. App. 191 (1989) 454 N.W.2d 121 PEOPLE v. POOL Docket No. 109488. Michigan Court of Appeals. Decided November 15, 1989. Before: MAHER, P.J., and MARILYN KELLY and H.E. DEMING,[*] JJ. PER CURIAM. Defendant pled guilty to a reduced charge of larceny from a person, MCL 750.357; MSA 28.589. In exchange for the plea, the prosecutor dismissed the original unarmed robbery charge, MCL 750.530; MSA 28.798. The parties agreed to a sentence of three to ten years in prison. The trial judge sentenced defendant to a prison term of 1 1/2 to 10 years. He noted that defendant's record was not that bad and that he had a good relationship with his family. The prosecutor did not object to the sentence. Neither party raised the subject of the sentence agreement. About a month later, the prosecutor moved to vacate the sentence. He argued that it was a violation of the sentence agreement. The judge acknowledged that he had made a mistake. He vacated the original sentence and resentenced defendant to three to ten years. He denied defendant's subsequent motion to vacate the second sentence. On appeal defendant argues that the trial court did not have authority to resentence him. We agree. A trial court's authority to resentence a defendant is limited. It depends on whether the previously imposed sentence is invalid. People v Whalen, 412 Mich. 166, 169; 312 NW2d 638 (1981). We are unable to find any authority which holds that a sentence which does not follow the sentence *193 agreement is invalid. Even where there is a sentence agreement, the trial court is not bound by it and must still exercise discretion when imposing sentence. People v Killebrew, 416 Mich. 189; 330 NW2d 834 (1982). Since defendant's original sentence was valid, the trial court did not have authority to resentence him. Accordingly, we vacate defendant's sentence and remand for reinstatement of his original sentence of 1 1/2 to 10 years in prison. NOTES [*] Former circuit judge, sitting on the Court of Appeals by assignment.

CourtListenerOpinion

2024-06-11T07:23:54.602266

2013-10-30 08:36:18.415886+00

2207265

208 Cal. App. 2d 239 (1962) LUIS PEREA RIVAS, Plaintiff and Appellant, v. ARNULFO AYALA, Defendant and Respondent. Civ. No. 6851. California Court of Appeals. Fourth Dist. Oct. 4, 1962. Marshall Miles for Plaintiff and Appellant. Harold King for Defendant and Respondent. SHEPARD, J. This is an appeal by plaintiff from a judgment for defendant in a personal injury action. Facts Sometime between 12 midnight and 2 a.m. of May 3, 1960, at the Apache Caf San Bernardino, California, an altercation occurred between plaintiff, Luis Perea Rivas, age 34, weight 215, a cook's helper, and defendant Arnulfo Ayala, age 70, weight 165, a retired Santa Fe railroad worker. While the broad outlines of what happened are not in dispute, the exact details of how the altercation started in the cafe and who the aggressor was after they left the cafe are in sharp conflict. Because where such conflict exists this court is bound by the evidence which supports the findings and judgment of the trial court, we shall so relate it. (Brewer v. Simpson, 53 Cal. 2d 567, 583 [1-2] [2 Cal. Rptr. 609, 349 P.2d 289].) About one year previously, Luis had been a tenant in a house belonging to Ayala and Luis had been evicted. Shortly thereafter, Luis and his uncle "Chevo" Rivas met Ayala returning home late at night in an intoxicated condition. The two Rivas attacked Ayala, knocked him to the ground and severely beat him. Some time before midnight of the night here in question, Ayala came to the cafe, sat on a stool at the bar about 5 feet from the door and next to Mary Bareta (a niece of Luis), ordering a Seven-Up for himself and a beer for Mary. Some time after midnight Luis came in and took *241 a seat at the bar several stools away and next to a Bobby Silva. A short time later Luis came close to Ayala, started a discussion involving "Chevo," and challenged Ayala to fight. Ayala refused. Luis kept repeating his challenge. The bartender ordered Luis to leave Ayala alone and finally ordered Luis to get out of the bar. Luis refused. Finally, Ayala left with Luis. As he walked out he saw a knife in Luis' hand. Outside, Luis and Ayala walked a few paces around the corner. Luis swung his knife at Ayala. Ayala had a small pocket-knife with a 2 or 2 1/2-inch blade which he evidently opened as they were walking. When Luis struck, Ayala struck back two or three times and cut Luis on the face and abdomen. All this took place in a few seconds or a minute. Luis walked away bleeding. Ayala did not follow him. Luis was taken to the hospital by others, for medical attention. Ayala had never before been in a knife fight. Peculiarly, there were at least four other persons in the bar well known to both parties. But the only witness called by either party was a taxi driver who saw the parties walk out together, saw waving arms for a few seconds but could not see who struck what blow, if any, saw blood running from Luis and called the police. He contributed nothing to the question of who the aggressor was. Judgment was rendered for defendant. Plaintiff appeals. Self-Defense Plaintiff first contends that as a matter of law defendant's actions cannot be justified as self-defense, citing as authority People v. Hinshaw, 194 Cal. 1 [227 P. 156]; Fraguglia v. Sala, 17 Cal. App. 2d 738 [62 P.2d 783]. [1] The quotation given by plaintiff from the Hinshaw case provides its own answer: " '... that self-defense is not available as a plea to a defendant who has sought to a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance, or fault, to create a real or apparent necessity for making a felonious assault.' " The court found orally that plaintiff was the aggressor and also found in its written findings "That at the time and place of the occurrence in question the defendant herein acted in proper and reasonable self defense and used no more force than was reasonably necessary to repel the assault committed upon him by the plaintiff." [2] The evidence factually supports both the oral statement of the trial court and its written finding. The Fraguglia *242 case involved a fight between two rubbish truck workers. The judgment there was reversed because there was no evidence that defendant was the aggressor in the sense of the rule as set forth in the Hinshaw case. Furthermore, the trial court may well have believed that defendant finally concluded that plaintiff would attack him in any event and that he would be at a disadvantage in the close quarters of the bar. Some of defendant's answers are inconsistent with this conclusion, but when the whole testimony is read together, with the defendant's lack of fluency and English understanding in mind, it becomes a possible conclusion. Plaintiff's continued insistence on fighting, his refusal to heed the orders of the bartender to leave defendant alone and get out, the fact that an open blade in plaintiff's hand was seen by defendant as they started out of the cafe, the fact that defendant had been previously attacked and inexcusably beaten by plaintiff and "Chevo," the fact that defendant obviously misunderstood the import of several questions, the answers that he was not "afraid" but felt it necessary to protect himself from a knife attack, plus the fact that defendant repeatedly asked plaintiff to leave defendant alone and to go away, all put together lend credence and support to such a belief. If such was the belief of the trial judge, it would render involuntary the willingness of defendant to remove the scene of the impending fight from the close quarters of the bar. In any event the evidence provided ample support for the court's finding. We find the case of Ballew v. Davis, 76 Cal. App. 2d 418 [173 P.2d 317], more nearly in point. There, a photographer was found by the court to have been threatening to strike defendant because defendant was obstructing the photographer's view. Defendant therein was held to be acting in self defense when he anticipated the photographer's blow. Mutual Consent to Combat [3] Plaintiff now contends, for the first time, that this was voluntary mutual combat and that self-defense may not be used as a defense in a damage action in case of voluntary mutual combat. But we need not examine this theory. It was not the theory upon which the case was pleaded or tried and was never suggested to the trial judge for his consideration at any time. [4] Theories never suggested to the trial judge, and which neither he nor the opposing party had any opportunity to consider at the trial level, are not *243 properly presented for the first time on appeal. (Cal. Rules of Court, rule 14 [fn. *]; Richard v. Richard, 123 Cal. App. 2d 900, 903 [7] [267 P.2d 867]; Estate of Bialy, 185 Cal. App. 2d 634, 638 [3] [8 Cal. Rptr. 663]; Estate of Sayegh, 118 Cal. App. 2d 327, 332 [4] [257 P.2d 995].) The judgment is affirmed. Griffin, P. J., and Coughlin, J., concurred. NOTES [fn. *] *. Formerly Rules on Appeal, rule 14.

CourtListenerOpinion

2024-06-11T07:23:54.605884

2013-10-30 08:36:18.486798+00

2207267

325 Mass. 475 (1950) 91 N.E.2d 345 PETER F. GALJAARD vs. ALVAN N. DAY & another. Supreme Judicial Court of Massachusetts, Middlesex. February 9, 1950. March 8, 1950. Present: QUA, C.J., LUMMUS, RONAN, SPALDING, & COUNIHAN, JJ. R.S. Marsh, (W.H. Macdonald with him,) for the plaintiff. W. Powers, Jr., for the defendants. LUMMUS, J. The plaintiff was a tenant at will of the defendants in a tenement on premises in Lexington owned by the defendants and "occupied" by the plaintiff and the defendants. On October 21, 1948, the defendants obtained judgment against him for possession in an action of summary process, but the issuance of execution was stayed from time to time until sometime in March, 1949. St. 1948, c. 2. St. 1949, c. 87. The plaintiff remained in possession of the tenement. On December 25, 1948, he fell on ice on a common walk on the premises. The ice resulted *476 from the act of the defendant Alvan N. Day in emptying on the walk water which then froze. The defendants were seasonably aware of the condition of the walk. The judge found that at the time of the fall the plaintiff was merely a tenant at sufferance to whom the defendants owed merely the duty of refraining from doing him wilful or wanton injury. He found for the defendants. The Appellate Division dismissed a report, and the plaintiff appealed to this court. At common law a person in the position of the plaintiff was merely a tenant at sufferance. Dennett v. Nesson, 244 Mass. 299. Margosian v. Markarian, 288 Mass. 197. Mescall v. Somerset Savings Bank, 305 Mass. 575, 577. "A tenant at sufferance is a bare licensee to whom the landlord owes merely the duty not wantonly nor wilfully to injure him." Margosian v. Markarian, 288 Mass. 197, 199. Carney v. Conveyancers Title Ins. & Mortgage Co. 309 Mass. 197, 200. We think that the rights of the plaintiff were made no greater by the recent statutes providing for stays of execution in cases of summary process. Such statutes do not extend the tenancy at will. On the contrary, they declare that the "tenancy has been terminated." G.L. (Ter. Ed.) c. 239, § 9. St. 1946, c. 43. St. 1947, c. 78. St. 1948, c. 2. St. 1949, c. 87. In Dennett v. Nesson, 244 Mass. 299, where after judgment of possession a stay of execution was granted under St. 1920, c. 577, it was held that the tenancy at will had ended, that no new tenancy at will arose, and that there existed only a tenancy at sufferance. In the present case wanton or reckless conduct is neither alleged nor proved. We find no error in dealing with the plaintiff's requests for rulings. Order dismissing report affirmed.

CourtListenerOpinion

2024-06-11T07:23:54.608248

2013-10-30 08:36:18.504838+00

2207272

79 A.2d 167 (1951) BARTLETT v. CHISHOLM et al. Supreme Judicial Court of Maine. March 14, 1951. James A. Connellan, Portland, for plaintiff. Benjamin L. Berman, and Berman & Berman, all of Lewiston, for defendants. Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ. WILLIAMSON, Justice. On exceptions by defendant, Richard A. Chisholm, to the acceptance of a referee's report. Plaintiff's action to recover a real estate broker's commission was referred under rule of court with the right to except as to matters of law. The referee found for the plaintiff. The first objection sharply raises a jurisdictional question. The objection reads: "1st. The Referee erred in ruling that the declaration could be regarded as having been amended, and further in ruling that the Plaintiff's action was not barred because there was no allegation in Plaintiff's pleadings that at the time of the transaction involved he was a duly licensed and qualified real estate broker under the Laws of Maine." The issue is whether the referee could properly find for the plaintiff in the absence of an allegation in the declaration that the plaintiff was a duly licensed real estate broker at the time the alleged cause of action arose under the provisions of R.S., Ch. 75, Sec. 7, relating to the Maine Real Estate Commission, which reads so far as we are here concerned as follows: "No person, partnership, or corporation engaged in the business or acting in the capacity of a real estate broker or a real *168 estate salesman within this state shall bring or maintain any action in the courts of this state for the collection of compensation for any services performed as a real estate broker or real estate salesman without alleging and proving that such person, partnership, or corporation was a duly licensed real estate broker or real estate salesman at the time the alleged cause of action arose." There is no dispute about the facts on the point at issue. The bill of exceptions seen and agreed to by the plaintiff reads as follows: "Plaintiff's writ and declaration failed to allege that Plaintiff was a duly licensed and qualified real estate broker under the Laws of Maine. The case was tried without any objection being raised to such defect or such insufficiency. The Referee found and ruled that since amendments could have been allowed, he will regard the writ and declaration as though they had been properly amended." The position of the referee appears from his report: "The action is brought in assumpsit on an account annexed and the general money counts, and issue is joined on a plea of the general issue without brief statement. The case was tried without objection being raised as to any defects in or the sufficiency of the writ and declaration. If objection had been made, any apparent defects in pleading were amendable. Jones v. Briggs, 125 Me. 265 [132 A. 817]; Mansfield v. Goodhue, [Me.], 53 A.2d 264. Amendments could have been allowed as provided in R.S., Chap. 100, Sec. 95. See Benson v. [Inhabitants of Town of] Newfield, 136 Me. 23, 33 [1 A.2d 227]." On direct examination the plaintiff testified: "Q. And are you a licensed real estate broker? A. Yes." On cross examination the critical fact of a license at the time the alleged cause of action arose in March 1949 was brought out from the plaintiff as follows: "Q. How long have you been a real estate broker? A. Well, now, of that I am not absolutely positive but I think it is four years I have had a broker's license and either one or two years as a salesman of real estate." The argument of the defendant that "there was no understanding that plaintiff was a licensed broker" or in other words that the case was not tried on the theory that the plaintiff had the required license is without merit. Proof of the fact was made without objection and the fact served no useful purpose except to establish a statutory requirement. It is the allegation, not the proof, which is defective. This is the third case to come before us in which a real estate broker has failed to make the allegation required by statute. Gerstian v. Tibbetts, 142 Me. 215, 49 A.2d 227, arose upon exceptions to a nonsuit granted upon the merits. The Court overruled the exceptions both on the merits and for lack of the allegation. The Court said, 142 Me., at page 220, 49 A.2d at page 229: "If the fact that the plaintiff had a license is considered proved, it is not alleged. The very jurisdiction of the Court depends on both allegation and proof." In Mansfield v. Goodhue, 142 Me. 380, 53 A.2d 264, upon the sustaining of a demurrer, the defect in the allegation was cured by amendment. A second demurrer by the defendant on the ground that the defect was not amendable was overruled. Our Court in sustaining the decision said on page 382 of 142 Me., on page 265 of 53 A.2d: "Assuming that such allegation does involve the right of the court to consider the case, yet there is no reason why the failure to allege such fact may not be cured by amendment. It may be true that a court without jurisdiction has no authority to allow an amendment. Yet if a court has jurisdiction of the subject matter, it may in such a case as this allow an amendment to perfect the jurisdiction on the record." The Gerstian and Mansfield cases stand for the principle that the allegation required by statute must appear of record. There has been no curative amendment in the case at bar. The pleadings are fatally defective, and hence the exceptions must be sustained. It is urged that the pleadings are to be regarded as though properly amended. No *169 objection was raised to the defect in or sufficiency of the pleadings at the trial before the referee. An amendment could have been, and no doubt would have been allowed, had the procedures required by R.S., Ch. 100, Sec. 95, relating to amendments in referred cases, been followed. See Ford v. Inhabitants of Town of Whitehead, 137 Me. 125, 15 A.2d 857, decided shortly before the statute was first enacted in 1941. Our attention is directed to Jones v. Briggs, 125 Me. 265, 132 A. 817, and Benson v. Inhabitants of Town of Newfield, 136 Me. 23 at page 33, 1 A.2d 227 which illustrate the cure of mere defects in pleadings by verdict and the treatment of pleadings on an "as if amended" basis when variance appears between allegation and proof. See also Clapp v. Cumberland County Power & Light Co., 121 Me. 356 at page 359, 117 A. 307; Cyr v. Landry, 114 Me. 188 at page 196, 95 A. 883; Wyman v. American Shoe Finding Co., 106 Me. 263, 76 A. 483. Such cases, however, do not touch upon the situation when jurisdiction is at stake. The Court did not consider the "as if amended" rule applicable in the Gerstian case, supra, although no objection to the pleadings appears to have been raised by counsel at any stage of the case. In the Jones case, supra, the Court said on page 266 of 125 Me., on page 818 of 132 A.: "An action at law is not to be dismissed for mere defects in pleading that are amendable or may be cured by verdict, if it appears that the court has jurisdiction and the plaintiff has stated a good cause of action." In our view the allegation required by the statute must be made of record in fact. The statute does not read that on proof of the license in a case fairly tried and without surprise the allegation may be considered as if in fact made upon the record. Such a construction would fail to give effect to the meaning and the intent of the statute. We may regret that the decision of the referee cannot be considered on the merits, but must be set aside for lack of a few appropriate words in the pleadings. The law here applicable, however, is found in the Act of Legislature which defined and limited the plaintiff's right to bring and maintain his action. Neither the parties nor the Court can waive its provisions. It is not necessary that we pass upon the remaining objections. The entry will be: Exceptions sustained.

CourtListenerOpinion

2024-06-11T07:23:54.612086

2013-10-30 08:36:18.5427+00

2207273

183 Mich. App. 348 (1990) 454 N.W.2d 209 PEOPLE v. TOOHEY Docket No. 111717. Michigan Court of Appeals. Decided April 16, 1990. Frank J. Kelley, Attorney General, William F. Delhey, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people. Frank K. Rhodes, III, for defendant. Before: HOOD, P.J., and MAHER and CYNAR, JJ. MAHER, J. Following a bench trial, defendant was convicted of possession of more than 50 grams *350 but less than 225 grams of a mixture containing a controlled substance (cocaine), with intent to deliver, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a) (iii), and operating a vehicle while under the influence of intoxicating liquor (OUIL), MCL 257.625(1); MSA 9.2325(1). Defendant received ninety days imprisonment for the OUIL conviction and the statutory minimum ten years imprisonment for the cocaine-related conviction. In this appeal as of right defendant asserts the trial court erroneously denied his motion to suppress evidence of cocaine seized during an inventory search of his vehicle. We affirm defendant's conviction for OUIL, but reverse the cocaine-related conviction. I The primary issue in this case concerns the admissibility of evidence obtained during an inventory search of defendant's automobile. After defendant was arrested for OUIL, the police impounded his vehicle and conducted a routine inventory search of its contents. During the search, the police discovered a package of cocaine beneath the driver's seat, plus seven more bags of cocaine contained in a golf bag in the trunk. The total amount of cocaine discovered was more than 50 grams but less than 225 grams. A suppression hearing was held on March 25, 1988. The testimony at the hearing established that on July 8, 1987, between 1:00 and 1:30 A.M., defendant and a friend, John Albert, left an Ann Arbor bar in defendant's vehicle, with defendant driving. Thomas Tanner, an Ann Arbor police officer, testified that he stopped defendant after observing the vehicle cross the center line of Packard Road. After noticing the police car, defendant pulled off onto a residential street where he legally *351 parked his car along the curb. Tanner then performed some field sobriety tests on defendant, after which he made his decision to arrest defendant for OUIL. Albert then asked Officer Tanner if he could take custody of the car. Although Tanner did not perform any sobriety tests on Albert, Tanner would not release the car to Albert because defendant indicated Albert had also been drinking and because Tanner noticed that Albert appeared unsteady, smelled of alcohol and had slurred speech. Albert was given the option of either walking away or having a cab called. Albert then went back and conferred with defendant in the police car. After Albert told defendant that the police officer would not let him take the car, defendant asked Albert to arrange for defendant's wife or attorney to pick up the car. When Albert spoke to Officer Tanner about this request the officer told him the car was being impounded, and it was now their car. Albert eventually left on foot. Shortly thereafter, the police conducted their inventory search of the car and the cocaine was discovered. The sole reason given at the suppression hearing for the impoundment of defendant's vehicle was that impoundment was authorized under Ann Arbor Ordinances, 10:139, which provided: 1. A police officer may immediately remove and impound a vehicle in any of the following situations. * * * i. The driver of a vehicle is taken into custody by the Police Department and such vehicle would thereby be left unattended. Once impounded, standard departmental policy required a police officer to thoroughly search the vehicle to determine what, if any, articles of value were present. *352 Following the suppression hearing, the trial court found that the search of defendant's vehicle was valid and therefore ruled the cocaine was admissible. On May 31, 1988, the day scheduled for trial, defendant waived his right to a jury trial and it was agreed that the record of the suppression hearing plus certain other stipulated facts would serve as the basis for the trial record. Thereafter, the court again upheld the validity of the inventory search and found defendant guilty of possession of cocaine with intent to deliver and OUIL. II Defendant argues on appeal that the trial court erred in failing to suppress the cocaine because the impoundment of his vehicle violated his Fourth Amendment rights as an unreasonable search and seizure. A trial court's ruling at a suppression hearing is reviewed under the clearly erroneous standard. The court's decision will be affirmed unless, upon a review of the record, this Court is left with a definite and firm conviction that a mistake was made. People v Burrell, 417 Mich. 439, 448; 339 NW2d 403 (1983). Upon our review of the record, we agree the trial court clearly erred in denying defendant's motion to suppress the cocaine. The Fourth Amendment to the United States Constitution, made applicable to the states by way of the Fourteenth Amendment, Mapp v Ohio, 367 U.S. 643; 81 S. Ct. 1684; 6 L. Ed. 2d 1081 (1961), guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." US Const, Am IV. A search and seizure without a warrant is unreasonable per se and violates the *353 Fourth Amendment of the United States Constitution unless shown to be within one of the exceptions to the rule. People v Reed, 393 Mich. 342, 362; 224 NW2d 867 (1975). The burden is always on the state to show an exception exists. Id.; Coolidge v New Hampshire, 403 U.S. 443; 91 S. Ct. 2022; 29 L. Ed. 2d 564 (1971). The leading case concerning the validity of inventory searches of impounded automobiles is South Dakota v Opperman, 428 U.S. 364; 96 S. Ct. 3092; 49 L. Ed. 2d 1000 (1976). In that case, the United States Supreme Court upheld an inventory search of a lawfully impounded vehicle. The search in that case was prompted by the presence, in plain view, of a number of valuables inside the car. The Court looked at all the facts and circumstances in the case and, after noting that "police intrusions into automobiles impounded or otherwise in lawful police custody" have been consistently sustained "where the process is aimed at securing or protecting the car and its contents," id. at 373, determined that an inventory search performed as a caretaking function pursuant to standard police procedure did not constitute an unreasonable search and seizure under the Fourth Amendment. Id. at 375-376 (emphasis added). In Opperman, the vehicle had been impounded for violation of a parking ordinance and the validity of the initial impoundment was not at issue. However, Opperman did recognize the authority of the police to remove and impound vehicles in the interest of public safety and as part of a "community caretaking function." Id. at 368. Such authority, however, is not absolute. According to Opperman, the validity of a police intrusion must be examined by analyzing the reasonableness of the seizure under all the circumstances and each case must be decided on its own facts. Id. at 372-373. *354 Opperman recognized various situations in which the impoundment and removal of a vehicle will generally be upheld. Such situations include instances where removal is required to permit the uninterrupted flow of traffic or to preserve evidence, instances where the vehicle is disabled or damaged, and instances where a parking ordinance is violated, thereby jeopardizing both public safety and efficient movement of vehicular traffic. Id. at 368-369. The Opperman Court recognized that, once a vehicle is impounded, an inventory search pursuant to standard police procedure will generally be upheld where its purpose is to (1) protect the owner's property while the vehicle remains in police custody, (2) protect the police against claims or disputes over lost or stolen property, and (3) protect the police from potential danger. Id. at 369. Although defendant raises several issues concerning both the initial impoundment and the subsequent inventory search, we agree the dispositive issue in this case involves the legitimacy of the initial impoundment. In People v Krezen, 427 Mich. 681, 685-686; 397 NW2d 803 (1986), our Supreme Court applied the Opperman rationale in deciding just such a case. In that case, the defendant was arrested at an airport after picking up a package containing cocaine. After the arrest, the authorities impounded defendant's automobile, which was lawfully parked in an air freight parking lot. A brown vial containing cocaine residue and other paraphernalia were discovered in defendant's purse, which was lying visibly on the front seat of the car. In a plurality opinion, the Court upheld the admission of the cocaine found in the purse. Writing for the majority, Justice BOYLE (with Justices RILEY and BRICKLEY concurring) followed *355 Opperman, supra, and indicated that the reasonableness of the impoundment was to be determined from the particular facts of the case. Id. at 686. In her majority opinion, Justice BOYLE noted that the possibility of theft or vandalism has been recognized as a valid reason for impounding a car upon the arrest of the driver, id. at 688, and ultimately upheld the impoundment as being a reasonable caretaking function instituted according to standard departmental policy. Id. at 686-689. In a dissenting opinion, however, Justice LEVIN (with Justices CAVANAGH and ARCHER concurring) did not believe that an impoundment was justified merely to avoid the possibility of theft. He agreed with this Court's statement that the possibility of claims against the police for loss or damages does not compare in importance with the preservation of basic constitutional guarantees.[1]Id. at 703-705. In the swing vote, Justice WILLIAMS likewise indicated he was not persuaded that the impoundment was reasonable. However, he agreed the police could not have reasonably left the purse in plain view and rationalized that, because returning the purse to defendant would have inevitably led to the discovery of the cocaine, its admission should be upheld. Id. at 697-698. In applying the principles of Opperman and Krezen, we begin our analysis of the case at hand with the initial recognition that the burden was on the police to establish the reasonableness of the impoundment when considering the circumstances of the case. Having carefully reviewed the record, we do not believe this burden was met. The evidence in this case established that the vehicle was lawfully parked along the curb of a *356 residential street. There was no evidence that the vehicle constituted a safety hazard or otherwise impeded the flow of traffic. Furthermore, there was no indication that it was necessary to impound the vehicle to protect the police from potential danger or that the impoundment was otherwise necessary as an incident to defendant's arrest. Finally, there was no evidence that any items of value were visibly present in the car. The trial court, after indicating it had reviewed Krezen, stated the following as its basis for denying defendant's motion to suppress: We have had so many suits in this county against police officers and other persons where people claim they lost things in the vehicle, the officer stole something from the vehicle or things are missing. So this Court finds that the officer did act reasonably when he decided that he wasn't going to leave the vehicle in the street and he was going to impound it and he felt that he should inventory what was in it so that somebody couldn't claim that he had stolen something. I am not suggesting that the Defendant would have claimed this. But the officer doesn't know that, the officer has to act with what he has. It is clear that the trial court relied on the reasoning of Krezen and determined that concern over potential liability for missing or stolen items was sufficient justification for the impoundment. However, the basis for the trial court's conclusion is not supported by the record. The police officer did not give as a reason for impoundment concern for either the safety of the vehicle or its contents, nor was there any evidence presented establishing the possibility of theft or vandalism as a reasonable concern. Instead, the only reason given for the impoundment was that it was authorized by local *357 ordinance in a situation where a driver is taken into custody and the vehicle would thereby be left unattended. Although Krezen recognized the lawful impoundment of a vehicle as a reasonable caretaking function, we do not believe that Krezen stands for the proposition that an impoundment will be upheld as a reasonable caretaking function in the absence of evidence creating a reasonable concern for the actual safety of the vehicle or its contents. Indeed, an examination of Krezen clearly reveals that the decisive factor in that case was the presence of defendant's purse in plain view on the front seat of the car. In her majority opinion, Justice Boyle was very careful to indicate that the decision upholding the reasonableness of the impoundment was controlled by the particular facts of the case. Krezen, supra at 686 and 697. She expressly indicated that a departmental policy requiring impoundment upon arrest, regardless of the surrounding factual circumstances, may well involve situations where an impoundment would be violative of the Fourth Amendment as an unreasonable seizure. Id. at 685-686. Justice Levin agreed with this proposition in his dissent, stating, "[courts] generally have concluded that to justify impoundment something more must be shown than simply that the vehicle would otherwise be left unattended." Id. at 708. The "something more" that existed in Krezen was the presence of a purse in plain view on the front seat of the car. In our view, the impoundment of defendant's vehicle would have been found unreasonable under Krezen. We reach this conclusion based on the fact that while Krezen contained specific facts establishing a reasonable concern for the safety of the vehicle's contents, there were no such facts in this case. Further, in spite of Krezen's more compelling *358 facts for upholding the validity of the impoundment, only three of the seven justices were able to find the seizure to be reasonable. Because the only reason given for the impoundment in this case was the existence of the local ordinance, and because there were no other facts presented that would otherwise justify the impoundment of the vehicle as being reasonable under the circumstances, we find that the police did not sustain their burden in establishing the reasonableness of the seizure. Further, we believe that, by relying upon the possibility of theft or vandalism as its basis for finding the impoundment to be proper, the trial court clearly erred when this concern was neither expressed at the hearing nor supported by the record. Inasmuch as the cocaine would not have been discovered absent the impoundment, its admission should have been suppressed. Moreover, because defendant could not have been convicted for possession of cocaine with intent to deliver had evidence of the cocaine not been admitted, this conviction is reversed and the charge shall be dismissed. With respect to defendant's conviction for OUIL, however, the improper admission of the cocaine was harmless error. Therefore, the OUIL conviction is affirmed. III Finally, defendant raises various sentencing issues. Defendant initially claims the trial court erred by failing to give retroactive effect to the recent amendments to MCL 333.7401; MSA 14.15(7401). These amendments reduce the statutory minimum sentence for defendant's cocaine conviction to five years and also allow the sentencing court to depart *359 from the minimum sentence requirement where there exist substantial and compelling reasons to do so. However, in light of our reversal of defendant's conviction under this statute, this issue has been rendered moot. In any event, we agree with the prior decisions of this Court holding that the amendments to the statute are not retroactive. People v Becoats, 181 Mich. App. 722; 449 NW2d 687 (1989); People v Jackson, 179 Mich. App. 344; 445 NW2d 513 (1989). Lastly, we find no merit to defendant's argument that he was deprived of his right of allocution at sentencing. The court twice offered him an opportunity to speak and he declined each time. Additionally, the record does not support defendant's contention that his opportunity to allocute was rendered meaningless because the court had already determined the sentence it was going to impose during an in-chambers conference. See People v McNeal, 150 Mich. App. 85; 389 NW2d 708 (1985). Therefore, defendant's sentence for the OUIL conviction is affirmed. Affirmed in part and reversed in part. NOTES [1] See People v Krezen, 143 Mich. App. 34, 40; 371 NW2d 882 (1985).

CourtListenerOpinion

2024-06-11T07:23:54.618509

2013-10-30 08:36:18.546279+00

9736779

OPINION NORTON, Judge. Appellant Theresa Ann McColley Schmitz (“McColley”) seeks review of the trial court’s denial of her motion for a new trial in a paternity action. After a jury returned a verdict in favor of respondent Mark Stransky a/k/a Mark Rand (“Stran-sky”), McColley moved for a new trial alleging as error three evidentiary rulings. Respondent Stransky filed a notice of review seeking review of orders which require him to reimburse the county for attorney fees expended on his behalf and which refuse to appoint counsel to represent him on this appeal. Stransky now argues that Minn.Stat. § 257.69 is unconstitutional because it violates equal protection by conferring privileges upon custodial parents during paternity actions and that the statute violates the Civil Rights Act of 1964 and the Minnesota Human Rights Act by favoring custodial parents, who are predominately female. Stransky argues that the trial court erred both in requiring him to reimburse Rice County for attorney fees incurred after he was employed and in failing to appoint paid counsel to represent him on this appeal. Because Stransky challenges the constitutionality of statutes, the State of Minnesota intervenes to defend those statutes. We reverse. FACTS McColley alleges that she and Stransky began a sexual relationship in approximately March of 1981. She lived with Stransky in his home during August and September of 1981, and then moved out. Stransky and McColley saw less of one another after she moved out. In early November of 1981, McColley’s physician performed a pregnancy test whieh was returned negative. In early December 1981, a second test came back positive. A later ultrasound examination placed the date of conception at approximately October 15th. Expert testimony later placed conception between October 20 and November 1, 1981. The full-term child was born July 7, 1982. This paternity action was commenced in May of 1984. McColley had undergone blood testing in an unrelated paternity action in June of 1982 and she and her new child gave samples for this action in 1984. Blood testing performed on Stransky resulted in a 98.082% likelihood of paternity. McColley had intercourse with two other men during *458the probable period of conception, once on October 29, 1981 and once on October 31, 1981. She claims that her sexual relationship with Stransky was continuing at a rate of once or twice a week until October 22, 1981, which she says is the last time that she and Stransky had intercourse. Stran-sky denies that he ever had a sexual relationship with McColley. Blood tests performed on the other two men exclude both as potential fathers. McColley insists that these three men were the only men with whom she had sexual intercourse during the likely conception time. At the trial, the main issue for the jury was whether to believe McColley and the blood test or Stransky. McColley sought to introduce Exhibit 9, the child’s baby book, in which she had recorded visits and gifts to the child from Stransky’s mother and sister. She also sought to introduce Exhibit 10, a photograph of the new baby sleeping under a crocheted afghan presented by Stransky’s mother. The trial court excluded Exhibits 9 and 10 on the grounds that they were not relevant. McColley challenges the exclusion. In support of her allegation that she had been involved in a sexual relationship with Stransky, McColley testified that she had seen a tattoo on his abdomen below the belt line. Stransky made an offer of proof, to pull down his pants, before the jury. The jury was then removed and Stransky, his attorney, McColley’s attorney and the judge retired to chambers. Upon their return, the parties stipulated that Stransky did not presently have a tattoo in that location. McColley challenges the offer of proof as an admission of demonstrative evidence which does not tend to support conditions existing at the time relevant to the proceeding. McColley sought to impeach Stransky’s testimony through evidence of two convictions, one for aggravated robbery and theft in 1979 and another for burglary in 1982. Stransky was incarcerated after each conviction. The trial court excluded this evidence as prejudicial and stale; McColley challenges that ruling. This action was brought by the Rice County Attorney’s office on McColley’s behalf. Stransky was unemployed when the action commenced. Because he was indigent, a court-appointed and paid attorney represented him. Stransky later became employed and the trial court determined that from September 1, 1986 he was responsible to reimburse the county for the attorney fees it incurred on his behalf. Stransky was also ordered to pay temporary child support in the amount of $115 per month, pending resolution. Those funds were held in escrow by the County. When the jury returned a verdict in favor of Stransky, the court ordered the es-crowed support refunded, minus the amount owed to reimburse attorney fees and costs. Stransky argues that it is unconstitutional for McColley to receive free legal representation while he is required to pay for his advocate. ISSUES 1. Did the trial court err in refusing to admit Exhibits 9 and 10? 2. Did the trial court err in permitting the offer of proof to be made before the jury? 3. Did the trial court err in refusing to permit evidence of prior convictions for the purpose of impeachment? 4. Does Minn.Stat. § 257.69 unconstitutionally deny noncustodial parents equal protection of laws? 5. Does Minn.Stat. § 257.69 violate Minn.Stat. § 363.03, subd. 4 and the Civil Rights Act of 1964? 6. Did the trial court err in requiring Stransky to reimburse the county his attorney fees? 7. Did the trial court err in not appointing counsel to represent Stransky on appeal? ANALYSIS I. McColley challenges the trial court’s refusal to admit Exhibits 9 and 10. The trial court’s ruling on evidentiary mat*459ters must be sustained in the absence of a clear abuse of discretion. State v. Brouillette, 286 N.W.2d 702, 707 (Minn.1979). The trial court excluded Exhibits 9 and 10 on the grounds that gifts from Stransky’s mother would not be probative of whether Stransky is the father of the child. The trial court went on to state that even if the evidence were probative, it was too prejudicial and would be excluded under Minn.R. Evid. 403. The trial court reasoned that the evidence was irrelevant because it could tend to prove only what Stransky’s mother believed or wished and could not tend to prove whether her son was in fact the father. The trial court was well within its discretion in excluding this evidence. II. Stransky made an offer of proof that he did not have a tattoo which McColley had described and alleged he had. Her allegation was apparently intended to corroborate her assertion that she had been intimate with Stransky. The offer was made in response to McColley’s assertion. McColley argues that the trial court erred in denying her motion for a new trial which was based upon the offer of proof having been made in front of the jury. Offers of proof are to be made outside the hearing of the jury. Minn.R. Evid. 103(c). However, McColley testified that she had seen a particular tattoo on Stransky in 1981. Stransky testified that he did not have such a tattoo, that he had never had such a tattoo and that he had never had a tattoo removed. The record discloses that as soon as Stransky’s attorney offered to have Stransky remove his pants, McColley’s attorney objected. The jury was removed; the parties retired to chambers, Stransky was examined, and the parties returned to stipulate before the jury that Stransky did not presently have a tattoo. McColley objects to the offer of proof (that Stransky would pull down his pants in court) on the basis that it is inadmissible to show whether he had a tattoo in 1981. Because McColley first alleged the tattoo had existed, and then stipulated that no tattoo presently existed, the trial court did not abuse its discretion in making this evidentiary ruling. III. McColley sought to impeach Stran-sky’s testimony by introducing evidence of Stransky’s prior criminal convictions. As he did in the trial court, Stransky attempts to minimize the importance of credibility in this case by instead criticizing the validity of the blood tests which show he is very probably the father. Although no transcript of the video deposition was provided, the expert through whom those tests were introduced, Dr. Polesky, gave uncontradict-ed testimony indicating that the blood tests were not damaged or invalid in any way. Stransky’s allegations that the blood was damaged in transit, or that McColley’s sample was corrupted with genetic material from her unborn child flatly contradict the whole of the expert testimony in the record. Dr. Polesky explained that the blood samples are placed in test tubes containing preservatives and are inspected before testing. He testified that no damage to these particular samples was observed. He also testified that a child younger than six months may carry some of its mother’s genetic markers; not that a pregnant mother’s blood contains markers from her unborn child. In mischaracterizing the evidence, Stransky seeks to avoid that the crux of this case is in the question of his credibility. Because the blood tests were not invalid, the central issue in this case is not simply paternity; the focal point becomes the credibility of the witness who denies it. McColley sought to introduce evidence of two prior crimes: Stransky pleaded guilty to simple robbery on April 25, 1979 and to burglary on October 13, 1982. The trial court granted Stransky’s motion in limine, relying on Minn.R.Evid. 609 and State v. Jones, 271 N.W.2d 534 (Minn.1978). The trial court held that the probative value of the evidence did not outweigh its prejudicial effect and that the convictions were stale. With regard to staleness, *460the applicable rule provides in pertinent part: (b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. * * * Minn.R.Evid. 609 (emphasis added). The summons and complaint in this action were served in May of 1984, and trial began on April 18, 1989. Stransky’s first conviction was obtained on April 25, 1979 and Stransky was sentenced to one year in jail. The evidence does not disclose the actual release date. The second conviction on October 13, 1982 resulted in a sentence of eighteen months, with credit for time served. Again, the record does not reveal his actual release date. Because the rule counts time from the date of conviction or the date of release, whichever is the later date, the trial court erred in counting instead from the date of the convictions, which was the earlier date. The convictions both, therefore, are admissible under Minn.R.Evid. 609(b). The error is compounded by the trial court’s analysis of the Jones factors. They are: (1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue. State v. Jones, 271 N.W.2d at 538. In Jones, a criminal case, the supreme court noted that the rules of evidence were not in effect at the time of Jones’ trial. In the civil case here, the rules of evidence apply and require admission of the impeachment evidence. The applicable rule provides in pertinent part: (a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if * * * the crime (1) was punishable by * * * imprisonment in excess of one year * * * and the court determines that the probative value * * * outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment. Minn.R.Evid. 609 (emphasis added). This rule contains a bright line test which requires admission if the crimes involved dishonesty, without regard to the weighing test of prejudice against probative value contained in part (a)(1). Although the trial court erred in applying the Jones factors to weigh prejudice against probity, it found correctly that the convictions were for crimes of dishonesty. See State v. Stanifer, 382 N.W.2d 213, 218 (Minn.Ct.App.1986) (robbery is a crime of dishonesty under rule 609(a)). The trial court erred in determining that although Stransky’s crimes involved dishonesty, the prejudicial effect outweighed the probative value of admitting this evidence. Because the rule requires admission of prior crimes evidence if the crime involves dishonesty, the trial court abused its discretion. The convictions are admissible to impeach Stransky’s credibility without regard to any prejudicial effect. Minn.R.Evid. 609(a)(2). The crimes were not stale. Minn.R.Evid. 609(b). Therefore, the trial court’s remaining analysis is unnecessary and erroneous. Stransky now argues that a recent proposed amendment to Minn.R.Evid. 609 demonstrates that his convictions should be inadmissible against him. He is mistaken. Prior crimes evidence permits the jury to see the “whole person.” State v. Heidelberger, 353 N.W.2d 582, 589 (Minn.Ct.App.1984), pet. for rev. denied (Minn. Sept. 12, 1984) (citing Brouillette, 286 N.W.2d at 707). Because the testimony of the two key witnesses was diametrically opposed, their credibility was critical when the jury was asked to choose. McColley was enti-*461tied to have the jury informed about the background of the person whose testimony it was asked to believe. The exclusion of this evidence on the crucial question of Stransky’s credibility is an error neither insignificant nor harmless. For this reason, we disagree with the dissent. IV. Stransky questions the constitutionality of Minn.Stat. § 257.69 (1988), which permits governmental legal representation of a custodial parent in paternity proceedings. He contends this statute irrationally favors custodial parents and denies equal protection to others. Statutes benefit from a presumption of constitutionality. Minn.Stat. § 645.17(3) (1988). Stransky must demonstrate compelling evidence in order to rebut this presumption. Equal protection requires that persons similarly situated be treated alike. City of Cleburn v. Cleburn Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3253, 87 L.Ed.2d 313 (1985). Different treatment passes constitutional muster where the distinction in question is rationally based upon a legitimate governmental purpose. See Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). The criteria against which the statute in question must be measured are whether 1) the classification uniformly applies to those who are similarly situated, 2) the distinctions are genuine and provide a reasonable basis to justify different legislation, and 3) the classification is relevant to the purpose of the law. Schwartz v. Talmo, 295 Minn. 356, 362, 205 N.W.2d 318, 322 (1973), appeal dismissed 414 U.S. 803, 94 S.Ct. 130, 38 L.Ed.2d 39 (1974). The purpose of a paternity proceeding under Minn.Stat. §§ 257.51-.74 is to establish parentage and provide support for the child. Because the custodial parent has already acknowledged parenthood and is providing support, the distinction between custodial parents and others is genuine and provides a reasonable basis to justify different treatment. This distinction between acknowledged parents who are providing support and alleged parents who are not providing support is relevant to the purpose of the law. Stransky argues that all parties to a paternity action are similarly situated and should be entitled to free legal services in the interest of determining parentage and support issues. We do not agree that an alleged father who denies paternity is similarly situated to a custodial parent who is providing support. Stran-sky’s argument that the government is obligated to provide him a legal representative because it has provided one to McCol-ley is meritless. Stransky has failed to demonstrate that the statute unconstitutionally violates his equal protection of laws. V. Stransky also alleges that Minn. Stat. § 257.69 violates the Minnesota Human Rights Act, specifically Minn.Stat. § 363.03, subd. 4, and the Civil Rights Act of 1964. Stransky’s argument appears directed at the fact that many of the custodial parents who may receive benefits are women. Minn.Stat. § 257.69 benefits custodial parents, regardless of gender. Stransky is ineligible for court-appointed and paid legal representation not because he is male, but because he is not a custodial parent. VI. Stransky alleges the trial court erred in ordering him to reimburse Rice County for attorney fees incurred by it since September 1, 1986. When this action began in 1984, Stransky had been recently released from prison and was unemployed. Minn.Stat. § 257.69, the constitutionality of which we have just upheld against Stran-sky’s challenge, governs appointment of counsel in paternity actions. The statute states in pertinent part: “The court shall appoint counsel for a party who is unable to pay timely for counsel” in paternity actions. Minn.Stat. § 257.69, subd. (1) (1988). A public defender was appointed at county expense and Stransky was ordered to inform the county when he became employed *462and again had income. In 1986 the court learned that Stransky had become employed and it ordered him to pay attorney fees from September 1, 1986 forward. Stransky argues that the statute does not require complete reimbursement of attorney fees. He asserts that the trial court should have entered specific findings regarding his ability to pay and that if he is not capable of repaying in a reasonable period, such as a year, the fees should be forgiven. The statute states in relevant part that “the court shall require a party to pay part of the fees of court-appointed counsel according to the party’s ability to pay * * Minn.Stat. § 257.69, subd. 2 (emphasis added). There is absolutely no authority for the proposition that if Stran-sky delays payment, he then should not be required to reimburse the county. Rather, after Stransky became employed, the court found that he was no longer entitled to court-appointed counsel. The trial court did not err in its application of this statute to Stransky. VII. Stransky also argues that the trial court erred in failing to appoint counsel to represent him on this appeal. Stransky argues that the court applied the wrong standard in refusing him court-appointed appellate counsel. As noted above, the trial court found that Stransky was “indigent within the meaning of Minn.Stat. § 257.69, subd. 1.” The statute does not contain the word ‘indigent.’ The correct language, as discussed above, is “unable to pay timely.” However, the case upon which Stransky relies, Hepfel v. Bashaw, 279 N.W.2d 342 (Minn.1979), was decided before the present statute was enacted. Similarly, Stransky relies upon the model Uniform Parentage Act, although the Minnesota Legislature adopted a revised version in 1980. Hepfel and the UPA are unnecessary to resolution of this problem. Minn.Stat. § 257.69 does not refer specifically to appellate counsel. This statute orders court-appointed counsel for those ‘unable to pay timely’ which was Stransky’s situation when the action began. When Stransky became employed, the trial court ordered him to take responsibility for his legal fees. The trial court did not err in refusing to appoint counsel for Stransky in this appeal. DECISION The trial court abused its discretion in refusing to permit prior crimes evidence for impeachment of Stransky’s testimony. McColley is entitled to a new trial. The constitutionality of the statute in question is affirmed. Stransky is not entitled to court-appointed counsel and must reimburse the county for the expenses it has incurred on his behalf. Reversed.

CourtListenerOpinion

2024-06-11T07:23:54.622762

2023-08-26 19:06:27.557448+00

2207258

208 Cal. App. 2d 313 (1962) THE PEOPLE, Plaintiff and Respondent, v. VINCENT LUJAN ORTIZ, Defendant and Appellant. Crim. No. 8315. California Court of Appeals. Second Dist., Div. Four. Oct. 9, 1962. Vincent Lujan Ortiz, in pro. per., for Defendant and Appellant. Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Jack K. Weber, Deputy Attorney General, for Plaintiff and Respondent. *314 JEFFERSON, J. In an information filed by the District Attorney of Los Angeles County, defendant and his wife (not appealing here) were jointly charged with a violation of section 11500 of the Health and Safety Code, possession of heroin. Three prior felony convictions were alleged as to defendant which were initially denied but later, out of the presence of the jury, admitted to be true. Defendant entered a plea of not guilty. After a jury trial defendant was found guilty as charged. Motion for a new trial and probation were denied, and defendant was sentenced to state prison for the term prescribed by law. Defendant applied to this court for appointment of counsel to assist him on appeal. This court, having made an independent investigation of the record and having determined that it would be neither advantageous to defendant nor helpful to this court to have counsel appointed, denied the application, whereupon defendant prosecutes this appeal in propria persona. This is an appeal from the judgment and order denying motion for new trial. Harry E. Dorrell, a police officer assigned to the narcotics division, testified that he had known defendant for about a year before the arrest. During that time he had received information from various sources that defendant and his wife were selling and using narcotics. A day or two before the arrest he had recived information that they had 22 ounces of heroin in their possession. Defendant and his wife were staying at a motel in the City of Los Angeles. Officer Dorrell, accompanied by a fellow officer, went to the motel and showed photographs of defendant and his wife to the motel manager who admitted that the same persons were occupying a room in the motel. Defendant and his wife were not in at the time, and the manager permitted the officers to use a vacant room next door to the unit occupied by defendant. The officers were in the motel room looking out the window when they first observed defendant and his wife in the motel parking lot. As they were walking to their motel unit, defendant and his wife were stopped by the officers who identified themselves. Defendant's wife was asked if she was still using narcotics, and she replied that she was. Defendant was also asked if he was still using narcotics, and he answered that he was. The officers observed what appeared to be fresh hypodermic needle marks on defendant's arm, and on the hands and wrists of his wife. The officers asked defendant to show him where he was taking narcotics. Defendant began to take *315 off his coat, and one of the officers said "Never mind, I will take your word for it." At the request of the officers, defendant's wife voluntarily gave the room key to the officers who then asked if there were any narcotics inside the room. Defendant replied, "No, you can go ahead and search it." The officers asked if they could search defendant, and defendant said "Go ahead." Defendant stated he gave permission for the search because he was "pretty certain he didn't have anything on him against the law." He stated he didn't think there was any more "stuff" (which in narcotics jargon means heroin). They searched defendant's person and found a cigarette package with five rubber containers in it, each containing a quarter ounce of a whitish powder resembling heroin. The officers asked defendant what he was going to do with it and defendant said he was going to "burn somebody." Defendant stated he had picked it up just before he entered the room. The officers made a search of the spot which he pointed out and found two more rubber containers, each holding the whitish powder resembling heroin. Defendant testified in his own behalf. He stated that he stopped before they went in the motel room to ask his wife for the key. She told him the house key was in the package of cigarettes in the plants outside the motel unit. She asked him to get it because she didn't want to get her shoes dirty. He picked up the package which, a few minutes later, the officers took away from him. Defendant denied to the officers that he was using narcotics. [1] At the preliminary hearing defendant's counsel stipulated to the qualifications of the prosecution's witness as an expert chemist and to the fact that if called he would testify that the substance contained in the cigarette package was heroin. Defendant was present when his counsel entered into this stipulation, and he remained completely silent in this regard. At the trial before the jury, a forensic chemist, employed by the police department as a criminologist, testified that in his opinion the powder was heroin. Defendant contends "the main and sole issue on appeal is whether the preliminary hearing magistrate exceeded his jurisdiction to commit him to stand trial pursuant to the California Constitution, Article I, section 8, subdivision 3, in that he was not confronted with the forensic chemist at the time of his preliminary hearing in that his attorney stipulated to the chemist's testimony at the preliminary hearing." Substantially the same factual situation and contention was *316 presented in People v. Prado, 190 Cal. App. 2d 374, 376 [12 Cal. Rptr. 141], which quoted from People v. Wilson, 78 Cal. App. 2d 108, 119-120 [177 P.2d 567], in support of its decision: "Defendant was present and heard her attorney enter into the stipulations. She at no time objected thereto nor sought to be relieved therefrom, nor did her attorney make any such request in her behalf. No contention is advanced that the stipulations were not in accordance with the facts... defendant was not prejudiced thereby." Defendant argues in his brief that by his attorney's stipulation he was denied the right to be confronted by the witnesses at his hearing. If defendant felt that his counsel should not have made the stipulation, he should have complained at that time and given the court an opportunity to correct the situation. In the absence of such complaint the acts of defendant's counsel are imputed to him. "The right of the accused to confront witnesses at his trial, whether reserved in the Constitution or in statutes, may be waived. [Citations.]" (People v. Wallin, 34 Cal. 2d 777, 781 [215 P.2d 1].) [2] Defendant also argues in his brief that he and his wife were committed to stand trial for an offense not proven to exist. "[H]e does so despite the fact no motion was made under section 995, Penal Code, nor did he raise the question at the trial. Section 995 provides that an information may be set aside if the defendant has been committed without probable cause; in section 996, Penal Code, it is provided as follows: 'If the motion to set aside the indictment or information is not made, the defendant is precluded from afterwards taking the objections mentioned in the last section.' " (People v. Stone, 195 Cal. App. 2d 282, 289-290 [15 Cal. Rptr. 737].) Judgment of conviction is affirmed. Purported appeal from order denying motion for a new trial is dismissed. Burke, P. J., and Ford, J., [fn. *] concurred. NOTES [fn. *] *. Assigned by Chairman of Judicial Council.

CourtListenerOpinion

2024-06-11T07:23:54.627649

2013-10-30 08:36:18.425405+00

9736782

LEVINE, Justice, specially concurring. I write specially to express my view that Rule 511, North Dakota Rules of Evidence, in conjunction with Rule 510, North Dakota Rules of Evidence, is sufficient to resolve the issue of the admissibility of Exhibit “N”, the letter inadvertently disclosed by counsel for the Bank. Because the Bank, as holder of the privilege, did not have the opportunity to claim the privilege, it did not waive the privilege. Rule 511, NDREv; 2 J. Weinstein and M. Berger, Weinstein’s Evidence, Standard 512[02], at 512-4 (1989); see also Explanatory Note to Rule 511, NDREv, quoted in the majority opinion, supra, at page 719. In my view, case law from federal and state courts is not helpful, illuminating or determinative because of differing statutes, rules or “standards” governing waiver in those jurisdictions. In North Dakota, a lawyer cannot waive the privilege without consent of her client. Id. Under our rules of evidence, the client alone is keeper of the privilege. North Dakota has opted for the sanctity of client control of the privilege and its waiver in contrast with the differing positions of the several authorities cited by the majority. As the explanatory note to Rule 511 of the North Dakota Rules of Evidence explains, confidential attorney/client communications remain privileged, even when that confidentiality is breached, if the breach is committed by someone other than the client without the client’s having an opportunity to claim the privilege. I agree, therefore, that the trial court did not abuse its discretion in excluding Exhibit “N”. I also agree that the judgment of foreclosure should be affirmed. VANDE WALLE, J., concurs.

CourtListenerOpinion

2024-06-11T07:23:54.628993

2023-08-26 19:06:31.380698+00

2207298

96 N.H. 491 (1951) CLOVER CUTTING DIE CO. INC. v. SAM SMITH SHOE CORP. No. 4003. Supreme Court of New Hampshire. March 6, 1951. *492 J. Morton Rosenblum (by brief and orally), for the plaintiff. Hughes & Burns (Mr. Donald R. Bryant orally), for the defendant. BLANDIN, J. The plaintiff claims first, there was no evidence of an implied warranty of fitness, second, if such warranty existed that the defendant did not sustain its burden of proving a breach and lastly that the amount of the verdict is unwarranted. We believe these contentions cannot be sustained and that the verdict must be upheld. The record shows there was only one purpose for which these dies were to be used, that such purpose was obvious and known to the trade and the parties. The defendant in ordering the dies specified only their size and shape. The method of manufacture, the material and the delicate task of tooling an edge which would cut the leather or lining without sticking in the block were left entirely to the plaintiff. The facts differ materially from those in Gregg v. Company, 69 N. H. 247, relied upon by the plaintiff where as the Court said (page 249) "The plaintiffs directed the size and method of constructing the belt. They relied upon their own judgment, not upon that of the manufacturers." The defendant was not a die maker but only a buyer of this highly specialized product from the plaintiff upon whose skill and judgment it had to rely. Under all the circumstances we believe the Court's holding that an implied warranty of fitness existed was sound. R. L., c. 200, s. 15, par. I. *493 It also appears on all the evidence that the defendant has sustained its burden of showing a breach of the implied warranty. The record shows that the same type of die bought from other manufacturers, used by the same person on similar material and under like circumstances cut satisfactorily. The testimony suggests that if dies are either too sharp or too dull they are unfit for cutting. There was evidence that the plaintiff on several occasions took the dies back to its factory to sharpen or otherwise fix them. We believe upon all the facts the Court could properly find a breach of the implied warranty of fitness. The plaintiff's final contention is that the amount of the verdict cannot be reconciled with the proof. There was conflicting evidence regarding the shipments and types of dies in question and the Court was at liberty to accept or reject all or any portion of the parties' claims regarding these items. Giguere v. Railroad, 86 N. H. 294, 298. The questions of interest and delivery charges were also involved. There were no requests for findings and it is not necessary for the defendant to be able to point out the exact method by which the Court reached its verdict since it cannot be said that it is not in accordance with the evidence. See Young v. Dow, 93 N. H. 210, 212. It follows the plaintiff's exception must be overruled and the order is Judgment on the verdict. JOHNSTON, C. J., was absent: the others concurred.

CourtListenerOpinion

2024-06-11T07:23:54.630341

2013-10-30 08:36:18.749746+00

9736783

O’Sullivan, J. On June 29, 1949, Windham Motor Sales, Inc., sold a Lincoln automobile to Emile W. Jacques under a contract of conditional sale. The seller subsequently assigned its interest in the contract to the plaintiff. On September 23, 1949, the defendant, a deputy sheriff, attached the automobile in an action instituted by a creditor of Jacques. During October, the plaintiff brought this action of replevin. The complaint included an allegation that Jacques was in default in failing to pay an instalment of the purchase price due on September 29. From a judgment that the plaintiff recover possession of the automobile, the defendant has appealed. The sole ques*543tion for determination is whether the contract of conditional sale was legally executed. The defendant contends that, as against the vendee’s creditors, it is invalid on two grounds, first, the conditions of the sale are not fully stated, and, secondly, the acknowledgment is defective. Our discussion will be limited to the first ground. Section 6692 of the General Statutes requires that, except as otherwise provided, “all contracts for the sale of personal property, conditioned that title thereto shall remain in the vendor after delivery, shall be in writing, describing the property and all conditions of such sale.” Section 6694 provides that all conditional sales of personal property not made in conformity with § 6692 shall be held to be absolute sales except as between the parties to the transaction and their personal representatives, and that the property involved shall be liable to be taken by attachment and execution for the debts of the vendee. The purpose of these statutes, as has been repeatedly pointed out, is to protect those who, in dealing with another, may be led, by that other’s possession and apparent ownership of personalty, to believe him to be its actual owner. C. I. T. Corporation v. Cohen, 117 Conn. 159, 163, 167 A. 102; Commercial Credit Corporation v. Carlson, 114 Conn. 514, 516, 159 A. 352. The statutes were not aimed at invalidating, nor do they invalidate, as between the parties, a conditional sale contract, however defective its execution may be. Refrigeration Discount Corporation v. Chronis, 117 Conn. 457, 460, 168 A. 783. They were passed solely for the benefit of the creditors of, and the bona fide purchasers from, the conditional vendee. In re Wilcox & Howe Co., 70 Conn. 220, 230, 39 A. 163. This legislative purpose has been consistently recognized by our previous decisions. We have interpreted the *544statutes strictly as against the parties to the conditional sale contract and with liberality towards those for whose protection they were enacted. Lee Bros. Furniture Co. v. Cram, 63 Conn. 433, 437, 28 A. 540; National Cash Register Co. v. Lesko, 77 Conn. 276, 280, 58 A. 967; Standard Acceptance Corporation v. Con-nor, 127 Conn. 199, 203, 15 A. 2d 314. The terms of the contract involved in this action, in so far as they relate to the payment of the purchase price, read: “. . . for a Cash Price of $3680.00, plus Finance Charge of $440.16 making a Total Time Price of $4,120.16, which the buyer agrees to pay to the seller or seller’s assignee in manner following: ... a total down payment of $1282.00 on or before delivery leaving a Deferred Balance of $2838.16, payable ... in 24 equal monthly installments of One Hundred eighteen dollars & 26 cts. ($118.26) each . . . the first installment to be paid on July 29th, 1949 and the remaining installments to be paid on or before the--day of each and every month thereafter until this contract is paid in full.” The claimed defect in this recital of the conditions of the sale is that the day of the month upon which the instalments are due was left blank. It is the plaintiff’s contention that the terms of payment are sufficiently definite to meet the requirements of the statute. Its claim appears to be this: the date of the contract is June 29; the first instalment is made payable on July 29, and those remaining, on the “-- day of each and every month thereafter until this contract is paid in full”; hence, an instalment is due on the 29th day of each succeeding month. The weakness of' this argument is obvious. In the first place, whether “month” refers to a period of one month immediately following the “29th” or to the calendar month which next follows that date is not stated. Furthermore, if we assume that the actual agreement of *545the parties was that all instalments subsequent to the first were to fall due as claimed by the plaintiff, then that was a condition of the sale and, as such, was required by the statute to be expressed in writing. It is quite simple to say that the parties obviously intended, from the language they used, that monthly payments, subsequent to July, were to be paid on or before the 29th of each month. This is the equivalent of filling in an unstated term of the contract. For aught that appears therein, save what may be deduced by inference to the contrary, the actual, unrecorded agreement may have provided for payments on the 1st or 15th or 30th day of the month. The problem, however, is not one of interpretation, permitting the court to resort to its right to draw reasonable inferences in determining the meaning of a contract. If it were, it is not inconceivable that the missing information could be supplied by inferring that, because the dates when the contract was executed and the first instalment was made payable were the 29th of consecutive months, the parties must have intended the 29th of each of the "following months as the date on which the payment was to be made. That, however, is not the point. The only question is whether all of the conditions of the sale were reduced to writing. The statute is not ambiguous. It provides unequivocally that all, not some, of the conditions shall be expressed in writing. Try as it may, the plaintiff cannot escape from the stubborn fact that the contract does not incorporate the complete terms to which the parties agreed. Unless we propose to depart from the strict policy which has characterized our former decisions, we must conclude, as we do, that the contract of conditional sale in this case was an absolute sale as to the vendee’s creditor. C. I. T. Corpora*546tion v. Meyers, 129 Conn. 514, 517, 29 A. 2d 758; Premium Commercial Corporation v. Kasprzycki, 129 Conn. 446, 450, 29 A. 2d 610. There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendant for possession of the automobile. In this opinion Baldwin, J., concurred.

CourtListenerOpinion

2024-06-11T07:23:54.631767

2023-08-26 19:06:32.565738+00

9736784

Brown, C. J. (concurring). I concur in the conclusion that there was error. I am in full agreement with what is stated in the preceding opinion as to the purpose of the statute and as to the court’s duty to enforce strict compliance with it for the protection of bona fide purchasers and creditors. The vendor’s gross carelessness and disregard for the requirements of the statute in this case are manifest, not only from its failure to state in the instrument the dates when the monthly payments were to be made but also in the inadequacy of the acknowledgment. Among other of the applicable provisions of § 6692 is one that all conditional sales contracts “shall be acknowledged before some competent authority.” When a corporation is the vendor in such a contract, it “is essential that it appear from the certificate, when read in connection with the instrument acknowledged, that the acknowledgment is made on behalf of the corporation and therefore is its acknowledgment, and not merely that of the individual who executed the instrument.” Commercial Credit Corporation v. Carlson, 114 Conn. 514, 518, 159 A. 352. In other words, under our statute a certificate is insufficient unless it (1) identifies the subscriber, (2) specifies the writing subscribed, (3) states the capacity in which he executed it, and (4) certifies his acknowledgment thereof. At the end of this contract, just below what appears to be the buyer’s signature, this appears: “Seller *547Signs Windham Motor Sales, Inc., B. Hochberg, Pres. Columbia Ave., Willimantic, Conn.” The certificate of acknowledgment states: “Personally appeared Windham Motor Sales, Inc. (Seller) and Emile W. Jacques (Purchaser) signers and sealers of the foregoing instrument and acknowledge the same ... to be their free act and deed (and the free act and deed of corporation when either party is corporation), before me. When the purported signature of the vendor, and the certificate, are read together, if it is assumed that the first three of the above requisites essential to a valid certificate were satisfied, it is clear that the fourth was not. Even though the vendor s signature is construed to be that of the corporation, by Hochberg as its president, there is nothing to show that he, rather than some other person without even ostensible authority to act on its behalf, acknowledged the instrument. Since a corporation can act only through its agents, the certification that Windham Motor Sales, Inc., “personally appeared,” adds nothing and means nothing. It follows that the certificate is insufficient and judgment must be directed for the defendant.

CourtListenerOpinion

2024-06-11T07:23:54.632896

2023-08-26 19:06:32.569474+00

9736785

Inglis, J. (dissenting). The purpose of the requirement of the statutes that, to be valid as against third parties, a conditional sale contract must state “all conditions” of the sale is to inform such third parties as to what interest the vendee has in the property sold. This purpose is fully accomplished if by a reasonable reading of the contract one is fairly apprised of its terms. Premium Commercial Corporation v. Kasprzycki, 129 Conn. 446, 450, 29 A. 2d 610; National Cash Register Co. v. Lesko, 77 Conn. 276, 280, 58 A. 967; see Mozwish v. Sirus, 113 Conn. 141, 144, 154 A. 166; Beach v. Osborne, 74 Conn. 405, 408, 50 A. 1019, 1118. *548The only possible question concerning the statement of the terms of the sale in the contract involved in this case is whether the times of payments of the instalments of the purchase price are set forth with adequate certainty. The contract on its face is dated June 29, 1949. After stating the amount of each of the instalments and that there should be “24 equal monthly installments,” it reads: “the first installment to be paid on July 29th, 1949 and the remaining installments to be paid on or before the--day of each and every month thereafter until this contract is paid in full.” When these provisions are read in their entirety, it appears that the omission of the precise date of the month upon which the instalments were to become due does not materially detract from the certainty of the statement. The agreement was that the instalments would have become due “on or before” such a day, if one had been stated. It is quite apparent, therefore, that the actual agreement between the parties did not contemplate that any payment must be made on any specific day. It might be made at any time within a specified month. The contract did make it plain that the first instalment was due on July 29, that another instalment was due sometime within the month which followed that date, and that a further instalment was due within each successive month thereafter. The contract also made it plain that in no event could payments continue after the expiration of twenty-four months. To apprehend this much from a reading of the contract, it is not necessary to draw any inferences, still less to do any guesswork. It is the plain intendment of what the contract states. A reading of the contract fairly apprises one of what the agreement was with reference to the time for payment of instalments. It, therefore, satisfies the purpose and the requirement of the statute. *549In only two cases has this court held that the statement of the due dates of instalments in conditional sale contracts was inadequate to meet the requirements of the statute. In C. I. T. Corporation v. Meyers, 129 Conn. 514, 517, 29 A. 2d 758, although the contract called for eighteen instalment payments, it completely failed to state when those payments should commence or end or whether they should be made in successive months. In Standard Acceptance Corporation v. Con-nor, 127 Conn. 199, 203, 15 A. 2d 314, although the contract was dated December 2, 1938, it stated that the instalment payments were to commence on January 10, 1938, an obvious error. The reasoning of the court which led to the conclusion that the requirement of the statute had not been satisfied was that, even if the error in the date were overlooked, the contract was left with no date stated for the commencement or ending of the instalment payments. Obviously, neither of these cases on their facts is analogous to the present case, nor does the reasoning of the opinion in either of them argue that the statement of terms contained in the contract now before us is inadequate. The present contract states plainly that an instalment is to be paid in each successive month commencing July 29, 1949. The certificate of acknowledgment which was annexed to the conditional sale contract is set forth in the concurring opinion of Brown, C. J. In considering the question whether that certificate is adequate, it must be borne in mind that ordinarily the omission from the certificate of the name of the acknowledger is not fatal if his identity is fairly imported by referring to him in the certificate as the signer and sealer or the subscriber of the document acknowledged. Sanford v. Bulkley, 30 Conn. 344, 347; 1 C. J. S. 855, § 92 (a) (2); 1 Am. Jur. 364; notes, 29 A. L. R. 919, 1001, *55072 A. L. R. 1290, 1300. The same is true even though the certificate relates to acknowledgments by two or more persons. Bowles v. Lowery, 181 Ala. 603, 610, 62 So. 107; Brown v. Corbin, 121 Ind. 455, 458, 23 N. E. 276; Stephens v. Perkins, 209 Ky. 651, 655, 273 S. W. 545; Clewer v. Shields, 40 Pa. Super. 400, 403. It obviously is impossible for a corporation to appear personally and acknowledge a document. Accordingly, the words “Windham Motor Sales, Inc. (Seller),” as they appear in the certificate in question, are to be treated as surplusage and ignored. If that is done, the certificate reads: “Personally appeared . . . and Emile W. Jacques (Purchaser) signers and sealers of the foregoing instrument. . . .” That is, the certificate does not specify by name one of the acknowledgers. It is apparent from the certificate, however, that at least two persons appeared and acknowledged the document, because it states that they were “signers and sealers” and that the instrument was acknowledged as “their” free act and deed. The quoted words are in the plural. The certificate is that those who appeared were the signers and sealers of the foregoing instrument. That can be interpreted in no way other than that it was “B. Hochberg, Pres.,” and “Emile W. Jacques.” It also means that B. Hochberg appeared in his capacity as president of Windham Motor Sales, Inc. The certificate further makes it clear that B. Hochberg as president acknowledged the instrument both as his free act and deed and as the free act and deed of the corporation. It, therefore, adequately complies with the requirements of a proper certificate of acknowledgment. The case is distinguishable on the facts from Hayden v. Westcott, 11 Conn. 129; Commercial Credit Corporation v. Carlson, 114 Conn. 514, 159 A. 352; C. I. T. Corporation v. Hungerford, 123 Conn. 438, 196 A. 151; *551and C. I. T. Corporation v. Meyers, 129 Conn. 514, 29 A. 2d 758. In the Hayden case the certificate did not reveal even by way of inference who had appeared. In the Carlson case the certificate failed to state that the person who was making the acknowledgment on behalf of the corporation was an officer of the corporation or was acting in any official capacity. In each of the other two cases the certificate was so garbled as to be meaningless. In this opinion Jennings, J., concurred.

CourtListenerOpinion

2024-06-11T07:23:54.634417

2023-08-26 19:06:32.572988+00

2207309

454 N.W.2d 422 (1990) Gregory James MOEN, Respondent, v. Salma MIKHAIL, M.D., George E. Reisdorf, M.D., et al., petitioners, Appellants. No. C3-89-540. Supreme Court of Minnesota. April 20, 1990. Rehearing Denied May 10, 1990. Robert R. Dunlap, Susan Scheffer, Dunlap, Finseth, Berudt & Sandberg, P.A., Rochester, for George Reisdorf, et al. Kenneth R. White, Farrish, Johnson & Maschka, Mankato, for Salma Mikhail. Evan H. Larson, Peter D. Plunkett, Warren F. Plunkett & Assoc., Austin, for respondent. Considered and decided by the court en banc without oral argument. SIMONETT, Justice. We granted the petitions of defendants Salma Mikhail and George E. Reisdorf to review a split decision of the court of appeals, the majority of which concluded that the trial court is vested with discretion to extend the time limitations contained in Minn.Stat. § 145.682 (1988) upon a showing of excusable neglect and that it abused that discretion in determining that plaintiff made no showing of excusable neglect. Moen v. Mikhail, 447 N.W.2d 462 (Minn. App.1989). We reverse. Here, the trial court improperly first concluded that it was without any discretion to extend the time limitations of section 145.682 in a medical malpractice action. See Stern v. Dill, 442 N.W.2d 322, 324 (Minn.1989). However, our review of the record leads to our conclusion that Moen provided no reasonable excuse for his failure to provide the requisite affidavits in a timely fashion and that, therefore, he would not have been entitled to the requested extension. Summary judgment was properly awarded to the defendants. Reversed.

CourtListenerOpinion

2024-06-11T07:23:54.635918

2013-10-30 08:36:18.847506+00

2207319

208 Cal.App.2d 429 (1962) MAX KEROFF, Plaintiff and Respondent, v. BEN SNYDER, Defendant and Appellant. Civ. No. 6735. California Court of Appeals. Fourth Dist. Oct. 11, 1962. Adams & Tom and Richard E. Adams for Defendant and Appellant. Gostin & Katz and Louis S. Katz for Plaintiff and Respondent. COUGHLIN, J. These appeals arise out of an action to declare a partnership dissolved; to effect an accounting therein; and to partition real property. The dissolution had been accomplished by a written agreement executed prior to commencement of the action; the partition issues were settled thereafter; and the accounting was the sole remaining matter requiring court action. Although several defendants were joined in the action, the partnership and accounting phases thereof involve only the defendant, Ben Snyder, the appellant herein. On February 15, 1961, the court entered a judgment, based on findings of fact and conclusions of law made by a referee appointed by it pursuant to stipulation of the parties, which declared the partnership dissolved and stated an accounting between them. The plaintiff, who is the respondent herein, moved for a new trial, based on several grounds, including insufficiency of the evidence. This motion was heard on April 11, 1961. At the time of this hearing, the parties, their counsel, and the court, the honorable Dean Sherry presiding, preliminarily engaged in an off-the-record discussion. Thereafter, as appears from the augmented record before us, the court granted a new trial because of the insufficiency of the evidence; counsel for defendant were permitted to withdraw as attorneys in the case; at his request he undertook to represent himself; and thereupon the trial judge, undoubtedly having in mind the preliminary unreported discussion heretofore noted, referred to a stipulation and engaged in a further discussion with the parties and the plaintiff's attorney as follows: "The Court: It is now stipulated that the plaintiff has given his attorney full authority to make a settlement agreement here; and that when that agreement is made for the settlement of this case, there will be no further motion for a new trial, there will be no appeal from the decision of the Court." "Is that your understanding, Mr. Katz? [Attorney for plaintiff.]" "Mr. Katz: That is my understanding, Your Honor. *431" "The Court: And Mr. Keroff [plaintiff], is that your understanding?" Mr. Keroff: It is. "The Court: And you Mr. Keroff,--you are giving your attorney, Mr. Katz, full authority to make such settlement, is that right?" "Mr. Keroff: Yes, sir." "The Court: And you understand that that is the arrangement,___" "Mr. Snyder [defendant]: Yes, sir." "The Court: ___Mr. Snyder?" "Mr. Snyder: Yes, sir." "The Court: That when the Court has entered a judgment in this case after discussion with you and Mr. Katz, that my decision on all matters that are presented to the Court at this hearing and the judgment itself will be final?" "Mr. Snyder: I so understand." "The Court: And there will be no motion for a new trial and there will be no appeal from that decision?" "Mr. Snyder: I accept." "The Court: Yes. All right." "Now, gentlemen, I will suggest the matters that we can discuss." This exchange was followed by a discussion which was not reported. From the amended minute order purporting to reflect the proceedings on the day in question, it appears that this unreported discussion terminated in a decision by the court to render judgment, and a direction to counsel for the plaintiff to prepare the same for signature. On April 17, 1961, a written judgment was signed and filed, the terms of which vary substantially from the judgment originally entered. Forthwith, the defendant reemployed his counsel, and through them moved the court, the honorable George A. Lazar presiding, to vacate and set aside the second judgment; to reinstate the original judgment; and, in the alternative, to grant a new trial. This motion was denied. Thereupon the defendant appealed from the second judgment and from the order denying the aforesaid motion. No appeal was taken from the order granting a new trial as to the first judgment, and that order has become final. [1] Heretofore the plaintiff moved this court to dismiss this appeal upon the ground that the defendant had waived his right to appeal. This motion was denied. The waiver *432 relied upon is that expressed in the course of the discussion following the court's setting aside the original judgment and granting a new trial. A fair and reasonable interpretation of that discussion convinces us that it concerned a judgment upon a "settlement agreement." No such agreement preceded the second judgment. Consequently, there was no waiver of an appeal from the latter. The record does not indicate what transpired in the course of the unreported discussion between the court, the parties, and counsel for the plaintiff, which preceded the decision to render judgment as reflected in the minutes. The judgment appealed from recites that the parties "stipulated and agreed to have the case tried by the court at this time, without jury and without a court reporter and after submission of all of the issues to the court and informal discussion thereon, it was further stipulated that the court would render a final judgment herein as to all issues raised in the pleadings relating to the partnership accounting and the First Cause of Action herein." This recital is contrary to the facts as established by the record heretofore considered. The stipulation in question referred to a judgment to be agreed upon by the parties. [2a] In any event, the proceedings are fatally defective because no findings of fact were made by the court. [3] It is an elementary rule that written "findings are required on all material issues raised by the pleadings and evidence, unless they are waived, and if the court renders judgment without making findings on all material issues, the case must be reversed." (James v. Haley, 212 Cal. 142, 147 [297 P. 920]; in accord: Edgar v. Hitch, 46 Cal.2d 309, 312 [294 P.2d 3]; Krum v. Malloy, 22 Cal.2d 132, 136 [137 P.2d 18]; Morrow v. Morrow, 201 Cal.App.2d 235, 238 [20 Cal.Rptr. 338]; Perry v. Jacobsen, 184 Cal.App.2d 43, 49 [7 Cal.Rptr. 177]; Estate of Ingram, 99 Cal.App. 660, 662 [279 P. 208]; Frascona v. Los Angeles Ry. Corp., 48 Cal.App. 135, 137-138 [191 P. 968].) [2b] Section 632 of the Code of Civil Procedure, which imposes the requirement of written findings, provides that they may be waived "by consent in writing filed with the clerk or judge, or by oral consent in open court, entered in the minutes." The recitals in the instant judgment do not indicate a waiver of findings; no written consent to such a waiver is on file; and no oral consent thereto expressed in open court is recorded in the minutes. In this regard it may be noted that in a declaration filed in resistance to the plaintiff's motion to dismiss the appeal, the defendant *433 stated that he requested the court to make findings of fact and conclusions of law, but the judge told him these were not necessary. This statement was not denied. The failure to make findings was error, and the judgment must be reversed. The order denying the defendant's motion for a new trial is not appealable and, therefore, the attempted appeal therefrom should be dismissed. (Rodriguez v. Barnett, 52 Cal.2d 154, 156 [338 P.2d 907].) [4] The order denying the defendant's motion to set aside the second judgment and reinstate the first properly was denied as there is no such proceeding sanctioned by law. (Ransom v. Los Angeles City High School Dist., 129 Cal.App.2d 500, 507 [277 P.2d 455]; Levy v. Brill, 107 Cal.App.2d 204, 205 [236 P.2d 603]; Biggs v. Biggs, 103 Cal.App.2d 741, 742 [230 P.2d 32].) The judgment appealed from is reversed; the order denying the motion to set aside the second judgment and reinstate the first is affirmed; and the attempted appeal from the order denying the motion for a new trial is dismissed. Appellant to recover costs on appeal. Griffin, P. J., and Shepard, J., concurred.

CourtListenerOpinion

2024-06-11T07:23:54.638225

2013-10-30 08:36:18.924753+00

2207322

208 Cal.App.2d 740 (1962) MORRISON DRILLING CO., INC., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THOMAS F. BAILEY et al., Real Parties in Interest. Civ. No. 7103. California Court of Appeals. Fourth Dist. Oct. 22, 1962. Hancock & Garland and David M. Garland for Petitioner. No appearance for Respondent. Kindel & Anderson and Paul F. Marx for Real Parties in Interest. GRIFFIN, P. J. [1a] This is a petition for a writ of certiorari to review an order of the respondent superior court staying all proceedings in the trial of an action until plaintiff therein (petitioner here) has brought into the action a party alleged to be indispensable. Petitioner brought the action in the superior court against certain members of a joint venture to recover for the value of services alleged to have been rendered on behalf of the joint venture. The defendants who had been served in the action demurred on the ground that petitioner had failed to join Batzer Oil Corporation, a Wyoming corporation, as a defendant and that Batzer Oil Corporation was one of the members of the joint venture, a joint obligor, and an indispensable party. By leave of court, petitioner filed an amended complaint naming Batzer Oil Corporation as a party defendant. However, petitioner was unsuccessful in his attempts to serve Batzer Oil Corporation within the State of California and petitioner's motion to serve Batzer Oil Corporation as a foreign corporation doing business in the state, by service on the secretary of state, was denied because no showing was made that Batzer Oil Corporation had conducted any business *742 within the State of California. Thereafter, the petitioner brought this petition for a writ of certiorari. The complaint alleges that petitioner is a Wyoming corporation and that about August 17, 1959, the respondents here and Batzer Oil Corporation entered into a written joint venture agreement whereby they agreed to drill an oil and gas well in Converse County, Wyoming. It is alleged that Batzer Oil Corporation, acting as the agent of the respondents, entered into an oral contract with petitioner in Wyoming whereby petitioner was to supply and did supply services and materials in connection with the drilling of an oil and gas well in Converse County, Wyoming. Petitioner alleges that the reasonable value of the services and materials supplied by it is $11,351.64 and that it has been paid no part of this amount. It is alleged that the respondents and each of them are indebted to petitioner in the amount of $11,351.64. Appended to the original complaint is a contract between respondents and Batzer Oil Corporation. In this contract, it is agreed that Batzer Oil Corporation owns certain interests in oil leases in Converse County, Wyoming, that the parties agree to drill a test well on the leased land and that Batzer Oil Corporation shall be the agent of the parties in charge of the actual drilling of the well. It is provided that each of the parties, including Batzer Oil Corporation, shall have either a one-eighth or a one- fourth interest in the proceeds of the joint venture and in its obligations. It does not clearly appear whether this contract was entered into within the State of California. At the head of the contract, or letter purporting to be the contract, is noted "4252 Beverly Boulevard, Los Angeles 4, California, August 17, 1959." It is directed to William L. Rush at 3950 Beverly Boulevard, Los Angeles, California and is purportedly signed by all parties on August 18, 1959, including Batzer Oil Corporation by F. G. Batzer, vice president. The complaint does not allege the place where the agreement was executed. [2] Both petitioner and respondents agree that the statutory and case authority in this state provides that the parties to a joint venture are jointly liable in an action brought by a third person to enforce an obligation of the joint venture. (Corp. Code, 15015.) In Harrison v. McCormick, 69 Cal. 616, 620 [11 P. 456], it was said: "The rule is well settled that several persons contracting together with the same party for one and the same act, shall *743 be regarded as jointly, and not individually or separately liable, in the absence of any words to show that a distinct as well as entire liability was intended to fasten upon the promisors." This rule is reiterated in Iwanaga v. Hagopian, 39 Cal.App. 584 [179 P. 523]; Mirabile v. Smith, 119 Cal.App.2d 685, 688-689 [260 P.2d 179]; and Hobgood v. Glass, 161 Cal.App.2d 208 [326 P.2d 546]. [3] It is also clear that joint obligors are indispensable parties to an action brought to enforce a joint liability. (Williams v. Reed, 48 Cal.2d 57 [307 P.2d 353].) In 1 Chadbourn, Cal. Pleading, at page 517, it is said: "... joint obligors or obligees on a contract must be joined as plaintiffs or defendants." See also 2 Witkin, California Procedure, at page 1054, where it is said: "... joint obligors or debtors jointly liable under a contract must be joined as defendants. [Citation.] Partners and joint venturers are likewise united in interest so as to require joinder in actions, whether on contract or tort." [1b] Code of Civil Procedure, section 414, provides: "When the action is against two or more defendants jointly or severally liable on a contract, and the summons is served on one or more, but not on all of them, the plaintiff may proceed against the defendants served in the same manner as if they were the only defendants." See also Tally v. Ganahl, 151 Cal. 418, 424 [90 P. 1049], where the plaintiff was allowed to proceed against one joint obligor alone where the other was absent from the state and not within the jurisdiction of the court. In Rawitzer v. Wyatt, 40 F. 609, the court held that Code of Civil Procedure, section 414, permits a plaintiff who has joined all joint obligors to proceed against less than all of them where service of process cannot be obtained on all of the joint obligors. This view of the effect of Code of Civil Procedure, section 414, was reiterated in Iwanaga v. Hagopian, supra, 39 Cal.App. 584, and Hobgood v. Glass, supra, 161 Cal.App.2d 208. In the latter case, the court said: "In Iwanaga v. Hagopian, 39 Cal.App. 584, 585 [179 P. 523], the court refers to the common law rule that a partnership obligation is joint, and not joint and several, and to the corollary rule that a judgment against less than all the partners upon such a liability extinguishes the original claim against all for the reason that the joint obligation is deemed *744 merged in the judgment. The decision then proceeds to point out that in California the common law rules have been abrogated by statue:" " 'In some states the rigor of this common-law rule has been relaxed by statutes, which declare the obligations of copartners to be several as well as joint. But in this state the common-law rule has been expressly enacted by section 2442 of the Civil Code, which declares the liability of copartners to be joint, and we have no provision permitting several judgments to be recovered in several actions upon a joint obligation. The extent to which the common-law rule on this subject has been changed by the provisions of section 414 and section 989 of the Code of Civil Procedure is by permitting (section 414) an action brought against the joint debtors, but in which the summons has not been served on all, to proceed to judgment against those served; and (section 989) after judgment so obtained, to bring in any of the defendants not served by an order to show cause why they should not be bound by the judgment.' " See also Wharton v. Harlan, 68 Cal. 422, 427 [9 P. 727]. The order of the lower court was therefore erroneous. It should not be inferred from this holding that the petitioner should have judgment on the issues framed by the pleadings. We have only discussed the issues presented by this petition. Our description of the liability of the defendants as "joint" is not intended to foreclose the trial court from deciding that this obligation is other than joint. Nor should our use of the term "joint venture" preclude the trial court from deciding the exact nature of the parties' relationship after the issues are framed by the pleadings and the evidence is presented. (See Corporations Code, 25100, subd. (m).) [4] The petition here seeks a writ of certiorari. A writ of mandamus is more appropriate where a court erroneously refuses to assume jurisdiction. (3 Witkin, California Procedure, 50, p. 2531.) Although the petition seeks the wrong relief, there is no reason why this court should not grant the appropriate writ where the complete record is before us. (Board of Trustees v. State Board of Equalization, 1 Cal.2d 784 [37 P.2d 84, 96 A.L.R. 775]; 3 Witkin, California Procedure, pp. 2567-2569.) Let a writ of mandate issue directing respondent court to vacate all orders abating or staying proceedings in action *745 No. 97691 in said court, and directing it to assume jurisdiction, and to proceed to trial of the action. Shepard, J., and Coughlin, J., concurred.

CourtListenerOpinion

2024-06-11T07:23:54.641409

2013-10-30 08:36:18.956562+00

2207323

79 A.2d 620 (1951) ABBOTT et al. v. ZONING BOARD OF REVIEW OF THE CITY OF WARWICK. M. P. No. 948. Supreme Court of Rhode Island. March 16, 1951. *621 Charles H. Drummey, Edmund J. Carberry, Jr., Providence, for petitioners. Hailes L. Palmer, City Sol., Providence, for respondent. CAPOTOSTO. Justice. This is a petition for certiorari to review the action of the respondent board in granting the application of Leo T. Martineau for an exception under the provisions of the zoning ordinance of the city of Warwick to permit the use of land in a residential zoning district as a "Drive-In Theater." The writ was issued and pursuant thereto the respondent certified to this court the records pertaining to the decision, including a summary of the representations made to the board for and against the application. It appears that about one month prior to the date of application. November 30, 1949. Leo T. Martineau, a resident of Providence, hereinafter sometimes called the applicant, purchased 12.75 acres of vacant land in a residential B zone in the city of Warwick. A drive-in or open-air theater is not a permitted use in that zone. In the newspaper notice of the hearing thereon before the board the land was described as lot 472, plat 350 "at intersection of Warwick Ave. & Oakland Beach Ave. * * *" both of which are main highways. We note here that in said notice the plat was not definitely identified, although it later appeared that such reference was to an assessor's plat. It is conceded *622 by the board that the land was not located at the above-mentioned intersection although it was in that immediate vicinity. A statement of the actual site and of the tributary streets and roads involved is unnecessary for our purposes. A hearing on the application was held on December 14, 1949. The applicant at that time told the board that he intended to sell the land to Gerald Deitch and Joseph Petrella, who were to build and operate the theater. Counsel for the prospective buyers then presented a plan of the theater, explained the details of the venture which he said would call for an expenditure of approximately $125,000, and urged the granting of the application. Such action was approved in a written statement signed by six persons owning land within 200 feet of the alleged location and by three others in person, while one property owner who lived some distance from the site voiced his opposition. At the close of the hearing the board granted the application giving the following reasons for their decision: "1. The City of Warwick needs the additional revenue that it would derive from the taxes. 2. Young couples, who have one or two children, can attend the theater without the additional expense of hiring baby sitters. 3. Chief of Police stated that his department can control the traffic without it being a hazard. 4. The citizens and taxpayers of the City of Warwick are entitled to recreation of this sort." The decision further provided: "1. That the stipulations in the letter from the Chief of Police dated Dec. 13, 1949 be carried out" and "2. That fire protection, either a fireman or fire-box, be provided for." As a matter of fact the stipulations, so called, were merely suggestions by the chief of police of necessary changes for the maintenance of order and the control of increased traffic, including the resurfacing of two certain streets. Shortly after such decision by the board other property owners and residents of the neighborhood whose interests would be affected by the erection and operation of the theater retained counsel. They thereupon immediately filed a petition, bearing some fifty signatures, asking for a rehearing by the board, alleging in substance that the petitioners were not present at the hearing "to protest the application" because some did not see the advertisement in the newspaper "while others who were cognizant of the application were misled by the advertisement * * *." Among the grounds of objection stated in this petition were increased fire and traffic hazards, devaluation of property, disturbance at late hours, and the creation of unsanitary conditions. Furthermore on January 11, 1950 two clergymen, one of whom spoke for himself and for an association of ministers, also wrote to the board for a review of the matter. However, after stating in an undated written decision that the application had been duly advertised and fully considered, the board denied the petition for a rehearing on the ground that its rules of procedure did not permit the granting of "any rehearing" within one year from the date of decision. The petitioners here claim that in the circumstances the decision of the board is illegal, arbitrary and unreasonable. Respondent first contends that the petitioners are not really aggrieved parties entitled to have a review of the decision in question by certiorari, as after proper notice they had failed to present their objections to the board. It further urges that two of the petitioners, who owned property within 200 feet of the alleged site, "apparently have had a change of mind and have withdrawn their names as petitioners"; that another owner of a lot within that area, who was illiterate and had signed the petition by mark, should have supported her action in the matter by affidavit showing "that the petition was read to her or that she understood its contents"; and that the other petitioner owned property well beyond the aforementioned area. We observe at this point that we find no record of a "change of mind" by the two petitioners as above alleged, nor is there any provision by statute or otherwise requiring that a signature by mark, especially if it is duly witnessed as it was in the present petition, be supported by affidavit as respondent argues. In the absence of proof to the contrary, we will not presume *623 that the petitioner so signing was improperly induced to sign the petition. We understand respondent's contention in effect to be that only an owner of property within 200 feet of land for which a variance or exception is sought can be an aggrieved party within the terms of the enabling act or ordinance. This same question was considered by us in Flynn v. Zoning Board of Review, R.I., 73 A.2d 808, and we there held that generally speaking a landowner whose property naturally would be affected adversely by a decision granting an exception or variance was considered to be an aggrieved party having a right to a review of the board's decision in this court by certiorari. As the reasons and pertinent authorities for such holding are set forth in that case we need not repeat them here. In the instant case all the petitioners not only own property in the same established residential zone, but the nature and extent of the proposed change is also such that it would naturally and reasonably tend to affect the value and use of the property in that neighborhood generally. The contention under consideration is therefore without merit. Respondent, quoting certain language from Taft v. Zoning Board of Review, R.I., 71 A.2d 886, next contends that the petitioners are not entitled to question the hereinbefore-mentioned misdescription of the land in question as they waived that right by failing to make such objection to the board. Since it is admitted that the location of the premises is substantially incorrect, it cannot be said that persons in interest, whether within or outside the 200-foot limits of the alleged site, might not reasonably have been misled to inaction at the hearing before the board. As to the quotation from the Taft case, it is only necessary to observe no useful purpose is served by relying on language in a case which is so clearly different in its facts from the one at bar. This is not the ordinary case for relief from the provisions of a zoning ordinance. The large amount of land involved, its location in a residential zone near the confluence of heavily traveled highways, and the character of the proposed use of that land present an unusual situation for careful consideration by the proper authority. The board urges, among other things of a similar nature, that the decision should be sustained because (1) that section of the city of Warwick has "not developed into a residential area as zoned" in 1945; (2) "The area is improperly zoned"; (3) "It is clear that this land wasn't suitable for residential B. and the board in granting the application is encouraging the most appropriate use of the land"; and (4) "It is common knowledge that `Y' intersections are excellent locations for business." In the absence of any legislative power in the board to establish zones, the reasons just mentioned are without persuasive force. That power is vested exclusively in the city council by the enabling act, general laws 1938, chapter 342. The board was created to administer the zoning ordinance but not to formulate or revise it. The discretionary power of the board to grant an exception in special cases was intended to provide reasonable latitude in the application of the terms of the ordinance in order to relieve against the arbitrary effects that might follow from a literal enforcement thereof. Flynn v. Zoning Board of Review, supra. The case of East Providence Mills, Inc. v. Zoning Board of Review, 51 R.I. 428, 155 A. 531, upon which respondent relies, is inapplicable in the circumstances of the instant case. Our discussion of that case in the Flynn case need not be repeated here. It is to be kept in mind that in the case at bar we are dealing with an exception and not with a variance. See Harrison v. Zoning Board of Review, 74 R.I. 135, 59 A.2d 361, for a statement of the difference between the two grounds of relief. The ordinance now before us authorizes the board in appropriate cases and subject to appropriate conditions and safeguards to make special exceptions to the terms of this ordinance in certain specified cases or "where the exception is reasonably necessary for the convenience and welfare of *624 the public." Since the application was not for a permitted and specified use in a residential B district, the decision of the board must necessarily rest on the quoted part of the ordinance. Recognizing that the power of the board to grant an exception is broad and might be abused, in Costantino v. Zoning Board of Review, 74 R.I. 316, at page 324, 60 A.2d 478, the court stated that such power should be sparingly used, meaning thereby that a decision granting an exception would be reversed as an abuse of discretion in the exercise of the legal power delegated to the board unless such decision was based upon some substantial ground, as in East Providence Mills, Inc. v. Zoning Board of Review, supra. The nature and extent of the proposed use in the instant case present an extreme departure from the permitted uses in the district. After due consideration we are of the opinion that the board was not warranted in granting an exception that would permit the applicant to introduce a new business of such size and character in a residential zone. The grounds set forth by the board in its decision relate almost entirely to the policy in zoning heretofore adopted by the city of Warwick, which policy, as hereinbefore stated, is for the city council and not for the board to determine. Therefore, excluding all questions of that nature, there is nothing in the present record which in our judgment shows that the granted exception was reasonably necessary for the convenience and welfare of the public. The petition for certiorari is granted, the decision of the respondent board is reversed, and the records in the case which have been certified to this court are ordered sent back to the respondent board.

CourtListenerOpinion

2024-06-11T07:23:54.643950

2013-10-30 08:36:18.959469+00

9736786

Mr. Justice Scanlan delivered the opinion of the court. H. S. Merrell, Trustee in Bankruptcy of the estate of Joseph William Council by appointment of the District Court of the United States for the Eastern District of North Carolina, Wilson Division, in bankruptcy cause No. 590, appeals from a judgment order entered in the Circuit court of Cook county. On November 3, 1947, National Bank of Commerce of Norfolk, Norfolk, Virginia, (hereafter referred to as the Bank), filed its complaint in the Circuit court of Cook county alleging that J. W. Council was indebted to it by virtue of a certain note dated August 18, 1947, in the principal sum of $7,388.24, which sum was past due. At the same time the Bank filed an affidavit for attachment and an attachment writ issued to attach any funds due Council. Weber Costello Company, a corporation, was summoned as garnishee, and subsequently it stated, in answer to interrogatories, that: “1. It holds indebtedness in the sum of $4811.28, representing commissions due J. W. Council on account of orders obtained by him and shipped to respective customers ; 2. Indebtedness in the sum of $200.25 representing commissions due J. W. Council on account of orders obtained by him and having been shipped and payment having been made therefor after the date of service; 3. Said J. W. Council obtained certain orders for garnishee’s products, shipped to various customers, but payment not made in amount of $192.40. J. W. Council obtained orders which had not been accepted. Goods not shipped and commissions when accepted and shipped total $1372.50.” On December 12, 1947, which was within four months of the issuance of the attachment writ, Council filed his petition in bankruptcy in the United States District Court for the Eastern District of North Carolina, Wilson Division, and he was adjudicated a bankrupt on December 13, 1947. When the Weber Costello Company filed its answer to the interrogatories, it also filed a countercomplaint, which admits that it owed Council, at the time of the service of the attachment writ, $4,811.28, that Council has demanded all commissions due him, and prays that Council and the Bank may settle their demands between themselves and that the court shall determine to whom the money should be paid. On March 22, 1948, it was ordered that Weber Costello Company pay to the Clerk of the Circuit court $5,178.68, which sum was to be subject to the order of the court. The judgment order entered by the trial court orders the Clerk of the court to pay to the Bank “out of the monies deposited by the counter-plaintiff” $3,026.86 and costs, and “that the Trustee in Bankruptcy is entitled to receive all funds in the possession of Weber Costello Company in excess of the sum of $3,026.86 to be administered by the Court of his appointment.” The Trustee appeals from that judgment order. The countercomplaint was filed two days after Council had been adjudged a bankrupt in the North Carolina court. On December 26,1947, the-Bank filed its answer to the countercomplaint, in which it set up that on June 4, 1946, Council had executed an assignment wherein he assigned to the Bank commissions due him from Weber Costello Company to secure his indebtedness to the Bank; that the assignment was in the amount of $3,026.86; that notice was given to Weber Costello Company of the assignment; that that Company acknowledged receipt of the assignment and agreed to pay to the Bank all commissions due Council on shipped orders totaling up to $3,026.86 beginning June 4,1946. On February 7, 1948, the District Court of the United States for the Eastern District of North Carolina, Wilson Division, in bankruptcy, entered an order reciting that Council was adjudicated a bankrupt in that court on December 13,1947; that H. S. Merrell was appointed Trustee on February 4, 1948, and authorizing him “to take the necessary steps to avoid the attachment lien . . . in the Circuit Court of Cook County, Illinois.” In the instant case, the answer filed by the Trustee, on March 2,1948, to the countercomplaint filed by Weber Costello Company alleges, inter alia, “the fact to be that said Joseph William Council was adjudicated a bankrupt on the 13th day of December, 1947, and that this defendant was duly appointed and qualified as Trustee in said bankruptcy of J. W. Council and has taken constructive possession of all of the assets of the said J. W. Council, and that the said sums due as aforesaid should be paid this defendant to be administered in the said bankruptcy proceedings now pending in the District Court of the United States for the Eastern District of North Carolina, Wilson Division, in Cause No. 590. . . . That the said cross-complaint was not filed in this cause until the 15th day of December 1947. That the said Joseph William Council was adjudicated a bankrupt on December 13, 1947, and all assets, including the debt due him by Weber Costello Company, passed into the possession of the Trustee in Bankruptcy and jurisdiction to determine the validity or the amount of all liens against the property of the said Joseph William Council vested exclusively in the Bankruptcy Court in the District Court of the United States for the Eastern District of North Carolina, Wilson Division, in Cause No. 590. That neither this trustee nor the said Bankruptcy Court have given permission to file this counterclaim or to adjudicate this claim outside of the said Bankruptcy Court. That this Court does not have jurisdiction of the person of Joseph William Council for the reason that he was served herein by publication; that it does not have jurisdiction of the subject matter of this cause for the reason that jurisdiction thereof has passed to the Bankruptcy Court. Therefore, this defendant asks that this cause be dismissed with plaintiff’s costs.” In the determination of this appeal we have been aided by the following statements made by the Bank in its brief: “It is an established general rule in bankruptcy law that after an adjudication in bankruptcy, the Bankruptcy court has exclusive jurisdiction to determine all questions involving the bankrupt’s property including the right to determine the extent and character of liens against the bankrupt’s property. It has also been said that the filing of a bankruptcy petition is a caveat to all the world and in effect an attachment and injunction. But — these rules and doctrines are subject to certain qualifications and limitations and must be taken with reference to the facts in each particular case. C ( 1 ‘ Congress recognized the need for additional process and procedure and provided that the Bankruptcy court shall have the right to ancillary proceedings through its trustee. After adjudication the trustee appointed in one district, may go into another and institute any action necessary to protect or recover the property of the bankrupt estate there. It is established law that any district court in bankruptcy, in the exercise of ancillary jurisdiction in aid of another Bankruptcy court, may grant injunctions, stay proceedings, etc. In other words, bankruptcy proceedings do not ipso facto, merely by virtue of their filing and maintenance, terminate an action already pending in a foreign State court, to which the bankrupt is a party or deprive the court of jurisdiction in such case. “The Bankruptcy Statute also empowers the Bankruptcy court to permit its trustee to intervene in foreign State court proceedings to protect the bankrupt’s estate and under such circumstances the trustee becomes bound by the decision in the State court case. For such purposes it matters not whether the State court case was filed before or after the trustee was appointed. í Í “The Trustee in Bankruptcy had the right to file ancillary proceedings in the United States District Court for the Northern District of Illinois — without coming into the State court case, or, had the right upon entering into the State court case, to seek removal to our local Federal District Court. He did neither although he had ample opportunity so to do as appears from the various proceedings that took place in the State court. “Instead, the Trustee in pursuance of permission granted by the court of his appointment in North Carolina, appeared voluntarily in the State court and upon leave of court filed his appearance and answer. The Trustee’s answer to the counterclaim placed in issue the validity of the Assignment of Commissions held by the Bank, claiming that said assignment had been paid in full and that the Trustee was entitled to recover the entire amount of money held by Weber Costello Co.; further, that because of the bankruptcy of said Council, all assets including the moneys held by Weber Costello Co., allegedly passed into the constructive possession of the Trustee and that the Federal District Court of North Carolina had exclusive jurisdiction. “Consequently the State court rightfully heard the case on its merits and adjudicated the claims of the parties.” (Italics ours.) The Bank further states in its brief: “There isn’t any dispute about the fact that the Attachment Writ was voidable upon the election of the Trustee in Bankruptcy .... No evidence was offered by the Bank on the attachment issue,” and it was stipulated that the writ of attachment be quashed, and the trial court quashed the writ upon motion of the Trustee. The Bank contends that “a Trustee in Bankruptcy who intervenes in a foreign State court proceeding upon leave of the court of his appointment and participates in the merits of the case, is bound by the judgment of the State court”; that “the trial court in this case had a clear right to proceed as no proper legal action had been taken to oust it from its jurisdiction,” and that “the Bankruptcy court at North Carolina authorized the Trustee to intervene in the Circuit Court of Cook County; he did intervene, stayed in the case, litigated the validity of the assignment and now complains because the trial court held against his contentions. ’ ’ The Trustee states: “The law is perfectly clear, as appellee [the Bank] points out in the first paragraph of its argument, that bankruptcy courts, after adjudication, have exclusive jurisdiction to determine questions involving the bankrupt’s property. Appellee suggests that if a bankruptcy court is to make its authority felt outside of its territorial jurisdiction it must have the cause in question transferred to the Federal Court having jurisdiction or resort to ancillary proceedings in the local bankruptcy court. Either of these means would be effective, but there is a third alternative. That is to go into the state court, plead the adjudication, and ash the state court to direct that the funds be paid to its trustee to be returned to the jurisdiction of bankruptcy court. “. . . There is no question of the right of the trustee to possession of the bankrupt’s property wherever it is. However, if it is outside the territorial jurisdiction of the court appointing the trustee, then the trustee must go into a local court to enforce his rights. That does not abridge the rights of the trustee given him by the bankruptcy statutes, but merely makes him take a further step to enforce them. In the case on appeal the trial court refused to recognize these rights and undertook to adjudicate a portion of the bankrupt’s estate.” It is true, as the Bank contends, that the Trustee, in his answer, saw fit to question the validity of the Bank’s claim against the estate of the bankrupt, nevertheless, the answer of the Trustee challenged the jurisdiction of the Circuit court of the subject matter for the reason that the jurisdiction of the subject matter had passed to the Bankruptcy court. On March 4, 1948, the trial court overruled the motion of the Trustee to dismiss the countercomplaint for want of jurisdiction upon the ground that the court attained jurisdiction of the funds by virtue of the attachment and that although the trial court voided the attachment the court still had jurisdiction of the funds and the Bankruptcy court could not oust the trial court from that jurisdiction. The trial court after overruling the motion of the Trustee to dismiss the countercomplaint set the case for hearing. In the final order the trial court sustained the Trustee’s motion to quash the attachment writ because it was issued within four months of the adjudication in bankruptcy, at which time the principal debtor was insolvent. It is conceded by the Bank that the attachment writ was voidable upon the election of the Trustee and that the trial court was justified in quashing the writ of attachment upon the motion of the Trustee. It is further conceded by the Bank that it “made no proof on the attachment issue but the case was heard solely on the counterclaim and the rights of the parties to the funds in the hands of Weber Costello Co.” In the attachment proceedings the Bank based its claim on certain notes of the bankrupt aggregating $7,388.24, but in its answer to the countercomplaint, filed nearly two weeks after the adjudication in bankruptcy, it abandoned the claim made in the attachment proceedings and based its claim upon the alleged assignments made to it by Council of moneys due him from Weber Costello Company. That the bankruptcy court has exclusive jurisdiction to control the administration of a bankrupt’s estate is settled law. In U. S. Fidelity Co. v. Bray, 225 U. S. 205, the court states (pp. 217, 218) : “We think it is a necessary conclusion from these and other provisions of the act [Bankruptcy Act] that the jurisdiction of the bankruptcy courts in all ‘proceedings in bankruptcy’ is intended to be exclusive of all other courts, and that such proceedings include, among others, all matters of administration, such as the allowance, rejection and reconsideration of claims, the reduction of the estates to money and its distribution, the determination of the preferences and priorities to be accorded to claims presented for allowance and payment in regular course, and the supervision and control of the trustees and others who are employed to assist them. C Í “Of the fact that the suit was begun in the Circuit Court with the express leave of the court of bankruptcy it suffices to say that the latter toas not at liberty to surrender its exclusive control over matters of administration or to confide them to another tribunal.” (Italics ours.) In Isaacs v. Hobbs Tie & T. Co., 282 U. S. 734, 739, the court cites with approval the rule stated in the Bray case. Other cases to the same effect need not be cited, as the Bank admits the rule. The Isaacs case further holds that a trustee in bankruptcy can recover the bankrupt’s property or enforce his rights wherever they are, and can turn to local courts for help in enforcing these rights; that “upon adjudication, title to the bankrupt’s property vests in the trustee with actual or constructive possession, and is placed in the custody of the bankruptcy court. Mueller v. Nugent, 184 U. S. 1, 14. The title and right to possession of all property owned and possessed by the bankrupt vests in the trustee as of the date of the filing of the petition in bankruptcy, no matter whether situated within or without the district in which the court sits.” (p. 737) In the Isaacs case it appeared that one Cunningham was adjudged bankrupt in the Northern District of Texas and Isaacs was made trustee of the bankrupt’s estate. Thereafter the holder of a note secured by a mortgage on certain land instituted foreclosure proceedings in a State court of Arkansas. Then the bank-rapt and the trustee specially appeared and petitioned for removal of the cause to the United States District Court for the Western District of Arkansas. To quote from the decision (p. 739): “. . . The appellant-trustee might have instituted ancillary proceedings in the District Court for the Western District of Arkansas and there obtained an injunction to restrain the appellee from foreclosing its mortgage. There is no reason, however, why he should not have followed the course here pursued, of pleading the adjudication in Texas in abatement of the foreclosure proceeding. The state court in which the foreclosure action was begun was without jurisdiction to pursue it. Upon removal into the federal court upon the ground of diversity of citizenship, the latter court had no higher or different right to interfere with the bankruptcy administration than had the state court. The answer of the trustee stated a valid defense and it was error to enter judgment against him on the pleadings. “Appellee asserts that inasmuch as the appellant removed the cause into the federal court he waived any lack of jurisdiction in that court and estopped himself to set up exclusive jurisdiction of the bankruptcy court. There is no merit in this contention. The jurisdiction in bankruptcy is made exclusive in the interest of the due administration of the estate and the preservation of the rights of both secured and unsecured creditors. This fact places it beyond the power of the court’s officers to oust it by surrender of property which has come into its possession. Whitney v. Wenman, 198 U. S. 539; In re Schermerhorn, 145 Fed. 341. Indeed, a court of bankruptcy itself is powerless to surrender its control of the administration of the estate. U. S. Fidelity & G. Co. v. Bray, 225 U. S. 205. The action of the trustee in removing the cause, could not, therefore, divest the Texas District Court of its jurisdiction.” (Italics ours.) As a trustee in bankruptcy could not surrender the control of the administration of the bankrupt’s estate even to a Federal court, he certainly could not surrender that control to the Circuit court of Cook county. If this were not so an intolerable situation as to estates of bankrupts would prevail. The Federal District Court of North Carolina had jurisdiction to direct its Trustee to appear in the State court in Illinois to plead the adjudication in "bankruptcy and to ask the State court to return to the 'Trustee moneys in its possession that admittedly belonged to the estate of the bankrupt. When the attachment writ was quashed the funds of the bankrupt were in the actual possession of the Circuit court, but the title to the funds, the constructive possession of the funds, were vested in the Trustee and the Trustee had the clear right to actual possession of the funds. In our judgment the trial court should have turned over the funds to the Trustee. Instead of doing so the trial court proceeded to pass upon the merits of the Bank’s claim, that sought to reach funds belonging to the estate of the bankrupt, and after deciding that the claim was a just one the trial court retained a part of the estate of the bankrupt sufficient to pay the claim of the Bank against the bankrupt’s estate and then entered an order that the balance of the funds in its possession be returned to the Trustee, “to be administered by the Court of his appointment.” In our view of the law the position taken by the trial court, that it attained jurisdiction of the funds by virtue of the attachment and that although the trial court voided the attachment it still had jurisdiction of the funds and the Bankruptcy court could not oust it from that jurisdiction, cannot be defended. Indeed, the Bank, in its brief, does not rely upon the court’s position. It concedes that the Bankruptcy court had exclusive jurisdiction to determine all questions involving the bankrupt’s property, including the right to determine the extent and character of hens against the bankrupt’s property, and it seeks to support the judgment entered upon the ground that “the Bankruptcy court at Forth Carolina authorized the Trustee to intervene in the Circuit Court of Cook County; he did intervene, stayed in the case, litigated the validity of the assignment and now complains because the trial court held against his contentions.” The position of the Bank is, in effect, that the North Carolina Bankruptcy court waived or surrendered its exclusive jurisdiction to determine all questions involving the bankrupt’s estate in the instant case. We have shown, however, that the Bankruptcy court cannot surrender its exclusive control over matters of administration or confide them to another tribunal. That wholesome rule is based upon the Bankruptcy Act. Counsel for the Bank have cited a number of cases in support of their contention that the Trustee participated in the proceedings before the Circuit court and is, therefore, bound by the judgment of that court, but, in our judgment, the cases cited differ from the instant one upon the facts. If the Bank has a valid claim against the bankrupt estate of Council it has a right to present it to the Bankruptcy court in North Carolina. The judgment order of the Circuit court of Cook county is reversed, and the cause is remanded with directions to the trial court to order the Clerk of the Circuit court to pay to the Trustee in Bankruptcy all funds in his hands that were deposited there by the Weber Costello Company by order of the court. Judgment order reversed, and cause remanded with directions. Friend, P. J., and Sullivan, J., concur. (See next page)

CourtListenerOpinion

2024-06-11T07:23:54.646851

2023-08-26 19:06:40.002119+00

9736787

Additional Opinion Upon Petition For Rehearing. As appears from our opinion, the principal contention urged by the Bank in its brief in support of the judgment was that “a Trustee in Bankruptcy who intervenes in a foreign State court proceeding upon leave of the court of his appointment and participates in the merits of the case, is bound by the judgment of the State court,” but as it is clear from certain cases cited in our opinion that the Bankruptcy Court was given by the Act exclusive jurisdiction to deal with the property of the bankrupt estate and that that court cannot surrender or waive that jurisdiction, the Bank abandoned, apparently, the waiver contention. In the petition for a rehearing it contends: “The bank’s claim under the counterclaim was not against the bankrupt or his bankruptcy estate. It was a direct and primary claim against a third party — Weber Costello Company, who expressly undertook and agreed to pay a specified sum of money to the bank in consideration of which the bank advanced its funds to Mr. Council. The assignment was not conditional, but passed the title to the funds thereunder directly to the bank, and such funds were not a part of the bankruptcy proceedings filed eighteen months after the assignment was given. Therefore the Bankruptcy Court did not and could not have constructive possession over property that wasn’t owned by the bankrupt. ” “Upon adjudication, title to the bankrupt’s property vests in the trustee with actual or constructive possession, and is placed in the custody of the bankruptcy court. Mueller v. Nugent, 184 U. S. 1, 14. The title and right to possession of all property owned and possessed by the bankrupt vests in the trustee as of the date of the filing of the petition in bankruptcy, no matter whether situated within or without the district in which the court sits. Robertson v. Howard, 229 U. S. 254, 259-260; Wells v. Sharp, 208 Fed. 393; Galbraith v. Robson-Hilliard Grocery Co., 216 Fed. 842. It follows that the bankruptcy court has exclusive jurisdiction to deal with the property of the bankrupt estate. It may order a sale of real estate lying outside the district. Robertson v. Howard, supra; In re Wilka, 131 Fed. 1004. When this . jurisdiction has attached the court’s possession cannot be affected by actions brought in other cou,rts. White v. Schloerb, 178 U. S. 542; Murphy v. Hofman Co., 211 U. S. 562; Dayton v. Stanard, 241 U. S. 588. . . . Thus, while valid liens existing at the time of the commencement of a bankruptcy proceeding are preserved, it is solely within the power of a court of bankruptcy to ascertain their validity and amount and to decree the method of their liquidation. Ex parte City Bank of New Orleans, 3 How. 292; Houston v. City Bank of New Orleans, 6 How. 486; Ray v. Norseworthy, 23 Wall. 128; In re Wilka, supra; Nisbet v. Federal Title & T. Co., 229 Fed. 644.” (Isaacs v. Hobbs Tie & T. Co., 282 U. S. 734, 737, 738. Italics ours.) The Bank, in its brief upon the appeal, when it was relying upon the point of waiver, stated: “It is an established general rule in bankruptcy law that after an adjudication in bankruptcy, the Bankruptcy court has exclusive jurisdiction to determine all questions involving the bankrupt’s property including the right to determine the extent and character of liens against the bankrupt’s property. It has also been said that the filing of a bankruptcy petition is a caveat to all the world and in effect an attachment and injunction. ’ ’ In passing upon the Bank’s present position we deem it advisable to restate certain salient facts: On November 3, 1947, the Bank filed a complaint in the Circuit court of Cook county against J. W. Council, the complaint alleging that Council was indebted to the Bank by virtue of a certain note dated August 18, 1947, in the principal sum of $7,388.24, which was past due. On the same day, upon an affidavit for attachment, a writ issued to attach any estate or effects of Council, and service of the writ was had 'on Weber Costello Company as garnishee. The affidavit stated that Weber Costello Company “has effects or estate of said defendant [J. W. Council] in its possession, custody or charge. ’ ’ The answer of the garnishee stated: “1. It holds indebtedness in the sum of $4811.28, representing commissions due J. W. Council on account of orders obtained by him and shipped to respective customers; “2. Indebtedness in the sum of $200.25 representing commissions due J. W. Council on account of orders obtained by him and having been shipped and payment having been made therefor after the date of service; “3. Said J. W. Council obtained certain orders for garnishee’s products, shipped to various customers, but payment not made in amount of $192.40. J. W. Council obtained orders which had not been accepted. Goods not shipped and commissions when accepted and shipped total $1372.50.” It is clear from the record that “effects or estate” of J. W. Council reached by the attachment writ were deposited by Weber Costello Company with the clerk of the Circuit court by order of that court. In the “counterclaim” of Weber Costello Company filed December 15, 1947, it alleged that on the date of the service of the writ it was indebted to J. W. Council in the sum of $4,811.28, representing commissions due, and that since the service of the writ it has become indebted to Council in further amounts, and it prayed that it “may be ordered to bring the said sums of money into this court, subject to the further order of the court.” In an order entered March 22,1948, Weber Costello Company was ordered to pay to the clerk of the court the sums it owed J. W. Council. In the “answer” of the Bank to the “counterclaim of Weber Costello Company it admitted that said Company was indebted to J. W. Council as set forth in its “counterclaim. ’ ’ On December 12,1947, which date was within four months of the service of the attachment writ, Council filed his petition in bankruptcy and was adjudicated a bankrupt on December 13,1947. On December 26, 1947, thirteen days after the adjudication in bankruptcy, the Bank filed an “answer” to the “counterclaim,” and as it was then certain that the attachment writ would be quashed upon motion of the Trustee, the Bank in its “answer” abandoned its claim against Council and asserted a claim against Weber Costello Company based upon assignments of commissions executed by Council and accepted by that Company, which agreed to pay the Bank the amounts of the assignments, and the new suit asserted that the assignment is in full force, that Weber Costello Company is indebted to the Bank in the sum of $3,026.86, and the Bank prays for judgment against Weber Costello Company and “that Court order all of assignment paid in the amount of $3026.86.” The Bank contends, and the Trustee asserts, that the “answer” of the Bank was the commencement of an entirely new suit. It follows, of course, that the Circuit court of Cook county could not even claim that it acquired jurisdiction of the subject matter of the new suit until the “answer” of the Bank was filed. It was stipulated that the attachment writ in the case of the Bank against Council was voidable and the trial court was obliged to quash if upon the motion of the Trustee. In the final judgment order the trial court entered a judgment in favor of the Bank and ordered the clerk of the court to pay to the Bank $3,026.86 and costs out of the funds that had been deposited with the clerk by Weber Costello Company by the following order of the court: “. . . that Weber Costello Company pay to the Clerk of the Circuit Court, $5178.68 [the amount Weber Costello Company stated in its 'counterclaim’ that it was indebted to Council] subject to the order of this court.” The amount so deposited was the amount reached by the attachment writ. The trial court recognized that the funds that he ordered Weber Costello Company to deposit with the clerk were funds belonging to the bankrupt, and in the judgment order also ordered ‘ ‘ that the Trustee in Bankruptcy is entitled to receive all funds in the possession of Weber Costello Company in excess of the sum of $3026.86 to he administered hy the Court of his appointment.” Indeed, the trial court in deciding the case recognized that the funds in the possession of the clerk of the court were assets or effects of the bankrupt and stated that although he quashed the attachment writ the court still had possession of the funds and the Bankruptcy Court could not oust the trial court of that jurisdiction. Until the attachment writ was quashed all parties recognized that the funds deposited with the clerk of the court were assets or effects of J. W. Council. It must be noted that the judgment order in the instant case was entered March 23, 1948, three months and ten days after the adjudication in bankruptcy. The answer of the Trustee in Bankruptcy, filed March 2, 1948, alleged that jurisdiction to determine the validity of all liens against the property of Council was exclusively in the Bankruptcy Court in North Carolina. Despite the arguments of the able attorneys for the Bank it clearly appears from the record that the trial court passed upon the validity of the alleged lien of the Bank against the funds deposited with the clerk of the court, held that it was a valid lien, and ordered the claim of the Bank paid out of the said funds. It is our considered judgment that under the record in this case and the law only the Bankruptcy Court could pass upon the validity or invalidity of the alleged lien first asser ted by the Bank in its “answer” to the “counterclaim. ’ ’ We find no good reason why the petition for a rehearing should be allowed, and it is accordingly denied. Petition for rehearing denied.

CourtListenerOpinion

2024-06-11T07:23:54.649707

2023-08-26 19:06:40.010443+00

2207325

208 Cal.App.2d 443 (1962) THE PEOPLE, Plaintiff and Respondent, v. RICHARD M. GALVAN, Defendant and Appellant. Crim. No. 1815. California Court of Appeals. Fourth Dist. Oct. 11, 1962. Peter J. Hughes, under appointment by the District Court of Appeal, for Defendant and Appellant. Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Richard S. Cohen, Deputy Attorney General, for Plaintiff and Respondent. STONE, J. [fn. *] Defendant was charged by indictment with two counts of sale of narcotics, violation of Health and Safety Code section 11501, and, by a supplement to the indictment, with a prior conviction of a felony. Defendant admitted the prior conviction but pleaded not guilty to each count of the indictment. A jury found him guilty on each count. His motion for a new trial was denied; judgment was entered pursuant to the jury verdict; and he was sentenced to the state prison on each count, the sentences to run concurrently. Defendant has appealed from the judgment and from the denial of his motion for a new trial. Fernando A. Maldonado was an agent for the Bureau of Narcotic Enforcement of the State of California, doing undercover work in the San Diego area between January and May, 1961. One Effrem Tucker was a "special employee" of the Bureau. Maldonado described a special employee as "a person employed and is paid, in this case was paid $10 per day for giving us information and introducing me to narcotic users and peddlers here in the San Diego area." On March 5 Maldonado, with Tucker as a passenger, parked a state automobile next to a curbing in the San Diego area. Prior to *446 that Tucker had "set-up" a rendezvous at this location with defendant, who was waiting. He approached on the passenger's side, Tucker informed him that he and Maldonado were looking for "stuff," referring to heroin; Maldonado passed Tucker $20 and Tucker handed it to defendant. In return defendant handed four papers to Tucker, who passed them on to Maldonado. The four papers contained heroin. Two days later Maldonado, with Tucker as his passenger, parked his car at the rear of defendant's car on a public street in San Diego. The meeting had been prearranged by Tucker. Defendant walked back to the car, approaching Tucker on the passenger's side. Again Maldonado gave Tucker $20. Tucker passed the money to defendant who, in turn, handed four white papers to Tucker and Tucker passed them to Maldonado. They contained heroin. Maldonado testified that he masqueraded as a fisherman from San Pedro looking for a source of narcotics; that he enlisted Tucker's aid to make contact with a seller; that Tucker arranged for him to meet defendant. Although the narcotic sales occurred on March 5 and March 7, defendant was not arrested until May 12. The delay in defendant's arrest was occasioned by Maldonado's operations as an undercover agent. His relations with persons trafficking in narcotics required that Maldonado retain his anonymity until May 12. The record is not clear whether defendant learned of Tucker's identity on May 12, at the time he was arrested, or on May 16, when he was arraigned and served with a transcript of the proceedings before the grand jury. In any event, on May 16 the transcript revealed to defendant that Tucker had acted as an informer. It also revealed that Tucker had been arrested for burglary prior to his participation in the narcotics sales on March 5 and 7; that Tucker pleaded guilty to the charge of burglary; that on March 24, by proceedings in the Superior Court of San Diego County, he was placed on five years' probation; that as a condition of probation Tucker was committed to the United States Public Health Service Hospital in Texas for treatment as a narcotics addict. Defendant does not challenge the sufficiency of the evidence to prove that the sales were made. His appeal is centered upon his defense of entrapment, his contention being that Tucker furnished him the narcotics and induced him to sell them to Maldonado as a favor. Defendant testified that he simply acted as a "front" for Tucker. This he did after Tucker explained that Maldonado had purchased narcotics *447 from him in the past but that he would not buy from him now because Maldonado claimed the narcotics had been of poor quality. Tucker persuaded defendant to make the sales for him and allay Maldonado's doubts. [1] It is not denied by the prosecution that defendant's arrest was delayed in order to preserve Maldonado's anonymity. This delay, argues defendant, permitted Tucker to leave California between the time the alleged crimes were committed and the time of defendant's arrest, so that defendant was deprived of a material witness at his trial. This, it is asserted, constitutes suppression of evidence by the prosecution, a denial of due process, and reversible error. The record reflects that defendant at the time of his arraignment May 16, was aware of the identity and whereabouts of the informer, Tucker. However, the record discloses no effort on the part of defendant to locate Tucker prior to October 4, two days before the trial. Furthermore, defendant cannot in good conscience argue that he was allowed insufficient time to prepare for trial since the trial, which was originally set for July 31, was continued to October 6 at his request. Defendant relies largely upon the reasoning of the court in People v. Kiihoa, 53 Cal.2d 748 [3 Cal.Rptr. 1, 349 P.2d 673]. The case at bar is distinguishable from the Kiihoa case in three important respects. First, the informer here was not sent out of the state by the police or the prosecution, as in Kiihoa. There was no design by enforcement officers or the prosecution to prevent the informer from appearing as a witness for the defendant. The superior court ordered the informer committed to a federal hospital for narcotics addicts in Texas as one of the conditions of his five- year term of probation. Second, the delay in defendant's arrest was not for the purpose of preventing his learning the identity of the informer, but to preserve the anonymity of the undercover agent, Maldonado, who was working on other cases. To have arrested defendant and disclosed the identity of the agent would have destroyed the efficacy of preliminary work by the agent with other persons suspected of trafficking in narcotics. The third distinction is that in Kiihoa when the defendant was arrested the police disclaimed any knowledge of the informer's whereabouts. The police, by design, made it impossible for Kiihoa to locate the informer to seek his assistance in preparing his defense. In the case before us the whereabouts of the informer and his identity were disclosed to *448 defendant. Furthermore the informer, although in a government hospital in the State of Texas, was under the supervision of the San Diego County Probation Office. There is nothing in the record indicating that the informer could not have been subpoenaed pursuant to Penal Code sections 1334 et seq. The three critical circumstances just related not only distinguish the case at bar from People v. Kiihoa, supra, but they also bring the case within the ambit of People v. Sauceda, 199 Cal.App.2d 47, 56 [18 Cal.Rptr. 452]; People v. Wilburn, 195 Cal.App.2d 702, 705 [16 Cal.Rptr. 97]; People v. Castedy, 194 Cal.App.2d 763, 768 [15 Cal.Rptr. 413]; People v. McKoy, 193 Cal.App.2d 104, 110 [13 Cal.Rptr. 809]; People v. Givens, 191 Cal.App.2d 834, 840 [13 Cal.Rptr. 157]. The rationale of these cases is summarized in People v. Sauceda, supra, page 56, as follows: "In all of these cases, as in People v. Kiihoa, supra, the suspect was not arrested until after the informant had left the jurisdiction. Yet the cases have uniformly held that in the void of specific testimony that the police encouraged the informer to disappear [as was the case in Kiihoa], the courts cannot infer improper motives or activities on the part of the officers, but must presume that the officers regularly and lawfully performed their duties (People v. Farrara, 46 Cal.2d 265 [294 P.2d 21]), as well as that the payment for and termination of an informer's employment is not in and of itself 'encouraging him to disappear.' (People v. Wilburn, supra.)" If we understand defendant's argument, it is that intentional delay in making an arrest for the purpose of withholding the identity of an informer, cannot be justified upon the ground of public interest if the delay deprives a defendant of a substantial right. It is apparent that defendant's argument paraphrases the reasoning expressed by the Supreme Court in People v. McShann, 50 Cal.2d 802 [330 P.2d 33]; Priestly v. Superior Court, 50 Cal.2d 812 [330 P.2d 39]; and Mitchell v. Superior Court, 50 Cal.2d 827 [330 P.2d 48]. It cannot be denied that two fundamental judicial concepts, public interest and the right of an accused to defend himself, are here in conflict. However this case is not a suitable vehicle for pursuing the interesting question of when the right of an accused to defend himself outweighs public interest in delaying an arrest to protect an informer, because defendant has made no showing that by the exercise of a reasonable *449 amount of effort he could not have secured the presence of the informer as a witness. Defendant's own lack of due diligence contributed largely to the circumstance about which he now complains. The record reveals no excuse for the failure to attempt to locate and subpoena the informer pursuant to Penal Code sections 1334 et seq., nor does defendant's brief offer any explanation for this neglect. [2] Also it follows from defendant's failure to make a showing of due diligence that it was not error to deny his request for a continuance in order to locate the informer. (People v. McShann, 177 Cal.App.2d 195, 200 [2 Cal.Rptr. 71].) [3] The foregoing discussion of defendant's first ground of appeal disposes of his second contention that the court erred in denying his offer of proof concerning his efforts to locate the informer. The trial court was justified in not permitting this evidence to go to the jury because the offer of proof showed, in addition to the facts hereinabove set forth, that the subpoenas secured two days before the trial were issued to agencies which had no control over the informer. Counsel for defendant had knowledge that the informer was under the supervision of the probation office, yet he had subpoenas issued in care of the State Bureau of Narcotics, and in care of San Diego Police Department Narcotics Detail. Each agency returned the subpoena, denying knowledge of Tucker's whereabouts. Thus defendant's offer of proof failed to support his charge that the prosecution was guilty of willful suppression of evidence. [4] Likewise defendant's failure to make an adequate offer of proof that there was suppression of evidence negates his argument that the court erred by refusing to give his instruction on the subject. Defendant offered the following: "Defendant's Requested Instruction No. 6 If the evidence demonstrates that a witness could give material and relevant testimony on the issues in question and that the ability to have such a witness available at trial was within the control of one of the parties but such witness was not called to testify, then you may infer that if such witness were called to testify, that he or she would give testimony adverse to the side failing to call such witness." The court chose to give CALJIC No. 23, which reads: "Neither the prosecution nor the defense is required to call as witnesses all persons who are shown to have been present at any of the events involved in the evidence, or who *450 may appear to have some knowledge of the matters in question in this trial; nor is the prosecution or defense required to produce as exhibits all objects or documents that have been referred to in the testimony, or the existence of which may have been suggested by the evidence." We believe defendant's argument is untenable, first, because his instruction assumes that Tucker was within the control of the prosecution. The instruction recites "that the ability to have such a witness available at trial was within the control of one of the parties. ..." The evidence does not support this assumption. Second, defendant's argument presupposes that it was the duty of the prosecution to call the informer as a witness. [5] The prevailing rule is stated in People v. Kiihoa, supra, page 752, as follows: "The prosecution is not required to call any particular witness, nor to put on all the evidence relating to a charge so long as all material evidence bearing thereon is fairly presented in such a manner as to accord to the defendant a fair trial. (People v. Tuthill, 31 Cal.2d 92, 98 [187 P.2d 16]; People v. Parry, 105 Cal.App.2d 319 [232 P.2d 899].)" (See also People v. McShann, supra, 177 Cal.App.2d 195, 199; People v. Castedy, supra, 194 Cal.App.2d 763, 769.) [6] And again in Kiihoa, page 752, the Supreme Court said: "The denial by the prosecution of an opportunity for the defendant to seek out the informer and to defend by these means, where the testimony of the informer would be material to the issues, is unfair and oppressive to the defendant, and deprives him of due process of law. (See Roviaro v. United States, 353 U.S. 53, 63-64 [77 S.Ct. 623, 1 L.Ed.2d 639]; People v. McShann, supra, 50 Cal.2d 802, 809, 810.)" (Emphasis added.) Defendant failed to take advantage of his opportunity to seek out the informer. As we have noted, defendant put off subpoenaing Tucker until two days before the trial, although he had both ample time to locate him and the means of compelling his attendance by following the procedure provided by Penal Code sections 1334 et seq. Furthermore, the tardy attempt to subpoena Tucker was misdirected and inadequate. Defendant cannot avoid the consequences of his failure to seek out the informer when he had the opportunity to do so, and likewise he cannot shift to the prosecution the burden of calling the informer as a witness for the defense. [7] Defendant's final contention is that the court erred *451 in instructing the jury on his defense of entrapment because insufficient emphasis was placed on the role of persons other than law enforcement officers. The court gave CALJIC Instructions 851 and 854, as follows: "The law does not tolerate a person, particularly a law enforcement officer, generating in the mind of a person who is innocent of any criminal purpose, the original intent to commit a crime thus entrapping such person into the commission of a crime which he would not have committed or even contemplated but for such inducement; and where a crime is committed as a consequence of such entrapment, no conviction may be had of the person so entrapped as his acts do not constitute a crime." "If the intent to commit the crime did not originate with the defendant and he was not carrying out his own criminal purpose, but the crime was suggested by another person acting with the purpose of entrapping and causing the arrest of the defendant, then the defendant is not criminally liable for the acts so committed." "It is important in considering the defense of entrapment to ascertain whether the acts charged as constituting the offense were the result of the intent of some other person to place the accused in a position where he might be charged with the offense, in which event the defendant may not be convicted or whether the defendant, acting in pursuance of his own intent, committed the acts, such other person merely affording him the opportunity of doing so, in which latter event the defense of entrapment would not relieve the defendant from responsibility." In our opinion the foregoing instructions completely and adequately cover the defense of entrapment, including a situation where a person other than a law enforcement officer is involved. We find no merit in appellant's contention that the court erred in refusing to give his proffered instruction, which reads as follows: "Defendant's Requested Instruction No. 7 In order to make the defense of entrapment available to a defendant, the person doing the entrapping need not be a law enforcement officer. If the offense was suggested by another person with the purpose of entrapping and causing the arrest of the defendant, then the defendant is not criminally liable for the acts committed, whether or not this other person was a law enforcement officer." *452 The substance of defendant's proposed instruction is fully covered by the two instructions which were given. A court is not bound to give a particular instruction submitted by a party simply because it is applicable to the case. Appropriate instructions may be selected by the court from those submitted by the parties, or the court may use its own instructions, provided the instructions given by the court embrace and fairly state all points of law on all the material elements of the case. (People v. Clark, 116 Cal.App.2d 219, 224 [253 P.2d 510]; People v. Latona, 2 Cal.2d 714, 727 [43 P.2d 260]; People v. Young, 70 Cal.App.2d 28 [160 P.2d 132]; 2 Witkin, California Procedure, 52(b), p. 1780.) The judgment and the order denying motion for new trial are affirmed. Griffin, P. J., and Coughlin, J., concurred. NOTES [fn. *] *. Assigned by Chairman of Judicial Council.

CourtListenerOpinion

2024-06-11T07:23:54.654332

2013-10-30 08:36:18.983374+00

2207438

405 Ill. 460 (1950) 91 N.E.2d 401 MATHILDA JOHNSTON, individually and as executrix, Appellee, v. THE CITY OF EAST MOLINE, Appellant. No. 31298. Supreme Court of Illinois. Opinion filed March 22, 1950. *461 BEN A. STEWART, and ROY H. GLOCKHOFF, both of East Moline, for appellant. EAGLE & EAGLE, of Rock Island, for appellee. Judgments affirmed. Mr. JUSTICE SIMPSON delivered the opinion of the court: Leave to appeal having been granted, the appellant, the city of East Moline, is asking that we reverse two judgments against it, one in favor of Matilda Johnston, individually, and one in her favor as executrix of the estate of Dr. James P. Johnston, deceased. The judgments were obtained in the circuit court of Rock Island County and affirmed by the Appellate Court. Motions for directed verdict and for judgment notwithstanding the verdict were made by appellant in the lower court but were denied. There was another defendant below but a severance was granted and the case proceeded against appellant, alone. The principal point urged for determination is whether or not the municipality, in the construction, maintenance *462 and operation of automatic electric traffic signals, was engaged in a governmental function or in a corporate or proprietary one. The appellant contends it is not liable because the acts and omissions complained of occurred in the exercise of its governmental functions, whereas the respondent takes the view that the city was engaged in corporate duties for which it must respond in damages for its negligent conduct. Appellant also contends that the negligence alleged was not the proximate cause of the injury. February 23, 1945, a collision between two automobiles resulting in the injuries complained of occurred at the intersection of Seventh Street and Seventeenth Avenue in the city of East Moline. At this point the former street runs north and south while the other runs east and west. Since 1928 the traffic moving over this intersection in both directions has been controlled by electric automatic traffic signals which displayed at regular intervals red, amber and green lights. Traffic lights were located on each corner of the intersection. February 18, 1945, a standard supporting the traffic lights on the northwest corner of the intersection was knocked down and broken, taking it entirely out of operation. The city hall was but a short distance away and officers of the city learned that the standard was rendered useless soon after the occurrence and a record thereof was made. The standard was not replaced until March 3, following, although the city ordered the repairs promptly. The other three sets of signals were permitted to operate during the time the northwest signal was gone, but no control was exercised over the traffic moving west on Seventeenth Avenue, being that which the absent signal would have controlled. February 23, 1945, at about 10:00 P.M., Matilda Johnston and her husband, the deceased, were riding south on Seventh Street in East Moline. He was driving the automobile *463 and as they approached the intersection of Seventh Street with Seventeenth Avenue the traffic signal controlling their movement turned green and was still green as they entered the intersection traveling at about twenty miles per hour. The standard on the northwest corner, prior to its destruction, faced the east and controlled the traffic traveling west on Seventeenth Avenue. The standard on the southwest corner faces north and controls traffic going south on Seventh Street. A visor over each of the reflectors throws the light out into the street it faces but obscures the light to one traveling at right angles on the intersecting street. Seventeenth Avenue is a main street through the city and carries a heavy volume of traffic, the westbound of which was without signal control at this intersection while the northwest standard was out of operation. From February 18 to the time of the accident in question a number of minor accidents occurred at this intersection and a number of collisions were narrowly avoided. Immediately before the accident in question an automobile owned by Lester Thompson, driven by his son James L. Thompson, was proceeding west on Seventeenth Avenue. As it approached the intersection with Seventh Street there was no signal whatever controlling traffic in that direction. It entered the intersection at a speed of approximately twenty-five miles per hour, the driver not seeing the car of the deceased until it was too late to avoid a collision. The right front of the Thompson car came in contact with the left front of the Johnston car, throwing Johnston to the pavement. As he lay there unconscious another car, traveling west on Seventeenth Avenue, with no signals controlling its movement, ran through the intersection and across both of Johnston's legs. He died June 10, 1945, as a result of the injuries received in this collision. It will be seen from the above that the deceased was, by the green light controlling his movement, invited into *464 and through the intersection without any effort being made by appellant to protect him from cross traffic. During the five and one-half days prior to the accident all like traffic moving over this intersection was subjected to the same hazard. It was indeed probable, under the conditions existing at this intersection during that period, that collisions would occur. The city was charged with knowledge of this fact but did nothing to cure the evil. As was said by the Appellate Court in its affirming opinion: "It was only a question of time under the conditions which the municipality permitted to exist at this intersection, until a serious accident happened." We believe it was negligence for appellant to leave this intersection partly controlled and partly uncontrolled by traffic signals in the manner it did and that its negligence was the proximate cause of the injury. We said in Neering v. Illinois Central Railroad Co. 383 Ill. 366: "What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act." The same rule is announced in Illinois Central Railroad Co. v. Oswald, 338 Ill. 270, and in Hartnett v. Boston Store, 265 Ill. 331. An intervening and efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury. (Pullman Palace Car Co. v. Laack, 143 Ill. 242; Illinois Central Railroad Co. v. Oswald, 338 Ill. 270.) The intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was, *465 itself, probable or foreseeable. Sycamore Preserve Works v. Chicago and Northwestern Railway Co. 366 Ill. 11; Wintersteen v. National Cooperage and Woodenware Co. 361 Ill. 95; Garibaldi & Cuneo v. O'Connor, 210 Ill. 284; Armour v. Golkowska, 202 Ill. 144. Can the city evade responsibility for this injury on the theory that its acts and omissions were in the exercise of its governmental function? There is no controversy concerning the material facts as above enumerated. A municipality is not liable in damages for injuries to persons resulting from the negligence of its agents and servants while in the exercise of its governmental functions, (LePitre v. Chicago Park Dist. 374 Ill. 184; Gebhardt v. Village of LaGrange Park, 354 Ill. 234,) but it is equally well settled that a municipality is liable for the negligence of its servants in the exercise of its corporate duties as distinguished from governmental functions. Gravander v. City of Chicago, 399 Ill. 381; Roumbos v. City of Chicago, 332 Ill. 70; Hanrahan v. City of Chicago, 289 Ill. 400; City of Chicago v. Seben, 165 Ill. 371. There was no statute requiring appellant to construct and maintain automatic signal devices at the intersection in question. (Cahill Illinois Rev. Stat. 1927, chap. 95a, secs. 26 and 33, pars. 27 and 34; Ill. Rev. Stat. 1943, chap. 95 1/2, sec. 30, par. 127.) Its action in this connection was voluntary. It had the power to provide for them if in its discretion they were necessary, but it was not required to do so. There is no claim that appellant was negligent in the exercise of its discretion to provide such system, or in the original construction of it. Whether in those matters it was in the exercise of a governmental function or a corporate duty is not, therefore, before us. The question of what the city did or permitted at the intersection, in the matter of controlling or not controlling traffic after the northwest standard was removed, is before us, and whether or not its acts and omissions in that regard *466 were in the exercise of a governmental function or a corporate duty must be decided. As early as City of Chicago v. Powers, 42 Ill. 169, the principle was recognized that where a municipality undertakes to protect a street or bridge by lights it is liable for negligence if it does it in an insufficient manner. In City of Freeport v. Isbell, 83 Ill. 440, the same principle is enunciated and the Powers case is cited, the court saying with reference to it: "In the case referred to, the city had lighted a certain bridge where the accident occurred, as well as the street; but the injury arose from the fact that the light furnished by the city was insufficient to afford proper protection." In the Isbell case the city had omitted to light a portion of the street. It was held not liable but the court said: "In this case, if the city of Freeport, under the power conferred by the charter, had assumed to light the street where the accident occurred, but had exercised the power in a negligent manner, and had failed, in the exercise of the power, to furnish lights sufficient to afford proper security from danger, a different rule would prevail, and the rule announced in the case cited [Powers case] would govern." A municipal corporation acts judicially or exercises discretion when it selects and adopts a plan in the making of public improvements, but as soon as it begins to carry out that plan it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner. Johnston v. City of Chicago, 258 Ill. 494; City of Chicago v. Seben, 165 Ill. 371; 4 Dillon on Mun. Corp. (5th ed.) sec. 1741. A rule determining when a municipality is exercising a public or governmental function as distinguished from a strictly corporate duty is difficult to formulate. It has been said more than once that all that can be done with safety is to determine each case as it arises. See Johnston v. City of Chicago, 258 Ill. 494, 497, wherein is cited *467 Lloyd v. New York, 5 N.Y. 369, and Cobb v. Dalton, 53 Ga. 426. In the Johnston case the city was held liable for negligence of a driver of an automobile hired by the library board which was part of the city government and who at the time of the accident was conveying books from one library building to another along the streets of Chicago. On page 497 of that opinion, the court, speaking through Mr. Justice Carter, said: "It is frequently stated that to determine whether there is municipal responsibility the inquiry must be whether the particular agents or servants for whose acts of negligence it is sought to hold the corporation are its agents and servants for the performance of a public duty imposed by law, or merely for the carrying out of private functions which are for its special benefit or advantage. [Citations.]" In the same case it was said that the mere fact that a particular work may incidentally benefit the public does not necessarily exempt the city from liability for torts committed by its employees. It appears that appellant was specially benefited by the signal system, along with the public generally. The evidence shows that Seventeenth Avenue carried heavy traffic. The traffic on Seventh Street was also heavy and consisted mainly of travel between the business and residence districts of the city. It no doubt was difficult to enter or cross Seventeenth Avenue at the intersection. Being unable to cross readily, traffic would necessarily accumulate and congest in the city streets, whereas if it were intermittently protected in its movements across Seventeenth Avenue the congestion would not occur in so great volume. Congestion of automobile traffic in a street may lead to delay, inconvenience and damage to citizens. We said in Roumbos v. City of Chicago, 332 Ill. 70, that it has always been the doctrine of this court that while the legal obligation of the city to construct gutters and sewers is one which is voluntarily assumed, yet, having assumed the obligation and constructed these improvements *468 for the benefit of the public, it then becomes the duty of the city to see that they are kept in repair. That same principle applies here. In the Roumbos case the city was held liable for the negligence of a street cleaner who set fire to a pile of rubbish and negligently left it burning without watching it and the flames blew across the sidewalk, igniting the clothing of a child causing her death. It was also stated in that case that the care of streets and sidewalks, lighting and maintenance, have always been held in this State to be the corporate functions of the municipality, and that the municipality has been held liable for the negligence of its employees in the performance of those functions which has resulted in injury to others. Appellant having elected to install, and having installed the signal system in question, it was a corporate duty not to permit its operation in a manner calculated to cause injury to others. In permitting the signal lights on the three corners of the intersection to operate while those at the northwest corner were completely out of service it failed to perform a corporate duty. Appellant cites cases in many foreign jurisdictions where municipalities have avoided liability under similar facts because the acts complained of were held to have occurred in the exercise of a governmental function. Most of the cited cases are set forth in the opinion of the Appellate Court (338 Ill. App. 220,) and it will not be necessary for us to cite any of them here. A majority of the decisions of other States seem to uphold appellant's position. Justice and reason, however, impel us to the conclusion that after the signal system in question was constructed and in operation, the keeping of it in such condition that it would not inevitably be hazardous and invite citizens into danger was a corporate duty, for the failure of which liability was incurred. In our opinion, both the circuit and the Appellate courts were right in their decisions and the judgments are affirmed. Judgments affirmed.

CourtListenerOpinion

2024-06-11T07:23:54.660167

2013-10-30 08:36:19.877146+00

2207442

79 A.2d 920 (1951) JENNINGS v. JENNINGS. M. P. No. 974. Supreme Court of Rhode Island. April 9, 1951. Harlow & Boudreau, Providence, for petitioner. John G. Murphy, James J. Corrigan, Providence, for respondent. BAKER, Justice. This is a petition by a husband for a writ of certiorari seeking to have this court review and quash an order, entered by the superior court on motion of the wife as petitioner in a divorce proceeding pending in that court, granting her an allowance for her support pendente lite, to be paid by him. We did not order the writ to issue but the instant hearing was in pursuance of our citation that he show cause why the writ should issue. In the sworn petition it is alleged among other things that at the hearing in the superior court on the above motion it appeared from the testimony of the instant respondent, hereinafter referred to as the wife, that shortly before such hearing she received the sum of $3,250 in satisfaction of a certain claim against an estate; that she possessed securities of the then value of approximately $13,000; and that she owned and lived in a house containing several apartments from which she derived a substantial *921 rental. The petitioner herein, called the husband, also alleged in substance in his petition as grounds for the issuance of the writ that in entering the order in question the superior court acted in excess of its jurisdiction, abused its discretion, and was arbitrary and oppressive in its decision. It appears that the wife's motion before the superior court was in the usual form and asked for an allowance for her support pendente lite and for counsel and witness fees. However, at the hearing in that court only the request for an allowance for her support was pressed. The matter of counsel and witness fees was expressly withdrawn and they were not ordered. Further, the husband does not contend that he is not financially able to pay his wife the weekly amount ordered by the court as such allowance. The principal point urged by him in support of the present petition is that the superior court acted in excess of its jurisdiction in entering the order in question. Since that contention raises chiefly a question of law it will not be necessary at this time to refer in detail to the facts of the case. It is not disputed that proceedings in divorce are statutory in nature. This court has held that an order for alimony, meaning allowances for support pendente lite, is included within the provisions of what is now general laws 1938, chapter 416, § 14. Grattage v. Superior Court, 42 R.I. 546, 109 A. 86. The court in that and other cited cases reached such conclusion by adopting the uniform and broad construction of that section which the bench and bar had placed thereon in practice for a considerable number of years, rather than a strict and literal construction of the exact language appearing in such section. In accordance with the above holding the husband does not question the fact that the superior court had jurisdiction under § 14 in a proper case to enter an order granting an allowance for support pendente lite. However, he does maintain that in the present circumstances the superior court acted in excess of its jurisdiction in entering such an order since it appeared in evidence that his wife had a substantial amount of property of her own, as is set out in the petition now before us. The material part of § 14 reads as follows: "The said court * * * may in its discretion make such allowance to the wife, out of the estate of the husband, for the purpose of enabling her to prosecute or defend against any such petition for divorce or separate maintenance, in case she has no property of her own available for such purpose, as it may think reasonable and proper * * *." The husband urges that the words "in case she has no property of her own available for such purpose" in the above section should be construed as applying to the making of an order for support pendente lite for his wife. We are unable to agree with that contention. In our judgment the "purpose" therein mentioned refers to the making of an order in favor of the wife "for the purpose of enabling her to prosecute or defend against any such petition for divorce or separate maintenance." In other words, the existence in the wife of available property sets up a condition ordinarily preventing the granting of her motion for attorney's and witnesses' fees and such other expenses as may directly bear upon her ability to prosecute or defend against proceedings of the nature described. However, it does not necessarily prevent the granting of a motion for an allowance for her support pendente lite, which rests upon a fundamentally different basis. Cases from other jurisdictions are not controlling in determining the issue before us, because in Grattage v. Superior Court, supra, we have a case in which the petitioner questioned the validity of an order in divorce proceedings making, among other things, an allowance pendente lite for the support of his wife. In that connection the court at page 551 of its opinion stated that in the divorce proceeding "the respondent was ordered to fulfill an obligation imposed upon him by law, namely, to provide for the support of his wife." It therefore appears that the court was not necessarily depending entirely on *922 the above-mentioned statute for its authority to order, pending the hearing, an allowance for support of the wife which was the husband's legal obligation apart from such statute. Nor is the instant case governed by Sanford v. Sanford, 2 R.I. 64, cited to us by the husband. It appears that the pertinent statute respecting allowances was not similar to the one now in force; that the court in denying petitioner's motion treated it as one asking for an allowance to defray her expenses in carrying on her suit; and that the court's reference to the wife's dower interest was clearly dicta. In our opinion the husband in the instant case has not established, merely by showing that his wife had a substantial amount of property of her own, that in the circumstances the superior court acted in excess of its jurisdiction as a matter of law when it made the order of which he complains. Generally an order for support pendente lite rests in the sound discretion of the court and will be determined according to the circumstances of each particular case. If the wife has income of her own that circumstance is a factor which the court ought to consider in deciding the amount, if any, which should be allowed her. However, the mere fact that the wife has property in her own right will not in itself prevent the entry of an order allowing her support pendente lite, and it is not necessary that she impair the capital of her own separate estate before asking for allowance for temporary support from her husband. 17 Am.Jur., Divorce and Separation, §§ 539, 545, pp. 435, 439. In the instant case the wife explained how she spent the greater part of the money she had received from her claim against the estate hereinbefore mentioned. She testified regarding the taxes on her house, the cost of furnishing heat and other conveniences to her tenants, and the fact that some apartments had been vacant for a considerable time. There was also evidence that the husband had for a number of years, while the parties voluntarily had been living apart, paid her a weekly allowance which was the same amount allowed herein by the superior court. The wife testified that she needed this sum for her maintenance pendente lite. In view of the circumstances thus appearing in her evidence we cannot say that the superior court in making its decision on the motion in question abused its discretion or acted in an arbitrary manner. On the whole record we are of the opinion that the petitioner has failed to show cause why the writ of certiorari should issue. The petition is denied and dismissed.

CourtListenerOpinion

2024-06-11T07:23:54.663186

2013-10-30 08:36:19.899688+00

9736808

T. G. Kavanagh, J. On April 9, 1985, a Mecosta Circuit Court jury convicted defendant of delivery of more than fifty grams but less than 225 grams of a mixture containing cocaine, MCL 333.7401(1) and (2)(a)(iii); MSA 14.15(7401X1) and (2)(a)(iii). Thereafter, defendant was sentenced to thirteen years, four months to twenty years of imprisonment. On March 25, 1987, a panel of this Court reversed defendant’s conviction and remanded the instant action for a new trial. People v Nixten, 160 *97Mich App 203; 408 NW2d 77 (1987). On remand, defendant pled guilty to delivery of less than fifty grams of a mixture containing cocaine, MCL 333.7401(1) and (2)(a)(iv); MSA 14.15(7401X1) and (2)(a)(iv), and was sentenced to eight to twenty years of imprisonment. Subsequently, defendant moved to withdraw his plea and for resentencing. The circuit court denied his withdrawal request, but granted his sentencing request. On July 29, 1988, defendant was resentenced to seven years, eleven months and twenty-eight days to twenty years of imprisonment. He appeals as of right. We remand for resentencing. Defendant argues that the prosecution breached the plea agreement. A trial court is not bound by any sentencing agreement negotiated between a defendant and the prosecution. People v Killebrew, 416 Mich 189, 207; 330 NW2d 834 (1982). However, once a trial court accepts a plea which was induced by such an agreement, the terms of that agreement must be fulfilled. Santobello v New York, 404 US 257, 262; 92 S Ct 495; 30 L Ed 2d 427 (1971). Where the agreement is subsequently breached, a reviewing court has discretion to choose between vacating the plea or ordering specific performance, with defendant’s choice of remedy accorded considerable weight. People v Peters, 128 Mich App 292, 295; 340 NW2d 317 (1983). In the instant case, defendant pled guilty in exchange for a reduction in the charged offense and a promise that "the People will recommend that the minimum sentence in this case not exceed eight years.” The prosecution did not honor its promise and make the aforementioned general sentencing recommendation at the July 29, 1988, resentencing proceeding. Instead, the prosecution recommended, and the sentencing court adopted, a specific minimum sentence of "7 years, 11 months, *9828 days.” This latter recommendation violates the agreement, if not in letter then certainly in spirit. In In re Valle, 364 Mich 471, 477-478; 110 NW2d 673 (1961), our Supreme Court stated: If the evidence establishes that the prosecutor or the judge has made a statement which fairly interpreted by the defendant (in our case of foreign extraction and with only an eighth-grade education, presumably in court for the first time) is a promise of leniency, and the assurance is unfulfilled, the plea may be withdrawn and the case proceed to trial. We believe that, when the prosecution stated on the record at the plea hearing that defendant’s plea was induced in part by a promise that "the People will recommend that the minimum sentence in this case not exceed eight years,” defendant could have fairly interpreted this statement to mean that the prosecution would stand before the sentencing court and state: "The People recommend that the minimum sentence not exceed eight years.” Such a general sentencing recommendation permits the sentencing court to infer that it could impose any minimum sentence between one year and eight years, including a minimum sentence that fell within the applicable guidelines range, in this case within the range of thirty to forty-two months, and by doing so impose a sentence compatible with the prosecution’s recommendation. Put another way, a general recommendation of this nature leaves the sentencing court’s discretion to impose any minimum sentence less than eight years unfettered by any suggestion of a specific sentence made by the prosecution. Accordingly, we conclude that defendant could have reasonably interpreted the prosecution’s promise as one of leniency, leaving open the possibility of the *99imposition of a minimum sentence significantly less than eight years. Given that the prosecution recommended a specific sentence, and that the sentencing court adopted that sentence recommendation, we conclude that the prosecution’s action unnecessarily restricted the court’s discretion and left unfulfilled the prosecution’s assurance of leniency. The sentencing agreement was breached. However, because defendant is not asserting his innocence and is merely complaining that the prosecution did not keep its part of the bargain, we find that specific performance is the appropriate remedy. People v Kenneth Johnson, 122 Mich App 26, 29-30; 329 NW2d 520 (1982). We remand for resentencing before a different judge. People v Evans, 156 Mich App 68, 72; 401 NW2d 312 (1986). Remanded. We do not retain jurisdiction. Cavanagh, P.J., concurred.

CourtListenerOpinion

2024-06-11T07:23:54.664874

2023-08-26 19:07:17.018865+00

2207733

431 Pa. Super. 194 (1994) 636 A.2d 196 Michael S. KRICHTEN and Doris M. Krichten, Appellants, v. Melanie A. WOLPERT, Appellee. Superior Court of Pennsylvania. Argued November 8, 1993. Filed January 13, 1994. *195 Thomas P. Lang, York, for appellants. Donald B. Hoyt, York, for appellee. Before WIEAND, OLSZEWSKI and POPOVICH, JJ. *196 OLSZEWSKI, Judge: Michael and Doris Krichten appeal from the judgment of the lower court denying their petition for delay damages. We affirm. On January 19, 1989, appellee Melanie Wolpert lost control of her car and struck Michael Krichten who was working in a pipeline ditch adjacent to the road. Krichten was severely injured in the accident. On March 21, 1989, appellants filed a negligence action against Wolpert. On November 13, 1989, following an evaluation of the Krichtens' claims, Wolpert made a written offer of settlement equal to the policy limits of her automobile insurance coverage. Wolpert's insurance policy limits were $15,000 per person/$30,000 per accident. Appellants rejected the settlement offer and, on December 2, 1992, the case went to trial. After a two-day trial, the jury returned a verdict in favor of appellants in the amount of $250,000. On December 10, 1992, appellants filed a timely petition for delay damages under Pa.R.C.P. 238. This petition was supplemented by a subsequent petition filed on March 12, 1993. On May 20, 1993, the trial court denied appellants' petition. The sole issue we need to consider is whether the trial court erred in denying appellants' petition for delay damages. In Berry v. Anderson, 348 Pa.Super. 618, 502 A.2d 717 (1986), this Court held that "a plaintiff shall not be awarded damages for delay pursuant to Pa.R.C.P. 238 after the date of the defendant's offer when the court determines that because of the defendant's indigency, the offer was the full amount available for payment of the plaintiff's claim and it was impossible for the defendant to have offered more." Id. at 627, 502 A.2d at 722. It is not disputed that within a year of the accident appellee made a written settlement offer of her policy limits. The trial court found that appellee was indigent and that she had no assets other than her insurance coverage. Consequently, the trial court ruled that, under Berry, delay damages could not be awarded against appellee even if her settlement offer was inadequate under Rule 238. *197 Appellants argue that the trial court erred in finding that appellee is indigent under Rule 238. They contend that appellee possesses a viable bad faith cause of action against her insurance carrier, based upon its conduct in the handling of this case. Appellants argue that the claim should have been treated as an asset because it could be assigned to appellants, or appellee could pursue it to judgment and thereby create a pool of funds from the claim. We find this contention meritless. A trial court's determination that a defendant is indigent under Rule 238 will not be reversed absent an abuse of discretion. Krysmalski by Krysmalski v. Tarasovich, 424 Pa.Super. 121, 622 A.2d 298 (1993). We find no abuse of discretion. Appellants were willing to stipulate to appellee's indigency with the exception that they considered the bad faith claim an asset. Consequently, the only issue is whether the trial court should have considered the alleged bad faith claim an asset. First, it is pure speculation that appellee may have a bad faith claim against her insurance carrier. Whether appellee has a viable bad faith claim against her insurance carrier is a matter for another day, since the carrier is not a party to this lawsuit. See Id. at 139, 622 A.2d at 308; see also Hall v. Brown, 363 Pa.Super. 415, 420, 526 A.2d 413, 416 (1987) ("A finding that delay damages are due is fundamentally different from a determination that an insurer acted in bad faith."). We refuse to assess delay damages against a defendant on the basis of mere speculation. Moreover, we find that appellee acted within the spirit of Rule 238. There is no dispute that when appellee made her settlement offer, she offered all of her available assets. Even if appellee presently has a viable bad faith claim, it had not yet accrued at the time she made her offer. Clearly we cannot hold appellee responsible for not anticipating that a bad faith claim might accrue. Lastly, we note that our decision does not bar appellants from pursuing a bad faith claim, on an assignment from appellee, against appellee's insurance carrier. Appellants also argue that Berry should not apply to cases in which defendant or, in the context of automobile *198 accidents, defendant's insurance carrier, has not negotiated in good faith. We find it unnecessary, however, to decide whether such an exception should be carved from Berry. Assuming arguendo that such an exception should exist, we find that it would not apply here. Appellants have not demonstrated that appellee's insurance carrier negotiated in bad faith. Appellants claim the insurance carrier negotiated in bad faith because the insurance carrier did not offer appellee's policy limits until eight months after the accident. We note, however, that under Rule 238 appellee had a grace period of one year in which to make her offer. Rule 238 provides a grace period to defendants so that they may have an opportunity to investigate and evaluate an action before the damages for delay begin to run, thereby increasing the chances of an appropriate settlement. Explanatory Note, Pa.R.C.P. 238, 42 Pa.C.S.A. We refuse to find that a defendant's decision to use this grace period constitutes bad faith, per se.[1] Judgment affirmed. POPOVICH, J., concurs in the result. NOTES [1] We also note that appellants seek delay damages for the period of two and one-half years. Even if appellee's eight-month delay in making her offer was due to bad faith, we would still not award delay damages for two and one-half years. At most, appellants would only be entitled to delay damages for the eight months of delay.

CourtListenerOpinion

2024-06-11T07:23:54.667587

2013-10-30 08:36:22.846796+00

2207736

271 Cal. App. 2d 292 (1969) CITY OF LOS ANGELES, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; DOROTHEA E. BOYDSTON, Real Party in Interest. Civ. No. 34034. California Court of Appeals. Second Dist., Div. Five. Mar. 28, 1969. Roger Arnebergh, City Attorney, and Stephen R. Powers, Deputy City Attorney, for Petitioner. No appearance for Respondent. Shapiro, Finn, O'Leno and Harry E. Risnick for Real Party in Interest. ALARCON, J. pro tem. [fn. *] The petitioner has filed for a writ of mandate to require the Superior Court for Los Angeles to vacate its order denying the motion of the City of Los Angeles for a dismissal of the action pending in that court, entitled Dorothea E. Boydston v. The City of Los Angeles, a municipal corporation, superior court number NWC 3942. *294 The real party in interest, Dorothea Boydston, filed a complaint in the respondent superior court on February 11, 1964, to recover damages for personal injuries. The complaint alleges that the plaintiff was injured on February 12, 1963, by tripping and falling due to the negligence of the City of Los Angeles in failing to warn her of the existence of certain excavations, defects, and other disfigurations in the street, which was then under repair. The petitioner was served on February 14, 1964, and its answer was filed on February 25, 1964. On November 22, 1968, the petitioner served and filed a motion pursuant to section 583 of the Code of Civil Procedure for a dismissal of the action for a failure to bring the case to trial within two years after the date of the commencement of the action. Petitioner's motion was heard and denied by the respondent superior court on December 3, 1968. The real party in interest did not file or submit any points and authorities, nor any affidavit in opposition to the motion for a dismissal. The petitioner contends that the respondent superior court abused its discretion in denying the motion to dismiss in that the record before the court showed that over four years and nine months had elapsed without a trial since the date the action was filed. [1] Section 583 of the Code of Civil Procedure, insofar as it is pertinent to this matter, provides in part: "The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever the plaintiff has failed for two years after action is filed to bring said action to trial ..." This statute requires the trial judge to exercise his discretion to grant or deny the defendant's motion to dismiss if the plaintiff has failed to have the trial of his action commence within two years of the filing of the complaint. However, the exercise of this discretion is not free from appellate review if it has been abused. The trial judge may not act arbitrarily or capriciously in exercising his discretion. His decision must be governed by a consideration of existing legal principles and by the drawing of appropriate analogies to existing case law. (Raggio v. Southern Pac. Co., 181 Cal. 472 [185 P. 171].) Such discretion must be exercised in such a manner as to further, not defeat, the ends of justice. (Knight v. Pacific Gas & Elec. Co., 178 Cal. App. 2d 923 [3 Cal. Rptr. 600].) [2] It is the policy of the law that every person who has a *295 justiciable claim should have his day in court and a trial on the merits. (Black Bros. Co. v. Superior Court, 265 Cal. App. 2d 501 [71 Cal. Rptr. 344].) However, it is also the policy of the law that the defendant in a civil action is entitled to a speedy disposition of the claim against him so that he may prepare his defense when the evidence is still available and witnesses' memories are fresh. (General Motors Corp. v. Superior Court of Los Angeles County, 65 Cal. 2d 88 [52 Cal. Rptr. 460, 416 P.2d 492].) [3] Section 583 requires that the plaintiff use due diligence to prosecute his action within two years of the filing of his complaint. (Geiger v. Aetna Ins. Co., 243 Cal. App. 2d 235 [52 Cal. Rptr. 212]. See also McKenzie v. Albaeck, 219 Cal. App. 2d 97 [32 Cal. Rptr. 762].) If the evidence shows that the plaintiff has failed to exercise due diligence or fails to make a showing of excusable delay, it is an abuse of discretion for the trial judge to deny a defendant's motion to dismiss for want of prosecution within two years. (Breckenridge v. Mason, 256 Cal. App. 2d 121 [64 Cal. Rptr. 201].) In this matter, the real party in interest, Dorothea E. Boydston, did not present any proof to the respondent superior court that she had exercised due diligence in bringing her action to trial. She apparently chose to rely on the record before the court as sufficient proof that she had exercised due diligence. If the record demonstrates that due diligence was exercised by the plaintiff or that the delay in bringing the matter to trial was caused by the defendant, the filing of an affidavit pointing out what was already obvious from the record would be meaningless and of no assistance for the trial judge in exercising a proper discretion. [4] Section 583 does not require a defendant to support his motion by an affidavit. (Simonini v. Jay Dee Leather Products Co., 85 Cal. App. 2d 265 [193 P.2d 53].) This statute should not be construed to require that the plaintiff file an affidavit in opposition to a motion for a dismissal where the record clearly demonstrates that due diligence was exercised. An analysis of the record before the respondent superior court reveals the following steps taken by the plaintiff in prosecuting this matter. 1. The complaint was filed on February 11, 1964. The alleged injuries were sustained on February 12, 1963. (The answer was filed on February 25, 1964.) 2. On March 13, 1964, the defendant filed interrogatories directed to the plaintiff and a demand for a jury trial. *296 3. On March 13, 1964, the plaintiff filed through counsel a "Certificate of Readiness For Case Pending in Branch District" and a "Memorandum For Setting Contested Action," wherein it was represented to the court that "I know of no further pleading to be filed and know of no reason why the cause should not be tried as soon as the calendar of the Court will permit." 4. On April 13, 1964, the respondent superior court on its own motion set this matter for pretrial conference for May 14, 1964. 5. On May 11, 1964, the plaintiff filed a stipulation continuing the pretrial conference to July 9, 1964. 6. On July 9, 1964, the pretrial conference was continued to August 27, 1964. 7. On August 27, 1964, the "Memorandum For Setting Contested Action" was vacated and the matter was placed off calendar. 8. On October 19, 1964, the plaintiff filed her answers to the interrogatories filed and served upon the plaintiff on March 13, 1964. 9. On January 18, 1966, the plaintiff filed interrogatories directed to the defendant. (The defendant filed and served its answers to these interrogatories on February 9, 1966.) 10. On July 11, 1967, the plaintiff filed additional interrogatories directed to the defendant. (The defendant filed its answer to these interrogatories on July 27, 1967.) 11. On September 26, 1967, a second "At Issue Memorandum and Certificate of Readiness" was filed by the plaintiff through her attorney, David A. Sanders. On November 15, 1967, a third "At Issue Memorandum and Certificate of Readiness" was filed by the plaintiff. 12. On December 7, 1967, the matter was set by the respondent superior court for pretrial conference on April 9, 1968. 13. On February 8, 1968, a notice of substitution of attorneys was filed, substituting the plaintiff in propria persona as her own attorney for David A. Sanders, who had represented her from the time the complaint was filed. 14. On March 14, 1968, the plaintiff filed notice that she had retained present counsel. 15. On April 9, 1968, the pretrial conference was continued to August 6, 1968. The minute order does not indicate which side requested the continuance; however, counsel for the defendant was ordered to serve notice. *297 16. On August 6, 1968, the pretrial conference was continued to October 2, 1968, at the request of the plaintiff. 17. On October 2, 1968, "Pretrial" was waived and the matter was set for trial on January 7, 1969. A review of the record reveals that the plaintiff did not obtain a trial date on this matter until four years and nine months had elapsed since the filing of her complaint. The trial date set by the respondent superior court was approximately one month short of five years from the date of the filing of the complaint. No reason appears from the record as to why the pretrial conference scheduled on the court's own motion for August 27, 1964, was placed off calendar. However, the fact that the plaintiff did not answer the defendant's interrogatories until October 19, 1964, is some indication that the plaintiff was far from ready for trial prior to that date. Had the case been set for trial on August 27, 1964, the defendant would have had no basis for a motion to dismiss pursuant to section 583 of the Code of Civil Procedure. The only affirmative steps taken by the plaintiff to bring her action to trial within two years of the filing of her complaint were the filing of the "Certificate of Readiness For Case Pending in Branch District," a "Memorandum For Setting Contested Action" on March 13, 1964, and the filing of interrogatories directed to the defendant on January 18, 1966. The action of the court on vacating the "Memorandum For Setting Contested Action" on August 27, 1964, is unexplained in the record that was before the respondent superior court. If the plaintiff requested this order, then the delay was attributable to her, and indicates she was not ready or willing to have the case set for a fixed trial date within two years of the filing of her complaint. If the delay was caused by the defendant, or by the condition of the court's calendar, the plaintiff could have presented proof of this fact to the trial judge in reply to the motion for a dismissal. The plaintiff did not again file a request for a trial date until September 26, 1967, over three and one half years after the complaint was filed. A further delay of one year occurred before the plaintiff appeared in court to request a trial date. No evidence was presented to the respondent superior court to explain these delays nor any proof that due diligence had been exercised by the plaintiff. [5] On the face of the record before the trial judge, the *298 plaintiff failed to exercise due diligence in prosecuting her complaint against the defendant City of Los Angeles. Upon the showing by the defendant before the trial judge by way of affidavit and from the court's record that four years and nine months had elapsed since the commencement of her action, the burden was on the plaintiff to come forward to show that she had acted with diligence and that the delays were excusable. (Black Bros. Co. v. Superior Court, 265 Cal. App. 2d 501 [71 Cal. Rptr. 344]; Membrila v. Vonett Sales Co., 250 Cal. App. 2d 299 [58 Cal. Rptr. 544]; Bonelli v. Chandler, 165 Cal. App. 2d 267 [331 P.2d 705].) Since there was no evidence presented to the trial judge to excuse the delay by way of affidavit or from the record, the respondent superior court had the power and duty to dismiss the action upon the motion of the defendant. (Breckenridge v. Mason, 256 Cal. App. 2d 121 [64 Cal. Rptr. 201].) The failure to grant the defendant's motion for a dismissal was an abuse of discretion. Let a peremptory writ of mandate issue as prayed. Kaus, P. J., and Aiso, J., concurred. NOTES [fn. *] *. Assigned by the Chairman of the Judicial Council.

CourtListenerOpinion

2024-06-11T07:23:54.672546

2013-10-30 08:36:22.899514+00

9736876

WILLIAM A. BABLITCH, J. This is an original action challenging the constitutionality of sec. 757.48(l)(a), Stats., as amended by 1987 Wis. Act 355, which imposes a continuing legal education requirement on attorneys prior to their appointment as guardians ad litem. We conclude that sec. 757.48(1) (a), as amended, improperly intrudes on a regulation of the practice of law that is exclusively within the province of the judiciary. Accordingly, we hold the statute void as an unconstitutional violation of the separation of powers doctrine. The facts are stipulated. On April 14, 1987, Assembly Amendment 1 to 1987 Assembly Bill 205 was offered in the legislature. The amendment included a provision that read: "In order to be appointed as a guardian ad litem under s. 767.045, an attorney shall have completed three hours of approved continuing legal education relating to the functions and duties of a guardian ad litem under ch. 767." After further amendments in the assembly and senate, the bill was passed by the legislature, signed by the governor, and published as 1987 Wis. Act 355 on May 2, 1988. The bill as enacted appears as sec. 757.48(1)(a), Stats. Petitioners sought a declaratory ruling on the constitutionality of the enactment, and a petition for leave to commence an original action with a brief in support of the petition were filed with this court on April 21, 1989. On April 26, 1989, the court issued an administrative directive instructing the circuit judges of Wisconsin to refrain from implementing the continuing legal education requirements of sec. 757.48(l)(a), Stats. On the same date, the court ordered a response to the petition, which was filed on May 9,1989. The respondents stated *99that they did not oppose the request that the court exercise original jurisdiction. By order of May 10, 1989, this court granted the petition for leave to commence the action. The petitioners request a judgment declaring sec. 757.48(1)(a), Stats., as amended by 1987 Wisconsin Act 355, unconstitutional under the separation of powers doctrine. The petitioners further contend that the amendment to sec. 757.48(1) (a) is devoid of any standard for implementation and is therefore unconstitutionally vague. Both parties agree this is a proper case for declaratory relief. State ex rel. Lynch v. Conta, 71 Wis. 2d 662, 239 N.W.2d 313 (1976). We conclude that while the legislature may prescribe minimum standards for the eligibility of persons desiring to practice law, it is the province of the judiciary ultimately to decide the fitness of those who practice before it and to regulate their activities following their admission to practice. A concomitant of this authority is the power to decide whether special training for a particular area is appropriate. Because the amendment to sec. 757.48(l)(a), Stats., interferes with this authority, we hold it void under the separation of powers doctrine. In State v. Holmes, 106 Wis. 2d 31, 42, 315 N.W.2d 703 (1982), we discussed the separation of powers doctrine at great length. We stated: The Wisconsin constitution creates three separate coordinate branches of government, no branch subordinate to the other, no branch to arrogate to itself control over the other except as is provided by the constitution, and no branch to exercise the power committed by the constitution to another. Id. at 42. We recognized that although the three governmental branches are coordinate and separate, each deriving *100its power from the constitution, the constitution does not explicitly define legislative, executive, or judicial power. Id. Thus, it is neither possible nor practicable " 'to classify accurately all the various governmental powers and to say that this power belongs exclusively to one department and that power belongs exclusively to another.' " Id. at 42-43 (quoting Integration of Bar Case, 244 Wis. 8, 45, 11 N.W.2d 604 (1943)). The separation of powers doctrine therefore does not require an absolute division of power without overlap. Rather, the doctrine envisions a government of separated branches sharing certain powers. Holmes, 106 Wis. 2d at 43. Where the legislative and judicial powers overlap, the legislature's power to act in the area of shared authority is not unchecked. The legislature is prohibited from unreasonably burdening or substantially interfering with the judicial branch. State v. Unnamed Defendant, 150 Wis. 2d 352, 360, 441 N.W.2d 696 (1989). However, the separation of powers doctrine does not render every power conferred upon one branch of government a power which may be shared by another branch. There are zones of authority constitutionally established for each branch of government upon which any other branch of government is prohibited from intruding. As to these areas of authority, the unreasonable burden or substantial interference test does not apply: any exercise of authority by another branch of government is unconstitutional. In Matter of Complaint Against Grady, 118 Wis. 2d 762, 776, 348 N.W.2d 559 (1984).1 *101The respondents correctly assert that the judiciary and the legislature share authority to prescribe qualifications for admission to the practice of law. The judiciary is concerned with the qualifications of attorneys in the exercise of its inherent power to regulate the bar. See Holmes, 106 Wis. 2d at 45, and cases cited at n.ll. The legislature is concerned with the qualifications of attorneys pursuant to its power to promote the general welfare. As we stated in In re Cannon, 206 Wis. 374, 396, 240 N.W. 441 (1932): We think the separation of sovereign power by which the constitution assigns the legislative power to the legislature and the judicial power to the courts, with the purpose of making each department supreme and independent in its respective field, accords to the legislature the power of exacting of those who shall be admitted to the practice of the law such qualifications as the legislature shall deem sufficient to protect the public from the evils and mis-chiefs resulting from incompetent and characterless attorneys, which qualifications so prescribed must be respected by the courts. The courts cannot and should not license any as attorneys at law who do not *102possess the qualifications deemed by the legislature necessary for the protection of the public interest. This language establishes that the legislature may prescribe minimum qualifications for persons desiring to be admitted to practice law in the state as an incident to its general power to protect the public. Once admitted, however, it does not follow that the legislature shares with the judiciary the authority to establish minimum qualifications in specific areas of law. To the contrary, we made it clear in the subsequent case of State ex rel. Reynolds v. Dinger, 14 Wis. 2d 193, 206, 109 N.W.2d 685 (1961), that no rule or practice, however venerable, would preempt the exclusive authority of the judicial branch to define and regulate the activities of those who have been admitted. We stated: [T]he regulation of the practice of the law is a judicial power and is vested exclusively in the supreme court; that the practitioner in or out of court, licensed lawyer or layman, is subject to such regulation; that whenever the court's view of the public interest requires it, the court has the power to make appropriate regulations concerning the practice of law in the interest of the administration of justice, and to modify or declare void any such rule, law, or regulation by whomever promulgated, which appears to the court to interfere with the court's control of such practice for such ends. Furthermore, the competence of an attorney to represent a client in a particular area is at present governed by SCR 20:1.1, which requires competent representation through application of the legal knowledge, skill, thoroughness, and preparation necessary for the *103representation. To the extent an attorney fails to meet the level of competence necessary for effective representation, the attorney is subjected to an action for legal malpractice, and to disciplinary action undertaken pursuant to the judiciary's inherent authority to discipline members of the bar. See Rubin v. State, 194 Wis. 207, 214-15, 216 N.W. 513 (1927). The issue of an attorney's competence to practice in a particular area is therefore currently left to the attorney's professional judgment bounded solely by the judiciary's inherent power to regulate the bar. This court has never in the past authorized the legislature to adopt rules or enact legislation attempting to establish a threshold level of competency to practice in a particular area. In fact, this court has specifically prohibited attorneys from holding themselves out as having special expertise in a particular field of law. See SCR 20:7.4. We therefore conclude that once an attorney has been determined to have met the legislative and judicial threshold requirements and is admitted to practice law, he or she is subject to the judiciary's inherent and exclusive authority to regulate the practice of law. A necessary attribute of the court's regulatory authority is the power to determine the quantum of competence necessary to perform legal tasks and the authority to discipline those practitioners who fail to represent their clients competently. See In re Cannon, 206 Wis. at 397-98. Because the amendment to sec. 757.48(1)(a), Stats., intrudes upon that area of exclusive authority, it unconstitutionally violates the separation of powers doctrine. In urging a contrary result, the respondents draw an analogy to the rules governing appointment of private practitioners to serve as public defenders. The respon*104dents argue that before an attorney can be certified, they are required to complete seven hours of continuing legal education each calendar year in courses approved by the state public defender. See Wis. Admin. Code, Sec. SPD 1.04(9). Furthermore, the public defender board was created by the legislature under sec. 15.78, Stats., and the board members are appointed by the governor with the advice and consent of the senate, pursuant to sec. 15.07(1). Therefore, the respondents insist that if sec. 757.48(l)(a) is a violation of the separation of powers doctrine, then so too must be the public defender requirements for appointment to represent indigent clients. We are unpersuaded. Section SPD 1.04(9) does not constitute an example of the legislature intruding on the discretion of the circuit courts in deciding whom to appoint. The rule relates to attorneys who are eligible to represent indigent clients on behalf of the state public defender. The rule does not purport to prohibit circuit courts from appointing attorneys other than those certified by the state public defender who the court may see fit to serve as the legal representative of an indigent criminal defendant. There is nothing in the implementing legislation to suggest that any attorney licensed to practice could not, if he or she were willing, be appointed to represent an indigent defendant even though the practitioner did not meet the requirement of sec. SPD 1.04(9). Unlike the public defender regulations, the amendment under challenge here intervenes in a court's decision concerning whom to appoint as a guardian ad litem and imposes a standard that displaces the adjudicative function. Nor does the decision in Witter v. Cook County Com'rs et. al., 100 N.E. 148 (Ill. 1912), support the *105respondent's position. That case involved a statute creating the position of probation officer in the juvenile court. The situation is more closely analogous to the Wisconsin public defender rule requiring private attorneys to take certain continuing legal education as a precondition to eligibility for employment. Thus, Witter is not authority for the proposition that the legislature may intervene in a court's decision concerning whom to appoint as guardian ad litem. Finally, the respondents suggest that even if the amendment to sec. 757.48(l)(a), Stats., falls within the court's exclusive authority, the statute is valid as an aid to the court's power, much as the practice of real estate brokers to use legal forms was allowed to continue in Reynolds v. Dinger, 14 Wis. 2d at 206. However, unlike the matter before the court in Reynolds, this is not a situation where the court is called upon to review a practice that has been engaged in by laypersons, tacitly permitted over a substantial period of time, and determined to function "reasonably well." Id. at 206. The amendment to sec. 757.48(1) (a) imposes practical impediments to the court's discharge of its substantive decisionmak-ing authority, and usurps the uniquely judicial function of determining the qualifications of those seeking to represent a minor litigant's interest. Accordingly, sec. 757.48(1)(a), as amended by 1987 Wis. Act 355, is unconstitutional. In reaching this conclusion, we do not question the legislature's laudable purpose in establishing a level of competence for persons appointed to serve as guardians ad litem, thereby also promoting efficiency in the adjudication of minors' rights. However, these qualifications can only be established by the judicial branch pursuant *106to its authority conferred by Art. VII of the Wisconsin Constitution. Accordingly, we conclude that it is the province of the judiciary to decide whether special training for a particular area of the law is appropriate. The amendment to sec. 757.48(l)(a), Stats., interferes with this court's power in that regard, and therefore violates the separation of powers. Because of our conclusion in this regard, we need not reach the issue whether sec. 757.48(1) (a) is impermissibly vague. By the Court. — Rights Declared. For examples of recognized areas of authority exclusive to the judicial and therefore free from intrusion by another branch *101of government, see, e.g., In re Janitor of Supreme Court, 35 Wis. 410 (1874) (an attempt to remove and replace a court employee); In re Court Room, 148 Wis. 109 (1912) (an attempt to dictate the physical facilities in which a court was to exercise its judicial functions); Thoe v. Chicago, M. & St. P.R. Co., 181 Wis. 456 (1923) (an attempt to legislate what constitutes the legal sufficiency of evidence); Rules of Court Case, 204 Wis. 501 (1931) (an attempt to regulate trials in the conduct of court business); see also, cases cited in G. Currie & W. Resh, The Separation of Powers Control of Courts and Lawyers, 47 Wis. Bar Bull. 7, 11 (Dec. 1974).

CourtListenerOpinion

2024-06-11T07:23:54.675516

2023-08-26 19:08:54.218562+00

9736877

SHIRLEY S. ABRAHAMSON, J. (dissenting). Once again this court claims exclusive judicial authority and declares a statute unconstitutional.1 This court's expanding concept of its own exclusive judicial authority creates the danger of unchecked power in this court. The legislature, bench, bar and public should be concerned.2 The issue presented by the case is whether the legislature may impose educational requirements on certain *107guardians ad litem. Section 757.48(l)(a), Stats. 1987-88, requires that circuit courts appoint as guardians ad litem for children in actions affecting the family only those attorneys who "have completed three hours of approved continuing legal education related to the functions and duties of a guardian ad litem under ch. 767."3 The majority opinion chooses to characterize sec. 757.48(1)(a) as regulating the practice of law and concludes that any statute regulating the practice of law is unconstitutional. I share the majority's doubts about the wisdom of sec. 757.48(1)(a).4 Nevertheless I conclude that sec. 757.48(1)(a) is constitutional. A statute is presumed constitutional; the opponents of legislation bear the burden of proving unconstitutionality beyond a reasonable *108doubt. In Matter of E.B. v. State, 111 Wis. 2d 175, 180, 330 N.W.2d 584 (1983). No such showing has been made in this case. When determining whether a statute is unconstitutional as a usurpation of judicial powers, I believe the court should, following our earlier cases, consider four questions. First, is the subject matter of the statute within the legislature's constitutional charge to promote the general welfare? Second, is the subject matter within the court's constitutional grant of judicial power? Third, is the subject matter properly characterized as falling within the area of powers shared between the legislature and the courts or does the subject matter fall within the court's exclusive authority? Fourth, what is the effect of the statute on the administration of justice? Although I believe this court may be better qualified than the legislature to deal with the issue of educational requirements for guardians ad litem, this court need not claim exclusive authority or declare the" statute unconstitutional to take advantage of its expertise. HH The Wisconsin legislature has plenary power to enact legislation for the general welfare. Except for the argument on separation of powers, the parties do not cite any state or federal law that would prevent the legislature from regulating the educational qualifications of guardians ad litem who represent children in an action affecting the family. I conclude that the legislature clearly acted under its constitutional plenary legislative .powers to protect the general welfare. *109HH HH No one disputes this court's power to regulate the educational requirements of attorneys who are appointed guardians ad litem to represent children in an action affecting the family. The constitutional grant of judicial power extends beyond the power to decide a particular case. It encompasses those powers necessary for the court to efficiently perform its adjudicatory role. These powers are known as incidental, implied or inherent powers. State v. Holmes, 106 Wis. 2d 31, 44, 315 N.W.2d 703 (1981); In re Cannon, 206 Wis. 374, 393-95, 240 N.W. 441 (1932); State v. Cannon, 199 Wis. 401, 402, 226 N.W. 385 (1929); State v. Cannon, 196 Wis. 534, 536-537, 221 N.W. 603 (1928). In the past, the court has exercised its incidental, implied or inherent judicial powers to regulate the court's budget, regulate pleading, practice and procedure, appoint counsel at the public's expense, create a judicial code of ethics, and discipline judges. See Rules of Court, 204 Wis. 501, 236 N.W. 717 (1931); Holmes, supra, 106 Wis. 2d at 45 n.11 and the cases cited therein; In Matter of E.B., supra 111 Wis. 2d at 181-82. HH hH The majority opinion characterizes sec. 757.48(1) (a) as regulating the practice of law, an area it labels as exclusively within the judiciary's power under the separation of powers doctrine. As I explain later, see Part IV below, the cases do not support the conclusion the majority reaches. The majority opinion ignores the broader purposes and other possible characterizations of the legislation. I would characterize sec. 757.48(l)(a) as protecting children in court, protecting families, regulating guardi*110ans ad litem, governing pleading, practice and procedure, and incidentally affecting lawyers. The judiciary does not have the power, exclusive of the legislature, to act in any of the forementioned areas. I therefore conclude that sec. 757.48(1) (a) falls within the powers shared by the legislature and the judiciary. This court has declared in numerous decisions that the doctrine of separation of powers is not an absolute rule but a working principle of government. The doctrine is applied to maintain the balance of power among the three branches of government, to preserve their respective independence and integrity, and to prevent the concentration of unchecked power in the hands of any one branch. In Matter of E.B., supra 111 Wis. 2d 181; In Matter of Complaint Against Grady, 118 Wis. 2d 762, 790 n.4, 348 N.W.2d 559 (1984) (Abrahamson, J., concurring). Relying on the separation of powers doctrine, this court has guarded the judiciary's independence and has been unwilling to sanction any legislative attempt to interfere with the essence of judicial power — a court's ability to decide the merits of a dispute under law, independently, impartially and free from coercion from another branch of government. At the same time the court has been reluctant to draw absolute boundaries between legislative and judicial powers because of the amorphous nature of the separation of powers doctrine. Davis v. The President and Trustees of the Village of Menasha, 21 Wis. 497 [*491], 501 [*495] (1867). In Matter of E.B., supra 111 Wis. 2d at 181. The primary sources for interpreting the separation of powers doctrine sire the practices before and at the time of the adoption of the constitution and the earliest interpretation of the provision as manifested in the first laws adopted by the legislature. Rules of the Court, 204 *111Wis. 501, 505, 236 N.W. 717 (1931); State v. Beno, 116 Wis. 2d 122, 136-37, 341 N.W.2d 668 (1984); State v. Unnamed Defendant, 150 Wis. 2d 352, 361, 441 N.W.2d 696 (1989) (overruling State ex rel. Unnamed Petitioners v. Connors, 136 Wis. 2d 118, 401 N.W.2d 782 (1987)). History supports my conclusion that sec. 757.48(1) (a) is properly characterized as falling within the area of shared powers. Wisconsin legislative enactments on the subject of children in court and guardians ad litem predate statehood. In 1837, the territorial legislature required courts to appoint guardians ad litem for minors who were parties to litigation. Laws of 1839, p. 160. In 1849 the newly formed state legislature enacted a similar statute. Laws of 1848, ch. 88, sec. 35. In 1887, the legislature required that guardians ad litem be attorneys. See 1887 R.S. ch. 295, sec. 1. See Hohmann and Dwyer, Guardians ad Litem in Wisconsin, 48 Marq. L. Rev. 445 (1965). The legislature's longstanding and continuing involvement in defining when a court should appoint a guardian ad litem and the qualifications and responsibilities of the guardian ad litem justifies concluding that the regulation of guardians ad litem falls within the area of powers shared by the legislature and the courts, not within the exclusive domain of this court. If a law falls within an area of shared authority, as I believe sec. 757.48(1) (a) does, the law is constitutional unless it unduly burdens or substantially interferes with the judicial branch. State v. Holmes, 106 Wis. 2d 31, 42, 68, 315 N.W.2d 703 (1981). Petitioners argue, but never demonstrate with the requisite degree of certainty, that sec. 757.48(1) (a) would place an undue burden on or substantially interfere with the circuit court or this *112court.5 The majority opinion fails to consider whether any significant impairment exists. The legislative requirement that guardians ad litem who represent children in any action affecting the family take three hours of approved continuing legal education credit fits with the court's rules requiring every lawyer to take a prescribed number of credit hours of continuing legal education. SCR ch. 31. The legislative requirement parallels this court's own order requiring lawyers to "attend as part of the continuing legal education requirement of SCR 31.02 three hours of approved continuing legal education credits on the subject of the new Rules of Professional Conduct for Attorneys." Supreme Court Order, In the Matter of the Amendment of Supreme Court Rules: SCR Chapter 20: Code of Professional Responsibility, June 10, 1987, p. 5.6 The shared powers approach respects the expertise and institutional ability of both the legislature and the courts. If the court believes sec. 757.48(1) (a) is unsound or can be improved, the court should not declare the statute unconstitutional but should hold a public hearing and amend or suspend the statute pursuant to its rule-making powers under sec. 751.12, Stats. 1987-88.7 *113IV. The majority contends that the court possesses the exclusive authority to regulate the practice of law to the complete exclusion of the legislature. Our case law provides no support for holding that this court shall, in the absence of legislative interference with the judicial branch, exclusively regulate the practice of law. The court stated in Integration of Bar Case, 244 Wis. 8, 50, 11 N.W.2d 604, 12 N.W.2d 689 (1943), "it is quite obvious from a study of the history of the bar and the consideration of judicial decisions that the line of demarcation between the legislative field and the judicial field in mat*114ters relating to the bar is not a straight line or even a fixed one." I can find no unified theory in our cases explaining the court's and legislature's spheres of authority in matters relating to admission to the bar, practice of law or disbarment. The court has followed a pragmatic approach to statutes relating to these subjects, seeking to accommodate the legislature's concerns for the general welfare, to defer to reasonable legislative enactments, and to avoid conflict with the legislature. See, e.g., Application of Lavinia Goodell, 39 Wis. 232 (1875), 48 Wis. 693, 81 N.W. 551 (1879); State v. Cannon, 196 Wis. 534, 221 N.W. 603 (1928); In re Cannon, 206 Wis. 374, 240 N.W. 441 (1932); State ex rel. Junior Assn of Milwaukee Bar v. Rice, 236 Wis. 38, 53, 294 N.W. 550 (1940); State ex rel. Reynolds v. Dinger, 14 Wis. 2d 193, 109 N.W.2d 685 (1960). The majority opinion contends that In re Cannon, 206 Wis. at 396, and State ex rel. Reynolds v. Dinger, 14 Wis. 2d at 206, prohibit the legislature from regulating the practice of law. I disagree. Cannon's reach is significantly more limited than the majority opinion suggests. The Cannon court merely held that the legislature may not enact a statute admitting a single individual as a member of the bar, namely Raymond Cannon, whom the court had suspended from practice of law. The court reasoned that the legislature may establish minimum criteria for bar admission so long as the criteria apply generally to all attorneys and do not interfere with the court's power to enact further requirements for admission or to discipline individual attorneys. Cannon does not suggest the legislative interest ends with lawyers' admission to the bar. Similarly, the majority opinion's reliance on Dinger is misplaced. In Dinger, the court considered whether *115the real estate brokers could complete title transfers and real estate documents for their clients or whether these activities constitute the unauthorized practice of law. The court stated in dictum that it has the exclusive power to regulate the practice of law. It also stated, however, that its power did not displace the role of the legislature or an administrative agency to adopt laws and regulations that might affect the legal profession or that aids the court in its constitutional powers affecting the legal profession. Dinger, supra 14 Wis. 2d at 203, 206. The Dinger court held that the court retains the final power to modify any rule, law, or regulation which interferes with the court's function in the administration of justice. Even if the court were to determine that the sec. 757.48(1) (a) falls within the exclusive power of the court under the separation of powers doctrine, the statute is not necessarily unconstitutional. When the court has claimed an area as exclusive to the judiciary, the court has turned to principles of comity, recognizing the legislature's power and duty to declare itself on questions relating to the general welfare. This rationale for the judicial policy of comity is set forth in State v. Holmes, 106 Wis. 2d at 46 (quoting Integration of the Bar Case, 244 Wis. at 52): While the legislature has no constitutional power to compel the court to act or, if it acts, to act in a particular way in the discharge of the judicial function, it may nevertheless with propriety, and in the exercise of its power and the discharge of its duty, declare itself upon questions relating to the general welfare .... The court, as has been exemplified during the entire history of the state will respect such declaration and, as already indicated, adopt them so *116far as they do not embarrass the court or impair its constitutional functions. Accordingly, this court has consistently held that even if a law falls within the court's exclusive authority, the court will uphold the law if this court accepts it as an aid to the court's power; it is invalid if this court determines that the law thwarts the administration of justice. State ex rel. Reynolds v. Dinger, 14 Wis. 2d 193, 109 N.W.2d 685 (1961). The majority opinion makes no effort to demonstrate that sec. 757.48(1) (a) thwarts the court's authority or the administration of justice. There is nothing in the record to show that sec.,757.48(l)(a) thwarts the administration of justice or impedes or interferes with the administration of justice. I therefore conclude that the statute is constitutional. V. I do not join the majority opinion because it improperly and unwisely closes the people's access to the legislature by characterizing the statute as falling within this court's exclusive powers. Neither the majority opinion nor the cases it cites defines the phrase practice of law. For the difficulty of defining what constitutes the practice of law, see Dinger, supra. The court arbitrarily claims the power to place vast areas of the law beyond the power of the legislative and executive branches by characterizing a statute as regulating the "practice of law." As a result of this opinion, the only recourse for those seeking to improve the quality of performance of guardians ad litem who represent children in an action affecting the family is to petition this court to adopt rules. I do not believe the court's rule-making process *117should supplant the right of the people to act through their elected representatives. The court's rule-making procedures are, unfortunately, confusing and shrouded in secrecy. Some rules fall within sec. 751.12, Stats. 1987-88. Others fall within the Supreme Court Rules. Still others fall within the court's Internal Operating Procedures. The procedure for petitioning the court for the different types of rules is not clear. The court holds hearings on some rules, not on others. Hearings are open to the public. The decision-making process on all rules and internal operating procedures is presently closed. In the past the court usually has not explained its adoption of a rule or refused to adopt a proposed rule. See, e.g., In re Felony Sentencing Guidelines, 120 Wis. 2d 198, 216-18, 353 N.W.2d 793 (1984) (Abrahamson, J., dissenting). The public's need for access to this court's decision-making process concerning rules and administrative matters becomes all the more important as the court declares its powers to be exclusive of the legislature. At times this court must assume exclusive power to ensure the orderly administration of justice. In my opinion, this case is not one of those times. The majority opinion departs from time-honored principles of shared powers between two equal and coordinate branches of government and the spirit of comity. Justice Crownhart's words in 1929 chastising the court for assuming powers are applicable in this case: "The court is the sole judge of its powers, without guide or compass. I would think that this court would not wish [to exercise] arbitrary power, for arbitrary power begets arbitrary use *118or abuse of power." State v. Cannon, 196 Wis. 534 (1929) (Crownhart, J., dissenting). For the reasons set forth, I dissent. See also In re Grady, 118 Wis. 2d 762, 790, 348 N.W.2d 559 (1984). For a discussion of the dangers of courts' increasingly declaring their exclusive prerogative of regulating lawyers, see Wolfram, Lawyer Turf and Lawyer Regulation — The Role of the Inherent-Powers Doctrine, 12 U. Ark. Little Rock L.J. 1 (1989-90). Professor Wolfram (Charles Frank Reavis, Sr., Professor of Law, Cornell Law School) views the judicial exclusivity aspect of the separation of powers doctrine as "a powerful barrier shielding the legal profession from any of its critics who wish to urge legislative reform of the profession.” For a discussion of the relations of the Illinois Supreme Court and Illinois Legislature on the court's claim of exclusive power, see Chicago Tribune, May 4, 1990, sec. 1, p. 7. Section 757.48(l)(a), 1987-88, provides: Guardian ad litem must be an attorney. (1) (a) Except as provided in s. 879.23 (4), in all matters in which a guardian ad litem is appointed by the court, the guardian ad litem shall be an attorney admitted to practice in this state. In order to be appointed as a guardian ad litem under s. 767.045, an attorney shall have completed 3 hours of approved continuing legal education relating to the functions and duties of a guardian ad litem under ch. 767. The Judicial Council filed a petition for rule-making with this court on June 19, 1989, to amend various provisions governing guardians ad litem for minor children. While the Judicial Council did not propose an educational requirement for the guardians ad litem, other persons filed proposals and requested the court to adopt educational requirements for guardians appointed in chapter 48 proceedings. Public Hearing on October 10, 1989. In closed discussion of the proposed rules, the court refused to adopt educational requirements, but gave no reason for its action. Order in the Matter of Rules Pertaining to Guardians ad Litem: Secs. 48.02(9), 48.23(1), (3) and (4), 48.235, 48.41(30), 767.045, 809.85, 813.122(3), 880.33(2)(c) and 880.331, Stats., dated October 26,1989. If a circuit court could not find an attorney with the appropriate CLE accreditation, the requirement would obviously give way to the circuit court's inherent power to appoint counsel for the proper administration of justice. Contempt in State v. Lehman, 137 Wis. 2d 65, 403 N.W.2d 438 (1987). Petitioners have also argued that the statute is impermissi-bly vague. I find this contention without merit on the basis of our own 1987 order requiring continuing legal education credits on the new attorneys' professional conduct code. Section 751.12, Stats. 1987-88, provides: 751.12 Rules of pleading and practice. The state supreme court shall, by rules promulgated by it from time to time, regulate *113pleading, practice and procedure in judicial proceedings in all courts, for the purpose of simplifying the same and of promoting the speedy determination of litigation upon its merits. The rules shall not abridge, enlarge or modify the substantive rights of any litigant. The effective dates for all rules adopted by the court shall be January 1 or July 1. A rule shall not become effective until 60 days after its adoption. All such rules shall be printed by the state printer and paid for out of the state treasury, and the court shall direct the rules to be distributed as it deems proper. All statutes relating to pleading, practice and procedure may be modified or suspended by rules promulgated under this section. No rule modifying or suspending such statutes may be adopted until the court has held a public hearing with reference to the rule. Notice of public hearings shall be given by publication of a class 3 notice, under ch. 986, the expense of the publication to be paid out of the state treasury. Notice shall also be given in an official publication of the state bar of Wisconsin, the notice to be published not more than 60 days nor less than 30 days before the date of hearing. The state bar of Wisconsin shall not charge the state treasury for publication of this notice. Proposed rules, including changes, if any, in existing rules, shall be set forth in full in the notice. This section shall not abridge the right of the legislature to enact, modify or repeal statutes or rules relating to pleading, practice or procedure. The judicial council shall act in an advisory capacity to assist the court in performing its duties under this section.

CourtListenerOpinion

2024-06-11T07:23:54.680740

2023-08-26 19:08:54.2239+00

2207326

340 Ill. App. 10 (1950) 91 N.E.2d 106 Fay M. Lane, Administrator of Estate of Harry L. Lane, Deceased, Appellant, v. George Bobis, Appellee. Gen. No. 9,680. Illinois Appellate Court. Opinion filed March 3, 1950. Released for publication March 29, 1950. *11 DYER & RICHMOND, of Hoopeston, for appellant; C.F. DYER and KENNETH L. RICHMOND, both of Hoopeston, of counsel. ACTON, ACTON, BALDWIN & BOOKWALTER, of Danville, for appellee; W.M. ACTON and D.S. BALDWIN, both of Danville, of counsel. MR. PRESIDING JUSTICE WHEAT delivered the opinion of the court. Plaintiff appellant, Fay M. Lane, administratrix of the estate of Harry L. Lane, deceased, brought this action against defendant appellee, George Bobis, for the wrongful death of her husband, charging that decedent was a guest of Bobis in an automobile wrongfully operated by the latter in a wilful and wanton manner. At the close of plaintiff's case, the court directed a verdict in favor of defendant and entered judgment thereon. This appeal follows. *12 The facts appear to be that on November 6, 1947, at about 1:30 p.m., Bobis was driving his car near Hoopeston, Illinois. He was accompanied by Lane who sat beside him. Each man owned a hunting dog and the two dogs had been placed in the rear seat of the car, for the purpose of taking them out for field training. At a time when they were driving on a gravel road about twelve to fourteen feet wide, the two dogs in the rear seat caused a disturbance. Lane turned around and attempted to separate the dogs. Bobis, who was then driving about twenty-five to twenty-seven miles per hour, also turned his body to join in the attempt. He held the steering wheel in his left hand, took his foot off of the accelerator, and reached toward the rear of the car with his right hand, at the same time calling to his dog to behave. He lost control of the car which ran off of the road and crashed into a tree, causing injuries to Lane which resulted in his death. [1] It is first argued that Bobis was guilty of wilful and wanton misconduct in allowing two strange dogs to be placed together in the car, knowing the tendency of such dogs to create a disturbance. If this be true, Lane was guilty of equal wilful and wanton misconduct, which is a complete defense to an action charging the same wrong. (Prater v. Buell, 336 Ill. App. 533.) [2, 3] Regardless of this, it is well settled that when the uncontroverted facts in a case, together with all reasonable inferences which may lawfully be drawn therefrom, and viewed in the aspect most favorable to the plaintiff, fail to make a question of fact for the jury, the court should properly direct a verdict for the defendant. Such is the case here, as it cannot be said that the conduct of defendant constituted wilful and wanton misconduct, and the court properly directed a verdict for the defendant. The judgment of the circuit court is affirmed. Affirmed.

CourtListenerOpinion

2024-06-11T07:23:54.683355

2013-10-30 08:36:18.987689+00

9736788

Inglis, J. The principal question involved in this case is whether the plaintiffs may recover for damage done to their building by vibrations of the earth set in motion by the blasting operations of the defendants, in the absence of negligence on the part of the latter. The finding is not subject to correction. The plaintiff John M. Carbulon was the owner of property consisting of land and a large brick building known as the Wauregan Hotel, located in the business district of Norwich. On August 1, 1947, the Whitman Hotel Corporation, hereinafter referred to as the plaintiff, took possession of the hotel under a lease for twenty years which required it to keep the hotel building in repair. In May, 1947, the defendant Elliott and Watrous, Inc., entered into a contract with the United States war department, corps of engineers, to widen *564and deepen the channel of the Shetucket River in Norwich for. a distance of 750 feet so as to create a more adequate raceway. The purpose of the project was to prevent the flooding of the downtown district of Norwich in the. neighborhood of the Wauregan Hotel. The work was done for Elliott and Watrous, Inc., by the other defendant, the Elliott and Watrous Engineering Company, operating under a subcontract. Pursuant to and in accordance with the specifications of the contract, and in a method usual to such an operation, the defendants, between June 1, 1947, and February 28, 1949, discharged many hundreds of blasts of a dynamite known in the trade as 60 per cent high velocity gelatin in close proximity to a number of compactly located business buildings. The Wauregan Hotel was 230 feet from the river at its nearest point, and operations were carried on in the river on both sides of that point. At various times between August 1, 1947, and February 29, 1948, many water and heating pipes in the hotel were broken, causing water damage, plaster was cracked in numerous places, and a terrazzo floor was split. The intensity of the vibrations of the earth resulting from the explosions was sufficient to cause this damage, and on several occasions the development of cracks in the pipes and in the plaster was noted nearly synchronously with the sound of the blasting. The parts of the structure which were damaged had been in good condition, and the expenditures made or contemplated by the plaintiff were for the purpose of restoring the building to the condition of usefulness it was in prior to the commencement of the blasting operations. The trial court concluded that it was the vibration set up, by the defendants’ blasting operations which damaged the plaintiff’s building; that the defendants *565were liable for that damage, even though they were guilty of no negligence in the conduct of their operations; and that the plaintiff was entitled to recover the cost of the repairs. It also concluded that the plaintiff Carbulon was not entitled to nominal damages. It is almost universally held that one who by exploding dynamite causes damage to another’s property through flying debris is absolutely liable for that damage irrespective of whether he was negligent either in the selection of the time or place for the blasting or in the method of blasting which he followed. This rule rests on the principle that the explosion of dynamite is an intrinsically dangerous operation and that, therefore, one who engages in it acts at his peril. 2 Cooley, Torts (4th Ed.) § 260; 22 Am. Jur. 179, § 53; Restatement, 3 Torts § 519, § 520, comment e. The rule is adhered to in Connecticut. It has been stated as follows: A person who uses an intrinsically dangerous means to accomplish a lawful end, in such a way as will necessarily or obviously expose the person of another to the danger of probable injury, is liable if such injury results, even though he uses all proper care. Worth v. Dunn, 98 Conn. 51, 59, 118 A. 467. Although we, in that case, were speaking of liability for injury to person, the principle stated governs liability for injury to property as well. In spite of the fact that we have stated that liability attaches “even though he uses all proper care,” the defendants contend that considerations of negligence are imported into the rule by the phrase “in such a way as will necessarily or obviously expose the person of another to the danger of probable injury.” They say, in substance, that this means that no liability attaches unless it would appear to a reasonably prudent person that injury would result from the explosion, and therefore the real basis of the cause of action is failure to *566use reasonable care. The phrase has no such intendment. As pointed out above, the basis of liability in this class of case is that one acts at his peril if he engages in an intrinsically dangerous operation. The purpose of the phrase relied upon by the defendants is to define an intrinsically dangerous operation. If dynamite is exploded under such circumstances that it will not expose the person or property of another to the danger of probable injury, then the explosion is not an intrinsically dangerous operation. If the circumstances are such that the explosion does necessarily or obviously expose the person or property of another to the danger of probable injury, then it is an intrinsically dangerous operation. The phrase, therefore, does not make the failure to use reasonable care a condition of liability. It does not make the test of liability the question whether a reasonably prudent person would consider that under the attendant circumstances the explosion would either necessarily or obviously expose another to the danger of probable injury and would refrain from setting off the blast. What it does relate to is the fact of exposure to the danger of probable injury. It means that, to make out a case of intrinsically dangerous operation upon which absolute liability may be predicated, it is essential that it appear that the dynamite was discharged under such circumstances that it, in fact, necessarily or obviously exposed the person or property of another to the danger of probable injury. Welz v. Manzillo, 113 Conn. 674, 682, 155 A. 841. It is said in Harper, Law of Torts, page 408, in support of the author’s statement that the basis of the cause of action is not negligence: “Blasting is frequently not only desirable but absolutely essential under circumstances that entail serious potentialities of harm. Under such circumstances it is not negligence. Nevertheless, there is liability to *567make good such losses as come within the scope of the rule, that is such harms, the danger of which is the reason for predicating liability upon this type of conduct. ... In all of these situations danger may be foreseen by reasonable men, as possible if not probable, but the risks to others are not by the ordinary prudent man, regarded as unreasonable. It is precisely these conditions which give rise to the doctrine of strict liability. Defendant is not regarded as engaging in blameworthy conduct. He is creating hazards to others, to be sure, but they are ordinary, and reasonable risks incident to desirable social and economic activity. But common notions of fairness require that the defendant make good any harm that results even though his conduct is free from fault.” The cause of action for damages resulting from the intrinsically dangerous operation of blasting does not necessarily sound in negligence. In cases in which the damage resulting from the explosion of dynamite has been caused, not by flying debris, but by concussion of the atmosphere or vibration of the earth, there is a clearcut division of the authorities. Some jurisdictions hold that there is no liability for such damage unless there has been negligence on the part of the blaster. This is the so-called New York rule, and it is followed not only in that state but also in Alabama, Arizona, Kansas, Kentucky, Maine, Massachusetts, New Jersey and Texas. Booth v. Rome, W. & O. T. R. Co., 140 N. Y. 267, 278, 35 N. E. 592; Holland House Co. v. Baird, 169 N. Y. 136, 141, 62 N. E. 149; Bessemer Coal, Iron & Land Co. v. Doak, 152 Ala. 166, 177, 44 So. 627; Drumm v. Simer, 68 Ariz. 319, 321, 205 P. 2d 592; Cherryvale v. Studyvin, 76 Kan. 285, 287, 91 P. 60; Williams v. Codell Construction Co., 253 Ky. 166, 169, 69 S. W. 2d 20; Reynolds v. W. H. Hinman Co., (Me.) 75 A. 2d 802, 811; *568MacGinnis v. Marlborough-Hudson Gas Co., 220 Mass. 575, 578, 108 N. E. 364; Simon v. Henry, 62 N. J. L. 486, 488, 41 A. 692; Standard Paving Co. v. McClinton, (Tex. Civ. App.) 146 S. W. 2d 466, 468. In the greater number of jurisdictions, however, as is indicated by the following citations, no distinction is made between damage resulting from the throwing of debris on the one hand and damage resulting from concussion or vibration on the other. The dynamiter is held absolutely liable for the latter as well as the former. Exner v. Sherman Power Construction Co., 54 F. 2d 510, 513; Colton v. Onderdonk, 69 Cal. 155, 159, 10 P. 395; FitzSimons & Connell Co. v. Braun, 199 Ill. 390, 397, 65 N. E. 249; Watson v. Mississippi River Power Co., 174 Iowa 23, 27, 156 N. W. 188; Cahill v. Eastman, 18 Minn. 324, 332; Stocker v. Richmond Heights, 235 Mo. App. 277, 283, 132 S. W. 2d 1116; Wendt v. Yant Construction Co., 125 Neb. 277, 279, 249 N. W. 599; Louden v. Cincinnati, 90 Ohio St. 144, 149, 106 N. E. 970; Muskogee v. Hancock, 58 Okla. 1, 6, 158 P. 622; Hickey v. McCabe & Bihler, 30 R. I. 346, 355, 75 A. 404; Feinberg v. Wisconsin Granite Co., 54 S. D. 643, 645, 224 N. W. 184; Schade Brewing Co. v. Chicago, M. & P. S. R. Co., 79 Wash. 651, 658, 140 P. 897; Brown v. L. S. Lunder Construction Co., 240 Wis. 122, 128, 2 N. W. 2d 859. The reasoning supporting the minority rule is presented in the most plausible manner in the leading case of Booth v. Rome, W. & O. T. R. Co., 140 N. Y. 267, 278, 35 N. E. 592. The line of argument is. twofold. In the first place, it is that a rule which would make a landowner absolutely responsible, irrespective of his negligence, for all damage which he caused to his neighbor’s land by vibration from blasting on his own property would be against public policy because it would operate as a deterrent to the improvement and *569development of property in thickly settled communities. To this reasoning it might well be replied that public policy does not demand that private citizens go unrecompensed for damage to their property caused by vibration for the sake of encouraging other persons to build structures on other land. If it did, it would also preclude the right to recover for damage done by rocks hurled on their land from their neighbors’ explosions of dynamite. As pointed out above, nearly all jurisdictions accord the right to recover for damages caused in the latter manner. Considerations of public policy do not require immunity from liability for damages caused by concussion or vibration any more than from liability for damages caused by flying debris. The second line of argument implicit in the Booth case is this: No cause of action may be recognized by the courts unless it is one for which some form of action was recognized at common law. Damage sustained by any person which could not be recovered in some one of those forms of action is damnum absque injuria. The only two possible forms of action available for the recovery of damages because of injury to real property by blasting on another’s land were trespass and trespass on the case. Damages for injury caused by concussion or vibration set in motion by the explosion of dynamite could not be recovered in an action of trespass because such vibrations are not a physical invasion of the real property. Recovery for such damage may be had in an action on the case only in the event that it has been the result of a nuisance or caused by negligence. Therefore, it is reasoned, damages for injury caused by vibrations are recoverable in cases not involving a nuisance only upon proof that the one who in exploding dynamite set the vibrations in motion was negligent. *570With this reasoning we are unable to agree.1 The old technical rules of common-law pleading with their finespun distinctions between forms of action no longer obtain. They should not control the substantive law of today. If it is necessary to talk about trespass as distinguished from trespass on the case, it would seem that the jarring of a man’s real property by vibration or the concussion in the atmosphere above it is, in actuality, a physical invasion of that property. Trespass to real property is the doing of direct injury to that property with force. 52 Am. Jur. 836, § 2. When one’s building is damaged by vibration or concussion from a blast, the injury is done directly by the physical movement of the earth or the air which has been started by the blast. For any practical purpose such movement is just as much a physical invasion as the throwing of debris through the atmosphere and the injury done by it is just as direct. As is said in Exner v. Sherman Power Construction Co., 54 F. 2d 510, 514, “Yet in every practical sense there can be no difference between a blasting which projects rocks in such a way as to injure persons or property and a blasting which, by creating a sudden vacuum, shatters buildings or knocks down people.” The Iowa court puts it well in Watson v. Mississippi River Power Co., 174 Iowa 23, 31, 156 N. W. 188: “Physical invasion of the property of another does not necessarily imply an actual breaking or entering of the plaintiff’s close by the wrongdoer in person, or casting upon his premises any particular kind of missile or other particular thing or substance. The employment of force of any kind which, when so put in operation, extends its energy *571into the premises of another to their material injury, and renders them uninhabitable, is as much a physical invasion as if the wrongdoer had entered thereon in person and by overpowering strength had cast the owner into the street.” Connecticut is committed to the rule that, when one engages in the inherently dangerous operation of blasting with dynamite under such circumstances that the person or property of another is necessarily or obviously exposed to the danger of probable injury, he does so at his peril. He is absolutely liable for damages which result from that blasting whether he was negligent in his conduct of the operation or not. Worth v. Dunn, 98 Conn. 51, 59, 118 A. 467; Welz v. Manzillo, 113 Conn. 674, 682, 155 A. 841. To exempt such a one from liability for damage caused by vibrations or concussion resulting from his blasting would be to put a limitation upon the scope of the rule which would not be justified by any considerations of logic or practicality. The defendants make the additional contention that public policy should prevent the application of the rule of absolute liability to this case because the blasting was being done pursuant to a contract with the United States government and, therefore, it was being done for the public welfare. The record is uncertain as to whether this claim was made in the trial court, but there is enough indication that it was to warrant our consideration of it. The argument is not in any sense based upon the principle that a sovereign is immune from suit, as, of course, it could not be, because the United States is not a party to this litigation. Nor is it based on the doctrine of governmental immunity. The contention really is that the social value of the use of dynamite in a public work outweighs the risk of damage resulting therefrom through concussion and *572vibration and that for that reason the rule of absolute liability ought to be relaxed. It is true that in Booth v. Rome, W. & O. T. R. Co., 140 N. Y. 267, 278, 35 N. E. 592, the leading case adhering to the minority rule, it is indicated that if the blasting had been done pursuant to a contract with the state that would be an added reason to deny absolute liability. This was upon the authority of Benner v. Atlantic Dredging Co., 134 N. Y. 156, 161, 31 N. E. 328. No case has come to our attention which, in a jurisdiction adhering to the rule of absolute liability, holds that the application of the rule should be affected by the fact that the blasting was done in aid of a public work. Looked at from the viewpoint of a property owner, damage to his property is just as real when it results from blasting in connection with a public work as when it results from dynamiting in pursuance of a purely private enterprise. If the property owner is to be compensated in the one case, he should be compensated in the other. The advantages to society of a public work are not so great as to require that private citizens suffer damage without compensation. Moreover, even the defendants are not contending that there should be no liability for damage resulting from the throwing of debris in dynamiting pursuant to a contract with the government. They ask that the rule of absolute liability be relaxed only as regards damage resulting through concussion or vibration. As was pointed out above, there is no real difference between the two, and reason would be strained if we held that the rule of absolute liability for blasting in connection with a public work applied in one case and not in the other. We conclude that the trial court was right in deciding that the defendants were hable in this case for such *573damage as was caused by their blasting operations, irrespective of negligence on their part. The trial court concluded that the plaintiff was entitled to recover as damage the actual cost to it of the repairs made or intended which were reasonably necessary to restore the building to its former condition. The defendants assign error in this conclusion. The ultimate measure of damages in a case such as this is the diminution in the value of the plaintiff’s property caused by the defendant’s tort. It is, however, well established that such diminution in value may be determined by the cost of repairing the damage, provided, of course, that that cost does not exceed the former value of the property and provided also that the repairs do not enhance the value of the property over what it was before it was damaged. “And when the property injured may be repaired, if the repairs will substantially restore the property to its former condition, the cost of such repairs will ordinarily furnish proper proof of the loss.” Hawkins v. Garford Trucking Co., 96 Conn. 337, 341, 114 A. 94; see Ferrigno v. Odell, 113 Conn. 420, 427, 155 A. 639. Recognizing this to be the law, the defendants, nevertheless, contend that to allow the plaintiff to recover the full cost of repairs puts it in a better position than it was in before the damage was done, because it is supplied with new pipes and fresh decoration of its rooms in the place of pipes and decorations which had depreciated prior to the damage. The answer to that is that the trial court found that the expenditure for repairs would “restore the building of the plaintiff to its condition of usefulness prior to the commencement of the blasting operations.” This means that the repairs would do no more than put the building into the condition it was in before the blasting. Then too, as we said in Ball v. Pardy Construction Co., 108 Conn. 549, 551, *574143 A. 855, “From the very nature of the situation,the amount of loss cannot be proved with exactitude and all that can be required is that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation which will enable the trier to make a fair and reasonable estimate.” The trial court measured the damages correctly. The defendants also assign error to the conclusion of fact made by the trial court that their blasting operations were the proximate cause of the damage sustained by the plaintiff. Without discussing the subordinate facts found, suffice it to say that they justify the conclusion. The rulings on evidence excepted to by the defendants and pressed by them on appeal were correct. One group of such rulings was the admission in evidence of several letters written by the attorney for the plaintiffs to the defendants calling attention to the fact that their blasting was damaging the plaintiffs’ property. One of the claims made by the plaintiffs on the trial was that the defendants were negligent in conducting the blasting operations. Negligence had been denied by the defendants. The letters were relevant to that claim because they put the defendants on notice that it was claimed that they should exercise greater care. The letters were not self-serving declarations or hearsay, as contended by the defendants, because they were admissible to prove, not the truth of the statements contained therein, but the fact of the defendants’ knowledge of the claimed effect of their operations, since that knowledge should influence their future conduct. Another group of rulings admitted testimony of damage done by the defendants’ blasting to property at a greater distance from the point of the explosions than the plaintiffs’ property. This evidence was relevant to the claim of the plaintiffs that the force *575of the explosions was sufficient to cause the damage of which they complained and, therefore, had a bearing on proving the causal connection between the blasting and the damage to them. The plaintiffs on their appeal press two assignments of error. The first of these is that the court erred in failing to find that the defendants were negligent. In view of our conclusion that negligence was not an essential element of the plaintiffs’ case, this question is academic and need not be discussed. The other assignment is that the court erred in refusing to award nominal damages to the plaintiff Carbulon. This plaintiff suffered no actual damage and, therefore, no substantial injustice was done in denying him any recovery. If we assume, without deciding, that he was entitled to nominal damages, the refusal of the trial court under the circumstances to award them to him does not justify a reversal. Sacramone v. DeMatteo, 136 Conn. 66, 70, 68 A. 2d 167; Went v. Schmidt, 117 Conn. 257, 259, 167 A. 721. There is no error on either appeal. In this opinion Jennings and Shea, Js., concurred. For a full discussion and criticism of the New York rule, see Gregory, Trespass to Negligence to Absolute Liability, 37 Va. L. Rev. 359, 370, 374.

CourtListenerOpinion

2024-06-11T07:23:54.687177

2023-08-26 19:06:41.311309+00

9736789

Baldwin, J. (concurring). I concur in the result but I do not agree to the meaning given in the majority opinion for the words “in such a way as will necessarily or obviously expose the person of another to probable injury,” which appear in Worth v. Dunn, 98 Conn. 51, 59, 118 A. 467. The majority opinion states that these words do no more than define an intrinsically dangerous operation and that to incur liability one must use an intrinsically dangerous instrumentality in such a way that it necessarily or obviously exposes persons or property to probable injury. That connotes a degree of fault on the part of the defendant which is, at least, negligence and, probably, *576even more than negligence. It carries with it an inference of wilful or deliberate misconduct. The majority opinion subscribes to the rule of absolute liability imposed when dynamite is exploded and hurls debris which injures persons or damages property, and we apply that rule to injury or damage caused by vibration and concussion. Absolute liability is liability without fault. If the words quoted mean what the majority claims for them, they add a needless and confusing qualification or condition. If the same rule is to apply for injury or damage caused by concussion and vibration as applies for damage caused by a direct hit, then these words in the Worth v. Dunn case mean no more than that the dynamite was used under circumstances and conditions which demonstrate to the trier that it could and did in fact cause the damage for which complaint is made.

CourtListenerOpinion

2024-06-11T07:23:54.689498

2023-08-26 19:06:41.316317+00

9736790

O’Sullivan, J. (concurring). I concur in the result on the basis of the dogmatic proposition, with which the opinion begins its legal discussion, that “one who by exploding dynamite causes damage to another’s property through flying debris is absolutely liable for that damage irrespective of whether he was negligent. . . .” This principle makes an insurer of the blaster, and rightly so. Exner v. Sherman Power Construction Co., 54 F. 2d 510, 512. Dynamite is an intrinsically dangerous substance. Worth v. Dunn, 98 Conn. 51, 60, 118 A. 467; Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 527, 28 A. 32. The possibility of its doing damage is great. The blaster should be subjected to absolute liability for injury to any property caused by the potentially destructive energy of a force which he has intentionally released. If I understand the opinion correctly, it makes liability absolute only when dynamite is used “in such a way as will necessarily or obvi*577ously expose the {property] of another to the danger of probable injury.” This means, inferentially, that under circumstances which do not fall within the quoted phrase liability is conditioned on negligence. This emasculates the principle that the blaster acts at his peril. It reaches a result with which I am not in accord.

CourtListenerOpinion

2024-06-11T07:23:54.689974

2023-08-26 19:06:41.320067+00

2207329

208 Cal. App. 2d 1 (1962) GLADYS STERLING, Plaintiff and Appellant, v. CITY OF OAKLAND et al., Defendants and Respondents. Civ. No. 19732. California Court of Appeals. First Dist., Div. Three. Sept. 28, 1962. Haet, Dominguez, Speiser & Williams, Goldstein, Brann & Stern and Franklyn K. Brann for Plaintiff and Appellant. Hilton J. Melby, City Attorney, and Frederick M. Cunningham, Deputy City Attorney, for Defendants and Respondents. DEVINE, J. Plaintiff, appellant, brought this action seeking an injunction to prevent defendants, the City of Oakland and its chief of police, from keeping on file her photograph and fingerprints, and seeking declaratory relief to determine if defendants are entitled to maintain a record of her arrest and to keep the said photograph and fingerprints, following dismissal of misdemeanor charges which had been made against her. The pleading in respect of the injunction contains allegations that "by reason of said police record plaintiff is more liable to arrest by police officers on the grounds that she has a prior arrest record and said factor is considered by police officers in making arrests of individuals; that in the event plaintiff is ever arrested again or charged and convicted of a crime, the fact that the Oakland police records show she has been arrested previously will be used by the court in determining what sentence to impose." There is no allegation that the fingerprints and photograph would *3 be disseminated generally, or at all, and there is no allegation that the photograph would be exhibited in any way to the public, or that it would be available for public inspection. Demurrer was overruled, but at trial the court sustained objection to testimony offered by plaintiff, on the ground that the complaint does not state a cause of action, and rendered judgment in favor of defendants on that ground. Plaintiff appeals from the judgment. The facts stated in this paragraph are those alleged in the complaint. On September 21, 1957, Mrs. Sterling was a passenger in a Yellow Cab driven by defendant Oran Sheppard. Upon arriving at her home she offered to pay her $1.90 fare with a $20 bill. The driver refused this tender, saying that plaintiff should know better than to pay with a $20 bill. Sheppard then stated that he would drive somewhere in order to get change, but that he would charge the additional fare. Plaintiff refused to do so, but Sheppard still proceeded to drive to a cafe at Seventh and Pine Streets in Oakland (about three blocks from plaintiff's residence) and refused to allow plaintiff to leave the cab until the additional fare was paid. When plaintiff refused to pay, Sheppard called the Yellow Cab Company office and the police officers were summoned. A citizen's arrest was made by Sheppard. While being held by the police officers, plaintiff had to submit to fingerprinting and photographing, and a record was made of the arrest. Plaintiff seeks to have the prints and photograph returned or destroyed. On October 24, 1957, the charges against plaintiff (violation of section 5- 14.181 of the Oakland Municipal Code [refusal to pay taxicab fare]) were dismissed because of the failure of Oran Sheppard to appear in court to testify. The cab company was a party defendant to this action, in counts charging false imprisonment and malicious prosecution, and a jury returned verdicts on both counts for compensatory and punitive damages, although the awards were small in amount. Plaintiff also sued nine police officers; verdict was in their favor. There is no appeal from the judgment for plaintiff against Yellow Cab Company nor from judgment in favor of defendants, the police officers. Appellant contends that the police had no right to take her fingerprints and photograph upon charge of the misdemeanor, and that, even if they had such right, they must, on demand, return or destroy them after her dismissal. There is but little reference to fingerprints and photographs *4 of offenders or suspected offenders against the law, in this state, except in the statutes relating to records of convicted felons, certain offenders against children, fugitives from justice, and possessors of various kinds of contraband, in Penal Code sections 11100-11112. Regarding other persons arrested or accused, there is no specific statute. In 1959, subdivision 21 was added to section 7 of the Penal Code, and it reads: "To 'book' signifies the recordation of an arrest in official police records, and the taking by the police of fingerprints and photographs of the person arrested, or any of these acts following an arrest." In the same year, section 851.5 of the Penal Code was enacted, giving any person arrested the right to make a telephone call immediately after he is booked, under certain circumstances (this was amended to two calls, and the circumstances were somewhat changed by amendment in 1961), with the implication that recordation, photographing and fingerprinting, or any one or more of these acts, would have been done by the arresting or custodial officers. [1] In general, fingerprinting and photographing of accused persons, even before conviction, has been held valid in the absence of statute, upon the grounds of a means of identifying the accused and of assisting in the recapture in event he escapes or flees before trial. (Downs v. Swann, 111 Md. 53 [73 A. 653, 134 Am. St. Rep. 586, 23 L.R.A. N.S. 739]; State ex rel. Bruns v. Clausmeier, 154 Ind. 599 [57 N.E. 541, 77 Am. St. Rep. 511, 50 L.R.A. 73]; Bartletta v. McFeeley, 107 N.J. Eq. 141 [152 A. 17]; People v. Sallow, 100 Misc. 447 [165 N.Y.S. 915]; United States v. Cross, 20 D.C. (9 Mackey) 365.) [2a] More important, however, to the decision in the case than the subject of the right to take fingerprints and photographs at all, is the question whether fingerprints and photographs, once taken, must be delivered to the accused, on demand, when the accused is dismissed. We are of the opinion that plaintiff's complaint does not state a cause of action, and that the judgment should be affirmed. We base our decision chiefly upon the omission of the Legislature of this state to prescribe any duty to return photographs or fingerprints, and upon certain statutory relief which does exist in this state; but we find some support for the judgment in the decisions of other states. Addressing ourselves first to the decisions in other states, we find that there are but few; on the whole, however, they tend to support the judgment herein. The cases cited by appellant are given herein, with brief statements of the reasons *5 why we do not deem them persuasive in the case before us: (1) Two Louisiana cases decided in 1905 and 1906, Itzkovitch v. Whitaker, 115 La. 479 [39 So. 499, 112 Am. St. Rep. 272, 1 L.R.A. N.S. 1147], and Schulman v. Whitaker, 117 La. 704 [42 So. 227, 8 Ann.Cas. 1174, 7 L.R.A. N.S. 274], in which placing of pictures in a "rogues' gallery" before trial was held enjoinable. These cases were decided over 50 years ago, and had to do with "rogues' galeries" as they then existed. (2) State ex rel. Reed v. Harris (1941) 348 Mo. 426 [153 S.W.2d 834], in which it was held that a cause might be stated (although it was not yet stated) against circularization of fingerprints and photographs of an alleged traffic violator. The case had to do with circularization, not merely retention. (3) Miller v. Gillespie (1917) 196 Mich. 423 [163 N.W. 22, L.R.A. 1917E 774], in which the court held that the arrest report need not be returned on acquittal, and there was dictum taken from the Louisiana cases, supra, on placing of photographs in a rogues' gallery. The holding of the case, as distinguished from the dictum, had nothing to do with the matter before us. (4) State ex rel. Mavity v. Tyndall (1946) 224 Ind. 364 [66 N.E.2d 755], appeal dismissed 333 U.S. 834 [68 S. Ct. 609, 92 L. Ed. 1118], rehearing denied 333 U.S. 858 [68 S. Ct. 732, 92 L. Ed. 1138], in which it was held that plaintiff stated a cause of action by alleging that although gaming charges against him had been dismissed, his photograph, with a number across the body, was to be displayed in a rogues' gallery for public exhibition. There is no such allegation in our case. (5) United States v. Kelly (1932) 55 F.2d 67 [83 A.L.R. 122], in which the court recognized the right of taking fingerprints without statute, and stated that the court was informed it was the practice of the Federal Bureau of Investigation to return them in event of acquittal. This, too, probably was dictum and, besides, the information related to a practice existing in 1932. On the other hand, it was held in the Mavity case, supra, at page 762 [66 N.E.2d], that if photographs are filed away from public gaze, and not published or exhibited in a public place called a "rogues' gallery," they are in the same category as filed fingerprints, and the complainant was not entitled to their return; and in State ex rel. Mavity v. Tyndall (1947) 225 Ind. 360 [74 N.E.2d 914], appeal dismissed 333 U.S. 834 [68 S. Ct. 609, 92 L. Ed. 1118], rehearing denied 333 U.S. 858 [68 S. Ct. 732, 92 L. Ed. 1138], wherein allegations relating to the rogues' gallery had been omitted from the complaint, judgment *6 sustaining demurrer was affirmed. In Kolb v. O'Connor, 14 Ill.App.2d 81 [142 N.E.2d 818], the court pointed out, at page 823 [142 N.E.2d], that the rogues' gallery as it had existed in Louisiana seems to have been a place where the pictures were publicly exhibited, and reversed a judgment which had decreed return of the photographs where the evidence showed that the practice was merely to keep photographs in the police files. [3] There is no statute in this state on the subject of return or destruction of photographs or fingerprints of persons who have been accused of crime, either misdemeanor or felony, and who have been acquitted on trial or dismissed without trial. A bill to require return of photographs and fingerprints, on demand, to anyone who has been arrested, after determination of the criminal action or proceeding in his favor, was introduced in the Assembly in 1961, and was referred to the Committee on Criminal Procedure. There it was amended to limit the requirement of return to cases of citizen's arrest, and provision was made for a fee of not more than $25 for administration costs, payable by the returnee. The amended bill (Assembly Bill 1211) was reported out of committee, but that was the last of its history. Thus, plaintiff can rely on no statute, and the failure of the Legislature to enact the proposed bill, in one form or another, is some evidence that the Legislature does not consider it necessary or proper or expedient to enact such legislation. We deem the subject matter to reside principally within the legislative domain. In giving, in this paragraph, some of the reasons which lead us to this conclusion, we do not mean to intimate that a statute should or should not be enacted, but to indicate that the subject belongs primarily to the lawmakers. [4] The magnitude of the task of returning fingerprints and photographs on demand, and of making certain that they are returned to the correct person, is a matter for legislative consideration. As to fingerprints, there may be considered the facts that fingerprinting has been so common that it seems that by 1956 over 70,000,000 persons' fingerprints had been recorded in the Federal Bureau of Investigation, and that fingerprinting in itself, apart from arrest, is no longer considered an indignity (see Everett, New Procedures of Scientific Investigation and the Protection of the Accused's Rights (1959) Duke L.Rev. 45); and that, although the taking of the fingerprints of a person arrested who is wholly innocent may have been of more or less mortification, the filed *7 prints are decipherable only by experts. (See De Angelis, The Right of Persons Who Have Been Discharged or Acquitted of Criminal Charges to Compel the Return of Fingerprints, Photographs, and Other Police Records, 27 Temple L.Q. 441, 449.) Photographs, of course, are in a somewhat different category, but here, too, the filing may be so handled as to prevent disclosure. Whether they are generally in danger of falling into the view of others than the custodians, or are well guarded, is a matter which the Legislature, if it desires, can determine. [5] Although particular cases may be presented in which privacy would be so threatened, by indiscriminate or injudicious display of a photograph by custodians of records, and particularly of photographs, as to justify action by a court of equity, there is nothing in the pleading in this case which is of that nature. If the Legislature should come to the conclusion, in general, that there should be delivery of the items, there would still be the matter of possible classification according to the types of offense charged, what demand would be necessary, and other details requiring the particularity of a statute. A final consideration is that the Legislature has enacted statutes for the protection of acquitted or dismissed persons. In 1961, the Legislature added section 11116 to the Penal Code, which provides in part that: "Whenever a criminal complaint or accusation is filed in any superior, municipal or justice court, the clerk, or, if there be no clerk, the judge of that court shall furnish a report of the disposition of such case to the sheriff, police department or other law enforcement agency primarily responsible for the investigation of the crime alleged, in a form and manner prescribed or approved by the Bureau of Criminal Identification and Investigation." Thus, a record of the fact that the complaint against plaintiff was dismissed has been made. Indeed, the photograph and fingerprints on file with the police department will be a permanent means by which plaintiff can establish her identity as the person who was dismissed. Although she may personally desire to have the records returned to her, it may well be that the Legislature has decided, not only for the public interest, but for her own as well, that the record made in compliance with section 11116 is reinforced by the retention in the police files of the identifying picture and prints. [2b] We do not believe any weight must be given to the theory that the police would be more likely to arrest plaintiff in the future for the rather trivial offense with which she was *8 charged because of this incident, when the case terminated so favorably to her; and we cannot place any weight at all on the proposition that a judge might be inclined to impose a heavier sentence for any other offense which plaintiff might commit. As evidence of her vindication, plaintiff can point not only to evidence of her exoneration in the record, made pursuant to section 11116, but also to the verdicts of the jury and to the judgment which she was awarded. Judgment affirmed. Draper, P. J., and Salsman, J., concurred.

CourtListenerOpinion

2024-06-11T07:23:54.695673

2013-10-30 08:36:19.01085+00

9736791

*540HENDERSON, Justice. PROCEDURAL HISTORY/ISSUES Ken Herren (Herren) brought an action against Doug Gantvoort (Gantvoort) on December 26, 1987, alleging that Gantvoort was negligent in the operation of his pickup on November 22, 1985, when he slid into Herren on State Highway 22 and that such negligence was the direct and proximate cause of Herren’s neck and back injuries. This case was tried to a jury on January 11, 12, and 13, 1989. Herren made a motion for a directed verdict on the issue of Gantvoort’s liability following Herren’s case-in-chief. The motion was denied. Thus, evidence continued to unfold during Gantvoort’s side of the case. Herren also made a motion for a directed verdict following Gantvoort’s case-in-chief which motion was also denied. Herren requested a jury instruction on Gantvoort’s duty “to see what was there to be seen,” which instruction was denied by the trial court. The issues were submitted to the jury, which returned a verdict for Gantvoort finding him not negligent. On January 30, 1989, following a hearing on the matter, the trial court denied Her-ren’s motion for judgment notwithstanding the verdict and Herren’s motion in the alternative for a new trial. A final judgment was entered on behalf of Gantvoort by the trial court on February 7,1989. On appeal, Herren argues: (1) that the trial court erred in denying his motion for a directed verdict; (2) that the trial court erred in denying his motion for a judgment notwithstanding the jury verdict and in the alternative for a new trial; (3) that the trial court erred in not admitting his proposed jury instruction, that Gantvoort had a duty to see what was there to be seen; (4) that the trial court erred in entering a final judgment on behalf of Gantv-oort where the verdict was not supported by the evidence or the settled law of South Dakota. —Holding— We affirm the trial court’s decision. FACTS Ken Herren was injured in an accident on an icy road (South Dakota Highway 22, one and one-half miles west of the Minnesota border) on November 22, 1985, after Gantvoort’s pickup collided with Herren’s semi-trailer. Gantvoort was driving his pickup when he came upon two hills. As he topped the second hill he spotted Herren’s semi-truck in his lane ahead of him traveling in the same direction. His pickup truck collided with Herren’s vehicle causing the pickup to drift into the right shoulder of the road. The only damage to the semi-truck was a broken tail light lens while the pickup truck had damage to the front sheet metal of the vehicle. Therefore, damages to the vehicles were quite minor. After the collision, Herren stopped his truck about a quarter mile down the road after realizing that his truck had been hit. Herren testified he did not know what happened or even that he had been hit until he saw Gantvoort’s vehicle in the ditch through his right-hand rear window. An eyewitness, Dennis Toft, said he observed the vehicles and the accident. He was traveling east on the road when he came even with Herren’s semi-truck and saw Gantvoort come over the second hill. Toft estimated that Herren’s truck was traveling 15-20 miles per hour slower than Gantvoort’s pickup. DECISION I. The trial court did not err in denying Herren’s motion for a directed verdict. Herren first argues that the trial court should have granted his motion for a directed verdict. We disagree. A motion for directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against a moving party. Carlson v. First Nat’l Bk., 429 N.W.2d 463, 466 (S.D.1988). Upon such a motion, the trial court must determine whether there is any substantial evidence to sustain the action. Sabag v. Continen*541tal South Dakota, 374 N.W.2d 349, 355 (S.D.1985). A trial court must accept the evidence which is most favorable to the non-moving party and indulge all legitimate inferences in his favor that can be fairly drawn therefrom. Carlson, supra,. If sufficient evidence -exists so that reasonable minds could differ, a directed verdict is not appropriate. Id. The trial court’s decision and rulings on such motions are presumed correct and this Court will not seek reasons to reverse. Lytle v. Morgan, 270 N.W.2d 359, 360 (S.D.1978). We conclude that at the time these motions were made, sufficient evidence existed to reasonably conclude Gantvoort was not negligent. His alleged negligence was a question for the jury. At trial, Gantvoort testified that the roads were extremely icy and slippery so he slowed his pickup to 40 miles per hour. Gantvoort further testified he did not see Herren’s semi-truck until he came over the second hill when the truck was approximately 400 feet away, that he tried to apply his brakes first, then swerved for the right ditch, but struck the right rear corner of Herren’s semi-truck. The only witness to the accident was Dennis Toft, who stated that he was driving east on the highway and saw Gantvoort come over the second hill. A jury could reasonably infer that Toft saw Gantvoort’s pickup coming over the hill for the first time as he (Toft) pulled even with Herren’s vehicle. From this testimony, the jury could reasonably conclude Gantvoort also could not see the Herren vehicle because the second hill blocked his view and he was therefore faced with a sudden emergency, not of his own making. Viewing the evidence most favorably to Gantvoort, we conclude that reasonable minds could differ as to whether Gantvoort was negligent. Therefore, the trial court did not err in refusing to grant Herren’s motion for directed verdict. II. The trial court properly denied Her-ren’s motion for a judgment notwithstanding the jury verdict or in the alternative for a new trial. In reviewing a trial court’s ruling on a motion for judgment notwithstanding the verdict, this Court must view evidence in a light most favorable to the jury verdict, giving the prevailing party the benefit of every inference and resolving in its favor every controverted fact. Carlson, supra at 467. The same grounds may be asserted as a basis for directed verdict and judgment notwithstanding the verdict. Carlson, supra. In this case, the jury returned a verdict in favor of Gantvoort. We must determine, without weighing the evidence, whether there is sufficient evidence which would support the jury’s verdict in favor of Gantvoort (finding him not negligent). Herren asserts the same grounds for judgment notwithstanding the verdict as he did for his motion for a directed verdict. Her-ren also contends a judgment notwithstanding the verdict or a new trial should be granted because the jury’s decision against him was based upon passion and prejudice. The jury is the sole judge of all questions of fact and credibility of the witnesses and the weight to be given the testimony of each of them. Sharkey v. Washington Nat. Ins. Co., 373 N.W.2d 421 (S.D.1985). Under direct examination by Herren’s counsel and on cross-examination, Herren admitted to various falsehoods he expressed concerning the present case. The jury is entitled to consider evidence of this kind in connection with all the other facts in evidence in deciding the weight to be given to the testimony of that witness. Gross v. Gross, 355 N.W.2d 4 (S.D.1984). Since Herren’s testimony was replete with inconsistencies, the jury may properly disregard his testimony. Hence, we hold that the trial court did not err in denying Her-ren’s motion for judgment notwithstanding the verdict. Herren has also alleged that a new trial should be granted on the grounds that the jury verdict was contrary to the weight of the evidence and the settled law of the State of South Dakota. It has been stated that the trial court has broad discretionary power in granting or denying a motion for a new trial, and generally that order will *542not be disturbed absent a clear showing of abuse of discretion. Helper v. Triple U Enterprises Inc., 388 N.W.2d 525, 530 (S.D.1986). We conclude the evidence is sufficient to support the verdict and the judgment and we do not believe the jury’s verdict was a product of “passion and prejudice.” Therefore, we find no abuse of discretion in the trial court’s denial of Her-ren’s motion for a new trial. III. The trial court did not err when it refused to admit Herren’s proposed jury instruction, that Gantvoort had a duty to see what there was there to be seen. We next address the trial court’s denial of Herren’s proposed jury instruction, “that defendant had a duty to see what was there to be seen.” Jury instructions are adequate, if when considered as a whole, they correctly state the law and inform the jury. State v. White Mountain, 332 N.W.2d 726 (S.D.1983); State v. Traversie, 387 N.W.2d 2 (S.D.1986). Her-ren’s proposed Instruction Number 2 stated: It is the law of the state of South Dakota that the operator of a motor vehicle has a duty to see what is plainly in front of him. If the operator of a motor vehicle fails to see an automobile which was plainly to be seen in front of that vehicle, said operator is bound to the same extent so as he had actually seen the automobile. If you find the plaintiff’s truck was in plain view in front of defendant, but defendant failed to see it, defendant has the same duty as if he had actually saw plaintiff’s vehicle. We note that the trial court gave three instructions as follows: Instruction No. 10 It is the duty of every driver of a vehicle using a public highway to exercise ordinary care at all times to avoid placing himself or others in danger and to exercise ordinary care at all times to avoid a collision. While a driver may assume that others will exercise due care and obey the law, he may not for that reason omit any of the care which the law demands of him; and any person driving on a public highway is bound to anticipate the presence on the highway of other person, vehicles and objects; Instruction No. 11 The statute SDCL 32-25-3 provides that it shall be unlawful for any person to drive a motor vehicle on a highway located in this state at a speed greater than is reasonable and prudent under the conditions then existing or at speeds in excess of those fixed by this chapter or provided by the transportation commission. This statute sets the standard of care of the ordinarily careful and prudent person. If you find the Defendant violated it, such violation is negligence. Instruction No. 12 The statute SDCL 32-26-40 provides that the driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and conditions of the highway. This statute sets the standard of care of the ordinarly careful and prudent person. If you find the Defendant violated it, such violation is negligence. As the instructions given to the jury correctly stated the law on the duty that a driver must maintain while operating a motor vehicle, we must conclude that such instructions were adequate. Additionally, we believe that the legal principles set forth in Herren’s proposed instruction were generally embodied in the various instructions given by the trial court. It is not error for the trial court to refuse to give jury instructions which are already embodied in other given instructions. State v. Cook, 319 N.W.2d 809, 814 (S.D.1982). Finally, we believe that Herren has failed to show the trial court’s denial of his proposed instructions prejudiced him in any manner since it is unlikely that the jury would have returned a different verdict if his instructions had been given. See Cook, 319 N.W.2d at 814. We therefore hold that the *543trial court did not err in refusing Herren’s proposed instruction. IV. The trial court did not err in entering a final judgment on behalf of Gantvoort where the verdict was supported by the evidence and the settled law of South Dakota. Finally, Herren argues that entry of final judgment on behalf of Gantvoort was erroneous where Herren demonstrated at trial that Gantvoort had violated one or more statutory duties that he owed Herren. As stated earlier, we believe that reasonable minds could differ as to whether or not Gantvoort violated one or more statutory duties that he owed Herren. When viewing the evidence most favorably to Gantv-oort, Herren did not demonstrate that Gantvoort neglected his duty to him. Budahl v. Gordon and Davis Associates, 323 N.W.2d 853 (S.D.1982). Broad discretion is given to the trial court when determining whether or not to grant a new trial. Having reviewed the evidence, we cannot conclude the trial court abused its discretion because sufficient evidence existed to support the jury’s verdict. MORGAN and MILLER, JJ., concur. WUEST, C.J., concurs in result. SABERS, J., dissents.

CourtListenerOpinion

2024-06-11T07:23:54.698880

2023-08-26 19:06:45.267629+00

9736792

WUEST, Chief Justice (concurring in result). I concur in the result. I agree with Justice Sabers the trial court should have given the requested instruction that Gantv-oort had a duty to see what was there to be seen and was bound by same whether he saw anything or not. However, I agree with the majority opinion in that Herren has failed to show the refusal to give the instruction prejudiced him in any manner since it is unlikely the jury would have returned a different verdict if the instruction had been given. Plaintiff never knew his vehicle had been struck. The only damage was to a taillight on the semi. He told the investigating officer he was not hurt and his first complaint of injury attributed to the accident was two and one-half months thereafter when he went to a chiro-praetor.

CourtListenerOpinion

2024-06-11T07:23:54.700143

2023-08-26 19:06:45.271674+00

9736833

PAPADAKOS, Justice, dissenting. It seems to me that a segment of this Court is hell-bent upon destroying every weapon employed by our law enforcement agencies in fighting the war on drugs. The majority now seeks to eliminate the effective use of a “drug courier profile” by limiting its use to long distance travelers. I dissent and would affirm the Superior Court on its well-reasoned opinion.

CourtListenerOpinion

2024-06-11T07:23:54.700640

2023-08-26 19:07:55.824856+00

9736834

MONTEMURO, Justice, dissenting. I dissent from the Majority’s conclusion that the trial court erred in denying appellants’ suppression motions, and would affirm the judgments of sentence in this case. My disagreement is based on my belief, consonant with that of Justice Papadakos’ dissent, that the Majority’s holding invalidates the drug courier profile approved by the United States Supreme Court, thus impeding drug interdiction efforts involving use of the profile by limiting its application to very specific fact patterns. Moreover, I believe this has been accomplished by dismissal of the facts as they were justifiably found by the trial court. *514The thrust of the Majority’s holding is that the characteristics contained in the drug courier profile here were substituted by the investigating officers for personal observation of behavior which would have aroused reasonable suspicion so as to warrant a Terry stop. However, this requires dismissal of the trial court’s contrary finding, that the testimony of the investigating officer, albeit circuitous, consisted entirely of observations made by him of the appearance and conduct of the appellants on the day of their arrest. The Majority’s rejection of empirical experience as if it were mechanistic fantasy seems to me to contravene our scope of review, and to impugn the integrity of the trial court, who emphatically determined the facts to be otherwise than the Majority has done. In concluding as it does, the Majority has ignored the admonition of our Supreme Court in United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), that “[a] court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors leading to that conclusion, but the fact that these factors may be set forth in a ‘profile’ does not somehow detract from their evidentiary significance as seen by a trained agent.” Id. at 10, 109 S.Ct. at 1587. The reversal of the trial court’s finding here, however, is merely a necessary precondition for the larger conclusion that while the drug courier profile is “not per se unreasonable” (Majority Opinion at 625), it is nevertheless constitutionally unacceptable because it is used independently of personal observation, the instant case bearing witness to its unacceptability. Thus, the objection is used to prove itself. I disagree with the Majority’s conclusions, both because I believe the profiles to be useful tools in the interdiction process when not, as here, limited to replication of the facts in Sokolow, and because I believe there is no conflict between the profile and personal observation. Accordingly, I would affirm the judgments of sentence. PAPADAKOS, J., joins in this dissenting opinion.

CourtListenerOpinion

2024-06-11T07:23:54.701150

2023-08-26 19:07:55.828276+00

2207585

271 Cal.App.2d 555 (1969) CITY OF OAKLAND, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, MARYON BERNARDINI et al., Respondents. Civ. No. 25873. California Court of Appeals. First Dist., Div. One. Apr. 8, 1969. Edward A. Goggin, City Attorney, and George M. Cahalan, Assistant City Attorney, for Petitioner. Everett A. Corton, Richard E. Ryan, Caroll, Davis, Burdick & McDonough and Philip Paul Bowe for Respondents. *556 ELKINGTON, J. This proceeding, in review of a Workmen's Compensation Appeals Board award, is one of a series of cases relating to the "double recovery" provision found in section 249(2) of the Charter of the City of Oakland. (See Act 5557, Deering's General Laws, Uncodified; City of Oakland v. Workmen's Comp. App. Bd. (Reimers) 259 Cal.App.2d 163 [66 Cal.Rptr. 283]; Barnett v. Brizee, 258 Cal.App.2d 97 [65 Cal.Rptr. 493].) Section 249(2) is designed to prevent that city's liability to the same person, for the industrial death of, or injury to, a policeman or fireman, under the workmen's compensation provisions of the Labor Code and under the city's retirement system. It has repeatedly been held that a municipality may protect itself in this manner from such double liability. (See City of Los Angeles v. Industrial Acc. Com. (Morse) 63 Cal.2d 263 [46 Cal.Rptr. 110, 404 P.2d 814]; City of Los Angeles v. Industrial Acc. Com. (Fraide) 63 Cal.2d 242 [46 Cal.Rptr. 97, 404 P.2d 801]; Stafford v. Los Angeles etc. Retirement Board, 42 Cal.2d 795 [270 P.2d 12]; Lyons v. Hoover, 41 Cal.2d 145 [258 P.2d 4]; Healy v. Industrial Acc. Com., 41 Cal.2d 118 [258 P.2d 1]; City & County of San Francisco v. Workmen's Comp. App. Bd. (Shaughnessy-Swall-Morey) 269 Cal.App.2d 382, 390 [74 Cal.Rptr. 810]; City & County of San Francisco v. Workmen's Comp. App. Bd. (Engler) 267 Cal.App.2d 771 [73 Cal.Rptr. 429]; City of Oakland v. Workmen's Comp. App. Bd. (Reimers) supra, 259 Cal.App.2d 163; Barnett v. Brizee, supra, 258 Cal.App.2d 97.) The Charter of the City of Oakland (including 249(2)) was enacted under the authority of article XI, section 8 of the California Constitution. Evidence Code section 451 provides that judicial notice shall be taken of the "public statutory law of this state ... and ... any charter described in Section ... 8 of Article XI of the California Constitution." The appeals board accordingly was required to, and did, take such judicial notice. Evidence Code section 459 requires that this reviewing court shall take judicial notice of "each matter that the trial court was required to notice under Section 451." Dante Bernardini, a fireman employed by the City of Oakland, died June 10, 1967, as a result of a duty-incurred injury. Totally dependent on him for support were his wife Maryon and their daughter Denise. On October 6, 1967, Mrs. Bernardini, on behalf of herself and Denise, filed with the *557 Workmen's Compensation Appeals Board a claim for the statutory death benefit of $20,500. Thereafter Mrs. Bernardini filed notice with the appeals board stating, "I have authorized my attorney ... to repudiate and withdraw any claim I as an individual may have to workmen's compensation benefits." The appeals board then made the entire maximum allowable death award in favor of Denise "against City of Oakland ... payable at the rate of $70.00 a week ... and continuing until the total amount of $20,500.00 shall have been paid." [1] The City of Oakland contends that the appeals board acted in excess of its jurisdiction and abused its discretion in awarding the entire maximum death benefit to Denise instead of dividing it equally between the two dependents. Under the City of Oakland Charter Mrs. Bernardini is entitled to, and we may infer, receiving, a monthly retirement allowance. This retirement allowance and the above mentioned compensation award are based on Mr. Bernardini's injury and death. Charter section 249(2) as pertinent here provides: "It is the intention of this section that allowance granted to or on account of members of the [Retirement] System for injury, illness or death incurred in the performance of duty shall not be cumulative with [workmen's compensation] benefits under the Labor Code of California awarded as the result of the same injury, illness or death. If any member of the System or dependent receives compensation under the Labor Code for disability or death arising out of and in the course of the performance of duty, any payment on account thereof shall be applied as a credit and set off against any payment on account of ... retirement allowance or other benefit granted to or on account of such member under the provisions of this Article. ..." The contention of the city, and the waiver by Mrs. Bernardini of her compensation claim, become meaningful when we note the practice of the appeals board, in cases such as this, where for any reason a dependent widow cannot, or does not, receive workmen's compensation death benefits, to award the entire maximum allowable benefits to the dependent child or children. (See City & County of San Francisco v. Workmen's Comp. App. Bd. (Shaughnessy-Swall-Morey) 269 Cal.App.2d 382 [74 Cal.Rptr. 810].) The insistence of the City of Oakland that Mrs. Bernardini be awarded one-half of the statutory death benefit results from a desire to offset her retirement *558 allowance against her portion of the workmen's compensation award. It is equally clear that Mrs. Bernardini's "repudiation and withdrawal" of her claim stems from a wish to ensure payment of the entire award, without the deduction provided for by charter section 249(2). At the appeals board hearings the City of Oakland did not expressly state the reasons for its opposition to the award. The appeals board therefore states that since such a contention was not made below, the city has not shown that it was prejudiced by the award. As we have noted, ante, the appeals board was required to judicially notice the City of Oakland's Charter provisions relating to Mrs. Bernardini's monthly allowance, and the city's right to credit on such allowances against any compensation award to her. And it is clear, since Mrs. Bernardini's counsel had previously represented the compensation claimants in City of Oakland v. Workmen's Comp. App. Bd. (Reimers) supra, 259 Cal.App.2d 163, and Barnett v. Brizee, supra, 258 Cal.App.2d 97, q.v., that all parties were in fact, fully cognizant of the reasons for the city's opposition. The parties concede that no showing was made to the appeals board that the needs of Denise were any greater than those of her mother. Both Mrs. Bernardini and Denise were dependents of the deceased fireman. They alleged in the appeals board's proceedings that they were "totally dependent on him for support." And Labor Code section 3501 provides that they were "conclusively presumed to be wholly dependent" on him for support. [fn. 1] Section 4703 provides, as applicable here: "Subject to the provisions of section 4704, this section shall determine the right to a death benefit. ... If there is more than one person wholly dependent for support upon a deceased employee, the death benefit shall be divided equally among them." (Italics added.) It is thus apparent (except as provided by section 4704 which will be discussed later) that the appeals board was required by law to divide the award equally between Denise and her mother. Section 4900 provides that "No claim for compensation ... is assignable before payment, ..." Accordingly, Mrs. Bernardini's "repudiation and withdrawal" of her claim may not be accepted for its intended purpose, a thinly veiled *559 assignment of her compensation benefits to Denise. [fn. 2] It stands only as a renunciation or waiver of such benefits. It follows that the death benefit otherwise awardable to Mrs. Bernardini (except for the possible operation of section 4704) is now payable to no one. Section 4704 provides, as relevant: "The commission may set apart or reassign the death benefit to any one or more of the dependents in accordance with their respective needs and in a just and equitable manner, and may order payment to a dependent subsequent in right, or not otherwise entitled thereto, upon good cause being shown therefor. ..." It is the clear intent of the statute that wholly dependent survivors shall share equally unless the appeals board in its discretion shall determine that their respective needs differ. Upon such a determination the apportionment must be made "in a just and equitable manner." Speaking of the parent statute to section 4704 (with substantially the same language), the court in Pacific Gas & Elec. Co. v. Industrial Acc. Com., 124 Cal.App. 303, 307 [12 P.2d 647], stated, "[W]e think it is beyond debate that it designated prima facie who should receive benefits, but that it also vested in the Commission a discretion to change or vary from the statutory rule as the circumstances might demand." Referring to the same earlier statute the court in Perry v. Industrial Acc. Com., 176 Cal. 706, 710 [169 P. 353], stated: "The question [of] what disposition in any particular case is in proportion to the respective needs of the dependents and just and equitable is, of course, one of fact, the determination of which is committed to the commission, and in its determination the commission is necessarily invested with a large discretion." The wide discretion exercised by the appeals board is nevertheless a "judicial discretion" to be exercised according to the fixed principles applying to courts generally. (See Martin v. Alcoholic Beverage etc. Appeals Board, 55 Cal.2d 867, 875 *560 [13 Cal.Rptr. 513, 362 P.2d 337].) Martin, iterating principles earlier announced by the court, stated (p. 875): " 'The mere fact that a court may have jurisdiction to make an order does not equip it to exercise judicial discretion. Its acts must not only be confined within the field of discretion but must also be of a character within the bounds of the limiting adjective "judicial." To exercise that power all the material facts in evidence must be both known and considered, together also with the legal principles essential to an informed, intelligent, and just decision. ...' " (Italics changed.) By virtue of section 4703, such facts as were in evidence before the appeals board, indicate equal entitlement of Mrs. Bernardini and her daughter to the death benefit award. Section 4704 allows setting aside or reassignment of such death benefits, to any one or more of the dependents in accordance with their respective needs and in a just and equitable manner. It does not appear that the appeals board's decisions were reached in the informed, intelligent and just manner, after consideration of all material facts, as required by Martin v. Alcoholic Beverage etc. Appeals Board, supra. Nor can it be said that the setting aside or reassignment was made to the dependents in accordance with their respective needs or in a just and equitable manner as required by section 4704. Instead, Mrs. Bernardini's waiver and the ensuing grant of the entire maximum benefit to Denise appears to have been made for the purpose of denying to the City of Oakland its right to credit Mrs. Bernardini's pension payments against her proper and legal share of the appeals board's award. [fn. 3] Our task here, if reasonably possible, is to protect the right of the city to credit Mrs. Bernardini's monthly allowances against her legal share of the compensation award (or what accomplishes the same result--to give effect to her waiver) without at the same time doing violence to the appeals board's power to set apart or reassign under section 4704 a previously made award. Section 4702 provides that "The death benefit in all cases shall be paid in installments in the same manner and amounts as temporary disability indemnity, payments to be made at least twice each calendar month, unless the appeals board *561 otherwise orders." Sections 4650-4653 relate to the manner and amounts of temporary disability indemnity payments. Generally they provide that the amount of such payments is 65 percent of the average weekly earnings of the employee ( 4653), that payments shall be made for the period commencing on the eighth day after the injury becomes permanent ( 4650), and not less frequently than twice in each calendar month ( 4651). In City & County of San Francisco v. Workmen's Comp. App. Bd. (Shaughnessy-Swall-Morey) supra, 269 Cal.App.2d 382, 389, we held that where the statute of limitations ( 5406) has run against the widow who otherwise would be entitled to an equal share of an award, the appeals board may not later set apart or reassign that part of an award which, but for the statute of limitations, would already have been paid to the widow. The rationale of that case is reasonably applicable to the problem before us. [fn. 4] We conclude that on the evidence before the appeals board Mrs. Bernardini was entitled under section 4703 to receive one-half of the compensation benefits unless and until the board for cause set apart or reassigned such portion under section 4704. Her waiver constituted a renunciation of her share; it did not operate as an assignment thereof to Denise. It operated only on such payments of the award, which, but for her waiver, the widow would otherwise have received pursuant to sections 4702 and 4650-4653. It did not affect the appeals board's power for cause to set apart or reassign under Labor Code section 4704; such power, however, when and if exercised would relate only to that portion of the widow's award which would then have been unpaid (under Lab. Code, 4702, 4650-4653) had she executed no waiver. The award of the appeals board is annulled; the board will take further proceedings not inconsistent with the views herein expressed. Molinari, P. J., and Sims, J., concurred. NOTES [fn. 1] 1. Unless otherwise stated all statutory references hereinafter mentioned are to the Labor Code. [fn. 2] 2. That such was the purpose is further demonstrated in Mrs. Bernardini's brief before the appeals board. There it was stated that if her waiver be rejected "all that will be accomplished in this and in future cases is the absurd result that minor children through the widow as a guardian will wait until the statutory limitations period has expired against the widow and then file." Reference was then made to cases where the appeals board had awarded the entire death benefit to dependent minor children when the statute of limitations ( 5406) had run against the widow--a practice later disapproved in City & County of San Francisco v. Workmen's Comp. App. Bd. (Shaughnessy-Swall-Morey) supra, 269 Cal.App.2d 382. [fn. 3] 3. We note that in City of Los Angeles v. Industrial Acc. Com. (Morse) supra, 63 Cal.2d 263, a device calculated by the appeals board and the petitioner therein to defeat the right of the City of Los Angeles to credit allowances to a policeman's widow against a workmen's compensation award, was nullified by the court. [fn. 4] 4. Barnett v. Brizee, supra, 258 Cal.App.2d 97, is cited as authority approving the maximum death benefit award to a fireman's dependent child where the statute of limitations had run against a dependent widow. In that case there was no issue before, or discussion by, the court as to the propriety of such an award--hence it is not authority on the question before us.

CourtListenerOpinion

2024-06-11T07:23:54.704625

2013-10-30 08:36:21.141287+00

2207603

454 N.W.2d 614 (1990) In the Matter of DeWayne COLBERT. No. C6-89-1830. Supreme Court of Minnesota. May 4, 1990. William Lubov, Law Firm of William Lubov, Minneapolis, for DeWayne Colbert. Thomas L. Johnson, Hennepin County Atty., Elizabeth Cutter, Asst. Hennepin County Atty., Minneapolis. Considered and decided by the court en banc without oral argument. KELLEY, Justice. This is an appeal from an MID (mentally ill and dangerous) commitment proceeding. At the commitment hearing the district court determined that the subject of the commitment, DeWayne Colbert, while still mentally ill, no longer was dangerous. The court of appeals in an unpublished decision reversed, holding that the trial court clearly erred in its determination. We disagree and accordingly reverse the decision of the court of appeals and reinstate the decision of the district court. Colbert suffers from paranoid schizophrenia and has a history of chemical dependence and substance abuse. He has been hospitalized before and has a history of both responding to treatment on anti-psychosis medication and of deteriorating when he quits taking the medication. Before the current commitment Colbert was living in an apartment building in Minneapolis. His paranoia, aggravated by his drug use, led him to engage in conduct indicating that he was mentally ill as well as dangerous to others. At the original commitment hearing, Dr. Calvin W. Vraa, Ph.D., the court-appointed examiner, testified that Colbert had responded to medication and that commitment to the Minnesota Security Hospital in St. Peter was not appropriate. He testified that placement in the Anoka Metro Regional Treatment Center was a possibility but that placement in a Rule 36 facility would be acceptable if Colbert's medication was monitored and if he was in a structured day program. Bruce Quarry, a senior psychiatric social worker at Hennepin County Medical Center, where Colbert was confined pending the commitment hearing, also testified that commitment to St. Peter was not necessary and that the Anoka facility would be an appropriate placement. He testified that Colbert was not ready for *615 a Rule 36 facility but was making progress toward it. The district court determined that Colbert was both mentally ill and dangerous and committed him to the Minnesota Security Hospital. As we said, we are dealing with the issue of the continuation of that commitment. Two experts testified at the continuation hearing, which was held before a different judge. One expert, Douglas Fox, a licensed psychologist at the Minnesota Security Hospital, testified that Colbert was not dangerous while using the drugs being given to him but that if he were released there would be a substantial likelihood of danger to the safety of others because he would discontinue taking his medicine. Fox recommended that the MID commitment be continued. Dr. Sharon Satterfield, a psychiatrist appointed by the court as a second examiner (Dr. Vraa being the first), generally agreed with Fox, but her way of stating her conclusions was different. She testified that the psychosis had been alleviated almost entirely by the medicine and the Colbert currently did not present any substantial likelihood of engaging in acts capable of inflicting serious physical harm on another person. She testified that he "might not be" what is termed "med-complaint" if he were not in a facility that actually offered him the medicine. She put it slightly differently moments later when she said "I do not trust" that he would choose to take medicine on his own. She said she was satisfied that Anoka Metro Regional Treatment Center could adequately provide for Colbert's treatment needs and that staying at the state security hospital in St. Peter was not required. Colbert also testified, saying that he now realized the importance of taking his medicine and of not using marijuana. He stated he would continue to take his medicine once he was released. The district court dismissed the allegation of mentally ill and dangerous, and found that Colbert was just mentally ill because he "is not dangerous while taking medications." The district court sent Colbert to the locked unit at the Anoka Metro Regional Treatment Center, with permission to the doctors to transfer him to an unlocked unit when they determined it was appropriate. The court of appeals reversed, holding that the district court's determination that Colbert was not dangerous was clearly erroneous. We hold that the court of appeals erred in concluding as it did. The issue for the district court was whether Colbert continued to be "mentally ill and dangerous" within the meaning of Minn.Stat. § 253B.02, subd. 17 (1988), which provides: A "person mentally ill and dangerous to the public" is a person (a) who is mentally ill; and (b) who as a result of that mental illness presents a clear danger to the safety of others as demonstrated by the facts that (i) the person has engaged in an overt act causing or attempting to cause serious physical harm to another and (ii) there is a substantial likelihood that the person will engage in acts capable of inflicting serious physical harm on another. Hennepin County had the burden of proving that Colbert continued to be mentally ill and dangerous by clear and convincing evidence. The court of appeals, holding that the trial court clearly erred, in effect ruled that the trial court had no choice on this record but to conclude that Colbert was still dangerous. Undoubtedly, other cases can be found upholding a continued MID commitment on a record like this one; an example of such a case is In re Malm, 375 N.W.2d 888 (Minn.App.1985). The effect of the court of appeals' decision is to extend those decisions and turn them into an inflexible rule, that whenever there is a record like this one the trial court clearly errs if it does not continue the MID commitment. We believe that the evidence was such that, although the trial court arguably was free to continue the commitment, the trial court was not compelled to do so. In other words, we hold the trial court was justified in determining that Colbert, although still mentally ill, was no *616 longer dangerous. Reversed and decision of district court reinstated.

CourtListenerOpinion

2024-06-11T07:23:54.707088

2013-10-30 08:36:21.399827+00

9736793

SABERS, Justice (dissenting). THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO INSTRUCT THE JURY THAT DEFENDANT GANTVOORT HAD A DUTY TO SEE WHAT WAS THERE TO BE SEEN. Under the evidence in this case, the jury could conclude that Gantvoort could have seen Herren’s vehicle some 1,200 feet before he did. Since Gantvoort claims he did not apply his brakes until he was within 140 feet of Herren’s vehicle — too late to stop because of the icy road — it was crucial for the jury to be properly instructed that Gantvoort had a duty to see what was there to be seen (and was bound by same whether he saw anything or not). Anderson v. Adamson, 79 S.D. 429, 112 N.W.2d 612 (1962); Flanagan v. Slattery, 74 S.D. 92, 49 N.W.2d 27 (1951). Under the circumstances of this case, it was clearly prejudicial to refuse to give said instruction. Contrary to the statement in the majority opinion, Herren’s proposed instruction was not “embodied in other given instructions” and it is likely that the jury would have returned a different verdict if Herren’s proposed instruction had been given because the emphasis on Gantvoort’s conduct would have been substantially different. The undeniable fact is that Gantvoort struck Herren’s vehicle even though he could have seen it some 1,500 feet earlier. The jury should have been instructed that Gantvoort was responsible as though he had seen the vehicle earlier.

CourtListenerOpinion

2024-06-11T07:23:54.708010

2023-08-26 19:06:45.275093+00

9736794

Opinion by Gunther, J., . The issue here presented is whether the court below erred in permitting the withdrawal of signatures to a petition seeking annexation of a. tract of land, in Scott. .Township, to. Mount Lebanon Township, .both first:, class:.. townships in--Allegheny- County. • The - an*519nexation petition was opposed by Scott Township and the School District of Scott Township, appellees. The court below permitted the withdrawal of 28 original signers and then dismissed the annexation petition on the ground that the statutory provisions1 requiring signatures of 80% of the qualified electors and signatures of the owners of 80% of the assessed valuation of the real estate in the tract to be annexed had not been complied with. Erwin Lerten has taken this appeal on behalf of the annexation petitioners. Erwin Lerten and 326 others, on August 2, 1949, filed their petition in the Court of Quarter Sessions of Allegheny County averring, inter alia, that they constituted (1) the owners of more than 80% of the assessed valuation of the property desired to be detached and annexed, and (2) that they constituted more than 80% of the qualified electors resident in the territory. The petitioners prayed that a tract of land consisting of approximately 324 acres located in Scott Township be annexed to Mount Lebanon Township pursuant to the provisions of the Act of June 19, 1939, P.L. 430, Section 1 et seq. 53 PS Section 19092-312.1 et seq. Attached to the petition was a plan or survey of the territory desired to be detached and annexed, together Avith a certified copy of the approval of the proposed annexation by Mount Lebanon ToAvnship Board of Commissioners. On August 2, 1949, the court entered an order that the annexation petition be served upon the secretary of the Township Commissioners of Scott Township. Scott ToAvnship filed an ansAver denying the material averments of the annexation petition and averred, by way of new matter, that the annexation petition was not filed in good faith, and that the underlying purpose of the annexation petition was to force *520the Paul tract into Mount Lebanon Township, thereby effectively prohibiting the Pauls from constructing certain apartment-type dwellings which were permissible under contemplated amendments to the zoning ordinance and regulations of Scott Township.2 The School District of Scott Township was, upon petition, permitted to intervene. The matter came on for hearing on September 26, 1949. The petitioners seeking annexation presented testimony establishing the averments of their petition. At the close of petitioner’s case in chief, counsel for Scott Township offered to present a petition signed by 28 persons seeking to withdraw their names from the annexation petition averring that since they had signed “. . . they have discovered that the person or persons circulating said (annexation) Petition had *521made certain misrepresentations to them, and they have therefore reconsidered their action and are now desirous of withdrawing their names as petitioners. . . .”. The court below refused to permit the 28 signers to recant merely upon averments of the withdrawal petition, but to enable the court to determine whether a proper and sufficient reason for withdrawal existed, permitted testimony of any person who wished to withdraw. The court below, after a full and extensive hearing, concluded that 38 signatories3 had established valid and sufficient reasons for withdrawal and dismissed the petition. Exceptions were filed by Erwin Lerten on behalf of the annexation petitioners. This appeal is from dismissal by the court en banc of the material exceptions. It is stated that if these 28 persons, plus one witness who had not signed the withdrawal petition but who appeared and testified and sought the withdrawal of his and his wife’s signatures (or 30 in all) are permitted to withdraw, the annexation must fail for the reason that the annexation petition would not only lack the names of the owners of the required 80% of the assessed valuation of the real estate in the territory desired to be annexed, but would also lack the requisite 80% of the qualified electors residing within the tract. *522Appellant contends that (1) jurisdiction of the court attached upon filing of the annexation petition and the court below lacked power thereafter to permit signatories to withdraw their names therefrom; (2) assuming power to permit withdrawal, it could be exercised only upon proof which would sustain a finding of fraud and deceit sufficient to avoid a contract; and (3) the evidence is insufficient to sustain a finding of fraud or deceit. Prior to the decision of the Supreme Court in Mercersburg Independent School District, 237 Pa. 368, 85 A. 467, there are decisions lending weight to appellant’s position that after the filing of the petition, recanting signers should not be permitted to withdraw. See Borough of Quakertown, 3 Grant 203 (1855); Mann v. Cassidy, 1 Brewster’s Rep. 11, 43 (1857); Tullytown Borough, 1 Dist. 292 (1891); Warren Borough’s Annexation, 168 Pa. 441, 32 A. 38 (1895); Incorporation of Flemington Borough, 168 Pa. 628, 32 A. 86 (1895); Incorporation of the Borough of Old Forge, 12 Pa. Superior Ct. 359 (1900); Cf. Newton v. Emporium Borough, 225 Pa. 17, 73 A. 984 (1909). In Borough of Quakertown, supra, the Court said: “The court were right in disregarding the recantation of some of the petitioners, for after the jurisdiction had attached, they could not oust it by any act of theirs.” Again in Incorporation of the Borough of Old Forge, supra, the Court said (p. 362): “The court in determining whether the original petition had been signed by the required number of freeholders, counted as signers these parties who had signed but changed their minds when the proceeding was almost finished. Petitioners cannot thus play fast and loose with the court, joining with others to make up the number necessary to confer jurisdiction, and then threaten to deprive the court of jurisdiction, by withdrawing, if all col*523lateral questions are not decided, as they suggest.” The cases cited above, together with the cases cited in the footnote4, indicate that the question here involved has been rather extensively considered by the appellate and lower courts. A considerable variation in result and a conflict in judicial reasoning as to the right to withdraw appears. In Mercersburg Independent School District, supra, the Court reviewed -the cases cited, and although the Court recognized that those cases appeared to sustain appellant’s contention that those seeking to withdraw could not by any act of their own oust jurisdiction of the court once jurisdiction had attached, it said (p. 372) : “Certainly, it was not intended to say that petitioners under no circumstances, even with leave of court, could withdraw. Such a rule would not only be a harsh one, but it would not be in keeping with the spirit and purpose of our system of jurisprudence. In such cases much must be left to the sound discretion of the court. The jurisdiction of a court in a sense attaches as soon as the petition is filed, or presented, but, prior to a hearing, and before anything has been done involving the rights of the parties, reasonable discretion should be exercised in favor of petitioners who in good faith and for proper reasons desire to withdraw.” The Court also said, at page 371, that: “After a careful examination of all our Pennsylvania cases, above and below, the following general rules may be regarded as well established: ... 2. A petitioner does not have the right per se to withdraw his name after jurisdiction, has attached, *524and in such cases never has the right to withdraw without leave of court. 3. If a petitioner has been induced to sign by misrepresentations, he may withdraw his name even after jurisdiction has attached, but this must be done with leave of court, or other body or tribunal having jurisdiction of the proceeding. 4. In those cases, in which jurisdiction has attached, the fact that several petitioners desire to withdraw their names, should be taken into consideration by the court; and, if, a sufficient number desire to withdraw, the court would not only be warranted in dismissing the petition, but in many instances should do so, on the ground, that under such circumstances the power of the court should not be asserted against the real wishes of signers whose names are necessary to give jurisdiction when they in good faith desire to withdraw from the proceeding. In other words, there should be no hard and fast rule making it impossible for petitioners to withdraw from a proceeding, or to discontinue a case, because jurisdiction in the first instance had attached.” It is true that the Supreme Court in the Mercers-burg case, supra, disposed of that appeal on other grounds, yet we adopt the enlightening dicta, there pronounced as setting forth a reasonable and equitable rule to dispose of the question here presented. The rationale of the dicta in the Mercersburg case pronounces what to us seems to be the more equitable rule and one more in harmony with our system of jurisprudence. The fact that jurisdiction of the court had attached by the filing of the annexation petition was not of itself sufficient to deprive signatories the right to.withdraw. They, of course, could not have withdrawn without leave of court. At this stage of the proceeding, it was the duty of the court below to inquire into the facts to ascertain whether the -reasons .submitted were sufficient to warrant their withdrawal; whether *525the recanting signers were acting in good faith, and whether they were proceeding timely. There was lodged in the trial court the power to exercise a sound and judicial discretion to determine whether the evidence upon which withdrawal was sought was sufficient in quality and probative value to justify withdrawal. It is conceded by all parties that the petitioners were given full opportunity to establish proper reasons to warrant their withdrawal. . The precise inquiry then becomes whether there has been a manifest abuse of discretion by the court below. This is a statutory proceeding; the statute is silent on the right of appeal and we, therefore, may review the case in the broadest sense of certiorari. Braddock Township Appeal, 148 Pa. Superior Ct. 52, 55, 24 A. 2d 705; Grime v. Department of Public Instruction, 324 Pa. 371, 375, 188 A. 337. A distinction exists between certiorari in its broadest sense and appeal. While we may review the evidence, the scope of review in the former is limited to whether an error of law has been committed. Unless there has been a serious abuse of discretion, matters resting solely in the judgment of the court below cannot be interfered with. In re Elkland Leather Workers’ Association, 330 Pa. 78, 80, 198 A. 13, 15. “An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly Unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused”: Mielcuszny v. Rosol, 317 Pa. 91, 93, 94, 176 A. 236. When the court, by the exercise of its discretion, has reached a conclusion “the party complaining of it on appeal has a heavy burden; it.is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; *526it is necessary to go further and show an abuse of the discretionary power”: Garrett’s Estate, 335 Pa. 287, 292, 293, 6 A. 2d 858; Irwin Borough Annexation Case (No. 1), 165 Pa. Superior Ct. 119, 133, 67 A. 2d 757. We now turn to a summary of the testimony of the signers seeking withdrawal. Of these 28 signers seeking withdrawal, 13 actually appeared and testified.5 Nine witnesses of the 13 appeared and testified on behalf of themselves and their spouses.6 The court below did not err in permitting one spouse to testify on behalf of the other absent spouse, especially where, as here, the joint property of both was involved. Cf. Act of May 23, 1887, P.L. 158, Section 5, cl. (c), as amended by the Act of May 10, 1927, P.L. 861, Section 1, 28 PS Section 317; Henry, Trial Evidence, (3rd Ed.) Section 451. At this point, therefore, 22 persons sought to withdraw by appearing and testifying or appearing through their respective spouses. W. H. Dengler did not sign the withdrawal petition, but he did appear, testified and asked that his and his wife’s signatures be withdrawn. At this point, 24 names were sought to be stricken from the list. Twelve additional witnesses appeared and testified concerning a variety of alleged misrepresentations but the record is unmistakably clear that not one of these twelve witnesses requested the withdrawal of their signatures. John YaSenka was called as a witness on behalf of the opponents to the annexation. He testified that he *527was secretary of the Scott Township Civic League; that he, together with a Mr. Ostrowski, . . went out with a petition to get these people to withdraw their names and inform them of the true facts of the case”. The substance of YaSenka’s testimony, pertinent here, is that William A. Haller and his wife, and William W. Morris and his wife wanted Mr. YaSenka to appear in court and have their names withdrawn. Strenuous objection was made to this testimony, and properly so. It was manifestly unreasonable for the court below to strike the names of these four signers from the annexation petition on such obviously hearsay testimony. For the same reason, it was error for the court below to strike the signature of the son of John Miller. In this, there was a manifest abuse of discretion. In a matter which was so bitterly contested, and where the public weal was so clearly involved, signers desiring to withdraw were duty-bound to appear and to submit testimony upon which the court below could determine whether they were acting in good faith and for proper reasons sufficient to warrant their withdrawal. It is unnecessary to recite the evidence in detail. Suffice it to say that misrepresentations were made concerning the population, financial stability of Scott Township and Scott Township School District, together with promises that signers would receive better police and fire protection and lower taxes. We have examined with extreme care the testimony of all parties seeking to withdraw and conclude that the court below iu the exercise of a sound discretion properly permitted the withdrawal of the 24 signatures listed above on the basis of a finding , of misrepresentations, a misapprehension of the facts;- that they were misinformed and misguided. -The findings of the court, below in this respect will not be disturbed for the lack. of. a showing.of a,serious, abljse of..discretion.-.,;. -.; *528Appellant’s final contention that the proofs justifying withdrawal should amount to a finding of actual fraud or deceit sufficient in quality to avoid the consequences of a contract is without merit. Appellant’s suggested burden of proof is too harsh. The rule which permits a withdrawal upon timely application when made in good faith and for proper reasons is much more likely to get at the real and mature judgment of the voters, and moreover is calculated to discourage a hasty presentation of a petition without a full disclosure of the real merits of the question. Cir-culators of a petition can usually avoid sufficient withdrawals to defeat the petition by taking care that the matter is fully understood by those to whom it is presented for signature. What was said in the Mer-cersburg case, supra, is more consonant with the theory of the cases that “. . . reasonable discretion should be exercised in favor of petitioners who in good faith and for proper reasons desire to withdraw. ... In other words, there should be no hard and fast rule making it impossible for petitioners to withdraw from a proceeding, or discontinue a case”. Tacit approval that the burden of proof imposed upon recanting signers is that as pronounced in the Mercersburg case, supra, is found In Re: Petition of Wilhelm, 104 Pa. Superior Ct. 479, 482, 483, 159 A. 49. Several lower court decisions indicate that the burden of proof contended for by appellant is too onerous. Cf. East Newport Borough, 35 C. C. 617; In Re: Independent School District, 2 Chester 132; Election Expense Accounts, 22 Dist. 952. The power of the court should not be asserted against the real 'wishes of signers whose names are necessary to give jurisdiction when they in good faith desire .to withdraw from the. proceeding. That this. is. the extent of the burden, in Other jurisdictions' is deducible from. the. cases. Cf. Hawkins v. Carroll, *529190 S.C. 11, 1 S.E. (2) 898; Sutherland v. McKinney, 146 Ind. 611, 45 N.E. 1048; State ex rel Morgan v. Nemaha, 10 Neb. 32, 4 N.W. 373; Hill v. McClintock, 175 Ark 1059, 1 S.W. (2) 564. . Order reversed. The record is remitted with instructions that the court below, on the basis of thé views expressed in this opinion, recalculate the percentage of assessed valuation of real estate owned by the annexation petitioners and the percentage of qualified electors seeking annexation to determine if the requirements of Section 2 of the Act of June 19, 1939,: P.L. 430, have been complied with and thereafter to enter an order accordingly. Each party to pay his or its costs of this appeal. Act of June 19, 1939, P. L. 480, Section 1 et. seq., 53 PS Section 19092-312.1 et seq. On August 16, 1949, Erwin Lerten filed Ms petition seeking (1) to restrain tlie commissioners of Scott Township from publishing and otherwise making effective certain amendments to the zoning ordinance, and (2) an order restraining R. W. Paul and his wife from building or causing to be built on the Paul premises any type of mulitiple family dwelling or apartment houses. The injunction petition averred, inter alia, that the Scott Township commissioners had amended the zoning ordinance to permit the construction of multiple family dwelling units and apartment houses; that the Pauls were preparing to build apartment houses upon a 45 acre tract to the detriment of the petitioners seeking annexation to Mount Lebanon Township. It appears that the Paul tract of 45 acres which constitutes a portion of the tract presently sought to be annexed to Mount Lebanon Township had previously been situate in Mount Lebanon Township, but had been annexed to Scott Township on June 30, 1949. The reason for the annexation of the Paul tract to Scott Township was undoubtedly the fact that the zoning ordinance of Mount Lebanon forbade the erection and construction of multiple family dwelling units and apartment houses as contemplated by the Pauls. A restraining order was entered pending final disposition of this annexation proceeding. The court below inadvertently said that 38 signers sought to withdraw. The record clearly establishes that only 28 signed the petition to withdraw their names. They Are: Mary M. Schroeder; Rose Wagner; Priscilla Schmdit; Henry Schmidt; Helen Hilton; Roy Hilton; Wm. A. Haller; Vivetta Haller; John P. Loboda; Betty L. Loboda; Charles R. Ward; Geo. T. Hoffman; Jean L. Hoffman; John H. Terhorst; Mrs. Madalyne Terhorst; J. Giest; Mrs. Virginia S. Giest; Harry P. Schultz; June C. Schultz; William W. Morris; Thelma H. Morris; John Miller; Helen G. Miller; W. Phillips Palmer; George S. Clarke: Mrs. George S. Clarke; J. Manheimer; Mrs. Jack Manheimer. Application of Hunsberger, 2 Montg. 132 (withdrawal. refused); Annexation of South Allentown. 2 Leh. L. J. 387 (withdrawal refused); Petition for the Incorporation of Mountville Borough, 22 Lanc. L. Rev. 113 (withdrawal refused); Wernersville Borough, 5 Berks L. J. 364 (withdrawal refused); Road in Rapho Township, 22 pane. L. Rev. 29. They are: Bose Wagner; Henry Schmidt; Helen Hilton; Charles B. Ward; Geo. T. Hoffman; Mrs. Madalyne Terhorst; J. Geist; Mrs. Virginia S. Geist; June C. Schultz; John Miller; W. Phillips Palmer; Georgé S. Clarke; J. Manheimer. The' spouses who did not appear are as follows: Mrs.' W. Phillips Palmer; Mrs. George S. Clarke; Mrs. Helen G. Miller; Mrs. Jack Manheimer; Mr. Harry P. Schultz; Mrs. Priscilla Schmidt; Mr. Boy Hilton; Mr. John H. Terhorst; Mrs. Jean L. ' Hoffman.

CourtListenerOpinion

2024-06-11T07:23:54.710731

2023-08-26 19:06:46.698561+00

9736795

Dissenting Opinion by Rhodes, P. J.: I feel obliged to file a dissent to the majority opinion, as I would affirm the order of the court below. The first question raised on the appeal in this proceeding is whether the court below had authority to permit petitioners in the proceeding to withdraw after the petition for annexation had been filed. Appellant admits that, if the withdrawals permitted by the court below are proper, as a matter of law, the petition must fail for lack of “the requisite 80% of the qualified electors and 80% of the assessed valuation.” Appellee joins in this admission. It is argued that the court below had no discretion to permit withdrawals for the reasons given at this stage of the proceeding. Appellant admits that if the withdrawals permitted by the court below are sustained, even though this number be taken as twenty-nine and not thirty-eight, the.petition must fail. .....Twenty-eight..persons . had. signed the petition to with'draw which set forth that they had signed. tEe an-. *530nexation petition due to misrepresentations made to them. At the hearings on the annexation petition testimony was introduced in support of and supplementary to the averments in the petition to withdraw. Among the witnesses were thirteen who had signed the withdrawal petition. A number testified that they spoke for their respective spouses who had likewise signed the withdrawal petition. Some appeared for themselves and others who had signed the petition to withdraw. In another instance a party who had not signed the .withdrawal petition appeared and testified that he and his wife desired their signatures to be withdrawn from the annexation petition. Many additional witnesses appeared and testified although they may not specifically have requested that their names should be withdrawn from the annexation petition. The oral testimony was confirmatory of the petition to withdraw which contained twenty-eight signatures.. At least twenty-niné persons properly sought to withdraw, and the court permitted at least that many to withdraw. The trial judge who heard the witnesses concluded that the withdrawing petitioners signed the annexation petition under a misapprehension of fact as to the reasons for that petition. The trial judge also dismissed the annexation petition on the ground that the amended petition and plan had not been approved by the annexing Township of Mount Lebanon. Exceptions were filed to the dismissal of the petition for annexation; on argument the court in banc affirmed the dismissal of the annexation petition, holding that it Was within the discretion Of the trial judge to permit the petitioners to' withdraw their names. Certain undisputed facts fully supported by the evidence áre Set forth by the' opinion of "the court in banc as follows: “(a). That a group of Mt. Lebanon property owners,. calling themselves Mt. Lebanon Property 'Owners *531Association, instituted this proceeding for the sole purpose of preventing the erection of apartment buildings on a tract of land in Scott Township; “(b) That the committee formed to solicit signatures to the petition did not, in most instances, show a map or boundary line of the territory to be annexed to the residents or owners of property in the.area; “(c) That many of the persons whose signatures were obtained did not know that the map or plan, bisected Scott Township into two separate tracts; “(d) That the Mt. Lebanon Property Owners Association had underwritten the entire cost of this proceeding, and .that signers of the petition ■ did not ■ pay any money for fees, costs or other expenses of this proceeding; “(e) That the Chairman of the Committee for annexation filed an amended petition and plan, and in the affidavit stated that he was authorized to do so by the signers to the petition; no such authority was requested or given according to the testimony of some of the signers to the petition who testified under subpoena; “(f) That the plan was drawn without any rational boundary lines and did not follow streets, roads, streams, or other natural boundaries; “(g) That the plan submitted consisted largely of property on the higher elevations which would throw a tremendous burden upon Scott Township by forcing Scott Township to take care of all the drainage from the district without getting any revenue therefrom; “(h) That misrepresentations were made concerning the population, financial stability and adequate schooling for Scott Township; “(i) The Committee made no attempt to inform some of the signers that the voters of Scott Township *532had authorized a bond issue of $225,000 to build a new school in the area; . “(j) The amended plan which was offered in evidence was not presented to the Commissioners of Mt. Lebanon Township.” . . Appellant’s position is that, as a matter of law, the court below had no authority or discretionary power to permit any of the petitioners to withdraw after the court had assumed jurisdiction of the annexation petition, especially in the absence of any finding that either fraud or misrepresentation had been practised upon those petitioners who sought to withdraw. Appellant contends that there is no evidence which would justify the court’s .permission for withdrawal. The right of petitioners to withdraw depends upon the circumstances ; no hard and fast rule can be laid down, and in such cases much must be left to the sound discretion of the court. Mercersburg Independent School District, 237 Pa. 368, 371-373, 85 A. 467. The evidence in this proceeding supports the court’s finding that petitioners seeking withdrawal signed the annexation petition in some instances under specific misrepresentations; and while, as the court below states, the evidence may not, in all instances, have been sufficient to establish actual fraud or active misrepresentation, it does appear from the evidence that withdrawing petitioners acted at least under a misapprehension of the facts, and in many instances without a full and complete disclosure of all the relevant facts which would ordinarily motivate their action in signing such an annexation petition. It devolves upon the court of quarter sessions to see that such an annexation proceeding is conducted properly, and that the requirements of the statute are fulfilled. If some petitioners are shown to have been induced to sign without full disclosure of material facts *533or under a misapprehension as to important facts, these matters go to the very foundation and legality of the petition, and may establish that the procedural requirements of the Act (June 19, 1939, P. L. 430) have not been met. In acting within its discretionary powers and permitting withdrawal of petitioners for cause shown, the court is in no. way exceeding its statutory authority. In the present case the court acted within its discretionary power in permitting petitioners to withdraw, and its decision cannot be reversed on the ground of abuse of that discretion. The annexation petition was also properly dismissed by the court beiow for lack of another statutory requirement — approval of the amended plan by the annexing Township of Mount Lebanon. Act of June 19,1939, P.L. 430, § 3, 53 PS § 19092-312.3. Cf. Whitehall Borough Incorporation Case, 161 Pa. Superior Ct. 397, 403, 55 A. 2d 70. When counsel for petitioners offered in evidence the petition and amended petition,, counsel for Scott Township School Board, intervening appellee, objected on the ground that the amended plan had never been approved by the Commissioners of Mount Lebanon Township. It is admitted that such approval by Mount Lebanon Township was never obtained. The requirements of the statute are mandatory. In re Annexation of a Portion of Abington Twp. to Boro. of Jenkintown, 101 Pa. Superior Ct. 227, 230. Petitioners for annexation had the burden of showing compliance with the requirements of the statute. Braddock Township Appeal, 148 Pa. Superior Ct. 52, 59, 24 A. 2d 705. The order of the court below dismissing appellant’s exceptions and affirming the dismissal of the annexation petition should be affirmed. Judge Reno joins in this dissent.

CourtListenerOpinion

2024-06-11T07:23:54.713775

2023-08-26 19:06:46.703573+00

9736796

DAY, J. This is a review of a decision of the court of appeals, State v. DeSmidt, 151 Wis. 2d 324, 444 N.W.2d 420 (Ct. App. 1989), which affirmed the order of the circuit court for Brown county, the Honorable John P. Hoffmann, Judge, suppressing all evidence, except Medicaid provider handbooks, seized in a warrant-authorized search of Dr. DeSmidt's dental offices. The first question is whether the search of Dr. DeSmidt's dental offices and seizure of his dental and business records violated either Art. I, Sec. 11 of the Wisconsin Constitution or the Fourth Amendment of the United States Constitution. If the search and seizure was constitutionally infirm, the second question is whether this court should adopt the "good faith" exception to the exclusionary rule established by the United States Supreme Court in United States v. Leon, 468 U.S. 897 (1984). We conclude the search and seizure was constitu*125tional and reverse. We therefore do not reach the Leon issue. An investigation of Dr. DeSmidt's dental practice in Green Bay arose in late August of 1985 after a former employee of Dr. DeSmidt's, Ms. Harriet Berger, contacted the Wisconsin Department of Justice alleging that Dr. DeSmidt was submitting fraudulent Medicaid and insurance claim forms. The matter was investigated by Mr. John P. Isely, an investigator with the Medicaid Fraud Control Unit of the Wisconsin Department of Justice. Investigator Isely interviewed Ms. Berger on several occasions. On September 24, 1985, Investigator Isely filed a Complaint for Search Warrant, drafted by an Assistant Attorney General, and a supporting affidavit detailing the interviews with Ms. Berger and her allegations. The affidavit, which is appended in full to the court of appeals' decision, provided in pertinent part that Ms. Berger had been employed by Dr. DeSmidt from early June of 1985 through mid-August of that same year. Ms. Berger's duties included preparing third party claim forms, and she had access to all of Dr. DeSmidt's business records and files. Ms. Berger alleged that Dr. DeSmidt was engaged in a series of illegal activities. Ms. Berger alleged and gave specific examples of claim forms that had been filed seeking Medicaid assistance for. services performed on one date when patient records and other documents disclosed that in fact the services had been performed on another date when the patient was ineligible to receive Medicaid assistance. Ms. Berger alleged that similar practices were being utilized in filing claim forms with private insurance companies and gave specific examples of such cases. Ms. Berger also stated that Dr. DeSmidt adjusted some bills to private insurance companies so as to receive his full customary fee for a particular service even though the policy pro*126vided coverage for only a percentage of the fee. Ms. Berger also alleged that Dr. DeSmidt routinely submitted Medicaid claim forms for periapical x-rays when in fact bite wing x-rays had been performed. Bite wing x-rays are only covered by Medicaid assistance if authorization is received prior to treatment. Ms. Berger stated she believed that Dr. DeSmidt's associate, Dr. McClain, was being trained to conduct her business in a similar illegal fashion. Ms. Berger alleged that Dr. McClain had stated to her that Medicaid eligibility dates presented no problem inasmuch as the service could be backdated on the claim forms to fall within the eligibility period. Ms. Berger stated that an examination of the business records of Dr. DeSmidt and Dr. McClain would disclose other instances in which claim forms containing false information were filed for Medicaid assistance or with private insurance companies. Ms. Berger stated that when she confronted Dr. DeSmidt with the fact that he was engaging in activities which were illegal, he merely smiled and said that it was his office. Shortly after this confrontation, Dr. DeSmidt terminated Ms. Berger's employment. A search warrant was issued on September 25,1985, by the circuit court for Brown county, the Honorable Alexander R. Grant, Judge. The warrant authorized the search for and seizure of the following items: Patient charts and dental records, recording, among other things, services actually performed, dates of service; x-ray negatives in envelopes attached to the individual patient dental records; business records including but not limited to, appointment book or books, copies of patient statements, receipt book or books, fee schedule, ledgers, daily business summaries, remittance forms; Medicaid provider handbooks. *127On September 25,1985, Investigator Isely and three other Wisconsin Department of Justice agents entered Dr. DeSmidt's dental offices in Green Bay to execute the search warrant. Dr. DeSmidt was served with a copy of the search warrant, but not a copy of the affidavit. The search lasted approximately two hours and ten minutes. Investigator Isely directed the agents to seize all business records and all patient files dated from 1979. While the other agents were conducting the search, Investigator Isely questioned Dr. DeSmidt in his office. The questioning ceased after approximately one hour when Dr. DeSmidt asked to speak to an attorney. The agents seized twenty-two boxes of materials, including all "active patient" files, financial records, accounting ledgers, business and personal bank statements, appointment books, day sheets recording the daily work performed, and payroll and expense check stubs. Dr. DeSmidt was allowed to retain blank business checks and to photocopy the charts of those patients expected in the next day as well as several days of the appointment book. Investigator Isely and the agents transported the materials to their offices in Madison. In an amended complaint filed on July 3, 1986, the State charged Dr. DeSmidt with nine counts of medical assistance fraud, in violation of sec. 49.49(l)(a), Stats. (1983-84), and four counts of insurance fraud, in violation of sec. 943.395, Stats. (1983-84). A preliminary examination was held and on January 23, 1987, the circuit court bound Dr. DeSmidt over for trial. On February 23, 1987, the State filed an information against Dr. DeSmidt charging eleven counts of medical assistance fraud, in violation of sec. 49.49(1)(a). On March 31,1987, Dr. DeSmidt moved to suppress all evidence seized during the search of his offices, alleging the search and seizure violated Art. I, Sec. 11 of the *128Wisconsin Constitution and the Fourth Amendment of the United States Constitution because the warrant was issued without probable cause, the warrant was not sufficiently particular in describing the items to be seized, and the execution of the search was overbroad. On March 1, 1988, the circuit court issued a memorandum decision holding that the warrant was not sufficiently particular, except for the description of Medicaid provider handbooks. The circuit court also found that there was not probable cause to support seizing all of Dr. DeSmidt's records. On May 31, 1988, the circuit court entered an order suppressing all evidence obtained in the search, with the exception of the Medicaid provider handbooks. The State appealed the circuit court's order pursuant to sec. 974.05(l)(d)2, Stats. (1983-84). A majority of the court of appeals concluded that the warrant described the items to be seized, which amounted to all of Dr. DeSmidt's dental and business records, with sufficient particularity. DeSmidt, 151 Wis. 2d at 330. The majority held, however, that there was not probable cause to support seizing all of Dr. DeSmidt's records. Id. at 333. The dissent in the court of appeals, noting that the affidavit made reference to Ms. Berger's allegations that filing false claim forms was a "common practice" and "done routinely” at Dr. DeSmidt's offices, disagreed that probable cause to support seizing all of Dr. DeSmidt's records was lacking. Id. at 341-42 (Myse, J., dissenting). The dissent reasoned: [Ms. Berger's] allegations clearly indicate that a pattern of fraudulent practice existed in the office at the time Berger started her employment. [Because she was not aware of the exact date this practice commenced], it was necessary for the state to obtain sufficient records to demonstrate the difference between *129the amounts billed depending on the method of payment and the way claims were processed in order to prove the alleged fraudulent practice. Because no accurate starting date of this practice was available to the state, they were unable to limit the seizure of records to a specific time period. Id. at 342. The State petitioned this court for review, which was granted. We conclude that bécause there was probable cause to believe Dr. DeSmidt's dental practice was "permeated with fraud," the search for and seizure of all of Dr. DeSmidt's dental and business records was reasonable and therefore constitutional, and accordingly we reverse. As this court has previously recognized, Art. I, Sec. 11 of the Wisconsin Constitution and the Fourth Amendment of the United States Constitution are substantially the same. See State v. Anderson, 138 Wis. 2d 451, 461, 406 N.W.2d 398 (1987); State v. Fry, 131 Wis. 2d 153, 172, 388 N.W.2d 565 (1986), cert. denied, 479 U.S. 989 (1986). Art. I, Sec. 11 provides: Searches and seizures . . . The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. The fourth amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, sup*130ported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Where the state and federal constitutional provisions at issue are virtually identical, this court has traditionally interpreted the state provision consistent with the protections afforded its federal counterpart. State v. Tompkins, 144 Wis. 2d 116, 133, 423 N.W.2d 823 (1988). This has been particularly true with respect to the provisions at issue here. This court has held on numerous occasions that the standards and principles surrounding the fourth amendment are generally applicable to the construction of Art. I, Sec. 11. See, e.g., Tompkins, 144 Wis. 2d at 131-38; Anderson, 138 Wis. 2d at 461; Fry, 131 Wis. 2d at 172-74; State v. Boggess, 115 Wis. 2d 443, 448 n.8, 340 N.W.2d 516 (1983); State v. Beal, 40 Wis. 2d 607, 612, 162 N.W.2d 640 (1968); State v. Paszek, 50 Wis. 2d 619, 624, 184 N.W.2d 836 (1971). The basic purpose of the prohibition against unreasonable searches and seizures is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. Boggess, 115 Wis. 2d at 448-49. The central inquiry under the fourth amendment is the reasonableness of the governmental intrusion in light of all of the circumstances. State v. Wilks, 121 Wis. 2d 93, 100, 358 N.W.2d 273 (1984), cert. denied, 471 U.S. 1067 (1985). Because the particularity and probable cause requirements of the fourth amendment are the only protections a person has against a general search of his or her papers, somewhat closer scrutiny has been given to review of warrants authorizing the search for and seizure of documents, especially where the rights of third parties may be involved. See Andresen v. Maryland, 427 U.S. *131463, 482 n.11 (1976); United States v. Washington, 797 F.2d 1461, 1468 (9th Cir. 1986); Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 960 (3rd Cir. 1984); United States v. Abrams, 615 F.2d 541, 547 (1st Cir. 1980). On review in this court, Dr. DeSmidt no longer contends that the warrant was insufficiently particular in describing the items to be seized and therefore granted too much discretion to the agents executing the warrant. The parties agree that the warrant particularly authorized the search for and seizure of all of Dr. DeSmidt's dental and business records. Dr. DeSmidt contends only that there was insufficient probable cause to support the seizing of all of his dental and business records and that the execution of the warrant was unreasonable. A search warrant may only issue on the basis of a finding of probable cause by a "neutral and detached magistrate." United States v. United States District Court, 407 U.S. 297, 318 (1972); Ritacca v. Kenosha County Court, 91 Wis. 2d 72, 77, 280 N.W.2d 751 (1979). Whether probable cause exists is determined by analyzing the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 238 (1983). The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. This court has stated that the warrant-issuing judge must be apprised of "sufficient facts to excite an honest belief in a reasonable mind that the objects sought are *132linked with the commission of a crime, and that the objects sought will be found in the place to be searched." State v. Starke, 81 Wis. 2d 399, 408, 260 N.W.2d 739 (1978). "The quantum of evidence necessary to support a finding of probable cause for a search warrant is less than that required for a conviction or for bindover following a preliminary examination." Ritacca, 91 Wis. 2d at 77; see also Starke, 81 Wis. 2d at 411. "Probable cause [is] not susceptible of 'stringently mechanical definitions.' What is required is more than a possibility, but not a probability, that the conclusion is more likely than not. This court has always stressed the reasonableness factor." Tompkins, 144 Wis. 2d at 125. A finding of probable cause under federal standards will generally result in a finding of probable cause under state standards. Beal, 40 Wis. 2d at 612. In reviewing whether probable cause existed for the issuance of a search warrant, we are confined to the record that was before the warrant-issuing judge. State v. Princess Cinema of Milwaukee, 96 Wis. 2d 646, 649, 292 N.W.2d 807 (1980). The person challenging the warrant bears the burden of demonstrating that the evidence before the warrant-issuing judge was clearly insufficient. Ritacca, 91 Wis. 2d at 78. Review of the warrant-issuing judge's finding of probable cause is not de novo. Gates, 462 U.S. at 236. Rather, great deference should be given to the warrant-issuing judge's determination. Id.; Leon, 468 U.S. at 914. 'A grudging or negative attitude by reviewing courts toward warrants' ... is inconsistent both with the desire to encourage use of the warrant process by police officers and with the recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe *133than otherwise may be the case ... A deferential standard of review is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant. Massachusetts v. Upton, 466 U.S. 727, 733 (1984) (quoting United States v. Ventresca, 380 U.S. 102, 108 (1965)). "[T]he duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for . . . concluding]' that the probable cause existed." Gates, 462 U.S. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 271 (I960)); see also Anderson, 138 Wis. 2d at 469. "Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded warrants." Ventresca, 380 U.S. at 109. At issue in this case is whether the breadth of the warrant, the search for and seizure of all of Dr. DeSmidt's dental and business records, was supported by probable cause. "The search and seizure of large quantities of material is justified if the material is within the scope of probable cause underlying the warrant." United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir. 1986), cert. denied, 479 U.S. 1086 (1987); see also United States v. American Investors of Pittsburgh, Inc., 879 F.2d 1087, 1106 (3rd Cir. 1989), cert. denied. 110 S. Ct. 368 (1959). The United States Supreme Court has recognized that, in cases involving a complex scheme to defraud, a criminal investigation may require piecing together, like a jigsaw puzzle, a number of bits of evidence which if taken alone might show comparatively little. Andresen, 427 U.S. at 481 n.10. Where there is probable cause to believe that there exists a pervasive *134scheme to defraud, all the records of a business may be seized. United States v. Brien, 617 F.2d 299, 309 (1st Cir. 1980), cert. denied, 446 U.S. 919 (1980). "The complexity of an illegal scheme may not be used as a shield to avoid detection when the State has demonstrated probable cause to believe that a crime has been committed and probable cause to believe that evidence of this crime is in the suspect’s possession." Andresen, 427 U.S. at 481 n.10. We conclude that here there was a substantial basis for the warrant-issuing judge's determination that seizure of all of Dr. DeSmidt's records was supported by probable cause. The record at the time the warrant was issued consisted solely of Investigator Isely's affidavit in support of the warrant application. The affidavit was based upon the allegations of Ms. Berger. "The assertions in an affidavit seeking a search warrant may be based on hearsay provided the affiant indicates that the informant is credible and reliable." Bast v. State, 87 Wis. 2d 689, 694, 275 N.W.2d 682 (1979). Ms. Berger's credibility or reliability is not challenged by Dr. DeSmidt, and in any event, Investigator Isely's affidavit clearly supports a finding that Ms. Berger was a credible and reliable informant. The affidavit set forth that Ms. Berger was a past employee of Dr. DeSmidt, and that in that capacity she had access to Dr. DeSmidt's dental and business records and her duties directly involved preparing third party claim forms. The affidavit further set forth that through an examination of government records, Investigator Isely confirmed much of the information Ms. Berger provided concerning specific claims. Investigator Isely also stated in the affidavit his belief that Ms. Berger was correct in asserting that false claims had been filed. In determining whether probable cause *135exists, the conclusions of an agent based on his experience with investigations may be considered. United States v. Crozier, 111 F.2d 1376, 1380 (9th Cir. 1985). We note at the outset that there is no doubt the affidavit on its face established probable cause to search for and seize at least those dental and business records of Dr. DeSmidt relating to the specific instances of fraud alleged by Ms. Berger. Dr. DeSmidt argues that the scope of the warrant should have been limited to those specific instances. We disagree. To limit the warrant to the search for and seizure of solely the specific instances of fraud alleged by Ms. Berger would unreasonably restrict and frustrate the State's investigation. Cf. Starke, 81 Wis. 2d at 416. "[A] magistrate is entitled to go beyond the averred facts and draw upon common sense in making reasonable inferences from those facts." United States v. Hershenow, 680 F.2d 847, 852 (1st Cir. 1982); see also Bast, 87 Wis. 2d at 693. "The Fourth Amendment does not deny law enforcement officers the support of the usual inferences . . . reasonable men draw from the evidence,... it requires [only] that such inferences be drawn by a neutral and detached magistrate." Starke, 81 Wis. 2d at 409. The logical inference from the information provided by Ms. Berger was that the specific instances of fraud she referred to were only the "tip of the iceberg." United States v. Offices Known as 50 State Distrib., 708 F.2d 1371, 1374-75 (9th Cir. 1983), cert. denied, 465 U.S. 1021 (1984). Investigator Isely's affidavit contained allegations by Ms. Berger that Dr. DeSmidt was "engaged in a series of illegal activities;" that Dr. DeSmidt "routinely" and as a "common practice" billed bite wing x-rays as periapical x-rays; that Dr. DeSmidt's fraudulent practices were not limited to Medicaid claims, but also included filing false claim *136forms with private insurance companies; that in addition to the particular fraudulent claims she identified, other false claims had been filed. Ms. Berger further alleged that Dr. DeSmidt was "training" his associate to conduct her practice in a similar, illegal fashion. We conclude that the affidavit supported the inference of a probability of fraud throughout Dr. DeSmidt's dental practice. Compare United States v. Henson, 848 F.2d 1374, 1383 (6th Cir. 1988), cert. denied, 109 S. Ct. 784 (1989); United States v. Diaz, 841 F.2d 1, 5 (1st Cir. 1988); In re Impounded Case (Law Firm), 840 F.2d 196, 201 (3rd Cir. 1988); United States v. Sawyer, 799 F.2d 1494, 1508 (11th Cir. 1986), cert. denied, 479 U.S. 1069 (1987); Hayes, 794 F.2d at 1356; Hershenow, 680 F.2d at 852-53; United States v. Hoskins, 639 F. Supp. 512, 516-17 (W.D.N.Y. 1986), aff'd., 875 F.2d 308 (2nd Cir. 1989); Hearn v. Internal Revenue Agents, 597 F. Supp. 966, 970 (N.D. Texas 1984); State v. Hughes, 433 So. 2d 88, 93 (La. 1983). Dr. DeSmidt argues that seizure of all of a business' records is only permissible where the defendant's entire business is "illegitimate." While we recognize the majority of the reported decisions in which the seizure of all of the defendant's records has been allowed have involved illegitimate businesses, we disagree that the character of the business is the determining factor in assessing the reasonableness of the seizure. The magnitude of a search, in and of itself, is insufficient to establish a constitutional violation. United States v. Santarelli, 778 F.2d 609, 615 (11th Cir. 1985). Where a warrant authorizes the seizure of records relevant to a particular crime and all of a business' records fall into that category, all of the records may lawfully be seized and removed from the premises irrespective of the nature of the business. See *137id. at 616; Williams v. Kunze, 806 F.2d 594, 598 (5th Cir. 1986); Sawyer, 799 F.2d at 1508. Dr. DeSmidt further argues that the warrant was unreasonable because it was not limited in time to dental and business records relating only to the duration of Ms. Berger's employment. The observations of a ten or eleven week employee cannot, Dr. DeSmidt asserts, lead to a reasonable belief that Dr. DeSmidt's fifteen year practice was "permeated with fraud." It was upon this basis that the majority in the court of appeals, relying upon dicta in Abrams, concluded that the warrant lacked probable cause. In Abrams, three former employees of the defendants informed the Department of Health, Education and Welfare that the defendants, who were physicians, had filed false Medicare claim forms. The former employees alleged that claim forms had been submitted to Medicare billing for laboratory tests never actually performed. An investigation ensued and a warrant was obtained to search the defendants' offices. The warrant broadly authorized the search for and seizure of "certain business and billing and medical records of patients of [the defendants] which show actual medical services performed and fraudulent services claimed to have been performed in a scheme to defraud the United States and to submit false medicare and medicaid claims for payment ..." Id., 615 F.2d at 542. The district court suppressed the evidence seized in the search and the court of appeals affirmed on the ground the warrant failed to meet the constitutional requirement of particularity. Id. at 543. The court of appeals rejected the government's argument that the warrant authorized the seizure of all of the defendants' records, concluding that the supporting affidavit failed to support an inference of pervasive *138fraud and should have included a time limitation. Id. at 544 n.7, 545. The court of appeals then went on to make the following "observation": [I]f an affidavit contains an averment by an employee that fraudulent practices were regularly pursued during his or her employment, and the term of such employment is set forth, the warrant could authorize the seizure of all records of Medicare and Medicaid services billed and purportedly performed during the period. Id. at 545 (emphasis added). The concurrence disagreed: I think my brothers are a bit narrow in their view of the relevant time frame. The fact that a former employee indicates that certain fraudulent practices are being regularly followed during the period of his or her employ might, I think, depending on the circumstances, supply probable cause to believe that the fraud continued for a reasonable time in the future. I think the same sort of analysis could also be applied in regards to the seizure of records dating prior to the time of the employee's tenure. Id. at 550 n.3 (Campbell, J., concurring). We conclude the concurring opinion states the proper approach. See United States v. Zanche, 541 F. Supp. 207, 210 (W.D.N.Y. 1982), and cases cited therein. In a case of this nature, whether the search and seizure should be limited to records relating to a specified time period is certainly always a paramount consideration. But whether a search and seizure is unreasonable and therefore unconstitutional due to the lack of a time limitation is dependent upon the particular facts of each case. See Sawyer, 799 F.2d at 1509; VonderAhe v. Howland, 508 F.2d 364, 369 (9th Cir. 1975); Callaway, 106 Wis. 2d at 511-12. Under the facts of this case, we conclude the *139lack of a time limitation was not unreasonable. Compare Hughes, 433 So. 2d 88. Unlike Abrams, the affidavit here contained specific allegations that the filing of fraudulent claim forms was a "common practice" performed "routinely" at Dr. DeSmidt's offices, and that this fraudulent practice was not limited to Medicaid claim forms but also private insurance company claim forms. In addition, the affidavit here contained an allegation that Dr. DeSmidt was "training" his associate to submit false claim forms, another allegation not present in Abrams, which greatly supports the inference that Dr. DeSmidt's entire dental practice was "permeated with fraud." While this is a close case, given our deferential standard of review and the United States Supreme Court's explicit directive that the resolution of doubtful or marginal cases should largely be determined by the preference to be accorded to warrants, we conclude there was a substantial basis supporting the warrant-issuing judge's finding of probable cause. Compare Hayes, 794 F.2d at 1356. Analogous to our holding here, the court in Hayes held that fifty-eight known cases of the defendant illegally prescribing Schedule II drugs in violation of the Controlled Substances Act could fairly be considered as representative of more pervasive violations. Id. Dr. DeSmidt next contends that the execution of the warrant was so unreasonable that suppression of the evidence seized in the search is justified. Because it concluded the warrant lacked probable cause, the court of appeals did not reach this issue. A search reasonable at its inception may later become unreasonable in scope. See United States v. Heldt, 668 F.2d 1238, 1256 (D.C. Cir. 1981), cert. denied, 102 S. Ct. 1971 (1982); Wilks, 121 Wis. 2d at 200. "Claims that otherwise reasonable searches have been *140conducted in an unconstitutionally unreasonable manner must be judged under the facts and circumstances of each case." United States v. Penn, 647 F.2d 876, 883 (9th Cir. 1980), cert. denied, 449 U.S. 903 (1980). In determining the reasonableness of the execution of a warrant, a reviewing court must consider whether the scope of the search and seizure was reasonably related to the circumstances which justified the intrusion in the first place. Wilks, 121 Wis. 2d at 100. "[T]he need to strictly limit the scope of the search is particularly acute where . . . the warrant authorizes the seizure of documents." Washington, 797 F.2d at 1468. Dr. DeSmidt first argues the execution of the warrant was unreasonable because the State examined numerous files he alleges were not suspected of containing fraudulent documents. We fail to see the basis for Dr. DeSmidt's argument in view of his abandoning the contention that the warrant did not satisfy the particularity requirement. In any event, because we conclude the affidavit established probable cause to believe Dr. DeSmidt's dental practice was "permeated with fraud" and that therefore the search and seizure of all his dental and business records was justified, Dr. DeSmidt's argument must fail. Where probable cause supports the search for and seizure of all of the records of a business, a warrant authorizing the seizure of all such records and describing them in generic terms is sufficient to meet the particularity requirement. See Kunze, 806 F.2d at 598; Brien, 617 F.2d at 309; Hershenow, 680 F.2d at 852. Abrams, upon which Dr. DeSmidt relies, is distinguishable because there the search for and seizure of all of the defendants' records was not supported by probable cause. See Abrams, 615 F.2d at 548-49. *141Dr. DeSmidt, relying upon Klitzman, Klitzman & Gallagher and VonderAhe, lastly argues that the execution of the warrant was unreasonable due to the effect of the seizure, particularly in terms of its length, upon Dr. DeSmidt's professional livelihood and his patients' welfare. Subsequent to the seizure, Dr. DeSmidt made a formal request to the State to return his dental and business records or at least copies of them. The State agreed to return parts of the patient files on an "as needed" basis. Dr. DeSmidt alleges the State failed to comply with that agreement, however, and often either did not send the needed portions of the records or failed to respond at all. After the State filed the complaint, Dr. DeSmidt filed a motion seeking return of the documents. See sec. 968.20, Stats. (1983-84). On August 1,1986, the circuit court for Brown county, the Honorable William J. Duffy, Judge, issued a written order directing the State to return to Dr. DeSmidt all original records the State did not intend to use as evidence at trial and to return copies of all records the State needed. Dr. DeSmidt alleges that when the State returned the records on August 4, 1986, many of the records were incomplete and many were unaccounted for. Dr. DeSmidt subsequently moved to have the State directly comply with the August 1,1986, order, but Dr. DeSmidt alleges that although the State returned some additional records, there were still portions of records and entire records missing. We disagree that the State's alleged misconduct in returning Dr. DeSmidt's dental and business records requires suppression of the evidence. Just as the exercise of discretion by officers executing a warrant cannot rehabilitate an otherwise defective warrant, see United States District Court, 407 U.S. at 317, in this case the *142subsequent alleged misconduct of the State cannot "reach back" to invalidate the lawful search and seizure here. The return of property properly seized can be obtained by court order pursuant to sec. 968.20, Stats. If the court issues such an order and there is non-compliance, an action for contempt may lie. See secs. 785.01(l)(b) and (d), Stats. 1983-84. Moreover, if the State was negligent in its handling of Dr. DeSmidt's property, he may seek a civil remedy. Nor do we find any merit in Dr. DeSmidt's complaint that the State failed to notify any of Dr. DeSmidt's patients that their records were being examined. While we are mindful of and sensitive to the rights of third parties involved in cases such as this, we are aware of no authority, and Dr. DeSmidt cites none, that requires the State in circumstances such as this to notify the third parties involved that their records are being examined. The rights of third parties are essentially derivative from those of the person being searched, and are protected by the constitutional prohibition against unreasonable searches and seizures. Unlike the circumstances here, in neither case relied upon by Dr. DeSmidt was there probable cause to believe the defendant's entire business was "permeated with fraud." See Klitzman, Klitzman & Gallagher, 744 F.2d at 960; VonderAhe, 508 F.2d at 369-70. By the Court. — The decision of the court of appeals is reversed and cause remanded to the circuit court for further proceedings not inconsistent with this opinion.

CourtListenerOpinion

2024-06-11T07:23:54.735044

2023-08-26 19:06:48.416024+00

9736797

SHIRLEY S. ABRAHAMSON, J. (dissenting). For the warrant to seize "all" the patients records over an unlimited time period to be valid, the affidavit must provide a substantial basis for the inference that Dr. DeSmidt's entire dental practice was "permeated with fraud" or that seizure of all records was necessary to *143show the defendant's illegal activities. Both the circuit court and the court of appeals determined that the affidavit was not adequate. I agree with the court of appeals: "The presence of criminal practices during the summer of 1985 does not give rise to the reasonable inference that DeSmidt was engaged in a lifetime of wrongful conduct . . .. The informant in this case made no claim to know the contents of files outside her employment period [of ten or eleven weeks] .... Even if the fraud is reasonably inferred to precede [the informant's] employment, there is nothing in the affidavit to suggest it went on for many years." State v. DeSmidt, 151 Wis. 2d 324, 332-33, 444 N.W.2d 420 (Ct. App. 1989). I therefore dissent. While courts have upheld search warrants permitting the search and seizure of "all" business records, they have done so in very limited circumstances, namely when there is substantial evidence that (1) the entire business can be characterized as illegal, e.g., "boiler room" stock sales operations, mail or wire fraud operations, extortion plots, and massive fraudulent schemes; or (2) the business is legitimate but illegal activities are pervasive. When the business is legitimate and the affidavit does not show pervasive fraud, the warrant to search and seize all records is invalid. In these instances the warrant should be limited to the documents relevant to the segregable fraud. See, e.g., In re the Application of Lafayette Academy, 610 F.2d 1 (1st Cir. 1979). None of the cases the majority opinion cites supports its holding that in the face of a legitimate business and no factual documentation of extensive fraud, a magistrate (judge) may authorize the seizure of all business and patient records.* *144In this case the affidavit does not suggest that DeSmidt operated his dental practice solely for criminal *145purposes. Nor does the affidavit allege observation of wholesale fraud. In the absence of any reported complaints against DeSmidt by patients, other employees or any informants and in the absence intensive police or other agency investigations corroborating pervasive illegal activities, the majority opinion parses words and phrases in the affidavit, to find evidence of endemic fraud. Allegations using conclusory words like "routine" or "commonplace" are no substitute for the evidence or documentation necessary to establish probable cause. The majority opinion's attempts to distinguish United States v. Abrams, 615 F.2d 541 (1st Cir. 1980) are unconvincing. In Abrams, the court considered an affidavit presenting information obtained from three former employees alleging approximately 50 incidents of false claims for Medicare payments. The Abrams court struck down the warrant, concluding that there was no support in the affidavit providing probable cause to believe all of the patients' billings were inflated. See Ringel, Searches and Seizures, Arrests and Confessions sec. 5.6(c), pp. 5-39 through 5-45. The majority opinion relies on a footnote to Judge Campbell's concurring opinion in Abrams, but the language quoted is taken out of context. Judge Campbell joined his colleagues on the Abrams court in concluding that the warrant to search all the doctor's records over an unlimited time period was unconstitutional. Judge Campbell would not have limited the time period as narrowly as the majority opinion's dicta suggested. Judge Campbell wrote in Abrams: *146.... I am not satisfied that the general statement [in the affidavit] measures up to the particularity expressly required by the Fourth Amendment. At least, this is so where the search and seizure is directed at medical files, and not at files of a substantially or wholly illegal enterprise, involving privacy interests of a lessor character. The government, moreover, should have been able to do better. Surely its records reflected the names of patients for whom Dr. Abrams had obtained Medicare-Medicaid reimbursement, and in what amounts. Could it not have named these patients in the warrant and directed the seizure of evidence of the services performed with respect to these individuals?, At [the] very least, the relevant time frame should have been indicated.3 When viewed in context, Judge Campbell's statements do not support the majority opinion in this case; they support the position that the warrant in this case is unconstitutional. The affidavit in this case fails to adequately identify any rational nexus between the time of the informant's employment at DeSmidt's office and prior acts of medicaid or insurance fraud. As in Abrams, the search warrant failed to support the inference of a *147probability of fraud for the entire time Dr. DeSmidt practiced dentistry. I conclude that a warrant authorizing the search and seizure of "all" patient and business files without limitations on the nature of the records or the period of time amounts in this case to the government's wholesale rummaging through documents prohibited by the fourth amendment. The majority opinion relies primarily on three cases to support its rule of law that when all business records are relevant to a *144particular crime, all the records of a business (whether it be a legitimate business or not) may be seized. None is analogous to the instant case. United States v. Santarelli, 778 F.2d 609, 615 (11th Cir. 1985), involved a loansharking business, that included the use of fire-arms and violence to enforce repayment of loans. The affidavit was based on information from one of the borrowers detailing a series of loans he had taken with the defendant, from other FBI agents, and from a taped telephone conversation between the borrower and the defendant. The court upheld the search warrant because the affidavit showed probable cause to believe that the documents were part of an illicit extortionate credit operation. In Williams v. Kunze, 806 F.2d 594, 598 (5th Cir. 1986), the Criminal Investigation Division of the Internal Revenue Service was conducting an investigation of several allegedly fraudulent tax shelter schemes organized and operated from the Caymen Islands by United States Tax Planning Services, Limited, and a licensee. After an extensive investigation of the licensee, including several visits by undercover agents posing as clients, an IRS investigator sought a search warrant. The application was supported by the IRS investigator's affidavit and the affidavit of a Special Agent, who had previously conducted a nationwide investigation of USTPS. The court upheld the search because the affidavits showed there was probable cause to believe the entire business was merely a scheme to defraud or that all the records of the business are likely to constitute evidence of tax evasion. In United States v. Sawyer, 799 F.2d 1494 (11th Cir. 1986), cert. denied, 479 U.S. 1069 (1987), the court considered a "boiler room" sales operation. Affidavits submitted by the investigators described in detail twenty five customer transactions and repeated instances of misrepresentation or concealment of material facts and other fraudulent conduct in which the defendants engaged. The affidavits also identified a number of sales persons who engaged in deceptive sales techniques and enumerated many unauthorized transfers of customer funds to generated commis*145sions. The court upheld the warrants, concluding that the affidavits showed widespread efforts to defraud customers through a variety of misleading disclosures and representations. My brothers suggest that 'if an affidavit contains an averment by an employee that fraudulent practice were regularly pursued during his or her employment, and the term of such employment is set forth, the warrant could authorize the seizure of all records of Medicare and Medicaid services billed and purportedly performed during that period.' (Emphasis added.) I think my brothers are a bit narrow in their view of the relevant time frame. The fact that a former employee indicates that certain fraudulent practices are being regularly followed during the period of his or her employ might, I think, depending upon the circumstances, supply probable cause to believe that the fraud continued for a reasonable time in the future. I think the same sort of analysis could also be applied in regards to the seizure of records dating prior to the time of the employee's tenure.

CourtListenerOpinion

2024-06-11T07:23:54.738769

2023-08-26 19:06:48.422094+00

2207356

366 Pa. 557 (1951) Dorsey Estate. Supreme Court of Pennsylvania. Argued January 4, 1951. March 19, 1951. Before DREW, C.J., STERN, STEARNE, JONES and BELL, JJ. *558 Joseph F. McVeigh, with him Cornelius C. O'Brien, for appellant. Francis J. Gafford, Deputy Attorney General, with him Charles J. Margiotti, Attorney General, and Irving N. Kieff, for appellee. OPINION BY MR. JUSTICE HORACE STERN, March 19, 1951: Where the share of an employe in a Savings and Profit Sharing Pension Fund composed of contributions from the wages or salaries of employes and contributions from the profits of the employer was paid at the time of his death to a beneficiary he had designated, was the portion of it which represented the employer's contributions subject to transfer inheritance tax under the Act of June 20, 1919, P.L. 521, as amended? That is the question presented on this appeal. The pension fund here involved is a trust established by Sears, Roebuck & Company for its employes. Decedent, Harry J. Dorsey, an employe, became a member of it in 1924 and subsequently named his sister, Eleanor A. Dorsey, as the person who was to receive the proceeds payable therefrom in the event of his death. Under the rules and regulations governing its administration and operation an employe is required to deposit 5% of his compensation up to a maximum per annum of $250; the Company contributes *559 annually a certain graded percentage of its consolidated net income. The fund is administered by trustees with whom all the contributions are deposited. The Company's contributions are credited to the accounts of the depositors in accordance with age and length of service, the largest proportionate share being allotted to those in the so-called "Group D", which consists of employes over 50 years of age and having 15 or more years' continuous service. At the time of his death in 1945 decedent was in "Group D". The total credits to his account in the fund at the time of his death included 932 shares of stock of the Company of a value of $35,183, all of which shares had been contributed by the Company, and the sum of $3,939.29 representing contributions made by decedent from his salary. Transfer inheritance tax was paid on the latter amount at the rate of 10%. The Register of Wills assessed also a 10% tax on the value of the shares of stock, or $3,518.30, from which assessment Eleanor A. Dorsey appealed. The court below decided that the tax was properly imposed, and from that decision she now appeals to this Court. Section 1(c) of the Act provides that the tax shall be imposed upon the transfer of any property made by a resident by deed, grant or gift intended to take effect in possession or enjoyment at or after the death of the grantor or donor. Section 1 (d) provides that where property is transferred pursuant to a power of appointment it shall be taxed as of the estate of the donor, notwithstanding any blending of such property with the property of the donee. It is the contention of appellant that in designating her as beneficiary decedent was merely exercising a power of appointment over that portion of the share of the fund credited to him which represented contributions by the Company. Such a contention would be valid only if the Company's *560 contributions continued to be owned by the Company and not by decedent, because obviously a power of appointment can exist only with reference to another's property and not one's own. But it seems quite clear that decedent's share of the fund belonged to him in its entirety during his lifetime and without any distinction as to the part thereof contributed out of his salary and the part contributed by the Company. The rules and regulations governing the fund state its purposes to be, inter alia, to permit the employes to share in the Company's profits and to provide a plan through which each employe may accumulate his own savings and his portion of the Company's contributions as a means of providing an income for himself on retirement. These declarations fairly indicate that the Company regarded its contributions as the property of the depositors during the period of their accumulation in the fund. It was evidently so understood by decedent himself, for in his will he stated: "I am presently the owner of certain shares of the Profit Sharing Plan of Sears, Roebuck & Co., a corporation, as well as a certain cash balance held by said Sears, Roebuck & Co. in connection with the operation of said Profit Sharing Plan." The rules and regulations provide that, so far as practicable and advisable, the fund should be invested in the capital stock of the Company, to the end that the depositors may, in the largest measure possible, share in the earnings of the Company. There stood to the credit of each depositor's account in the fund a share made up not only of his own contributions but also those of the Company; in other words, the Company's contributions were apportioned as a credit to each depositor. A depositor, after completing five years of service, was entitled, upon ceasing to be a member of the fund, to withdraw all moneys and securities credited to his account at that time, and *561 upon the death of a depositor, regardless of length of service, his estate or his designated beneficiary was entitled to receive all moneys and securities then credited to his account. Payment of the moneys and securities could be made by the trustees wholly or partially in kind or in cash or by the purchase and delivery of a single premium annuity contract. A "Group D" depositor was entitled to withdraw from the fund even without leaving his employment and prior to attaining the age of retirement, and he could also withdraw upon the termination of his employment after attaining the age of retirement, and in either event he was entitled to receive all the moneys and securities then standing to the credit of his account in the fund, to be paid in instalments over a five years' period or, at the option of the trustees, in the form of a single premium annuity contract, the latter being presumably for the purpose, in appropriate cases, of protecting him against his own recklessness or improvidence in the expenditure of the property so withdrawn by him. The fact that the trustees thus had some discretionary power to determine the mode of payment at the time of the employe's withdrawal or in the event of his death in nowise limited his absolute right to withdraw his share of the property in the fund or to dispose of it at his death, but governed only the form in which he or his designated beneficiary or his estate would receive it. Once the Company's contributions became part of the fund they could never thereafter revert to the Company; it is not necessary to consider whether they are to be regarded, realistically, as additional compensation for the services rendered by the employe or as constituting a pure gift on the part of the Company, since, in view of the depositor's right to withdraw in his lifetime the total amount of the fund credited to him or to make full disposal of it at the time of his *562 death, he had, in any event, substantial ownership of his entire share of the fund and accordingly, in transferring it to the beneficiary designated by him he was transferring not only his own property to the extent that it represented contributions from his salary, but also his own property to the extent that it represented his proportionate share of the Company's contributions, and therefore he was not in anywise acting merely as the donee of a power of appointment. For the same reason the designation of the beneficiary under the facts of the present case is not analogous to the designation of a beneficiary in a life insurance policy. The funds payable by an insurance company to the beneficiary of a life insurance policy never formed part of the estate of the decedent and therefore did not "pass from" that estate but directly from the assets of the insurance company (cf. Housekeeper's Estate, 10 D. & C. 494, 497) whereas, here, as previously pointed out, the property involved did form part of decedent's estate in his lifetime and passed to the beneficiary, not from the employer-Company but from decedent's estate. Appellant urges that, even in the face of such a conclusion, the inheritance tax here in controversy should not be imposed because the right of decedent to withdraw the fund in his lifetime was equivalent to a right of revocation, which, unexercised, did not render the property transferred subject to the tax, citing Dolan's Estate, 279 Pa. 582, 124 A. 176. The Commonwealth contends that the decision in Dolan's Estate has been in effect overruled by pronouncements in subsequent opinions of this Court.[*] Be that as it *563 may, however, the decision in Dolan's Estate is not here in point, since the Commonwealth is not basing its claim on the fact that there was here what amounted to a reserved right of revocation, but on the fact that the transfer to decedent's beneficiary was intended to take effect in possession or enjoyment only at and after his death. In Dolan's Estate, the donor, by deed of conveyance completely divested herself of all right, title, interest, possession and enjoyment of, in and to the property, subject only to her reserved right of revocation, whereas in the present instance decedent did not in his lifetime make any transfer to his named beneficiary of either title or enjoyment or possession, but merely designated her as the person to receive the title, enjoyment and possession at the time of his death; in other words, in Dolan's Estate the transfer of the property took place during the lifetime of the donor and not at her death; in the present case no transfer whatever occurred during the life of the donor but only at his death, thus bringing the transaction directly within the purport of the Act of 1919 and subjecting it to the tax therein provided. Decree affirmed at cost of appellant. NOTES [*] Commonwealth v. Linderman's Estate, 340 Pa. 289, 17 A.2d 397; Glosser Trust, 355 Pa. 210, 215, 49 A.2d 401, 404; Todd Trust, 358 Pa. 530, 534, 58 A.2d 135, 136, 137; Myers Estate, 359 Pa. 577, 581, 60 A.2d 50, 52.

CourtListenerOpinion

2024-06-11T07:23:54.743574

2013-10-30 08:36:19.241839+00

9736798

MESCHKE, Justice. We consider consolidated appeals by Robert W. Hogie, Jr., from a jury conviction for theft of property and from a following order which revoked his probation on a prior conviction. We hold that Ho-gie’s possession of the recently stolen automobile sufficiently corroborated testimony of two accomplices for the theft conviction. We affirm both the conviction and the revocation. Hogie was criminally charged with theft of an automobile, a class C felony under NDCC 12.1-23-02(1) and 12.1-23-05(2)(d). During his jury trial, the State used the testimony of two accomplices who had been separately convicted of the same theft. The accomplices, Mark Buckeye and Jerald Rudolph, gave similar testimony which we summarize here. Buckeye and Rudolph were drinking with Hogie during the evening of April 10, 1987. Earlier in the week, Hogie had obtained a set of keys to a yellow Camaro parked on the lot of Walt Sanders Chevrolet by breaking into a “lock box” attached to the Cama-ro’s window. In the early morning hours of April 11, the trio decided to steal this auto from Sanders. ■ After taking the Camaro, Hogie drove the threesome to the home of Buckeye’s parents in Edgeley, North Dakota, where they picked up cassette tapes, got money from Buckeye’s brother, and filled the car with gas at a filling station. On the same day, they left Edgeley to drive to Kansas where Buckeye planned to “settle a debt,” meaning that he expected to assault an individual. By alternating drivers during the journey, all three men drove the Cama-ro. They stopped briefly in Frederick, South Dakota, removed a set of South Dakota license plates from another auto, and placed them on the Camaro. After staying overnight at Grand Island, Nebraska, they traveled together to Osbourne County, Kansas, where Buckeye “settled his debt.” Afterward, Hogie, Buckeye, and Rudolph stopped to eat lunch at a fast-food restaurant in Smith Center, Smith County, Kansas. Hogie entered the restaurant to order, leaving Buckeye and Rudolph in the Camaro. While Hogie was waiting for the food, a Smith County sheriff’s car pulled into the parking lot directly behind the Camaro. Shortly, Sheriff Floyd Bose arrested Buckeye for assault based on a teletype advisory to be on the lookout for a yellow Camaro carrying someone named Buckeye and several other passengers. After arresting Buckeye, Sheriff Bose had Hogie and Rudolph follow him in the Camaro to his office. There, Sheriff Bose asked about ownership of the Camaro. None of the three claimed the vehicle. Sheriff Bose asked Hogie whether he had driven the Camaro. Hogie responded that all three men had driven it and that he had driven the vehicle to the restaurant. Sheriff Bose then asked Hogie to sign a consent-to-search form, which Hogie signed. When Sheriff Bose checked the vehicle identification number with the National Information Crime Network, he learned that both the vehicle and the plates were stolen. Later, Hogie was arrested and charged with theft. *503After this testimony by the two accomplices, the State called Sheriff Bose as a corroborating witness. Sheriff Bose testified that Hogie admitted driving the Cáma-ro to the restaurant in Smith Center, that Hogie drove the car to the Sheriffs office, that he asked Hogie to sign a consent-to-search form, and that Hogie voluntarily signed the form. The signed consent to search was put in evidence. After the State rested its case, Hogie moved for acquittal alleging that the State’s corroborating evidence was legally insufficient to submit the case to the jury. The trial court denied Hogie’s motion. The jury returned a guilty verdict. Hogie appealed the conviction. After Hogie’s conviction, the State moved to revoke Hogie’s probation on a prior suspended sentence for burglary. At the revocation hearing, the State submitted a certified copy of the conviction for theft, certified copies of two other convictions in municipal court, and testimony that Hogie had not yet paid $417 in court-ordered restitution. The trial court revoked Hogie’s probation and imposed a sentence concurrent with Hogie’s sentence for theft. Ho-gie also appealed the revocation. On appeal, Hogie claimed “that without the testimony of the two accomplices, Bu-dolph and Buckeye, there [was] not sufficient other evidence which ‘tends to connect the defendant with the commission, of the offense,’ theft of an automobile.” Ho-gie contended that the trial court erred in submitting the theft case to the jury because there was “a total lack of any other evidence that [Hogie] was involved in the theft.” Hogie argued further that the probation revocation must be reversed if the conviction for theft is set aside. Since Sheriff Bose “provided evidence of his observations and Hogie’s own oral and written statements concerning his connection with the [stolen] vehicle,” the State argued that there was enough evidence to allow the jury to weigh the corroboration. The State contended that Hogie’s possession of the stolen car, as evidenced by his driving it, by his admissions about driving it, and by his consenting to the search of it, connected him to its recent theft. Under North Dakota law, a defendant cannot be convicted of a crime upon the testimony of accomplices alone. NDCC 29-21-14 declares: A conviction cannot be had upon the testimony of an accomplice unless he is corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof. The purpose of corroborative evidence is to demonstrate that an accomplice is a reliable witness and worthy of credit. State v. Haugen, 448 N.W.2d 191 (N.D.1989) [Haugen I]; State v. Smith, 238 N.W.2d 662 (N.D.1976); State v. Kent, 4 N.D. 577, 62 N.W. 631, 638 (1895). Evidence other than an accomplice’s testimony must tend to connect the defendant to the crime. When an accomplice testifies, the trial court must first determine, as a matter of law, whether other evidence corroborates that testimony. When the trial court has determined that other evidence corroborates the accomplice’s testimony, the sufficiency of all of the evidence is for the jury to decide. State v. Haugen, 449 N.W.2d 784 (N.D.1989) [.Haugen II]; Haugen I; State v. Garcia, 425 N.W.2d 918 (N.D.1988). While the existence of corrob-. orating evidence is for the trial court, the credibility and weight of that evidence is for the jury. State v. Foster, 69 N.D. 428, 287 N.W. 517, 520 (1939). To be submitted to the jury, the corroborating evidence standing alone does not need to prove guilt. As used in the statute requiring corroboration, “tends” indicates tendency, not certainty. Websters Third New International Dictionary 2354 (1971) says the ordinary meaning of “tend,” in this context, is “to have an inclination toward a particular belief, feeling, or attitude.” Thus, every fact given by an accomplice need not be corroborated. All that is needed is other evidence corroborating one or more material details or facts which tend to connect the defendant with the crime. *504Haugen I; State v. Neurohr, 376 N.W.2d 805 (N.D.1985); State v. Lind, 322 N.W.2d 826 (N.D.1982). The prosecution need not point to a single, isolated item which in itself is corroborative. Rather, the combined and cumulative evidence other than the testimony of an accomplice may tend to connect the defendant to the crime. Haugen II; State v. Anderson, 172 N.W.2d 597 (N.D.1969). Circumstantial as well as direct evidence can be corroborative. It is not necessary that the corroborating evidence “be sufficient, in itself, to warrant a conviction or establish a prima facie case.” Anderson, 172 N.W.2d at 600. See also State v. Thompson, 359 N.W.2d 374 (N.D.1985); Lind; State v. Thorson, 264 N.W.2d 441 (N.D.1978). If some evidence tends to connect a defendant to the crime, it is for the jury to weigh that corroborating evidence with the accomplices' testimony to determine the guilt or innocence of the defendant. We agree that Hogie’s possession of the stolen vehicle in Kansas with plates stolen in South Dakota tended to connect him to the recent theft in North Dakota. It is well established and widely recognized that a jury may infer a defendant’s guilt of theft from his unexplained possession of recently stolen property. The United States Supreme Court described this permissible inference as “a traditional common-law inference deeply rooted in our law” and quoted James Thayer, writing in his Preliminary Treatise on Evidence (1898), who explained that the inference was “the descendant of a presumption ‘running through a dozen centuries.’ ” Barnes v. United States, 412 U.S. 837, 843-844, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380 (1973). See 50 Am.Jur.2d Larceny § 160 (1970); Annotation, Modern Status: Instruction Allowing Presumption or Inference of Guilt From Possession of Recently Stolen Property as Violation of Defendant’s Privilege Against Self-Incrimination, 88 A.L.R.3d 1178 (1978); Annotation, What Constitutes “Recently” Stolen Property Within Rule Inferring Guilt From Unexplained Possession of Such Property, 89 A.L.R.3d 1202 (1979); Annotation, Presumptions and Inferences Arising in Prosecutions Under National Motor Vehicle Theft Act (Dyer Act) (18 USGS §§ 2312, 2313) From Unexplained Possession of Stolen Motor Vehicle, 15 A.L.R. Fed. 856 (1973). Unexplained possession of recently stolen property permits an incriminating implication. Examples are plentiful. In Brown v. State, 165 Ga.App. 51, 299 S.E.2d 108 (1983), the defendant was convicted of theft of a motor vehicle after he was found in possession of it in another county 90 miles distant, six days after the vehicle was reported stolen. In State v. Clayton, 658 P.2d 621 (Utah 1983), the defendant was convicted of theft after he was located in California in possession of a vehicle stolen in Utah six days earlier. And, in People v. Sherman, 110 Ill.App.3d 854, 65 Ill.Dec. 581, 441 N.E.2d 896 (1982), the defendant was convicted of theft when he was arrested driving a vehicle stolen about two weeks earlier. These examples illustrate that Ho-gie’s possession was a circumstance which tended to connect him with the theft. The presence of the accomplices in the stolen vehicle does not dispel the inference of complicity. The kind of possession which supports an inference of guilt may be joint. 50 Am.Jur.2d Larceny § 161 (1970); § 4 (“View That Possession May Be Joint”) and § 24 (“Theft of Motor Vehicle,” “Driven By Defendant”), Annotation, What Amounts To “Exclusive" Possession of Stolen Goods to Support Inference of Burglary or Other Felonious Taking, 51 A.L.R.3d 727 (1973). For example, see People v. Donald, 132 Ill.App.2d 598, 270 N.E.2d 85 (1971) which held the evidence was sufficient to convict of theft where defendant was found driving an automobile five days after its theft, despite lack of direct evidence that defendant had taken the auto. The Illinois Court said: “Neither is it of consequence that there was a second occupant of the car who may have been exercising joint control over the auto. Where possession is joint, it is presumed all in possession are guilty of theft.” (citations omitted). 270 N.E.2d at 86. Indeed, the otherwise unexplained presence *505of the two testifying accomplices as passengers with Hogie in the recently stolen vehicle when they were stopped can be viewed as an additional corroborating circumstance. This court has frequently held that a defendant’s unexplained possession of recently stolen property is incriminating. In State v. Rosencrans, 9 N.D. 163, 82 N.W. 422 (1900), this court held that a defendant’s possession of two rakes and a hay mower nine days after their theft was sufficient evidence of guilt of grand larceny. “It is a well-settled principle that the recent personal possession of stolen property, not satisfactorily explained, is an evidential fact, from which complicity in the larceny of the property may be inferred.” 83 N.W. at 423. In State v. Lennick, 47 N.D. 393, 182 N.W. 458 (1921), this court held that defendant’s possession in Dunn County of three cows stolen from Mercer County 13 days earlier was sufficient evidence of larceny. “The jury also were warranted in finding that the defendant had the possession of stolen property, recently, after it was stolen. This gave rise to the presumption of fact that the recent possession of stolen property, not satisfactorily explained, is an evidentiary fact from which the crime of larceny may be imputed.” 182 N.W. at 459. In State v. Williams, 150 N.W.2d 844 (N.D.1967), this court approved an instruction to the jury to this effect for the crime of larceny of an automobile, when given with instructions placing the burden of proof upon the State to show all of the elements of larceny beyond a reasonable doubt. The instruction approved was: To warrant an inference of guilt from the possession of stolen property, the possession must be personal, recent, unexplained, and must involve a conscious exercise of dominion over the property. Id. at 847. See also City of Dickinson v. Gresz, 450 N.W.2d 216 (N.D.1989). Unexplained possession of recently stolen property is an incriminating circumstance. This court has often recognized that incriminating possession of stolen property corroborated testimony of an accomplice. In State v. Smith, 51 N.D. 130, 199 N.W. 187 (1924), this court held that a larceny defendant’s possession of an automobile stolen four days earlier in another city over 75 miles away corroborated testimony of his accomplice sufficiently to affirm the conviction. In State v. Smith, 238 N.W.2d 662 (N.D.1976), we ruled that evidence, that at his arrest defendant possessed a diamond engagement ring taken in the burglary, was a circumstance which sufficiently corroborated an accomplice’s testimony. In Haugen I, we ruled that rolled and loose quarters, like those stolen in a burglary and found on the floorboard in front of the driver’s seat of a vehicle driven to a bank by defendant on the day following the burglary, tended to connect the defendant with the burglary. We concluded that this possession helped support testimony of the witness who accompanied defendant in the car and who testified against him. In Hau-gen II, a stolen battery cable on defendant’s ear was deemed corroborative of an accomplice’s testimony that the defendant aided in a burglary. Similarly, Hogie’s unexplained possession of the recently stolen Camaro corroborated testimony of his accomplices. Accordingly, we conclude that the trial court properly submitted all of the evidence to the jury, including the testimony of the accomplices, the corroborating testimony of the sheriff, and the consent-to-search form signed by Hogie. There was sufficient evidence to support the jury’s verdict of guilty. We affirm Hogie’s conviction for theft. Hogie’s sentence on revocation of probation was concurrent with his sentence for theft, which we have affirmed. The theft conviction alone was sufficient to justify the revocation. Therefore, it is unnecessary for us to consider Hogie’s other arguments about the sufficiency of the evidence for revocation of probation. We affirm. ERICKSTAD, C.J., and GIERKE, J„ concur.

CourtListenerOpinion

2024-06-11T07:23:54.746644

2023-08-26 19:06:50.281054+00

9736799

*506VANDE WALLE, Justice, dissenting. I respectfully dissent. Recent decisions of this Court, some of which I have authored, may appear to minimize the purpose of the requirement in NDCC § 29-21-14 that the testimony of an accomplice be corroborated in order to convict. But, simply put, because accomplices are often given reduced sentences or other incentives to testify, the law looks with distrust on their testimony and will not allow a defendant to be convicted on that testimony unless it is corroborated. State v. Kent, 4 N.D. 577, 62 N.W. 631 (1895). The requirement is therefore more than a procedural device or a hoop through which the State must jump in order to obtain a conviction when the entire evidence against the defendant consists of the testimony of the accomplices. We have stated numerous times that all that is required is that the evidence corroborate the testimony of accomplices as to some material fact or facts and tends to connect the defendant with the commission of the offense; that it is not necessary that the corroborating evidence be sufficient, in itself, to warrant a conviction or establish a prima facie case; and that it is not necessary that the State corroborate every fact testified to by an accomplice. E.g., State v. Haugen, 448 N.W.2d 191 (N.D.1989); State v. Lind, 322 N.W.2d- 826 (N.D.1982). But there is a point at which the evidence that “tends to connect the defendant with the commission of the offense” becomes so tenuous that, even though it may be some evidence, it cannot, as a matter of law, rise to a level adequate to submit the issue of whether or not it is sufficient corroborative evidence to the jury. For the reasons stated below, I believe this is such a case. The majority opinion cites numerous authorities for the proposition that possession of stolen property is sufficient to convict of theft and therefore most certainly must be sufficient corroborative evidence. Those authorities include annotations on subjects such as instructions allowing presumption or inference of guilt from possession of recently stolen property as a violation of a defendant’s privilege against self-incrimination and what constitutes recently stolen property for purpose of inferring guilt from unexplained possession of stolen motor vehicle which, as acknowledged in the majority opinion, involve issues other than that of corroborative evidence. In many instances in the authorities cited the defendant was in sole possession of the stolen property. Where that is the fact of the case, that fact alone may be sufficient corroborative evidence. I might reach that conclusion even in those instances in which the defendant is found in possession of the property with persons other than the accomplice-witnesses. Where, however, the defendant’s “possession” is shared with that of the alleged confessed or convicted accomplices it is too facile a rationale, for the defendant’s presence with the accomplices makes the defendant an easy victim upon which to place all or some of the blame for the crime. I do not understand that the majority opinion relies upon guilt by association, i.e., that the fact the defendant is found in the company of the accomplices some days after the crime was committed and hundreds of miles away from the place of the crime is sufficient corroborative evidence. If that understanding is correct, then the defendant’s “possession” of the automobile as shared with those accomplices adds nothing of substance to the picture. For example, given the same time and distance as here, if the stolen property was a ring found in the pocket of an accomplice, would that constitute sufficient evidence of corroboration of the accomplice’s testimony that defendant had acted with that accomplice to steal the ring? 1 I assume not, because the defendant would not be in “possession” of the ring. Although the majority opinion concludes that all the persons in the automobile are “in possession” of the automobile, that conclusion is more a fiction of law than factual evidence of possession. “Many cases have recognized that *507it may be found that an inference of guilt of burglary based on defendant’s possession of stolen goods has not been raised where the stolen property was found in a place where others had an equal right and facility of access thereto.” Annotation, What Amounts To “Exclusive”Possession of Stolen Goods to Support Inference of Burglary or Other Felonious Taking, 51 A.L.R.3d § 5 727, 737 (1973). More specifically, in dealing with a motor vehicle, there are many ways in which a person can come into possession of the vehicle, some of which involve innocence on the part of the possessor of the vehicle: “The possession of an automobile which does not belong to the driver is not so strange, unusual, or unique that it points to guilty knowledge as more likely than innocent knowledge on the part of the driver. The borrowing or leasing of an automobile for temporary use is not an uncommon occurrence. If every person possessing an automobile which they did not own would be held accountable as having knowledge that the automobile was stolen, every person who borrowed a car would be in peril of a conviction for receiving stolen property.” Commonwealth v. Henderson, 451 Pa. 452, 457, 304 A.2d 154, 157 (1973). That rationale is even more compelling where, as here, “possession” of the automobile is shared with accomplices who are the source of the only evidence that the defendant committed the theft of the automobile. Furthermore, as an annotation at 15 A.L.R.Fed. 856, 859 (1973) discusses, the inference of guilt flowing from possession of a recently stolen motor vehicle grows weaker as the time of the possession recedes from the time of theft. Thus, if the defendant had been found in the vehicle with the accomplices within a few hours of the theft and not days later and hundreds of miles away from the place of the crime, I might agree that there was sufficient inference to permit the matter to go to the jury. In State v. Haugen, 449 N.W.2d 784 (N.D.1989), we recently observed that an inference is a fact logically drawn from the admitted evidence and that speculation is a mere theorization of facts from the evidence. We reversed two burglary convictions because the accomplice testimony was not sufficiently corroborated. We noted that that “corroborative evidence” presented by the State did not support the inferences it sought to make, but only amounted to mere speculation that the defendant was connected with the crime. In one instance we reversed the conviction because there was no independent testimony placing the defendant in the vicinity of the place of the crime before, during, or after the burglary or otherwise connecting the defendant with the burglary. Here, although the majority opinion does not so indicate, there was no independent evidence that Hogie was even a resident of North Dakota much less that he was in the vicinity of the place of the crime before, during, or after the burglary. We reversed another burglary conviction, observing that: “We have previously stated that evidence that defendant was in the company of accomplices or was present at or near the place of the crime shortly before or after the crime was committed may be corroboration that tends to connect defendant with commission of the crime. [Citations omitted.] We do not have such evidence in this case. All we have is speculation as to Haugen’s presence. Speculation is not evidence tending to connect defendant with the commission of the crime.” Haugen, supra, 449 N.W.2d at 789. In conclusion, I do not believe that the State entered sufficient corroborative evidence to allow the court to submit the case to the jury. If § 29-21-14, NDCC, is to protect a defendant, more than coincidence and speculation are required. The State’s corroborative evidence was too remote in time and place to “tend to connect” Hogie to the theft in Jamestown. If the testimony of the accomplices is to be believed, it appears that the State had more persuasive corroborative evidence available to it which it did not offer into evidence. For example, the State could have entered into evidence the testimony of Dave Buckeye, Mark Buckeye’s brother, or the full-service gas *508station attendant. The testimony of these individuals could have placed Hogie in the automobile, and in the company of the accomplices, near the place of the theft immediately after it occurred. See State v. Garcia, 425 N.W.2d 918 (N.D.1988) [evidence that defendant was seen in the company of the accomplices near the scene of the crime before and after it occurred was sufficient corroborative evidence tending to connect defendant to the crime]; State v. Thorson, 264 N.W.2d 441 (N.D.1978) [testimony that defendant and accomplices were together near the scene of the crime was sufficient corroborative evidence]. Because I do not believe there was sufficient corroborative evidence tending to connect Hogie to the crime to submit the case to the jury, I would reverse Hogie’s judgment of conviction for theft. The second case in this consolidated appeal stems from the district court’s order revoking Hogie’s earlier probation. It is clear from the order that the court considered Hogie’s judgment of conviction for theft, two minor-in-possession convictions and testimony that Hogie had not paid court-ordered restitution which, at the time of the revocation hearing, was not yet due. However, the order did not specify which of the aforementioned grounds the court utilized in revoking Hogie’s probation. Because I am unable to determine from the order whether the court based its decision to revoke the probation solely on the judgment of conviction for theft, solely on the minor-in-possession conviction, or on a combination of all the listed grounds, I would remand the order revoking probation to the district court for reconsideration and instruct the court to consider the grounds for revocation in light of the reversal of Ho-gie’s judgment of conviction for theft. LEVINE, J., concurs. . Compare State v. Smith, 238 N.W.2d 662 (N.D.1976), in which this Court concluded that a stolen diamond ring, found in the pocket of the defendant, was sufficient corroborative evidence to submit the case to the jury.

CourtListenerOpinion

2024-06-11T07:23:54.749202

2023-08-26 19:06:50.285895+00

2207368

183 Mich. App. 208 (1989) 454 N.W.2d 125 HILL v. FORD MOTOR COMPANY Docket No. 113577. Michigan Court of Appeals. Decided December 7, 1989. Snyder & Handler, P.C. (by David S. Snyder and Michael W. Bartnik), for plaintiff. James C. Curtiss, for defendant. *210 Before: MAHER, P.J., and MARILYN KELLY and H.E. DEMING,[*] JJ. PER CURIAM. The Michigan Supreme Court has vacated our prior order in this matter and remanded for reconsideration as on leave granted in light of Teper v Park West Galleries, Inc, 431 Mich. 202; 427 NW2d 535 (1988), reh den 431 Mich. 1207 (1988). See 431 Mich. 900 (1988). Upon reconsideration, we reverse the trial court's decision with respect to Count II of plaintiff's complaint but affirm as to Count III. This case concerns whether plaintiff's state law claims for breach of contract and misrepresentation are preempted by § 514 of the Employee Retirement Income Security Act, 29 USC 1144(a) (ERISA). Plaintiff, a long time salaried employee of defendant, took a voluntary early retirement effective June 1, 1982, twelve years prior to his scheduled retirement. As a salaried employee, plaintiff was an eligible participant and beneficiary in defendant's General Retirement Plan, an employee benefit plan under the ERISA. This plan entitled plaintiff to receive both basic retirement benefits and certain supplemental benefits. Plaintiff alleged that, prior to deciding to accept early retirement, he reviewed various documents, bulletins and notices provided by defendant, attended early retirement seminars, and met with members of defendant's personnel staff in order to ascertain the various benefits to which he would be entitled. Plaintiff alleged he specifically inquired about entitlement to supplemental benefits under the plan, and was informed that outside earnings in excess of a given sum during a calendar year would cause a penalty deduction in the *211 supplemental benefits for the balance of that calendar year. In particular, plaintiff alleged he was informed that the penalty reductions applied only to excess earnings for the same calendar year and that calculations began anew at the beginning of each successive calendar year. After accepting the early retirement offer, plaintiff obtained outside employment and reported his earnings as required under the plan. Thereafter, however, plaintiff alleged he was informed, contrary to his prior understanding, that his excess earnings for that calendar year would be applied cumulatively and operate to deprive him of supplemental benefits otherwise due in subsequent years until the excess earnings had been fully consumed. After plaintiff was informed the supplemental benefits would not be paid in accordance with his understanding, he commenced the instant action with the filing of a three-count complaint. Count I of his complaint sought declaratory relief regarding his rights to supplemental benefits under the plan. Count II contained an action for breach of contract based upon the various publications provided by defendant describing the supplemental benefits available under the plan. Finally, Count III contained an action for misrepresentation wherein plaintiff alleged that he was induced into accepting early retirement in reliance upon various representations by defendant that proved to be false. Plaintiff alleged that, but for the representations, he would not have surrendered his then existing seniority, salary and fringe benefit package. After the lower court denied defendant's motion for summary disposition as to all three counts, an application for leave to appeal to this Court was filed. We denied leave with respect to Count I, but reversed the lower court's decision with respect to *212 Counts II and III, finding that plaintiff's claims were preempted by 29 USC 1144. Plaintiff then sought leave to appeal our ruling to the Michigan Supreme Court which, in lieu of granting leave to appeal, vacated our decision and remanded back to us for reconsideration as on leave granted in light of Teper, supra. Initially, we note that consideration of the lower court's ruling with respect to Count I of plaintiff's complaint is not properly before us inasmuch as we originally declined to grant leave on this claim and plaintiff's application for leave to appeal to the Supreme Court addressed Counts II and III only. Accordingly, we will not address this claim. Additionally, we disagree with plaintiff's contention that the law of the case doctrine requires us to rule that his claims are not preempted. Plaintiff correctly points out that, where a case is taken on appeal to a higher appellate court, the law of the case announced in the higher appellate court supersedes that set forth in the intermediate appellate court, Johnson v White, 430 Mich. 47, 53; 420 NW2d 87 (1988). However, plaintiff is incorrect in his assertion that the effect of the Supreme Court's order in this case was to reverse this Court's prior order. First, leave to appeal was never granted by the Supreme Court. Instead, it vacated our prior decision in lieu of granting leave. Thus, there was never any decision by the Supreme Court and no law of the case established there. Second, the order of the Supreme Court did not reverse our prior order as apparently contended by plaintiff, but merely vacated it with directions to reconsider plaintiff's claims in light of Teper. Accordingly, the law of the case doctrine does not apply in this case. With respect to the remaining two claims, we are required to determine whether plaintiff's actions *213 for breach of contract and misrepresentation "relate to" defendant's retirement plan. Under the ERISA, state laws that "relate to" an employee benefit plan are expressly preempted. 29 USC 1144(a). In Teper, supra, p 221, our Supreme Court found that a state law is preempted if it "relates to" an employee benefit plan by 1) altering the level of benefits which would be paid out under a given plan from state to state, 2) altering the terms of the plan such as requirements for eligibility, or 3) subjecting the fiduciaries of a plan to claims other than those provided in the ERISA itself. The Court stated that ERISA preemption "turns upon whether state law places any fiscal, administrative, or legal burdens upon the plan." Teper, 218. In addition, the Court indicated that preemption exists only where there is a real, if only indirect, relationship between the challenged state law and an employee benefit plan. Teper, 220. The Court ultimately found that an award of future pension benefits in a wrongful discharge action against the employer, rather than the plan or fiduciary of the plan, did not "relate to" the plan and was not preempted. We will first address plaintiff's claim for misrepresentation. In our view, this claim does not "relate to" the plan, and therefore, is not preempted by ERISA. Plaintiff's misrepresentation claim is not based upon any misrepresentation within the plan itself, but is, instead, based upon alleged representations made by the employer prior to plaintiff's participation in the plan. Further, plaintiff is not suing for actual supplemental benefits allegedly due under the plan, but is seeking damages for alleged misrepresentations concerning the amount of benefits plaintiff would ultimately be entitled to *214 receive if he were to accept early retirement. In effect, plaintiff is claiming that, irrespective of the actual terms and conditions of the plan itself, he is entitled to additional damages, not under the plan, but pursuant to the various representations made by defendant. Additionally, plaintiff is not seeking to impose liability on either the plan or the fiduciary, but on the employer who allegedly made the false representations. Accordingly, because plaintiff's misrepresentation claim is based upon representations independent of the plan itself, and does not seek actual benefits under the plan, the claim will not alter the level of benefits paid out under a plan from state to state, nor will it alter the terms of the plan. Further, because plaintiff's claim is against the employer, there is no danger that the fiduciary will be subjected to claims other than those provided in the ERISA. Finally, there is no fiscal, administrative or legal burden imposed on an employee benefit plan by requiring that the employer refrain from misrepresenting the availability of benefits. Thus, in light of our Supreme Court's decision in Teper, supra, we are unable to conclude that plaintiff's misrepresentation claim "relates to" defendant's employee benefit plan. As a result, plaintiff's state law claim is not preempted by the ERISA. Accordingly, the trial court did not err in denying defendant's motion for summary disposition with respect to this claim. We agree with defendant, however, that plaintiff's breach of contract claim "relates to" the plan and, thus, is preempted by the ERISA. The alleged breach of contract complained of in the complaint is the deprivation of "supplemental benefits due to plaintiff under the General Retirement Plan for *215 salaried employees." Thus, plaintiff is seeking actual benefits alleged to be due under the plan, rather than benefits otherwise due pursuant to an independent contract. In this situation, plaintiff is attempting to have his entitlement to supplemental benefits under the plan determined on the basis of a breach of contract action governed by state law. By attempting to determine entitlement to supplemental benefits on the basis of state law, plaintiff's claim would clearly have the effect of altering the level of benefits payable under a given plan from state to state. Teper, supra, p 214. Therefore, plaintiff's breach of contract claim "relates to" defendant's employee benefit plan and is preempted by the ERISA. Accordingly, defendant was entitled to summary disposition as to the breach of contract claim. Affirmed in part, reversed in part and remanded. NOTES [*] Former circuit judge, sitting on the Court of Appeals by assignment.

CourtListenerOpinion

2024-06-11T07:23:54.752819

2013-10-30 08:36:19.323066+00

9736800

Cavanagh, J. i This litigation arises out of a construction contract dispute between a property owner, plaintiff, and its general contractor’s surety, defendant. The plaintiff, Old Orchard by the Bay Associates, filed a complaint on February 10, 1978, in Oakland Circuit Court, alleging that defendant, Hamilton Mutual Insurance Company, was liable under a surety bond for latent defects relating to the construction of an apartment project which Old Orchard owns. The litigation was pending for three years, during which time the parties commenced discovery, and in 1980 the case was mediated. By a stipulated order filed February 6, 1981, Old Orchard and Hamilton Mutual voluntarily submitted their entire dispute to statutory arbitration.1 The arbitration proceedings, including extensive *248evidentiary hearings, took place throughout 1985.2 On December 6, 1985, five years after the execution of the arbitration agreement, the Commercial Arbitration Tribunal entered an award of $300,000, plus statutory interest, in favor of plaintiff.3 The arbitrator’s interest award to Old Orchard was computed from the date of the filing of the circuit court complaint at the statutory judgment rate, MCL 600.6013; MSA 27A.6013. Subsequently, defendant Hamilton Mutual filed several motions, including a claim that the arbitrators erred in awarding interest other than that allowable under the prejudgment interest statute, MCL 438.7; MSA 19.4, from the date of the arbitration award. The trial court confirmed the award in all respects on May 21, 1986, including confirmation of the award of interest at the statutory judgment rate. Defendant Hamilton Mutual appealed on several issues. The Court of Appeals, in an unpublished opinion, affirmed on all issues, except as to the interest award. In a split decision, the Court of Appeals held that MCL 438.7; MSA 19.4 should *249have been applied, allowing for an award of five percent annual interest from the date of the 1985 arbitration award.4 We granted the plaintiff’s application for leave to appeal, while denying the defendant’s application for leave to appeal as cross-appellant.5 430 Mich 891 (1988). The defendant claims that the plaintiff is entitled to interest only from the date of the arbitration award at a five percent annual rate under MCL 438.7; MSA 19.4. We reject that argument and reverse the decision of the Court of Appeals on the interest issue and hold as follows: (1) where the parties to a contract dispute have no agreement to arbitrate, and (2) do not later stipulate to an interest entitlement or rate (assuming the original action is not dismissed),6 (3)(a) statutory interest is awardable on the judgment from the date of the filing of the complaint until the judgment is entered, and (b) such interest is also awardable thereafter until the judgment is paid, as provided in MCL 600.6013; MSA 27A.6013. ii Before discussing the merits, the relevant statu*250tory provisions are set forth briefly. Two statutes potentially govern the award of interest to the prevailing party in any contractual dispute. MCL 438.7; MSA 19.4 authorizes the award of interest where the parties fail to agree on the matter of entitlement to interest in an action. It applies to specified types of disputes founded on a contract that are resolved less formally "by verdict, report of referees, award of arbitrators, or by assessment made by the clerk of the court or by any other mode of assessment according to law . . . .” Statutory interest under MCL 438.7; MSA 19.4 accrues from the date of the award until payment or judgment is rendered thereupon.7 MCL 600.6013; MSA 27A.6013 authorizes the payment of interest on all money judgments awarded in "civil actions.”8 The award of such *251statutory judgment interest under MCL 600.6013; MSA 27A.6013 is mandatory, although the parties may vary the applicable interest rate within certain parameters.9 hi The statutory interest provision that applies in a given action is a purely legal question to be resolved by means of statutory interpretation, except where the parties stipulate to an interest schedule or otherwise agree on the matter of interest as part of their arbitration agreement.10 The parties in the instant dispute, however, never agreed upon the matter of interest. Plaintiff Old Orchard alleges that it was error for the Court of Appeals to state as a broad rule that "interest on an arbitration award in an action founded on a contract is governed by MCL 438.7; MSA 19.4.”11 We agree. This conclusion is based on a close examination of both the language and history of the two interest statutes at issue, as well *252as the purposes that the Legislature sought to accomplish in enacting these provisions. IV As this Court stated in White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979), and Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 478; 208 NW2d 469 (1973), the interpretative task at hand requires the Court to infer legislative intent from the language used in the statute, as well as to consider the statutory language in the context of the special subject matter which it addressed. The meaning of the statute must be viewed "in light of the general purpose sought to be accomplished or the evil sought to be remedied by the constitution or statute.” White, supra at 562. The rationale for awarding statutory interest under MCL 600.6013; MSA 27A.6013 is primarily a compensatory one. The Revised Judicature Act interest statute serves the purpose of compensating the prevailing party for loss of the use of the funds awarded as a money judgment, as well as offsetting the costs of bringing a court action. In Denham v Bedford, 407 Mich 517, 534-536; 287 NW2d 168 (1980), this Court wrote: The Michigan Legislature has dictated that interest should accrue from the date of filing the complaint. . . . [T]he legislative purpose was to compensate the prevailing party for the delay in payment of money damages and to cover the costs of litigation . . . .[12] The second purpose of awarding judgment inter*253est is to provide an incentive for prompt settlement. See Gage v Ford Motor Co, 423 Mich 250, 257; 377 NW2d 709 (1985). The award of statutory prejudgment interest under MCL 600.6013; MSA 27A.6013 in suits to collect on an insurance contract is a useful illustration; in this context, prejudgment interest serves a distinct deterrent function by both encouraging settlement at an earlier time and discouraging a defendant from, delaying litigation solely to make payment at a later time. See Matich v Modern Research Corp, 430 Mich 1, 12-15; 420 NW2d 67 (1988). v In this case, the plaintiff filed a complaint to resolve a contract dispute in the absence of any prior agreement to arbitrate or any agreement on the appropriate interest rate. Is this a "civil action” resulting in a judgment of recovery in the form of "money damages” and therefore governed by the prejudgment interest provisions of MCL 600.6013; MSA 27A.6013? Or, is the plaintiff’s recovery more properly considered a "liquidation” or "ascertainment” of debt pursuant to the "award of an arbitrator” and therefore governed by MCL 438.7; MSA 19.4? Since 1965 there have been two prejudgment interest statutes in Michigan, rather than just one. Until recently, the statutory scheme was more orderly.13 By exploring the history of the two interest statutes, one can see that they share both common purposes as well as common origins. A summary of the evolution of the two interest statutes which must be interpreted is summarized *254in the margin.14 The right to judgment interest originated in an 1827 Michigan territorial statute which created an entitlement to interest from the time a judgment was entered. See 2 Laws of Territory of Michigan, p 491 (1874). In an even earlier statute (an act of 1809), a conventional rate of interest was authorized (at the specific rate of six percent) under any contract — with only a few specified exceptions. (The 1809 act was copied from a Vermont statute, see 4 Laws of Territory of Michigan, pp 61-62 [1884].) Both statutes then appeared together in chapter 6 of the Revised Statutes of 1838.15 *255The placement and language of these provisions indicate that they were intended to further a common purpose. Section 8 (now MCL 600.6013; MSA 27A.6013) applied to all actions resolved by means of formal dispute resolution, and § 9 (now MCL 438.7; MSA 19.4) applied to contract-based claims where the amount owed was to be determined by report of referees, award of arbitrators, or by any other mode of assessment according to law. Yet, the purpose of both provisions was the same as is evident from their language and function. The two statutes were coordinated to accomplish the same goal of compensating parties for the loss of the use of funds wrongfully detained for the period when they were due but unpaid. The subsequent history of the two provisions, prior to 1965, does not alter this conclusion. While these statutory provisions have since been assigned to separate chapters in the Compiled Laws,16 their language was, until 1965, essentially *256the same as when originally enacted. MCL 438.7; MSA 19.4, formerly §9 of the 1838 Revised Statutes, has remained substantively unchanged. (The only minor amendments made to this provision, in 1846, were editorial in nature. See RS 1846, ch 34, §7.) MCL 600.6013; MSA 27A.6013 also did not undergo any major changes even as it was moved and edited.17 Since its amendment in 1965, MCL 600.6013; MSA 27A.6013, however, entitles a prevailing party to prejudgment interest from the filing of the complaint to the entry of a judgment in any civil action. Moreover, the various provisions of MCL 600.6013; MSA 27A.6013 are clearly designed to encourage settlement and to compensate the prevailing party for the value of money wrongfully obtained. See, generally, Rittenhouse v Erhart, 424 Mich 166, 190-193; 380 NW2d 440 (1985) (discussion of how MCL 600.6013; MSA 27A.6013, in its present form, as of the 1980 amendments, clearly seeks to further both goals). Both MCL 600.6013; MSA 27A.6013 and MCL 438.7; MSA 19.4 were enacted by the same Legislature. Given the manner of their enactment and the similar functions that the two statutes have performed for more than a century, the amendment of MCL 600.6013; MSA 27A.6013 in 1965 is *257highly problematic. The extension of that interest statute to prejudgment interest awards causes two formerly compatible statutes to be in irreconcilable conflict. Only by concluding that the §6013 interest provision has repealed MCL 438.7; MSA 19.4 by necessary implication, insofar as civil actions are concerned, can any sense be made of the two interest statutes. While repeals by implication are not favored, it is a question of legislative intent whether or not there has been such a repeal of an earlier statute by a subsequently enacted one. See Attorney General ex rel Owen v Joyce, 233 Mich 619, 621; 207 NW 863 (1926); Yarger v City of Hastings, 375 Mich 413, 417; 134 NW2d 726 (1965). The latest legislative expression on the entitlement to prejudgment interest must control where two interest statutes specifically address the issue of entitlement and cannot be harmonized. VI Plaintiff maintains that the enactment of 1965 PA 240 repealed MCL 438.7; MSA 19.4 to the extent that it might apply to the award of arbitration under the unique circumstances in which arbitration was agreed to in this case. The 1965 amendment clearly broadened the entitlement to prejudgment interest under MCL 600.6013; MSA 27A.6013. The defendant argues that the two interest statutes do not overlap, but this position is untenable given the plain language of the two statutes. First, the argument assumes that MCL 438.7; MSA 19.4 provides the exclusive entitlement to interest even after a court enters a money judgment conñrming an arbitration award. Yet, this cannot be reconciled with the language of MCL 600.6013; MSA *25827A.6013 which requires that interest be awarded from the date of the filing of the complaint. Moreover, MCL 438.7; MSA 19.4 by its own terms, does not extend as far as the defendant contends; in fact, it authorizes the award of interest "only 'until judgment shall be . . . rendered’ upon the verdict, arbitration award, etc.” The overlapping coverage of the two statutes creates a conflict regarding the entitlement to prejudgment interest that appears to be irreconcilable. The only way to harmoniously apply the two interest provisions would be to apply them both at the same time. Yet, such simultaneous application would yield a double recovery for the prevailing party from the date of the arbitration award to the date of judgment. This is surely inconsistent with any rational view of legislative intent.18 Since there appears to be no way to justify application of only one of the statutes over the other,19 we find that MCL 600.6013; MSA 27A.6013 and MCL 438.7; MSA 19.4 are in conflict, as applied to the facts of this case. The defendant contends that the plaintiff’s entitlement to prejudgment interest is governed exclusively by MCL 438.7; MSA 19.4. This argument ignores the express terms of MCL 600.6013; MSA 27A.6013 which applies to a money judgment recovered in a civil action. Perhaps, defendant concludes that only MCL 438.7; MSA 19.4 applies *259here by reading that statute too narrowly. MCL 438.7; MSA 19.4 applies to arbitration awards, as well as to awards entered by verdict, report of referees, assessment made by the clerk of the court, or otherwise. Following the logic of defendant’s argument would result in awarding prejudgment interest on a jury verdict under MCL 438.7; MSA 19.4, exclusively, even though it precludes a judgment of money damages in a "civil action.” But this result would make MCL 600.6013; MSA 27A.6013 inoperative where it plainly applies. Thus, we are constrained by the rules of statutory construction to award prejudgment interest in the instant dispute on the basis of MCL 600.6013; MSA 27A.6013 by resorting to rules of statutory interpretation. Normally, two statutes which share a common purpose or object are to be interpreted in pari materia. This is the appropriate rule to apply where two statutes are enacted by the same assembly with a common purpose. The rule requires that the two statutes be strictly construed so as to avoid interpreting one in a manner that defeats the main purpose of another on the same subject. Detroit v Michigan Bell Telephone Co, 374 Mich 543, 558, 561; 132 NW2d 660 (1965), cert den 382 US 107 (1965); Richardson v Jackson Co, 432 Mich 377, 384; 443 NW2d 105 (1989). But where the two statutes cannot be reconciled, this rule of statutory construction does not apply. Specifically, the rule of in pari materia does not control here since it would likely result in upholding the policy embodied in MCL 438.7; MSA 19.4, the earlier statute, in a manner tending to contradict the plain language of the subsequent statute (i.e., MCL 600.6013; MSA 27A.6013). See People ex rel Pellow v Byrne, 272 Mich 284, 288; 261 NW 326 (1935), quoting Voorhies v Recorder’s Court Judge, 220 Mich 155, 157-158; 189 NW 1006 (1922). *260Any judicial attempt to read a restriction into MCL 600.6013; MSA 27A.6013, however, is foreclosed. This Court cannot refuse to award prejudgment interest in a "civil action” (from the date of the filing of the complaint) in contravention of the plain language of MCL 600.6013; MSA 27A.6013. Were we to hold that MCL 438.7; MSA 19.4 applies and that plaintiff is not entitled to prejudgment interest from the date of the complaint, it would violate the rule of Voorhies, since the force of the two statutes could not thereby be preserved. See, generally, Rathbun v Michigan, 284 Mich 521, 544-545; 280 NW 35 (1938). Our conclusion that MCL 600.6013; MSA 27A.6013 applies is supported by the rule that the Revised Judicature Act authorization for prejudgment interest is remedial in nature and so must be liberally construed. Denham, supra at 528-529, citing MCL 600.102; MSA 27A.102. VII Given the broad statutory definition of a "civil action” in Michigan, and given the parties stipulation to arbitrate made in the context of a properly filed lawsuit, we conclude that the judgment in favor of plaintiff was made pursuant to a "civil action.” This Court has defined the term "civil action” broadly enough so that this suit satisfies the requirements of MCL 600.6013; MSA 27A.6013.20 The trial court’s order confirming the arbitration award was preceded by a complaint and ended in a *261money judgment. Furthermore, this is not a case where the money judgment rendered was not made by a "court” or lacked the procedural attributes of a civil action.21 Rather, a trial court entered the judgment in dispute here. We distinguish this case from those actions which are brought for the sole purpose of obtaining a judgment confirming the award. In asking the court to apply MCL 438.7; MSA 19.4, the defendant relies upon cases interpreting the two interest statutes that are inapplicable to the instant suit. See Morgan v Kamil, 144 Mich App 171; 375 NW2d 378 (1985), lv den 422 Mich 970 (1985); Western Casualty & Surety Co v Garden City, 151 Mich App 83; 390 NW2d 687 (1986). The salient fact in this case is that the parties chose to arbitrate only after the filing of the complaint. By contrast, in Morgan, supra, the parties had agreed to arbitrate prior to the filing of the complaint; moreover, the circuit court dismissed the case after entering an order compelling arbitration.22 Western Casualty & Surety Co, supra, involved a preexisting arbitration agreement also. In these two cases, as well as in Osinski v *262DAIIE, 69 Mich App 426; 245 NW2d 76 (1976), the Courts held that MCL 438.7; MSA 19.4 specifies the entitlement to interest on judgments entered merely to confirm the arbitrator’s award. Also, the arbitration proceedings in those cases were held prior to the bringing of the circuit court action. Thus, by applying MCL 438.7; MSA 19.4, in those cases, the Court of Appeals reached correct results.23 MCL 600.6013; MSA 27A.6013 does not apply to money judgments which are ordered as the result of contractually agreed upon means of dispute resolution which a court lacks the power to alter. This rationale justifies the failure to apply MCL 600.6013; MSA 27A.6013 to the prejudgment phase of the litigation. But, even in the above cases, MCL 600.6013; MSA 27A.6013 might have authorjzed prejudgment interest if the party required to *263pay it had successfully moved to vacate the award on the ground (1) that there was no enforceable agreement to arbitrate, or (2) that the arbitrator’s decision must be set aside. See DAIIE v Gavin, 416 Mich 407, 440-441; 331 NW2d 418 (1982). In Morgan, supra at 173, MCL 600.6013; MSA 27A.6013 may have governed the award of prejudgment interest if the Court had not dismissed the complaint. In all the above cases, MCL 600.6013; MSA 27A.6013 governs the award of postjudgment interest, according to its plain language.24 Defendant argues that "this case is not a civil action because an agreement to arbitrate, whether reached before or after the filing of a complaint, precludes a circuit court’s exercise of subject matter jurisdiction while the arbitration is pending.” The defendant relies incorrectly on the Morgan decision to support the view that the trial Court in this case lost subject matter jurisdiction over this lawsuit when the parties entered into their agreement to arbitrate.25 When the instant complaint was filed, the trial court clearly had jurisdiction to decide the con*264tract claim presented to it. By stating in their stipulation that the court would "retain[ ] jurisdiction” over the dispute, the parties clearly consented to allow the court to enter the judgment confirming the arbitrator’s award. Given this stipulation, the court properly retained jurisdiction and entered a judgment conforming to the decision of the arbitrator.26 The text and history of MCL 600.6013; MSA 27A.6013 and MCL 438.7; MSA 19.4 simply do not support the conclusion that a party who prevails in an arbitration proceeding is less entitled to prejudgment interest when the award is made in the context of a civil action. VIII The policy of encouraging arbitration is in no way frustrated by the award of a higher rate of interest at an earlier point in the litigation under MCL 600.6013; MSA 27A.6013. The parties have some flexibility in specifying the appropriate rate of prejudgment interest. By drafting agreements that require the arbitration of any disputes as a condition precedent to bringing a court action, parties prevent an entitlement to prejudgment interest under MCL 600.6013; MSA 27A.6013 from ever arising prior to the filing of an action to confirm the arbitrator’s award. Thus, the result of this case will neither encourage nor discourage parties, who intend to prevent litigation, from engaging in arbitration. The demands of MCL 600.6013; MSA 27A.6013 must be satisfied, however, when a "civil action” has been filed and is not dismissed before a judgment is entered on the arbitration award._ *265IX In sum, we hold that the 1965 amendment of MCL 600.6013; MSA 27A.6013 repeals MCL 438.7; MSA 19.4 by necessary implication to the extent that the two interest statutes are in conflict. MCL 600.6013; MSA 27A.6013 repeals that part of MCL 438.7; MSA 19.4 providing for prejudgment interest, in the interval between liquidation or ascertainment of the amount owed and either payment of or judgment on that amount in actions "founded on contracts” commenced by filing a complaint with a court, i.e., civil contract actions. Thus, we reverse the decision of the Court of Appeals, and remand the case for entry of a judgment awarding prejudgment interest in conformity with this opinion. Riley, C.J., and Brickley, Boyle, and Archer, JJ., concurred with Cavanagh, J. The stipulation read in part as follows: This matter is being submitted for resolution by arbitration in accordance with the Construction Industry Rules of the American Arbitration Association. . . . Any award entered into in the aforesaid arbitration may be entered as a judgment in this Court and this Court has retained jurisdiction for the purpose of enforcing any such award. . The terms of this stipulation conform the arbitration agreement to the requirements of statutory arbitration set forth in MCR 3.602(A), citing MCL 600.5001-600.5040; MSA 27A.5001-27A.5040. Such an agreement to arbitrate, generally, is revocable only by the mutual consent of the parties. MCL 600.5011; MSA 27A.5011. Upon the making of this agreement, the trial court had jurisdiction to enforce its terms and to render judgment on the award thereunder. MCL 600.5025; MSA 27A.5025. Defendant Hamilton Mutual filed a motion on January 30, 1985, for summary judgment and to dismiss the arbitration. The motion was denied by the lower court without prejudice, pending completion of arbitration, on March 18, 1985. Several additional facts, though not directly relevant, must be stated to give a complete picture of the nature of the instant lawsuit. F & T Contractors, the principal, filed suit against plaintiff on November 11, 1976, alleging that $639,949.43 was still owed on the construction contract. Later, f & t’s net claim was reduced to $331,-800. After being sued by f & t, plaintiff sued defendant for $390,000 in the instant suit which was filed after f & t’s claim against plaintiff. Finally, under a consent judgment entered into between f & t and plaintiff, plaintiff became obligated to pursue arbitration with the instant defendant, Hamilton Mutual. According to that consent agreement, plaintiff must pay to f & t sixty percent of the remainder of any monetary recovery which might be obtained through the arbitration proceeding, less expenses not to exceed $30,000, as a full settlement of f & t’s claims against plaintiff. Judge Mackenzie dissented and would have affirmed the trial court on all issues, including the interest award. The plaintiff framed its application in terms of two distinct issues: Issue I: Is the Court of Appeals clearly erroneous in holding that a plaintiff, having filed suit, forfeits its right to prejudgment interest under MCL 600.6013 [MSA 27A.6013] by later entering into a voluntary stipulation with the defendant to submit their entire dispute to arbitration? Issue II: Will the Court of Appeals’ ruling cause material injustice if permitted to stand where it contravenes the legislative policies to encourage arbitration and to ensure fair compensation for prevailing plaintiffs? See n 22. MCL 438.7; MSA 19.4 provides: In all actions founded on contracts express or implied, whenever in the execution thereof any amount in money shall be liquidated or ascertained in favor of either party, by verdict, report of referees, award of arbitrators, or by assessment made by the clerk of the court or by any other mode of assessment according to law, it shall be lawful, unless such verdict, report, award, or assessment shall be set aside, to allow and receive interest upon such amount so ascertained or liquidated, until payment thereof, or until judgment shall be thereupon rendered; and in making up and recording such judgment, the interest on such amount shall be added thereto, and included in the judgment. MCL 600.6013; MSA 27A.6013 provides: (1) Interest shall be allowed on a money judgment recovered in a civil action, as provided in this section .... (2) For complaints filed before June 1, 1980, in an action involving other than a written instrument having a rate of interest exceeding 6% per year, the interest on the judgment shall be calculated from the date of filing the complaint to June 1, 1980, at the rate of 6% per year and on and after June 1, 1980, to the date of satisfaction of the judgment at the rate of 12% per year compounded annually. For example, under MCL 600.6013(3); MSA 27A.6013(3), where a complaint is filed before June 1, 1980, judgment interest may vary between six and twelve percent annually until the date judgment is entered, depending on the parties’ agreement, if any. But, after the date of judgment, interest may not exceed seven percent (except for the period after judgment which elapses after May 31, 1980, in which case interest may not exceed thirteen percent annually). See also MCL 600.6013(5); MSA 27A.6013(5), as amended by 1986 PA 178, § 1, effective October 1,1986. Where there is a contractual agreement by the parties regarding the entitlement to interest, or the rate of interest to be awarded, in a dispute founded on a contract, the question of interest is one of the intent of the parties. Therefore, since arbitration is primarily a matter of contract, a stipulation entered by the parties, before or after the complaint is filed, specifying the applicable rate of prejudgment or postcomplaint interest, is normally binding. Old Orchard by the Bay Associates v Hamilton Mutual Ins Co, unpublished opinion per curiam, decided January 11, 1988 (Docket No. 93161), slip op, p 8, citing Western Casualty & Surety Co v Garden City, 151 Mich App 83, 89; 390 NW2d 687 (1986). See also id. at 532, citing Waldrop v Rodery, 34 Mich App 1, 4; 190 NW2d 691 (1971) (Levin, J.); Wood v DAIIE, 413 Mich 573, 589, n 17; 321 NW2d 653 (1982). The historical evolution of these interest statutes, as described above, is discussed in Griffin, Prejudgment interest in contract actions, 67 Mich B J 250 (1988). The plaintiff provides a very succinct summary of the history of the two statutes: Chapter 6 contained nine sections, all addressing the topics of money and interest. Section 3, precursor of MCL 438.31 [MSA 19.15(1)], defined the legal rate of interest (7 percent annually or, if agreed otherwise in writing, up to 10 percent). Section 8, precursor to MCL 600.6013 [MSA 27A.6013], provided for interest on all money judgments or decrees. Section 9, which has remained substantially unchanged and is now codified as MCL 438.7 [MSA 19.4], complemented section 8 by allowing interest "until judgment” as to debts based on contract. The interest under section 9 accrues from the date the amount of the debt becomes "liquidated or ascertained.” The statute recognizes any number of ways by which an amount can become liquidated or ascertained: "by verdict, report of referees, award of arbitrators, or by assessment made by the clerk of the court, or by any other mode of assessment according to law.” . . . Sections 8 and 9 were never in conflict because the former section covered interest only after the judgment and the latter covered interest only until the judgment. This complementary relationship between the sections continued for more than a century, through several amendments to section 8 and various recodifications, until 1965 PA 240, sec. 1. By that enactment, the Legislature amended the accrual date in MCL 600.6013 [MSA 27A.6013] (the descendant of section 8) so that interest on a judgment would thereafter be "calculated from the date of filing the complaint.” The two sections were published under the same heading — "Title VII, Chapter 6, Of Money of Account, and of the Interest of Money, and on Judgments, Verdicts, &c.” — and under the same subheading— *255"Interest on Judgments, Verdicts, &c.” The two statutes, as they appeared in 1838, read as follows: Sec. 8 Interest may be allowed and received, upon all judgments at law, for the recovery of any sums of money, and upon all decrees in chancery, for the payment of any sums of money, whatever may be the form or cause of action or suit in which such judgment or decree shall be rendered or made; and such interest may be collected on execution. [The predecessor of MCL 600.6013; MSA 27A.6013.] Sec. 9 In all actions founded on contracts express or implied, wherever in the prosecution thereof any amount in money shall be liquidated or ascertained in favor of either party, by verdict, report of referees, award of arbitrators, or by assessment made by the clerk of the court, or by any other mode of assessment according to law, it shall be lawful, unless such verdict, report, award, or assessment shall be set aside, to allow and receive interest on such account, so ascertained or liquidated, until payment thereof, or until judgment shall thereupon be rendered, and in making up and recording such judgment, the interest on such amount shall be added thereto, and included in the judgment. The 1838 statute was reenacted in 1846, a statute which com*256bined together the prior sections that provide for "Interest of Money” (wherein a conventional legal rate of interest is specified) and for judgment and prejudgment interest (the former §§ 8 and 9 of the 1838 statute). The phrase "at the rate of seven per centum per annum” was added to the end of §6, but otherwise it was reenacted as it appeared in 1838. See 1846 RS, ch 34, § 6. Section 8 of the 1838 Revised Statutes (predecessor of MCL 600.6013; MSA 27A.6013) was moved from its original location alongside the prejudgment interest provision. See 1915 PA 314, ch 22, § 20. The other change of some significance was the addition of language specifying that the judgment be "in a civil action.” This amendment came in 1961 when the Judicature Act of 1915 was recodified as the Revised Judicature Act, see 1961 PA 236, ch 60, §6013, where it remains today. While such double recoveries of interest are permitted when a clear legislative purpose is served thereby, see Wood, n 12 supra, no such result can be justified under the statutes at issue here. A double award of prejudgment interest under both MCL 600.6013; MSA 27A.6013 and MCL 438.7; MSA 19.4 would overcompensate the prevailing party in contradiction of the purposes of the statute and would produce an absurd result. Thus, we assume that the Legislature did not intend to apply both statutes and thereby authorize two sources of recovery of prejudgment interest. The two interest statutes simply do not contain any textual clues as to how one would decide which of the two provisions should be given priority in what circumstances. A "civil action” is defined as an "action is commenced by filing a complaint with a court.” MCR 2.101(B) (formerly GCR 1963, 101). See also MCL 600.1901; MSA 27A.1901 (codifying court rule); Buscaino v Rhodes, 385 Mich 474, 481; 189 NW2d 202 (1971) (a civil action is commenced by the filing of a complaint in the context of the statutes of limitations, as well as every other context). See Solakis v Roberts, 395 Mich 13, 21; 233 NW2d 1 (1975) (Workers’ Compensation Appeal Board is not a court and is not possessed of judicial power), and Detroit v Detroit Police Officers Ass’n, 408 Mich 410, 499-502; 294 NW2d 68 (1980). Indeed, the trial court may dismiss a complaint after entering an order compelling arbitration, where the arbitration proceedings are not yet final and the parties do not dispute the existence or terms of the agreement to arbitrate. In that situation, moreover, even if the civil action is stayed (pursuant to MCR 3.602[C]), the presence of a prior arbitration agreement means that MCL 438.7; MSA 19.4, rather than MCL 600.6013; MSA 27A.6013, governs the entitlement to prejudgment interest. Under MCR 3.602(C), the court must issue a stay if an order for arbitration or an application for such an order has been made. The rule does not address whether the court having granted the stay (pending the outcome of arbitration) may or must dismiss the case for lack of jurisdiction. We do not decide what is the applicable rate of interest since we are not required to settle the issue to decide this case. This Court in Solakis v Roberts, n 21 supra at 20, fixed the interest rate allowable under MCL 438.7; MSA 19.4 at five percent according to the terms of MCL 438.31; MSA 19,15(1), yet, held that MCL 438.7; MSA 19.4 determines a right to interest op workers’ compensation awards that is fixed by the five percent per annum rate specified in MCL 438.31; MSA 19.15(1). The legislative history of MCL 438.7; MSA 19.4 casts doubt on this proposition and raises the possibility that the interest rate that this interest statute borrows shall be the one specified in ‘MCL 600.6013; MSA 27A.6013. See, e.g., Griffin, n 13 supra at 254 ("The Legislature intended that the prejudgment interest of the Revised Statutes, now MCL 438.7; MSA 19.4, should have the same rate as the judgment interest of the Revised Statutes, now MCL 600.6013 [MSA 27A.6013]”). Indeed, the specific language and history of MCL 438.7; MSA 19.4 suggests that it was intended to establish a "legal rate” of interest, rather than the rate of interest for money wrongfully detained. Its primary purpose was to establish limits on transactions insofar as the conventional rate of interest is concerned and to facilitate the enforcement of the prohibition on usury. We also do not decide whether the allowance of interest on verdicts and judgments in Michigan is "purely statutory,” see Motyka v Detroit, G H & M R Co, 260 Mich 396, 398; 244 NW 897 (1932), or allowable even where no express statute could be invoked, Wilson v Doehler-Jarvis Div of Nat’l Lead Co, 358 Mich 510, 514-519; 100 NW2d 226 (1960). Thus, the Court in Western Casualty & Surety Co, supra at 89, was incorrect when it stated that "nothing authorizes interest on an arbitration award (with the exception of the arbitration interest statute [MCL 438.7; MSA 19.4] to be discussed) whether awarded by the court or the arbitration panel.” MCL 438.7; MSA 19.4 may not properly be referred to as the "arbitration interest statute” since it authorizes the award of interest in a variety of other contexts and it is not the exclusive source of statutory entitlement to interest on an arbitration award. The Morgan Court stated: “Since plaintiff was a party to the arbitration agreement, the circuit court lacked subject matter jurisdiction over the lawsuit.” Id. at 176, citing Bowes v Int'l Pharmakon Lab, Inc, 111 Mich App 410; 314 NW2d 642 (1981). For the contrary view, namely, that the court does not lack subject matter jurisdiction to decide an arbitrable dispute under MCL 600.5001(2), 600.5025; MSA 27A.5001(2), 27A.5025, see DAIIE v Maurizio, 129 Mich App 166; 341 NW2d 262 (1983), Hendrickson v Moghissi, 158 Mich App 290, 295-296; 404 NW2d 728 (1987), and Campbell v St John Hosp, 170 Mich App 551, 558-559; 428 NW2d 711 (1988). See MCL 600.5025; MSA 27A.5025 (the legal and equitable power of a court to enforce the parties’ arbitration agreement and to render judgment on any award thereunder).

CourtListenerOpinion

2024-06-11T07:23:54.759740

2023-08-26 19:06:55.239593+00

9736801

Levin, J. (concurring). The question presented is whether the circuit court erred in entering a judgment confirming an arbitration award for an amount, $300,000, plus statutory interest computed from the date the complaint in this action was filed in the circuit court. I would hold that the arbitrators did not exceed their authority when they included in the award interest, computed as provided in the statute, from the date the complaint was filed. I therefore agree with the majority that this Court should reverse the decision of the Court of Appeals, which held that the circuit court should not have confirmed an award that included prejudgment interest and should have allowed interest only from the date of entry of the award. *266I Hamilton Mutual Insurance Company was the surety of a bankrupt general contractor that had constructed a multifamily housing complex for Old Orchard by the Bay Associates. The surety bond provided protection for defects in materials and workmanship. Old Orchard claimed that there were defects in an amount exceeding the $390,000 amount of the bond. Three years after this action was commenced by Old Orchard, the parties stipulated that the matter was to be submitted for resolution by arbitration in accordance with the Construction Industry Rules of the American Arbitration Association of Michigan. An order was entered by the circuit court pursuant to the stipulation "remanding case to arbitration” and providing that any award "may be entered as a judgment in this Court and this Court has retained jurisdiction for the purpose of enforcing any such award.” The arbitrators filed an award1 providing that Hamilton should pay Old Orchard $300,000 plus statutory interest to be computed on the $300,000 pursuant to § 6013 of the Revised Judicature Act2 from the date the action was commenced in the circuit court. The award concluded with the statement that it was in "full settlement of all claims submitted to this arbitration.” Old Orchard moved to confirm, and, after hearing objections, the circuit judge entered a judgment on the award of $300,000 plus interest of over $366,000 computed pursuant to § 6013. The Court of Appeals reversed,3 holding that *267interest should have been awarded pursuant to a statute4 that provides for interest at five percent per annum only after entry of an award. ii The majority holds as a matter of law that where the parties have not agreed to arbitrate before a complaint is filed, but thereafter stipulate to arbitrate and the original action is not dismissed, prejudgment interest should be added pursuant to § 6013. The majority states that prejudgment interest need not be added pursuant to § 6013 where the parties stipulate or otherwise "agree on the matter of interest,” but that where, as in the instant case, the parties do not agree on the matter of interest, the statute governs.5 While the parties did not specifically agree on whether interest pursuant to §6013 was to be added to the award, they agreed, in submitting the dispute to arbitration, to confer on the arbitrators the power to decide whether, as a matter of con*268tract rather than statutory interpretation, interest would be added to an award. In holding that the failure of the parties specifically to agree on the matter of interest meant, as a question of interpretation of the contract, that they had "never agreed on the matter of interest,”6 the majority substitutes its interpretation for the interpretation of the arbitrators. In the instant case, the result is the same because the arbitrators added interest pursuant to § 6013. But, in another case, the majority’s approach would mean that interest must be added to an award although the arbitrators had not included or provided for interest as part of the award. hi In arbitration cases, questions of contract interpretation often concern arbitrability — whether a dispute is arbitrable or excluded from arbitration. In the arbitrability context, the United States Supreme Court ruled that arbitration "should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.”7 This Court adopted the approach of the United States Supreme Court when it said that a court should not weigh competing claims of contract interpretation because to do so would give "to the court the task assigned to the arbitrator— namely, the interpretation and application of the contract.”8_ *269While the question of contract interpretation presented in the instant case does not concern arbitrability, but rather whether awarding interest was within the scope of the powers conferred on the arbitrators, the question whether it was within their powers to award or deny interest is nevertheless, because it concerns contract interpretation, confided to the arbitrators unless it can be said with "positive assurance” that the submission to arbitration is "not susceptible of an interpretation” that would permit the arbitrators to decide whether to award interest. This Court cannot state with positive assurance that the submission to arbitration in this case is susceptible of only one interpretation on the ques*270tion whether interest may or must be awarded pursuant to §6013. This Court should not, therefore, impose its interpretation and declare that, because the parties did not specifically agree on the matter of interest, it would be beyond the power of the arbitrators to decline to award interest pursuant to §6013.9 The question whether interest should be awarded pursuant to § 6013 is one for the arbitrators, and not this Court, to decide.10 Almost five years later. MCL 600.6013; MSA 27A.6013. Old Orchard by the Bay Associates v Hamilton Mutual Ins Co, unpublished opinion per curiam of the Court of Appeals, decided January 11,1988 (Docket No. 93161). MCL 438.7; MSA 19.4. MCL 438.31; MSA 19.15(1). The majority states: The statutory interest provision that applies in a given action is a purely legal question to be resolved by means of statutory interpretation, except where the parties stipulate to an interest schedule or otherwise agree on the matter of interest as part of their arbitration agreement.10 The parties in the instant dispute, however, never agreed upon the matter of interest. Where there is a contractual agreement by the parties regarding the entitlement to interest, or the rate of interest to be awarded, in a dispute founded on a contract, the question of interest is one of the intent of the parties. Therefore, since arbitration is primarily a matter of contract, a stipulation entered by the parties, before or after the complaint is filed, specifying the applicable rate of prejudgment or postcomplaint interest, is normally binding. [Ante, p 251.] See n 5. United Steelworkers of America v Warrior & Gulf Navigation Co, 363 US 574, 582-583; 80 S Ct 1347; 4 L Ed 2d 1409 (1960). Kaleva-Norman-Dickson School Dist v Kaleva-Norman-Dickson Teachers’ Ass’n, 393 Mich 583, 594-595; 227 NW2d 500 (1975). The Court continued: *269In deciding whether a dispute involving an issue of contract interpretation is arbitrable, a court should guard against the temptation to make its own interpretation of the substantive provisions of the contract encompassing the merits of the dispute. If the parties have agreed that an arbitrator shall decide questions of contract interpretation, the merits of the dispute are for the arbitrator. Where a court finds itself weighing the pros and cons of each party’s interpretation of substantive provisions of the contract, it is likely that the court has gone astray. The question for the court is not whether one interpretation or another is correct, but whether the parties have agreed that an arbitrator shall decide which of the competing interpretations is correct. Similarly, see St Clair Prosecutor v AFSCME, 425 Mich 204; 388 NW2d 231 (1986); Port Huron Area School Dist v Port Huron Ed Ass’n, 426 Mich 143; 393 NW2d 811 (1986). Arbitration is a matter of contract. In contracting for arbitration, parties generally agree to substitute an arbitrator for a judge and jury as factfinder and decision maker on all questions, factual and legal. Whether questions of law are "primarily or even ordinarily within the province of arbitration” is a question of contract and not of law. It is well within the province of parties to a commercial arbitration to allow the arbitrator to decide questions of law as well as of fact, and agreements to arbitrate have generally been construed as contracts for deciding questions of law as well as of fact. [DAIIE v Gavin, 416 Mich 407, 446-447; 331 NW2d 418 (1982) (Levin, J., concurring).] To the extent that the reasoning in Waldrop v Rodery, 34 Mich App 1; 190 NW2d 691 (1971), is inconsistent with the reasoning in this opinion, I would no longer follow Waldrop. See Tobacco Workers Int’l Union, Local 317 v Lorillard Corp, 448 F2d 949, 956 (CA 4, 1971), where the United States Court of Appeals for the Fourth Circuit declared in a union’s action against an employer for specific performance of a collective bargaining clause providing for arbitration of employee grievances: While a contract may contain provisions detailing what remedies should be applied to compensate for a particular breach, labor contracts, like other contracts, commonly do not. Part of what the parties bargain for when they include an arbitration provision in a labor agreement is the "informed judgment” that the arbitrator can bring to bear on a grievance, especially as to the formulation of remedies. . . . Therefore, we conclude that, although the agreement is silent as to remedies, the fashioning of an appropriate remedy is not an addition to the obligations imposed by the contract. In deciding that the agreement did not provide for retroactive pay in promotion cases, the District Court usurped the function of the arbitrator.

CourtListenerOpinion

2024-06-11T07:23:54.764482

2023-08-26 19:06:55.246933+00

9736802

Griffin, J. I concur in the result. I agree with Justice Levin that the Court’s opinion goes too far. Because it is not before us, I would not decide today the case where arbitrators do not include or provide for interest as part of the award.

CourtListenerOpinion

2024-06-11T07:23:54.765542

2023-08-26 19:06:55.251111+00

2207381

454 N.W.2d 665 (1990) 235 Neb. 197 William F. WURST and Carla M. Wurst, Appellants, v. BLUE RIVER BANK OF McCOOL JUNCTION, Nebraska, Appellee. No. 88-313. Supreme Court of Nebraska. May 4, 1990. *666 Stephen Speicher, Lincoln, for appellants. Stephen H. Nelsen, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellee. BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired. SHANAHAN, Justice. In an action commenced in the district court for York County, William F. Wurst and Carla M. Wurst contended that the Blue River Bank of McCool Junction, Nebraska (Bank), now the First National Bank of York, had breached a loan agreement by not discharging all of Wursts' indebtedness to the Bank, which had received proceeds from the sale of Wursts' farmland. After a bench trial, the district court dismissed Wursts' action. STANDARD OF REVIEW In a bench trial of a law action, a trial court's factual findings have the effect of a verdict and will not be set aside unless clearly erroneous. Alliance Nat. Bank v. State Surety Co., 223 Neb. 403, 390 N.W.2d 487 (1986). In reviewing a judgment awarded in a bench trial of a law action, the Supreme Court does not reweigh evidence but considers the evidence in a light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. Zeller v. County of Howard, 227 Neb. 667, 419 N.W.2d 654 (1988); Alliance Nat. Bank v. State Surety Co., supra; McKinstry v. County of Cass, 228 Neb. 733, 424 N.W.2d 322 (1988). Oddo v. Speedway Scaffold Co., 233 Neb. 1, 2, 443 N.W.2d 596, 598-99 (1989). See, also, Buckingham v. Wray, 219 Neb. 807, 366 N.W.2d 753 (1985). BACKGROUND FOR WURSTS' ACTION Wursts owned a York County farm, which included 130 acres of irrigated farmland and a 6-acre site for Wursts' residence. *667 Until 1978, William Wurst had farmed the land, but, on account of his severe back problem, was forced to give up farming. Wursts leased their farmland on a cash basis while William tried his hand at selling feed. However, chronic back problems compelled William to give up the feed business. Over a span of approximately 11 years, Wursts and the Bank had engaged in a business relationship during which K.D. Patitz, manager of the Bank, became well acquainted with Wursts and handled their financial matters. In 1980, William Wurst approached Patitz about obtaining a business loan to conduct a trucking operation. Wurst wanted to buy one truck, an Aerodyne cab-over model with a V-8 Caterpillar engine, for the proposed trucking business. Since William had no experience in trucking, Patitz advised against a loan for the truck purchase. When Wurst persisted and offered the Wursts' farmland and residence as collateral for a truck loan, he told Patitz that if the Bank would not lend them the money, they would secure financing elsewhere. As the result of Wurst's persuasion, Patitz authorized a bank loan to Wursts, which was sufficient for purchase of a Kenworth truck and commencement of a trucking business. Before making the loan, the amount of which is undisclosed by the record, Patitz warned Wurst that if the trucking business failed, they could lose everything. Sometime in 1981, after Wursts had granted the Bank a mortgage on their farmland and residence, Wursts purchased a Kenworth truck for $76,000 and began their trucking operation. Although their trucking business became unprofitable, Wursts continually borrowed money from the Bank to meet their business and personal living expenses. In June 1981, Wursts listed the farmland for sale through United Farm Agency, which listing excluded Wursts' residence. Throughout the fall of 1981, Wursts continued to borrow from the Bank to make up for operating deficits from the trucking business. Around November or December 1981, when it became apparent that the 130 acres of farmland were not selling through United Farm Agency, Patitz suggested to Wursts that they take some action to reduce their bank debt, which by February 1982 exceeded $163,000. Of the Wursts' bank debt, $140,000 was attributable to the unprofitable trucking business. On January 13, 1982, Wursts executed a new mortgage for $168,000 to the Bank, covering their farmland and residence as security for the new mortgage. In February 1982, the Bank and Wursts entered into a loan agreement in which the parties acknowledged Wursts' current debt of $163,796.95 to the Bank at the date of February 8, 1982. Also in the loan agreement, the Bank agreed "to the renewal and extension of the present indebtedness, plus the new advance [$4,203.05] as requested by the borrower." Pursuant to the loan agreement, Wursts signed two promissory notes, one for $150,000 and the other for $13,796.95, which were due on August 2, 1982. Wursts' indebtedness was secured by the January 1982 mortgage, a financing statement covering all agricultural products from Wursts' farm, a motor vehicle lien on the Kenworth truck, and the "[p]ersonal signatures of William F. Wurst and Carla M. Wurst." Additionally, the loan agreement provided: 5. Borrower hereby acknowledges that he has listed for sale his 130 acres of farm real estate located in the Southwest Quarter (SW¼) of Section Twenty-four (24), Township Ten (10) North, Range Three (3), West of the 6th P.M., in York County, Nebraska. 6. It is hereby understood and agreed that if this real estate is not sold by private treaty by June 1, 1982, it will be listed for sale at public auction, with said auction to be held prior to July 1, 1982 and final settlement on the sale of real estate, on or before August 2, 1982. 7. It is further agreed that the proceeds from the sale of the York County real estate will be applied to and will pay the total indebtedness to The Blue River Bank, McCool Junction, Nebraska at the time of final settlement. When the loan agreement was entered, both the Bank and Wursts believed that the agreement was a means for eventual liquidation *668 of Wursts' assets and reduction of their indebtedness to the Bank. William Wurst told Patitz to do "whatever would be necessary" to pay off the Wurst debts. From March 1982 through July of that year, the Bank continued to advance funds to Wursts for operating expenses in the trucking business and for their personal expenses. Although the loan agreement provided for a total advance of $4,203.05, by July the Bank had advanced $24,380 to Wursts, which brought Wursts' bank indebtedness to a sum of almost $200,000. Throughout most of 1982, Carla Wurst suffered "atypical depression," which, according to her psychiatrist, Dr. Robert Osborne, was a "persistent, ongoing, severe depressive disorder," severe enough to impair her ability to make decisions or solve problems. William Wurst displayed depression but was not treated by Dr. Osborne until December 1982. Dr. Osborne evaluated William Wurst in January 1983. Although Dr. Osborne had no information to indicate that William Wurst was incapable of understanding the nature and effect of his actions when the loan agreement was signed, Dr. Osborne believed that the depression suffered by William Wurst may have affected Wurst's ability to make decisions and rendered Wurst apathetic toward the consequences of the loan agreement. In July 1982, Wursts' farmland was sold at public auction, which resulted in $170,000 applied to the Wurst indebtedness. Since the proceeds from the farmland sale were insufficient to satisfy Wursts' entire indebtedness reflected on the Bank's records, Patitz suggested that Wursts sell their home or their Kenworth truck. When the promissory notes which Wursts had given pursuant to the loan agreement with the Bank were overdue, Wursts, on September 3, 1982, signed two "extension notes" in the total of $33,796.95. Both notes were due on November 15, 1982. Wursts tried to sell the Kenworth on their own, but their efforts failed. In November 1982, Patitz arranged for the Kenworth to be sold to a local truck dealer. Wursts consented to the sale of their truck, which was sold for $38,750. From the proceeds of the truck sale, $35,056.24 was applied to the two extension promissory notes which Wursts had signed earlier in September 1982. The difference between the truck sale price of $38,750 and the balance of Wursts' bank indebtedness of $35,056.24, namely, the sum of $3,693.76, was delivered to Wursts. As a consequence of the payment from the proceeds of the truck sale, the Bank returned to Wursts all their promissory notes and released all security and collateral pertaining to the Wurst debt. Wursts had never indicated a lack of understanding concerning their transactions with the Bank, never objected to the various sales or the amounts realized from the sales of their property, and did not object to Patitz' applying any sale proceeds on their indebtedness to the Bank. The Bank was unaware of an alleged problem with the Wurst account until April 1983, when an attorney representing Wursts contacted the Bank. In April 1985, Wursts filed their damages action against the Bank and claimed that the Bank had failed to carry out paragraph 7 of the loan agreement, which, according to Wursts, required the Bank to release them from all liability for any indebtedness existing after the sale of their farmland and payment of the land sale proceeds to the Bank. Wursts also claimed that there was no consideration for the two "extension notes" executed in September 1982. Wursts further alleged that the Bank forced them to sell the Kenworth truck for less than its fair market value and required them to turn over the proceeds from the truck sale to the Bank when Wursts owed nothing to the Bank. Thus, Wursts sought to recover the amounts paid to the Bank from the sale of the truck, plus the difference between the truck's fair market value and its sale price, a difference of $12,000. Wursts contended that paragraph 7 of the loan agreement, containing the language "the proceeds from the sale of the York County real estate will be applied to and will pay the total indebtedness to [the Bank]," meant that any money received by the Bank from the sale of Wursts' farmland would satisfy their entire indebtedness to the Bank, regardless of the actual amount of the debt at the time of *669 the sale or the amount realized from sale of the farmland. In its answer, inter alia, the Bank generally denied the cause of action alleged by Wursts. The trial court found that the evidence failed to substantiate Wursts' claim that, by virtue of paragraph 7 of the loan agreement, the sale of Wursts' farmland and the Bank's receipt of proceeds from that sale extinguished all liability for Wursts' indebtedness. In its conclusions, the court stated: "The Loan Agreement, mortgages and subsequent loans were all part of a single continuning [sic] transaction which is evidenced by the [parties'] performance. There was no agreement that the sale of real estate excluding the residence would pay total indebtedness." The court then concluded that Wursts had failed to prove a cause of action against the Bank for a breach of contract and dismissed Wursts' action. Throughout several assignments of error, Wursts contend, in substance, that the district court erred by disregarding the effect of paragraph 7 of the loan agreement, which stated: "[T]he proceeds from the sale of the York County real estate will be applied to and will pay the total indebtedness to The Blue River Bank, McCool Junction, Nebraska at the time of final settlement." Wursts argue that the phrase "will pay the total indebtedness" means that their payment to the Bank from the proceeds of the farmland sale operated to discharge their entire indebtedness to the Bank. Also, Wursts assert that each of them lacked the requisite mental capacity to comprehend their promissory notes executed in September 1982 and, further, contend that their extension promissory notes, executed in September 1982, are unsupported by consideration. AMBIGUITY IN LOAN AGREEMENT A court is not free to speculate about terms absent from a written contract. Craig v. Hastings State Bank, 221 Neb. 746, 380 N.W.2d 618 (1986). "Where the parties have clearly expressed an intent to accomplish a particular result, it is not the province of a court to rewrite a contract to reflect the court's view of a fair bargain." Id. at 750, 380 N.W.2d at 621. "Ambiguity exists in an instrument when a word, phrase, or provision in the instrument has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings." Knox v. Cook, 233 Neb. 387, 391, 446 N.W.2d 1, 4 (1989). See, also, Dammann v. Litty, 234 Neb. 664, 452 N.W.2d 522 (1990); In re Estate of Walker, 224 Neb. 812, 402 N.W.2d 251 (1987). "Whether a document is ambiguous is a question of law initially determined by a trial court." Knox v. Cook, supra, 233 Neb. at 391, 446 N.W.2d at 4. See, also, Dammann v. Litty, supra; First Nat. Bank in Mitchell v. Kurtz, 232 Neb. 254, 440 N.W.2d 432 (1989); Luschen Bldg. Assn. v. Fleming Cos., 226 Neb. 840, 415 N.W.2d 453 (1987). "Regarding a question of law, an appellate court has an obligation to reach a conclusion independent from a trial court's conclusion in a judgment under review." Huffman v. Huffman, 232 Neb. 742, 748, 441 N.W.2d 899, 904 (1989). See, also, Dammann v. Litty, supra; Boisen v. Petersen Flying Serv., 222 Neb. 239, 383 N.W.2d 29 (1986). We find, as a matter of law, that there is ambiguity in the language of paragraph 7 of the Wurst-Bank loan agreement, namely, "the proceeds from the sale of the [farmland] will be applied to and will pay the total indebtedness." On one hand, the language in question is susceptible to the reasonable interpretation that the Bank's receipt of proceeds from the sale of Wursts' land satisfied and discharged the entire Wurst indebtedness to the Bank. However, the indicated language in the loan agreement may also be reasonably interpreted to mean that the Bank's receipt of the sale proceeds constituted a payment on Wursts' debt and resulted in a credit on any unpaid balance of Wursts' indebtedness existing when the Bank received the sale proceeds. "When a court has determined that ambiguity exists in a document, an interpretative meaning for the ambiguous word, *670 phrase, or provision in the document is a question of fact for the fact finder." Dammann v. Litty, supra, 234 Neb. at 671, 452 N.W.2d at 527. See, also, First Nat. Bank in Mitchell v. Kurtz, supra; Lueder Constr. Co. v. Lincoln Electric Sys., 228 Neb. 707, 424 N.W.2d 126 (1988). "In attempting to ascertain the meaning of ambiguous terms of a contract, a court must determine the actual intent of the contracting parties, considering facts and circumstances which motivated each party to enter the contract, and the nature and subject matter of the contract." Frenzen v. Taylor, 232 Neb. 41, 48, 439 N.W.2d 473, 478 (1989). See, also, Lauritzen v. Davis, 214 Neb. 547, 335 N.W.2d 520 (1983); Lone Oak Farm Corp. v. Riverside Fertilizer, 229 Neb. 548, 428 N.W.2d 175 (1988). When construction of a contractual provision is necessary, a court may consider the conduct of the parties, performing their contract, to ascertain the parties' intent regarding their contract. As this court expressed in Municipal Energy Agency of Neb. v. City of Cambridge, 230 Neb. 61, 65-66, 430 N.W.2d 44, 47 (1988): An aid in interpreting contracts is the course of performance of the parties. In Smith v. Daub, 219 Neb. 698, 703, 365 N.W.2d 816, 820 (1985), we held that "in attempting to construe the meaning of a contract ... the interpretation given a contract by the parties themselves while engaged in the performance of it is one of the best indications of the true intent of the contract, and ordinarily such construction of the contract should be enforced." See, also, Lortscher v. Winchell, 178 Neb. 302, 133 N.W.2d 448 (1965). In Omaha P.P. Dist. v. Natkin & Co., 193 Neb. 518, 524-25, 227 N.W.2d 864, 868-69 (1975), this court held: "In the construction of questioned provisions in a contract, the rule has long been established in this jurisdiction that the interpretation given to a contract by the parties themselves while engaged in the performance of it is one of the best indications of the true intent of the contract. Ordinarily, such a construction of the contract should be enforced.... This is a rule of justice and equity, and we apply it herein...." See, also, Nowak v. Burke Energy Corp., 227 Neb. 463, 418 N.W.2d 236 (1988); Smith v. Daub, 219 Neb. 698, 365 N.W.2d 816 (1985); Lauritzen v. Davis, supra; DeFilipps v. Skinner, 211 Neb. 801, 320 N.W.2d 737 (1982). In interpreting a written contract, the meaning of which is in doubt and dispute, the court, in order to determine its meaning, will consider all the facts and circumstances leading up to and attending its execution, and will consider the relation of the parties, the nature and situation of the subject matter, and the apparent purpose of making the contract. Philp v. First Nat. Bank & Trust Co., 212 Neb. 791, 797, 326 N.W.2d 48, 52 (1982). See, also, Lone Oak Farm Corp. v. Riverside Fertilizer, supra. The district court made the factual determination that there was no agreement that the Bank's receipt of proceeds from the sale of Wursts' farmland constituted payment of Wursts' entire indebtedness to the Bank. Embodied in the foregoing conclusion is the district court's determination regarding "the actual intent of the contracting parties, considering facts and circumstances which motivated each party to enter the contract, and the nature and subject matter of the contract." See Frenzen v. Taylor, supra, 232 Neb. at 48, 439 N.W.2d at 478. In determining the meaning of paragraph 7 of the loan agreement, the district court undoubtedly considered the parties' interpretative conduct in relation to performance of the loan agreement. When the proceeds of the farmland sale were insufficient to satisfy the indebtedness reflected on the Bank's books, Wursts signed two promissory notes for the balance of the indebtedness—conduct which was inconsistent with the later assertion that proceeds from the farmland sale extinguished all their indebtedness to the Bank. The district court most likely concluded that if Wursts' indebtedness were to be extinguished by the farmland sale and the sale proceeds paid to the Bank, Wursts *671 would not have signed the promissory notes in September 1982. Thus, Wursts' extension promissory notes in September 1982, reflecting an unpaid debt of $33,796.95 to the Bank, presented a factual inconsistency concerning Wursts' assertion that the parties intended to extinguish Wursts' entire indebtedness as the result of the Bank's receipt of proceeds from the farmland sale in the preceding July. Moreover, Wursts' allowing the Bank to receive the proceeds from the truck sale arranged by the Bank and retain $35,056.24 out of the sale proceeds, without objection until almost 6 months after the sale and the disposition of sale proceeds, undermines Wursts' position that no indebtedness existed after the farmland sale. Given the ambiguity in the loan agreement, the district court's factual determination regarding the intended meaning of the loan agreement is not clearly erroneous. MENTAL CAPACITY Wursts assert that the district court erred in its finding that each of the Wursts had the requisite mental capacity to execute the extension notes of September 1982. [F]or want of mental capacity on the part of the person executing such instruments, the burden of proof is upon the party so asserting to establish that the mind of the person executing such instruments was so weak or unbalanced when the instruments were executed that he could not understand and comprehend the purport and effect of what he was doing. Dunbier v. Rafert, 170 Neb. 570, 589, 103 N.W.2d 814, 827 (1960). Therefore, one asserting lack of requisite mental capacity in relation to an instrument has the burden to prove such lack of mental capacity. As a factual determination, the district court concluded that Wursts failed to establish any deficiency in their mental capacity regarding the extension notes, a conclusion which is not clearly erroneous. CONSIDERATION Wursts' contention that their September 1982 promissory notes lacked consideration is without merit. Extension of time to pay a mature and valid debt is sufficient consideration to support a promise to pay the debt at the later date. Victoria Bank & Trust Co. v. Brady, 779 S.W.2d 893 (Tex.App.1989); Hammel v. Ziegler Financing Corp., 113 Wis.2d 73, 334 N.W.2d 913 (1983). See, also, Hasenauer v. Durbin, 216 Neb. 714, 346 N.W.2d 695 (1984) (contract consideration is sufficient if there is any detriment to the promisee or benefit to the promisor). As a result of the undisputed facts, we conclude, as a matter of law, that adequate consideration supported Wursts' extension notes of September 1982. Hence, the district court's decision concerning consideration is correct. We are unable to conclude that any finding by the district court is clearly erroneous. For that reason, the district court's judgment is affirmed. AFFIRMED.

CourtListenerOpinion

2024-06-11T07:23:54.772135

2013-10-30 08:36:19.420944+00

2207388

197 Md. 683 (1951) 79 A.2d 540 BILLMAN v. WARDEN OF MARYLAND PENITENTIARY [H.C. No. 24, October Term, 1950.] Court of Appeals of Maryland. Decided March 21, 1951. Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ. MARKELL, J., delivered the opinion of the Court. This is an application for leave to appeal from denial of a writ of habeas corpus. Petitioner is imprisoned under sentence for ten years for attempt to rape a ten-year old child. By the writ he seeks a new trial on the ground that he was convicted on perjured testimony of the child. He alleges with great particularity that some weeks after his conviction the child confessed, first to her mother, that her testimony was perjured, and was given at the instigation of a named person, not a state officer or employee. There is no charge that any state officer or employee had any part in procuring such perjury or at the time of the trial knew the testimony was perjured. At the trial petitioner was represented by counsel, who seems later to have collected evidence of the *684 alleged perjury. Hysler v. Florida, 315 U.S. 411, 316 U.S. 642, 62 S.Ct. 688, 86 L.Ed. 932; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791. A writ of habeas corpus cannot serve the purpose of a new trial. If petitioner's allegations are true, redress can be had only by application to the pardoning power. Keane v. State, 164 Md. 685, 166 A. 410. Application denied, with costs.

CourtListenerOpinion

2024-06-11T07:23:54.774797

2013-10-30 08:36:19.463919+00

2207389

454 N.W.2d 916 (1990) Donald SHETKA, et al., Respondents, v. KUEPPERS, KUEPPERS, VON FELDT AND SALMEN, a partnership, et al., Appellants, v. T. Jay SALMEN, et al., Respondents. No. C1-89-1671. Supreme Court of Minnesota. May 11, 1990. Richard J. Thomas, Geraghty, O'Loughlin & Kenney, P.A., St. Paul, for appellants. Anthony K. Berg, Salmen, Brinkman & Martinson, P.A., St. Paul, for T. Jay & Richard C. Salmen. *917 Richard H. Bend, Bend & Beckjord, P.A., St. Paul, for Donald Shetka, et al. Richard E. Berger, St. Paul, for respondents. Heard, considered and decided by the court en banc. KELLEY, Justice. Appellants are individual partners in the former law firm of Kueppers, Kueppers, Von Feldt and Salmen. The court of appeals by an order dated October 3, 1989, denied their petition for a writ of prohibition, which, if granted, would have restrained a Ramsey County district judge from enforcing an order requiring appellants to respond to discovery requests. The respondents sought to discover the amount of the personal assets of each appellant for use in assessing against each punitive damages for which each might be vicariously liable by virtue of alleged professional malpractice of one of the firm's former partners. We reverse, and order the issuance of a writ of prohibition. At all times material to this litigation, T. Jay Salmen was a partner in, and Richard J. Salmen was an associate of, the law partnership known as Kueppers, Kueppers, Von Feldt and Salmen. The other partners in the firm were these appellants: Fred A. Kueppers, Fred A. Kueppers, Jr., and C.E. Von Feldt. At all material times respondents Donald Shetka, William T. Shetka, and Richard R. Shetka were the sole shareholders and officers of George Shetka & Sons, Inc. In April 1981, when that corporation was experiencing financial difficulty, the Shetkas sought legal advice from T. Jay Salmen in regard to $180,000 of unsecured loans the shareholders had previously made to the corporation. T. Jay Salmen advised the Shetkas to document the indebtedness by the issuance of a corporate note secured by a mortgage. After that had been completed, he subsequently, in July, advised them to convey certain real property owned by the corporation to themselves as further security. In August, T. Jay Salmen recommended that the corporation file for voluntary chapter 11 bankruptcy protection to forestall foreclosure of certain liens on the corporate real estate. During the resulting bankruptcy proceedings, the attorney for the creditor's committee took the position that the corporate note, mortgage, and deed to the individual Shetkas constituted preferential transfers subject to being set aside unless the individual Shetkas subordinated their mortgage to the interests of the unsecured creditors. The Shetkas now claim their mortgage was executed under circumstances which would exclude it from the bankruptcy law's definition of a preferential transfer. In September 1987, the Shetkas commenced this legal malpractice action against the law firm, against the firm's individual partners, and against its associate, Richard C. Salmen. The third amended complaint alleges that T. Jay Salmen was negligent in his representation in a variety of ways. It claims he never advised the Shetkas of alternatives to bankruptcy for the corporation, or that the mortgage the corporation had given them could be set aside as a voidable preference, and that he induced them to sign away rights they had under that mortgage, and that he initially failed to disclose and later concealed from the bankruptcy court the existence of that mortgage. They also alleged that T. Jay Salmen, as well as the partnership, represented both the corporation and the shareholders in the bankruptcy proceeding, and that this joint representation was improper because of the conflict of interest between the shareholders and the corporation, and that T. Jay Salmen had concealed from them that conflict of interest. No assertion in the complaint, however, advances any claim other than that from the inception of the representation of the Shetkas and/or the corporation in April 1981, all of the Shetkas' contacts with the law partnership had been solely with and through T. Jay Salmen and with none of the other partners. The complaint itself clearly alleges that T. Jay Salmen was the only law firm partner who rendered respondents advice concerning personal or corporate matters during that period. Notwithstanding that *918 the relationship between the respondents Shetkas and the law firm had been confined to consultation with Salmen, respondents persuaded a Ramsey County district judge that they had presented sufficient prima facie evidence to justify the assertion of a claim for punitive damages against not only Salmen personally, but also against the law firm and its other partners who personally were not involved in representing the Shetkas. That judge then authorized respondents to serve a third amended complaint asserting the punitive damage claims. See Minn.Stat. § 549.191 (1988) (claim for punitive damages may not be asserted in a pleading absent a court order finding prima facie evidence to support the claim).[1] After the third amended complaint was served, respondents demanded discovery of personal financial information from each of the individual partners (appellants), ostensibly for the purpose of submitting that financial condition in evidence as an element of their punitive damage claim. See Minn.Stat. § 549.20, subd. 3 (1988). Appellants' application for a protective order to prevent such discovery was denied by the trial court, and, instead, she ordered them to respond. The court of appeals, as part of its order denying appellant's petition for a writ of prohibition, noted "[w]hether the financial information sought is discoverable where the claim for punitive damages is based on vicarious liability is an issue that should be determined by the Minnesota Supreme Court" and, accordingly, it specifically refrained from expressing its opinion as to the propriety of the trial court's action. Nonetheless, it declined to grant the writ. For the purposes of this appeal, appellants concede that if Salmen is found liable for punitive damages arising from services rendered to respondents within the scope of the partnership business, that they, as his co-partners, may by statute ultimately be vicariously liable for the punitive damage award. However, they contend, and we agree, that even if they may be vicariously liable for all or a portion of a punitive award, it does not follow that the financial condition of the individual nonparticipating partners is relevant to the jury's computation of the amount of the punitive damage award under Minn.Stat. § 549.20, subd. 3 (1988) (the statute enumerating factors relative to the establishment of the amount of a punitive damage award). Our consideration of Minn.Stat. §§ 323.01-323.43 (1988) (the Uniform Partnership Act), as *919 well as the public policy underlying Minn. Stat. § 549.20, subd. 3, leads us to the conclusion that for the purpose of determining the amount of a punitive damage award, the financial condition of a nonparticipating, nonculpable vicariously liable party is irrelevant, and, therefore, not discoverable. Although this court has not restricted discovery of information in a civil action to evidence admissible at trial, for nearly four decades we have required that information subject to discovery must, at least, be likely to lead to relevant admissible evidence. Minn.R.Civ.P. 26.02(a). Under Minn.Stat. § 549.20, subd. 3 (1988), the financial status of a defendant may be relevant to determine a punitive damage award if the defendant's conduct demonstrates "willful indifference to the rights or safety of others." Thus, assuming respondents are able to establish that threshold requirement, the financial condition of T. Jay Salmen would be either relevant or be likely to lead to relevant evidence. The issue presented us by this case, however, is whether the financial condition of the individual nonparticipating, nonculpable partners, whose liability for punitive damages is only vicarious, is discoverable. An act of a partner "apparently carrying on in the usual way the business of the partnership" usually binds the partnership. Minn.Stat. § 323.08 (1988). Thus, if a partner commits a wrongful act or omission while acting "in the ordinary course of the business of the partnership" the partnership is liable, for compensatory and apparently, as well, punitive damages. See Minn.Stat. § 323.12 (1988). It seems clear, therefore, that if Salmen committed wrongs while acting within the scope of the partnership's business which justify an award of punitive damages, the Kueppers law firm possibly might be liable. Moreover, because all partners are jointly and severally liable "for everything chargeable to the partnership" under Minn.Stat. §§ 323.12, 323.14 (1988), these appellants, although not directly liable for Salmen's alleged wrongful acts, are subject to statutory vicarious liability. Since enactment of the Uniform Partnership Act in 1921, partners are not considered to be the agents of each other; instead each partner is considered to be the agent of the partnership itself. See H. Reuschlien and W. Gregory, Handbook on the Law of Agency and Partnership 267 (1979). Thus, the Uniform Partnership Act technically changed the common law rule, which considered each partner to be the agent of his or her co-partners, to a statutory rule that instead makes the partnership the principal, with statutory respondent superior liability for any wrongful acts committed by a partner. Nonetheless, the nonacting partners, rather than being liable as principals, under the Uniform Partnership Act are ultimately liable by virtue of a statutorily created vicarious liability. See H. Reuschlien and W. Gregory, Handbook on the Law of Agency at 306; Levy v. First Penn. Bank, 338 Pa.Super. 73, 487 A.2d 857, 863 (1985). Understanding this technical alteration in the nature of the partner's liability, although normally not of great significance, is helpful to an analysis of the issue in this case. Heretofore, we have not been called upon to address the issue whether a claim of vicarious liability for punitive damages requires those exposed to such liability to reveal, before judgment, their personal financial condition. In this case the vicarious liability of appellants is defined by statute. But even in cases involving common law vicarious liability of partners, other jurisdictions which have addressed the issue have concluded, as we do, that when the liability is vicarious, the financial condition of the nonculpable defendant is not relevant to the determination of the punitive damage issue. See, e.g., Smith v. Courter, 575 S.W.2d 199 (Mo.App.1978), a medical malpractice action in which the plaintiff sued the individual medical partners for compensatory and punitive damages based on the negligent actions of an employee. The plaintiff sought punitive damages and wished to base that award on the finances of the individual partners. The court recognized that because liability of the partners for the acts of the employee is vicarious, plaintiffs should not be allowed *920 to base a punitive award on the net worth of the individual partners. Id. at 209.[2] In an analogous setting, a recent Wisconsin case likewise held that where a defendant's liability has been vicariously created by statute, the wealth of that defendant is not discoverable for the purpose of assessing punitive damages. Although not a case involving the statutory vicarious liability of partners under the U.P.A., Franz v. Brennnan, 150 Wis.2d 1, 440 N.W.2d 562 (1989), did involve a statutory vicarious liability for punitive damages which Wisconsin had placed on parents whose minor child had caused another's injuries by operation of a motor vehicle. There, as here, the plaintiffs contended that the personal finances of those vicariously liable (the parents) were relevant. In rejecting that assertion, the Wisconsin court ruled that since the underlying purpose of allowing a plaintiff in a punitive damage case to present the factfinder with evidence of the wealth of the defendant is to aid the jury in calculating an award which will both penalize and deter wrongdoing, punitive damages should not be based on the financial status of the statutorily vicarious liable parents because they were not the wrongdoers. Id. at 8, 440 N.W.2d at 566. In its ruling the court noted that punitive damages are "intended as a personal penalty for the actual wrongdoer, and its extension to others who were not themselves the actual perpetrators of the conduct should be limited." Id. (quoting Jacobson v. Superior Court, 154 Ariz. 430, 433, 743 P.2d 410, 413 (Ct.App.1987)). It seems to us that analysis is persuasive. A punitive damage award operates not to compensate an injured party, but rather to penalize or punish a wrongdoer and discourage him and others from engaging in similar future conduct. Melina v. Chaplin, 327 N.W.2d 19, 20 n. 1 (Minn.1982); Restatement (Second) of Torts § 908, comment a (1977). When such punishment is "exacted, it must be certain that the wrongdoer being punished because of his conduct actually caused the plaintiff's injuries." Collins v. Eli Lilly Co., 116 Wis.2d 166, 202, 342 N.W.2d 37, 54 (emphasis added), cert. denied sub nom. E.R. Squibb & Sons v. Collins, 469 U.S. 826, 105 S.Ct. 107, 83 L.Ed.2d 51 (1984). The Minnesota legislature has attempted to ensure that punitive damages are fairly and effectively assessed on an individual basis by factoring into the consideration of the amount of the award elements which include the degree of the defendant's culpability, the seriousness of the defendant's acts, effect on the public, and the wrongdoer's ability to pay. Minn.Stat. § 549.20, subd. 3 (1988). We agree with the Maryland court, "Punitive damages, in essence, represent a civil fine, and as such, should be imposed on an individual basis." Embrey v. Holly, 293 Md. 128, 142, 442 A.2d 966, 973 (1982). To prevent a plaintiff who asserts a claim for punitive damages from introducing the financial condition of nonculpable partners in no way frustrates his or her full recovery. Punitive damages are not compensatory. Eisert v. Greenberg Roofing & Sheet Metal Co., 314 N.W.2d 226, 228 (Minn.1982). In effect, they are a windfall to the plaintiff. Our concern is to assure that an award of punitive damages functions as intended — to punish and to deter wrongful conduct — not to extort exorbitant settlement awards. Even should we assume that Salmen did conduct business with willful indifference towards the rights of respondents, we fail to comprehend how imposition of punitive damages, computed by inclusion of the financial condition of the nonculpable partners, will either punish or deter Salmen or others in similar future conduct. As indicated earlier, if Salmen's activities in the course of the partnership business are of sufficient magnitude to justify an award of punitive damages, the obligation under the statute, by virtue of the doctrine *921 of respondent superior, becomes that of the partnership. Likewise, if the partnership is liable and unable to respond,[3] the nonculpable partners may be vicariously liable under the statute. However, were we to permit plaintiffs to factor in the assets of the nonacting, nonculpable partners who are only vicariously liable by virtue of the Uniform Partnership Act, any correlation between the amount of a punitive damage award and the conduct of the wrongdoer would become extremely tenuous, if not nonexistent. To limit the introduction of the financial condition to that of those who actively perpetrated the wrongful conduct, helps to ensure that any amount awarded as punitive damages relates to the culpability of the wrongdoer. That limitation precludes the introduction at trial of evidence of the financial state of the nonculpable partners. It follows, therefore, that discovery directed to ascertaining such information is not relevant nor, if furnished, would the information lead to relevant admissible evidence. Even so, respondents urge that we should not issue a writ of prohibition because only in exceptional cases will an appellate court interfere with the judicial discretion of a trial court. Undoubtedly, the trial judge has wide discretion to issue discovery orders and, absent clear abuse of that discretion, normally its order with respect thereto will not be disturbed. However, when a trial court orders production of nondiscoverable information, a writ of prohibition is the appropriate remedy so long as no other adequate remedy at law exists. Thermorama, Inc. v. Shiller, 271 Minn. 79, 83-84, 135 N.W.2d 43, 46 (1965). Discovery of an individual's personal financial situation is extremely personal, and a refusal to issue the writ would result in an intrusive invasion into this very private area. Any other remedy, such as post trial or appellate review, would be utterly inadequate to protect against that invasion. In conclusion, we reverse the order of the court of appeals, which refused to issue the writ, and order the issuance of a writ of prohibition preventing the Ramsey County District Court from compelling discovery of the financial condition of appellants.[4] NOTES [1] In the present proceeding, appellants do not directly challenge the district court's order authorizing the amendment of the complaint to include a claim for punitive damages against the law firm and against them individually as partners. However, to determine whether the personal financial condition of each partner is discoverable, as a preliminary matter we must ascertain against which party or parties the respondents have sustained the burden of presenting prima facie evidence justifying the amendment of the complaint. No dispute exists that respondents presented sufficient prima facie evidence to support a claim against T. Jay Salmen. In addition, respondents believe they have a prima facie claim against appellants, as partners of the law firm, because they may be vicariously liable for Salmen's actions or inactions. They also claim the firm itself, by failing to discover and warn them of Salmen's alleged conflict of interest, should be subject to punitive damages. Appellants counter that even if Salmen had a conflict of interest, respondents have utterly failed to present any evidence to support a conclusion that the firm's conduct was of such a nature to support a punitive damage claim. We agree with appellants. "Prima facie evidence" must support a claim that the firm acted with "willful indifference." Minn.Stat. §§ 549.191, 549.20, subd. 1 (1988). When presented with a motion to permit assertion of a punitive damage claim, the function of the trial court is to do more than "rubber stamp" the allegations in the motion papers. Rather, the judge must ascertain whether there exists prima facie evidence that the defendants acted with "willful indifference." Cf. Blumberg v. Palm, 238 Minn. 249, 253, 56 N.W.2d 412, 415 (1953). In this case, excluding the allegations relating to the vicarious liability of the partnership for Salmen's actions, the memorandum and affidavit in support of respondent's motion fell far short of presenting prima facie evidence that any action or inaction of the partnership rose to the level of "willful indifference." Indeed, it is doubtful that a claim justifying punitive damages against nonparticipating partners or the partnership could ever be supported by "prima facie evidence" of "willful" wrongdoing by the partnership and nonparticipating partners. Therefore, in this opinion, we limit our consideration to the consequences of potential vicarious liability to which each of the appellants may be exposed as a result of any of Salmen's wrongdoing that might constitute willful indifference. [2] Where, however, unlike either Smith v. Courter or this case, evidence exists to support a finding that the partners personally acted in a way to support a claim for punitive damages, discovery of the personal financial condition of those partners was allowed. See State ex rel. Hall v. Cook, 400 S.W.2d 39, 42 (Mo.1966). [3] The evidence suggest that the law firm partnership has been dissolved. [4] Of course, the financial condition of T. Jay Salmen is discoverable. Also it should be understood our decision only relates to prejudgment discovery of the financial condition of nonculpable partners. Obviously, their assets might be discoverable in ancillary efforts to collect any judgment against them for either compensatory or punitive damages assessed against the partnership.

CourtListenerOpinion

2024-06-11T07:23:54.779126

2013-10-30 08:36:19.468355+00

9736803

Murphy, J. After a jury trial, defendant was convicted and sentenced to a prison term of twenty to thirty years for armed robbery, MCL 750.529; MSA 28.797. Defendant appeals as of right. We reverse. Defendant’s conviction arose out of the armed robbery of a Clark service station on Waverly Road in Eaton County on December 26, 1986. Attached to the information charging defendant was a list of witnesses pursuant to MCL 767.40a; MSA 28.980(1). In addition to the investigating officers, only Dennis Zank, the clerk on duty during the robbery, and Ramiro Rodriguez, a customer present at the time, were named. On May 11, 1987, after the jury was sworn, but before defendant’s trial actually commenced, an evidentiary hearing was held to determine the propriety of the identification procedures used in the photographic lineups conducted before defendant’s arrest. While testifying during the hearing, Zank mentioned a third man who had been present at the robbery scene. The next day, pursuant to defense counsel’s request for CJI 5:2:14, now CJI2d 5.12, the missing witness instruction, the trial court conducted an evidentiary hearing to determine whether the prosecution had exercised due diligence in its attempt to identify all res gestae witnesses. At this hearing, Zank explained that the unidentified wit*290ness was a regular customer at the Clark station who came in approximately every other day to purchase cigarettes. Although he did not know the man’s name, Zank was able to describe the two vehicles regularly driven by the man. Zank also testified that he believed he had mentioned this witness’ presence to the investigating officer on the night of the robbery. Furthermore, he was certain that he had told Detective O’Donnell about this witness at the time of the photographic lineups. Following Zank’s testimony, the prosecutor conceded that the unidentified man was a res gestae witness. The trial court adjourned with the prosecutor’s assurance that an effort would be made to locate the missing witness. On May 13, 1987, a second hearing on the due diligence issue was held. At this time, both investigating office rs testified that neither Zank nor Rodriguez had mentioned the third witness on the night of the robbery. However, Detective O’Donnell agreed that Zank had informed him about the missing witness at the time of the second photographic lineup on January 19, 1987. The detective said he had asked Zank to get the witness’ name, address, and phone number the next time the man came into the store and to tell him that the police wanted to talk to him. At the next photographic lineup, Zank told O’Donnell that he was unable to acquire the information because the witness did not want to be involved. The detective then described his unsuccessful efforts to locate the missing witness following the previous day’s hearing. At the conclusion of the testimony, the trial court stated that it was unwilling to rule that there was a lack of due diligence by the investigating officers. However, this ruling appears to have been based more on the court’s reluctance to read the missing witness instruction, CJI 5:2:14, now *291CJI2d 5.12, than on the diligence of the officers’ efforts, which the trial court criticized. If the court determined that the prosecution exercised due diligence, then we believe the trial court’s findings were clearly erroneous. Under the present res gestae statute, MCL 767.40a; MSA 28.980(1) [§ 40a], the prosecutor has no affirmative duty to endorse and produce all res gestae witnesses. Consequently, there appears to be some question concerning whether the prosecution’s duty to exercise due diligence to locate and produce res gestae witnesses has survived amendment of the former res gestae statute, MCL 767.40; MSA 28.980. See and compare People v Gunnett, 182 Mich App 61; 451 NW2d 863 (1990), with People v Calhoun, 178 Mich App 517, 522; 444 NW2d 232 (1989). However, even under the traditional due diligence standard, the prosecution was only required to do "everything reasonable, not everything possible” to identify, locate, and produce res gestae witnesses. People v Cummings, 171 Mich App 577, 585; 430 NW2d 790 (1988). Under the present statute, a list of all known witnesses who might be called at trial and all res gestae witnesses known to the prosecutor or investigating law enforcement officers must be attached to the information. § 40a(l). Additionally, the prosecutor is charged with a continuing duty to disclose the identities of further res gestae witnesses as they become known and to provide reasonable assistance to locate witnesses upon request by the defendant. § 40a(2), (5). We conclude that the amended res gestae statute continues to impose a duty on the prosecution, and the investigating law enforcement officers to exercise due diligence in discovering the identities of res gestae witnesses. See Gunnett, supra, p 67. To hold otherwise ren*292ders meaningless their continuing duty to disclose known witnesses as set forth in the statute. It is clear that the prosecutor had no personal knowledge of the existence of this third eyewitness before Dennis Zank’s testimony at the evidentiary hearing on the morning scheduled for defendant’s trial. Furthermore, there is no question that the efforts made to locate the witness that afternoon were diligent and reasonable. Thus, the prosecution clearly provided the reasonable assistance to identify and locate required under §40a(5) once there was actual knowledge of the witness’ existence. However, this does not change the fact that Detective O’Donnell knew of the existence of this third witness as early as January 19, 1987. By mid-February, he also knew that Zank had been unable to ascertain the man’s identity. Nevertheless, the detective took no further action to locate the witness in the ensuing three months before defendant’s trial. We note that this Court has excused failure to locate a witness whose identity was unknown when the only lead uncovered on his identification was "that an employee of the store stated that he might recognize this customer upon seeing him again but that he did not know the customer’s identity or how to locate him.” People v Carter, 87 Mich App 778, 784-785; 276 NW2d 493 (1979). However, in the present case, Dennis Zank gave the investigating officer a great deal more information about the missing witness than a vague statement that "he might recognize” him. We also recognize that the officer was only required to do "everything reasonable, not everything possible” to identify, this witness. Cummings, supra, p 585. Nevertheless, regardless of whether a relaxed standard under MCL 767.40a; MSA *29328.980(1) or the "due diligence” standard is applied to this case, we do not believe that everything reasonable was done to identify and locate this witness. See Gunnett, supra. Indeed, as noted by the trial court, a simple request to Dennis Zank to obtain the witness’ license plate number could have led to his identification in the three months before defendant’s trial and the addition of his name to the statutorily required list of res gestae witnesses. Under both the present statute and the traditional standard, the investigating officer’s lack of diligence or reasonable effort must be imputed to the prosecution. See § 40a(2); People v Dye, 431 Mich 58, 77; 427 NW2d 501 (1988), cert den sub nom Michigan v Dye, — US —; 109 S Ct 541; 102 L Ed 2d 571 (1988). However, defendant is not automatically entitled to a new trial with the addition of the missing witness instruction because the trial court erroneously decided the due diligence issue. Therefore, we remand for an evidentiary hearing to determine whether defendant was prejudiced by the absence of this witness at trial. People v Pearson, 404 Mich 698, 723; 273 NW2d 856 (1979). Because defendant is presumed to have been prejudiced, the prosecutor has the burden to show that the failure to exercise due diligence, or reasonableness, in identifying this witness did not adversely affect defendant’s right to a fair trial. Id., p 725. The prosecutor may produce this missing witness or otherwise show that the missing testimony would not have assisted defendant, would have merely constituted cumulative evidence, that its absence was harmless error, or that the witness could not have been produced at trial even if he had been listed. In that event, defendant’s conviction should be affirmed. However, should the prosecutor fail to meet this burden, defendant is entitled to a new *294trial at which either the missing witness should be produced or CJI2d 5.12 should be read to the jury. Id., pp 725-726. Defendant also contends the trial court erroneously refused to suppress evidence of a precustodial photographic lineup which was conducted without counsel present to represent defendant, upon whom the investigation was clearly focused. In the period from January 19 to February 5, 1987, five different photographic displays were shown to Dennis Zank. Only the last of these, on February 5, contained defendant’s photograph. At that time, Zank identified defendant as the man who had robbed the Clark station. The next day, February 6, Detective O’Donnell showed a six-item photographic display containing defendant’s picture to Ramiro Rodriguez, who also identified defendant as the robber. Defendant was not represented by counsel at either photographic lineup containing his picture. Defendant contends that because he was the focus of the police investigation after Zank had positively identified him, he was entitled to be represented by counsel when the photographic display was shown to Rodriguez. In fact, at the Wade hearing, United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), Detective O’Donnell agreed that he had "focused” on defendant after Zank identified him. We agree with defendant’s contention that "focus” is the controlling test for a defendant’s right to counsel at a photographic identification procedure. However, the trial court made no determination concerning whether defendant was the focus of this particular investigation at the time of the February 6, 1987, photographic lineup. Assuming that the investigation was focused upon defendant, there has been no ruling as to whether there was *295an independent basis for the in-court identification by Mr. Rodriguez. Subject to certain exceptions of necessity, identification by photograph shall not be used when an accused is in custody. People v Anderson, 389 Mich 155, 186-187; 205 NW2d 461 (1973). When there is a legitimate reason to use a photographic identification procedure, the defendant has the right to counsel. Id. It is the "fact of custody” which requires implementation of this rule, which applies even when the defendant is in custody for a different crime in a different place. People v Anderson, 391 Mich 419, 422; 216 NW2d 780 (1974). However, our Supreme Court has declined to extend the rule requiring presence of counsel to the "pre-custody, pre-questioning, mere suspicion phase” of an investigation. People v Lee, 391 Mich 618, 625; 218 NW2d 655 (1974). When a defendant is not in custody, but is the focus of an investigation, counsel must be present when the purpose of the photographic identification procedure is to build a case against the defendant by eliciting identification evidence, not to extinguish the case against an innocent bystander. People v Kachar, 400 Mich 78, 89; 252 NW2d 807 (1977), quoting People v Cotton, 38 Mich App 763, 769-770; 197 NW2d 90 (1972). Although Kachar is not binding precedent because the controlling opinion was signed by only two justices, the "focus” test has been consistently applied in subsequent opinions by this Court. People v Johnson (On Remand), 180 Mich App 423, 424-427; 447 NW2d 800 (1989), and cases cited therein; People v McFadden, 159 Mich App 796, 798-799; 407 NW2d 78 (1987), and cases cited therein. Therefore, we conclude that the trial court erred by rejecting "focus” as the test for whether defendant was *296entitled to the presence of counsel at the February 6, 1987, photographic identification procedure. Consequently, upon remand, we direct the trial court to also conduct a hearing to determine whether the focus of the police investigation was, in fact, upon defendant after Dennis Zank identified him on February 5, 1987. If the trial court determines that the investigation was not focused upon defendant, evidence concerning the photographic lineup identification by witness Rodriguez need not be suppressed. On the other hand, if suppression of this evidence is necessary because the investigation was focused upon defendant, the trial court must also determine whether there was an independent basis for Rodriguez’s in-court identification of defendant. Kachar, supra. If the trial court finds an independent basis, defendant’s conviction is affirmed. If not, defendant is entitled to a new trial. Regarding defendant’s claim that he was denied a fair trial by the prosecutor’s improper remarks during closing argument, we have reviewed the arguments in the context of the record and find no such impropriety. People v Burnett, 166 Mich App 741, 754; 421 NW2d 278 (1988). Furthermore, defendant failed to object during closing argument; therefore, appellate review of the allegedly improper remarks is precluded because any prejudicial effect could have been cured by an appropriate instruction. People v Hubbard, 159 Mich App 321, 327; 406 NW2d 287 (1987). We also conclude, after review of the record, that the prosecution produced sufficient evidence that defendant was armed at the time of the robbery. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), reh den 407 Mich 1164 (1980), cert den sub nom Michigan v Hampton, 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980). It was *297not necessary for defendant to display a weapon. The manner in which defendant concealed his hand simulated a gun and led Dennis Zank to believe that defendant had a gun in his pocket. This was sufficient evidence to satisfy the "armed” element of armed robbery, MCL 750.529; MSA 28.797. People v Burden, 141 Mich App 160, 165; 366 NW2d 23 (1985); People v Tullie, 141 Mich App 156, 157; 366 NW2d 224 (1985). In summary, the trial court’s findings that the prosecution exercised due diligence in attempting to identify and list all known res gestae witnesses in compliance with MCL 767.40a; MSA 28.980(1) is reversed. We also reverse the trial court’s ruling that "focus” is not the test for defendant’s right to counsel at a prearrest photographic identification procedure. This case is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Affirmed in part, reversed in part, and remanded. Brennan, P.J., concurred.

CourtListenerOpinion

2024-06-11T07:23:54.783158

2023-08-26 19:07:00.588918+00

9736804

Cavanagh, J. (concurring in part and dissenting in part). I agree with the majority that there was sufficient evidence to convict defendant of armed robbery and that comments made by the prosecutor did not deny defendant a fair trial. I also agree with the need for a postremand hearing to determine whether the defendant was prejudiced by the prosecution’s failure to identify and list a res gestae witness. Although the due diligence obligation to produce res gestae witnesses is in dispute, the prosecutor under the present statute is required to list all known res gestae witnesses. On this basis, I agree that an evidentiary hearing is appropriate. *298However, I am not prepared at this time to adopt the "focus” test to determine whether defendant was entitled to counsel’s presence at the photographic displays conducted by the police. I am not convinced that the clear language rejecting this test from the unanimously decided case of People v Lee, 391 Mich 618, 625; 218 NW2d 655 (1974), has been disturbed by People v Kachar, 400 Mich 78; 252 NW2d 807 (1977). Consequently, I would not order an evidentiary hearing on the "focus” issue, finding nothing improper with the photographic displays conducted by the police.

CourtListenerOpinion

2024-06-11T07:23:54.784626

2023-08-26 19:07:00.593984+00

2207406

183 Mich. App. 163 (1990) 454 N.W.2d 419 PEOPLE v. YARBROUGH Docket No. 109421. Michigan Court of Appeals. Decided April 3, 1990. Frank J. Kelley, Attorney General, John D. *164 O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training and Appeals, and Lori Dawson, Assistant Prosecuting Attorney, for the people. Clarence B. Tucker, for defendant on appeal. Before: REILLY, P.J., and GILLIS and CYNAR, JJ. PER CURIAM. Following a bench trial, defendant was convicted of two counts of felonious assault, MCL 750.82; MSA 28.277, and one count of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to concurrent terms of six months to four years of imprisonment for felonious assault. That sentence was to be served consecutively to defendant's mandatory two-year sentence for felony-firearm. We granted defendant's application for leave to file a delayed appeal. We affirm. Defendant claims that the trial court erred when it allowed the prosecutor to ask a defense witness if the witness had charges pending against him which arose out of the same incident. The court overruled defendant's objection to the question. Defendant relies on the following language contained in People v Falkner, 389 Mich 682, 695; 209 NW2d 193 (1973), to support his claim: We hold that in the examination or cross-examination of any witness, no inquiry may be made regarding prior arrests or charges against such witness which did not result in conviction.... Having reviewed Falkner, we believe that this language is overly broad and, instead, the general *165 rule more appropriately stated is that evidence of arrests not resulting in convictions is inadmissible to impeach the credibility of a witness. Nonetheless, we believe that an exception to that rule exists where, as here, the evidence is being offered to show the witness' interest in the matter, his bias or prejudice, or his motive to testify falsely because that witness has charges pending against him which arose out of the same incident for which defendant is on trial. United States v Musgrave, 483 F2d 327, 338 (CA 5, 1973), cert den 414 US 1023; 94 S Ct 447; 38 L Ed 2d 315 (1973); State v Ciulla, 115 RI 558; 351 A2d 580 (1976). See also Anno: Right to impeach witness in criminal case by inquiry or evidence as to witness' criminal activity for which witness was arrested or charged, but not convicted — modern state cases, 28 ALR4th 505. Hence, we believe that the question was proper and that in this bench trial the judge properly used this testimony. Defendant also claims that the prosecutor improperly cross-examined him concerning a prior arrest which did not result in conviction. We note that this issue is not preserved for appeal because it was not raised in defendant's statement of the issue presented. In any event, defense counsel asked defendant on direct examination if he had ever been charged with a criminal offense as an adult or juvenile. Defendant denied being so charged. On cross-examination the prosecutor asked defendant if he had been charged with unarmed robbery. Defense counsel did not object and defendant answered the prosecutor's question negatively. We fail to see how reversal is required under these facts. Affirmed.

CourtListenerOpinion

2024-06-11T07:23:54.786941

2013-10-30 08:36:19.614962+00

9736805

Marbury, C. J., delivered the opinion of the Court. The question in this case is whether a child, suffering prenatal injuries inflicted through the negligence of others, can bring a suit against such others for its damages. Appellant here, an infant, by his father and next friend, alleged in his declaration that his mother was riding in an automobile operated by one of the defendants, and *419that this automobile was struck by another, operated by the other defendant. As a result, the appellant, then en ventre sa mere, was prematurely born and is now suffering with permanent injuries causing him to lose the sight of both of his eyes. He claims the drivers of both automobiles caused his injuries by their negligence, and asks for damages against them. Demurrers were filed by both defendants. These demurrers were sustained by the trial court, without leave to amend, and judgment was entered in favor of both defendants for costs. From this judgment the plaintiff appeals. In the Seventh Part of the Reports of Sir Edward Coke, published in 1738, there is contained at folio 7 the Earl of Bedford’s case, Michaelmas Term (1586), 28 and 29 Elizabeth. The Earl had died, leaving two granddaughters, both of whom were under age, and the questions involved were very technical matters involving the right of the King to void certain leases of the Earl’s land during the time the granddaughters were in ward. In the course of the report and discussion of the case, Lord Coke made many illustrative statements, one of which was: “* * * if Tenant in Tail makes a Lease for 30 or 40 Years, rendering Rent, which is avoidable by the Issue in Tail, and afterwards Tenant in Tail dies without Issue, his Wife with Child with a Son, by which the Donor enters, and as to him avoids the Lease, and afterwards the Son is born, the Lessee re-enters, the Son at his full Age may by Acceptance of the Rent affirm the Lease”. Then follows: “And altho’ films in útero matris, est pars vicerum matris, (vide 3 Ass. pl. 2, 22 Ass. pl. 94. 22 Edwardi tertii Corone 180. Stamford 21.) yet the Law in many Cases hath Consideration of him in Respect to the apparent Expectat. of his Birth.” This seems to have been the earliest statement on the subject found in the English reports. In Blacksone’s Commentaries (1765), Book 1, Chapter 1, pp. 129, 130, is found the following: “Life is the immediate gift of God, a right inherent *420by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion or otherwise, killeth it in her womb; or if anyone beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offence in quite so atrocious a light, but merely as a heinous misdemeanor. “An infant in ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copy-hold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.” In the case of Wallis v. Hodson, reported in 2 Atkyn’s Chancery Reports 114, an infant sued for the estate of her grandfather. He died in 1724 leaving an only son who died within a week after his father, leaving a widow. The plaintiff, who was the daughter of the son, was unborn at that time, but was born about five months later. Lord Hardwicke said: “The principal reason I go upon in the question is, that the plaintiff was in ventre sa mere at the time of her brother’s death, and consequently a person in rerum natura, so that both by the rules of the common and civil law, she was, to all intents and purposes,' a child, as much as if born in the father’s lifetime. “First, As to the common law, there is the trite case of an infant in ventre sa mere being vouched in a common recovery; a mother also may justify the detaining of charters on behalf of it; a devise to him is good, by the opinion of Treby and Powell, in Scatterwood and Edge, 1 Salk 229, a bill may be brought in his behalf, and this court will grant an injunction in his favour to stay waste, 2 Vern. 710. Musgrave versus Parry et al’. *421“Secondly, As bo the civil law, nothing is more clear, than that this law considered a child in the mother’s womb absolutely born, to all intents and purposes, for the child’s benefit. “The last passage in the Digest is more explicit than any other; but then it makes a difference between a child in ventre sa mere in esse at the father’s death, and only conceived,, the latter is not considered as having any relation to the intestate, being, according to a term made use of there, not animax.” In the case of Thellusson v. Woodford, (1798-1799) 4 Vesey, Jr. 227, there are pages of discussion by counsel and the justices of the rights of an unborn child to take under a will. Justice Buller said: “The next objection is, that, supposing, he meant a child en ventre sa mere, and had expressly said so, yet the limitation is void. Such a child has been considered as an non-entity. Let us see, what this non-entity can do. He may be vouched in a recovery, though it is for the purpose of making him answer over in value. He may be an executor. He may take under the Statute of Distributions. He may take by devise. He may be entitled under a charge for raising portions. He may have an injunction; and he may have a guardian. Some other cases put this beyond all doubt. * * * “In Doe v. Clarke, the words ‘that whereever such consideration would be for his benefit, a child en ventre sa mere shall be considered as absolutely born’ were used by me, because I found them in the Book, from whence the passage was taken. But there is no reason for so confining the rule. Why should not children en ventre sa mere be considered generally as in existence? They are entitled to all the privileges of other persons.” Then, after discussion of the earlier cases, he said: “The Court have gone farther. They have held, that a child en ventre sa mere is to be considered as in being. It is immaterial, therefore, whether he is born, or not.” *422Other cases which decided that an unborn child may inherit are Doe dem. Clarke v. Clarke (1795), 2 Blackstone 399, and Trower v. Butts (1823), I Simons & Stuart 181. In the case of The George and Richard, L. R. III, Admiralty and Ecclesiastical 466, decided in 1871, an unborn child was held entitled to share in the damage caused by a collision between two ships, and its proctor had a right to a claim, although, until the child was born, a reference could not be made. Sir Robert Phillimore, who delivered the opinion, in discussing the matter, said: “It has been argued, that the peculiar language of Lord Campbell’s Act requires the actual existence of the claimant as a condition precedent to a right of action. I am not of this opinion. Although, as has been said, twenty-five years have passed since Lord Campbell’s Act, and this particular question has not arisen for decision, it seems to have been considered in one case as within the purview of this statute.” The case cited was Blake v. Midland Railway Co., 18 Q. B. 93, 109. The admiralty case, and the cases involving the construction of wills and the rights of inheritance are largely based upon the civil law which was administered in the Ecclesiastical courts. Lord Hardwicke’s statement in Wallis v. Hodson, supra, covers both the civil and common law; but that was a case under the Statute of Distributions. The history of that statute shows that its main object was to make the jurisdiction of the Ecclesiastical courts more extensive than was allowed by the common law. Villar v. Gilbey, L. R. (1907) A. C. 139, 149. There does not seem to have been any case either in England or in America which passed upon the right of an unborn child to recover damages for a tort until the case of Dietrich v. Inhabitants of Northampton, 138 Mass. 14, decided in 1884. The opinion in that case was written by Justice Oliver Wendell Holmes, then sitting on the Supreme Judicial Court of Massachusetts. The case was a suit by the administrator of a child, which was born prematurely as a result of the fall of its mother *423on a highway of the town of Northampton. The child was not directly injured, but the shock to its mother caused the premature birth and it was unable to survive, although it lived for ten or fifteen minutes after birth. Suit was brought under a statute imposing liability on the township. Justice Holmes cited the rule of criminal liability laid down by Lord Coke, although he expressed some doubt that this represented the common law, and then said: “For, even if Lord Coke’s statement were the law of this Commonwealth, the question would remain whether the analogy could be relied on for determining the rule of civil liability. Some ancient books seem to have allowed the mother an appeal for the loss of her child by a trespass upon her person. Abbrev. Plac. 26, col. 2 (2 Joh.) Lincoln rot. 3. Fleta, I. c. 35, § 3, and Sir Samuel Clarke’s note, citing 45 H. III, rot. 22. Which again others denied. 1 Britton, (Nichols’s ed.) 114, See Abbrev. Plac. 295, col. 2 (29 Ed. I.) Norht. rot. 43. Kelham’s Britton, 152, n. 14.” Then, after some further discussion, he concluded: “Taking all the foregoing considerations into account, and further, that, as the unborn child was a part of the mother at the time of the injury, any damage to it which was not too remote to be recovered for at all was recoverable by her, we think it clear that the statute sued upon does not embrace the plaintiff’s intestate within its meaning * * *”. It will be noted that, while Justice Holmes cites no case, his decision is based upon the same theory stated by Lord Coke in the Earl of Bedford’s case, namely, that until birth, the child is a part of the mother. Within a few years of Justice Holmes’ decision, a case •was decided in the Irish courts, Walker v. Great Northern Railway, (1891) 28 L. R. Ireland 69. In that case, the mother of the unborn child was a passenger on the defendant’s railway, and it was claimed that by negligence of the railway company, the child was permanently injured, crippled and deformed. After her birth, the suit was brought, and a demurrer was filed. Opinions were filed by four justices, all of whom discussed the *424question, and sustained the demurrer. The ground for the decision, however, was not that the unborn child was a part of its mother, which, as we have shown, was the basis of Justice Holmes’ decision. The Irish justices all based their decision upon the point that it was not a case of trespass, but was a case of breach of duty of the carrier to its passengers. The passenger was the mother, and not the child; the carrier knew nothing about the child, and, in so far as the carrier was concerned, it was a nonentity and no present duty to it could be inferred. Chief Justice O’Brien, in his opinion, quoted from Thellusson v. Woodford, Wallis v. Hodson, Doe v. Clarke, and The George and Richard, supra, and then specifically declined to decide that a person could not be held for a tort willfully committed on an unborn child, but based his decision on the ground already indicated. He said: “Now these are substantially the authorities referred to on behalf of the plaintiff; and having regard to these authorities, I wish it to be clearly understood that in deciding this case I do not intend to go this length, viz. that if a person knowing that a woman is enceinte wilfully inflicts injuries on her with a view to injuring the child, and the child is born a cripple, or after its birth becomes a cripple, owing to the injuries so wilfully inflicted, an action does not lie at the suit of the child so crippled. I am far from saying that such action would lie under such circumstances at the suit of the child when born; but before I would hold an action under such circumstances did not lie, I would desire to hear further discussion as to the limitations of the rule that a child in útero is considered as actually born when it is necessary for the benefit of such unborn child so to consider it. “I would like to have it further discussed whether that rule is limited to taking benefits by succession and bequest, or whether it would apply to a case where the child has been so wilfully injured in the womb that it is born a cripple, or becomes one after its birth, and is thereby permanently deprived of the ability to earn *425a livelihood. In the case I put, it would be manifestly for the benefit of the child that it should be considered as born at the time the injuries were inflicted, and that an action could be maintained.” In Allaire v. St. Luke’s Hospital, 1900, 184 Ill. 359, 56 N. E. 638, 640, 48 L. R. A. 225, the expectant mother of the plaintiff had gone to a hospital for the purpose of delivery of her child. Four days before the child was Dorn, the hospital elevator, in which she was a passenger, got out of control and not only injured her, but injured the child so that when he was born, his left limb, left side, and left hand were wasted and shortened, and he was crippled for life. The mother settled her case against the hospital for damages, but the child brought suit and a demurrer to his declaration was sustained. The court, in a per euriam opinion, discussed Dietrich v. Inhabitants of Northampton, supra, and Walker v. Railway Co., supra, and said: “That a child before birth is, in fact, a part of the mother, and is only severed from her at birth, cannot, we think, be successfully disputed. The doctrine of the civil law and the essclesiastical and admiralty courts, therefore, that an unborn child may be regarded as in esse for some purposes, when for its benefit, is a mere legal fiction, which, so far as we have been able to discover, has not been indulged in by the courts of common law to the extent of allowing an action by an infant for injuries occasioned before its birth.” Justice Boggs wrote a dissenting opinion which is one of the ablest on record on the plaintiff’s side of the case. He started by conceding that there was no similar case at common law, but quoted Lord Mansfield and Cooley on Torts to the effect that the growth of the common law is the application of general principles to new sets of facts. He said: “A foetus in the womb of the mother may well be regarded as but a part of the bowels of the mother during a portion of the period of gestation; but if, while in the womb, it reaches that prenatal age of viability when the destruction of the life of the mother does not neces*426sarily end its existence also, and when, if separated prematurely, and by artificial means, from the mother, it would be so far a matured human being as that it would live and grow, mentally and physically, as other children generally, it is but to deny a palpable fact to argue there is but one life, and that the life of the mother. Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that, though within the body of the mother, it is not merely a part of her body, for her body may die in all of its parts and the child remain alive, and capable of maintaining life, when separated from the dead body of the mother. If at that period a child so advanced is injured in its limbs or members, and is born into the living world suffering from the effects of the injury, is it not sacrificing truth to a mere theoretical abstraction to say the injury was not to the child, but wholly to the mother? * * * “If, in the contemplation of the common law, life beings as soon as the infant is able to stir in the mother’s womb, and that an injury inflicted upon an infant while in the womb of the mother shall be deemed murder if the infant survive the wound during prenatal life, but succumbs to it, and dies from it after being born, and if every legitimate infant in ventre sa mere is to be deemed as born for all purposes beneficial to the child, why should it be supposed the common law would have denied to an infant born alive the right to recover damages for the injury inflicted upon it while in the womb of the mother? Had such injury, though inflicted on the child while in the mother’s womb, been sufficient to cause the death of the infant after it had been bom alive, the common law would have regarded the injury as having been inflicted upon a human being, and punished the perpetrator accordingly; and, that being true, why should the infant which survives be denied the right to recover damages occasioned by the same injury?” *427Justice Boggs then concluded: “The law should, it seems to me, be that whenever a child in útero is so far advanced in prenatal age as that, should parturition by natural or artificial means occur at such age, such child could and would live separable from the mother, and grow into the ordinary activities of life, and is afterwards born, and becomes a living human being, such child has a right of action for any injuries wantonly or negligently inflicted upon his or her person at such age of viability, though then in the womb of the mother.” In 1901, the Supreme Court of Rhode Island had before it a case brought by the father and next-of-kin of a child which was injured before birth by the fall of plaster in a tenement rented by the plaintiff from the defendant. The child was prematurely born, and shortly afterward died. The action was brought under the state statute which was patterned after Lord Campbell’s Act. The earlier cases were discussed, and the court said in its opinion: “one cannot maintain an action for injuries received by him while in his mother’s womb; and consequently his next of kin, under the statute after his death, cannot maintain an action therefor”. Gorman v. Budlong, 23 R. 1. 169, 49 A. 704, 707, 55 L. R. A. 118. In Nugent v. Brooklyn Heights Railroad Co., 154 App. Div. 667, 139 N. Y. S. 367, 368, decided in 1913 by the Appellate Division of the Supreme Court of New York, a child was injured thirty-six days before his birth by the negligent starting of a car. He was deformed, and the court said that even if the mother might recover for her mental pain, the mental pain the child would suffer, and the deformity, could not be included in her recovery, and the father, if he could recover at all, could do so only so far as the injury enlarged the expense of the child’s maintenance and entailed loss of service. The court then said: “So, however the subject be viewed, there is a residuum of injury for which compensation cannot be had save at the suit of the child, and it is a question of grave import whether one may wrongfully deform or otherwise injure an unborn child without mak*428ing amends to him after birth.” The earlier cases were discussed, particularly Walker v. Great Northern Railway, supra, and the court decided the case on the ground that the carrier owed no duty to the unborn child, as it was not a passenger. The carrier was held to be liable only for those who visibly offer themselves for carriage, and the recovery was denied. While the court noted the Dietrich and Allaire cases, it decided the case on the same ground as the decision in the Walker case. It may here be appropriately stated, however, that in a later case decided in the New York Court of Appeals in 1921, Drobner v. Peters, 232 N. Y. 220, 133 N. E. 567, 568, 20 A. L. R., 1503, the plaintiff’s mother, while carrying him, fell into a coal hole in a sidewalk. Plaintiff was born eleven days later, and brought an action for damages. The court posed the question before it in the following words: “Does the present case permit the establishment by judicial decision of the rule that the innocent infant need not bear unrequited the consequences of another’s fault? In the mother’s womb he had no separate existence of his own. When born he became a person. He carried the injuries out into the world with him. His full rights as a human being sprang into existence with his birth. No longer may it be urged that the mother alone is injured. The presence of the injured child refutes that theory. Did he succeed to his mother’s rights?” and then answered it: “May this court attach an unnatural meaning to simple words and hold independently of statute that a cause of action for prenatal injuries is reserved to the child until the moment of its birth and then accrues ? The formulation of such a principle of legal liability against precedent and practice may be a tempting task to which sympathy and natural justice point the way, but I cannot bring myself to the conclusion that plaintiff has a cause of action at common law. The injuries were, when inflicted, injuries to the mother. No liability can arise therefrom except out of a duty disregarded, and defendant owed no duty of care to the unborn child in the present case apart from the duty to *429avoid injuring the mother.” In that decision, six justices concurred, but Judge Cardozo dissented, although, unfortunately, he did not file an opinion. In 1913, the Supreme Court of Missouri decided a case in which, in September, the mother of a child was a passenger on a street railway. When she was leaving, the car was negligently put in motion, throwing her to the ground, and injuring the arm and body of her unborn child. The child was born in December and died, allegedly from his injury, the following July. A suit was brought by the father and mother. This was Buel v. United Railway Co., 248 Mo. 126, 154 S. W. 71, 45 L. R. A., N. S., 625. The case was brought under a statute which gave right of action to a father and mother for the death of a child, a variation of Lord Campbell’s Act. The court held that in the case of a child injured before birth, no right of action accrued to it after birth by common law, and there was no prior right to sue which the statute could take hold of and cause to survive the death of the person injured. In 1916, the Supreme Court of Wisconsin had before it the case of Lipps v. Milwaukee Electric Ry. & Light Co., 164 Wisc. 272, 159 N. W. 916, 917, L. R. A. 1917B, 334. This was an action by a guardian ad litem to recover damages for personal injuries sustained in defendant’s car by plaintiff while a foetus en ventre sa mere at the age of about five months and before she could be born viable. It was claimed that she suffered from epileptic fits as a direct result of the prenatal injuries. The court discussed the preceding cases, but based its decision on the fact that the child at the time it was injured could not have been born viable, saying: “We go no further than the facts of the case require, and hold that no cause of action accrues to an infant enventre sa mere for injuries received before it could be born viable. “Very cogent reason may be urged for a contrary rule where the infant is viable, and especially so in cases where the defendant, being a doctor or midwife, has *430negligently injured an unborn child. As to such cases we express no opinion.” The Court of Appeals of Louisiana in 1928 decided the case of Cooper v. Blanck, 39 So. 2d 352, in which the parents of a child which had died after a premature birth caused by a prenatal injury when plaster fell upon its mother, sued the landlord of the premises. The court decided the case in favor of the plaintiffs under the provisions of the civil law which it stated was the basis of the Louisiana jurisprudence. In the case of Stanford v. St. Louis-San Francisco RR. Co., 1926, 214 Ala. 611, 108 So. 566, which was a suit by the personal representatives of an infant dying as a result of prenatal injuries wrongfully received, the court, on the strength of the cases we have previously discussed, denied the right of the representatives of the child to bring the suit, stating: “The authorities, however, are unanimous in holding that a prenatal injury affords no basis for an action in damages, in favor either of the child or its personal representative.” The Supreme Court of Canada had a case before it in 1933, Montreal Tramways v. Leveille, 4 D. L. R. 337, in which the mother of the child was thrown from the car to the street and injured. Two months later the child was born with club feet which, it was claimed, was the result of the injury. A judgment was obtained, and affirmed by the Court of King’s Bench, and then appealed. The case was determined by the civil law of Quebec. The court cited some of the English cases and the American cases which we have heretofore discussed, and said that it must be admitted that the great weight of judicial opinion in the common law courts denies the right of a child to maintain an action for prenatal injuries. Under the civil law, however, the court held that the wrongful act of the company produced its damage on the birth of the child, and the right of action was then complete, and recovery was based, not upon the ground that the company failed to perform its contract of carriage with the mother, but on the ground that it committed an indepen*431dent tort against the child. The appeal, therefore, was dismissed. The Texas Supreme Court decided in 1935 the case of Magnolia Coca Cola B. Co. v. Jordan, 124 Texas 347, 78 S. W. 2d 944, 97 A. L. R. 1513. This was an automobile accident in which the mother was injured and caused to give premature birth to twin babies who died as a result of their injuries after living nineteen days. The court held that no action could be maintained by parents on account of the death of a child, unless the child could maintain such action after its birth, which it denied. In 1937 the Supreme Court of Michigan decided the case of Newman v. City of Detroit, 281 Mich. 60, 274 N. W. 710, 711. The mother in that case was a passenger on a streetcar. The injury occurred twenty-two days prior to birth, and the child died three months after birth. The court held the overwhelming weight of authority opposed the right to bring the action and denied it. In answer to the arguments that where there is a wrong, there should be a remedy, and that the question of causation is a matter of proof as in other actions for negligence, the court said: “These arguments may well be addressed to the legislature.” The Supreme Court of Pennsylvania had before it in 1940 the case of Berlin v. J. C. Penney Co., 339 Pa. 547, 16 A. 2d 28, and held that in the absence of statute, no cause of action for prenatal injury to a child accrues at birth. This case overruled without mentioning it an earlier case in a Pennsylvania trial court which had decided otherwise. Kine v. Zuckerman, 4 Pa. Dist. & Co. R. 227. The case of Scott v. McPheeters, 33 Cal. App. 2d 629, 92 P. 2d 678, 679, 93 P. 2d 562, was decided in 1939 by the District Court of Appeals of California. That was an action for damages against a physician for negligent use of clamps and forceps incident to the delivery of a child, resulting in injuries to the brain cells and spine. The suit was brought by the mother, as guardian, for these injuries sustained prior to its birth. The child at the time of the suit was eleven years old. *432The court allowed the suit on the basis of a statute which provided: “A child conceived, but not yet born, is to be deemed an existing person, so far as it may be necessary for its interests in the event of its subsequent birth.” Also in 1939, a similar question came before the appellate court of Illinois in Smith v. Luckhardt, 299 Ill. App. 100, 19 N. E. 2d 446, 450. That case was brought thirteen years after the birth of a child, against physicians who were claimed to have negligently treated the mother by X-ray treatments over a period of four months, and until the child was seven months mature. These treatments were claimed to have damaged the child to such an extent that she was born a permanent cripple and feeble-minded. The court discussed the matter at some length, citing authorities and the contentions made on behalf of the child. It denied it the right to maintain the action, stating: “Appellee further contends that where there is a wrong, there should be a remedy, and claims that the question of causation is a matter of proof, the same as in other actions for negligence. These arguments may well be addressed to the legislature.” In the New Jersey case of Stemmer v. Kline, 1942, 128 N. J. L. 455, 26 A. 2d 489, 684, 686 which was a suit for malpractice against a physician by a child which was then six years old, incapable of speech or action, and without sight or hearing, it was contended that this condition was brought about by improper treatment before birth. The court said that it concluded that there was no right of action at common law, and no statute in New Jersey, and therefore there should be a judgment for defendant. Ten judges were for reversal which favored defendant, and five for affirmance, the later including the chief justice. Concurring and dissenting opinions are found commencing on page 684 of 26 A. 2d. Chief Justice Brogan who dissented said that it was no answer to say that there was no remedy because the cause of action was not' written down in the common law in precise terms. He concluded that *433the right of action was implicit in the common law unless it was admitted that the law had no remedy for a grevious wrong. He said Dietrich v. Inhabitants of Northampton, supra, was based upon a premise which was not true as a matter of elementary physiology: “While it is a fact that there is a close dependence by the unborn child on the organism of the mother, it is not disputed today that the mother and the child are two separate and distinct entities; that the unborn child has its own system of circulation of the blood separate and apart from the mother; that there is no communication between the two circulation systems; that the heart beat of the child is not in tune with that of the mother but is more rapid; that there is no dependence by the child on the mother except for sustenance." He also discussed the case of Walker v. Great Northern Railway, supra, and the cases following it, and said that the real reason for these holdings was a rule of convenience because it was feared there would be many cases founded on fraud, and possible injustice might result. He said the principle involved in the case before him should be decided in rules of reason and not of convenience or lack of authority. The Court of Civil Appeals of Texas, in the case of Lewis v. Steves Sash & Door Co., 177 S. W. 2d 350, decided in 1943, held in a negligence case where a child was born dumb, that no recovery could be allowed, following the case of Magnolia Coca Cola B. Co., v. Jordan, supra. In 1946, the District Court of the United States for the District of Columbia had a case before it in which the question was whether an infant had a right of action springing from the alleged fact that it was taken from its mother through professional malpractice, with resulting consequences of a detrimental character. The court there attempted to make a distinction between the Dietrich case and the case before it, in which the child was viable at the time of the injury. The court held that there was a right of recovery. Bonbrest v. Kotz, 65 F. Supp. 138. *434In 1949, the Supreme Court of Ohio had before it the case of Williams v. Marion Rapid Transit, 152 Ohio St. 114, 87 N. E. 2d 334, 340, 10 A. L. R. 2d 1051. In that case, a unanimous court held that in spite of the substantial authority to the contrary, such a suit could be maintained. It held that no legislative action was required authorizing recovery for personal injury caused by the negligence of another. Such a right was one existing at common law. The plaintiff in the case had reached the period of viability when it was injured and the court held that to hold that such a child was part of its mother until birth would deprive the child of the right conferred by the Constitution upon all persons “by the application of a time-worn fiction not founded on fact and within common knowledge untrue and unjustified.” Prosser on Torts, Chapter 5, Paragraph 31, pp. 188-189, was quoted. This quotation gave two reasons why nearly all the courts have denied recovery. One was that no duty of conduct could be owed to a person not in existence at the time, and the other that the difficulty of proving a causal connection between the negligence and damage was too great, and there was too much danger of fictitious claims. As to the second, Prosser said that adequate safeguards could be established by medical evidence, and as to the first, it was stated that medical authority has recognized long since that a child is in existence from the moment of conception, and “all writers who have discussed the problem have joined in condemning the existing rule” (citing authorities). Also in 1949, the Supreme Court of Minnesota decided the case of Verkennes v. Corniea, 229 Minn. 365, 38 N. W. 2d 838, 841, 10 A. L. R. 2d 634. This was a malpractice suit for improper treatment of a maternity case. Both the mother and the child died. The court cited the majority cases, and the minority, and said there was no question about the viability of the unborn child, or its capacity for a separate and independent existence. It quoted with approval a statement in Bonbrest v. Kotz, *435swpra, that “the absence of precedence should afford no refuge to those who by their wrongful act, if such be proved, have invaded the right of an individual”. It also cited as authority articles in 12 St. Louis Law Review 85, 61 Central Law Journal 364, and 33 Law Notes 205. The court was unanimous in holding that an action lay, and there is a statement at the conclusion of the opinion that the former opinion filed was withdrawn and the opinion as corrected was substituted. Whether this means that the court changed its mind is something we can only guess. In 1950 the issue again arose in Ohio in the case of Jasinsky v. Potts, 153 Ohio St. 529, 92 N. E. 2d 809. This was on the question whether the administrator of a child who, when viable, suffered a prenatal injury due to the negligent act of another, and who died about three months after birth as a result, would have a cause of action under the wrongful death statute. The court unanimously held to its interpretation in the Williams case, saying that it did not change the common law in that case, but declared the law on that subject for the first time, and the presumption was that the rule announced in the Williams case had been the law at the time the wrongful death statute was enacted. It therefore held that there was a good cause of action stated. The latest case we have found is Bliss v. Passanesi, decided in Massachusetts on November 14, 1950, and reported in 95 N. E. 2d 206, 207. The court referred to the Dietrich, case as establishing the law in the Commonwealth of Massachusetts, and said it was not inclined to overrule it. It also discussed the dissenting opinions and the later cases to the contrary, and said of them: “The rationale of these decisions permitting recovery is that an unborn viable child is capable of an existence independent of its mother; that as the law recognizes an unborn child in protecting its property rights in the descent and devolution of property whenever it would be for the benefit of the child and also protects it as a legal entity in the criminal law, the law *436should also recognize its civil rights for the infliction of injury due to the negligence of another; that a wrong should not go without redress; and that natural justice demands recognition of the legal right of the child to begin life unimpaired by physical or mental defects resulting from an injury due to the negligence of another while it was a viable child en ventre sa mere. We readily concede the strength of these grounds, but there is also strength in the arguments to the contrary, including that based upon the practical difficulty of reliable proof. We do not intimate what our decision would be if the question were presented for the first time.” (Emphasis supplied.) In addition to the articles relied on by the Minnesota court, attention may be called to an article in the Harvard Law Review, Vol. 63 (1949-1950), p. 173, in which the cases are discussed and a conclusion is reached that the fundamental reason for allowing a surviving child a right of action for prenatal injuries is the injustice of denying it. It is said that there should be recognized a legal right in the newborn child to begin life with a sound body. Restatement, Torts, Chapter 42, Paragraph 89, states: “A person who negligently causes harm to an unborn child is not liable to such child for the harm.” At the end of the comment is the following caveat: “The Institute takes no position upon the question whether there is liability to a child hurt while unborn by a person who intentionally or recklessly, and without excuse, harms the mother or child.” No reason is suggested why there might be a distinction between a negligent injury and a willful injury. The English authority on torts, Clerk and Lindsell, 10th Ed. (1947), p. 86, seems to be uncertain, saying: “An action for personal injuries will perhaps not lie at the suit of an infant which was en ventre sa mere at the time of the accident.” (Emphasis supplied). A consideration of these authorities leads to the conclusion that the majority of the courts are influenced by *437Lord Coke’s dicta, while the magazine writers and the judges in the later cases are inclined to a more realistic view, based upon modern medical science and general knowledge. Not ail of the cases are, however, based upon the theory that an unborn child is a part of the mother for tort action purposes. There are a number of tangential arguments which may well be discussed before we reach the main question. One of these is the argument of convenience, based upon the difficulty of proof. Cf. Superior Transfer Co. v. Halstead, 189 Md. 536, 56 A. 2d 706. It is probable that this would have been almost insurmountable in the days of Coke, Hardwicke and Blackstone, and perhaps of Holmes, and may have influenced their conceptions of the law. Physicians of today would have less trouble with the problem, but apart from this, the right to bring an action is clearly distinguishable from the ability to prove the facts. The first cannot be denied because the second may not exist. Another suggestion, somewhat allied, is the fear that numerous faked or fraudulent claims will overwhelm the courts. This argument ad terrorem should have no weight to prevent legitimate claims from being heard. Fraud can be dealt with in this class of cases, just as in others, and the detection and the elimination of faked contentions present no novel question to judicial bodies. Here again, modern medical knowledge will do away with much of the difficulty. There is also some thought that there is a difference between injuries caused willfully and those produced by mere negligence. See Chief Justice O’Brien in Walker v. Great Northern, supra, and Restatement, supra. This is, perhaps an attempt to ally civil rights with the criminal law. It is difficult to see why the same right does not exist in either case. The reason for the injury does not matter to the injured person — he is concerned only with the result. If the latter is the same in both cases, the same right of action should be given. *438Some of the later cases attempt a distinction between a child which is viable and one which is not. See Lipps v. Milwaukee E. Ry. & L. Co., supra. This is an apparent effort to correct the early doctrine that the child is a part of the mother by bringing it more in line with known medical facts. Children are frequently born prematurely and live. And at times they have been removed from a dead mother and have survived. At some period in their growth they reach a stage where they can live apart from their mother. But, from a medical point of view, a child is alive within the mother before the time arrives when it can live apart from her. If it is injured at a time when, according to Blackstone, it is “able to stir in the mother’s womb” there would seem to be just as logical a basis for allowing it to recover, as if it were injured after it had reached the period in its growth when it could be removed from the mother and live. In both cases it is alive, and in both cases there has occurred an injury to a living human being for which the responsible party should be made liable. If a child is to be considered a part of its mother until birth, then the mother should be able to recover damages for injury to this part of her as well as for injuries to other parts. Yet there seems to be no case allowing such recovery. It was specifically denied in Prescott v. Robinson, 74 N. H. 460, 69 A. 522, 17 L. R. A., N. S., 594. If neither the child nor the mother can recover, then we have a serious case of damnum absque injuria. By the negligence or the willful misconduct of someone an unborn child has to go through life, crippled, blind, subject to fits, an imbecile, or otherwise changed from a normal human being. Yet the law provides no means for compensation for such a situation. It is no wonder so many judges have dissented from such decisions, and that some of the latest cases have disregarded them altogether. We must determine what was the applicable common law of England as it existed on the Fourth of July, 1776, Art. 5, Declaration of Rights, State v. Buchanan, 5 Har. *439& J. 317, Gilbert v. Findlay College, 195 Md. 508, 74 A. 2d 36, unless it has been changed by statute. There is no statute on the subject in Maryland. There is no decision on the subject here, and there is no decision in England, either before 1776 or afterwards. The Chancery case and the Admiralty case cited are based upon the civil law, which holds that a child in its mother’s womb is born for all purposes for its benefit. Justice Holmes holds that, in Massachusetts at least, the child is a part of the mother, but he does not fail to see the result of that holding, and adds that damage to it “not too remote” is recoverable by the mother. However, there might be permanent injuries which would not develop until after birth. These would certainly be remote so far as the mother was concerned. This part of the opinion of the learned Justice does not seem to have been followed in any case, but the greater number of the jurisdictions in this country have held as he did on the question of the child’s right of action, although not always, as we have shown, for the same reason. Those which hold that the common law view is that an unborn child is part of the mother are Massachusetts, Illinois, Rhode Island, New York, Missouri, Alabama, Texas, Michigan, Pennsylvania, and New Jersey. The Restatement adopts their conclusion. Those holding to the contrary are Ohio, Minnesota and the District Court of the District of Columbia. There is an intimation in New Hampshire, Prescott v. Robinson, supra, that it might also hold the contrary in a proper case. Louisiana, like the Canadian case, follows the civil law and California interprets a statute. The only logical basis for denying recovery by a child for an injury while en ventre sa mere is that stated by Justice Holmes. He based it upon a common law which had no positive existence, but is derived from an isolated statement by Lord Coke, which is itself modified in the same sentence by the suggestion that the law in many cases has consideration for the unborn child by reason of the expectation of its birth. The will and inheritance cases recognize the rights of an unborn child, *440and so do the criminal cases. His right to claim damages in admiralty is established. All of these may be under adaptations of the civil law to the common law, but when incorporated in it, they become part of the common law. If we were considering a case of first impression anywhere, we would be unable to find that the common law denied the right. On the contrary, it would appear that, in so far as there was any common law on the subject, the right would be recognized under the general theory, ubi jus ibi remedium. It is our duty to determine what is the common law applicable to the circumstances and conditions of Maryland. Gilbert v. Findlay College, supra. We have not hesitated to differ with the majority rule in other cases where we found it to be wrong. Mahnke v. Moore, 197 Md. 61, 77 A. 2d 923. In view of the confused state of the law elsewhere, and the practically unanimous criticism of the majority cases by writers on the subject, and in view of the numerous dissenting opinions in these cases, we cannot regard them as compelling authority. When we examine the reasons behind them, we find them based upon an outworn point of view, now rejected by modern medicine, and rejected by the later cases. We think the modern view is the correct one, and, since there has heretofore been no occasion to decide what is our common law and we must for the first time decide it now, we think our decision should be made on the basis of present day knowledge. To hold otherwise would be a step backward, and would substitute a plebiscite of states for reason. Such a holding does not usurp the legislative function, because we are determining now what the common law of Maryland always has been. If the question had been raised at the end of the 18th Century, it might have been decided differently, but if it had been so decided this would have been because of an ignorance of medical facts which are now common knowledge. The common law does not depend upon the knowledge of facts, although such knowledge, or the lack of it, may result in *441different interpretations at different times. The law itself deals with rights, and since we now know that a child does not continue until birth to be a part of its mother, it must follow that as soon as it becomes alive it has rights which it can exercise. When it becomes alive is a medical question to be determined in each case according to the facts. Just because this is the first time for 175 years that the question has arisen in this court, does not make our conclusion judicial legislation. For the reasons stated, the judgment will be reversed and the case remanded. Judgment reversed, with costs.

CourtListenerOpinion

2024-06-11T07:23:54.792873

2023-08-26 19:07:06.918081+00

9736806

Henderson, J., delivered the following concurring opinion. I agree with the conclusion reached by the Chief Judge in his exhaustive review of the authorities. However, since I arrive at the result by a slightly different route and the case is both novel and important, I think a few caveats are in order. I attach little weight to the alleged progress of medical science. Obstetrics is probably the oldest branch of medicine, practiced continually since the first operation upon Adam’s rib, and the fact that an infant may be delivered and survive, before the full period of pregnancy, was known to antiquity and is attested by the birth of the historical Julius Saesar and the legendary Macduff. Nor are we at liberty to substitute modern medical views for those of the common law, in cases where the common law rule is well established. The problem is to determine the common law rule. The rule that a child is in existence from the moment of conception, applicable in testamentary situations, has no application here. It seems to stem from the ecclesiastical law, although a somewhat analogous rule was applied in the Earl of Bedford’s case, a common recovery to dock the entail in accordance with principles of the land law which owed nothing to extraneous sources. Of *442course, the common law is full of borrowings. The whole concept of adoption is said to have been lifted from the civil law. In any event, I base my argument upon the rule of the early criminal law, as stated by Coke and Blackstone, that a child en ventre sa mere is a person separate and separable from its mother. Murder and manslaughter are crimes against the person, and also torts. Indeed, the earliest form of reparation for such offenses was by money payments to relatives and dependents. Intentional torts were the only ones recognized until the comparatively recent concept of negligence was developed. The comments in the Irish case, and the caveat in the Restatement, seem to recognize, or at least leave open, the contention that recovery might have been had for an intentional prenatal injury at common law, as a trespass to the person, before trespass on the case was invented. If this is a correct premise, several conclusions would seem to follow: (1) the rule should not be applicable unless it is shown that the embryo has acquired a human personality and becomes viable. I do not understand from Blackstone’s comment as to the time when a child becomes “quick” or “able to stir in the womb” that he visualized an intermediate period between conception and the period of viability, during which a child might be considered alive or “animax” for purposes of criminal liability. Liability in tort should extend no further. (2) The same reasoning that would support recovery for an intentional tort would support recovery for a negligent one, so far as the capacity of the child is concerned. But there may be important differences in the extent of the duty owed. Many authorities, including the Restatement, seem to limit recovery to the reasonable and foreseeable consequences of an unintentional act. Sometimes the thought is expressed in terms of legal duty, sometimes of proximate cause. Thus there may be a valid distinction in law as there is in fact between negligent injury by an obstetrician undertaking a delivery, and negligent injury by a carrier who may be wholly *443unaware of the pregnancy of a passenger. I merely suggest the possibility of reconciling those lines of cases, neither of which is before us. (3) The doctrine of contributory negligence is an integral part of the concept of negligence. To what extent the child’s right of action may be barred by negligence of the mother is another question that is left open because it was not argued in this appeal. I agree that the rule of stare decisis has no application, in the absence of any decision in this State, or in the English reports. The decisions of other State courts, and the rule adopted by the Restatement, are not controlling, especially where we find a respectable, and growing, body of opinion to the contrary. It is unfortunate, however, that we are required to deal with the problem on demurrer, where allegations are necessarily general and may never be supported by the facts developed. I think it should be emphasized that we are now deciding only the general proposition and that all subsidiary questions are reserved.

CourtListenerOpinion

2024-06-11T07:23:54.797407

2023-08-26 19:07:06.924998+00

9736807

Markell, J., delivered the following dissenting opinion, in which Collins, J., concurred. On page 1 of Holmes’s “Common Law”, published about two years before he became a member of the Supreme Judicial Court of Massachusetts, is the often quoted statement, “The life of the law has not been logic; it has been experience.” “Experience” in the law is primarily decision of cases. Mr. Justice Holmes, until late in life he made an exception of constitutional questions, adhered consistently to the doctrine and practice of stare decisis. In Detrich v. Inhabitants of Northampton, 138 Mass. 14, the decision and the opinion were based not on “ignorance of medical facts” or “medical science”, but upon knowledge of law. Medical facts and medical science are not mentioned, but to refute a statement ascribed to Lord Coke the opinion goes back to the Year Book of 1 Edward III. From a review of legal authorities it is *444shown that the legal status of an unborn child is different in three branches of the law, property, crime, and personal injury. Incidentally the House of Lords, as recently as 1935, has reversed the Court of Appeals to apply a limitation to the almost universal rule that for the purpose of acquiring (but not transmitting) property rights an unborn child is regarded as in esse from the moment of conception. Elliot v. Joicey (Lord), [1935] A. C. 209, 238-241. Nor was the opinion in the Dietrich case based on ignorance of one of the central themes in Holmes’s book— the concept of negligence in trespass and in case. The Common Law, pp. 79-107. In 1884 Holmes knew more about the common law, early and late, than I shall ever know. I am satisfied that the opinion in the Dietrich case was based on legally and historically sound foundations. To undertake to decide, “on the basis of present day knowledge” of “modern medicine”, differently from the way it would have been decided in 1776, what the common law was in England on July 4, 1776, and “always has been” in Maryland, seems not “realistic” but fantastic. The hundreds of judges of state courts of last resort are neither chosen nor qualified to assume legislative power over every question of law which has not been expressly decided in their own state. Of course, decisions in other states are not binding. But neither in theory nor in practice do American judges live or work in forty-eight separate idea-proof compartments. The Restatement of the law by the American Law Institute is a monument, erected at large expenditure of time and labor by law professors, judges and practising lawyers — and of money by one or more foundations — to the idea that in America there is a common law, and that it is something more than forty-eight digests of decisions. Judge Pound said, for the court, in Drobner v. Peters, 232 N. Y. 220, 223, 133 N. E. 567, 568, 20 A. L. R. 1503, “At common law a cause of action for personal injuries did not survive if death resulted from another’s negligence or wrongful act. Lord Campbell’s Act, passed *445in England in 3846, and followed generally in this state (Code Civ. Proc. § 1905), was necessary to correct this omission. May this court attach an unnatural meaning to simple words and hold independently of statute that a cause of action for prenatal injuries is reserved to the child until the moment of its birth and then accrues?” The silence of the Maryland legislature for over three hundred years, sixty-seven years since Dietrich v. Northampton, I think, falls little short of an affirmative legislative acceptance of the common law as interpreted everywhere up to 1949. State, for Use of Joyce v. Hatfield et al., 197 Md. 249, 78 A. 2d 754. As Mr. Justice Holmes said (in a tax case), “Upon this point a page of history is worth a volume of logic”. New York Trust Co. v. Eisner, 256 U. S. 345, 349, 41 S. Ct. 506, 507, 65 L. Ed. 963. We need not — -indeed, before we take over the legislative function, we must not — shut our eyes to the possible practical consequences of our decisions. It may be true (but if it is, 1 do not judicially or actually know it) that “physicians of today would have less trouble with the problem”, seemingly still obscure, of course of congenital ills. Legislators have been cautious about trying to bring the law into accord with “modern medical science”, notably in the matter of sanity and criminal responsibility. Whether the persuasive abstract reasoning in the opinion of a plurality of the court should prevail over practical consequences that might result is properly a legislative, not a judicial, question. I think the judgment below should be affirmed, in accordance with the decisions of the highest courts of Massachusetts, New York, New Jersey, Pennsylvania, Rhode Island, Illinois, Michigan, Wisconsin, and Alabama. Judge Collins authorizes me to say that he concurs in this opinion.

CourtListenerOpinion

2024-06-11T07:23:54.798742

2023-08-26 19:07:06.931121+00

2207380

208 Cal.App.2d 799 (1962) Estate of ARNOLD O. MOHR, Deceased. MARGARET SPARKS, Petitioner and Appellant, v. ELEANOR A. MOHR, as Executrix, etc., Devisee and Respondent. Civ. No. 20521. California Court of Appeals. First Dist., Div. One. Oct. 24, 1962. Joseph M. Wapner and Martin B. Berman for Petitioner and Appellant. Robert J. Foley, Lawrence D. Saler and Richard L. Doutt for Devisee and Respondent. SULLIVAN, J. Appellant Margaret Sparks has appealed upon a partial clerk's transcript from an order of the probate court denying her motion to set aside a decree of settlement of final account and of final distribution. Appellant is the daughter and respondent Eleanor A. Mohr is the widow, executrix and sole legatee and devisee of the last will of Arnold O. Mohr, which was admitted to probate in the court below. The will, a holograph, made no provision for, or mention of appellant, in any way. It is conceded that appellant had notice of the will and of the filing of the petition for its probate. However, during the subsequent administration of the estate, appellant initiated no proceedings pursuant to section 1080 of the Probate Code to assert any claim that she was a pretermitted heir of the decedent or entitled to *800 distribution of any part of his estate. On March 30, 1961, the court below entered its decree of final distribution under which all of the estate in the hands of the executrix and all after- discovered property was distributed to the respondent widow according to the terms of the will. The estate in the hands of the executrix consisted of three items of property, specifically described in the decree, which was all of the property described in the inventory. No appeal was taken from the above decree of distribution. On September 15, 1961, almost six months after the entry of the above decree, and after it had become final, appellant filed a notice of motion to vacate it and set it aside "on the grounds that the inventory ... filed in the within entitled matter did not include all of the decedent's assets." The notice recited that the motion would be based on the declaration of appellant filed therewith and on the records and files of the action. Appellant's declaration was generally to the effect that at the time of his death, her father owned certain personal property which had not been inventoried. Appellant's present counsel also filed a declaration stating that on June 13, 1961, he had written to respondent's counsel advising the latter that, according to information received from appellant, the executrix had not inventoried all of the decedent's assets and inquiring whether respondent's counsel would be willing to stipulate that the decree of distribution be set aside and an amended inventory filed. The declaration generally described the communications between counsel on the subject and the unsuccessful efforts of appellant's counsel to achieve the desired objective. The respondent Eleanor A. Mohr also filed a declaration in opposition to the motion, which we deem unnecessary to set forth in detail. In it respondent described the various articles of property claimed to have been omitted from the inventory and took the position that none of them were properly includable therein. A hearing was apparently had on the motion on October 4, 1961. The record before us contains no transcript of such proceedings. Thereafter, counsel presented certain arguments and authorities in letter form. On November 20, 1961, appellant's motion was denied, the court stating no reason for such action. Appellant's motion does not indicate the legal theory upon which appellant invoked the relief sought. The letters from counsel to the probate judge, included in the present record, disclose that after the hearing appellant's counsel took the position that the basis of the motion was "because of the fraud *801 perpetrated on the court in not setting forth all of the assets. This is extrinsic fraud, and in such situations, a motion is timely whenever made." (Original emphasis.) [fn. 1] In her opening brief filed here (appellant has filed no closing brief), appellant again adverts to the fact that her motion was timely made stating that "[w]hile it is true that at one time a motion under Section 473 of the Code of Civil Procedure had to be orally made within six months after a ruling," it is now settled that the motion is deemed to have been made when the notice thereof is duly served and filed, citing section 1005.5, Gardner v. Trevaskis (1958) 158 Cal.App.2d 410 [322 P.2d 545] dealing with section 473 and concluding with the statement that "[i]t is, therefore, obvious that the motion was timely." Despite the foregoing statement in her brief, appellant has in a letter to this court and on oral argument expressly stated that her motion was not based on section 473 but was based on extrinsic fraud. Although appellant bases such claim on the failure to inventory all assets, she does not point out either in the declarations filed in the probate court or in her brief here, how such failure, assuming it did exist, resulted in the denial or prevention of a fair adversary hearing to appellant so as to constitute extrinsic fraud. Respondent contends that the order denying appellant's motion to set aside the decree of distribution is a nonappealable order. As we have pointed out, appellant has filed no closing brief answering this claim and has furnished this court with no authority establishing the appealability of the above order. [1] Section 1240 of the Probate Code specifies the orders in probate proceedings from which an appeal will lie. An order denying a motion to vacate and set aside a decree of settlement of final account and of final distribution is not one of the orders so specified and is therefore not appealable. (Estate of Glassgold (1950) 97 Cal.App.2d 859, 863 [218 P.2d 1016] (order denying motion under section 473 to vacate decree of final distribution); Estate of O'Dea (1940) 15 Cal.2d 637, 638 [104 P.2d 368] (order denying motion under section 473 to be relieved of default for failure to appear at trial); *802 Estate of Smith (1959) 175 Cal.App.2d 803, 805 [1 Cal.Rptr. 46] (order denying motion to vacate order appointing administrator); Estate of Nersisian (1957) 155 Cal.App.2d 561, 567 [318 P.2d 168] (order denying motion to vacate and set aside decree of partial distribution); Estate of Rouse (1957) 149 Cal.App.2d 674, 679 [309 P.2d 34] (order denying motion under section 473 to vacate order settling final account and judgment decreeing distribution).) [fn. 2] [2] This is so whether the order denies relief sought under section 473 or under any other legal theory. As the court said in the Estate of O'Dea, supra, 15 Cal.2d 637, 639, "[s]ection 1240 of the Probate Code is simply the re-enactment of subsection 3 of section 963 of the Code of Civil Procedure, and this court has on numerous occasions held that no appeal will lie from an order in probate denying relief under section 473 of the Code of Civil Procedure, or from any other order not specified in subsection 3 of section 963 of the Code of Civil Procedure, ..." (Emphasis added). The purported appeal is dismissed. Bray, P. J., and Molinari, J., concurred. NOTES [fn. 1] 1. The record also shows that appellant's counsel previously contended that the motion was timely because filed within six months of the entry of the decree, although heard after the expiration of such period (Code Civ. Proc., 1005.5), citing a case dealing with section 473 of the Code of Civil Procedure. Such claim apparently conveyed the impression at the outset that appellant was seeking relief under section 473 although her counsel advised the court below that he was not. [fn. 2] 2. A well-established and long recognized exception exists in the case of an appeal from an order granting a new trial in certain probate proceedings, such as will contests. (Estate of Armstrong (1937) 8 Cal.2d 204, 208 [64 P.2d 1093]; see Estate of O'Dea, supra; see generally 3 Witkin, Cal. Procedure, p. 2174.)

CourtListenerOpinion

2024-06-11T07:23:54.801046

2013-10-30 08:36:19.412309+00

9736809

Sawyer, J. (dissenting). I respectfully dissent. I agree with the majority that the defendant’s conviction should be affirmed. I disagree with the analysis which would result in the defendant’s having to be resentenced. In the case before us, it is clear after reading the transcript that the court went to great lengths to ascertain whether the defendant understood the plea agreement before it accepted the plea. The court specifically inquired of the defendant about his understanding of the agreement that had been proposed. The record reflects that the following colloquy took place between the court and the defendant: The Court: Now, the prosecutor has made a recommendation in your case. That is the Court impose a sentence that would not exceed 8 to 20 years. Under Michigan law, we have to have two *100numbers, a minimum number and a maximum number. The minimum he’s recommending is 8 years. So, the maximum sentence the Court could impose under the prosecutor’s recommendation would be the minimum of 8 to the maximum of 20. Do you understand that to be the prosecutor’s recommendation? The Defendant: That I’m not supposed to get no more than eight years minimum? The Court: Right. Eight years is the minimum under the prosecutor’s recommendation. The Defendant: Yes. The Court: 20 years, by law, has to be the maximum, but 8 years is what the prosecutor is making the recommendation on. The Defendant: Yes, sir. I find that the record clearly indicates that all of the parties to the plea agreement knew that the people would recommend no more than an eight-year minimum prison term and what that meant. Therefore, the prosecutor’s recommendation of a minimum sentence of seven years, eleven months, twenty-eight days comported with the above-mentioned plea agreement since it was less than the eight-year minimum prison term both parties had agreed to. To say otherwise would prohibit a prosecutor from recommending less than he originally said he would, e.g., county jail time or probation. That result clearly would not advance justice. I, therefore, would affirm.

CourtListenerOpinion

2024-06-11T07:23:54.802524

2023-08-26 19:07:17.022594+00

2207463

454 N.W.2d 732 (1990) Christopher MULLINS, Appellee, v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Appellant. George DOLECHEK as parent and guardian-in-fact of Terry Dolechek, a minor person, and Terry Dolechek, an individual, Appellants, v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Appellee. Margo LEABO, Appellee, v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Appellant. Civ. Nos. 890316, 890215 and 890240. Supreme Court of North Dakota. April 25, 1990. Sidney J. Hertz Fiergola (argued), Asst. Atty. Gen., Bismarck, for North Dakota Dept. of Human Services. Gerry Gunderson (argued), of Wheeler Wolf, Bismarck, for Christopher Mullins, Terry Dolechek and Margo Leabo. ERICKSTAD, Chief Justice. These consolidated appeals concern denials by the Department of Human Services (the Department) of applications by Christopher Mullins, Terry Dolechek and Margo Leabo for case management services by the Developmental Disabilities Division of the Department. We conclude that the denials were improperly based upon Service Chapters of the Department's Manual which have not been adopted in accordance with Ch. 28-32, N.D.C.C. In denying Mullins' application in accordance with Service Chapters 825-01 and 825-02 of the North Dakota Department of Human Services Manual, the Department found: "(5) ... It is conceded that Christopher is not mentally retarded and is not a member of the plaintiff class in the case of A.R.C. vs. Olson.[1] "(6) The second step of the described eligibility process involves determining whether the applicant is eligible for services even though there is no entitlement. As Christopher is not mentally retarded, the only category he could qualify under is that of an individual with a condition so severe as to constitute a developmental disability, and for whom the services and intervention techniques *733 required on behalf of that individual are so closely related to those applied to persons with the condition of mental retardation that provision of those same services and techniques is appropriate. * * * * * * "(8) The DD program administrator and Human Service Center Director correctly concluded that it was not necessary to determine whether Christopher was developmentally disabled where the information relative to his condition clearly showed that he was of average intelligence and his disability, consisting of psychiatric disorders, was dissimilar to mental retardation." On appeal, the district court[2] reversed the Department's decision and remanded "with instructions to make a determination whether Christopher is `developmentally disabled' as defined under the statute, and to provide the appropriate services thereunder." The Department appealed. In denying Dolechek's application in accordance with Chapters 825-01 and 825-02, the Department found that Dolechek was not a member of the plaintiff class "entitled" to services; was not mentally retarded; and "7. Mr. Dolechek's described and documented impairments, while not insignificant, are neither `severe' nor do they result in `substantial' functional limitations in three or more of the seven `areas of major life activity' within the intended application of those terms, as found in the definition of `developmental disability' at Section 25-01.2-01, N.D.C.C., and Section 825-02-02 of the Department of Human Services Manual. He is clearly not among the most severely functionally limited population which the program is intended to serve. "8. Even if Terry Dolechek were found to have a condition so severe as to constitute a developmental disability, the services and intervention techniques required on his behalf would not be so closely related to those required for persons with the condition of mental retardation that providing him with those services would be appropriate." On appeal, the district court[3] affirmed the Department's decision. Dolechek appealed. In denying Leabo's application in accordance with Chapters 825-01 and 825-02, the Department found that Leabo was not entitled to services as a member of the plaintiff class; that she was not mentally retarded; and "(6) Ms. Leabo has been diagnosed as having a seizure disorder, and has exhibited behavioral problems which have been described or diagnosed at various times as `adjustment disorder,'`histrionic personality,' and `attention-deficit disorder.' "(7) Ms. Leabo's described and documented impairments, while not insignificant, are neither `severe' nor do they result in `substantial' functional limitations in three or more of the seven `areas of major life activity' within the intended application of those terms.... She is clearly not among the most severely functionally limited population which the program for which she applied is intended to serve. "(8) Even if Ms. Leabo were found to have a condition so severe as to constitute a developmental disability, she has not shown that she fulfills the eligibility requirement that the services and intervention techniques required on her behalf are so closely related to those required for persons with the condition of mental retardation that providing her with those services would be appropriate." On appeal, the district court[4] reversed the Department's decision and remanded for a *734 determination of whether Leabo "is developmentally disabled as defined under the statute, and to provide the appropriate services thereunder if she is found to be developmentally disabled." The Department appealed. While the parties have raised a number of issues on appeal, we deem the dispositive issue to be whether or not the Department may determine an applicant's eligibility for case management services by the Developmental Disabilities Division of the Department by applying Service Chapters 825-01 and 825-02, which have not been promulgated in accordance with Ch. 28-32, N.D.C.C. "Developmental disability" is defined by § 25-01.2-01(1), N.D.C.C.: "`Developmental disability' means a severe, chronic disability of a person which: a. Is attributable to a mental or physical impairment or combination of mental or physical impairments; b. Is manifested before the person attains age twenty-two; c. Is likely to continue indefinitely; d. Results in substantial functional limitations in three or more of the following areas of major life activity: (1) Self-care; (2) Receptive and expressive language; (3) Learning; (4) Mobility; (5) Self-direction; (6) Capacity for independent living; and (7) Economic sufficiency; and e. Reflects the person's needs for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services which are of lifelong or extended duration and are individually planned and coordinated." Section 25-01.2-18, N.D.C.C., provides that the Department "may adopt, in accordance with chapter 28-32, any rules necessary to implement this chapter.... The rules adopted may not restrict or limit the rights guaranteed by this chapter." Chapters 825-01 and 825-02 of the Department's Manual, which the Department uses to decide whether or not to provide case management services by the Developmental Disabilities Division, provide that persons who are members of the plaintiff class in Ass'n for Retarded Citizens of North Dakota v. Olson, 713 F.2d 1384 (8th Cir.1983), are entitled to such services. Chapters 825-01 and 825-02 also provide that persons in the following two categories "may be eligible, but not entitled to services": "Persons with a diagnosis of mental retardation, as defined by the American Association of Mental Deficiency, whose condition is not so severe as to constitute a developmental disability but who can benefit from treatment and services; and "Persons with a condition so severe as to constitute a developmental disability and for whom the services and intervention techniques required on behalf of the individual are so closely related to those applied to persons with the condition of mental retardation that provision is appropriate" (825-01) and "enable a team ... to determine whether the disabling condition(s) is so severe and substantial as to meet the criteria for developmental disability." (825-02). The Department is an administrative agency and is subject to the provisions of Chapter 28-32, N.D.C.C. Falcon v. Williams County Social Service Board, 430 N.W.2d 569 (N.D.1988). Chapter 28-32, N.D.C.C., prescribes the procedure the Department must follow to adopt a valid rule. Johnson v. North Dakota Workers Compensation Bureau, 428 N.W.2d 514, 518 (N.D.1988). Section 28-32-03(5), N.D. C.C., provides: "A rule is invalid unless adopted in substantial compliance with section 28-32-02." Chapters 825-01 and 825-02 were not promulgated in accordance with Ch. 28-32, N.D.C.C. The Department, however, contends that Chapters 825-01 and 825-02 "are properly considered as policies dealing with the internal management of the Department," thus qualifying as an exception to the rulemaking requirement under § 28-32-01(6)(a), N.D.C.C. *735 Section 28-32-01(6)(a), N.D.C.C., provides that the term "rule" does not include "[a] rule concerning only the internal management of an agency which does not directly or substantially affect the substantive or procedural rights or duties of any segment of the public." See also, § 28-32-01(6)(k), (l), N.D.C.C. We are unable to conclude that Chapters 825-01 and 825-02 deal only with internal management of the Department. The Department has acknowledged that Chapters 825-01 and 825-02 prescribe "the method to determine who may be appropriately served by the DD Division" and that "[t]he purpose of these service chapters is to identify the members of the plaintiff class in ARC v. Olson and others who may be appropriately served." It is clear that the Department's reliance upon Chapters 825-01 and 825-02 results in the inclusion or exclusion of applicants for case management services from the Developmental Disabilities Division of the Department. Because Chapters 825-01 and 825-02 were not adopted in accordance with Ch. 28-32, N.D.C.C., they are invalid. Little v. Spaeth, 394 N.W.2d 700 (N.D.1986). The Department's denials of the instant applications for case management services as a result of the application of Chapters 825-01 and 825-02 to determine the applicants' eligibility are "ineffective... because the [Department] failed to comply with the rulemaking procedure set forth in the North Dakota Administrative Agencies Practice Act (A.A.P.A.)." Johnson v. North Dakota Workers Compensation Bureau, supra, 428 N.W.2d at 514-515. Section 28-32-12, N.D.C.C., provides that "[a] transcript of the evidence ... shall be furnished to any party to the proceeding... at a uniform charge to be set by the agency, and such transcript fee shall be paid into the general fund." Section 28-32-17, N.D.C.C., provides that when an appeal has been taken, "after the deposit by the appellant of the estimated cost of a transcript of the evidence, the administrative agency concerned shall prepare and file ... the original or a certified copy of the entire proceedings before the agency." The district court granted a motion for waiver of Mullins' transcript fee. The Department contended in its brief on appeal that there is no authority for waiving a transcript fee and that the district court erred in waiving the fee. Mullins did not respond to the Department's argument. In light of the language of the statutes and Mullins' failure to respond, we direct the district court to vacate its order granting the motion to waive the transcript fee. "Questions, the answers to which are not necessary to the determination of a case, need not be considered." Hospital Services, Inc. v. Brooks, 229 N.W.2d 69, 71 (N.D. 1975). Therefore, we deem it unnecessary to consider any of the other issues raised. The Mullins judgment reversing the Department's decision is affirmed and we direct the district court to vacate its order granting the motion to waive the transcript fee. The Leabo judgment reversing the Department's decision is affirmed. The Dolechek judgment affirming the Department's decision is reversed. The matters are remanded to the district court with directions that they be remanded to the Department for redetermination of the applicants' eligibility for services under the relevant statutes, without reference to Service Chapters 825-01 and 825-02. VANDE WALLE, LEVINE, MESCHKE and GIERKE, JJ., concur. NOTES [1] The reference is to persons who are members of the plaintiff class in Ass'n for Retarded Citizens of North Dakota v. Olson, 713 F.2d 1384 (8th Cir.1983). [2] The Honorable Bruce E. Bohlman, District Judge. [3] The Honorable Maurice R. Hunke, District Judge. [4] The Honorable Michael O. McGuire, District Judge.

CourtListenerOpinion

2024-06-11T07:23:54.806162

2013-10-30 08:36:20.051525+00

2207464

79 A.2d 177 (1951) STATE v. FRANCIS. Ex. No. 8787. Supreme Court of Rhode Island. March 9, 1951. *178 William E. Powers, Atty. Gen., Alfred E. Motta, Special Counsel, Providence, for the state. Fergus J. McOsker, Providence, for defendant. BAKER, Justice. This is a complaint and warrant charging that the defendant did feloniously steal a certain sum of money. After a trial in the superior court before a jury he was found guilty as charged. His motion for a new trial was denied by the trial justice and defendant has duly prosecuted his bill of exceptions to this court. Such bill contains several exceptions, the last three of which are not pressed and are therefore deemed to have been waived. The first exception is to the ruling of the trial justice denying defendant's motion for a new trial based on the usual grounds that the verdict was against the law and the evidence and in addition on the ground that it did not do substantial justice. This exception also includes the following ground which was set out in substance by defendant in his motion for a new trial: "The Court erred in denying defendant a new trial upon the ground that the jury considered as evidence places and things seen upon a view which places and things were not testified to by any witness." The remaining exception is to the ruling of the trial justice in granting the motion of the state to take a view. The evidence shows that on August 25, 1943 Mrs. Gabrielle V. Bushee had cashed at a bank a government check for $56.25, which was the amount she received from the sale of three government bonds. Mrs. Bushee, who appeared as the complaining witness throughout, for convenience will be referred to hereinafter as the complainant. She testified as to the number and denominations of the bills given her at the bank and stated that she placed them in her billfold early the following morning. She also said that about 10 a.m. on August 26 she paid $1.70 to her milkman when he came to her house, giving him a $5 bill from the billfold. By error she received $4.30 in change and she returned $1 to him. While doing this she noticed that two of the $1 bills were creased at the bottom thereby holding them together, that the top bill had a little tear in the crease, and that they were back to back. These bills which she received as change from the $5 bill she placed in her billfold. In addition it appears from the evidence that on August 26 the defendant, who was acting as a salesman for a company dealing in roofing and siding or insulation materials, was making a house-to-house canvass of a certain residential neighborhood in the town of North Providence. About 2 p.m. while thus engaged he was admitted into the house owned by complainant and her husband, the latter being away at his work. She and defendant went into a room described as the living room and the former sat in a chair next to a console type radio. Shortly before that she had placed on the top of the radio her billfold containing slightly more than $54, which she intended to put in her shopping bag, as she was about to go out. Defendant attempted to interest her in purchasing what he referred to as insulation and showed her a book containing pictures and printed matter. However, she told him that she was not interested. *179 During the greater part of this time defendant stood directly against the radio and between it and the complainant. He stayed only a short time and left without further discussion. She also testified that on August 26 no one came to her home after 10 a.m. until the defendant arrived about 2 p.m. Within a few minutes after defendant had gone complainant discovered that the billfold containing her money was missing. She at once telephoned the North Providence police and in a very short time a policeman came to her house in a scout car, so called. She entered the car and was driven by the officer through several neighboring streets, and after five or ten minutes had elapsed defendant, who was pointed out by the complainant, was seen as he was about to enter another house. He was requested by the officer to get into the police car and he did so without objection. The car was driven to the North Providence police headquarters where defendant was examined by the town police authorities and by a trooper of the state police. Upon being searched he was found to have in his possession $102. Complainant's billfold was not discovered but before leaving the headquarters building she identified two of the bills taken from defendant as part of the change given her by the milkman when she paid him that morning. The identification was made through the peculiar way in which such bills were folded together and creased. After being held for further examination defendant was arrested and charged with the offense set out in the present complaint and warrant. At that time and at the trial he admitted being in complainant's home on the day charged but denied seeing any billfold there or stealing a billfold or any money. He testified in substance that the state police trooper folded the bills in question at the town police headquarters under the guidance and direction of complainant soon after the money was taken from defendant's person. He also introduced evidence tending to show that earlier that day he had cashed a check for $37.20 covering commissions previously earned by him, and that the day before he had a roll of bills in his possession which he contended covered the balance of $102 he had with him when he was examined by the police. One of the exceptions pressed by defendant is to the decision of the trial justice in permitting the jury on the state's motion to take a view. In our opinion this exception is without merit. The ordering of a view and the regulating of the proceedings at the view are dealt with by statutory enactment. G.L.1938, chap. 508, § 1. It is well settled that the disposition of a motion to take a view is discretionary with the trial court. State v. Germain, 47 R.I. 269, 132 A. 734. The mere fact that in the present case the view was taken in the latter part of the trial while defendant was testifying is not in itself good ground for an exception. Defendant's only other proper exception is to the denial of his motion for a new trial. The trial justice reviewed the evidence, stated that he was impressed by the testimony and by the manner of testifying of complainant and the state police trooper, and held that in his opinion defendant had a fair trial and the jury was warranted in returning their verdict. We have examined the evidence which is conflicting on several matters, and while largely circumstantial that fact alone does not prevent a verdict of guilty from being upheld. Such a situation, however, does raise in the first instance a jury question, particularly regarding the credibility of the witnesses and the drawing of reasonable inferences from the evidence. In that regard the jury and the trial justice have the advantage which we do not have of seeing and hearing the witnesses testify. It is well settled that we do not disturb the decision of a trial justice on a motion for a new trial unless we find such decision to be clearly wrong or that he has overlooked or misconceived material evidence. State v. Blood, 70 R.I. 85, 107, 37 A.2d 452. In the instant case we find nothing to indicate that he overlooked or misconceived such evidence and we cannot say that his decision was clearly wrong. In our opinion therefore defendant's exception to the refusal of the trial justice to *180 grant his motion for a new trial cannot be sustained on the ground that such decision was against the law, the evidence and the weight thereof, or failed to do substantial and impartial justice. In support of his above exception defendant also takes the position that the trial justice should have granted the motion for a new trial on the ground that the jury considered as evidence places and things seen upon the view but which were not testified to by any witness. Assuming that the above ground, which was stated in defendant's motion for a new trial, is appropriately included in his present bill of exceptions under the exception now being considered, it is our opinion that in the circumstances defendant has not taken the steps in the superior court that were necessary to obtain a ruling thereon and to bring before us the question he is seeking to raise. From the record herein, the considerations which may have influenced the action of the jury in arriving at their verdict are matters of pure speculation. In the superior court defendant did not at any time obtain, through the medium of any motion or request, a ruling from the trial justice on the point in issue so that he could except thereto, if the ruling was unfavorable, and have it reviewed by this court. No affidavit nor proof of any other nature was filed with his motion for a new trial to support the ground in question. We find therefore that defendant's exception to the denial of his motion for a new trial should be overruled. All of the defendant's exceptions are overruled, and the case is remitted to the superior court for further proceedings. O'CONNELL, J., not participating.

CourtListenerOpinion

2024-06-11T07:23:54.808724

2013-10-30 08:36:20.057129+00

2207472

97 N.H. 6 (1951) LAURIER LAMONTAGNE v. CANADIAN NATIONAL RAILWAY CO. No. 3974. Supreme Court of New Hampshire. April 3, 1951. *8 H. Thornton Lorimer and J. Ls. Blais for the plaintiff. Upton, Sanders & Upton and Robert Rich for the defendant. BLANDIN, J. The defendant's motions for a nonsuit and directed verdict were properly denied. Rising above the sea of figures which of necessity are an inevitable part of such cases as this the following landmarks appear. If the fireman was on the lookout as admittedly it was his duty to be it is findable that he could have seen Lettre the flagman from a distance of at least eight hundred thirty-two feet away. This is conceded even by the defendant's civil engineer. It could also be found at this moment that Lettre was at the seventh pole or eight hundred twenty-seven feet west of the crossing which places the fireman and engineer then about sixteen hundred fifty-nine feet from the scene of the accident. The fireman testified that as soon as he saw Lettre he "instantly" shouted to the engineer "Soak it"! The engineer said upon hearing this he "instantly" applied the brakes and that under conditions that day he could stop in eleven hundred feet from the time he heard the warning. He not only failed to stop before striking the trailer but went on two hundred forty feet beyond the crossing. Under the circumstances it is obvious the jury could have found the defendant negligent because the fireman was not keeping the lookout which he claimed he was (see Fraser v. Railway, 84 N. H. 107, 111, 112) and which it was his duty to do. They could also have found that he did not seasonably warn the engineer or that the latter did not act with reasonable promptness to stop the train. If the jury allowed the fireman two to three seconds from the time he saw Lettre to react and shout to the engineer and if they also subtracted forty-six feet, being the distance from the engineer's and fireman's seats to the front of the engine, the train moving at an agreed rate of seventy-five feet per second would still be some thirteen hundred ninety feet to fourteen hundred sixty-five feet from the crossing when the engineer heard the warning. This allowance cannot be found unreasonable considering the fact that the experienced fireman was on the lookout and had to do nothing except *9 to speak to the engineer. See Jones v. Railroad, 83 N. H. 73, 85. The engineer said he could stop in eleven hundred feet from the time he was warned. The jury did not have to believe this but they were entitled to take this experienced operator at his own word. The defendant's attempt to escape this conclusion rests mainly on its claim that the plaintiff testified it was five minutes after the trailer stuck before the crash occurred. The defendant contends that since Lettre stepped to the ground and immediately ran up the track at the plaintiff's request he must have traveled around seven hundred twenty feet a minute and hence been far beyond where he and the plaintiff claimed he was when he saw the engine. The defendant says the plaintiff's story postulates a physical impossibility, citing Brown v. Mailhot, 89 N. H. 240, and the plaintiff is bound by it under the doctrine of Harlow v. Leclair, 82 N. H. 506. Neither of these contentions holds water. The plaintiff is not bound to exactness in his estimate of time (O'Brien v. Company, 95 N. H. 79, and cases cited) and this principle seems particularly applicable at a moment of crisis when the jury could reasonably believe from their common knowledge that seconds might seem like minutes. There was further evidence of the defendant's negligence in its failure to inform and instruct the train crew regarding conditions at the crossing including a comparatively recent increase in traffic. In October, 1947, the city of Berlin commenced working the Dresser pit, using the crossing for its trucks and shortly thereafter the State further increased the traffic by also hauling gravel from the pit. During approximately two weeks just before the accident city trucks made eighty-four round trips over the crossing. From the tracks there was a clear view of the pit and the engineer admitted he had seen a bulldozer there about a week before the accident. He denied as did the fireman seeing a steam shovel although the shovel operator testified he had seen trains pass. Many children and their parents used the crossing daily in summer and at various times other persons traveled it to reach Father Lauziere's camp and recreational facilities. Without further detailing the evidence sufficeth to say that the use of the crossing was substantial and had increased during the year before the collision. Evidence of these facts was admissible (Smith v. Railroad, 87 N. H. 246, 254; Golej v. Varjabedian, 86 N. H. 244, 246) and the defendant is chargeable with knowledge of them. Carbone v. Railroad, 89 N. H. 12, 15. It cannot escape liability because its employees claim ignorance of conditions. Smith v. Railroad, supra. It is findable that had the defendant acted on *10 this knowledge with ordinary care it would have so instructed the train crew that a keener lookout would have been maintained and prevented the accident. The defendant therefore takes nothing by its exception to the charge that the jury could find it causally negligent in failing to inform and instruct the train crew. The defendant argues it has sustained its burden of proving that the plaintiff was guilty of contributory negligence as a matter of law. The basis of this claim is that the plaintiff failed to make a straight approach to the crossing so that the left rear wheels got onto low ground east of the gravel road and the trailer did not clear. The plaintiff says the difficulty was caused by the left rear wheel of the tractor dropping into a little mudhole just as it passed over the second or south rail. There was evidence that going to the pit the plaintiff approached the crossing cautiously in the fifteenth or lowest gear, "just crawling" at about one to two miles per hour with his helper Lettre on the ground watching and giving directions. In this manner he successfully negotiated the crossing. On the way back he was following practically the same procedure. All was going well and there was a clearance of several inches until the rear wheel of the tractor dropped into the mudhole. There was testimony in effect that the plaintiff drove across both going and returning at a slight angle in order for the unwieldy arrangement to pass safely over the rails. If he made an error in judgment on his return this is not necessarily fatal (MacKelvie v. Rice, 92 N. H. 465, 467) and the facts clearly indicating that he took some care the question of contributory negligence was for the jury. Hill v. Company, 96 N. H. 14. Once stuck he was faced with a choice of trying to unhook his tractor from the trailer which he says might take anywhere from half a minute to ten or fifteen minutes to do, leaving the trailer on the track where he feared a collision might injure passengers on the train, or of flagging the train by Lettre while he tried to get the trailer off the crossing. In choosing to do what he did it cannot be said he was conclusively guilty of negligence. (MacKelvie v. Rice, supra.) The defendant's next contention that the doctrine of the last clear chance was erroneously submitted to the jury is refuted by the facts. It is findable that the plaintiff was in a position of danger from which he could not escape. The fireman admitted that as soon as he saw Lettre with his handkerchief above his head he knew there was danger of a collision and that probably the truck was *11 stalled. The engineer admitted that as soon as the fireman shouted "Stop! truck"! he knew there was probably a truck stalled at the crossing. These facts and the reasonable inferences to be drawn from them warrant the finding that the defendant knew of the plaintiff's peril, knew that he could not help himself and that it then, as has been shown, could have prevented the accident by ordinary care. Peppin v. Railroad, 88 N. H. 145, 151. The last clear chance was properly submitted to the jury (Mack v. Hoyt, 94 N. H. 492), who were not compelled to find the plaintiff could have seasonally moved either vehicle. It also appears the charge contains in plain words all the essential elements of the doctrine and the exception to it is overruled. The claim that the charge was erroneous in that the jury was not told that the burden was on the plaintiff to prove each element of the doctrine requires no extended consideration. The Court told the jury several times that the burden was on the plaintiff to prove all facts essential to support his claim. To require as a matter of law that the burden of proof be charged again and again as to each element of a case seems unnecessary and unwise and the exception is overruled. We now turn to the defendant's exceptions to the denial of its requests numbers 7, 12 and 15. The seventh request in substance was that there was no evidence of the engineer's negligence in failing to apply the brakes as the train approached the crossing. It has already been pointed out that the jury could find the engineer traveled an unreasonable distance after the fireman's warning before putting on the brakes. Furthermore there was independent testimony that the brakes were first applied "just after" the train passed Jericho Brook some fifteen hundred thirty feet from the scene of the accident and then "they loosed again and ran free." It could be found from this that the engineer negligently waited before braking or else negligently released the brakes when he should have kept them on. The instruction was properly denied. For the same reasons the Court rightly refused the twelfth request, in effect that there was no evidence the train could have been stopped in less distance than it was. The fifteenth request was that the plaintiff was under a duty to use reasonable care in the manner in which he drove over the crossing and that if he became stuck through failure to do this the verdict must be for the defendant. The question of the plaintiff's negligence in the way he handled his equipment was covered by the Court when he stated the defendant's claim *12 that the plaintiff did not handle his vehicle properly and added that fault on the plaintiff's part would bar his recovery. It seems to us the instructions taken as a whole were correct and that it is reasonably certain the jury understood them. The defendant therefore takes nothing by its exception. Davis v. State, 94 N. H. 321, 323, and cases cited. We come finally to the claim that the Court erred in granting the plaintiff's motion to add interest to the verdict from the date of the accident. The plaintiff requested the Court to instruct the jury that in the event of a verdict for him they should add interest from the day of the accident to the date of their verdict. The Court did not do so and at the close of the charge plaintiff said at the bench in the presence of defendant's counsel "may it also appear that we have reserved to the Court the matter of interest. . . ." Defendant's counsel offered no objection then but now argues that the Court should have instructed the jury as the plaintiff requested or else informed them that they need not consider interest. It is clear that the plaintiff did not waive his claim to interest (cf. Davenport v. Company, 92 N. H. 194) and the silence of defendant's counsel when the matter was broached to the Court might reasonably be understood as acquiescence in the procedure suggested. In the absence of instructions it should not be presumed that the jury took it upon themselves to add interest. The request was proper and the exception cannot be upheld. Emery v. Company, 89 N. H. 165, 170, 171. This appears to dispose of all defendant's claims of merit and the order is Judgment on the verdict. All concurred.

CourtListenerOpinion

2024-06-11T07:23:54.812016

2013-10-30 08:36:20.116919+00

9736810

Boyle, J. An issue regarding the validity of a provision in an ordinance may be resolved in a forfeiture proceeding on a summary disposition motion for purposes of collateral estoppel. We find, however, that the city failed to persuade this Court that the ruling holding the storage provision valid was necessary to the 1982 judgment concerning forfeiture of fireworks seized in 1979. Therefore, we hold that the defendant was not precluded from raising the issue as an affirmative defense when prosecuted in 1984 in 36th District Court. In addition, we conclude that the state did not preempt local communities from regulating the quantity of fireworks a retailer can store within its boundaries and that the storage provision in the *344ordinance1 does not conflict with the statutory scheme.2 Having found that the state has not preempted this area of regulation, we address the issue whether there is any rational basis for the storage provision in the ordinance. We conclude that the storage limitation provision is a valid and reasonable exercise of the city’s police power within the ambit of due process and equal protection. Accordingly, we affirm the Court of Appeals holding that the storage provision in the ordinance did not conflict with state law, and vacate that part of the Court of Appeals decision which addresses the collateral estoppel issue. Further, we reverse the panel’s decision affirming the 36th District Court’s dismissal of the misdemeanor charge on the basis of its determination that the storage provision in the ordinance was unconstitutional.3 However, we stay entry of judgment in this case pending resolution of the remaining cases involving these parties in the Court of Appeals.4 *345I Defendant Qualls operates a retail fireworks business in the City of Detroit and has been engaged in litigation with the plaintiff city since he began operations in 1978. A review of the background and prior litigation between the parties is pertinent to resolution of the issues in this case. In 1981 the city brought a suit in Wayne Circuit Court against defendant for forfeiture of fireworks seized from the defendant’s premises in 1979, alleging defendant’s license only permitted him to sell and store legal fireworks in amounts of one hundred pounds or less, and that the confiscated fireworks were over one hundred pounds of illegal fireworks which were stored on defendant’s premises in violation of the ordinance.5 In his answer defendant argued that the city was not entitled to forfeiture of the confiscated fireworks because the ordinance conflicted with state law, under which no limit was stipulated as to the amounts of class c or class b fireworks a retailer could sell and store, and that the one-hundred-pound limitation was unreasonable.6 At the hearing, defendant argued that the storage limitation was unreasonable and that the ordinance conflicted with state law and was not a *346valid exercise of the city’s police power.7 In response, the city claimed the provision of the ordinance governing the storage of fireworks was not preempted by the state statutory scheme in MCL 750.243d; MSA 28.440(4), and that the provision was reasonable and clearly addressed a local concern, providing limitations consistent with the statutory language. The court found that the state had not preempted local communities from regulating the storage of fireworks for retailers within their boundaries, that the ordinance did not conflict with the statute, and that the storage provision in the ordinance was a valid and reasonable exercise of the city’s police power.8 The order, issued *347May 14, 1982, adjudging the Detroit fireworks ordinance valid, provided: [T]he City of Detroit Ordinance No. 314-H, Chapter 23, as it relates to the storage for retail sale of fireworks, is a valid exercise of the City’s power, and the State of Michigan has not preempted this area of legislation and regulation, and the ordinance in that respect is valid and enforceable. [Detroit v Qualls, No 81-129784 CZ.[9] The defendant never appealed the judge’s ruling that the storage provision in the ordinance was valid and that the state had not preempted this area of regulation.10 The case now before the Court began on July 2, 1984, when the city charged the defendant in the 36th District Court with three misdemeanor violations concerning the storage provision in the fireworks ordinance.11 The defendant moved to sup*348press and for dismissal, arguing that the ordinance was unconstitutional because it conflicted with state law,12 and that by enacting comprehensive legislation in the area, the state Legislature preempted local ordinances in conflict with the state law. Further, defendant argued that the municipality prohibited that which the state allowed, the storage of reasonable amounts of us dot class c common fireworks13 and that a limitation of one hundred pounds was not rationally related to public safety. The city responded that Judge Hausner’s 1982 order ruling that the storage provision in the *349ordinance was valid was final,14 and that pursuant to that ruling the defendant was in violation of the city ordinance as interpreted in 1982 when he stored more than one hundred pounds of fireworks. Further, the city noted that the municipal ordinance was clothed with the presumption of constitutionality, By virtue of the police powers, the Michigan Home Rule Statute and the Michigan Constitution which allows cities like Detroit to regulate in areas that relate to their municipal concern, and certainly the lives and protection and health and safety of our citizens is a municipal concern. Explosives are a municipal concern and by virtue of the police powers we are permitted to regulate in this area. The defendant argued that there was evidence which proved that there was no danger from an explosion of any amount of us dot class c common fireworks under any conditions. Defendant’s expert, Dr. Conklin, testified at the hearing concerning the hazards associated with the storage of ten types of us dot class c common fireworks when loaded into tubes, the means by which they are sold commercially. He stated that storage of these types of fireworks in tubes, in amounts over one hundred pounds, did not pose a mass explosive hazard. *350The city asked defendant’s expert whether he was aware that defendant’s license allowed him to have not only class c fireworks on the premises but also class b materials and whether, if class B fireworks were stored in the same facility, his opinion would be different concerning the hazards associated with storing amounts in excess of one hundred pounds. The expert acknowledged that there would be a greater hazard in the storage of class b fireworks. The 36th District Court judge dismissed the misdemeanor charge for failure to limit storage of fireworks to under one hundred pounds15 on the basis that the ordinance was unconstitutional as applied to defendant in that he stored only us dot class c common fireworks and the limitation was not rationally related to any interest in the safety and health of the citizens of Detroit: I find . . . the City’s interpretation of the ordinance limiting the amount stored to 100 pounds gross weight is not reasonably related to the City’s interest in the health, safety, and welfare of its citizens. And, as such, is an arbitrary and unreasonable deprivation of the defendant’s property. The court did not reach the issue of preemption on the basis of its belief that that issue, in and of itself, was not dispositive._ *351At a contempt hearing held the following day in Wayne Circuit Court, defense counsel urged Judge Hausner to reconsider his 1982 decision and the record adopted in the 36th District Court.16 The judge stated that his prior order was the law in Wayne County until reversed by a higher court, and held that his 1982 decision that the storage limitation in the ordinance was valid was final.17 In 1986, Judge Hausner conducted hearings in response to defendant’s complaint for declaratory and injunctive relief. He addressed the issue whether the city’s refusal to issue a license for the sale and storage of fireworks, which under state law can be sold and stored without a permit, was reasonable.18 In addition, the city appealed the dismissal of the citation in the 36th District Court, claiming that the storage provision in the ordinance was valid and that the district court was bound by Judge Hausner’s 1982 determination in circuit *352court to that effect.19 The Recorder’s Court overturned the decision invalidating the ordinance:20 On December 11, 1984 the trial court granted the defendant motions dismissing each of the plaintiff’s actions. The court found Ordinance 314-H Chapter 23 unconstitutional. As the Wayne County Circuit Court is a superior court in relation to the 36th District, the latter court was bound by the determination of constitutionality. This court, not being one which is superior to the Circuit Court, is likewise bound by that determination. Initially, the Court of Appeals affirmed the decision of the Detroit Recorder’s Court to remand the case to district court for trial on the charge of storing excess fireworks. People v Qualls, 157 Mich App 552; 403 NW2d 594 (1987). The panel rejected the defendant’s arguments that the storage limitation in the ordinance conflicted with the state statute or that the storage provision in the ordinance was not rationally related to public safety.21 *353The defendant appealed, and, in lieu of granting leave, this Court remanded the case to the Court of Appeals,22 where the panel reversed its earlier decision and affirmed the holding of the 36th *354District Court. People v Qualls (On Remand), 166 Mich App 587, 592-593; 421 NW2d 248 (1988). The panel decided that the Detroit Recorder’s Court erred in holding that the circuit court’s judgment operated as binding precedent because of the superiority of that court,23 and, in view of the essentially unrebutted testimony of defendant’s expert witness, that the storage limitation in the fireworks ordinance was not rationally related to public safety, and that the enactment of the ordinance did not represent an exercise of the city’s police power within the ambit of due process and equal protection.24 Id., p 593. The panel also found Judge Hausner’s 1982 ruling25 not to be significant to the resolution of the issue whether the ordinance was a reasonable and valid exercise of the city’s police power be*355cause at that time the defendant failed to present any evidence which supported his claim that the ordinance was invalid. Id., pp 599-601. In addition, the panel found that Judge Hausner’s 1986 decision, Case No. 85-515546 CZ, was not significant to resolution of the present case because it addressed only whether the ordinance conflicted with the statute, an issue not before the panel on remand. However, the panel did note that it adhered to its previously expressed view that the fireworks ordinance did not conflict with, nor was it preempted by, state law: [T]he Detroit fireworks ordinance at issue was not in direct conflict with either state statute, MCL 750.243d; MSA 28.440(4), or the national standards found in the National Fire Protection Association Code, No. 1124 (formerly 44A), because, unlike the state and federal provisions, the ordinance specifically applies to retail stores. 157 Mich App 555-556. [166 Mich App 601.] This Court granted leave to appeal,26 and the issues briefed and addressed at oral arguments were: 1) whether the constitutional challenge was precluded by the doctrine of collateral estoppel because of the final judgment in the 1982 civil case that involved the same parties, 2) whether the fireworks ordinance is consistent with the Michigan fireworks act, and 3) whether there is a rational basis for the ordinance. ii While we agree with the dissent that the defen*356dant was not precluded from raising the issue whether the ordinance was valid in 1984, we disagree with the basis for the dissent’s conclusion, that is, that a ruling made on a summary disposition motion27 in a forfeiture proceeding, by its very nature, cannot have a binding effect.28 There is no support for the application in this case of the proposition that the nature of the prior proceed*357ings prevents application of estoppel in the subsequent suit.29 Appropriate resolution of the collateral estoppel question turns not on whether the inquiring court characterizes the first proceeding as summary, but rather upon a finding that in the prior proceeding the issue of fact or law was actually litigated and actually determined by a valid and final judgment, and that the determination was essential to the final judgment.30 1 Restatement Judgments, 2d, §27, p 250. Among the requirements courts have set out in order that collateral estoppel may apply are the following: The issue to be concluded must be the same as that involved in the prior action. In the prior action, the issue must have been raised and litigated, and actually adjudged. The issue must have been material and relevant to the disposition of the prior action. The determination made of the issue in the prior action must have been necessary and essential to the resulting judgment. [IB Moore, Federal Practice, ¶ 0.443[1], p 759.] The city is asserting collateral estoppel as a defense, and therefore, it is its burden to persuade the Court that the defendant was precluded from *358raising the issue that the storage provision in the ordinance was invalid as an affirmative defense in 1984 in the 36th District Court.31 The issue in 1982 concerned forfeiture of fireworks seized by the city in 1979, which the city alleged were sold illegally at defendant’s place of business. The court ruled that the ordinance, insofar as it related to the sale and storage of fireworks for retail sale, was valid. The court also issued an order that the storage provision should be construed to mean that a retailer could store up to one hundred pounds of fireworks in any combination of class b and class c. It has never been established whether the fireworks which were confiscated in 1979 were class b or c, or whether the determination that the storage provision in the ordinance was valid was essential to the final judgment. In fact, the record indicates that some of the fireworks were returned to the defendant on the basis of what types of fireworks the items were and how they were classified under state law, and not on the basis that the amounts did not exceed the storage limitation. In 1984, the city cited the defendant for violating the one-hundred-pound storage provision in the ordinance. The defendant asserted that the storage provision was invalid in that he stored only us dot class c common fireworks and that there was no rational reason for a one-hundred-pound storage limitation. Thus, the determination whether the city was authorized to issue a citation for exceeding the storage limitation in the ordinance was necessary to the judgment whether the *359defendant could be prosecuted for violation of the ordinance. The issue whether the storage provision in the ordinance was valid was raised in 1982. However, the city has failed to persuade this Court that the ruling that the storage provision in the ordinance did not conflict with statutory language and that the limitation was reasonable and a valid exercise of the city’s police power32 was actually litigated and determined and that that determination was necessary and essential to the resulting judgment concerning forfeiture.33 Therefore, we hold that the defendant was not precluded from raising the issue as an affirmative defense when prosecuted in 1984 in 36th District Court. Accordingly, we find that the Court of Appeals erred in concluding that Judge Hausner’s ruling in 1982 was not significant to resolution of the present case because in 1982 the defendant failed to present any evidence which supported his claim that the ordinance was invalid. If an issue is raised, and the party who has the burden fails in his proof and the issue is decided against him, he is just as much bound by collateral estoppel as though he had presented an abundance of evidence.34 In addition, the panel erred in concluding that Judge Hausner’s 1986 decision was not significant to resolution of the present case because the ruling addressed only whether the ordinance conflicted with the statute, an issue not before the panel on *360remand.35 In 1986, Judge Hausner conducted hearings for the purpose of determining whether the provision in the ordinance which required a license to sell and store fireworks which are unrestricted for use in Michigan conflicted with the statutory scheme. MCL 750.243a(3)(a)-(f); MSA 28.440(l)(3)(a)-(f).36 Thus, that ruling is not significant to resolution of the present case because the court addressed an issue which had never been raised or litigated by the parties in the 1982 proceeding, and not for the reason stated by the panel. In this case, the city asserted that the defendant was precluded from raising the issue concerning the validity of the storage provision in 1984 by the doctrine of collateral estoppel. We find that the city has not persuaded this Court that the ruling holding the storage provision valid was necessary to the 1982 judgment and, thus, that relitigation of the issue was precluded. Accordingly, we vacate that part of the decision of the Court of Appeals which addresses the collateral estoppel issue. *361III We also disagree with the dissent that the storage provision in the ordinance conflicts with or is preempted by state law. The dissent reasons that the state impliedly permits what it does not prohibit, and thus, since the statute does not prohibit retailers from storing over a specified amount of fireworks, a retailer should be permitted to store any amounts of class c or class b fireworks and any regulation concerning the storage of fireworks by the city would conflict with state law.37 What the dissent appears to be saying is that because the state allows storage of greater than one hundred pounds of class c or class b fireworks upon compliance with all of the requirements under the statute, i.e., local approval for storage buildings, distance requirements from railways, highways and inhabited buildings,38 the city could not limit the amount of fireworks a retailer kept at his place of business, which in this case was a building located less than twenty-five feet from the highway, next to a residential home, and across the street from a gas station. The conclusion reached by the dissent is not supported in law or in fact. Absent a showing that state law expressly provides that the state’s authority to regulate is exclusive,39 that the nature of the subject matter regulated calls for a uniform *362state regulatory scheme,40 or that the ordinance permits what the statute prohibits or prohibits what the state permits,41 The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements. . . . The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith unless the statute limits the requirement for all cases to its own prescription. Thus, where both an ordinance and a statute are prohibitory, and the only difference between them is that the ordinance goes further in its prohibition but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot coexist and be eflfec*363tive. [56 Am Jur 2d, Municipal Corporations, § 374, pp 408-409.] The only requirement under state law, in regard to the amount of fireworks a retailer may maintain on the premises, is that it be a reasonable amount. In other words, the municipality retains reasonable control of fireworks which is such control as cannot be said to be unreasonable and inconsistent with regulations established by state law.42 People v McGraw, 184 Mich 233, 238; 150 NW 836 (1915). This construction allows a municipality to recognize local conditions and enact rules and regulations peculiarly adapted to such conditions. It would be a strange rule indeed were it otherwise. While general problems with reference to fireworks, i.e., wholesale storage of fireworks for shipment within or out of state, regulation of shipment within and out of state, and the use of different classes of fireworks within the state, are statewide concerns, the retail sale and storage of fireworks raise concerns that are local in character, i.e., the location of retailers with respect to densely populated areas, the number of retailers in an area, the amount of use of the materials, and the conflict between the dangers of fireworks and the use of these materials in the community. As hazardous materials, the very nature of fireworks lends itself unquestionably to regulation adapted to local conditions.43 Therefore, we reject the rationale employed by *364the dissent that that which the Legislature does not prohibit, it impliedly permits, and instead find that the storage limitation provision for retailers in the ordinance did not conflict with state law. Accordingly, we affirm that part of the Court of Appeals decision which held the storage provision of the ordinance to be a valid exercise of the police powers of the City of Detroit. iv Having found that the state has not preempted this area of regulation, we address the issue whether the storage provision in the ordinance is unconstitutional. It is well established in Michigan that ordinances are presumed valid and the burden is on the person challenging the ordinance to rebut the presumption. People v Sell, 310 Mich 305; 17 NW2d 193 (1945); 1426 Woodward Ave Corp v Wolff, 312 Mich 352, 357; 20 NW2d 217 (1945). In this case, the defendant challenged the constitutionality of the fireworks ordinance44 after he was charged with violating the storage limitation in 1984, admitting he had approximately four hundred pounds of explosives on the premises, but arguing that he stored only class c common fireworks and the ordinance as related to the storage of these fireworks was not reasonably related to the city’s interest in the health, safety, and welfare of its citizens.45 *365In analyzing claims involving due process and equal protection challenges to statutory schemes, courts first determine the type of matters to which the governmental action relates. When the action relates to matters of economics or general social welfare, the test to determine whether the law comports with due process is whether it bears a reasonable relation to a legitimate governmental purpose. In this case, the defendant’s claim is that the ordinance interferes with his business, and, thus, because it regulates an economic matter, the ordinance need only rationally relate to a legitimate governmental purpose.46 The city asserts that the purpose of the storage limitation is to prevent fire and explosions and, thus, to protect the safety of the people, homes, and businesses in the city. This is clearly a legitimate purpose, and a limitation on the amounts of fireworks which a retail establishment can store within a city bears a rational relationship to public safety. The defendant does not argue that the ordinance is unconstitutional on its face. Instead, the defendant asserts that it is unconstitutional as applied to him on the basis that he stores only us dot class c common fireworks on the premises and that there is no danger in storing those types of fireworks in amounts exceeding one hundred pounds. The 36th District Court agreed with the defendant that the ordinance was unconstitutional as it applied to him because the city could not rebut the defendant’s expert’s testimony that class c fireworks stored alone were not dangerous, nor could it prove that the defendant stored both class b and *366class c fireworks. The court concluded the storage limitation, indeed, was "not reasonably related to the City’s interest in the health, safety, and welfare of its citizens,” and was "an arbitrary and unreasonable deprivation of the defendant’s property.”47 However, the lower court erred in failing to recognize that it was defendant’s burden to rebut the presumption that there was a rational basis for the storage provision in the fireworks ordinance which limited retailers, who under state law need a permit to sell and store class b fireworks for shipment directly out of state, to storage of one hundred pounds of fireworks, in any combination or class,48 and that in the face of a due process or equal protection challenge, "where the legislative judgment is drawn in question,” a court’s inquiry "must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it.” United States v Carolene Products Co, 304 US 144, 154; 58 S Ct 778; 82 L Ed 1234 (1938). A corollary to this rule is that where the legislative judgment is supported by ”any state of facts either known or which could reasonably be assumed,” although such facts may be "debatable,” the legislative judgment must be accepted. Carolene Products Co v Thompson, 276 Mich 172, 178; 267 NW 608 (1936). [Shavers, supra, pp 613-614. Emphasis in original.][49] *367Thus, whether the defendant did, or did not, store class B fireworks was not determinative of the constitutional question. When asked whether amounts over one hundred pounds represented a danger from fire or explosion to persons outside the building, the expert testified, that if [properly situated within the building, that quantity of material could be stored without posing any hazard to people external .... I would strongly recommend that if one had a thousand pounds of gross weight, ... to separate the cases so not all . . . would be involved in a fire at any one time .... [Emphasis added.] Further, the danger of storing mixed fireworks in amounts over one hundred pounds was sufficient justification for the storage limitation in the ordinance. The record supports the city’s claim that it was not unusual for dealers to mix class b and class c fireworks and that, when mixed, the fireworks are more likely to explode. The defendant’s expert testified that there is a greater hazard involved in the storage of class b fireworks, and also that his assumption that the defendant stored only class c fireworks was based on information from the defendant. In fact, the defendant’s expert testified he saw items which looked like class b fireworks when he was on the defendant’s premises. In fact, contrary to the defendant’s claims, the expert witness did not state that the storage of only class c fireworks in any amounts stored alone was not dangerous. Thus, the city’s storage limitation of one hun*368dred pounds was rationally related to a legitimate objective in light of the following: state law permitted the sale and storage of class B fireworks without a permit, it was not uncommon for retailers to store both class c and b fireworks, the defendant himself admitted he sometimes had both types on the premises, and the expert witness testified that storage in amounts over one hundred pounds is hazardous if fireworks are mixed. Thus, on the basis of the "facts either known or which could reasonably be assumed” the city’s judgment must be accepted, and, therefore, we find the storage provision in the ordinance is rationally related to public safety. Accordingly, we vacate the decision of the Court of Appeals affirming the 36th District Court’s finding that the ordinance was unconstitutional. CONCLUSION The defendant was not precluded from relitigating in 1984 the issue whether the ordinance was valid, insofar as it restricted the storage of fireworks by retailers to one hundred pounds or less, because the city has not persuaded this Court that the ruling that the ordinance was valid was actually litigated and determined in the prior proceeding and was essential to the judgment issued in 1982. The Court of Appeals was correct in finding that the storage provision in the ordinance did not conflict with the storage limitations in the statute. However, we find that the Court erred in affirming the decision in 36th District Court that the ordinance was not rationally related to public safety and thus was unconstitutional. Accordingly, we affirm the decision of the Court of Appeals that the storage provision in the ordi*369nance did not conflict with the Michigan fireworks act. We vacate that portion of the opinion which addresses the collateral estoppel issue and the decision affirming the 36th District Court’s dismissal of the misdemeanor charge upon the basis of its determination that the ordinance was unconstitutional. This legal tug of war has generated a decade of litigation between these parties. It may well be that the Court of Appeals will sustain the ruling of the able trial judge who has lived with this situation for years, but we do not yet know that that is so. To avoid the possibility of setting off another round of fireworks below, we stay the effect of judgment in this case pending resolution of the cases now pending in the Court of Appeals. Riley, C.J., and Brickley, Archer, and Griffin, JJ., concurred with Boyle, J. Fireworks Ordinance of the City of Detroit; Ordinance 314-H as amended, Municipal Code, § 19-3-70. MCL 750.243d; MSA 28.440(4). People v Qualls (On Remand), 166 Mich App 587, 592-593; 421 NW2d 248 (1988). We emphasize that this opinion addresses only whether any regulation by the city concerning the retail storage of fireworks, which is not regulated under state law, necessarily conflicts with the fireworks act, and whether there is any rational relation between such a provision and public safety. In doing so we express no opinion on the validity of Judge Hausner’s ruling in 1986 that the ordinance was invalid in its entirety, when addressing the sale and storage of items which under state law a person needs no permit to sell and store, and those items which can be sold for direct shipment out of state without a permit under state law. The city appealed the orders entered pursuant to that ruling, and the Court of Appeals granted the city interim relief by order of June 27, 1989, pending resolution of the appeals growing out of the civil action below which have been consolidated and are presently under submission to the Court of Appeals as Nos. 93518, 94209, 115434,118836,118837, and 118908. The complaint for forfeiture of contraband, filed July 31, 1981, sought permission to destroy the confiscated fireworks, which the city alleged had been stored contrary to city ordinance and state law. The city then filed a motion for summary disposition, on the basis that defendant failed to state a valid defense to the claim brought against him, and that except as to the amount of damages there was no genuine issue as to any material fact. The city asserted defendant’s answer to the city’s complaint for forfeiture admitted his retail license restricted storage to one hundred pounds of fireworks and that he had over that amount of fireworks on the premises. Motion for summary judgment, filed February 22, 1982. Court: But the Attorney General didn’t say that a hundred pounds would be unreasonable, he just said that that statute limiting wholesalers to a hundred pounds didn’t apply to retailers. Why is it unreasonable for the City of Detroit to set a hundred pound limit? Ms. Cumbey: A hundred pounds could be sold in half an hour. There’s just no way you could keep sufficient inventory on hand. Court: Well, but the legislature didn’t authorize more than 100 pounds. Ms. Cumbey: Well, we maintain that by exempting retail dealers from the storage requirements, in effect, they did. The trial judge stated: I’m saying that the state has not preempted — as a matter of law, the State has not preempted local communities from regulating the retail sale of fireworks within their boundaries, and that Detroit’s ordinance, the presumption is of reasonableness, that of validity, and I have nothing to show me that it’s invalid for them to adopt a hundred pound limitation. Defense counsel argued that the issue concerning the validity of the ordinance was not before the court, and the court disagreed, noting that the city’s forfeiture motion raised the issue whether the seizure was within the law and that the defendant’s response was that the ordinance was invalid. The order of June 17, 1982, relative to the construction of the court’s ruling given June 3,1982, stated: It is hereby ordered that the City of Detroit Fire Ordinance Code is construed to mean that a retail seller may store no more than 100 pounds of fireworks in any combination of Class b and Class c. Class b items may be stored only for immediate sale for out of state transportation. Net weight is the weight of fireworks not including shipping cartons, but does include the pyrotechnic material, any fuse material, and any paper or other restraining material. Defense counsel further noted that she intended to bring a declaratory action on this claim and asked the court whether it constituted res judicata because she raised the claim in an answer. The court advised defense counsel to appeal the decision. After viewing the storage in the magazine, the inspector informed the defendant that he might be exceeding the storage limit of one hundred pounds, and left to summon additional help in weighing and listing the fireworks. When the inspector returned, the defendant refused to allow anyone to enter the premises for the purpose of determining the amount of fireworks in storage. The Detroit Consumer Affairs Department which licensed the defendant’s fireworks business issued Citation V-87-516, charging defen*348dant with failure to maintain storage of fireworks to an amount under one hundred pounds, pursuant to city ordinance 314-H, contrary to the Municipal Code of the City of Detroit, § 23-4-9. The Detroit Fire Department issued Citation V-87-517, failure to allow officials to perform the inspection, and V-250-085, refusal to allow entry by city officials for the purpose of making a lawful inspection. Defense counsel noted, [T]he City’s interpretation of the 100 pound limitation as gross rather than net is inconsistent with the accepted interpretations of the term in the various official codes and statutes and it is apparently inconsistent with the enabling paragraphs of the City’s own fire code, and I am referring now to the Fire Prevention Code, Article 1, Section 23-1-1 which says in the last complete sentence of the first paragraph, "Compliance with all existing ordinances of the City of Detroit and laws, rules or regulations of the State of Michigan or compliance with approved nationally recognized safety standards shall be deemed to be prima facie evidence of compliance with this intent and purpose.” Defense counsel also noted that the ordinance itself provided that it shall give way in the face of a conflict with state and federal regulations. Section 19-3-18(c) provides that the ordinance "is intended to be used in conjunction with existing laws and nothing in the article shall be construed as rendering other applicable laws invalid. In any situation where a conflict exists between a provision of this article and any existing law, the existing law shall prevail.” The defendant argued that the state statute and the city ordinance conflicted because the former required only that a reasonable amount of fireworks be kept in storage for retail sale, whereas the Detroit scheme defined a specific amount, i.e., one hundred pounds. In response to the court’s inquiry regarding the 1982 decision in Wayne Circuit Court the defendant asserted that the order was not controlling because (1) the determination at that hearing concerned whether or not under Michigan law retail sales for shipment out-of-state could be made within the state when they otherwise would be prohibited, (2) that a contempt hearing before Judge Hausner was scheduled in December of 1984, and at that time the judge planned on reviewing his earlier determination, and (3) even if the judge’s order could be said to stand for the proposition that this question had been decided, all such determinations were subject to reopening, given a change or development in the state of knowledge with regard to the regulated subject. Citation No. V-87-516. In addition, the court held the search and seizure illegal and granted defendant’s motions to suppress and for dismissal with respect to the remaining two counts. The court found that while the inspector had the initial authority to inspect the premises, once the inspector determined that there was a violation of the law, it became an investigation rather than an inspection, thus requiring consent or warrant or an emergency situation for any legal reentry. The court rejected the city’s argument that there were extenuating circumstances, to wit: that it was very close to the Fourth of July and that if the defendant continued to sell his merchandise the result would be that there could be no citation and no follow-up inspection because the goods would be gone. The parties appeared before Judge Hausner on a motion filed by the city that defendant be held in contempt of his 1982 order that the ordinance, insofar as it regulated retail dealers to one hundred pounds, was valid. The judge concluded that he could not hold the defendant in contempt because that would be action he would take if the 1982 judgment had been rendered in a declaratory judgment action. In this case the court had made a ruling, as opposed simply to issuing an order. In other words, the action appropriate for the city to take would be to enforce the license as interpreted by the court in 1982 by revoking the defendant’s license if he was found to be in violation of the law. Then, if this case were to come to the circuit court and defendant’s license was revoked, the court would apply the law pursuant to the June 17, 1982, ruling. Qualls v Detroit, No. 85-515546 CZ, complaint for declaratory and injunctive relief, issued June 23,1986. Judge Hausner addressed different issues in 1986, that is, (1) whether the city could require a license to sell and store those items [classified as us dot class c "common” fireworks] which under the statute, MCL 750.243d(a)-(g); MSA 28.440(4)(a)-(g), a person would need no permit to sell and store, and (2) whether the city could prohibit the sale of items to consumers for direct shipment and use out of state which is not prohibited by state law under MCL 750.243a(3)(g); MSA 28.440(l)(3Xg). The plaintiff also asserted that the defendant consented to the search by implication in requesting a license from the city since under Ordinance No. 314-H, § 19-3-19(h)(5), the fire inspector has the right to inspect licensed businesses and, further, that it was a regulatory inspection, not an administrative or criminal search. The court did uphold the decision as to the illegality of the search and seizure, finding that once the inspector determined that there was a violation of the ordinance and left the premises, he and any other inspector returning for the purpose of investigating the violation needed a search warrant. (Opinion issued May 23, 1985, by Judge Gardner of the Detroit Recorder’s Court.) The panel found, We hold that the Detroit fireworks ordinance is not in direct conflict with either the state statute or the national standards. The state statute applies to wholesalers, dealers, and jobbers. It was specifically amended to except retailers in 1980. The national standards apply to process buildings, magazines, and storage buildings. The ordinance applies to retail stores. *353Statutes are presumed valid; the burden of rebutting that presumption is on the person challenging the statute. [Citing Shavers v Attorney General, 402 Mich 554, 614; 267 NW2d 72 (1978) , reh den 403 Mich 958 (1978), cert den 442 US 934 (1979).] The presumption of validity also applies to city ordinances. 1426 Woodward Avenue Corp [v Wolff, 312 Mich 352, 357; 20 NW2d 217 (1945)]. We believe that the ordinance in question is rationally related to the city’s power to protect safety, health, and welfare. Obviously, fireworks are explosive and can cause great harm, especially when a large quantity is ignited. Clearly, limiting the amount of stored fireworks in a retail store located in a highly populated area is rationally related to safety. [Id., pp 556-557.] The panel further noted that defendant’s argument that because the district court’s determination as to the constitutionality of the ordinance was based on evidence, it was a finding of fact and, thus, should not be overturned unless the finding was clearly erroneous, without merit: Defendant failed to support its argument with citations to any authority. . . . Furthermore, it is well established that constitutionality is not a question of fact but one of law. 75 Am Jur 2d, Trial, § 414, p 452. Consequently, defendant’s suggestion that the district court’s decision should be reviewed under the standards used for review of factual questions must be rejected. [Id., p 558.] People v Qualls, 428 Mich 918-919 (1987). The following recommended order entered: In lieu of granting leave to appeal, the judgment of the Court of Appeals is vacated and the case is remanded to the Court of Appeals for an expanded opinion. MCR 7.302(F)(1). On remand, the Court of Appeals shall address (a) the content and the significance, if any, of the factual record made in the 36th District Court, (b) the significance, if any, of the proceedings in Wayne Circuit Court files 81-129784-CZ and 85-515546-CZ (including any resolution of the pending appeals in the latter case), and (c) the rationale employed by the Detroit Recorder’s Court in its decision to reverse in part the judgment of the 36th District Court and remand this case for trial. Jurisdiction is not retained. The panel noted, [T]he 1981 statutory amendments provided that a final judgment or order made by the Detroit Recorder’s Court in a misdemeanor or ordinance violation case from the 36th District Court is appealable to the Court of Appeals by leave granted. MCL 600.308(2)(c); MSA 27A.308(2)(c). See also MCR 7.203(B)(2). Thus, in ordinance violation cases reviewed on appeal from the 36th District Court by the Detroit Recorder’s Court, an aggrieved party must seek further appellate review not in the circuit court, as before, but in the Court of Appeals. As a consequence, in such ordinance violation cases, the Detroit Recorder’s Court and the Wayne Circuit Court no longer share a relationship of inferiority and superiority, respectively, but instead now enjoy an equal footing, with their final judgments and orders being subject to review by this Court. In light of these statutory changes, we believe that the rationale of the Recorder’s Court in this case recited in support of its decision to reverse in part the judgment of the 36th District Court — i.e., that a circuit court judgment upholding the constitutionality of the challenged fireworks ordinance operated as binding precedent on the Recorder’s Court — is incorrect. [Id., pp 592-593.] The defendant argued also that there is no rational reason for the storage limitation and that the ordinance is in conflict with state and federal law. Case No. 81-129784 CZ. The city appealed, arguing that the 1982 judgment in the prior litigation between the parties precluded relitigation of the same issue in this case and that, if the Court did reach the merits, the ordinance is valid and does not conflict with state law and is rationally related to protecting the health and safety of the people of Detroit and therefore constitutional. A judgment is considered a determination of the merits, and thereby triggers the doctrine of collateral estoppel on relitigation, even if the action has been resolved by a summary disposition, see, e.g., Detroit v Nortown Theatre, Inc, 116 Mich App 386; 323 NW2d 411 (1982). In fact, "[i]t would be strange indeed if a summary judgment could not have collateral estoppel effect. This would reduce the utility of this modern device to zero .... Indeed, a more positive adjudication is hard to imagine.” [18 Wright, Miller & Cooper, Federal Practice & Procedure, § 4444, p 392, n 2, citing Exhibitors Poster Exchange, Inc v National Screen Serv Corp, 421 F2d 1313, 1319 (CA 5, 1970).] Thus, it is not surprising that the dissent fails to cite any legal authority whatsoever to support this strange contention, and we believe the Court should continue to recognize that, for purposes of collateral estoppel, a ruling rendered on a summary judgment motion will be considered a final disposition on the merits. The dissent would find: We agree with the Court of Appeals that the decision of the Court of Appeals in the 1982 Wayne Circuit Court litigation does not control the disposition of this appeal. Qualls is not precluded from defending, on the basis that the one-hundred-pound storage requirement is invalid, against the charge that he committed a misdemeanor in storing more than one hundred pounds of fireworks. [Post, p 373. Emphasis added.] The dissent incorrectly characterizes the Court of Appeals opinion as one which addresses an appeal of the 1982 ruling; however, the defendant never appealed Judge Hausner’s 1982 ruling. We note that this situation is not one in which the forfeiture proceeding and the criminal prosecution involve the same goods, and the issue becomes whether an acquittal on criminal charges has any effect on forfeiture. See United States v One Assortment of 89 Firearms, 465 US 354; 104 S Ct 1099; 79 L Ed 2d 361 (1984); One Lot Emerald Cut Stones v United States, 409 US 22; 93 S Ct 489; 34 L Ed 2d 438 (1972). A judgment in an equitable action may be pleaded in a suit for money damages, or a judgment in a criminal proceeding can be pleaded in a civil case. In fact, a judgment of an administrative agency may sometimes be pleaded as an estoppel in an action in the district court. United States v Karlen, 645 F2d 635 (CA 8, 1981). Further, as the United States Supreme Court has recognized, there is no rule that the doctrine of collateral estoppel is made inapplicable per se by the fact that the subsequent proceeding involved a criminal case, even though the prior proceedings were civil in character. Yates v United States, 354 US 298; 77 S Ct 1064; 1 L Ed 2d 1356 (1957). It is a flexible judge-made rule generally said to have three purposes: To "relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication,” Allen v McCurry, 449 US 90, 94; 101 S Ct 411; 66 L Ed 2d 308 (1980). If the answer is yes, we need not reach the question whether the ordinance was rationally related to public safety under the well-established principle that we do not determine constitutional questions if the case may be disposed of without such a determination. MacLean v State Bd of Control for Vocational Ed, 294 Mich 45; 292 NW 662 (1940). The judge held that the one-hundred-pound storage limitation bore a reasonable relation to the city’s objective of protecting the safety, health, and welfare of its citizens, representing a valid exercise of the city’s police power within the ambit of due process and equal protection. Shavers v Attorney General, n 21 supra, pp 612-614. The ordinance prohibited the "storage of fireworks in a place of retail sales ... to a gross weight of less than one hundred (100) pounds . . . .” Section 19-3-70(b). United States v Silliman, 167 F2d 607, 617 (CA 3, 1948). See IB Moore, supra, ¶ 0.441[2], p 729. We note that the panel’s discussion, on remand, concerning the rationale employed by the Recorder’s Court in concluding the 1982 circuit court’s judgment was binding on the 36th District Court in 1984, implies erroneously that in Michigan, under the doctrine of stare decisis, an inferior court is bound by opinions of any higher court. However, it is only opinions issued by the Supreme Court and published opinions of the Court of Appeals that have precedential effect under the rule of stare decisis. MCR 7.215(C). Thus, the doctrine of stare decisis has no application regarding the question whether the circuit court judgment was binding on that district court in this case. Although the temporary injunction entered on July 3, 1985, addressed only the issue whether the city could restrict the sale and storage of fireworks which are unrestricted under state law, Judge Hausner’s permanent order also addressed whether the city should permit the defendant to sell and store more than one hundred pounds gross weight of us dot class c common fireworks only, in accordance with the storage provisions of the statute and in a new facility. Qualls v Detroit, No. 85-515546 CZ, complaint for declaratory and injunctive relief, issued June 23,1986. The dissent concludes that from a finding that the Legislature intended to exempt a retail dealer "from complying with the storage requirements of the statute in respect to fireworks displayed for sale at retail,” it follows that the statute "permits the 'storage’ by retailers of class b and class c fireworks in quantities exceeding one hundred pounds . . . (Post, pp 375, 376.) MCL 750.243d; MSA 28.440(4). Noey v Saginaw, 271 Mich 595; 261 NW 88 (1935). Walsh v River Rouge, 385 Mich 623, 635, 639; 189 NW2d 318 (1971). In Walsh v River Rouge this Court preempted a municipal ordinance granting certain emergency powers to the mayor on the basis of a finding that the Legislature intended that the state should retain sole control of the circumstances under which emergency powers would be exercised. Miller v Fabius Twp Bd, 366 Mich 250, 258; 114 NW2d 205 (1962). A municipality cannot pass ordinances that contravene state law, i.e., prohibit that which is permitted by the state, People v McDaniel, 303 Mich 90; 5 NW2d 667 (1942), and the enactment of an ordinance Which directly conflicts with state law or is part of a field of regulation which the state has intended to preempt is prohibited. People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977), cert den 435 US 1008 (1978). The defendant conceded that state law does not expressly preempt local regulation and restriction of fireworks, and argued only that it is clear from the detailed and pervasive statutory control scheme that the Legislature intended to establish uniform, statewide requirements with only certain specified controls being expressly delegated to the local governments, and that the Legislature did not intend to allow municipalities to regulate the sale and storage of fireworks for retail dealers within its locality. Id., p 325, n 12. Both the defendant and the dissent have failed to recognize that it is well established in Michigan that portions of a field not covered by state law are open to local regulation, and that where the nature of the regulated subject matter calls for regulation adopted to local conditions, supplementary local regulation will be upheld, even where the activity is in fact not local but statewide. Miller v Fabius Twp Bd, n 41, supra, pp 257, 259. See Alco Universal Inc v City of Flint, 386 Mich 359; 192 NW2d *364247 (1971) (home rule government is based on the theory that' local governments are in the best position to assess needs and desires of a community). The ordinance prohibited the "storage of fireworks in a place of retail sales ... to a gross weight of less than one hundred pounds.” The plaintiff never conceded, as the 36th District Court noted, that "there is no question but these were class [C] fireworks which were stored on [defendant’s] premises” when he was issued a citation for violation of the ordinance in 1984. Further, although the defendant also raises an equal protection claim, where the law does not classify individuals, the test will be the same as under the due process guarantee. Nowak, Rotunda & Young, Constitutional Law (3d ed), ch 14, § 14.2, p 525. A court only examines a due process or equal protection claim concerning a regulation in light of the eifects on one individual, or a certain group of individuals in very limited circumstances, as for example, when testing legislation as it affects the handicapped or the aged. Tribe, American Constitutional Law (2d ed), § 16-31, pp 1597-1601. See n 43. The test whether an ordinance enacted pursuant to the police power comports with equal protection is, essentially, the same as *367[t]he test to determine whether legislation enacted pursuant to the police power comports with due process is whether the legislation bears a reasonable relation to a permissible legislative objective. [Shavers, supra, p 612. See Michigan Canners v Agricultural Bd, 397 Mich 337, 343-344; 245 NW2d 1 (1976).]

CourtListenerOpinion

2024-06-11T07:23:54.821729

2023-08-26 19:07:23.505426+00

9736811

Levin, J. (dissenting). Glen R. Qualls was charged on July 2, 1984, with the misdemeanor of violating a Detroit fireworks ordinance requiring that "[t]he storage of fireworks in a place of retail sales shall be limited to gross weight of less than one hundred (100) pounds . . . ,”1_ *370The district court dismissed the charge on December 11, 1984, after an evidentiary hearing at which an expert witness testified concerning the danger of explosion of various quantities of class b and class c fireworks, on the ground that the one-hundred-pound limitation is not reasonably related to the city’s interest in the health, safety, and welfare of the citizenry. The charge was reinstated by the Detroit Recorder’s Court on the ground that the district court was bound by a 1982 judgment of the Wayne Circuit Court declaring that the one-hundred-pound limitation was constitutional. The Court of Appeals, on further appeal,2 rejected Qualls’ argument that the storage provision of the ordinance was in conflict with the storage provision of the state fireworks statute which provides that "[t]he storage of fireworks at the site of a wholesaler, dealer or jobber, except for a retailer who has goods on hand for sale to the public in a supervised display area, shall be as” thereafter set forth in the ordinance.3 (Emphasis added.) *371This Court vacated the judgment of the Court of Appeals and remanded the cause to that Court for an expanded opinion.4 *372On remand, the Court of Appeals said that it could not, after review of the evidentiary record made in the district court, find clear error in the district judge’s finding that the storage provision of the ordinance was unconstitutional because it was " 'not rationally related to any interest in the safety and health to the citizens of Detroit.’ ”5 The Court of Appeals, as required by the order of remand, considered the significance of the 1982 Wayne Circuit Court proceedings. It said that the Recorder’s Court had erred in holding that the district court was bound by the Wayne Circuit Court judgment sustaining the validity of the one-hundred-pound limitation.6 It concluded that those "abbreviated proceedings” were of "no significance” in the resolution of "the constitutional issue at bar.”7 *373The Court of Appeals affirmed the decision of the district court dismissing the charge. We agree with the Court of Appeals that the decision of the Court of Appeals in the 1982 Wayne Circuit Court litigation does not control the disposition of this appeal. Qualls is not precluded from defending, on the basis that the one-hundred-pound storage requirement is invalid, against the charge that he committed a misdemeanor in storing more than one hundred pounds of fireworks. We conclude that there is conflict between the one-hundred-pound storage limitation of the ordinance and the storage provision of the statute. We, therefore, agree, although on different grounds, with the conclusion of the Court of Appeals that the one-hundred-pound limitation is invalid. There is, therefore, no need to consider whether there is a rational relationship between the one-hundred-pound limitation and public safety, health, and welfare. *374I The fireworks statute, before it was amended in 1980 by the addition of the words "except for a retailer who has goods on hand for sale to the public in a supervised display area,” required the storage of fireworks at the site of a wholesaler, dealer, or jobber to be in accordance with provisions there set forth.8 The Attorney General provided an opinion in August, 1979, that the storage requirements of the statute applied to a person who sells goods at retail because a person who sells goods at retail is a "dealer” within the meaning of that term as used in the statute. The Attorney General went on to say that "the display of fireworks for sale at retail” need not "be made in a facility which meets the stringent requirements for the storage of fireworks” because the term "storage” did not apply to "goods or merchandise on hand for immediate sale and disposition.” (Emphasis supplied.) He concluded that the provisions of the statute concerning the storage of fireworks did not apply "to the displaying of fireworks for sale by a retailer,” but "observed that the quantity which is displayed for retail sale should be limited to a reasonable amount so as not to constitute the storage of fireworks.”9 The enactment of the 1980 amendment of the fireworks statute, excepting from the storage requirements of the statute a retailer who has "goods on hand for sale to the public in a supervised display area,” was prompted by continued efforts in some counties, despite the opinion of the Attorney General, to apply the storage require-*375merits to fireworks on display for sale at retail.10 The purpose of the 1980 amendment was to expressly set forth that retailers of fireworks were relieved from complying with the storage requirements of the statute in respect to fireworks displayed for sale at retail. The city contends that there is no inconsistency between the storage requirements of the ordinance and of the statute "because state law [statute] pertains to limits on wholesale dealers, while the Ordinance applies to retail dealers.” The 1980 amendment, excepting from the storage provisions of the statute only goods held by a retailer on hand for sale to the public in a supervised display area, appears to confirm the view expressed by the Attorney General that the storage provisions of the statute apply to retailers when they "store” fireworks and are not displaying them for sale at retail. *376The statute11 thus permits the "storage” by retailers of class b and class c fireworks in quantities exceeding one hundred pounds upon compliance with the provisions of the statute. The ordinance, however, provides that the storage of fireworks in a place of retail sales is limited to a gross weight of less than one hundred pounds.12 The one-hundred-pound limitation is therefore preempted by the statute and is invalid.13 The city’s argument ignores that the purpose of the 1980 amendment was to relieve retailers of what some regarded as the "unreasonable hardships”14 posed by the storage requirements set forth in the statute when applied with respect to fireworks on hand for sale to the public in a supervised display area. ii In an action commenced by the city against Qualls in July, 1981, a Wayne circuit judge entered a judgment in 1982, two years before the charges in the instant case were lodged,15 declaring that "the storage for retail sale of fireworks, is a valid exercise of the City’s power, and the State of Michigan has not preempted this area of legislation and regulation, and the ordinance in that respect is valid and enforceable.”16 Qualls did not appeal. Ordinarily, the doctrines of res judicata or collateral estoppel would bar Qualls from relitigating *377in another civil action the question decided in the 1982 action. The Court of Appeals held that Qualls was not precluded because the 1982 decision "was premised on the failure of defendant to present any testimonial or other evidence to establish the invalidity of the fireworks ordinance,” and subsequently an extensive record had been generated by Qualls’ expert witness regarding the safety of the retail storage of more than one hundred pounds gross weight of class c or common fireworks. The Court of Appeals concluded on that basis that the "abbreviated” 1982 proceedings should be of no significance in the resolution of the "constitutional issue at bar.”17 Because we agree with the Court of Appeals that the storage requirement is invalid, not on the basis that there is not a rational relationship between the one-hundred-pound storage requirement and the protection of public health, safety, and welfare, but on the basis that the storage requirement of the ordinance conflicts with the statute, as amended in 1980, the basis on which the Court of Appeals found that the 1982 judgment was not controlling is not in point. We conclude, however, that the 1982 judgment, entered following the "abbreviated proceedings,” should not, as a matter of policy,18 preclude Qualls from defending on the ground that the ordinance is invalid because it conflicts with the statute, as amended, against the *378charge that he committed a misdemeanor19 when he violated the ordinance. A question of public importance is presented for the first time in this Court concerning the validity of an ordinance imposing limitations on the storage of fireworks in light of a state fireworks statute imposing different limitations on the storage of fireworks. The question having been presented, pursuant to this Court’s grant of leave to appeal, it should be addressed on the merits in recognition of the difficulty faced by any litigant who might seek *379a ruling by this Court, particularly in regard to a determination, on summary disposition following abbreviated proceedings respecting the validity of an ordinance, entered in the context of litigation concerning the forfeiture of a relatively small quantity of fireworks.20 Cavanagh, J., concurred with Levin, J._ Sec. 19-3-70. Storage of fireworks. (a) Permit required fee. Storage of fireworks allowed to be sold under .this division shall be allowed only after issuance of a permit indicating that the place of storage is approved by the fire marshal. (b) Retail sales. The storage of Sreworks in a place of retail sales shall be limited to a gross weight of less than one hundred (100) pounds and shall be stored in a Type 2 Indoor Magazine. Places of storage other than retail sales shall meet the minimum requirements of Pamphlet 44A (Manufacture, Transportation and Storage of Fireworks) of the National Fire Protection Association. Percent of the permitted storage amount in a place of retail sales shall be on display. All fireworks in places of retail sales shall be returned to the magazine at the end of the business day. [Fireworks Ordinance of the City of Detroit; Ordinance 314-H, as amended, Municipal Code, § 19-3-70. Emphasis added.] People v Qualls, 157 Mich App 552; 403 NW2d 594 (1987). The storage of fireworks at the site of a wholesaler, dealer, or jobber, except for a retailer who has goods on hand for sale to the public in a supervised display area, shall be as follows: (a) In a 1 story, noncombustible building without a basement, which building is weather resistant, well ventilated, and equipped with a strong door kept securely locked except when open for business. (b) The location of the storage building shall be approved by the local governing authority having jurisdiction, and shall be located not less than the following distances from inhabited buildings, passenger railroads, and public highways according to the number of pounds of fireworks stored, rounded to the nearest pound: Distance From Passenger Net Weight of Fireworks Railways and Public Highways Distance From Inhabited Buildings Class C Fireworks Class B Fireworks Class C Fireworks Class B Fireworks Pounds Feet Feet ' Feet Feet 100 Or less 25 200 50 200 101 to 200 30 200 60 200 *371201 to 400 35 200 70 200 401 to 600 40 200 80 208 601 to 800 45 200 90 252 801 to 1,000 50 200 100 292 1.001 to 2,000 58 230 115 459 2.001 to 3,000 62 296 124 592 3.001 to 4,000 65 352 130 704 4.001 to 5,000 68 400 135 800 5.001 to 6,000 70 441 139 882 6.001 to 8,000 73 509 140 1,018 8.001 to 10,000 75 565 150 1,129 [The figures for 10,001 to 200,000 are omitted.] 200,001 or more 110 1,765 220 3,530 (c) A person shall not cause or allow smoking, matches, open flames, spark producing devices, or firearms inside of or within 50 feet of a building used for the storage of fireworks. A person shall not store combustible materials within 50 feet of a building used for the storage of fireworks. (d) The interior of a building used for the storage of fireworks shall be kept clean and free from debris and empty containers. A person shall not use a building used for the storage of fireworks for the storage of any metal tools or any commodity other than fireworks. (e) A person shall not provide a building used for the storage of fireworks with heat or lights, except that if lights are necessary, an electric safety flashlight or safety lantern shall be used. (f) A building used for the storage of fireworks shall bear lettering on each side and top in letters not less than 4 inches high, the words "explosives — keep fire away.” (g) A building used for the storage of fireworks shall be under the supervision of a competent person, who shall be not less than 18 years of age. (h) In addition to the requirements of subdivision (b), salutes that do not qualify as class c fireworks shall be considered to be hazardous material and shall be stored in accordance with rules for the storage and handling of hazardous material promulgated under section 3c of Act No. 207 of the Public Acts of 1941, as amended, being section 29.3c of the Michigan Compiled Laws. [1980 PA 422, MCL 750.243d; MSA 28.440(4). Emphasis added.] In lieu of granting leave to appeal, the judgment of the Court of Appeals is vacated and the case is remanded to the Court of Appeals for an expanded opinion. MCR 7.302(F)(1). On remand, *372the Court of Appeals shall address (a) the content and the significance, if any, of the factual record made in the 36th District Court, (b) the significance, if any, of the proceedings in Wayne Circuit Court files 81-129784-CZ and 85-515546-CZ (including any resolution of the pending appeals in the latter case), and (c) the rationale employed by the Detroit Recorder’s Court in its decision to reverse in part the judgment of the 36th District Court and remand this case for trial. Jurisdiction is not retained. [People v Qualls, 428 Mich 918-919 (1987).] The Court said that it would not disturb those findings or the judge’s "conclusion that the ordinance, to the extent that it limits the retail storage of class c fireworks to one hundred pounds gross weight, is unconstitutional.” People v Qualls (On Remand), 166 Mich App 587, 597, 599; 421 NW2d 248 (1988). The Court of Appeals said: In light of these statutory changes, we believe that the rationale of the Recorder’s Court in this case recited in support of its decision to reverse in part the judgment of the 36th District Court — i.e., that a circuit court judgment upholding the constitutionality of the challenged fireworks ordinance operated as binding precedent on the Recorder’s Court — is incorrect. [Id., p 593.] The Court of Appeals also concluded that the subsequent 1986 Wayne Circuit Court proceedings were of no significance to the *373resolution of the "constitutional issue at bar” because the Court of Appeals adhered to the view expressed in its 1987 opinion that the Detroit fireworks Ordinance was not in conflict with either the statute or the pertinent national standards (National Fire Protection Association Code, No. 1124) because, unlike the state and federal provisions, the ordinance specifically applies to retail stores. Id., p 601. The Court, in its 1988 opinion (People v Qualls [On Remand], n 5 supra, p 601), referred to its 1987 opinion (People v Qualls, n 2 supra, p 556) where the Court had declared: In the present case, the city fireworks ordinance refers to gross weight, though the state statute and national standards use net weight. As a result, the maximum weight of fireworks a person may stock is substantially lower under the ordinance than under the other two provisions. We hold that the Detroit fireworks ordinance is not in direct conflict with either the state statute or the national standards. The state statute applies to wholesalers, dealers, and jobbers. It was specifically amended to except retailers in 1980. The national standards apply to process buildings, magazines, and storage buildings. The ordinance applies to retail stores. See n 3 for text. OAG, 1979-1980, No 5536, pp 335, 336-337 (August 9,1979). The Legislative Service Bureau Analysis of the 1980 amendment states: The Michigan Penal Code establishes certain requirements for the storage of fireworks at the site of a "wholesaler, dealer, or jobber,” which include regulations governing the type of building within which fireworks may be stored, the location of such a building, and the distance which such a building must be from railways, highways, and other buildings. Violation of these requirements is a misdemeanor. In opinion no. 5536 issued August 9, 1979, the attorney general held that while a retailer must comply with these regulations when storing fireworks, the requirements do not apply to the display of fireworks for sale at retail. Despite this riding, prosecutors in some counties reportedly continue to hold that the penal code’s storage requirements apply to fireworks on display for sale at retail. There are those who believe that the application of fireworks storage requirements to retailers imposes unreasonable hardships, particularly given that retail outlets have to meet local fire codes which should provide adequate protection to the public without additional regulations. Thus, they would like to see the law clarified to exempt retailers who have fireworks on display for sede to the public from these requirements. [House Legislative Analysis, SB 1095, December 4, 1980. Emphasis added.] See n 3 for text. See n 1 for text. See Walsh v River Rouge, 385 Mich 623, 637; 189 NW2d 318 (1971). See n 10. The Wayne Circuit Court judgment was entered May 14, 1982. The instant prosecution was commenced on July 2,1984. The action was commenced by a complaint for forfeiture of a quantity of fireworks as contraband. People v Qualls (On Remand), n 5 supra, pp 599-600, 601. Exceptions to the General Rule of Issue Preclusion. Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances: (1) The party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action; or (2) The issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b) a new determina*378tion is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws; or (3) A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them; or (4) The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the first action; or (5) There is a clear and convincing need for a new determination of the issue (a) because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action, (b) because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or (c) because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action. [Restatement Judgments, 2d, § 28, pp 273-274. Emphasis added.] Cf. Pike v City of Wyoming, 431 Mich 589, 598-599, 608; 433 NW2d 768 (1988). It has been said: That a civil judgment against a defendant does not preclude his relitigating the same fact issues when they arise in a subsequent criminal prosecution, see, e.g., United States v Casale Car Leasing, Inc, 385 F2d 707 (CA 2, 1967); United States v Koenig, 388 F Supp 670 (SD NY, 1974). Cf. McKinney v Alabama, 424 US 669; 96 S Ct 1189; 47 L Ed 2d 387 (1976). [Restatement Judgments, 2d, § 85, comment h, p 303.] See subsection (5) ("incentive” to litigate) of § 28 of the Restatement of Judgments, 2d, n 18 supra. See, however, United States v Baltimore & O R Co, 229 US 244, 253-254; 33 S Ct 850; 57 L Ed 1169 (1913), holding that a prior decree in an equity action refusing to enjoin the replacement of a bridge over the Ohio river was "res judicata as to the facts averred in the indictment and as decisive of the question, that in the absence of changed conditions the bridge in question was not subject to the act of 1899,” and that the trial judge correctly directed a verdict of not guilty in a criminal prosecution for refusing to alter the bridge. See also Washington Twp v Gould, 39 NJ 527; 189 A2d 697 (1963), holding that a trailer-park operator prosecuted for expanding a nonconforming use in violation of a zoning ordinance was "estopped,” from challenging or raising as a defense to the prosecution the constitutionality of the provisions of the ordinance respecting trailer parks, by prior litigation which was terminated by entry of a judgment based on the stipulation of the parties allowing the trailer-park operator to continue to operate his trailer park with thirty-five spaces as a nonconforming use and which barred expansion except as provided by law and upon application to local officials and agencies.

CourtListenerOpinion

2024-06-11T07:23:54.830300

2023-08-26 19:07:23.513286+00

9736812

LEVINE, Justice. Speedway, Inc. appeals from a district court judgment upholding the decision of Job Service North Dakota requiring Speedway, Inc. to pay job insurance taxes on income received by Shirley Struckness. We affirm. Speedway, Inc. constructed a new building located near Minot for purposes of operating a supper club and lounge. Speedway, Inc. owns the building and all equipment. From its inception, the cafe and lounge has been run by Struckness. Speedway, Inc. has an oral “lease” agreement with Struckness under which she pays rent of $3,200 a month plus 75 percent of the monthly net profit over $800 realized by the supper club and lounge. Struckness receives the first $800 of monthly net profit from the business and 25 percent of all additional profit. In a Job Service questionnaire, Struckness responded that her work is to “manage” the operation and that she does “whatever needs to be done to run the business,” for which she receives a “paid percentage.” Struckness’ duties include hiring and firing of personnel, ordering supplies and paying the bills from the business checking account. In 1987, Job Service issued a determination requiring Speedway, Inc. to pay job insurance taxes on income received by Struckness. The determination was appealed by Speedway, Inc., and, following a hearing, an appeals referee reversed the initial decision, concluding that Struckness was merely leasing the business from Speedway, Inc., and that her income was not subject to job insurance taxation. That decision was then reviewed by the Executive Director of Job Service who concurred with the initial determination that Struckness’ income should be taxed. Speedway, Inc. appealed to the district court which upheld the decision of Job Service’s Executive Director. Speedway, Inc. then appealed from the district court’s judgment. When an administrative agency decision is appealed to the district court and then to this court, we review the decision of the agency. Schultz v. North Dakota Department of Human Services, 372 N.W.2d 888 (N.D.1985). Our review of administrative decisions is governed by Section 28-32-19, N.D.C.C. One of the requirements under that provision is for us to determine whether the agency decision is in accordance with the law, and in making that determination we look to the law and its application to the facts. Bickler v. North Dakota State Highway Commissioner, 423 N.W.2d 146 (N.D.1988). On appeal, Speedway, Inc. asserts that because the Job Service referee was the only party that “saw and heard the evidence and witnesses first hand” this court must review the referee’s decision rather than that of the Executive Director. We disagree. A similar argument was made in Schultz, supra. In that case, the agency’s Executive Director was not present at the hearing and allegedly could not have examined the testimony given at the hearing because the transcript of the hearing had not been prepared when the director made his decision. We explained our review of the agency’s decision: “The administrative officer deciding a case need not actually hear the witnesses testify or hear oral argument, but the officer deciding the case must consider and appraise the evidence before reaching a decision.... Although a hearing examiner has the advantage of hearing *528and seeing witnesses testify, an agency may reject the examiner’s decision even on a question involving the credibility of contradictory witnesses.... A court’s review of an agency decision does not include probing an agency decisionmaker’s mental process if a hearing was given as required by law.... 5(5 * sf< * * ⅞! “Our inquiry is limited to a review of the findings, conclusions, and decision of the agency under the appropriate standard of review.” Schultz, supra, 372 N.W.2d at 892. The final decision of Job Service was made by its Executive Director and it was from his decision that Speedway, Inc. appealed to the district court. Consequently, we review the decision of the Executive Director to determine whether Speedway, Inc. has raised an appropriate ground for reversal of the agency’s determination. Speedway, Inc. asserts that it should not be required to pay job insurance taxes on Struckness’ income and that Job Service’s contrary conclusion is based on an erroneous application of Section 52-01-01(17)(e), N.D.C.C., which provides: “e. Services performed by an individual for wages or under any contract of hire must be deemed to be employment subject to the North Dakota Unemployment Compensation Law unless and until it is shown that: (1) such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; (2) such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of the enterprise for which such service is performed; and (3) such individual is customarily engaged in an independently established trade, occupation, profession, or business.” [Emphasis added.] Under the foregoing provision, an individual who meets the criteria under subparts (1), (2), and (3), is deemed to have independent contractor status for purposes of exempting her income from job insurance taxation. This is commonly referred to as the “ABC Test.” Speedway, Inc. concedes that Struckness cannot meet the requirements of the ABC test, but asserts that her income is not subject to job insurance taxation because Struckness does not fall within the definition of a person who performs services “for wages or under any contract of hire.” The term “wages” is defined under Subsection 52-01-01(31), N.D.C.C., which provides in relevant part: “31. ‘Wages’ means all remuneration for service from whatever source, including commissions and bonuses and the cash value of all remuneration in any medium other than cash....” The term “contract of hire” is not defined under the statute. We agree with Speedway, Inc. that Section 52-01-01(17)(e), N.D.C.C., unambiguously requires a person to perform services either for wages or under a contract of hire to be deemed employed for purposes of unemployment compensation taxation. However, we do not agree with Speedway, Inc.’s narrow interpretation of the phrase “contract of hire,” which Speedway contends is “substantially the same as the ‘services performed by an individual for wages’ condition.” When interpreting a statute, effect must be given to each provision of the statute, if possible. County of Stutsman v. State Historical Society, 371 N.W.2d 321 (N.D.1985). Under Section 52-01-01(17)(e), N.D.C.C., services are subject to the unemployment compensation laws if they are performed for wages or under any contract of hire. Since the Legislature has defined wages as meaning “all remuneration for service from whatever source ... ”, the phrase “contract of hire,” to be meaningful under the statute, must encompass services other than or in addition to those performed for wages, as defined by the statute. In Unemployment Compensation Division v. People’s Opinion Printing Co., 70 *529N.D. 442, 295 N.W. 656 (1941), this court construed the phrase “contract of hire” under a predecessor statute similar to Section 52-01-01(17)(e), N.D.C.C. The Unemployment Compensation Division of the Workers Compensation Bureau contended that the president of a corporation performed services under a contract of hire and was, therefore, an employee subject to job insurance taxation. The president received no compensation of any kind for the work that he did on behalf of the corporation. Although he performed presidential duties such as countersigning checks and certificates of stock, presiding at director and stockholder meetings, and signing various corporate reports, he did not perform any services in connection with the management or conduct of the corporation’s business. This court held that the president was not an employee working under a contract of hire, because the acts he performed on the corporation’s behalf were gratuitous and were acts necessary for maintaining the defendant as a corporation, rather than acts involving the management or conduct of the corporation’s business. Our rationale in People’s, supra, provides guidance in this case for determining whether Struckness’ income is subject to job insurance taxation. Struckness’ services are clearly distinguishable from those performed by the corporate president in People’s, supra. Struckness manages the corporation’s business of operating a restaurant and lounge. Her services are not gratuitous, but rather, she receives a share of the business’s profits. Under these circumstances, we conclude that Struckness is an individual who performs services under a contract of hire and that her income is, therefore, taxable under Ch. 52-01, N.D.C.C. We reject Speedway, Inc.’s argument that, because Struckness does not receive a specific salary or other direct payment from Speedway, Inc., but is compensated only with a percent of the business’s net profits, she is not performing services under a contract of hire. We are not alone in deciding that the absence of salary or direct payment does not preclude the existence of a contract for hire. E.g. Employment Division v. Sura-ta Soy Foods, Inc., 63 Or.App. 221, 662 P.2d 810 (1983); Sanders v. Oklahoma Employment Security Commission, 430 P.2d 789 (Okla.1967); Department of Employment Security v. Charlie’s Barber Shop, 230 Md. 470, 187 A.2d 695 (1963); Unemployment Compensation Commission v. Harvey, 179 Va. 202, 18 S.E.2d 390 (1942). In Employment Division v. Surata Soy Foods, Inc., 63 Or.App. 221, 662 P.2d 810 (1983), the Oregon Court of Appeals was asked to construe its unemployment insurance law which required taxation of persons employed for remuneration under a “contract of hire.” The court determined that member workers of a cooperative corporation were employees under a contract of hire whose income was subject to taxation, even though they only received a share of the organization’s profits and, in the absence of profits, did not receive any compensation. A nearly identical statutory provision to our unemployment insurance law was also construed by the Oklahoma Supreme Court in Sanders v. Oklahoma Employment Security Commission, 430 P.2d 789 (Okla.1967). In that case, there were three barber shops staffed with nine barbers. Each barber had signed a written “lease” agreeing to pay the owner of the shops 30 percent of the barber’s net earnings. The owner asserted that each barber was engaged in an independent profession whose income was not, therefore, subject to job insurance taxation. The Oklahoma Supreme Court disagreed, concluding that, in effect, each barber was under a contract of employment performing a part of the business being conducted by the owner of the barber shops. The court refused to construe the lease agreements to negate the employment relationship which the court found existed for purposes of job insurance taxation: “We are of the opinion that in the present case the lease between the barbers and Sanders is nothing more than a contract of employment. Sanders is the sole proprietor of the three barber shops, and each of the barbers is performing a *530part of the regular business being conducted by Sanders. The lease makes no real or substantial change in their relationship. The law considers substance rather than form. The execution of the lease may not serve as a vehicle to circumvent what would otherwise be a statutory obligation. * •{. * * * * “The ultimate purpose of Sanders in establishing these three businesses was for profit. The barbers were employed to carry out that purpose. They were obligated to render such services as were ordinary and incidental to that type of business.” Sanders v. Oklahoma Employment Security Commission, supra, 430 P.2d at 791-792. Under factual circumstances substantially identical to those in Sanders, supra, the Maryland Court of Appeals, in Department of Employment Security v. Charlie’s Barber Shop, 230 Md. 470, 187 A.2d 695 (1963), reached the same conclusion as the Oklahoma Supreme Court that the barbers operating under a “lease” agreement were performing services subject to the unemployment compensation laws of that state: “Here, the three ‘lessees’ performed personal services for remuneration, even though they were paid by the customer, not by appellee. The amount collected as rent may have been the amount of profit appellee expected to make if he had paid them out of total receipts. Therefore, we find that the barbers here were in covered employment....” Department of Employment Security v. Charlie’s Barber Shop, supra, 187 A.2d at 698. The Virginia Supreme Court of Appeals, in Unemployment Compensation Commission v. Harvey, 179 Va. 202, 18 S.E.2d 390 (1942), concluded that an employee relationship may exist even though income is based upon a share of the business profits, rather than a wage or salary: “Even at common law the existence of the relation of master and servant does not depend upon the payment of wages or a salary by a master direct to the servant. The compensation of the employee may consist of commissions or a share of the profits of the employer’s business.” Unemployment Compensation Commission v. Harvey, supra, 18 S.E.2d at 396. Following the rationale of the foregoing cases, we conclude that the oral lease in this case should not be construed to circumvent imposition of job insurance taxes on Struekness’ income. Struekness is performing services under a contract of hire by managing Speedway, Inc.’s restaurant and lounge for which she receives a share of the business’s profits. Having reviewed the record in this case, we conclude that the agency’s decision to impose job insurance taxation on Struckness’ income is in accordance with the law. The judgment of the district upholding Job Service’s decision is affirmed. ERICKSTAD, C.J., and VANDE WALLE and GIERKE, JJ., concur. VERNON R. PEDERSON, Surrogate Justice, sitting in place of MESCHKE, J., disqualified.

CourtListenerOpinion

2024-06-11T07:23:54.835008

2023-08-26 19:07:24.622826+00

9736813

VERNON R. PEDERSON, Surrogate Justice, dissenting. The record in this case supports a conclusion that Struekness’ relationship to Speedway, Inc., is an ambiguity. Some of the evidence does corroborate the conclusion that Struekness is an employee, other evidence negates that conclusion — not an uncommon scenario when complex commercial contracts are oral. Judicial deference toward administrative agency determinations ordinarily warrant affirmance. However, I believe that those cases which tend to allow only a blind, knee-jerk deference ought to be reexamined and redefined to permit courts to reject administrative agency determinations such as those which make a mockery of due process offered by an administrative law hearing proceeding which has been handled by an experienced hearing officer who has made adequate findings and conclusions. *531Although it might appear from this court’s holding in Schultz v. North Dakota Department of Human Services, 372 N.W.2d 888 (N.D.1985), that in this state judicial deference is absolute, we have not always followed that practice. See, e.g., Allstate Ins. Co. v. Knutson, 278 N.W.2d 383 (N.D.1979); Insurance Services Office v. Knutson, 283 N.W.2d 395 (N.D.1979); and Blocker Drilling Canada, Ltd. v. Conrad, 354 N.W.2d 912 (N.D.1984). Some jurisdictions have specifically held that an agency may not reject its hearing officer’s finding unless there is no competent substantial evidence from which the finding could be inferred. Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla.Ct.App.1985). See generally also The Procedural Due Process Approach to Administrative Discretion: The Courts’ Inverted Analysis, 95 Yale L.J. 1017 (1986), and Keeping ’Em Honest, 62 Law Inst.J. 836.

CourtListenerOpinion

2024-06-11T07:23:54.836813

2023-08-26 19:07:24.626836+00

2207482

325 Mass. 612 (1950) 91 N.E.2d 826 JOSEPH F. RUGO vs. GUIDO L. RUGO & others. Supreme Judicial Court of Massachusetts, Suffolk. December 6, 1949. April 5, 1950. Present: QUA, C.J., LUMMUS, WILKINS, SPALDING, & COUNIHAN, JJ. F.T. Leahy, (W.B. Shevary with him,) for the defendant Guido L. Rugo. A.F. Bickford, (R.C. Sheppard with him,) for the plaintiff. WILKINS, J. This is a bill in equity to establish a trust of personal property in the possession of the defendant Guido L. Rugo, as trustee, and to obtain an accounting. Also named defendants are Leonard P. Rugo, a beneficiary, against whom no relief is sought, and National League Baseball Club of Boston, Inc., against which there are prayers for an injunction with respect to matters no longer in issue. From a decree ordering the defendant Guido L. Rugo (hereinafter sometimes called the defendant) to pay to the plaintiff $117,360.04 with interest from November 1, 1945, in the sum of $23,058.81, the defendant appealed. The bill was dismissed as to the other defendants. The judge filed findings and an order for decree. The evidence is reported. The plaintiff and the two individual defendants are brothers, who were formerly employed by their father in the contracting business. After the father's death they continued the business, which was incorporated in this Commonwealth in 1928 under the name of Rugo Construction Company, Inc., the respective stockholdings being Joseph and Guido each forty per cent and Leonard twenty per cent. Joseph was president, Guido treasurer, and Leonard clerk, and the three were the directors. In 1929 a fund was orally established by the brothers with Guido in charge, but whether it was the same fund as a so called "wage fund" in effect in 1935, or whether it was a trust, and for whose benefit and in what proportions, were among the disputed issues. The judge found that the brothers established the fund "to help out" the company; that the money in the fund was to be kept in cash, and controlled and managed by Guido; that ownership was to be forty per cent each in Guido and Joseph, and twenty per cent in Leonard; that from 1929 on, the *614 brothers made contributions to the fund, and loans were made to the company, which gave notes payable to Guido; that the money belonged to the brothers and not to the company; that from 1929 until November 1, 1945, the total contributions to the fund were $1,145,037, including the profit from stock transactions; and that the fund was controlled, managed, and held by Guido under an oral trust for the benefit of the three brothers in the above percentages. In 1932 and 1933 when the business of the company fell off, by agreement of the brothers Guido bought and sold stocks, the accounts being in the name of Guido or his wife. The amount of $60,000, accumulated between 1929 and 1932, was used in the stock market between 1932 and 1935, with a resulting profit of $10,269. In the latter part of 1935 the company resumed its regular construction business and made a large profit. The brothers agreed to draw substantial salaries and bonuses, and to contribute the remaining profits to what was then called a "wage fund," for the use of the company in case of need, to be handled by Guido. The judge found that there was no distinction made by the brothers, "the owners of the `fund,' between the `fund' which existed before and [the one which existed] after 1934"; and that Guido handled the "wage fund" in the same manner as he had handled the "fund" from 1929 to 1935. The arrangement was that the company bookkeeper made out checks for the salaries of the brothers, and deposited to the credit of each so much as he was to draw, and the balance was given to Guido to be held in the "wage fund." In 1941 there was a transfer of $165,000 from notes payable into the capital account of the company, and loans which had been made from the fund to the company were treated as paid. Beginning in 1942 Joseph began to make demands upon Guido "for an accounting of the fund," and made requests for the transfer of his forty per cent interest. In October, 1945, Joseph made demand "for a final accounting," and severed active connection with the company. There followed numerous meetings of Joseph, Guido, and *615 their representatives. These demands were not met by Guido except as to certain transactions with the National League Baseball Club of Boston, Inc. In 1941 and 1944 $74,175 of the fund had been invested in the capital stock of the baseball club, and all but one of the stock certificates had been taken in the name of Guido, who had possession of them all. On February 6, 1948, Joseph received forty per cent of the stock. On December 19, 1946, and February 28, 1947, respectively, loans of $102,500 and $7,500 had been made to the baseball club, for which notes had been given payable to Guido. During the hearing Joseph received an assignment of forty per cent, or $44,000, of the total of these notes. The judge found that Guido failed to keep an accurate account of the contributions to, and the disbursements from, the fund between 1929 and 1932, when money was being lent to the company; that he failed to keep an accurate account of the investment in stocks bought and sold by him between 1932 and 1935; that there was great difficulty in determining the exact amount of money in the fund during those periods; that his methods of keeping the accounts were loose, confused, and irregular; that before and after the commencement of the suit, and even after the hearing began, he destroyed records relating to the fund; that, in consequence, the determination of the final account figures was made most difficult; that, in order to determine those figures, there were required the services of certified public accountants employed by both parties during a suspension of the hearing; that Guido did not know what the fund amounted to from 1928 to 1945; that, without consulting Joseph, he subordinated the $110,000 loan from the fund to the baseball club to a note and mortgage of $200,000 of the club held by a bank; that he never rendered Joseph an account when requested to do so; and that he is not entitled to compensation for services rendered as trustee or to counsel fees in this suit. The details of the judge's findings showing the computation of the amount ordered paid in the final decree appear *616 in a footnote.[1] There was evidence to support the several items. The defendant's contentions are largely factual and to the effect that some of the judge's findings are plainly wrong. Thus, he contends that there was not one fund, but at least two, one beginning in 1929, and another beginning in 1935; that the company was the beneficiary of the earlier fund; and, seemingly, that there was no trust, but that the defendant was a mere custodian, and not a trustee. These contentions cannot prevail. The existence of a trust does not depend upon the terminology used. Packard v. Old Colony Railroad, 168 Mass. 92, 96. Robinson v. Cogswell, 192 Mass. 79, 84. Sherwin v. Smith, 282 Mass. 306, 311-312. Restatement: Trusts, § 23, comment a; § 24, comment b. Scott, Trusts, §§ 23, 24. In Attorney General v. Bedard, 218 Mass. 378, 386, it was said, "We cannot doubt that the defendants, the custodians and managers of this fund, are under the same obligations as if they expressly had been made the trustees thereof." If a settlor properly manifests an intention to create a trust, one may be found to exist. *617 Povey v. Colonial Beacon Oil Co. 294 Mass. 86, 90. Levy v. Levy, 309 Mass. 486, 489-490. An express trust in personal property may be created and proved by parol. Stuck v. Schumm, 290 Mass. 159, 163. Greeley v. Flynn, 310 Mass. 23, 27. Russell v. Meyers, 316 Mass. 669, 672. The defendant had title to substantially all the property, and possession and control of it all. Scott, Trusts, § 8. The evidence, which need not be narrated, was ample to support the finding that there was one fund, a trust fund, established in 1929, of which the defendant is the trustee, and of which the brothers are the beneficiaries, interested not equally as alleged in the defendant's answer, but in the proportions of forty per cent each to the plaintiff and to the defendant and twenty per cent to Leonard. The burden of proving the existence of the trust was upon the plaintiff, but, that being established, the defendant had the burden of showing that he had discharged the duties of trustee with reasonable skill, prudence, and judgment. Knowlton v. Fourth-Atlantic National Bank, 271 Mass. 343, 350-351. Chopelas v. Chopelas, 294 Mass. 327, 334; S.C. 303 Mass. 33, 35. This included the duty to keep clear and accurate accounts, and the consequences of any failure to comply with this duty must fall upon him. Akin v. Warner, 318 Mass. 669, 674, and authorities cited. The defendant concentrates much of his attack upon the finding that the total amount of the fund was $1,145,037. He argues that there was no credible evidence where the fund came from prior to 1934; that the amount contributed by the brothers between 1935 and 1945 was $687,038.54, according to the testimony of the plaintiff's accountant and the defendant's accountant, who worked on the matter during the suspension of the hearing; and that the stock market profit was only $10,269. The testimony of the accountants was that the contributions between 1935 and 1945 were $751,738.54, of which $64,700 came from a small group of employees, most of whom were relatives of the brothers. There was nothing, however, requiring the judge to find that the brothers are *618 not the owners of the entire fund, whatever its source. The defendant's answer, moreover, is in substance an admission, binding upon him, of the allegations of the bill that the brothers are the beneficiaries of the whole fund. G.L. (Ter. Ed.) c. 231, §§ 87, 144. Bancroft v. Cook, 264 Mass. 343, 348. Alpert v. Radner, 293 Mass. 109, 110-111. Kneeland v. Bernardi, 317 Mass. 517, 520. The contributions to the fund between 1935 and 1945 in which the brothers alone shared clearly could have been found to be $751,738.54. As to the contributions before 1935, except for the relatively small item of stock market profit, it is true that no very specific evidence was given. But the defendant's own testimony included a claim for compensation for handling a fund "on that little over $1,000,000." This could have been taken to mean the figure of $1,145,037,[1a] as to which there was testimony from the plaintiff that he had obtained from the defendant figures showing contributions to the fund from 1928 to 1945 in this total amount. The judge was not plainly wrong in finding this to be the total amount of contributions. This was a consequence of failure to keep adequate accounts. The defendant's argument would be more impressive were the legal duty of showing the items of the trustee's account upon the beneficiary. In any event, the judge could and perhaps was required to find that the defendant's methods of keeping accounts were loose, confused, and irregular. If anything, his findings on this issue were understatements. It would not be helpful to detail numerous errors and shortcomings of a trustee who kept inadequate records consisting of loose slips of paper and no books, never knew the amount of the fund, kept the fund including the cash in the same safety deposit box with other cash and property not related to the trust, took title to some of the baseball club stock in his own name, became individually the payee of the notes of the baseball club, never adequately accounted, and destroyed *619 records including those upon which the plaintiff's testimony as to the total contributions to the fund was based. The defendant argues that the trust is irrevocable, "to be terminated only when its objects had been accomplished." Without intimating that this argument is sound, it is enough to say that it is not open to the defendant under his answer. The bill alleges that the purpose of the trust has been completely fulfilled, and nothing remains to be done except for the trustee to make distribution and to account. The defendant's answer, while denying that the fund is a trust, alleges that it "is subject to the right of any of the parties who contributed to the fund to withdraw the balance of their contributions which remained in said fund, after credit has been given for advances made to or in behalf of the persons who wish to withdraw their money." The defendant, who has not pleaded illegality, states flatly in his original brief that the findings are plainly wrong because "the purpose of the whole scheme whereby the fund was founded and accumulated was illegal." In his supplemental brief he takes the conditional position that "if the plaintiff's claim that moneys taken from the corporation and from the ... group [of employees] were collected for the use and benefit of the three brothers, then the scheme was illegal." Both contentions are without merit. Plainly neither finding was required. Whatever the alleged illegality, the plaintiff could make out a case without showing it. Lufkin v. Jakeman, 188 Mass. 528, 532. O'Gasapian v. Danielson, 284 Mass. 27, 34. Gerace v. Gerace, 301 Mass. 14, 18-19. Kerwin v. Donaghy, 317 Mass. 559, 572-573. Monahan v. Monahan, 77 Vt. 133, 141-142. The defendant, without directing attention to any specific questions to witnesses, urges generally that there was error in admitting evidence of conversations and documents "between the parties and their counsel ... although they all related to efforts to compromise the dispute." On the other hand, the plaintiff denies this and argues that the judge could properly find that certain meetings and conferences *620 were held for the sole purpose of procuring and expediting an accounting and were not for the purpose of compromising any disputes. If confronted with this issue, we might accept the plaintiff's contention. We cannot, however, regard the defendant's argument as sufficiently definite to prevent the question from being treated as waived. Except for a reference in one of his briefs to an exhibit entitled "Memorandum of settlement accounting on March 20, 1948, by and between Guido L. Rugo and Joseph F. Rugo," which was admitted in evidence without objection, we are not sure precisely what questions to witnesses or items of evidence are referred to. If we understand correctly their identity, none of the questions was the subject of an exception, but all such evidence was admitted de bene. This evidence may have been, as the plaintiff argues, part of a subject matter originally opened up by the defendant. We cannot be certain that much of the same matter was not otherwise admitted in evidence without objection. But the defendant is beset by another difficulty which is insuperable. At the close of the evidence he made a motion to strike out "all the evidence accepted de bene." The only action thereon by the judge appears in the findings as to the purposes of the conferences, contained in his findings and order for decree. There was no compliance by the defendant with Rule 72 of the Superior Court (1932). His appeal from the final decree did not take the place of filing exceptions, under that rule, to rulings made in his absence. G.L. (Ter. Ed.) c. 214, § 25. Certain minor arguments or suggestions of the defendant merit brief discussion. There was no error in denying the defendant compensation. Brooks v. Jackson, 125 Mass. 307, 310-311. Shulkin v. Shulkin, 301 Mass. 184, 193-194. Lydia E. Pinkham Medicine Co. v. Gove, 303 Mass. 1, 4. See Spilios v. Papps, 292 Mass. 145, 147; Wiley v. Fuller, 310 Mass. 597, 602. Nor was there any abuse of discretion in denying him counsel fees. Bogle v. Bogle, 3 Allen, 158, 161. Blake v. Pegram, 109 Mass. 541, 558. Comstock v. Bowles, 295 Mass. 250, 263. The defendant properly was charged *621 with interest. White v. Ditson, 140 Mass. 351, 362-363. Zak v. Zak, 305 Mass. 194, 197. Restatement: Trusts, § 207. See Winchell v. Plywood Corp. 324 Mass. 171, 181. Decree affirmed with costs. NOTES [1] contributions to fund . . . . . . . . $1,145,037 00 Less miscellaneous deductions: Taxes, contributions, expenses . . . . $440,736 Loss U.S. Trust stock . . . . . . 1,131 Error . . . . . . . . . . 1,000 442,867 00 ________ _____________ Balance November 1, 1945 . . . . . . . $702,170 00 Less: Rugo Construction Co. . . . . . . $165,000 Baseball club stock and loans . . . . 184,175 349,175 00 ________ _____________ $352,995 00 Less miscellaneous deductions . . . . . . . 18,427 40 _____________ $334,567 60 Plus 1946 expenses . . . . . . . . . 7,250 00 _____________ $341,817 60 Forty per cent to plaintiff . . . . . . . $136,727 04 Less sums owed by plaintiff: Loan . . . . . . . . . . $8,950 Hinckley Road property . . . . . . 10,417 19,367 00 ________ _____________ Plaintiff's balance in fund . . . . . . . $117,360 04 Interest thereon November 1, 1945, to February 9, 1949. 23,058 81 _____________ Amount in final decree . . . . . . . . $140,418 85 [1a] In this total, the stock market gain was taken at $12,400, instead of at the $10,269 found by the judge. This variation is offset by the deduction found by the judge of $1,131 for loss on "United States Trust stock" and $1,000 for an error, two undisputed items.

CourtListenerOpinion

2024-06-11T07:23:54.841621

2013-10-30 08:36:20.233321+00

9736814

WUEST, Chief Justice. Don B. Woodfork (Woodfork) appeals from a judgment of conviction for first degree rape. We affirm. On the evening of April 18, 1988, the victim of the rape (victim) went with friends to the Reunion Bar in Rapid City. There she met Woodfork with a man named Ed Sapp (Sapp). Prior to this evening, the victim had dated Sapp. The victim approached Sapp and began visiting with him. At some point during the evening the victim’s friends left the Reunion Bar. Sapp and the victim then decided they would go to Ellsworth Air Force Base to get Sapp’s ear. Sapp asked Woodfork for a ride to his car and Woodfork agreed. Shortly thereafter, Woodfork, accompanied by a woman named Margretta Kellum (Kel-lum), left the Reunion Bar with Sapp and the victim. The victim, Sapp, Woodfork and Kellum did not go directly to the Air Force Base. Instead, they attended a party. Before attending this party, the four stopped at a convenience store where the victim purchased some cigarettes and shoplifted a pack of condoms at the request of Sapp. After attending the party, the four went to Kellum’s house. Time passed and the victim eventually decided to spend the night at Kellum’s house. Woodfork and Kellum went up to the second floor of the house, and the victim undressed and went to bed. Shortly thereafter, the victim began to worry about staying the night at Kellum’s because she had to work the next morning. She then got out of bed, dressed, and attempted to find a ride home. Sapp and Woodfork offered to give the victim a ride home and she accepted. Woodfork, who was driving the car, did not take the victim to her home, but instead went to Canyon Lake Park. According to the victim, Woodfork stopped the car at the park and pulled her out of the car. Wood-fork then struck the victim and led her to a picnic shelter where he directed the victim to remove her clothing. The victim refused and Woodfork struck her again, giving her a bloody nose. Woodfork then removed the victim’s clothing. At that time, Wood-fork and Sapp began to search through the victim’s clothing. The victim tried to escape at that time but she was tackled by Woodfork not far from the shelter. Wood-fork then took the victim back to the shelter. According to the victim, Woodfork forced himself upon her and had intercourse with her. After having intercourse with the victim, Woodfork began to leave when the victim asked him where her clothes were. He told the victim he would retrieve her clothes and instructed her to stay in the shelter. He never returned. Woodfork threw her clothes in a nearby pond and then left the park with Sapp. The victim, unable to find her clothes, went to a nearby convenience store where the police were contacted and an ambulance summoned. On the basis of these facts, Woodfork was later charged and convicted of first degree rape. Woodfork raises several issues on appeal. We address them separately without listing them. Woodfork first contends the trial court erred in refusing to grant his requested instruction relating to the issue of consent. The record reflects that Wood-fork requested that the jury be given the following instruction: It is a defense to a charge of rape that the defendant entertained a reasonable and good faith belief that the female person voluntarily consented to engage in sexual intercourse. If from all the evidence you have reasonable doubt whether the defendant reasonably and in good faith believed she voluntarily consented to engage in sexual intercourse you must give the defendant the benefit of the doubt and find him not guilty. This instruction is similar to the requested instruction denied by the trial court in State v. Faehnrich, 359 N.W.2d 895 (S.D.1984) which we labeled as a “mistake of *334fact” instruction in upholding the trial court. Although the trial court refused to give the jury this instruction, the record reflects that the following instruction was given to the jury: An act is not a crime when committed or omitted under an ignorance or mistake of fact which disproves any criminal intent. Where a person honestly and reasonably believes certain facts, and acts or fails to act based upon a belief in those facts, which, if true, would not result in the commission of a crime, the person is not guilty. In addition to this instruction which similarly addresses the issue of “mistake of fact,” several other instructions were given to the jury which indicated that Woodfork’s guilt must be established beyond a reasonable doubt before the jury could find him guilty of rape. In spite of these instructions which were given to the jury, Woodfork contends that the trial court committed reversible error in refusing to give the jury his requested instruction. We disagree. It is well-settled in South Dakota that it is not error for a trial court to refuse to amplify instructions given which substantially cover the principle embodied in the requested instruction. Wheeldon v. Madison, 374 N.W.2d 367, 372 (S.D.1985); Jahnig v. Coisman, 283 N.W.2d 557, 560 (S.D.1979). It is also well settled that jury instructions must be considered as a whole in determining if error was committed in giving or refusing to give certain instructions. Runge v. Prairie States Ins. of Sioux Falls, 393 N.W.2d 538, 540-541 (S.D.1986); Wheeldon, supra. In the present case, we believe the instructions given to the jury, when considered as a whole, substantially cover the principle embodied in Woodfork’s requested instruction. The “mistake of fact” instruction which was given to the jury and the instructions concerning the “reasonable doubt” standard, when read as a whole, indicate that if the jury should entertain a reasonable doubt as to whether Woodfork reasonably believed the victim consented to intercourse, then Woodfork should be found not guilty. This is precisely the principle embodied in Woodfork’s requested instruction. It is clear then that Woodfork’s requested instruction would only serve to amplify the instructions which were given to the jury. Therefore, we find no error in the trial court’s refusal to grant Woodfork’s requested instruction. We next address Woodfork’s contention that the trial court erred in excluding evidence relating to the victim’s theft of condoms at the convenience store before the rape took place. Prior to trial, the State submitted a Motion in Limine arguing the trial court should refuse to allow evidence regarding the shoplifting of the condoms by the victim. The State argued this “shoplifting” evidence was not relevant to any issues relating to the charge of first-degree rape against Woodfork. Woodfork countered by arguing the “shoplifting” evidence was relevant to the victim’s character for truthfulness, and hence was admissible under SDCL 19-14-10.1 Woodfork also argued such evidence was relevant upon the issue of consent, and hence was admissible under SDCL 19-12-5 for the purposes of proving motive, preparation and plan.2 The trial court, having reviewed the briefs of each party relating to these issues, subsequently granted the State’s *335Motion in Limine. Although the trial court prohibited Woodfork from submitting evidence to the effect the victim had “shoplifted” the condoms, it did allow Woodfork to present evidence to the effect that she had “obtained” the condoms at the convenience store. On appeal, Woodfork contends that the trial court erred in refusing to allow the “shoplifting” evidence under both SDCL 19-14-10 and SDCL 19-12-5. Wood-fork also alleges that the trial court erred in failing to balance the probative value and prejudicial effects of such evidence on the record, as provided in State v. Eagle Hawk, 411 N.W.2d 120, 126 (S.D.1987). We first address Woodfork’s argument regarding the admissibility of the “shoplifting” evidence under SDCL 19 — 14— 10. In addressing this argument, we first note that the admission of testimony involves two inquiries: first, whether the evidence is relevant and, second, if relevant, whether the prejudicial effect of the evidence outweighs its probative value. State v. Reutter, 374 N.W.2d 617, 625 (S.D.1985); State v. Rose, 324 N.W.2d 894, 895 (S.D.1982). In the present case, the trial court concluded the “shoplifting” evidence was not relevant to the victim’s character for truthfulness or untruthfulness. Having reached this conclusion, there was no need for the trial court to proceed to the next step of balancing the probative value of such evidence against its prejudicial effect. Therefore, we do not believe the trial court erred here in failing to conduct an on-the-record balancing of the probative value and prejudicial effects of the “shoplifting” evidence. This leaves us with the question of whether the trial court abused its discretion in ruling the “shoplifting” incident was not relevant to the victim’s character for truthfulness or untruthfulness, and was therefore inadmissible. We have previously stated that before we will disturb an evidentiary ruling, it must be determined that an abuse of discretion has occurred. State v. Bartlett, 411 N.W.2d 411, 414 (S.D.1987). An abuse of discretion “refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” State v. Bartlett, supra; Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984). The issue of whether shoplifting or petty larceny is relevant to a person’s character for truthfulness or untruthfulness is certainly debatable. A number of courts have held that such evidence is not indicative of a person’s character for truthfulness or untruthfulness, and hence should not be allowed at trial for the purpose of attacking the credibility of a witness. See generally, State of Nebraska v. Williams, 212 Neb. 860, 326 N.W.2d 678, 679 (1982); State of Washington v. Burton, 101 Wash.2d 1, 676 P.2d 975, 982 (1984); State of Oregon v. Reitz, 75 Or.App. 82, 705 P.2d 762, 764 (1985). Although we do not adopt this view as a general rule, we believe these authorities at least suggest that the trial court’s ruling was not clearly against reason and evidence. Additionally, we believe the circumstances under which this shoplifting incident occurred also suggest the trial court’s ruling with respect to this issue was not clearly against reason and evidence. The record clearly reflects this shoplifting incident took place late at night, after the victim had been drinking liquor for several hours. Shoplifting under these circumstances indicates even less about a person’s character for truthfulness than it otherwise might under more normal circumstances. Considering these facts and the above-mentioned authorities, we cannot conclude the trial court abused its discretion in refusing to admit the shoplifting evidence under SDCL 19-14-10. We next address Woodfork’s argument that the shoplifting evidence should have been admitted by the trial court under SDCL 19-12-5 as it was probative of motive, preparation and plan. With respect to this issue, the record shows the trial court refused to admit the “shoplifting” evidence under SDCL 19-12-5 because it was not relevant to any issues relating to the charge of first-degree rape brought against Woodfork.3 Having reviewed the record in *336this case, we agree the shoplifting evidence was not relevant to any material issues in this case and thus we hold the trial court did not abuse its discretion in refusing to admit such evidence under SDCL 19-12-5. In the present case, it is undisputed that the victim obtained the condoms at the request of Sapp, not Woodfork. Furthermore, there was never any statement or suggestion that the victim was to obtain the condoms so that both Sapp and Wood-fork could engage in sexual intercourse with her. The fact the victim already had one condom on her possession prior to the shoplifting incident bears little significance since Sapp apparently had none and wanted some. Moreover, the victim may have desired to engage in sexual intercourse with Sapp more than once. From these facts, it is clear the victim shoplifted the condoms for the purposes of having sexual intercourse with Sapp, not Woodfork. ' It is clear, therefore, that the shoplifting evidence bears no relevance to the issue of consent in this case.4 Hence, we conclude the trial court did not abuse its discretion in denying admission of the shoplifting evidence under SDCL 19-12-5. Woodfork has also asserted that the trial court erred in refusing to instruct the jury on simple assault as a lesser included offense of first degree rape. We find no merit in this assertion. This issue was presented to this court in State v. Antelope, 304 N.W.2d 115 (S.D.1981). In Antelope, we stated: ‘[I]t is the evidence developed at trial that governs the matter of the instructions to be given....’ State v. Watson, 264 N.W.2d 519, 521 (S.D.1978). In this case appellant admitted that the act occurred, so there is no doubt that there was penetration. Under the facts of this case, either a rape occurred, or it did not. The only question was whether the victim had consented. Even if simple assault could be viewed as a lesser included offense of rape, and we do not hold that it is, the evidence would not warrant such an instruction since there was penetration. Antelope, supra at 117-118. Similar to the facts in Antelope, Woodfork also admitted that the act occurred, and there was no doubt that there was penetration. Based upon the facts of this case then, either a rape occurred, or it did not. Therefore, in this case as well as in Antelope, even if simple assault could be viewed as a lesser included offense of rape (again, we do not hold that it is), the evidence would not warrant such an instruction as penetration did occur. Woodfork next contends that the trial court erred in refusing to allow him to cross examine the victim about her prior sexual encounters with Sapp. We disagree. As a general rule, the admission of evidence concerning a rape victim’s prior sexual conduct is precluded by SDCL 23A-22-15.5 This statute, like rape shield laws in other jurisdictions, represents a legislative determination that in most instances, such evidence is not relevant and highly prejudicial to the victim. State v. Blalack, 434 N.W.2d 55, 57 (S.D.1988) (citations omitted). Evidence of a rape victim’s prior sexual encounters may be admitted if the trial court finds that it is relevant and material to a fact at issue in the case. Blalack, supra. This determination is entrusted to the sound discretion of the trial court. Id. We will not interfere with the *337trial court’s determination unless an abuse of discretion is clearly demonstrated. Id. In the present case, the trial court concluded that the evidence concerning the victim’s prior sexual encounters with Sapp was not relevant or material to any fact at issue in the case. Therefore, cross-examination of the victim regarding that matter was prohibited.6 Woodfork now contends that the trial court abused its discretion in prohibiting such cross-examination because he claims that the evidence of the victim’s prior sexual encounters with Sapp was relevant to the issue of consent. We find no merit in this argument. The record in this case is devoid of any substantial evidence which would tend to suggest that because the victim had consensual sexual intercourse with Sapp, then she would be inclined to have consensual sexual intercourse with Woodfork. The victim’s prior sexual encounters with Sapp suggest little more than her willingness to engage in sexual intercourse with Sapp. It bears no relevance to the issue of whether the victim may have consented to sexual intercourse with Woodfork. As a result, we cannot conclude that the trial court abused its discretion in refusing to allow Woodfork to cross-examine the victim regarding her pri- or sexual conduct with Sapp. We next address Woodfork’s contention that the trial court abused its discretion in allowing the jury to view photographs of the victim taken shortly after the rape. In State v. Swallow, 350 N.W.2d 606 (1984), we stated the following: Photographs, slides and X-rays are admissible when they accurately portray anything which it is competent for a witness to describe in his own words, or where they are helpful as an aid to a verbal description of objects or conditions and relevant to some material issue. Swallow, supra at 610. In addition to this, we have also stated that the “trial court, in determining whether pictures or photographs should be admitted, must weigh the probative value of the photographs in resolving a material issue as against the danger of prejudice to the appellant through needless arousals of the passions of the jurors.” State v. Kane, 266 N.W.2d 552, 558 (S.D.1978). Having applied these rules to the present ease, we conclude that the trial court did not abuse its discretion in allowing the jury to view the photographs in question. The record clearly reflects that the trial court considered the probative value of these photographs together with the prejudicial effects that they may have. Having given due consideration to these matters, the trial court then concluded that these photographs could be displayed to the jury. We do not believe the trial court abused its discretion in reaching this conclusion. Both the victim and the doctor who treated her testified that the photographs were accurate depictions of the victim’s appearance shortly after the rape. In fact, the doctor stated that-the victim’s appearance after the rape was worse than what the photographs depicted. Furthermore, these photographs were clearly relevant to the central issue of force in this case. We must conclude, therefore, that the trial court committed no error in allowing the jury to view the photographs in question. Woodfork finally argues that the cumulative effect of all these alleged errors effectively deprived him of his right to a fair trial. As we have determined that the trial court committed no errors in this case, we reject this argument presented by Wood-fork. It is clear then that Woodfork was not deprived of his right to a fair trial in any manner. Judgment is affirmed. MORGAN and MILLER, JJ., concur. HENDERSON and SABERS, JJ., dissent. . SDCL 19-14-10 provides: Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in §§ 19-14-12 to 19-14-16, inclusive, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. . SDCL 19-12-5 provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . Again, as the record indicates the trial court concluded that such evidence was not relevant, *336there was no need for the trial court to conduct an on the record balancing analysis of the probative value and prejudicial effects of such evidence. . Even if this evidence was to be considered relevant upon the issue of consent, the "shoplifting” evidence would still be irrelevant under SDCL 19-12-5 since the manner in which the victim obtained the condoms is insignificant for the purpose of proving motive, preparation or plan. . SDCL 23A-22-15 provides: In prosecutions for rape, evidence of specific instances of a victim’s prior sexual conduct shall not be admitted nor reference made thereto before the jury or jury panel, except as provided in this section. Whenever a party proposes to offer evidence concerning a victim’s prior sexual conduct, the court shall first conduct a hearing in the absence of the jury and the public to consider and rule upon the relevancy and materiality of the evidence. . In addressing this issue, we believe it is worthy to note that the evidence of the victim’s prior sexual encounters with Sapp was ultimately brought to the attention of the jury through Woodfork’s direct examination of Sapp towards the end of the trial.

CourtListenerOpinion

2024-06-11T07:23:54.845903

2023-08-26 19:07:26.331489+00

9736815

HENDERSON, Justice (dissenting). I respectfully dissent. Woodfork did not receive a fair trial. He had an “inherent *338right” to “defend his liberty.” Art. VI, Bill of Rights § 1, S.D. Const.* He could not defend his liberty because (1) he advanced the defense of consent and the trial judge refused — in several ways — to permit him to effectively prove consent; (2) the trial judge would not allow testimony concerning the theft of condoms; (3) the trial judge did not allow cross-examination about statements the victim made concerning pri- or sex acts with appellant and Sapp; (4) the jury was not specifically instructed that “consent” created a defense to first degree rape. Mistakenly, and with belabored judicial effort to keep the critical facts from the jury, was this case tried. The criminally accused’s right to proffer a defense is fundamental. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297, 312 (1973); United States v. Garner, 581 F.2d 481, 488 (5th Cir.1978); United States v. Ballesteros-Acuna, 527 F.2d 928, 930 (9th Cir.1975); and United States v. Thomas, 488 F.2d 334, 335 (6th Cir.1973). This constitutional right to present evidence, and thus a defense, is grounded in the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, Chambers, and in S.D. Const, art. VI, §§ 2 and 7. Thus, the accused “is entitled to have the jury consider any theory of the defense which is supported by law and which has some foundation in the evidence, however tenuous. Tatum v. United States, 190 F.2d 612, 617, 88 U.S.App.D.C. 386 (D.C.Cir.1951); United States v. Phillips, 217 F.2d 435, 442-443 (7th Cir.1954).” United States v. Grimes, 413 F.2d 1376, 1378 (7th Cir.1969). See also, United States v. Chatham, 568 F.2d 445, 450 (5th Cir.1978). In State v. Dokken, 385 N.W.2d 493, 504 (S.D.1986), we reversed a conviction of first degree murder and ordered a new trial because it was “overwhelmingly clear that Dokken’s substantial rights were so violated that he did not receive a fair trial.” Dokken, in his second trial, was acquitted. I am convinced that the “cumulative effect” of the improper rulings deprived Woodfork of his right to a fair trial. Dokken, at 494. Victim's acts of stealing condoms, in preparation to go out with a man (or men) to have sex and then cry rape (after intercourse) is a combination of contradictory or incongruous acts. The jury should have been permitted to know that she would steal condoms to fulfill her plans to engage in sexual acts. An offer of proof to hear this evidence was denied by the trial judge. This evidence had probative, material value. It was error to exclude it. This evidence (stealing condoms) was relevant to her credibility. Theft, does it not, reflects upon honesty/dishonesty? Dishonesty, does it not, reflects upon credibility? Credibility, does it not, reflects upon the jury’s overall assessment of the witness’ testimony? Under SDCL 19-14-10, it is the general rule that specific instances of the conduct of a witness — to attack his or her credibility — may not be established by extrinsic evidence. There are two exceptions, however. One of these relates to his/her character for truthfulness or untruthfulness. Example before us: The complaining witness’ specific conduct of stealing condoms to go out and have sex bears on her credibility, her direct credibility that she was forcibly raped. In SDCL 19-12-1 we find: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Even if evidence is relevant, a trial judge may, by law, exclude relevant evidence. Such power is granted unto him by SDCL 19-12-3. If the evidence is prejudicial, misleading or cumulative, the trial judge may exclude the evidence. Before us, the evidence was not violative of this state statute. Therefore, it should not have been excluded. Furthermore, under SDCL 19-12-3 “other crime evidence” has been held admissible by this Court. State v. Holland, 346 N.W.2d 302 (S.D.1984); State v. Rose, 324 N.W.2d 894 (S.D.1982). “Other crime evidence” must *339meet two tests: (1) Is it relevant? (2) If relevant, does the prejudicial effect of the evidence substantially outweigh its probative value? State v. Reutter, 374 N.W.2d 617 (S.D.1985). Granted that this Court has, through decisions, held that “other crime evidence” may be used by the prosecution to convict (a) if relevant and (b) its prejudicial effect does not outweigh its probative value, why is it so wrong to allow the defense to establish “other crime evidence” which proves up the defense? Both prosecution and the defense — on the battlefield of truth — should have to play by the same set of rules! Impartiality and the equal administration of justice demands that we seek not a result but, rather, apply the law with neutral force; state judges or justices we might be, but chattels of the state, to do its bidding, we are not. Alleged victim admitted, under oath, to smoking marijuana on the night of the rape. An independent witness provided testimony that the alleged rape victim removed her underpants at her home before leaving (for the nocturnal activities). Bra, too. Victim, at independent witness’s home, displayed her pubic area to Wood-fork. Victim is white; Woodfork is black. A used condom was found by police at the “rape” site. Woodfork's singular defense was that of consent. Victim testified she voluntarily partied the night in question with Woodfork and his male friend and accepted a ride home. This scenario was not a platonic “stroll in the park” situation. Plato’s contemplation of the “universal” and the “ideal” to a close relationship between two persons — where sexual desire was suppressed or sublimated to further a great ideal — did not mentally abound. Woodfork was entitled to cross-examine his accuser. Woodfork’s direct examination of Sapp, at the end of the trial, is not a substitute for cross-examination of the accuser. Cross-examination is a vital tool in the arsenal of a defense lawyer and his client because it is the best method for testing the trustworthiness of testimony. To strip it away is to eliminate the right to defend the accused’s liberty. This is another example of why Woodfork was denied a fair trial. Charged with First Degree Rape, he was denied the right to effectively cross-examine the “victim” concerning previous sexual encounters directly relevant to the crime of which he stood accused. U.S. Const, amend. VI; S.D. Const, art. VI, § 7. Although briefed to this Court, the majority opinion conspicuously avoids treatment of the prejudicial error rule. This is understandable as the Chief Justice of this Court stood alone in State v. Davis, 401 N.W.2d 721 (S.D.1987). By swift, literary passage on previous lonesome waters, the author of the majority opinion now sails past a discussion of prejudicial error. As the captain (sole) of this dissent, bottomed on the premise that prejudicial error was committed below, I cannot, conceptually, lay anchor. In Davis, I cited fourteen separate cases in this Court, plus made reference to a scholarly article of former Chief Justice Roger Traynor of the California Supreme Court, on “The Riddle on Harmless Error,” all regarding harmless error. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), was also cited. I began my Chapman recognition in a dissent in State v. Chief Eagle, 377 N.W.2d 141 (1985). Again, I point out, as I did in my concurrence-in-result in Davis, that an appellate body must determine if the question involves (a) a violation of a state procedural provision (b) a violation of a state constitutional provision or (c) a federal constitutional transgression. Reference is also made to my special concurrence in State v. Remacle, 386 N.W.2d 38, 40 (S.D.1986), reflecting that the scope of review cannot go back to State v. Reddington, 80 S.D. 390, 125 N.W.2d 58 (1963), as well as its progeny, if a federal constitutional error arises. If a federal constitutional error does arise, the basic tenets of Chapman becomes applicable. This, then, triggers that a court must declare a belief that it was harmless beyond a reasonable doubt. Each case must be examined to determine what type of error was committed below. If the conceptual road is not laid out from the beginning (like the Interstate), any appellate body can take the wrong fork, get on the gravel, with destination unknown. The reasonable doubt *340hurdle only comes into play when a constitutional violation is apparent. I would adopt the reasonable doubt standard, in this case, because both state and federal constitutional error was committed. Why? Elementary, my dear Watson. The trial judge, by numerous evidentiary errors, absolutely refused to permit Woodfork from defending his liberty by a dogmatic refusal to permit any evidence that the victim consented, thereby precluding a fair trial Art. VI, Bill of Rights, § 1, S.D. Const.; Chambers, id.; Tatum, id. In State v. Webb, 251 N.W.2d 687 (S.D.1977) we held that the harmless error rule should never be used to justify fairness at trial. This Court should stand above the affray of advocacy to prevent the harmless error rule from being an instrument of wrong. Point: The eviden-tiary errors of the trial court were not harmless. “Absent [the alleged error] ... is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?” I say no. We cannot answer this question yes, because the judge would not permit Woodfork to proffer his defense for the jury to consider. See, United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1969). Certainly Woodfork had the right to.create a reasonable doubt and the facts of this case are neither speculative nor fantastic about creating a doubt. A jury would not be speculating upon a fantastic defense. Rather, the jury would be deliberating upon the truth of a defense, namely consent. I quote 1A. Wigmore, Evidence § 139, at 1724 (Tillers rev.1983): [I]f the evidence [offered by the accused] is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford the accused every opportunity to create that doubt. A contrary rule is unfair to a really innocent accused. Academically, can the majority opinion truly use Faehnrich as its primary authority for a refusal to give Woodfork's requested instruction on voluntary consent? There does not appear to be any instruction which explicitly mentions “consent. ” In Faehnrich, 359 N.W.2d at 900 we expressed: “In a forcible rape case, a defendant is not entitled to any consent instruction where the evidence of guilt of lack of consent is overwhelming.” In Faehnrich, by making that statement, we relied on State v. Havens, 264 N.W.2d 918 (S.D.1978). We held in Havens that “... consent may be a defense where there is evidence offered and received that the victim did indeed consent; however, that evidence would also have to utterly negate any element of force, coercion or threat.” I sincerely submit that the evidence of guilt or lack of consent is not overwhelming in the case before us. Again, the consent defense was stripped from Woodfork in the instructions. Remember the facts, as you judge the merits of this writing, that testimony from an independent witness established that the alleged rape victim removed her underpants and her bra, at the independent witness' home, and displayed her pubic area to the accused. Those facts, plus her stealing condoms that night certainly negates that there is no evidence of guilt or lack of consent which is “overwhelming.” Faehnrich is totally inapposite. Justice Sabers, in his dissent, alludes to Michalek. Continuing a decade of writing on the prejudicial error rule in this Court, again I wrote specially therein to concur and to also preserve the integrity of my previous position. In said special concurrence, I wrote that State v. Farley, 290 N.W.2d 491 (S.D.1980) was the controlling case for that set of facts. Moreover, reaching back to the granddaddy, I cited State v. Reddington, 80 S.D. 390, 396, 125 N.W.2d 58, 62 (1963), for the general proposition “There is no definite rule by which to measure prejudicial error and each case must be decided on its own facts.” Point: Prejudicial error occurred here. Therefore, I hereby vote to reverse this conviction of forcible rape and would remand this case for retrial so that Woodfork could fairly present his defense. It provides, inter alia: "All men are born equally free and independent, and have certain inherent rights, among which are those enjoying and defending life and liberty, of acquiring and protecting property and the pursuit of happiness."

CourtListenerOpinion

2024-06-11T07:23:54.849345

2023-08-26 19:07:26.336779+00

9736816

SABERS, Justice (dissenting). I dissent for these five reasons: *3411. The trial court committed reversible error when it refused defense testimony that the “victim” shoplifted the package of condoms. To permit the “sanitized” testimony that she merely “obtained” the condoms simply does not cut it. The defense theory was that the sex acts were consented to, not forced. Defense testimony showed that the victim had sex with Defendant and Ed Sapp on the same night on a prior occasion; that she told Sapp that they were both “good” the last time and she would like to have sex with them again. Sapp further testified that the victim got out of the car by herself and walked with Defendant from the car to the park with their arms around each other. Whether this defense testimony is true is for the jury to decide, not the trial court and not the appellate court. Therefore, it was reversible error to deny the jury the relevant facts. State v. Dokken, 385 N.W.2d 493 (S.D.1986). Whether the victim wanted to have sex with both Sapp and Defendant so bad that she risked arrest and punishment by shoplifting a package of three condoms is highly relevant. This is especially so when one considers that she already possessed one condom. If she only wanted sex with Sapp one condom was probably sufficient. At any rate, it was a jury question and it was reversible error to deny the jury that information. Dokken, supra. 2. The victim’s admission that she stole condoms is also relevant to her credibility and probative of untruthfulness under SDCL 19-14-10. 3. The state and federal constitutions guarantee the accused in a criminal proceeding the right to confront witnesses against him. U.S. Const, amend. VI; S.D. Const, art. VI, § 7. Despite these constitutional provisions, the trial court refused to allow the defense to cross-examine the victim concerning prior voluntary sexual encounters with Sapp connected to prior voluntary sexual encounters with Defendant and the statements attributed to her that “she enjoyed it last time” and “she wanted both of [them] again.” The majority opinion whitewashes the trial court ruling on the basis of SDCL 23A-22-15 (Rape Shield Law), State v. Blalack, 434 N.W.2d 55 (S.D.1988), or because the evidence was “not relevant or material.” Certainly, whether she wanted to have sex with “them” again was both relevant and material to the defense that she consented. SDCL 19-12-1 states that evidence is relevant when it has a “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.” Whether the victim consented to the sex acts is a fact of consequence to the determination of this action. Evidence that the victim had consented to sex with Defendant in the past makes it more probable than it would be without that evidence that she consented again. Likewise, evidence that the victim had sex with Sapp just prior to having sex with Defendant and that Sapp instructed Defendant to go have sex with the victim makes it more probable than it would be without that evidence that the victim consented to sex with Defendant in the past. The same is true of evidence that the victim told Sapp she thought “both of [them] were good the last time,” and she wanted both of them again. Sapp told Woodfork of this conversation. Therefore, evidence of the victim’s prior sexual encounters with Sapp is highly relevant, and Woodfork should have been allowed to cross-examine the victim about these matters. Unfortunately, we have apparently “laid to rest” the following statements from State v. Wounded Head, 305 N.W.2d 677, 680 (S.D.1981): We recognize that the opportunity to cross-examine any prosecution witness is central to the fundamental right of confrontation and to the conduct of an effective defense. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). However, the “extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court,” Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624, 629 (1931), and the *342trial court may always limit cross-examination to prevent repetitive and unduly harassing interrogation. Davis v. Alaska, supra. That discretion, however, must be exercised “with the utmost caution and solicitude for the defendant’s Sixth Amendment rights.” United States v. Houghton, 554 F.2d 1219, 1225 (1st Cir.1977), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977). The trial court’s “latitude in the control of cross-examination ... ‘cannot ... justify a curtailment which keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony. ’ ” United States v. Harris, 501 F.2d 1, 8 (9th Cir.1974), quoting Gordon v. United States, 344 U.S. 414, 423, 73 S.Ct. 369, 375, 97 L.Ed. 447, 455 (1953). (emphasis added). I would revive these statements and reverse and remand for a fair trial in accordance with our state and federal constitutions. Cross-examination is perhaps the most effective means of challenging a witness’ credibility, and this case hinges upon the credibility of Defendant and the victim. The muzzle that the trial court placed upon Defendant’s cross-examination of the victim denied Defendant his fundamental right to conduct an effective defense. 4. The errors of the trial court constitute “prejudicial error.” The correct definition of prejudicial error was stated in State v. Michalek, 407 N.W.2d 815, 818-819 (S.D.1987): “Prejudicial error” is error which in all probability must have produced some effect upon the jury’s verdict and is harmful to the substantial rights of the party assigning it. [Dokken, supra at 498]; State v. Reddington, 80 S.D. 390, 396, 125 N.W.2d 58, 62 (1963).... SDCL 23A-44-14 defines harmless error as “[a]ny error, defect, irregularity or variance which does not affect substantial rights[.]” The harmless error rule governs even constitutional violations, not requiring the automatic reversal of a conviction, provided the court is able to declare a belief beyond a reasonable doubt that the error was harmless and did not contribute to the verdict obtained. State v. Heumiller, 317 N.W.2d 126, 130 (S.D.1982) citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). In United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), the Court followed Chapman and framed the question a reviewing court must ask as follows: Absent [the alleged error] ... is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty? Id. 461 U.S. at 510-511, 103 S.Ct. at 1981, 76 L.Ed.2d at 107. Absent the errors here, it is not clear beyond a reasonable doubt that the jury would have returned a verdict of guilty. We simply cannot say beyond a reasonable doubt that absent these errors the jury would have returned the same verdict. Therefore, there is prejudicial error. 5. In fact, the cumulative effect of these errors effectively deprived Woodfork of his right to a fair trial contrary to Dokken, supra, and State v. Rufener, 392 N.W.2d 424, 431 (S.D.1986) (Sabers, J., dissenting), on rehearing, 401 N.W.2d 740 (S.D.1987), because he was denied the opportunity to fully present his theory of the case to the jury. Therefore, we should reverse and remand for a fair trial.

CourtListenerOpinion

2024-06-11T07:23:54.851919

2023-08-26 19:07:26.341572+00

2207504

454 N.W.2d 493 (1990) 235 Neb. 179 In re ESTATE OF Eva M. WIDGER, Deceased. Marlin E. WIDGER et al., Appellants, v. Orville E. WIDGER, Personal Representative of the Estate of Eva M. Widger, Deceased, Appellee. No. 88-727. Supreme Court of Nebraska. April 26, 1990. *495 Terry E. Savage, Imperial, for appellants. Guy G. Curtis, of Curtis & Curtis Law Firm, Imperial, for appellee. HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ. FAHRNBRUCH, Justice. Appellants claim that both the district court for Chase County and the Chase County Court erred in denying their claims for rents and profits against the estate of Eva M. Widger because of laches. We reverse and remand with directions. The appellants, two of Eva Widger's sons, Marlin E. and Percy D. Widger, and two of her grandchildren, James R. and Abbie Jo Widger, all partial owners of a Chase County farm, filed claims against the mother-grandmother's estate for their share of the farm's rents and profits. Owners of the remaining interests in the farm, Orville and Glenn Widger, did not file claims. In 1943, subject to a life estate in their father, each of five Widger brothers inherited an undivided two-fifteenths interest and their mother, Eva Widger, obtained a one-third interest in the Chase County farm. Upon the father-husband's death in 1969, interests in the land were held five-fifteenths by Eva Widger; two-fifteenths by each of four brothers: Marlin, Percy, Orville, and Glenn; and one-fifteenth each by James and Abbie Widger, children of the fifth brother, who was by then deceased. Marlin Widger testified that after the claims were filed against the estate of Eva Widger, he obtained the interests of James and Abbie Widger, giving him a four-fifteenths interest in the farm. From 1969 until she died on November 8, 1984, Eva Widger had sole possession of the farm. With the exception of Marlin Widger, none of the appellants ever instituted legal proceedings to collect a share of the farm's rents and profits. In 1974, Marlin sued his mother for rents and profits. He received a settlement. After his mother's death, Marlin submitted to the personal representative of his mother's estate a claim wherein he asked for his share of the farm's rents and profits from 1975 through 1984. The other appellants submitted the same type of request, but extended the period to 1969 through 1984. The personal representative of Eva Widger's estate denied all claims. Thereupon, the appellants pursued their claims and filed petitions in the estate for an accounting of their respective shares of rents and profits from the farm. The personal representative filed an accounting for the years 1981 through 1984, which was received into evidence. After a hearing, the appellants' claims were denied by the Chase County Court. The county judge concluded that the appellants were not entitled to recover rents and profits that had accrued during the lifetime of Eva Widger because of laches. On appeal, the district court reviewed the county court judgment for error appearing on the record, see Neb. Rev.Stat. § 25-2733 (Reissue 1989) (formerly *496 Neb.Rev.Stat. § 24-541.06 (Cum.Supp. 1988)), and affirmed the judgment. An action for an accounting may under one set of circumstances find its remedy in an action at law and under another find it within the jurisdiction of equity. Gesell v. Reeves, 229 Neb. 842, 429 N.W.2d 363 (1988); Philip G. Johnson & Co. v. Salmen, 211 Neb. 123, 317 N.W.2d 900 (1982). Where close relationships of the parties are involved, an adequate remedy is available only within the equitable jurisdiction of the court. Id. See, Cook v. Wilkie, 181 Neb. 596, 150 N.W.2d 124 (1967); Fraser v. Temple, 173 Neb. 367, 113 N.W.2d 319 (1962). In an appeal from an equity action, the Supreme Court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, where credible evidence is in conflict on a material issue of fact, the Supreme Court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. Production Credit Assn. of the Midlands v. Schmer, 233 Neb. 749, 448 N.W.2d 123 (1989). Although ordinarily one has the undoubted right to bring an action within the statutory period of limitations, courts of equity have inherent power to refuse relief after undue and inexcusable delay independent of the statute, when not to do so would work injustice in the particular case. What constitutes laches is to be determined in light of the circumstances of the particular case. Van Pelt v. Greathouse, 219 Neb. 478, 364 N.W.2d 14 (1985). However, the defense of laches is not favored in Nebraska. It will be sustained only if a litigant has been guilty of inexcusable neglect in enforcing a right to the prejudice of his adversary. Production Credit Assn. of the Midlands v. Schmer, supra. In addition, laches is not tenable to defeat an equity cause when there has been no material change in a defendant's position. State v. Jarchow, 219 Neb. 88, 362 N.W.2d 19 (1985). See, also, Fleury v. Chrisman, 200 Neb. 584, 264 N.W.2d 839 (1978). Having reviewed the record de novo, we conclude that there has been inexcusable neglect on the part of appellants in asserting their rights with respect to the property. Marlin Widger admits he made no attempts to seek legal recourse to secure rents or profits after his first action in 1974. Percy Widger testified that he approached Eva Widger about rents, but did not pursue the issue after she told him that he would have to take her to court to get them. Nancy Mathers, the mother of appellants James and Abbie Widger, admitted that even though she knew her children were entitled to rents, she did not want to sue Eva Widger. The record contains no proof that Eva Widger materially changed her position or was otherwise prejudiced because of the appellants' failure to institute earlier proceedings to collect their share of the rents and profits on the farm. Therefore, the doctrine of laches does not apply. Each appellant is entitled to his or her fractional share of rents and profits from the farm, but only for the 4-year period immediately preceding the filing of his or her claim, that being within the applicable statute of limitations. See Neb. Rev.Stat. § 25-206 (Reissue 1989). See, also, Fraser v. Temple, supra; Beacom v. Daley, 164 Neb. 120, 81 N.W.2d 907 (1957), overruled on other grounds, Estate of Ruwe v. Ruwe, 190 Neb. 663, 211 N.W.2d 610 (1973). There being no other credible basis on which to determine a division of rents and profits, we find from the personal representative's accounting that the claims of Percy D. and Marlin E. Widger should each be allowed in the sum of $1,434 and that the claims filed by James R. Widger and Abbie Jo Widger should each be allowed in the sum of $717. The judgment of the district court for Chase County is reversed, and the cause is remanded to that court with instructions to enter judgment in accordance with this opinion and to remand the cause to the *497 Chase County Court with instructions to correct its judgment accordingly. REVERSED AND REMANDED WITH DIRECTIONS.

CourtListenerOpinion

2024-06-11T07:23:54.855201

2013-10-30 08:36:20.405384+00

9736817

Michael J. Kelly, J. Defendant, General Motors Corporation, appeals from a jury verdict and award of attorney fees in favor of plaintiff, Gail Leslie Wilson. Plaintiff appeals from the circuit court’s grant of remittitur in favor of defendant. Plaintiff, a black woman, was employed by GM’s Assembly Division as a. data preparation operator from December of 1976 to October of 1981, when she was discharged. At the time of her discharge, plaintiff was on a performance improvement plan to increase her rate of production. This plan put her on six months employment probation. Plaintiff became pregnant in April or May of 1981, and this evidently caused her work quality to decline during this performance improvement period. Following her discharge, plaintiff filed suit against defendant for race and gender discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and for wrongful discharge under Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980). Plaintiff claimed that defendant discriminated against her on the basis of her race and gender by transferring and promoting other workers, who *25were white women, while refusing to transfer or promote plaintiff. Plaintiff claimed that she was fired because she confronted her supervisor regarding gm’s failure to transfer or promote black female employees and because of her pregnancy. Plaintiff’s Toussaint claim was based upon the verbal promise of one of defendant’s personnel employees at the time plaintiff was hired. Defendant denied discriminating against the plaintiff or otherwise wrongfully discharging her. It claimed that plaintiff was discharged due to her poor job performance. Following trial, the jury found that race or gender was a determining factor in defendant’s decision to discharge plaintiff. It found that a contract existed between plaintiff and defendant that defendant would fire plaintiff only for good cause and that plaintiff was not discharged for good cause. The jury awarded plaintiff $500,000 for lost wages and benefits, plus $750,000 for pain and suffering. Defendant moved for judgment notwithstanding the verdict, a new trial, and remittitur. The circuit court denied defendant’s motions for judgment notwithstanding the verdict or a new trial, but granted remittitur of the pain and suffering award to $375,000 for a total award of $875,000. Plaintiff moved for costs and attorney fees, which the court granted, in the amount of $86,730.24. i Defendant argues that the jury’s verdict must be reversed because improper conduct by plaintiff’s counsel denied defendant a fair and impartial trial. Gm claims that plaintiff’s counsel made improper inflammatory statements regarding unrelated incidents, made repeated references to mat*26ters outside the record, and made improper comments regarding defense witnesses. We find no error requiring reversal. When reviewing asserted improper conduct by a party’s lawyer, we must first determine whether the lawyer’s action was error and, if so, whether the error requires reversal. Reetz v Kinsman Marine Transit Co, 416 Mich 97, 103; 330 NW2d 638 (1982). A lawyer’s comments usually will not be cause for reversal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial. Guider v Smith, 157 Mich App 92, 101; 403 NW2d 505 (1987), aff'd 431 Mich 559 (1988). Reversal may also be required where counsel’s remarks were such as to deflect the jury’s attention from the issues involved and had a controlling influence upon the verdict. Id. Defendant complains about the following comments made by plaintiffs counsel during his opening statement: It [discrimination] can be a bunch of guys in white sheets standing on your front lawn burning a cross, or it could be ... . Discrimination can be brutally beating a black boy out in front of a pizza parlor in New York. It can be telling of racial jokes over a radio station, or [sic] one of the finest institutions in the country. ... It was just an analogy. Obviously it can, also, be telling someone who complains to you about why they are not being given an opportunity to advance that they are lucky to have a job, and there are plenty more where you came from. It can, also, be consistently transferring white women out of a department and leaving the black women behind. That’s in a racial situation. It can, also, be being insensitive to a woman’s needs as caused by her pregnancy, and this can be sexual discrimination. *27Defense counsel objected to these comments, but the circuit judge permitted them. The court did instruct the jury that the opening statements were not evidence and that anything that the attorney said was not evidence. What constitutes a fair and proper opening statement is left to the discretion of the trial court. Guider, supra, p 102. Here, plaintiffs lawyer was evidently pointing out that there are Obvious, overt forms of discrimination and subtle, less easily discerned forms of discrimination, such as in plaintiffs case. The examples cited in plaintiffs counsel’s opening statement were not related to gm and were not attacks on gm. The circuit court did not abuse its discretion by permitting these remarks. Defendant complains that plaintiffs counsel commented in closing on defendant’s failure to present the testimony of a Doctor Golusin and on defendant’s failure to present data entry operator logs which would verify defendant’s claims that plaintiff was a poor worker. In Reetz, supra, 416 Mich 109, our Supreme Court pointed out: [I]t is legitimate to point out that an opposing party failed to produce evidence that it might have, and consequently the jury may draw an inference against the opposing party. This is permissible even though the same witnesses could have been produced by both parties. These comments did not result in error. Defendant also argues that plaintiffs counsel improperly belittled defense witness Nina Shepard and James Rupkey. In closing arguments, counsel may discuss the character of a witness and characterize their testimony. DeVoe v C A Hull Inc, 169 Mich App 569, 581; 426 NW2d 709 (1988), lv den *28431 Mich 862 (1988). Plaintiffs attorney’s comments did not deny defendant a fair trial and did not result in error. ii Defendant argues that the circuit court erred by excluding the testimony of a crucial defense witness. We find no error. Defendant attempted to present the testimony of Valerie Martin, a gm personnel representative, to rebut plaintiff’s evidence indicating that defendant made plaintiff, while pregnant, return to work against the advice of physicians. Defendant argued that Martin would testify that she received a report from an independent physician, Dr. Golusin, which indicated that plaintiff was free to return to work. Martin had been previously deposed by the parties but was not listed on defendant’s witness list in accordance with Wayne Circuit Court Rule 2.301. The court precluded Martin from testifying pursuant to LCR 2.301(4) on the ground that she was not listed as a witness. Wayne Circuit Court Rule 2.301(4), which was in effect at the time of the trial, provided in relevant part: An unlisted witness may not be called at the trial, except as the court orders for good cause shown or as permitted by paragraphs (5) and (6). [Emphasis added.] Under this local court rule, defendant could not present Martin as a witness unless it convinced the court of good cause. The record indicates that defendant did not show good cause for presenting Martin’s testimony regarding Dr. Golusin’s report. Martin’s deposition testimony indicated that she *29was not aware of the conclusions of Golusin’s report or the results of his examination of plaintiff and that Martin herself had not signed the report. Additionally, Martin’s testimony regarding the contents of Golusin’s report appears to be inadmissible hearsay under MRE 801. See Slayton v Michigan Host, Inc, 144 Mich App 535, 551; 376 NW2d 664 (1985); Carlisle v General Motors Corp, 126 Mich App 127, 129; 337 NW2d 4 (1983). The circuit court properly excluded Martin’s testimony. hi Defendant claims that reversal is required because the circuit court refused to instruct the jury regarding the authority of defendant’s employees to bind defendant to statements or promises made to plaintiff. We disagree. Plaintiff testified at trial that, at the time she was hired by gm, an employee of gm in its personnel department, Leona Zyber, told plaintiff that she would remain employed so long as she did her work and followed the rules. One of plaintiff’s witnesses also testified about similar statements made to her by employees in gm’s personnel department. These statements served as the basis for plaintiff’s Toussaint claim for breach of employment contract. Defendant did not call Zyber as a witness or present evidence regarding whether Zyber or other gm employees had actual or apparent authority to bind it with a verbal Toussainttype contract. Defendant requested the following jury instructions regarding the authority of employees to bind the employer: Plaintiff claims that one or more employees of General Motors Corporation made statements or *30promises to her that she would only be terminated for good cause. If you find that statements or promises were actually made by the defendants, you must then determine whether the person who made the statement or promise had the authority to bind General Motors to that statement or promise. Authority of an employee to make statements or promises which bind General Motors can be of two types: 1. Actual Authority. This type of authority exists when the employee has been expressly authorized by General Motors to make such statements or promises. 2. Apparent Authority. This type of authority exists only if the plaintiff reasonably believed that the person who made promises or statements to her was authorized by General Motors to make those statements or promises. If you find that one or more persons actually made statements or promises to the plaintiff, those statements or promises are not binding on General Motors unless you also find that the person who made the statement or promise had the actual or apparent authority to make the statement or promise. The court declined to give this instruction and instead gave the following instruction: Members of the jury, I instruct you that a corporation such as the Defendant, General Motors, in this case is operated through its employees. If you find that there was wrongdoing on the part of any employee which caused injury to Gail Wilson, then such wrongdoing would be chargeable to General Motors. Defendant argues that the court, through this instruction, improperly took from the jury the factual issue of whether its personnel employees *31had actual or implied authority to make contracts with plaintiff. We agree that the instruction as given was incomplete and should have applied only to plaintiff’s discrimination claims. However, any error due to this instruction is harmless and does not require reversal. An instructional error does not require reversal where it did not result in a jury verdict inconsistent with substantial justice. MCR 2.613(A); Johnson v Corbet, 423 Mich 304, 327; 377 NW2d 713 (1985); Caliesen v Grand Trunk W R Co, 175 Mich App 252, 263; 437 NW2d 372 (1989). The jury found in favor of plaintiff on bbth her claims. The jury’s verdict of liability for .race and gender discrimination alone supports the damages awarded under both claims. Additionally, we note that defendant offered no evidence to rebut plaintiff’s testimony or to establish that Leona Zyber had no authority to enter into á Toussaint-type contract with plaintiff. Our Suprerhe Court in Renda v International Union, UAW, 366 Mich 58, 94; 114 NW2d 343 (1962), stated: Where the facts are either admitted or undisputed as to the existence of the principal agent’s relationship and as to the scope of the agent’s authority, the lower court may properly instruct the jury that the principal, as a matter of law, is responsible for the acts of the agent. Gm did not present evidence disputing Zyber’s apparent authority. The circuit court’s instruction does not require reversal; IV Defendant argues that reversal is required because the circuit court refused to instruct the jury that plaintiff bore the burden of proving that she *32reasonably relied upon Leona Zyber’s statements. We find no error. At trial, defendant argued that, because the only basis for plaintiff’s Toussaint claim was the statements of Leona Zyber, the trial court must instruct the jury that, in order to find a valid Toussaint claim, the jury would have to find either that plaintiff was not provided with gm’s employee handbook or that the statements contained in the handbook were not inconsistent with Zyber’s statements to plaintiff. Defendant requested the following jury instruction, which the court refused to give: Statements or promises made by employees to the plaintiff can only become a part of the plaintiffs employment contract if plaintiff’s reliance on those statements was justifiable. If you find that the plaintiff was provided a written handbook which is inconsistent with statements made to plaintiff by other employees, I instruct you that plaintiffs reliance on those oral statements cannot be reasonable and your verdict must be for the defendants. The circuit court did not err by refusing to give defendant’s proposed instruction as it clearly overreaches. The second paragraph of this instruction eliminates the possibility that an employer’s verbal statements of job security could supersede a written handbook. This is contrary to established precedent. An employer’s oral promises can give rise to a contract that an employee shall not be discharged except for cause. Toussaint, supra, p 598. Under certain circumstances, verbal promises may negate the effect of written disclaimers which are intended to absolve employers from liability for policies presented in the employer’s literature. Kari v General Motors Corp, 402 Mich 926; 261 *33NW2d 925 (1978); Schipani v Ford Motor Co, 102 Mich App 606, 614; 302 NW2d 307 (1981). Gm’s proposed instruction did not state the law. The circuit court properly refused to give it. v Defendant claims that the circuit court erred by refusing to instruct the jury that plaintiff had the burden of establishing a prima facie case of race or gender discrimination and that defendant’s reasons for discharging plaintiff were pretextual. We find no error. At trial, defendant requested the following jury instruction, based on McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973): In order to prove that she was discriminated against because of her sex or race, plaintiff must prove: (1) that she is a member of the protected group, (2) that she was satisfactorily performing her job in accordance with gm’s standards so as to entitle her to retain her job, (3) that she and a similarly situated white person or man received dissimilar treatment. This is called a prima facie case of discrimination, gm must articulate a legitimate, nondiscriminatory reason for its action. Gm need not prove the absence of discrimination; it is only required to state a legitimate reason for discharging plaintiff. If it does so, the plaintiff must prove, by a preponderance of the evidence, that the articulated reason was pretextual and not the true reason for the termination, either by showing that a discriminatory reason was the more likely motivation, or by showing that the articulated reason is unworthy of belief. It is the plaintiff’s burden to persuade you, by a *34preponderance of the evidence, that the reason given by gm for discharging her is pretextual. If you find plaintiff has not met this burden, your verdict must be for the defendant. The court refused to give this instruction and instead gave the applicable standard jury instructions, SJI2d 105.02-105.04. The McDonnell Douglas instructions proposed by defendant have been cited with approval by other panels of this Court and may be appropriate in certain cases. See Bogue v Teledyne Continental Motors, 136 Mich App 374; 356 NW2d 25 (1984). However, the committee which formulated the applicable standard jury instructions for employment discrimination declined to adopt the McDonnell Douglas model for its instructions on the ground that it adds little to the jurors’ understanding of the case and may lead to juror confusion. Michigan Standard Jury Instructions, 2d ed, p 17-5. Although the McDonnell Douglas instructions may be appropriate in the proper case, there is no indication that they should have been given in lieu of or in addition to SJI2d 105.02-105.04. The standard jury instructions given correctly stated the law and did not mislead the jury. There was no need to give defendant’s requested instruction. vi Defendant claims that the circuit court erred by permitting plaintiff and one of her witnesses to testify regarding their perception of racial prejudice in statements made by one of plaintiff’s supervisors. We find no error. At trial, plaintiff and her coworker, Theresa Swint, testified regarding statements made by *35plaintiffs supervisor, Mr. Rupkey. Swint testified that Rupkey told them that they should be satisfied with what they had and be grateful that they had a job. Plaintiff testified that Rupkey told them that they had a lack of skills and that they weren’t going anywhere no matter what type of degree they attained. Plaintiffs counsel questioned both witnesses as to whether they felt there was a racial overtone to Rupkey’s comments. The court permitted these questions over defendant’s objections. Both plaintiff and Swint testified that they felt there was a racial overtone to Rupkey’s comments. Swint testified that she understood Rupkey’s comments to be directed at the black women operators in their department. Defendant argues that permitting this testimony was erroneous and requires reversal. We disagree. MRE 701 permits a nonexpert witness to testify in the form of opinions or inferences where those opinions or inferences are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue. It is not erroneous for a lay witness to express an opinion regarding discrimination in an employment setting so long as the opinion complies with the requirements of MRE 701. Heath v Alma Plastics Co, 121 Mich App 137, 142-143; 328 NW2d 598 (1982). The federal Sixth Circuit Court of Appeals reached the identical conclusion when construing FRE 701 in Torres v Oakland Co, 758 F2d 147, 149-150 (CA 6, 1985). Reviewing plaintiffs and Swint’s testimony, we note that their opinions were rationally based upon their perception of Rupkey’s comments and behavior in the employment setting. This testimony may have been per*36mitted or rejected by the trial judge. It was his discretion whether it was clearly helpful to the jury’s determination of whether race or gender discrimination was behind defendant’s decision to discharge plaintiff. This testimony was properly admitted under MRE 701. VII Defendant argues that the circuit court erred by denying its motion for judgment notwithstanding the verdict or a new trial, claiming that plaintiff failed to produce sufficient evidence in support of either her Toussaint or employment discrimination claims. We find no error. Judgment notwithstanding the verdict should be granted only where there is insufficient evidence presented to create an issue for the jury. Murphy v Muskegon Co, 162 Mich App 609, 616; 413 NW2d 73 (1987). Judgment notwithstanding the verdict is improper if the evidence is such that reasonable persons could differ on issues of fact. Id. The standard for granting a new trial is whether the jury’s verdict was contrary to the overwhelming weight of the evidence. Id., p 616. The grant or denial of a motion for a new trial is within the trial court’s discretion and will not be disturbed on appeal absent a clear abuse of discretion. Bosak v Hutchinson, 422 Mich 712, 737; 375 NW2d 333 (1985). The circuit court properly denied defendant’s motion for judgment notwithstanding the verdict or a new trial. Although it is the narrowest of questions as to plaintiffs Toussaint claim, plaintiff did present testimony that an employee of gm told her that she would remain employed so long as she did her job and followed the rules. Gm did not *37offer as evidence at trial the denial of that employee or any other contradiction. As previously noted, such verbal statements can give rise to a contract that an employee will be discharged only for just cause. Toussaint, supra, p 598. While the Toussaint rule seems to be a rule which invites abuse, we did not make it, we only apply it. No doubt the Supreme Court will be invited to revisit consideration of the Toussaint rule in the later course of these proceedings and well may wish to do so. Furthermore, plaintiff presented testimony that defendant agreed to aid plaintiff in improving her job performance, then failed to follow through with that plan. A jury could reasonably find that a Toussaint-type contract existed and that defendant gm discharged plaintiff without sufficient cause, in violation of that contract. With regard to plaintiffs claims for employment discrimination, plaintiff presented evidence of racial overtones in remarks made by plaintiffs supervisors and also presented evidence indicating that black women were transferred or promoted less frequently. Plaintiff presented evidence that defendant ignored plaintiffs medical problems resulting from her pregnancy, which was the basis for her gender discrimination claim. Overall, plaintiff produced sufficient evidence from which a jury could reasonably have found that race or gender discrimination was a basis for plaintiffs discharge. Although defendant presented testimony that plaintiff was not a good worker and was fired for poor job performance, this evidence was not overwhelming. Plaintiff presented sufficient evidence to create jury issues as to all her claims. The jury’s verdict was not contrary to overwhelming evidence. The circuit court did not err by denying defendant a new trial or judgment notwithstanding the verdict. *38VIII Both parties contest the trial court’s grant of remittitur. Plaintiff argues that the court erred in ordering remittitur for plaintiff’s pain and suffering damages. Defendant argues that defendant is entitled to a new trial because plaintiff’s acceptance of remittitur was ineffective because it was not made in a timely fashion and that the circuit court erred by denying defendant remittitur as to plaintiff’s economic damages. We reject defendant’s argument that plaintiff’s acceptance of remittitur was untimely. The circuit court’s order of January 4, 1988, conditionally denied defendant a new trial upon plaintiff’s consenting to remittitur within fourteen days. Plaintiff’s acceptance of remittitur is stamped January 20, 1985. However, the proof of service by mailing is dated January 15, 1988. Service by mail is complete at the time of mailing, not when stamped by the circuit court clerk. MCR 2.107(C)(3). Plaintiff’s acceptance was timely. An appellate court must accord due deference to the trial court’s decision regarding the grant of additur or remittitur and should reverse the trial court’s decision only if an abuse of discretion is shown. Palenkas v Beaumont Hosp, 432 Mich 527, 531; 443 NW2d 354 (1989). The proper consideration in granting additur or remittitur is not whether the verdict "shocks the conscience” but whether the jury award is supported by the evidence. Id., p 532; MCR 2.611(E)(1). The trial court’s inquiry is limited to objective considerations regarding the evidence adduced and the conduct of the trial. Palenkas, supra, p 532. With regard to the jury’s award of economic damages, we find that the jury’s award of $500,000 is excessive and is unsupported by the evidence. In *39closing, plaintiff’s counsel listed plaintiff’s economic damages on a blackboard as follows: Lost Wages: $195,911.23 Life Insurance: 31,437.60 Retirement Benefits: 111,615.00 Health Insurance: 53.276.00 Cost of Living: 94,984.29 Stock Benefits: 13.956.00 TOTAL $501,180.12 Plaintiff testified as to her wages at the time of her discharge and to the cost of replacement health care insurance. Plaintiff’s counsel argued that the remaining figures for life insurance, retirement benefits, cost of living, and stock benefits could be calculated by reference to defendant’s brochure, Your GM Beneñts, which was entered into evidence. Plaintiff’s counsel did not explain to the jury how these numbers were calculated from the brochure. Review of these economic damages figures and defendant’s brochure indicates that certain of these items were unsupported by the evidence. The value of plaintiff’s retirement benefits and stock benefits could be calculated by reference to the brochure and to plaintiff’s former wages. The amounts given by plaintiff’s counsel for those benefits, though high, were not so excessive as to be unsupportable. Although the jury could calculate the amount of plaintiff’s life insurance policy from the same sources, it was not proper for plaintiff to receive the face value of her policy, which would in effect make her the beneficiary of her own life insurance policy. The appropriate figure would be the cost of an equivalent policy. The figure for cost of living cannot be supported by the brochure or other evidence. The circuit court abused its discretion in finding that all of plaintiff’s alleged eco*40nomic damages were supported by the evidence. Plaintiffs alleged damages of $31,437.60 for life insurance and $94,984.29 for cost of living were clearly unsupported. Defendant is entitled to remittitur for these items. Accordingly, we deduct $126,421.89 from the $500,000 award for economic damages and remit this verdict to $373,578.11. We disagree with plaintiffs claim that the circuit court’s remittitur of plaintiff’s noneconomic damages was improper. The jury’s original award of $750,000 was solely for mental anguish, not for any physical pain or suffering. Plaintiff did not present any expert testimony regarding her mental distress but only testimony as to her own subjective feelings. The circuit court found that the jury’s original award for mental anguish was improper because it was due to the jury’s desire to punish defendant. Punitive damages are not permitted. Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401, 419; 295 NW2d 50 (1980). The trial court, due to its ability to evaluate the jury’s reaction to the conduct of the trial, is in the best position to make an informed decision regarding the excessiveness of the verdict and whether it was due to the jury’s desire to punish a defendant. Palenkas, supra, pp 530-531. Accordingly, we grant the circuit court due deference in this determination. Id. The circuit court did not abuse its discretion in remitting the verdict for plaintiffs noneconomic damages to $375,000. ix Defendant argues that the circuit court’s award of attorney fees under § 802 of the Civil Rights Act, MCL 37.2802; MSA 3.548(802), was improper for several reasons. We agree and reverse the award of attorney fees. *41Defendant first argues that the circuit court lost jurisdiction to award attorney fees under §802 because defendant filed its claim of appeal prior to the circuit court’s hearing on plaintiffs motion for fees. We agree. Defendant filed its claim of appeal in January, 1988. The circuit court’s hearing on plaintiffs fee motion was held in March, 1988. MCR 7.208(A) provides: Limitations. After a claim of appeal is filed or leave to appeal is granted, the trial court or tribunal may not set aside or amend the judgment or order appealed from except by order of the Court of Appeals, by stipulation of the parties or as otherwise provided by law. Filing of a claim of appeal divests the circuit court of its jurisdiction to amend its final orders. Vallance v Brewbaker, 161 Mich App 642, 647-648; 411 NW2d 808 (1987), lv den 430 Mich 883 (1988). A trial court’s order awarding attorney fees is considered an amendment of the court’s order granting judgment, unless the original order provided that the court would award fees. Vallance, supra; Lincoln v Gupta, 142 Mich App 615; 370 NW2d 312 (1985), lv den 424 Mich 874 (1986). The circuit court did not indicate that it would award fees in its original order, so it was without jurisdiction to provide for fees following defendant’s claim of appeal. Vallance, supra, p 648. We therefore reverse the fee award without prejudice to plaintiffs right to renew her motion for attorney fees. Defendant claims that the fee award was improper because plaintiffs attorneys were being paid via a contingency fee arrangement. Defendant also claims that the court erred by not considering the existence of the contingency fee ar*42rangement in calculating the fee award, arguing that the award of fees was unnecessary. We agree with defendant that the circuit judge should have considered the contingency fee arrangement when determining a reasonable fee but disagree that this would automatically preclude a fee. award under § 802. Whether to award attorney fees under § 802 of the Civil Rights Act to a successful plaintiff is left to the trial court’s discretion. Eide v Kelsey-Hayes Co, 154 Mich App 142, 162; 397 NW2d 532 (1986), aff'd 431 Mich 26 (1988). Where attorney fees are to be awarded, the court must determine the reasonable amount of fees according to the factors in Wood v DAIIE, 413 Mich 573, 588; 321 NW2d 653 (1982). Eide, supra. The presence of contingency fee arrangements providing for the plaintiffs attorney fees does not preclude an award of fees under § 802 but is merely one of the factors to be considered in determining a reasonable fee award. King v General Motors Corp, 136 Mich App 301, 308; 356 NW2d 626 (1984), lv den 422 Mich 871 (1985). If plaintiff renews her motion for fees upon remand, the circuit court should consider the existence of the contingency fee contract when determining the reasonableness of any fee award. Defendant also argues that the circuit court erred by denying defendant an evidentiary hearing regarding the amount of fees to be awarded and by using a multiplier of 1.5 to calculate the fee award. We agree. Where the opposing party challenges the reasonableness of the fee requested, the trial court should inquire into the services actually rendered prior to approving the bill of costs. Petterman v Haverhill Farms, Inc, 125 Mich App 30, 33; 335 NW2d 710 (1983). Although a full-blown trial is not necessary, an evidentiary hearing regarding *43the reasonableness of the fee request is. Id. See Blum v Witco Chemical Co, 829 F2d 367, 377 (CA 3, 1987). The circuit court erred by refusing to hold such a hearing. When determining the fee award, the circuit court first determined reasonable hourly and daily rates for each plaintiffs counsel, then indicated that a multiplier of 1.5 should be used to determine plaintiff’s attorneys’ reasonable fees. The court did not explain why it was using a fee multiplier. The United States Supreme Court has rejected the use of a fee multiplier to determine the appropriate amount for an award of attorney fees in a suit brought under the Clean Air Act. Pennsylvania v Delaware Valley Citizens’ Council for Clean Air, 483 US 711; 107 S Ct 3078; 97 L Ed 2d 585 (1987). The Court held that a multiplier is not permitted to enhance a reasonable fee award to compensate for the risk of loss and nonpayment in a contingency fee case except in extraordinary circumstances. 483 US 728-730. We adopt that reasoning here. Section 802 of the Civil Rights Act provides only for the award of a reasonable attorney fee, not a fee enhanced by a premium for assuming the risks inherent in a contingency fee case. It was improper for the circuit court to utilize a fee multiplier without explanation as to why this case was so exceptional as to warrant its use. Affirmed in part and reversed in part. The jury’s verdict for economic damages is remitted to the amount of $373,578.11, for a total damage award of $748,578.11. The circuit court’s award of attorney fees is reversed without prejudice to plaintiff’s right to renew her motion for attorney fees. Remanded. No costs, neither party having prevailed. *44McDonald P.J., concurred.

CourtListenerOpinion

2024-06-11T07:23:54.860631

2023-08-26 19:07:33.468738+00

9736818

Murphy, J. (concurring in part and dissenting in part). I concur with the majority opinion with two exceptions. First, a jury’s ability to render a verdict is not limited or controlled by the arguments of counsel as to an appropriate award or the manner in which a jury is to calculate an award. Rather, a jury award is to be determined based upon the evidence presented and the instructions from the court. Regarding the remittitur issues, in Palenkas v Beaumont Hosp, 432 Mich 527, 533-534; 443 NW2d 354 (1989), the Supreme Court held that an appellate court must accord due deference to the trial court’s decision and may only disturb a grant or denial of remittitur if an abuse of discretion is shown. I am not persuaded that an abuse of discretion has been shown with respect to the trial court’s decision on remittitur of either the economic or noneconomic damage portions of the verdict. On the noneconomic remittitur decision, I concur with the majority. On the economic remittitur decision, I cannot conclude that the trial court abused its discretion in denying remittitur. The jury’s award for economic damages was consistent with the exhibits presented at trial; the evidence of replacement costs of health care insurance, future wage losses of the plaintiff, and the effects of inflation thereon; and the instructions given by the court. Second, I am not prepared to conclude that a trial court may utilize a multiplier in a contingency fee case only in extraordinary circumstances. In my opinion, Pennsylvania v Delaware Valley Citizens' Council for Clean Air, 483 US 711; 107 S Ct 3078; 97 L Ed 2d 585 (1987), is not controlling in the present case, because it was a *45plurality opinion and because it construed a specific federal statute not involved in this case. Furthermore, although five justices argued that use of a risk multiplier was improper under the circumstances of that case, five justices also held that Congress did not intend to foreclose trial courts from considering the contingency of nonpayment in setting reasonable attorney fees under statutory fee-shifting provisions. Rather, I would hold that on remand the trial court must set forth its reasons for utilizing a multiplier in awarding attorney fees. This Court could then consider such findings, together with other appropriate factors, in determining whether the award of attorney fees by the trial court is reasonable.

CourtListenerOpinion

2024-06-11T07:23:54.863819

2023-08-26 19:07:33.474686+00

9736819

MORGAN, Justice. Jerome Scott Nelson (Jerome) appeals from a judgment and decree of divorce entered on January 20, 1989, granting such divorce to Jerome and Connie Kay Nelson (Connie). We affirm. *534Jerome and Connie were married on August 23, 1975. Three children were born during the marriage: Laura (dob Nov. 29, 1977); Adam (dob Jan. 19, 1981); and Aaron (dob June 2, 1982). Adam has a serious ongoing medical problem (a cyst, on the brain) which requires constant medication, observation, and intermittent hospitalization. Because of this disability, Adam receives $299 per month from the Social Security Administration as a Supplemental Security Income Disability (SSID) payment. By stipulation between the parties, a divorce was granted on the grounds of irreconcilable differences. Both parties agreed that Connie would have custody of the minor children, with reasonable visitation rights given to Jerome. Jerome, who is thirty-two years of age, was employed by his father on his father’s farm. He was paid a net monthly wage of $591.92, plus the use of his father’s equipment for use on his own farming operation. Jerome testified that his father only took a portion of the social security tax out of his monthly wage. He did not offer a figure of what the proper tax deduction should have been. Jerome’s farming operation consisted of four hundred acres on a crop/share basis. In 1988, he changed from a crop/share basis to a cash/rent basis, making it difficult to predict his future income. By Jerome’s figures, he made $13,500 in 1988. Additionally, he received a $5,604 ASCS payment. The trial court also found that Jerome padded his business expenses and personal deductions to compute the $13,500 income figure. Further, the trial court found that he sold grain in other people’s names to avoid declaring it as income. After reviewing all this evidence, the trial court determined that Jerome made at least $1,578 per month. Connie is employed as a licensed practical nurse, with a net monthly income of $652.90. The trial court determined that Jerome possessed property worth $8,317.71 and Connie possessed property worth $3,554.11. Further, Connie incurred a debt of $1,145.88 in supporting the minor children during the separation. The trial court ordered Jerome to pay Connie $2,964.74. This sum represents half the value of the property Jerome was allowed to retain and half the amount of the debt incurred by Connie in supporting the minor children. The trial court set Jerome’s child support payments at $578 per month. The $299 SSID payment received by Adam was not credited to either party’s income. On appeal, Jerome raises three issues: (1) Whether the trial court abused its discretion in determining the amount of Jerome’s income for child support purposes. (2) Whether the trial court abused its discretion in determining that Jerome’s child support should not be reduced because of Adam’s SSID payments. (3) Whether the trial court abused its discretion in dividing the marital property. We will address each issue separately. DETERMINATION OF INCOME FOR CHILD SUPPORT Before Jerome may prevail on this issue, he must show that the trial court abused its discretion in setting his child support. Peterson v. Peterson, 434 N.W.2d 732, 734 (S.D.1989). We do not “determine whether [we] would have made an original like ruling, but whether we think a judicial mind, in view of the law and circumstances of the particular case, could reasonably have reached such a conclusion.” Havens v. Henning, 418 N.W.2d 311, 312 (S.D.1988). Under SDCL 25-7-7 (repealed March 1989) as it then existed, the trial court, pursuant to the statutory guideline, set Jerome’s child support at $578 per month because his net income was at least $1,500 per month. Jerome argues that the trial court abused its discretion in arriving at his income figure to set child support. He claims three errors in arriving at the figure: (1) the trial court should have averaged his income for the last five years to arrive at an income figure; (2) the trial court improperly credited an ASCS payment to his income that he was required to *535repay; and (3) the trial court improperly credited income to him because of a loaner agreement for farm equipment with his father. We address them in that order. First, Jerome’s attempt to read Studt v. Studt, 443 N.W.2d 639 (S.D.1989), to require five-year income averaging when a farmer is involved is not well taken. While it is true that the trial court in Studt used a five-year averaging method, there is nothing within the opinion that mandates it. More critically, there is nothing within SDCL 25-7-7 that requires income averaging. The statute as it then existed provided: For an obligor with net income above one thousand five hundred dollars, the child support obligation shall be established at an appropriate level. However, in no case may the amount of support ordered be less than the amount as provided at the one thousand five hundred dollar net income range. On a practical level, income averaging would have been an inaccurate means under these facts to arrive at an income figure. The trial court found that Jerome had padded his tax returns and sold grain under other people’s names to avoid declaring it as income. Additionally, the loaner agreement on equipment disguised income that he should have received. It would have merely compounded the difficulty the trial court had in arriving at an income figure by using Jerome’s inaccurate figures from the previous five years. Second, Jerome claims the trial court erred in including a $5,604 ASCS payment he received for grain, since he was forced to repay the majority of this' money. The only evidence at trial that Jerome had to repay this money was Jerome’s hearsay testimony. The judge chose not to believe his testimony. Since the trial judge had the opportunity to judge Jerome’s credibility and weigh his testimony, we will not disturb his finding on the ASCS payment unless it is clearly erroneous. Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980); Spaulding v. Spaulding, 278 N.W.2d 639 (S.D.1979); Isaak v. Isaak, 278 N.W.2d 445 (S.D.1979); Holforty v. Holforty, 272 N.W.2d 810 (S.D.1978). There is plentiful evidence, supplied through Jerome’s own admissions on the witness stand, that he was less than truthful in supplying accurate data about his income. We do not find the trial court’s finding that he received $5,604 as an ASCS payment was clearly erroneous. Hanks, supra; Spaulding, supra; Isaak, supra; Holforty, supra. Third, Jerome claims the trial court overstated his income for child support purposes because it imputed income to him based upon the loaner agreement he had with his father. At trial, no specific dollar value was placed on the use of the machinery. There is no proof that the trial court imputed this income. Jerome now claims that any amount of increase in income he would receive from the use of this income would be offset by the amount it would cost him to rent this same equipment. Even without “imputing” income because of this loaner agreement, the record justifies the trial court’s determination of Jerome’s income. By Jerome’s figures, he shows an income of $13,500.1 He admitted in the past that he had sold grain under another person’s name and received $750.83. The trial court also found that Jerome had padded his business expenses with personal items. Taking Jerome’s admitted income of $13,500 and adding the $5,604 ASCS payment, which the trial court legitimately did with the evidence in front of it, Jerome’s income was at least $19,159. This set his monthly income at $1,578. The trial court set Jerome’s child support at $578, which was a conservative figure. Since his income exceeded $1,500 per month, the trial court could have set it at a higher figure under the then existing SDCL 25-7-7. We do not find that the trial court abused its discretion in deter*536mining Jerome’s income and setting appropriate child support. Peterson, supra. SOCIAL SECURITY BENEFITS Jerome next contends that the trial court should have considered the social security payments received by Adam as third-party income received by Connie and the family because the $299 Adam receives is deposited into the family checking account. Connie argues that the social security benefits are intended as a supplement for Adam’s medical expenses, not a substitute for child support. We agree. Before we may reverse the trial court on this issue, Jerome must show that the trial court abused its discretion in making its award of child support. Peterson, supra. Jerome predicates his argument solely on SDCL 25-7-6.10: Deviation from the schedule in § 25-7-6.2 shall be considered if raised by either party and made only upon the entry of specific findings based upon any of the following factors: (1) The income of a subsequent spouse or contribution of a third party to the income or expenses of that parent but only if the application of the schedule works a financial hardship on either parent[.] The trial court found that Adam has a serious ongoing medical condition that requires constant medication, observation, and intermittent hospitalization, and that $299 per month paid by Social Security was for Adam’s benefit and should not be used to lower either parent’s child support obligation. Without any precedent to support his position, Jerome argues that the trial court abused its discretion because Connie puts Adam’s Social Security payment into her checking account from which she pays bills. This ignores the obvious facts that, regardless of where the check is deposited, it is still accounted for in subsidizing Adam’s medical care and treatment. Faced with the identical question, an Ohio court decided that the income received under SSID payments should not be attributed to a parent’s income. In Oatley v. Oatley, 57 Ohio App.2d 226, 387 N.E.2d 245, 246 (1977), the court explained why these payments should not be considered income to the parent. The supplemental income payments are intended to insure a minimum level of income for persons who are over age 65, or blind, or disabled, who do not have sufficient income and resources to maintain a standard of living at the established federal minimum income level. Title 42, Section 1381, U.S. Code; 20 C.F.R., Section 416.110. The amount of supplemental income an eligible individual will receive is based on his income and resources. Title 42, Section 1381a, U.S. Code. In calculating an individual’s income, if the individual is a child the support he receives from an absent parent is to be considered. Title 42, Section 1382a(b)(9), U.S. Code. There is a rede-termination of eligibility and the amount of benefits at frequent intervals. Title 42, Section 1382(c)(1); 20 C.F.R., Section 416.222. The supplemental security income payments are intended to supplement other income, not substitute, for it. The amount of supplemental security income received is modified as the amount of the recipient’s other income changes, not vice versa. See generally Anderson v. Powell, 235 Ga. 738, 221 S.E.2d 565 (1975) (parent’s income not credited with supplemental security income payment); Thompson v. Thompson, 205 Kan. 630, 470 P.2d 787 (1970) (contributions from governmental agencies will not diminish parent’s obligation to furnish child support). Jerome’s argument that his child support should be tied to the amount of SSID payments ignores the mechanics of the Social Security system. The trial court should not set child support payments based on SSID payments, since under Social Security regulations, SSID payments are based on the parent’s support payments, and are raised or lowered by the amount of the parent’s support. These payments are paid to provide supplemental *537income to cover a disability, not as a substitute for child support. Since we agree with Oatley’s reasoning, we hold that the trial court did not abuse its discretion in not granting a deviation from the child support schedule, since the income is provided to Adam, not the parent. Oatley, supra; SDCL 25-7-6.10. DIVISION OF PROPERTY The trial court has broad discretion in making a division of property and we will not disturb that decision unless it clearly appears the trial court abused its discretion. Moser v. Moser, 422 N.W.2d 594, 596 (S.D.1988); Fait v. Fait, 345 N.W.2d 872 (S.D.1984). The valuation set by the trial court must be within the range of evidence before it. Moser, supra. Factors to be considered in dividing marital property are: (1) The duration of the marriage; (2) The value of the property of each of the parties; (3) The ages of the parties, their health and competency to earn a living; and (4) The contributions of each of the parties to the accumulation of the marital property. Moser, supra; Storm v. Storm, 400 N.W.2d 457 (S.D.1987); O’Connell v. O’Connell, 340 N.W.2d 700 (S.D.1983). Jerome contends the trial court erred by overvaluing items in his possession, undervaluing items in Connie’s possession and exceeding the parties’ range of value on two items.2 Connie contends that the overall value of marital property was within the range of figures supplied by both parties and is therefore not an abuse of discretion. We agree. First, the trial court is not required to accept either party’s proposed valuation. Baltzer v. Baltzer, 422 N.W.2d 584, 586 (S.D.1988). Jerome does not contend any of the values were wrong, only that on thirty-four items of property, the trial court accepted Connie’s value more often than his. We will not disturb the trial court’s valuation absent a showing that an item was overlooked or valuation was clearly erroneous. Herrboldt v. Herrboldt, 303 N.W.2d 571, 572 (S.D.1981). The trial court had ample opportunity to observe the parties’ truthfulness and concluded that Jerome was being less than truthful with the court about his finances. The trial court could properly reject his valuation figures without being prejudiced. Moreover, Jerome’s claim that the trial court accepted Connie’s valuation for every item she kept is not true. On both a queen-size bed and a vacuum cleaner, the trial court used figures much lower than Connie’s, [bed: Connie’s figure — $75, Jerome’s — $300, Judge’s — $40; vacuum: Connie’s — $250, Jerome’s — $400, Judge’s— $150] Second, contrary to Jerome’s argument, our Moser decision does not stand for the proposition that every item of personal property must be within the range of evidence on that item.3 Moser addresses itself to the requirement that totality of value of all items of property within a category must “be within the range of evidence before the court.” Id. at 596. Here, the trial court’s valuation for all personal property retained by the parties is within the range of figures supplied by both parties. [[Image here]] Though the trial court’s total figures differ from the parties’, they are within the range of figures provided by the parties. Therefore, we do not find the trial court abused *538its discretion in the division of marital property. Moser, supra. Affirmed. WUEST, C.J., and SABERS and MILLER, JJ., concur. HENDERSON, J., concurs in result. . Jerome claims this figure is too high because it does not reflect a complete tax deduction. Yet, Jerome never supplied evidence of how much more should have been deducted. Faced with this incomplete record, we presume the trial court acted properly. Isaak, supra; Schurman v. Schurman, 60 S.D. 489, 245 N.W. 39 (1932). . No testimony, other than the opinions of the parties, was submitted as to the value of items of personal property. Hanks, supra, makes clear that absent hard evidence by the parties, the trial court’s valuation will not be said to be in error if within the proper range of values. . The items in question were as follows: Connie Jerome Judge Queen size bed $ 75.00 $300.00 $ 40.00 Vacuum 250.00 400.00 150.00 Tractor 1,250.00 700.00 1,400.00 Guns 650.00 633.00 655.00

CourtListenerOpinion

2024-06-11T07:23:54.867073

2023-08-26 19:07:35.839064+00

9736820

HENDERSON, Justice (concurring in result). There is but one facet of this opinion which causes me to concur in result. In my past writings, I have taken the position that minimum statutory guidelines should not turn a judge into a robot nor an automaton. Feltman v. Feltman, 434 N.W.2d 590 (S.D.1989); Donohue v. Getman, 432 N.W.2d 281, 283 (S.D.1988) (Henderson, J., specially concurring); Peterson v. Peterson, 434 N.W.2d 732, 739 (S.D.1989) (Henderson, J., concurring in part and concurring in result in part). We need an independent judiciary, infusing judgment into cases and not to be bound by the dictates of Washington, D.C. bureaucrats who would strip us of our experience and brain power. Therefore, language in this opinion is conceptually unpalatable to those previous writings. Here, the trial judge did not act as a robot or an automaton but actually set the child support obligation at an amount less than the then-existing statutory guideline. In other words, the trial court exercised its discretion based upon Connie’s need for child support and Jerome’s financial ability to pay. Findings of Fact VII, IX, X, XI, XII, XIII, and XIV display the trial judge’s independent exercise of judgment. In fact, these Findings reflect that the trial judge concluded that Jerome’s “monthly net income is at least $1,578.80.” His conclusion concerning the child support obligation for three (3) children was “[it] shall be established in the sum of $578.00 per month ...” This is expressed via Conclusions of Law VII and VIII. So, I would conclude that this trial judge did not appear to be “obliged” to be a robot or an automaton. Is the battle for trial judges to finally engineer their minds — with a degree of independence — finally at end? Note to those domestic practitioners and readers of the fine print: A 1989 amendment, by the South Dakota State Legislature SDCL 25-7-6.10 expresses: Deviation from the schedule in SDCL 25-7-6.2 shall be considered if raised by either party and made only upon the entry of specific findings based upon any of the following factors. (2) Any financial condition of either parent which would make application of the schedule inequitable; Ah, the Lady of Equity is back at our door.* “Oh, she doth teach the torches to burn bright; it seems she hangs upon the cheek of night like a rich jewel in an Eth-iop’s ear.” William Shakespeare, in Sonnets CVI, Romeo and Juliet I.v. She is imbued with beauty and needs a tender judicial application. It is noted, in the current opinion that the phrase “abused its discretion” is mentioned four times under the procedural history, issues, and child support discussion. The same phrase is mentioned three times under the “social security benefits” discus*539sion. On issue three, the same phrase is used twice. The National Law Journal, February 5, 1990, carries a feature on Mandatory Child Support Guidelines, pg. 1. In same, the second sentence thereof expresses: But, judges and lawyers are decrying what they see as separation of powers violations by the drafters of such guidelines. This article is a national expose on Mandatory Child Support guidelines. Therein, the dissent, by this writer in Feltman is quoted (only as part of the expose and not, tacitly, with approval or disapproval). A 24-page opinion, Fitzgerald v. Fitzgerald (87-1259) written by Chief Judge Judith W. Rogers of the District of Columbia Court of Appeals, overturned the District's guidelines. Per the clerk’s office, this case has been "reopened" and there is no official cite as yet. In said decision, she expressed "... numeric formulae make it difficult to ascertain what assumptions are being made.” With respect to attempting (by a litigant) to argue against application of the guidelines, Chief Justice Rogers wrote that the litigant "... faces a monumental obstacle in attempting to demonstrate a case is ‘exceptional’ without knowing what ‘unexceptional’ is.” Has South Dakota, I pose, eradicated a constitutional challenge by the above-mentioned amendment which now, apparently re-inculcates the power of discretion of a trial judge in South Dakota?

CourtListenerOpinion

2024-06-11T07:23:54.869073

2023-08-26 19:07:35.843676+00

9736878

*635OPINION HUSPENI, Judge. Joyce and Patrick Houlihan appeal from an award of summary judgment in which the trial court found that they were collaterally estopped from bringing suit against respondents. The trial court found that appellants’ suit was precluded by a prior arbitration decision which held Joyce Houli-han 100% at fault for the accident. We reverse and remand for trial. FACTS Joyce Houlihan was the driver of a car which went through the intersection at 27th Street and Bloomington Avenue in Minneapolis and collided with a school bus. Houlihan later stated that she did not see the stop sign at the intersection because a large truck was parked at the right side of 27th Street facing the wrong way. The truck belonged to Tamarack Materials, Inc. (“Tamarack”) and was driven by an employee, Gregory Fimon. Both Joyce Houlihan and Thomas Weaver, the driver of the school bus, were injured in the collision. Weaver filed suit against Houlihan, Fimon and Tamarack. Houlihan’s insurer, American Family Insurance Co., appointed in-house counsel to represent Houlihan. Houlihan also retained a separate attorney, who advised her to bring a separate action for her injuries at a later time. During trial the parties reached a settlement. The insurance companies were unable to agree on the allocation of liability, and agreed to submit that issue to arbitration. Joyce Houlihan was informed by letter that neither side intended to call her as a witness, but that she was welcome to attend the arbitration proceeding.1 Houli-han’s personal attorneys were not informed of the proceeding and did not participate in the arbitration. Following the proceeding on September 3, 1987, the arbitrator determined that Houlihan was 100% at fault for the accident. Houlihan’s attorneys discontinued her representation after the arbitration de-cisión. Houlihan retained other counsel, and then brought suit against Fimon and Tamarack for her personal injuries. In granting respondents’ motion for summary judgment, the trial court concluded that Houlihan was collaterally estopped by the arbitration decision from relitigating her liability. ISSUE Did the trial court err in granting summary judgment? ANALYSIS Generally, On appeal from a summary judgment the reviewing court determines whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989). Where the facts are not in dispute and only questions of law are at issue, no deference need be given to the trial court’s decision. Id. Collateral estoppel is a branch of the res judicata doctrine. Ellis v. Minneapolis Commission on Civil Rights, 319 N.W.2d 702, 703 (Minn.1982). It applies where (1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue. Johnson v. Consolidated Freightways, Inc., 420 N.W.2d 608, 613 (Minn.1988) (citing Ellis, 420 N.W.2d at 613). Neither collateral estoppel nor res judicata should be rigidly applied. Johnson, 420 N.W.2d at 613. As a flexible doctrine, “the focus is on whether its application would work an injustice on the party against whom estop-pel is urged.” Id. at 613-14 (citing Jeffers v. Convoy Co., 636 F.Supp. 1337, 1339 (D.Minn.1986)). *636The parties agree that the issue of Houli-han’s liability is identical in both proceedings and thus the first prong of Johnson/Ellis is met. The parties dispute the remaining elements of estoppel. Regarding the second prong of Johnson/Ellis, the Houlihans argue that the arbitration proceeding should not be considered a “final judgment” on the merits for purposes of applying collateral es-toppel. Both this court and the Minnesota Supreme Court have addressed the Johnson/Ellis factors. Aufderhar v. Data Dispatch, Inc., 452 N.W.2d 648 (Minn.1990). The Aufderhar court held that when personal injury damages were previously determined in an arbitration proceeding where the claimant has been afforded a full opportunity to litigate the issue, the claimant may be estopped from relitigating the issue in a later action against a different defendant. The Aufderhar court cited Johnson in stressing that “arbitration is meant to be a final judgment of both law and fact,” Johnson, 420 N.W.2d at 613, and stated that its prior refusal to apply collateral estoppel in Johnson was based on the fact that the defendant in that case was not afforded a full and fair opportunity to be heard on the issue, “the crucial fourth prong of the Ellis test.” Aufderhar, 452 N.W.2d at 651. See also Art Goebel, Inc. v. Arkay Construction Co., 437 N.W.2d 117 (Minn.Ct.App.1989) (it is appropriate to apply collateral estoppel where parties acquiesced in arbitration award). We agree that in appropriate circumstances, particularly where the estopped party sought the arbitration, a prior arbitration decision may result in application of collateral estoppel. See Aufderhar; see also Lysholm v. Liberty Mutual Insurance Co., 404 N.W.2d 19 (Minn.Ct.App.1987) (estoppel may apply where the es-topped party actively sought arbitration and later challenged the result). Even if we assume for the sake of further analysis that the arbitration proceeding here constituted a final judgment, we must determine whether Houlihan was a party to the prior adjudication. Although she was a named party in both actions, we are troubled by whether she was a “party” in more than name only. We believe that being a “party” for purposes of collateral estoppel contemplates more than merely a name on the documents. See Minnesota State Board of Health v. City of Brainerd, 308 Minn. 24, 241 N.W.2d 624 (1976) (city not barred by previous action in which it was a party, where city did not have “full, free, and untrammeled opportunity” to present facts, and city was only a nominal party in first action), appeal dismissed City of Brainerd v. Minnesota State Board of Health, 429 U.S. 803, 97 S.Ct. 35, 50 L.Ed.2d 63 (1976). Respondents argue that even if the insurance company were the real party in interest, Houlihan was in privity with the insurance company. “There is no prevailing definition of privity which can automatically be applied.” Margo-Kraft Distributors, Inc. v. Minneapolis Gas Co., 294 Minn. 274, 278, 200 N.W.2d 45, 47 (1972). [Privity] expresses the idea that certain nonparties may be so connected with the litigation that the judgment should also determine their interests. Denzer v. Frisch, 430 N.W.2d 471, 473 (Minn.Ct.App.1988) (quoting Brunsoman v. Seitz, 414 N.W.2d 547, 550 (Minn.Ct.App.1987)), pet. for rev. denied (Minn. Jan. 15, 1988). Those in privity include “those who control an action although not parties to it * * *; [and] those whose interests are represented by a party to the action.” Margo-Kraft, 294 Minn. at 278, 200 N.W.2d at 48. “Privity is usually a question of fact requiring case-by-ease determination.” Miller v. Northwestern National Insurance Company, 354 N.W.2d 58, 62 (Minn.Ct.App.1984). Respondents argue that the insurance company and Houlihan shared a common interest in obtaining the lowest percentage of fault attributable to Houlihan. However, “coincidental interests alone are not sufficient to establish privity.” Denzer, 430 N.W.2d at 473. Here, Houlihan’s interests went beyond the scope of her insurance coverage. Arguably, her interest in recovery for her personal injuries was not *637fully represented in the arbitration proceeding. Again, even if we assume for the sake of further analysis that Houlihan was a party or in privity with the real party in interest, we believe that before we may affirm application of the doctrine of collateral estoppel, we must find that the fourth prong of Johnson/Ellis was met. We must find that Houlihan had a “full and fair” opportunity to be heard on the adjudicated issue. It was the fourth prong of this analysis that troubled the court in Johnson. It troubles us also. We ask, as did the Aufderhar court, “Was [the person estopped] afforded a full and fair opportunity to present evidence * * *.” Aufderhar at 652. The Aufder-har court concluded he was. We examine the facts of both that case and this to determine whether it is proper to conclude that Houlihan, too, was afforded the full and fair opportunity to present evidence. Houlihan’s arguments that she did not elect to arbitrate, that her insurance company controlled the decision, that she risked the loss of her insurance coverage if she failed to cooperate, and that she did not acquiesce in the arbitration result are persuasive. We note that the insurance company assigned in-house counsel to represent Houlihan. She had little or no control over the litigation, and virtually no input in the decision-making process. She was not informed of the settlement or the decision to arbitrate liability prior to the time those decisions were made. In contrast the defendant in Aufderhar sought arbitration; in fact had resorted to court intervention to compel arbitration. Aufderhar’s attorney, in essence, concluded that Aufderhar was given a full opportunity to provide evidence. Although Houlihan had retained private counsel, her attorneys were not notified of the arbitration proceeding and did not participate in it. Houlihan was notified by letter that “the lawsuit brought by Thomas Weaver * * * was resolved by agreement between American Family and representatives for [Tamarack and Fimon].” The letter stated that a settlement was paid with the understanding that “we would arbitrate” liability. Houlihan was informed that neither side intended to call her as a witness, but she could attend if she chose. There is no evidence that Houlihan was informed that the arbitration decision could be binding in a subsequent suit. Apparently she did not realize that her own cause of action against respondents here could be lost as a result of the arbitrator’s decision. Neither is the fact that Houlihan did not appeal the arbitration decision disposi-tive. If she were unaware of the significance of that decision to issues beyond the scope of her insurance coverage, it is not surprising that she did not appeal. We are left with the firm conviction that in contrast to the party estopped in Auf-derhar, Houlihan had no meaningful participation in the arbitration proceeding. Consequently, she did not have a fair opportunity to be heard and the fourth prong of the Johnson/Ellis test was not met. We conclude that under the circumstances of this case, application of collateral estoppel would work an injustice. To hold otherwise would also mean that Houli-han’s claim was essentially decided in a forum of the insurance company’s choosing, without opportunity for a jury trial on the issues. Application of collateral estop-pel under these circumstances could result in denial of the constitutional right to trial by jury where a prior arbitration has addressed the same issue. See Aufderhar, 452 N.W.2d 648 (Yetka, J., dissenting). Finally, while it can be argued that Houlihan should have brought her damage claim against respondents by cross-claim in the original action, to place her in that position makes the claim mandatory. “Cross-claims are not mandatory or compulsory in Minnesota.” Denzer, 430 N.W.2d at 475, see Minn.R.Civ.P. 13.07 (“A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence [at issue]”) (emphasis added). *638DECISION The trial court erred in determining that Houlihan had a full and fair opportunity to be heard in the arbitration proceeding. Consequently, collateral estoppel is not applicable and the summary judgment must be reversed. Reversed and remanded. . The trial court memorandum indicates that Houlihan did not attend the arbitration hearing. However, the parties at oral argument agreed that she did attend and testify.

CourtListenerOpinion

2024-06-11T07:23:54.871916

2023-08-26 19:08:57.688538+00

9736879

LESLIE, Judge (dissenting). The majority concludes that collateral es-toppel should not apply in the present case. I disagree. It is undisputed that the identical issue is involved in both actions. Additionally, the arbitration proceeding qualifies as a prior adjudication. The supreme court’s decision in Aufderhar v. Data Dispatch, Inc., 452 N.W.2d 648 (Minn.1990) clearly supports application of collateral es-toppel under similar circumstances. The court held in Aufderhar that a party who has litigated the issue of personal injury damage with his insurance carrier in an arbitration proceeding may be estopped from relitigating the same issue in a subsequent tort action. The court recognized that, “We have afforded to an arbitration award finality as to both facts and the law.” Aufderhar, 452 N.W.2d at 651 (citation omitted). Arbitration is a procedure favored in the law. Ehlert v. Western National Mutual Insurance Co., 296 Minn. 195, 199, 207 N.W.2d 334, 336 (Minn.1973). The strong public policy in favor of arbitration is not served by permitting parties who participated in the arbitration proceeding, and who did not appeal the result, to attack the arbitrator’s decision in a later proceeding. Here, Houlihan attempts to relitigate the precise issue determined in arbitration. She was notified of the arbitration and informed that the arbitration would address “the question of which party was more at fault in causing the accident.” Houlihan was represented by competent counsel; in fact she later retained the same attorney when he entered private practice. Houlihan attended the arbitration and testified on her own behalf. She had ample opportunity to present evidence. There is no allegation that the arbitration proceeding was flawed, or that the decision was based on incomplete evidence. The evidence presented at the hearing revealed that Houlihan approached Bloomington Avenue, a major thoroughfare, and failed to stop before entering the intersection, striking a school bus. Houlihan claimed that she could not see the stop sign blocked by a truck and that she was unfamiliar with the area. A driver in an unfamiliar area, however, should be especially cautious. After hearing all the evidence, the arbitrator determined that Houlihan was 100% at fault. There is no indication that the arbitrator erred. Moreover, Houlihan did not appeal the result. While we can speculate as to possible reasons for her failure to appeal, the fact remains that she did not contest the arbitrator’s finding of 100% liability. Houl-ihan’s actions indicate that she acquiesced in the arbitration decision. See Art Goebel, Inc. v. Arkay Construction Co., 437 N.W.2d 117, 119 (Minn.Ct.App.1989) (collateral estoppel appropriate where party acquiesced in prior arbitration award). The majority questions whether Houli-han was a party to the suit. Houlihan was an individual named party in both actions. Her participation in the arbitration proceeding went beyond a mere name on the documents. There is no evidence that her interest was not capably represented in the proceeding. While her interest in recovering for her own personal injury may have gone beyond the scope of her insurance coverage, on the crucial issue of her liability for the accident she and the insurance company shared the same objective of obtaining the minimal possible liability. Thus, even if Houlihan were not the real party in interest, she was in privity with the insurance company. Additionally, I believe that Houlihan had a fair opportunity to be heard on the issue of her liability. Whether she used her opportunity wisely is not the issue here. Instead, the focus is on whether she had a fair chance to present her evidence. Houli-han was fully aware that the specific issue of liability would be determined at the hearing. She had the benefit of not only *639her appointed counsel, but her privately retained counsel as well. The fact that her counsel apparently advised her to bring a separate action later does not mean that Houlihan was denied the opportunity to be heard in the arbitration hearing. On the contrary, she attended and testified. Under these circumstances, I cannot agree that she did not have a sufficient opportunity to present her side of the case. In my view, both the law and the facts support the trial court’s grant of summary judgment. I see no justification for wasting scarce judicial time in a further consideration of this matter and would affirm.

CourtListenerOpinion

2024-06-11T07:23:54.887985

2023-08-26 19:08:57.692991+00

9736880

HESTER, Judge: Donald and Middie Cunningham (“foster parents”) instituted this action by filing, on November 12, 1992, reports of intention to adopt their foster children, A.L.O., born January 21, 1988, and N.A.W., born January 20, 1991. The rights of the natural parents had been terminated on April 7, 1992, and appellant, Chester County Children and Youth Services (hereinafter “CYS”), had been awarded custody of the children. N.A.W. has been in the Cunningham home since January 30, 1991, when he was ten days old. A.L.O. has lived in the Cunningham home since August 22, 1991, when she was two and one-half years old. CYS filed preliminary objections to the reports of intention to adopt alleging that the Cunninghams, as foster parents, lacked standing to seek adoption of the children. On February 23, 1993, following the submission of briefs on the issue and oral argument to the common pleas court, the court overruled the preliminary objections. On June 9, 1993, we granted the petition of CYS to appeal this interlocutory order pursuant to 42 Pa.C.S. § 702(b). Following our consideration of the applicable law and our review of the record, we are constrained to reverse. Initially, we examine our standard of review: Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. Baker v. Brennan, 419 Pa. 222, 225, 213 A.2d 362, 364 (1965). The test on preliminary objections is whether it is clear and free from doubt from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief. Firing v. Kephart, 466 Pa. 560, 563, 353 A.2d 833, *423835 (1976). To determine whether preliminary objections have been properly sustained, this court must consider as true all of the well-pleaded material facts set forth in appellant’s complaint and all reasonable inferences that may be drawn from those facts. Feingold v. Bell of Pennsylvania, 477 Pa. 1, 4, 383 A.2d 791, 792 (1977); Pennsylvania Liquor Control Board v. Rapistan, Inc., 472 Pa. 36, 42, 371 A.2d 178, 181 (1976). Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992). The issue in this case, whether the Cunninghams have standing to proceed with their reports of intention to adopt A.L.O. and N.A.W., is controlled by the applicability and interpretation of In re Adoption of Hess, 530 Pa. 218, 608 A.2d 10 (1992). Heretofore, it has been well-established in this Commonwealth that foster parents do not have standing to seek adoption of their foster children when the child welfare agency does not consent to the adoption.1 See e.g., In re Adoption of S.C.P., 364 Pa.Super. 257, 527 A.2d 1052 (1987); Priester v. Fayette County Children and Youth Services, 354 Pa.Super. 562, 512 A.2d 683 (1986); and In re: Crystal D.R., 331 Pa.Super. 501, 480 A.2d 1146 (1984). The agency’s withholding of consent is not the significant aspect of this precept; rather, it is the nature of the limited relationship of the foster parents to the children. However, third parties who are not designated foster parents may seek adoption when they can establish that they stand in loco parentis to the child. In re Adoption of J.M.E., 416 Pa.Super. 110, 610 A.2d 995 (1992). The significance and parameters of the foster parent relationship were set forth in Crystal D.R. and contrasted in J.M.E. We need not restate them here. The trial court determined that Hess is applicable to the instant case. In its opinion, the trial court concluded: *424While it is true that Hess is a case that was instituted by grandparents rather than foster parents, the language in those cases [sic] suggests that the holding is broad enough to encompass any “party” who finds himself in the above quoted posture and needs recourse to the court to determine whether or not the withholding of consent by the agency is reasonable. Trial court opinion, 2/23/93, at 2. The “posture” identified ?oy the trial court referred to a third party desiring to adopt a child when the child welfare agency refuses to consent. The trial court supported its position with the assertion that the Supreme Court used the term “party” rather than “grandparent” throughout the opinion. The trial court then stated that the “most compelling part of the holding states that, ‘... they should be permitted to participate in the proceeding just as any other individual or individuals who seek to adopt a child.’ ” Trial court opinion, 2/23/93, at 2. We are not persuaded by the trial court’s reasoning and believe that the factual scenario of Hess was an exception to the general rule and is limited to the familial relationship which was present in that case. In rejecting the trial court’s reasoning, we note initially that Chief Justice Nix did not use the term “party” throughout the opinion as opposed to the designation “grandparent.” There are one or two instances when “party” is used because the word “grandparent” does not fit. A reading of the opinion clearly establishes that the Court considered the standing issue as it relates to a family member, who “has lived with the child, has obtained custody of his or her siblings, and has averred that the child’s best interests are contrary to those asserted by the agency----” In re Adoption of Hess, supra, 530 Pa. at 221, 608 A.2d at 12. Moreover, the fact that the Court indicated that a grandparent should be permitted to participate in the proceeding “just as any other individual” does not mean that a party need not establish his standing to proceed in a case. Before we analyze whether Hess is applicable to the present matter, its factual background must be examined. Melanie and Matthew Hess were four and five years old, respectively, *425at the time litigation commenced. They had four siblings who were not involved in the case. At various times in their young lives, Melanie, Matthew, their siblings, and their natural parents resided with their maternal grandparents, the appellees in the case. Substantial care for all of the children was provided by the grandmother. In 1985, the natural parents removed the family from the appellees’ home. The grandparents later learned, however, that the children had been placed with a social service agency. Several of the children were returned to the care of the grandparents, but Melanie and Matthew were not; instead, they returned to the care of their natural parents in 1986. By the spring of 1987, the two children again were removed from their parents care and placed with the agency. The grandparents contacted the agency and obtained custody. In June, 1987, the natural father removed Melanie and Matthew from the grandparents’ home and placed them with Lancaster County Children and Family Services. Later efforts by the grandparents to have the two children returned to them were futile. The natural parents then voluntarily relinquished their parental rights to Melanie and Matthew. Custody was awarded to Lancaster Family Services which placed the children with proposed adoptive parents who filed petitions to adopt. Upon learning this, the grandparents sought to intervene, to stay the adoption, and to obtain custody of the children. Lancaster Family Services filed preliminary objections alleging the grandparents lacked standing to intervene, which the trial court sustained. This court reversed, and the Pennsylvania Supreme Court affirmed our decision. In analyzing the applicability of Hess to the instant case, we have no doubt that the Supreme Court clearly was persuaded by the significance of the relationship of the grandparents to the children. The Court repeatedly emphasized this fact. The entire analysis by the Supreme Court revolved around the relationship of the appellees to the children. Indeed, the Court relied upon specific statutory provisions exclusive to grandparents. For example, the Court noted that 23 Pa.C.S. § 2531(c) specifically envisions that grandparents might *426choose to adopt their grandchildren. The Court stated, “[T]he Act contemplates that a grandparent might choose to adopt his or her grandchild, and allows the grandparent to benefit from the relationship to the child by relieving the grandparent of the obligation to file a Report of Intention to Adopt.” In re Adoption of Hess, id., 530 Pa. at 224, 608 A.2d at 13. The Court went on to state that the various requirements indicate “that a relationship between the proposed adoptive parent and the adoptee is a relevant consideration.” Id. There is no such relationship in the instant case. Moreover, the Supreme Court was disturbed by the fact that the trial court determined that the grandparents had no interest in the proceedings. The Supreme Court held that the grandparents should have been permitted to intervene and noted, “The trial court’s determination, however, begs the question of whether the grandparents were ever entitled to inject themselves into a series of proceedings designed to effectuate the best interests of two of their grandchildren.” Id., 530 Pa. at 223, 608 A.2d at 12. The Court obviously was persuaded by the fact that the grandparents’ efforts consistently were rebuffed by Lancaster Family Services which refused to give them any information until well after the parental rights had been terminated. The majority in Hess also examined the Children and Minors Act, 23 Pa.C.S. § 5301 et seq. in resolving this issue. The Court noted the significance of the fact that the act demonstrates the legislature’s intent to encourage the maintenance of family relationships. Thus, again, the Court focused on the familial relationship of the grandparents to the children. Finally, in discussing the parameters of the majority’s holding, Justice Zappala, in a dissenting opinion, stated, “I cannot conceive that the majority would allow an individual who was unrelated to the child to intervene in the proceeding----” In re Adoption of Hess, id., 530 Pa. at 233, 608 A.2d at 18 (Zappala, J., dissenting). This is but another confirmation for the position that it was the grandparents’ familial relationship to the children which controlled the outcome of the case. *427We believe Hess is confined to the facts and considerations of that case, none of which is present herein. Instead, the established law in this Commonwealth, as most recently reaffirmed in In re Adoption of S.C.P., supra, controls the result in this case. We held in S.C.P. that 23 Pa.C.S. § 2531(a), which describes who may file a report of intention to adopt, does not encompass foster parents. We reiterated, “[F]oster parents have no standing to adopt a child placed in their custody until the absolute, unequivocal, written consent of the children’s legal custodian or other person whose consent was necessary was given.” Id., 364 Pa.Super. at 260, 527 A.2d at 1054, quoting Priester v. Fayette County Children and Youth Services, supra, 354 Pa.Super. at 566, 512 A.2d at 684. As we stated in S.C.P., application of this holding to the facts of the instant case effectively resolves this appeal. Order reversed; the preliminary objections of Chester County Children and Youth Services are sustained; the reports of intention to adopt filed by Donald and Middie Cunningham are dismissed. BECK, J., files a dissenting opinion. . Likewise, third parties lack standing to seek custody as against a natural parent except through a dependency proceeding, Gradwell v. Strausser, 416 Pa.Super. 118, 610 A.2d 999 (1992), or unless the third party can establish that he stands in loco parentis to the child. Rosado v. Diaz, 425 Pa.Super. 155, 624 A.2d 193 (1993), see also Van Coutren v. Wells, 430 Pa.Super. 212, 633 A.2d 1214 (1993).

CourtListenerOpinion

2024-06-11T07:23:54.890168

2023-08-26 19:09:00.768915+00

2207518

208 Cal.App.2d 232 (1962) CLARENCE E. WHALEY, Plaintiff and Appellant, v. JOHN D. KIRBY et al., Defendants and Respondents. Civ. No. 6781. California Court of Appeals. Fourth Dist. Oct. 4, 1962. Clarence E. Whaley, in pro. per., for Plaintiff and Appellant. Alan M. Firestone, City Attorney, and G. Don Lindberg, Deputy City Attorney, for Defendants and Respondents. GRIFFIN, P. J. Plaintiff-appellant Clarence E. Whaley, in propria persona, filed this action for claimed false imprisonment against John D. Kirby, Clarence Meyers and D. E. Thomas, police officers; and A. Elmer Jansen, Chief of Police of the City of San Diego, as well as Dr. H. N. Welborn, Dr. W. E. Wiend and Dr. C. F. Lengyel; R. B. James, County Clerk; H. Fegan, Deputy County Clerk; Judge L. N. Turrentine, Judge Bonsall Noon and the City of San Diego. He alleges generally that on May 25, 1957, he stood on a sidewalk at Fifth and Broadway in San Diego and displayed a placard in protest of a denial of his driver's instructor's license "by Governor Goodwin Knight and the California Dept. of Motor Vehicles." The sign had on it: "A Big Housecleaning in Order. ... How much crookedness behind this denial?" *234 His claim was that certain charges were made against him accusing him of publicly, falsely and libelously making scandalous statements to injure the character of certain government officials. The sign further contained an imputation of unchastity and wanton sexual activity involving a young lady employee of the Department of Motor Vehicles, stating that she became infected with a loathsome venereal disease. The sign also contained the accusation that government employees gave and accepted bribes. It also said: "My Fellow Citizens! For the good of society please take action in ousting the government employees and officials involved in the above mentioned evils." Signed, Clarence E. Whaley"" The complaint then alleges that defendant John D. Kirby and other police officers stopped at the curb and asked defendant to sit in the police car with them so they could talk to him and study the wording on the placard; that after plaintiff complied the officers informed him that he was violating a city ordinance by displaying the sign without a permit and that it was a violation of the Penal Code to exhibit obscene and indecent literature; that plaintiff was asked to and he did go to the police station to see what the police captain had to say about it; that after some conversation, some officer directed Officer Kirby to take plaintiff to the psychiatric ward and plaintiff was taken there; that the officers had no process giving them authority to do so and the officers had no reasonable or probable cause to do this or to believe that plaintiff was so mentally ill as to render him dangerous to himself or to others or that he should be suitably restrained for his own protection; that on arriving at the hospital, plaintiff tried to run away and he gave one of the officers a punch in the face and started to struggle with them; that plaintiff was subdued and taken to the ward; that he was strapped, hands and feet, for some hours; that defendants Dr. Wiend and Dr. Lengyel, in their official capacity, falsely imprisoned plaintiff and aided and abetted in his illegal commitment to Patton State Hospital; that they made false accusations in their medical report; that on arrival at Patton, plaintiff wrote a lengthy letter to the F.B.I., the Governor, the Motor Vehicle Department and the police department, to no avail. Then follows the allegation that defendant H. N. Welborn, *235 acting as assistant counselor for the County of San Diego, aided and abetted in his false imprisonment by making false statements in his report to the psychiatric board; that defendant R. B. James, County Clerk, and his deputy, defendant H. Fegan, failed to deliver to plaintiff copies of the formal papers of commitment while he was in the psychiatric ward; that defendant Judge L. N. Turrentine, as judge of the superior court, furthered said false imprisonment by illegally committing plaintiff to Patton because plaintiff was not served with the formal charges, had no opportunity to subpoena witnesses, and was not represented by counsel, and that Judge Turrentine said, "You can apply for a jury trial when you get to Patton"; that defendant Judge Noon furthered the false imprisonment by failing to answer and take heed to plaintiff's letter written to him about Judge Turrentine's being requested to release plaintiff from Patton forthwith because his constitutional rights had been violated. Apparently, some form of trial was granted to plaintiff and an attorney appointed to represent him. Plaintiff alleges that the trial was continued to make certain tests of plaintiff for tuberculosis because he had lost so much weight. He complains of his treatment in Patton. Apparently, he remained there from May 31, 1957, to January 10, 1958. Plaintiff seeks $200,000 for compensatory damages and $100,000 for punitive damages, plus $100 costs to pay his attorney for obtaining his release on habeas corpus. Plaintiff added certain amendments to the original complaint, inserting the name of D. E. Thomas, city police officer, as a defendant, and inserting the name of Chief of Police A. Elmer Jansen, as a superior officer who authorized Officers Thomas and Kirby to place the plaintiff in the psychiatric ward, and this allegation is based on a conversation plaintiff had with the city manager and his assistant about July 1958, but he was not told who authorized the officers to place him there, although he "assumed" the chief authorized it. On December 19, 1960, plaintiff filed another amendment to the complaint, inserting the name of defendant Lieutenant Clarence Meyers, charging that on January 4, 1960, plaintiff interviewed these officers and recognized Meyers as the officer on watch on May 25, 1957. Demurrers, both general and special, were interposed to the complaint and amendments thereto. Apparently, the court sustained the demurrers and allowed 30 days' leave to amend as to all defendants except Judge Turrentine and *236 Judge Noon. On March 8, 1961, plaintiff filed a document entitled, "Amendments Apropos to Hearing on Demurrers Held Feb. 9/61." It alleged generally that defendant Lieutenant Clarence Meyers was the officer on watch at the time and was superior to defendant Officers Kirby and Thomas and as such did authorize them to imprison plaintiff in the psychiatric ward; that they knew plaintiff was not a mentally ill person at the time; that the display of the placard was within his right of freedom of speech; that Dr. Wiend and Dr. Lengyel well knew that these officers had no reasonable cause for taking plaintiff into custody and that Officer Kirby had no probable cause for signing the petition filed with the county clerk on May 25, 1957; that their report which stated that plaintiff had numerous paranoid delusional ideas and recommended commitment to Patton therefor was not done in good faith and was so groundless that it could only be considered as "psychiatric gobbledy-gook." It is then alleged that their lack of good faith deprived them of the immunity provided by Welfare and Institutions Code, section 5047. It then alleged that defendant Chief of Police Jansen was negligent in failing to take action for the suspension or removal of Lieutenant Meyers and Officers Kirby and Thomas as being unfit and incompetent officers after he received constructive notice or knowledge of said false imprisonment of plaintiff in the psychiatric ward, as a result of plaintiff's inquiry of the city manager, who said that the chief of police had been contacted as to who authorized Officers Kirby and Thomas to put plaintiff in the psychiatric ward. Damages are claimed in this respect. A demurrer to the complaint as amended was sustained without leave to amend and the complaint was dismissed. Plaintiff appeals only from the judgment as to defendants Chief of Police Jansen, Lieutenant Meyers and Officers Kirby and Thomas. Plaintiff argues that a cause of action was stated, because when an arrest is made without legal process all that need be alleged to charge an unlawful arrest is the arrest without process, the imprisonment and the damage. (Citing Kaufman v. Brown, 93 Cal.App.2d 508 [209 P.2d 156]; 22 Cal.Jur.2d 43, p. 78.) It is also claimed that a peace officer is liable for false imprisonment when he takes a person in custody without having reasonable cause to believe the person is so mentally ill *237 that he is likely to cause injury to himself or others. (Citing Collins v. Jones, 131 Cal.App. 747 [22 P.2d 39]; Welf. & Inst. Code, 5050.3.) It is argued that the reasons set forth in the petition instituting the hearing were insufficient to show probable cause. They are factually about the same as here shown and as alleged by the plaintiff. It is argued that the complaint states a cause of action against Chief of Police Jansen, because it shows that he negligently failed and refused to suspend or discharge the police officers involved in this action. (Citing Fernelius v. Pierce, 22 Cal.2d 226 [138 P.2d 12].) It is apparent that the complex, detailed and somewhat erratic account of plaintiff's arrest clearly indicates that the officers had reasonable cause to believe that a misdemeanor was being committed in their presence. See Penal Code, sections 650 1/2, 248 and 370; and Municipal Code, section 56.27. However, the arrest was not made by the officers for any of the aforementioned offenses committed in the presence of the officers pursuant to section 836 of the Penal Code. The detention was made pursuant to section 5050.3 of the Welfare and Institutions Code, which provides generally that: "When any person becomes so mentally ill as to be likely to cause injury to himself or others and to require immediate care, treatment, or restraint, a peace officer ... who has reasonable cause to believe that such is the case, may take the person into custody for his best interest and protection and place him as provided in this section." [1] The weight of authority today holds that the establishment of lack of probable or reasonable cause is a necessary element in an action for false arrest or imprisonment, overruling Collins v. Jones, supra, 131 Cal.App. 747, in this respect. See also Coverstone v. Davies, 38 Cal.2d 315 [239 P.2d 876]. [2] The Legislature has clearly stated the right of an officer to take a person into custody if he had reasonable cause to believe that person to be so mentally ill as to be dangerous to himself or others. (Welf. & Inst. Code, 5050.3.) [3] Accepting as true the account alleged in the complaint, it is clear that there was reasonable and probable cause for the detention and psychiatric examination. The plaintiff was displaying a placard accusing a young lady and numerous governmental officials of the most flagrant and immoral conduct. He refused to delete these references. He broke detention, *238 struck an officer and accused the officers of being a part of a conspiracy. He was restrained at the hospital. The justification for the detention is clearly shown on the face of the complaint. [4] While normally the conviction or acquittal of the defendant is immaterial in an action for false imprisonment, the findings of psychiatrists and the act of the court in committing a person to a state mental hospital are elements which must be considered in this type of false arrest action. [5] Reasonable cause is shown herein and the conclusions of the subsequent examination further demonstrate the validity of the observations of the arresting officer. The fact that the doctors made a finding of a paranoid condition and the court ordered commitment substantiates the dangerous mental condition of the plaintiff at the time of the arrest. (Coverstone v. Davies, supra, 38 Cal.2d 315; Baer v. Smith, 68 Cal.App.2d 716 [157 P.2d 646].) [6] The fact of his release on habeas corpus is also immaterial. (Vallindras v. Massachusetts etc. Ins. Co., 42 Cal.2d 149 [265 P.2d 907].) The complaint and its amendments fail to state a cause of action because reasonable cause for the detention is overwhelmingly shown on its face. It is clear from the facts alleged in the complaint that plaintiff has concluded from the fact of an interview with Lieutenant Meyers that Meyers authorized or commanded his detention in the psychiatric ward. The facts alleged show that Lieutenant Meyers was not even present when plaintiff was transported to the hospital. The detention was instituted by Officers Kirby and Thomas, acting under the authority of Welfare and Institutions Code, section 5050.3. The claimed liability of Chief of Police Jansen is predicated on the basis of claimed interviews with the city manager's office in July 1958. There is no positive allegation of his participation in the detention. [7] Conclusions or deductions from facts, or, as in this case, the absence of facts alleged, do not constitute a cause of action. (39 Cal.Jur.2d 130, p. 191.) [8] The amended complaint alleging liability of Chief of Police Jansen because of claimed failure to remove and suspend the police officers involved is not sufficient to show that the officers were incompetent or unfit and that the chief had notice thereof or negligently failed to remove them. (Michel v. Smith, 188 Cal. 199 [205 P. 113]; 22 Cal.Jur.2d 33, p. 70.) [9] To recover against an officer of a city for his claimed *239 negligence, compliance with sections 801 and 803 of the Government Code, as to the filing of a claim, must be alleged. (Payne v. Bennion, 178 Cal.App.2d 595 [3 Cal.Rptr. 14].) Judgment affirmed. Coughlin, J., and Stone, J., [fn. *] concurred. NOTES [fn. *] *. Assigned by Chairman of Judicial Council.

CourtListenerOpinion

2024-06-11T07:23:54.894261

2013-10-30 08:36:20.523979+00

2207741

271 Cal. App. 2d 298 (1969) THE PEOPLE, Plaintiff and Respondent, v. CHARLES EDWARD BRASHIER, Defendant and Appellant. Crim. No. 14603. California Court of Appeals. Second Dist., Div. Five. Mar. 28, 1969. Raymond Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Gerald H. Genard, Deputy Attorney General, for Plaintiff and Respondent. REPPY, J. Defendant was charged with and found guilty by jury verdict of two counts of forgery (Pen. Code, 470). The proof established that the offenses constituted that aspect of forgery known as "uttering," in this instance the cashing of payroll checks as to which the defendant knew that someone other than the purported maker (president of Lunax Company, a small soap and wax manufacturing company) had filled out the checks and signed the name of the purported maker. [1] The main contentions of defendant on appeal are that there was insufficient evidence to support the verdict and that a handwriting exemplar (used to prove that defendant indorsed the checks) and certain statements of both an exculpatory and incriminating nature were obtained from defendant at the time he was picked up under a waiver of extradition in Dade County, Florida, despite his claimed assertion to the officer involved (Weiss) that he did not want to make statements until he had consulted an attorney. We have examined the record carefully in these respects, and we are satisfied that the contentions are without foundation. The main issue on the merits which the jury had to decide was whether or not defendant had knowledge that the Lunax Company payroll checks, which had been given to him by his acquaintance, McDaniels, and which he had passed, had been forged by McDaniels, a parolee and ex-employee of the purported maker. We find substantial evidence of a circumstantial nature supportive of a finding of such knowledge. The jury obviously considered as concocted the story of defendant that McDaniels, who owed him $1,500, persuaded his employer to make out eight payroll checks payable to defendant (instead of his employee) in identical small dollar and odd-cent amounts (so defendant could cash them more easily), and then stole the proceeds from defendant. The very presenting of this story by defendant no doubt, in part, prompted the jury to find that defendant had the necessary guilty knowledge. *301 [2] The question remains whether a substantial amount of the evidence indicating defendant's knowledge of the forged condition of the checks when he passed them (which was in the form of testimony of Officer Weiss relating what defendant had told him when they were together in Dade County jail and on the airplane returning to California) was inadmissible because obtained after defendant had advised Officer Weiss that he did not want to talk any more until he had seen a lawyer. (People v. Fioritto, 68 Cal. 2d 714 [68 Cal. Rptr. 817, 441 P.2d 625].) [fn. 1] A voir dire hearing was conducted in the absence of the jury, with respect to the question of whether advice of constitutional rights was given and, if so, whether there had been a waiver, and if so, when and how. Both Officer Weiss and defendant testified at the session. Their respective versions of the circumstances were not in conflict as to the fact that the "full panoply" (People v. Fioritto, supra) of constitutional rights was explained and understood, but they were in considerable conflict on the matter of when and to what extent defendant stated to Officer Weiss that he did not want to talk to him further until he had conferred with an attorney. Defendant testified that he had made such a statement several times. It was the province of the trial judge, of course, to resolve these conflicts. By overruling defendant's objection to the admissibility of the conversations on the ground defendant had not waived his right to counsel, it is clear that he accepted the version of the officer and those parts of defendant's story which favored admissibility. Thus, in this review, we presume as true those parts of the record which we feel are supportive of the trial judge's determination. (People v. Bassett, 69 Cal. 2d 122, 137 [70 Cal. Rptr. 193, 443 P.2d 777]; People v. Simpson, 43 Cal. 2d 553, 571 [275 P.2d 31].) Officer Weiss interviewed defendant at the Dade County jail on one day. He took him into personal custody and accompanied him on the flight to California two days later. Officer Weiss originally testified that, at the jail interview, defendant at no time indicated that he did not wish to speak to him. Later on, however, Officer Weiss testified that in the middle of the conversation defendant said that a friend of his *302 who was in the jail with him and was going to get him an attorney, and that, at another point, after making this comment, defendant said, "I don't think I should be talking to you." Officer Weiss also testified that at no time did defendant say that he wanted an attorney; that "he never asked to be provided with an attorney at all." This is the only testimony of Officer Weiss explaining when and how defendant indicated he did not want to talk further until he had seen an attorney. Thus, it is to be inferred that defendant's "inclination" not to talk further was not clear-cut and was not unambiguously expressed. Rather, it was hestitant and tentative. In Fioritto, supra, 68 Cal. 2d 714, the defendant initially made a positive refusal to waive his constitutional rights. Incidentally, defendant, at one point in the voir dire session, testified that he couldn't say that Officer Weiss asked him some questions he felt he didn't want to answer; that he didn't really remember if, when asked some questions by Officer Weiss, he told him that he didn't want to answer until he had an attorney. Moreover, defendant testified at the voir dire session that prior to the time that he told Officer Weiss (as he, defendant, claimed) that he did not wish to say more until he had seen an attorney, he had freely advised Officer Weiss that the indorsement signatures on the back of the checks were his and that he had cashed the checks. Defendant also testified that he wanted to tell Officer Weiss, as he did, that there were eight checks rather than six as Officer Weiss had mentioned. In addition, defendant testified that he, himself, initiated parts of further conversations about the circumstances (apparently referring to the time when defendant and Officer Weiss were together on the airplane coming back to California), and that without Officer Weiss asking him, he told him that McDaniels (the party who unlawfully had made out the payroll checks) had owed him a debt; that he had paid the debt with the payroll checks; that after he (defendant) had cashed them, McDaniels had stolen all the money and had skipped town; that he felt McDaniels had "used him" to cash the checks for him (McDaniels). Finally, when Weiss was later testifying before the jury he said that defendant initiated a conversation about how he had been apprehended and in the course of that conversation had volunteered that he had felt he was going to get caught before he left Los Angeles (for Detroit) because while he was boarding the train he had seen two men who appeared to him to be detectives. *303 It is clear that most of the out-of-court statements of the defendant from which guilty knowledge could have been inferred by the jury, about which Officer Weiss testified, were made before defendant expressed his hesitant concern over whether he should be talking to Officer Weiss or were made by defendant on his own initiative and not in response to questions by Officer Weiss. The Supreme Court in Fioritto, supra, stated: "In so holding, we prohibit only continued questioning after an individual has once asserted his constitutional rights. We do not, of course, disapprove of the use of statements, whether admissions or confessions, voluntarily initiated by a suspect. Such statements have been repeatedly sanctioned in the decisions of this court (see, e.g., People v. Jacobson [63 Cal. 2d 319 (46 Cal. Rptr. 515, 405 P.2d 555)]), and are also expressly authorized in the Miranda opinion. ... Again, in People v. Treloar [64 Cal. 2d 141 (49 Cal. Rptr. 100, 410 P.2d 620)], we distinguish between interrogation by police and initiation of discussion by a defendant. ... In People v. Tomita [260 Cal. App. 2d 88 (66 Cal. Rptr. 739)] (hearing denied) the defendant was advised of and asserted his constitutional rights. The following morning, the day of his arraignment, the defendant summoned the arresting officer to his cell and voluntarily began a discussion of the events leading to his arrest. The court noted [at p. 92] that the defendant had 'initiated a conversation' and under those circumstances the authorities were not precluded from using the volunteered statements." (68 Cal. 2d 714 at pp. 719-720.) In People v. Ireland, 70 Cal. 2d 522 [75 Cal. Rptr. 188, 450 P.2d 580], the defendant actually requested the officers to "Call my parents for my attorney," which they did not do. Nonetheless he was asked by another officer, whose specialty was interrogation, but who had not heard or been informed of defendant's request, if he were willing to talk to him, and the defendant said that he wanted to talk with someone and asked if the officer was willing to listen. The Supreme Court held that defendant's request manifested a desire to have the assistance of an attorney at the earliest possible moment. However, the court added that in Fioritto it had "indicated that even a defendant in custody might make statements admissible under Miranda if it were shown that such statements were the result of defendant's own initiative and did not arise in a context of custodial interrogation. *304 [Citations]." In our case, accepting, as we must, the premise that the trial judge believed the officer's version of events, the only reference made by defendant to an attorney was to say that a jail friend was going to get him one, and the only statement made by him about not talking further was to say that perhaps he should not be talking to the officer. Finally, defendant himself testified to the effect that he initiated the conversations in the airplane when other statements were made and that they were made without the officer asking him questions. Thus, the defendant-initating and non-law-interrogating aspects stressed in Ireland are both present here. It is true that there were some further statements which Officer Weiss related to the jury, but they were of accumulative effect only (such as defendant having written the addresses on the back of the checks; defendant having received the checks fully made out; defendant having known that McDaniels worked at Lunax; defendant probably having cashed the checks on a certain weekend; defendant having traveled to Detroit and Vermont and then having resided in Florida under the name of Bonnard). It is also true that Officer Weiss testified that when defendant said to him that perhaps he should not be talking to him, he (Officer Weiss) said to defendant, "You don't have to ... Let me just fill you in with what I have [explaining the charges and court procedure and his knowledge of other checks] ... Do you want to go ahead talking to me or not." However, it is not clear whether or not the other statements of defendant summarized parenthetically above were induced by this phraseology (which might be contrary to the concept of Fioritto) or were also made by defendant on his own initiative. Even if they were so induced, we can say, beyond a reasonable doubt, that the jury would have reached the same verdict on the basis of all the other evidence and that, therefore, there was no prejudice. (Chapman v. California, 386 U.S. 18 [17 L. Ed. 2d 705, 87 S. Ct. 824].) [3] Whether there has been a proper recital of rights, an understanding thereof, and a waiver thereof is primarily a question for the trial judge, and his determination should not be disturbed unless it is palpably erroneous. (People v. Duran, 269 Cal. App. 2d 112, 115 [74 Cal. Rptr. 459].) The same rule should apply as to whether, after an indication of a desire not to talk more, further discussion was brought about by renewed police interrogation or was initiated by a defendant. [4] The cases of Gilbert v. California, 388 U.S. 263 [18 *305 L.Ed.2d 1178, 87 S. Ct. 1951], and People v. Graves, 64 Cal. 2d 208 [49 Cal. Rptr. 386, 411 P.2d 114], indicate that in the taking of handwriting exemplars from defendant there was no violation of his constitutional privilege against self-incrimination or right to counsel. Gilbert points out that "A mere handwriting exemplar, in contrast to the content of what is written, ... is an identifying physical characteristic outside ... [the constitutional] protection"; that "there is minimal risk that the absence of counsel might derogate from ... [defendant's] right to a fair trial"; that "If ... an unrepresentative exemplar is taken, this can be ... corrected through the adversary process at trial. ..." (Pp. 266-267 [18 L.Ed.2d pp. 1182-1183].) In any event, Officer Weiss testified that the exemplar was taken at Dade County jail and that defendant at the time did not mention anything about an attorney. Thus, this procedure must have taken place before defendant told Officer Weiss (in the middle of the interview) that a jail friend was going to get him an attorney and before defendant queried whether he should be talking to Officer Weiss. Defendant thought the exemplar was given in California, but he testified that he did not say he wanted to call an attorney; that Officer Weiss kept asking him over and over if he wanted one. Thus, again, this must have been at the outset of the Dade County jail interview when Officer Weiss advised defendant of his rights, both orally and in writing. It is clear the exemplar was taken when defendant initially had waived his right to counsel for the purposes of that part of the interview. Less significant points urged by defendant have been reviewed and found to have no merit. Illegality of arrest was never raised at trial and there is nothing in the record pointing to such a factor. On the contrary, the testimony of both Officer Weiss and defendant indicates that the arrest was made pursuant to extradition papers which would be presumed to be valid. Defendant, of course, waived extradition. The claim that the jury had to find defendant not guilty under the "two hypotheses" rule fails to take into consideration that the rule applies to the state of the evidence after the fact finder has resolved conflicts and tested credibility. (People v. Treggs, 171 Cal. App. 2d 537, 543 [341 P.2d 342]; People v. Belcher, 269 Cal. App. 2d 215 [74 Cal. Rptr. 602].) The jury received an instruction on the principle. It is apparent that the jury believed the version presented by the prosecution where it conflicted with that of defendant and disbelieved *306 defendant's improbable story; in fact, likely used it to fortify its conclusion on the merits of the charge. Defendant had no right to have his evidence accorded equal weight with other evidence. [5] The essence of a trial by jury is that controversies in the proofs (even though they be between direct and circumstantial evidence) shall be resolved by the jury. The jury in this case made no unreasonable classification by refusing to believe defendant's version of the facts. A denial of equal protection of the laws can exist only if a jury purposely discriminates against a defendant for improper reasons. No such circumstance existed in this case. The judgment is affirmed. The purported appeal from the order denying motion for new trial is dismissed. Kaus, P. J., and Aiso, J., concurred. NOTES [fn. 1] 1. Fioritto had not been decided at the time of trial, but Miranda had. Since the Fioritto doctrine follows logically from the language of Miranda, we cannot assume that the trial court did not apply its philosophy to any factual conflict presented by the testimony of Weiss and defendant.

CourtListenerOpinion

2024-06-11T07:23:54.902553

2013-10-30 08:36:22.957204+00

2207519

197 Md. 681 (1951) 79 A.2d 161 FISHER v. WARDEN OF MARYLAND HOUSE OF CORRECTION [H.C. No. 23, October Term, 1950.] Court of Appeals of Maryland. Decided March 14, 1951. Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ. *682 MARKELL, J., delivered the opinion of the Court. This is an application for leave to appeal from refusal of a writ of habeas corpus. Petitioner is imprisoned under sentence of five years for assault. He alleges principally facts intended to show that the prosecuting witness, and not he, was guilty of an assault, a question which cannot be reviewed on habeas corpus. He also alleges that he was denied his constitutional rights to compulsory process for witnesses and to counsel, but he does not allege facts which show denial of any such right. He says the court asked whether he had counsel and was told he had not, but he does not allege that he asked opportunity to employ counsel (which in this court he says he was financially unable to do) or asked the court to appoint counsel for him or allege any circumstances relating to the case or to petitioner which might have required appointment of counsel. He says his witnesses were "not allowed to take the stand" because the State's Attorney said they could not help petitioner. He does not allege that he called, or asked permission to call, his own witnesses. State, ex rel. Stovall v. Wright, 191 Md. 749, 60 A.2d 197. He alleges that his "commitment is illegal" and that certain constitutional provisions have been violated, but alleges no facts relating to the commitment or to these constitutional provisions. There is no copy of the commitment in the record. Application denied, with costs.

CourtListenerOpinion

2024-06-11T07:23:54.904786

2013-10-30 08:36:20.5264+00

2207524

168 Pa. Superior Ct. 462 (1951) Commonwealth v. Beiler, Appellant. Superior Court of Pennsylvania. Argued November 13, 1950. March 12, 1951. Before HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ. (RHODES, P.J., absent). *463 Charles W. Eaby, with him Samuel S. Wenger, for appellants. Elmer T. Bolla, Deputy Attorney General, with him John Milton Ranck, District Attorney, Louis S. May, Solicitor and Charles J. Margiotti, Attorney General, for appellee. OPINION BY RENO, J., March 12, 1951: Samuel and Levi Beiler were convicted in summary proceedings before a justice of the peace and on appeal in the court below of violating the compulsory attendance provisions of the Public School Code of 1949, P.L. 30, 24 P.S. § 1-101 et seq. They are members of the Old Order Amish Church, and their separate appeals invoke the protection of religious freedom guaranteed by the State and Federal Constitutions.[1] Samuel is the father of Naomi Beiler; Levi is the father of Jacob Beiler. Both children are 14 years of age, have completed and passed the eighth grade in the public schools, and are eligible for instruction in the high school grades. Appellants refused to send their *464 children for further instruction in the schools to which they had been assigned, and this constitutes the alleged violations of the Code. Nor have they attended private or denominational schools or received instruction from qualified tutors. Their parents hold, in conformity with the tenets of their religion, that children should not receive secular education after they have attained the age of fourteen and have completed the eighth grade of the public schools. The Code, §§ 1326, 1327, 24 P.S. §§ 13-1326, 13-1327, requires: "Every parent . . . of any child or children of compulsory school age [between the ages of eight and seventeen] . . . to send such child or children to a day school in which the subjects and activities prescribed by the State Council of Education are taught in the English language." A "day school" includes a public school but does not exclude other methods of education, and parents may send their children to private or parochial schools or have them instructed by qualified tutors. A subsequent section of the Code, § 1330, 24 P.S. § 13-1330, provides various exemptions, but appellants did not apply for or secure permits which might have exempted their children from attending school.[2] *465 The Amish are our "plain people", a quiet, pious, industrious, thrifty people, whose vitalizing contributions to the welfare, and especially to the development of the agricultural resources, of the Commonwealth have always been gratefully recognized.[3] Their ancestors came to Pennsylvania in response to William Penn's personal invitation and his promise of religious liberty. They adhere, devoutly and unchangingly, to the strict and literal interpretation of the Dortricht Creed, a confession of faith adopted at Dort, Holland, in 1632, by the followers of Menno Simons, the founder of the Mennonite Church, from which sprang the Amish under the leadership of Jacob Amman.[4] Upon it, they have patterned their lives and followed it, consistently, conscientiously and faithfully.[5] The specific doctrinal pronouncement of the Dortricht confession here relevant is: "And since it is a known fact that a lack of faithful ministers, and the erring of the sheep because of the lack of good doctrine, arise principally from the unworthiness of the people; therefore, the people of God, needing this, should not turn to such as have been educated in universities, according to the wisdom of man, that they may talk and dispute, and seek to sell their purchased gift for temporal gain; and who according to the custom of the world do not truly follow Christ in the humility of regeneration." With that credal declaration as the doctrinal basis, and fortifying it with the citation of Biblical proof-texts,[6]*466 a group of ruling bishops wrote, and during the pendency of these prosecutions, revised a "Statement of Position of Old Order Amish Church Regarding Attendance In Public Schools" from which we extract the pertinent articles: "2. We believe that our children should be properly trained and educated for manhood and womanhood. We believe that they need to be trained in those elements of learning which are given in the elementary schools. Specifically, we believe that our children should be trained to read, to write and to cipher. 3. We believe that our children have attained sufficient schooling when they have passed the eighth grade of the elementary school. This attainment is ordinarily made at age fourteen. 4. We believe when our children have passed the eighth grade that in our circumstances, way of life and religious belief, we are safeguarding their home and church training in secular and religious belief and faith by keeping them at home under the influence of their parents." I. Seeing that the Dortricht Creed refers to men who "have been educated in universities" while the bishops' statement relates to post-eighth grade schools, the Commonwealth argues that the inconsistency indicates that the true Amish faith "does not prohibit or restrict children of their faith from going to high school." Where property rights of members of a church are not involved, courts will not investigate or determine its faith or doctrine. The courts accept as true definitions of faith the expressions and interpretations of ecclesiastical officers, governing councils and judicatories which the church has authorized to speak for it. *467 "Any other than those [ecclesiastical] courts must be incompetent judges of matters of faith, discipline and doctrine": German Reformed Church v. Seibert, 3 Pa. 282, 291. See also Watson v. Jones, 13 Wall. 679, 20 L. Ed. 666; McGinnis v. Watson, 41 Pa. 9; Krecker v. Shirey, 163 Pa. 534, 30 A. 440. So, even though the bishops' statement should be in conflict with the Dortricht confession, we nevertheless accept it as the authorized exposition of the Amish faith in regard to the public schools. II. Thus, we are squarely faced with competing demands of the Commonwealth, evidenced by its compulsory school law, and of religious liberty, guaranteed by the Constitution. Or to state the problem in other terms: In the realm of secular education, which is paramount? The State, functioning according to democratic processes and depending for its virility upon enlightened citizens; or parents, whose deep and sincere religious convictions reject advanced education as an encroachment upon their way of life? The responsibility of the Court is to find a solution which will reasonably accommodate both demands in a manner that will preserve the essentials of each. We analyzed this question in Com. ex rel. v. Bey, 166 Pa. Superior Ct. 136, 140, 70 A. 2d 693, where, after reviewing numerous cases, we held: "In short, parents have no constitutional right to deprive their children of the blessings of education or prevent the state from assuring children adequate preparation for the independent and intelligent exercise of their privileges and obligations as citizens in a free democracy." To that conclusion we adhere. Its major premise is that there is no interference with religious liberty where the State reasonably restricts parental control, or compels parents to perform their natural and civic obligations to educate their children. They may be educated in the *468 public schools, in private or denominational schools, or by approved tutors; but educated they must be within the age limits and in the subjects prescribed by law. The life of the Commonwealth — its safety, its integrity, its independence, its progress, — and the preservation and enhancement of the democratic way of life, depend upon the enlightened intelligence of its citizens. Teachers' Tenure Act Cases, 329 Pa. 213, 197 A. 344. These fundamental objectives are paramount, and they do not collide with the principles of religious or civil liberty. Unless democracy lives religious liberty cannot survive.[7] Religious liberty includes the absolute right to believe but only a limited right to act. A Mormon believed that plural marriages were divinely ordained but when he acted upon his belief he was convicted of polygamy. Reynolds v. U.S., 98 U.S. 145, 25 L. Ed. 244. A Jew held his Sabbath a holy day but when he refused to be judicially sworn on Saturday he was fined. Stansbury v. Marks, 2 Dallas 213. A Seventh Day Baptist believed he should rest from his labors on Saturday and follow the divine command, "six days shalt thou labor", but when he worked on Sunday he was convicted under the Act of 1794. Specht v. Com., 8 Pa. 312. A Mennonite maid believed she should wear the distinctive garb of her Church at all times, but she was not allowed to wear it in the school where she taught. Com. v. Herr, 39 Pa. Superior Ct. 454, affirmed 229 Pa. 132, 78 A. 68. Methodist students, who believed that "participation in war is a denial of their supreme allegiance to Jesus Christ", were nevertheless required to receive military *469 training at a state university. Hamilton v. Regents, 293 U.S. 245, 55 S. Ct. 197. A Jehovah Witness sent her minor child "to preach the gospel" by selling religious pamphlets on the public highways and was convicted of a violation of a child labor law. Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438. An imposing list of similar cases might easily be compiled. In total they apply the principle which GIBSON forcibly expressed in his memorable dissent in Com v. Lesher, 17 S. & R. 155, 160: "It is declared in the constitution [of 1790] . . . that `no human authority can, in any case, control or interfere with the rights of conscience.' But what are those rights? Simply a right to worship the Supreme Being according to the dictates of the heart; to adopt any creed or hold any opinion whatever on the subject of religion; and to do, or forbear to do, any act, for conscience sake, the doing or forbearing of which, is not prejudicial to the public weal. But salus populi suprema lex, is a maxim of universal application; and where liberty of conscience would impinge on the paramount right of the public, it ought to be restrained."[8] (GIBSON'S italics.) III. Appellants' able counsel argues that Bey and similar authorities do not rule this appeal and pins his faith on the flag salute cases, West Virginia v. Barnette, 319 U.S. 624, 63 S. Ct. 1178; Com. v. Conte, 154 Pa. Superior Ct. 112, 35 A. 2d 742; and Com. v. Crowley, 154 Pa. Superior Ct. 116, 35 A. 2d 744. He contends that since a public school pupil cannot be compelled to salute the flag, he cannot be compelled to attend school and his parents cannot be punished for refusing to send him. The Barnette opinion announces no such doctrine and nothing in it supports the corollary which counsel *470 seeks to draw from it. It decides only that the compulsory salute to the flag and the accompanying pledge constitute denial of the freedoms of speech and worship, because they require "students to declare a belief." (Access to Pennsylvania's common schools is not conditioned upon participation in a flag salute ceremony.) The opinion does not declare that states may not enforce compulsory school laws against religious dissidents. To the contrary, it approvingly quoted (319 U.S. p. 631, 63 S. Ct. 1182) an extract from Chief Justice STONE'S dissent in overruled Minersville School Dist. v. Gobitis, 310 U.S. 586, 604, 60 S. Ct. 1010, 1017. There the Chief Justice said: "Without recourse to such compulsion [flag salute] the state is free to compel attendance at school and require teaching by instruction and study of all in our history and in the structure and organization of our government, including the guaranties of civil liberty which tend to inspire patriotism and love of country." (Emphasis added.) Furthermore, Barnette did not expressly or otherwise overrule Pierce v. Society of Sisters, 268 U.S. 510, 534, 45 S. Ct. 571, 573, which recognized "the power of the State . . . to require that all children of proper age attend some school." And after Barnette was decided, the United States Supreme Court held that "the state as parens patriae may restrict the parent's control by requiring school attendance", and that, "Its authority is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience": Prince v. Massachusetts, supra. This is the latest interpretation and application of the First and Fourteenth Amendments of the Federal Constitution by the highest court of the land. That judgment binds this Court, appellants, and their brethren. Judgments and sentences affirmed. NOTES [1] Constitution of the United States. First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . ." Fourteenth Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . ." Constitution of Pennsylvania. Art. I § 3: "All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience and no preference shall ever be given by law to any religious establishments or modes of worship." [2] Public School Code, § 1330, 24 P.S. § 13-1330: "The provisions of this act requiring regular attendance shall not apply to any child who . . . (4) Has attained the age of fourteen (14) years and is engaged in farm work or domestic service in a private home on a permit issued as provided in clause (3) of this section, and who has satisfactorily completed, either in public or private schools, the equivalent of the highest grade of the elementary school organization prevailing in the public schools of the district in which he resides, if the issuance of such a permit has first been recommended by the county or district superintendent of schools having supervision of the schools of the district where such child resides, or by the principal of the private school where such child is enrolled, and the reason therefor has been approved by the Superintendent of Public Instruction." Clause (3) authorizes the Superintendent of Public Instruction to prescribe regulations for the issuance of permits. For a criticism of the regulations, see Com. v. Petersheim, 70 D. & C. 432. [3] Fletcher, Pennsylvania Agriculture and Country Life. Pennsylvania Historical and Museum Commission, Harrisburg, p. 50. [4] Religious Bodies, 1936. Bureau of the Census, II, 1003, 1023, 1028. [5] Fletcher, op. cit. pp. 489, 515, 527. [6] Deuteronomy 6: 6-8; Genesis 18: 19; Ephesians 4: 28; Romans 12: 1; Luke 16: 15; Ephesians 3: 19; 1 Corinthians — Chapters 1 and 2; 1 Corinthians 8: 1-3; Titus 3: 14; 1 Corinthians 15: 33; Romans 1: 21-23; James 1: 5. [7] William Penn, whose memory lies close to the Amish heart, was at once a dynamic apostle for religious freedom and a stanch advocate of public education. He wrote to a friend: "If we would preserve our government we must educate our people. The government is a trustee for the youth." Fletcher, op. cit. p. 478. [8] This excerpt from GIBSON'S dissent was quoted with approval in Specht v. Com., supra, p. 322, and Com. v. Herr, supra, p. 143.

CourtListenerOpinion

2024-06-11T07:23:54.909485

2013-10-30 08:36:20.572372+00

2207555

208 Cal.App.2d 317 (1962) THE PEOPLE, Plaintiff and Respondent, v. GEORGE LEONARD BENNETT, Defendant and Appellant. Crim. No. 3331. California Court of Appeals. Third Dist. Oct. 9, 1962. Frank Hue, under appointment by the District Court of Appeal, for Defendant and Appellant. Stanley Mosk, Attorney General, Doris H. Maier, Assistant Attorney General, and Edward A. Hinz, Jr., Deputy Attorney General, for Plaintiff and Respondent. PEEK, P. J. Defendant was found guilty of robbery in the first degree. He now appeals from the judgment of conviction and from the order denying his motion for a new trial. It is the conclusion of this court that none of his contentions are meritorious. The victim of the robbery, Jesse H. Mitchell, and his companion, Donald H. Carnegie, became acquainted with defendant at the bar of a gambling casino at Lake Tahoe. At their suggestion, defendant joined them for dinner, during which it was agreed that he would also join them on an excursion to Squaw Valley the following day. It was also suggested that defendant spend the night with them at their motel, since he had spent all of his money except a small pay roll check and had checked out of his motel. Shortly after dinner, Carnegie returned to the motel while Mitchell and defendant stayed on at the night club. They subsequently went to another club where Mitchell won approximately $25 and defendant lost approximately $10. About 5:30 a. m. they returned to the motel where they found Carnegie asleep in one of the double beds. They undressed and occupied the remaining bed. Shortly thereafter, defendant got up, stating he was going back to the casino and try to win back some of the money he had lost. He returned at approximately 8 a. m., just as Carnegie was leaving for breakfast. When Carnegie returned he found Mitchell alone, covered with blood, the room in a chaotic condition and all of their personal effects as well as all of their clothing missing. Mitchell was unable to give a coherent statement to police officers who arrived shortly thereafter. He was taken to the Al Tahoe Medical Center where it was found he had received *319 15 to 20 deep lacerations about the head. There was also a suggestion of a fractured skull. He remembered nothing from the time Carnegie left the motel until he regained consciousness in a Reno hospital nine days later. Defendant was arrested in Reno when he attempted to cash a check at a gambling casino under the name of Mitchell. When questioned as to his identity he showed the officers various cards with Mitchell's name on them. However, when pressed for his driver's license he became belligerent and was placed under arrest. Among the items found in his possession was a motel key. When the officers stated they would go to his motel and bring back what they found there, defendant stated, "I wish you would. I would like to have it all here." Among the articles which were found, some of which were introduced in evidence, were a transistor radio, electric razor, camera, and a plaid carrying case, all of which were identified by Mitchell as belonging to him. It is defendant's first contention that the articles mentioned were improperly admitted into evidence because they were produced as the result of an unlawful search and seizure. In support of this contention, defendant argues that he did not consent to the search and that the search was not made contemporaneously with his arrest, in that he was neither present nor in the immediate vicinity. Defendant's denial of consent in the face of the statements made by the officers merely presented a conflict in the evidence which the court resolved against him. [1] It is well established that when a defendant freely consents to a search of the premises under his control, any search made pursuant thereto is reasonable. (People v. Gorg, 45 Cal.2d 776 [291 P.2d 469].) [2] It is the further rule that when a defendant freely consents to a search it is not necessary for the prosecution to show that such search and seizure were reasonable as incident to a proper arrest. (People v. Burke, 47 Cal.2d 45 [301 P.2d 241].) [3a] Defendant also contends that there was insufficient evidence to support the verdict of robbery in the first degree, in that there was no evidence that he used a "dangerous or deadly weapon," within the meaning of section 211a of the Penal Code. The record in this regard, as noted, shows that Mitchell suffered 15 to 20 deep lacerations about the head with resultant depressed skull fractures. Defendant admitted to the El Dorado County officers that he had kicked Mitchell with his shoes and had later disposed of them because they were covered with blood. He also admitted to Carnegie that he *320 had struck Mitchell repeatedly. Furthermore, while testifying in his own behalf, he stated he had struck Mitchell with "everything God gave me. My knees, my elbows, my hands and everything like that." His defense was that Mitchell had made improper advances which had angered him. [4] In the determination of whether an instrument not inherently deadly or dangerous assumes such characteristics, recourse may be had to the nature of the object or instrument, the manner of its use, the location on the body of injuries inflicted, and the extent of such injuries. (People v. Russell, 59 Cal.App.2d 660 [139 P.2d 661].) [5] Thus it has been held that a shod foot, although not a weapon in the strict sense, is capable under the above rule of being used as such. (People v. Wood, 192 Cal.App.2d 393 [13 Cal.Rptr. 339].) As a part of the State's case and in order to show the injuries inflicted upon Mitchell, photographs were introduced into evidence. It is defendant's contention that such evidence was introduced solely for the purpose of inflaming the jurors' emotions against him, inasmuch as there was no dispute that the victim had been injured. Four of the photographs were taken at the Washoe Medical Center and depicted Mitchell's head injuries. The remaining two photographs were taken at the emergency hospital shortly after Mitchell had been discovered by Carnegie. [6] While it is true that it is error to receive in evidence gruesome photographs for the sole purpose of arousing the passions of the jurors, such photographs are admissible when they are relevant to the issue before the court and their probative value is not outweighed by the danger of prejudice to the defendant. [7] Necessarily, therefore, whether or not photographs may be admitted is lodged in the sound discretion of the trial court. We find no abuse of that discretion. [3b] In view of the contentions made by defendant, the photographs of Mitchell's condition were relevant to the issue of whether or not the shod feet of defendant had been used as a deadly weapon in inflicting the injuries. The order denying the motion for a new trial being nonappealable, the appeal therefrom is dismissed and the judgment is affirmed. Schottky, J. and Pierce, J. concurred.

CourtListenerOpinion

2024-06-11T07:23:54.912334

2013-10-30 08:36:20.849833+00

9736821

STEINMETZ, J. The issue certified is whether an accused's request for or appearance with counsel at an initial appearance on a charged offense constitutes an invocation of his fifth amendment right to counsel that precludes police-initiated interrogation on unrelated, *29uncharged offenses. The trial court answered "no" and we agree. Other issues in the case include whether the state illegally delayed filing the murder charges to conduct further investigation so as to obtain a sew-up confession. The trial court answered "no." We do not believe the issue presented is consistent with the facts. Another issue before us is whether the defendant's statements should have been suppressed because they were obtained in violation of the defendant's fifth amendment right to be silent. The trial court answered "no" and we agree. The final issue raised is whether the trial court should have allowed the defendant to withdraw his guilty plea and granted him a new trial. The trial court answered "no" and we agree. The case is before this court by certification from the court of appeals granted pursuant to Rule 809.61, Stats. Paul McNeil, the defendant-appellant, seeks review of a judgment of conviction entered on March 18, 1988. Racine county circuit court Judge Emmanuel J. Vuvunas entered judgments of convictions against the defendant for the crimes of party to second-degree murder, party to attempted first-degree murder, and party to armed burglary. The sentence imposed by the judge was an indeterminate term of not more than 20 years for the party to second-degree murder conviction, 20 years for the party to attempted first-degree murder, and 20 years for party to armed burglary, all counts to be consecutive to one another for a total of 60 years. This matter was initiated by a felony warrant request by Sergeant Robert Stauss of the town of Caledonia Police Department of the Racine county district attorney's office. The complaint was issued on May 27, *301987, by the then Racine county District Attorney Gerald Ptacek. The warrant was served on the defendant who was being held in the Milwaukee county jail on an unrelated armed robbery charge and was brought before a Racine county magistrate on June 4,1987. A preliminary examination was held on June 11,1987, and subsequently various motions including motions to suppress the defendant's statements were filed. Judge Vuvunas denied the motions to suppress after five hearings were held. A postjudgment notice of motion and motion to withdraw the guilty plea were presented. The motion requested a withdrawal of the defendant's guilty plea as a result of a manifest injustice because the court had ruled improperly when it ruled in favor of the state and against the claim of ineffective assistance of counsel. McNeil argued that defense counsel was incompetent during the course of the hearings on suppression of statements because counsel did not bring to the court's attention the. most recent case law and supporting facts dealing with defendant's situation. On hearings on the motion to withdraw the guilty plea, Judge Vuvunas ruled that trial counsel had not been ineffective and that he was now considering the case law and record which may not have been available earlier. He stated that even if he had been aware of the case law at the time he made his original decision, he would have ruled the same way and allowed the defendant's statements to be admitted into evidence. The development of this case begins on May 21, 1987, when two Milwaukee county deputies escorted the. defendant back to Milwaukee from Omaha, Nebraska. They had taken defendant into custody on a criminal complaint and warrant charging him with an armed robbery arising out of an incident in the city of West Allis in *31Milwaukee county. The following day, May 22,1987, the defendant was brought before court commissioner Frank J. Liska, Jr. in Milwaukee county. Bail was set and the matter was scheduled for a preliminary examination. The defendant had an attorney with him in court at that time. Later in the day on May 22, and again on May 24 and May 26, still in the custody of the Milwaukee authorities, the defendant was interrogated regarding the episode that was to provide the basis for the criminal charges in this Racine county prosecution. Those charges were made by the filing of a criminal complaint on May 27,1987. An initial appearance on those charges was held on June 4,1987, in Racine county pursuant to a writ. The critical question that mjust be answered in resolving the issue of the admissibility of the defendant's statements is whether an accused who has requested counsel at his initial appearance has thereby invoked not only his sixth amendment right to counsel, but his fifth amendment right to counsel as well. The defendant appeared at his initial appearance in Milwaukee county for the unrelated offense of robbery. There he was represented by an attorney from the public defender's office. The record does not reveal whether he requested counsel at his initial appearance, only that he appeared with counsel at that appearance. Defendant contends that since he appeared with counsel at the initial appearance on the unrelated Milwaukee county charge which triggered his sixth amendment right to counsel, he could not be subject to any further interrogation by the authorities about any offenses, including the Racine county offenses charged in this case, unless he initiated further communication, exchanges, or conversations with the police pursuant to *32Edwards v. Arizona, 451 U.S. 477 (1981). Under the Edwards rule, when a suspect invokes his fifth amendment right to counsel during a custodial investigation, no further interrogation may be commenced by the authorities until counsel has been made available to him, unless he himself initiates further communication, exchanges, or conversations with the police. Id. at 484-85. The defendant contends that his appearance with counsel at the initial hearing on the Milwaukee county charges constituted an invocation of his sixth amendment right to counsel that under the fifth amendment Edwards rule precluded the police from initiating any further interrogation of him, including questioning regarding the unrelated Racine county crimes. He argues that because it was the police that initiated the further interrogation that produced his statements regarding the Racine county crimes, those statements should have been suppressed under the Edwards rule. There are two distinct rights to counsel when a defendant is interrogated by the police. The first is the fifth amendment right to counsel recognized in Miranda v. Arizona, 384 U.S. 436, 470 (1966). That right applies whenever a defendant is subjected to custodial interrogation irrespective of whether or not he has been formally charged with the offense to which the interrogation relates. Id. at 471. That right to counsel is not directly conferred by the fifth amendment, but rather is a prophylactic rule designed to safeguard the privilege against self-incrimination that is directly conferred by the fifth amendment. See Solem v. Stumes, 465 U.S. 638, 644 n.4 (1984). *33The other right to counsel potentially applicable at an interrogation is the guarantee of the assistance of counsel in criminal proceedings directly conferred on a defendant by the sixth amendment.1 That right to counsel attaches only "at or after the time that judicial proceedings have been initiated against [the accused] — 'whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' " Brewer v. Williams, 430 U.S. 387, 398 (1977). Such right is only applicable to interrogation that occurs subsequent to the initiation of formal judicial proceedings relating to the charge about which the interrogation is concerned. Although it was initially recognized only in the fifth amendment context, the Edwards rule also applies to an invocation of the sixth amendment right to counsel. Thus, the Edwards rule also applies whenever an accused invokes his sixth amendment right to counsel, not just when he invokes it during the course of custodial interrogation. The invocation of right to counsel at an initial appearance will therefore trigger the Edwards rule. See Michigan v. Jackson, 475 U.S. 625, 636 (1986). *34While the Edwards rule applies to both the fifth and sixth amendment rights to counsel, the scope of its application differs depending on which of the two rights is being invoked. In the fifth amendment context, an invocation of the right during custodial interrogation precludes further questioning on any offense, not just the one that was the subject of the interrogation. Arizona v. Roberson, 486 U.S. 675, 685 (1988) (distinguishing the sixth amendment right to counsel from the fifth amendment prophylactic right to counsel to protect against self-incrimination). In contrast, an invocation of the sixth amendment right to counsel on one offense does not trigger the Edwards rule with respect to interrogation on other offenses, at least not those that have not been charged. As to the uncharged offenses, an accused has no sixth amendment right to counsel, so interrogation on those uncharged offenses cannot be deemed "in derrogation of [the] Sixth Amendment right invoked [by the accused] at his arraignment" on a charged offense. People v. Buckles, 155 Mich. App. 1, 399 N.W.2d 421, 423 (1986). Since there is no sixth amendment right to counsel on uncharged offenses, an invocation of that right at an initial appearance or arraignment on a charged offense does not bring the expanded scope of the fifth amendment Edwards rule into play with respect to interrogation on uncharged offenses. See Moran v. Burbine, 475 U.S. 412, 431 (1986); Maine v. Molton, 474 U.S. 159, 180 n.16 (1985). The defendant cites a case from the Seventh Circuit Court of Appeals as indistinguishable. United States ex rel. Espinoza v. Fairman, 813 F.2d 117, 123 (7th Cir. 1987), expressly held: "that individuals who invoke their *35right to counsel at their arraignment are invoking both their Sixth Amendment and their Fifth Amendment rights." This court is not bound by the Espinoza holding as precedential value. State v. Webster, 114 Wis. 2d 418, 426 n.4, 338 N.W.2d 474 (1983). Likewise, the United States Supreme Court has recently ruled on Butler v. McKellar, — U.S. —, 110 S.Ct 1212, 108 L.Ed.2d 347 (1990). The facts in Butler indicate that, unlike McNeil, the defendant invoked his fifth amendment right to counsel upon arrest on an unrelated assault and battery charge. The defendant then retained counsel who appeared with him at a bond hearing on the unrelated charge on August 31,1980. The defendant was subsequently informed that he was a suspect in a murder. He was read his Miranda rights, stated he understood his rights and signed two waiver forms. The defendant was interrogated concerning the murder and confessed. At no time did he request counsel during this interrogation. The defendant was charged with the murder and convicted. The issue before the United States Supreme Court in Butler concerns the retroactivity on collateral attack of Roberson. The Butler Court held that Roberson was not retroactive on collateral attack, and it affirmed Butler's conviction. Although proponents of Espinoza and cases following the holding in Espinoza might interpret Butler as changing Roberson to affect an outcome on the certified issue now before us that is on all fours with Espinoza, we disagree. We continue to interpret Roberson to apply only to the invoked fifth amendment prophylactic protection of "having an attorney present to counteract the inherent pressures of custodial interrogation . . .." Roberson, 486 U.S. at 685. *36We do not read Butler and Roberson as affecting a transmutation of the sixth amendment right to counsel into a fifth amendment right to counsel. We hold that a defendant does not invoke his or her fifth amendment right to counsel by invoking the sixth amendment right to counsel at an initial appearance. The fifth amendment right to counsel recognized in Miranda is not one that attends a criminal suspect under all circumstances and in every situation. Rather, it attaches only when an accused is in custody, United States v. Henry, 447 U.S. 264, 273 n. 11 (1980), and subject to custodial interrogation. Rhode Island v. Innis, 446 U.S. 291, 198 (1980). An accused may well be in custody at an initial appearance, but he is not being subjected to interrogation. Thus, there is no fifth amendment right to counsel at an initial appearance. When an accused invokes his sixth amendment right to counsel at that appearance, there is no basis for concluding that he is invoking his fifth amendment right to counsel. Connecticut v. Barrett, 479 U.S. 523, 528 (1987), which discusses the fifth amendment right to counsel, instructs that one should examine the issue by "reference to [the] prophylactic purpose" of Miranda and, therefore, of the Edwards rule. By doing this, one reaches the conclusion that a sixth amendment request for counsel at an initial appearance should not be deemed an invocation of the fifth amendment right to counsel that would trigger the Edwards rule. The Edwards rule is "designed to insulate the exercise of Fifth Amendment rights from the government 'compulsion, subtle or otherwise,1 that 'operates on the individual to overcome free choice in producing a statement *37after the privilege has been once invoked.' " Barrett, 479 U.S. at 528. There might well be legitimate concern that a reini-tiation of interrogation after a request for counsel at an interrogation session or in response to Miranda warnings would constitute "subtle compulsion" because it might lead a defendant to question whether the police really intend to honor his right to counsel. However, when an accused has not requested counsel in the context of custodial interrogation or in response to Miranda warnings pursuant to the fifth amendment, but rather invokes his sixth amendment right at his initial appearance on a criminal charge, it is difficult to see what "subtle compulsion" would exist if the police were to approach the defendant and seek to interrogate him on an unrelated crime after providing a full warning of his Miranda rights, including the right to counsel. The defendant relies on language in Jackson, 475 U.S. at 633-34 n.7, for his position that a request for counsel at an initial appearance invokes the fifth amendment right to counsel. The proffered language from Jackson states: 'Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not. When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking; he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel. It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge. The simple fact that defendant has *38requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly.' Defendant's reliance is misplaced. In that passage, the Supreme Court is quoting a passage from the Michigan Supreme Court's decision in People v. Bladel, 421 Mich. 39, 63-64, 365 N.W.2d 56, 67 (1984). However, the Michigan Supreme Court in its decision expressly held that a defendant who requests counsel at an arraignment only invokes the sixth amendment right to counsel and does not thereby invoke his fifth amendment right to counsel. Bladel, 421 Mich, at 52-53, 365 N.W.2d at 62; see also Jackson, 475 U.S. at 630 n.4 (noting that the Michigan court did not rely on the fifth amendment and expressly refusing to comment on the Michigan court’s fifth amendment analysis). The language in Jackson, which requires a broad interpretation to be accorded a defendant's invocation of his sixth amendment right to counsel, does not mean that the court must transmute the invocation of that right into an invocation of another right, the fifth amendment right to counsel. Rather, in context, the Jackson decision used the quoted passage from Bladel in an attempt to assess how broadly to interpret the defendant's invocation of only his sixth amendment right to counsel. The Jackson court refused to accept the state's argument that the defendant's sixth amendment request for counsel in Bladel was a limited invocation applying only to representation in formal legal proceedings. Instead, the Court stated that "the settled approach to questions of waiver" required a broad interpretation be placed on the defendant's request. Jackson, 475 U.S. at 633.2 The breadth of one's invocation of the sixth *39amendment right to counsel is clearly not at issue in the case now before us. At issue is whether invocation of the sixth amendment right to counsel automatically transforms into an invocation of the fifth amendment right to counsel. In Barrett, 479 U.S. at 529, the Supreme Court analyzed the defendant's unambiguous invocation of his fifth amendment right to counsel at a custodial interrogation and the scope of his invocation and gave it the broadest possible interpretation on consideration of waiver. The Barrett Court concluded that a fifth amendment request for counsel at a custodial interrogation before defendant would give police a written statement did not prohibit the police from obtaining and using at trial oral statements volunteered by the defendant. The court rejected the defendant's argument that "broad effect" must be given "to requests for counsel that [are] less than all-inclusive." The Supreme Court stated: Barrett made clear his intentions [he was willing to give an oral statement, but not a written statement in the absence of counsel] and they were honored by police. To conclude that respondent invoked his right to counsel for all purposes requires not a broad interpretation of an ambiguous statement, but a disregard of the ordinary meaning of respondent's statement. 479 U.S. at 529-30. (Footnote omitted.) The "ordinary meaning" of a defendant's request for counsel at an initial appearance is only that he is invoking his sixth amendment right to counsel in the pending *40prosecution. When a defendant invokes his sixth amendment right to counsel in a pending prosecution by requesting or accepting counsel at the initial appearance, it need not be viewed as an invocation of the fifth amendment right precluding interrogation on unrelated crimes any more than the limited invocation of the fifth amendment right to counsel in Barrett needed to be viewed as an invocation of the full fifth amendment right. Other jurisdictions agree with our holding which rejects the Espinoza rationale and keeps the prophylactic protections provided under the fifth amendment right to counsel separate from the sixth amendment right to counsel. The Michigan Supreme Court in People v. Crusoe, 433 Mich. 666, 449 N.W.2d 641, 651, 1989 Mich, refused to extend the Roberson rationale beyond its express fifth amendment application to include extension of the sixth amendment invocation of right to counsel to shield the defendant from postarraignment interrogations on unrelated charges. In so holding, the Crusoe court expressly rejected and reversed the court of appeals decision which adopted the analysis of Espinoza: "We find no authority for the adoption of a rule that a defendant's request for court appointed counsel at an arraignment invalidates a waiver of a defendant's right to counsel per se under Miranda during a subsequent police-initiated interrogation concerning a different and unrelated offense." (Footnote omitted.) (Citing United States v. Roberts, 869 F.2d 70, 74 (2d Cir. 1989)). The Second District Court of Appeals in United States v. Roberts, 869 F.2d 70, 74 (2d Cir. 1989), asserted that the situation before it was "quite different from [that] of Edwards, Jackson and Roberson." That court said: "Roberts would have us hold that, once an accused's Sixth Amendment right to counsel attaches, *41his Fifth Amendment rights become unwaivable in the context of a separate investigation. Such a conclusion comports with neither the letter nor the spirit of Edwards and its progeny." Id. The court in State v. Stewart, 113 Wash. 2d 462, 780 P.2d 844, 853 (1989) offered an identical conclusion: In the end, we hold Stewart's Sixth Amendment right to counsel did not attach on these burglary charges until months after his confessions. He did not invoke his Fifth Amendment right to counsel when he requested an attorney at an arraignment on an unrelated charge. The Fifth Amendment right to counsel exists solely to guard against coercive, and therefore unreliable, confessions obtained during in-custody interrogation, which was not occurring at the time Stewart requested counsel. Subsequently, prior to giving his confession, Stewart was given Miranda warnings and did not invoke his Fifth Amendment right at that time. There has been no showing of confusion on the part of the defendant, nor trickery on the part of the State. Extension of the Edwards rule to this fact scenario would constitute a misapplication of that prophylactic rule. The defendant next complains that there was an unreasonably long detention before his initial appearance on the Racine county charges that requires suppression under the rule in Phillips v. State, 29 Wis. 2d 521, 534, 139 N.W.2d 41 (1966). Regarding the nature of the Phillips rule and what is ultimately at issue when a Phillips claim is raised, this court has stated: The suppression of sew-up confessions is based on the rule that a defendant who has not yet been charged may be taken into custody and interrogated only for a period reasonably necessary for the State *42to decide whether to release him or to make a formal complaint. A detention for any longer period violates due process and renders any confession obtained during the unreasonable period inadmissible. Briggs v. State, 76 Wis. 2d 313, 323, 251 N.W.2d 12 (1977); Klonowski v. State, 68 Wis. 2d 604, 229 N.W.2d 637 (1975); Phillips v. State, 29 Wis. 2d 521, 534-5, 139 N.W.2d 41 (1966). However, 'A confession does not become inadmissible as a "sew-up" confession merely because the state, prior to the confession, had information sufficient to sustain a charge. The question revolves solely on the point whether the delay was inordinate and the detention illegal.' Briggs v. State, supra at 324; Krueger v. State, 53 Wis. 2d 345, 357, 192 N.W.2d 880 (1972). State v. Benoit, 83 Wis. 2d 389, 404-05, 265 N.W.2d 298 (1978). We hold that the facts of this case are not consistent with a conclusion that the Phillips rule was violated. McNeil promptly appeared before a judicial court commissioner on the Milwaukee county armed robbery charge for which he had been arrested and for which he was in custody. The timely appearance rendered his subsequent detention in the Milwaukee county jail lawful. The statements regarding his conduct in Racine county were given while he was in lawful custody in Milwaukee county. The defendant's argument on this issue then seems to switch from the due process concerns of the Phillips rule to an examination of a possible sixth amendment violation under State v. Lale, 141 Wis. 2d 480, 415 N.W.2d 847 (Ct. App. 1987). Here, McNeil suggests that the state deliberately delayed filing the Caledonia murder charges as a pretext to allow further investigation of these unfiled charges without fear of violating his sixth amendment right to counsel. This is a direct reference to *43principles discussed in Lale wherein the court of appeals adopted as law combined interpretations of Moulton, 474 U.S. 159, and Burbine, 475 U.S. 412, which state that a defendant's sixth amendment right to counsel is not involved when the police obtain incriminating statements on unfiled charges that are unrelated to a filed charge. The court of appeals in Lale noted the existence of a possible exception to this rule which the defendant sirgues is applicable here. The exception states that a possible violation of the sixth amendment may occur when "the government formally files on some charges but delays filing of another charge as a pretext to facilitate investigation of that unfiled charge without being hampered by the sixth amendment. . .." Lale, 141 Wis. 2d at 489. The court of appeals suggested that under such circumstances "bad faith may exist.” Id. Here, on December 14, 1987, at the defendant's hesiring on the motion to suppress the confession, the trial court on the facts presented expressly refused to find any bad faith in how the authorities handled this case. The court specifically stated: I don't think there has been any showing that there was conduct in bad faith being done here. I think the officers who were going through this in a case which involves a defendant who was involved in lots of different problems. Involved in several different investigations. Certainly from the testimony that's come through here, I don't think there's been any showing like that at all. The trial court's findings of fact on the bad faith issue will not be overturned unless clearly erroneous. State v. Owens, 148 Wis. 2d 922, 929, 436 N.W.2d 869 (1989). Here, the defendant has offered no showing to *44support a determination that the trial court's findings were clearly erroneous. Thus, the trial court's refusal to find bad faith removes this case from the Lale exception, and we agree with the trial court that McNeil's sixth amendment right to counsel under the Lale theory has not been violated. The defendant next claims his statements should have been suppressed because the police did not "scrupulously honor" his request to remain silent as they are required to do under the United States Supreme Court's decision in Michigan v. Mosley, 423 U.S. 96 (1975). Determining whether the right to silence has been scrupulously honored requires the application of constitutional principles to the facts of the case and is subject to independent appellate review. There are five factors that are to be considered in deciding whether an invocation of the right to silence has been "scrupulously honored." Those factors as adopted from Mosley, 423 U.S. at 104-05 and as enumerated in State v. Hartwig, 123 Wis. 2d 278, 284, 366 N.W.2d 866 (1985), are: (1) The original interrogation was promptly terminated. (2) The interrogation was resumed only after the passage of a significant period of time . . .. (3) The suspect was given complete Miranda warnings at the outset of the second interrogation. (4) A different officer resumed the questioning. (5) The second interrogation was limited to a crime that was not the subject of the earlier interrogation. The factors are not to be woodenly applied. Id. at 284-85. They provide a framework of analysis to aid in determining the essential issue of whether the defendant's right to silence was scrupulously honored. Id. *45All five factors are satisfied in this case. The defendant initially invoked his right to silence and the interrogation was terminated. The questioning was resumed after the passage of a significant period of time, either one or two days depending on the version accepted, the defendant's or the police. Cf. State v. Turner, 136 Wis. 2d 333, 357, 401 N.W.2d 827 (1987) (periods of 20 and 24 hours have been deemed significant time spans for Mosley purposes). Prior to the second and subsequent interrogations, the defendant was given a full and complete set of Miranda warnings.3 The officers conducting those interrogations made sure the defendant understood each of the rights about which the warnings advised the defendant and secured an express waiver of them. A different officer, Officer Butts, resumed the questioning at the second interrogation. The defendant’s initial invocations of his right to silence were made when Detective Smukowski attempted to interrogate him. The subsequent interrogations were conducted by different officers. The second and subsequent interrogations were restricted to a crime that had not been the subject of the initial interrogation. Prior to his arrest and return to Milwaukee, the defendant's girlfriend had told Officer Butts who initiated the second interrogation after the defendant invoked his right to silence that he (the defendant) "wanted to talk to [the officer] when he got back to Milwaukee." With this indication of a desire to talk to the interrogating officer, it does not appear that McNeil's previously invoked right to silence was not *46scrupulously honored when that officer approached him and, after giving Miranda warnings, determined that the defendant was willing to talk to him about his part in the Racine county town of Caledonia crimes. The defendant immediately raised to the police the subject of the Caledonia incident that provided the basis for the charges in this case. Notwithstanding his initial invocation of his right to silence regarding the West Allis case when he was interrogated in Omaha, the defendant affirmatively wanted to speak to the police about the Caledonia crime at issue in this case. Under the circumstances, there is no basis for finding that his right to silence was not scrupulously honored. The defendant also argues that he should be allowed to withdraw his guilty plea and should be granted a new trial. He bases his request on the theory of ineffective assistance of counsel. The ineffective assistance of counsel argument, which was raised in McNeil's notice of motion and motion to withdraw the guilty plea, was based on trial counsel's failure to originally brief and argue the Espinoza case on pretrial motions to suppress evidence. A hearing was held on the motion to withdraw the guilty plea at which the Espinoza case was argued. Exhibits were also accepted into evidence which established that the defendant had been before a Milwaukee county magistrate in the morning hours of May 22,1987, on the Milwaukee robbery charges and that he was represented by a state public defender at that time. In relevant part, the trial court's decision on the motion stated: The Court having heard testimony and having read the law presented by the parties makes the following Findings of Fact: *47That defense counsel's performance was not deficient. . .. The Court, after looking at the whole record, finds that its decision on motions to suppress would have been the same even if that case would have been argued, as there are no Wisconsin cases upon which the Court could have relied. Therefore, the motion of the defendant is denied. In briefs reviewed by this court, McNeil states that his ineffective assistance of counsel argument is made moot by the trial court's hearing and decision on the issue. We agree. The argument was made on reliance of case law that was not and is not precedent in the state of Wisconsin. McNeil's defense was therefore not prejudiced by trial counsel's failure to expressly argue Espinoza. McNeil then apparently changes his argument on brief on this issue to assert that the defendant's sole basis for entering a no contest plea was the trial court's denial of his suppression motion. He argues that the denial of his motion violated his constitutional rights and therefore justifies reversal of his conviction and a new trial. This amounts to an argument that the trial court committed prejudicial error by denying the motion. Because we hold against McNeil on all of the issues presented in this case and because a conclusion that the trial court committed prejudicial error depends upon our holdings here, we hold that the trial court did not commit prejudicial error when it denied the suppression motion. By the Court. — The order of the Racine county circuit court is affirmed. The Sixth Amendment to the United States Constitution provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor and to have the Assistance of Counsel for his defence. The facts in Bladel are distinguishable from those in the *39case now before us in that at all times Bladel concerned only three counts of first-degree premeditated murder upon which Bladel was arraigned. The advice given by the dissent was fulfilled by the officers in this case and served as part of the basis for the majority opinion. JIn Espinoza, the defendant accepted the appointment of counsel, but did not specifically request counsel. The Espinoza court concluded that the defendant's unqualified acceptance of counsel at his arraignment was equivalent to a request for counsel and that it was not necessary for the defendant to specifically request counsel in order to invoke this right. 813 F.2d at 123.

CourtListenerOpinion

2024-06-11T07:23:54.918175

2023-08-26 19:07:40.292257+00

9736822

*48CHIEF JUSTICE HEFFERNAN (dissenting). The majority concludes that an accused who requests counsel at an initial appearance and remains in continuous custody has not invoked the fifth amendment right to counsel which precludes police-initiated interrogation on unrelated, uncharged offenses. I disagree. The majority states that the issue is whether invocation of the sixth amendment right to counsel automatically transforms into an invocation of the fifth amendment right to counsel. (Majority op. at p. 37.) The fifth amendment protection against self-incrimination provides the right to counsel at custodial interrogations, irrespective of whether a defendant has been formally charged or not. Miranda v. Arizona, 384 U.S. 436 (1966), and Arizona v. Roberson, 486 U.S. 675 (1988). Hence, the issue in this case is whether the defendant invoked his fifth amendment right to counsel when he requested assistance of counsel at an initial appearance instead of while being interrogated afterwards. I am persuaded that the reasoning of the Seventh Circuit Court of Appeals in United States ex rel. Espinoza v. Fairman, 813 F.2d 117 (7th Cir. 1987), cert. denied, Fairman v. Espinoza, 483 U.S. 1010 (1987), is correct and should be followed by this court. Espinoza holds that, when a defendant requests1 an attorney at an initial appearance and remains in custody, the court should presume that the defendant has invoked his fifth amendment right to counsel and police-initiated interro*49gation is thereafter prohibited on any crime. See Edwards v. Arizona, 451 U.S. 477 (1981), and Arizona v. Roberson, 486 U.S. 675 (1988). The majority rejects the Seventh Circuit's approach by distinguishing between a defendant who makes a request for assistance of counsel to a police officer while subject to a custodial interrogation and a defendant who makes a request for assistance of counsel to a magistrate and thereafter remains in continuous custody. The majority asserts that, while a defendant is in custody at an initial appearance, he is not being interrogated. Because the defendant is not being interrogated when he makes his request for an attorney, the majority leaps to the conclusion that there is no danger of compelled testimony and, therefore, the fifth amendment right to counsel which arises from the protection against self-incrimination is not implicated. The majority misreads the holdings of Miranda v. Arizona, supra, and Edwards v. Arizona, supra. Miranda established that the fifth and fourteenth amendments require that, prior to any custodial interrogation, defendants be informed of their right to remain silent and their right to have counsel present "during custodial interrogation." See Edwards, 451 U.S. at 481-482. This does not mean that the request for counsel must be made "during custodial interrogation." In Edwards v. Arizona, the Supreme Court established a bright-line rule that, if a defendant requests counsel while in custody, police-initiated interrogation must cease until an attorney is present. Edwards added protection to prevent police from badgering a defendant into waiving previously asserted Miranda rights. Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983). Nowhere does Edwards or any of its progeny indicate accuseds must assert their Miranda right to counsel while they are *50being interrogated. The request must be made while the defendant is in custody, prior to, or during, an interrogation. It is apparent that there is danger of "subtle compulsion" when a defendant requests the assistance of an attorney at an initial appearance and is nevertheless subjected to further interrogation while custody continues. Whether a request for an attorney is made to a police officer or to a judge, whether in the jail or during an initial appearance, the dangers of the inherent pressure of custodial interrogation when not having an attorney present are the same. Just as the Edwards protection is not dependent upon the subject matter of the interrogation, neither is this protection dependent upon whether the request for assistance of counsel is made to a police officer while in custody or to a magistrate at an initial appearance before the defendant is interrogated. Finally, I disagree with the majority that recent United States Supreme Court decisions provide support for its position. To the contrary, recent Supreme Court decisions support the Seventh Circuit Court of Appeals' decision in Espinoza. First, in Arizona v. Roberson, 486 U.S. 675 (1988), the Court resolved a conflict among the circuits and state courts, accepting the position taken by the Seventh Circuit in Espinoza, 486 U.S. at 679, n.3. The Roberson court held that, when a suspect requests counsel, the fifth amendment bars police-initiated interrogation on any crime, even one which was not the subject of the original interrogation. Recently, in Butler v. McKellar, — U.S. —, 110 S.Ct 1212, 108 L.Ed.2d 347 (1990) (formerly reported as Butler v. Aiken), the Supreme Court held that Roberson could not be applied retroactively in cases on collateral review and, for that reason, the particular, defendant could not reap the benefit of the rationale of the Espinoza court. The issue *51raised before the Court of Appeals in Butler was whether Espinoza required the police, during continuous custody, to refrain from all further questioning on any offense once an accused invokes his right to counsel. In resolving this issue, the Fourth Circuit Court of Appeals rejected the Seventh Circuit's holding in Espinoza. Butler v. Aiken, 846 F.2d 255 (4th Cir. 1988). After the Supreme Court issued its decision in Roberson, the Fourth Circuit Court of Appeals, on defendant's petition for rehearing, acknowledged that its decision, rejecting the Espinoza rationale, was doubtful but that the defendant was not entitled to the retroactive benefit of Roberson. 864 F.2d 24, 25 (4th Cir. 1988), reh'g denied. The Supreme Court agreed that Butler was not entitled to a retroactive application of Roberson. The court noted the discrepancy between the Seventh Circuit and the Fourth Circuit as evidence that the outcome in Roberson was not clear from the earlier holding in Edwards and therefore constituted a "new rule," hence, not calling for retroactive application. While the Supreme Court limited its holding to the retroactive application of Roberson, its approval of Espinoza is significant. I conclude that the Espinoza court's analysis of the fifth amendment right to counsel is correct and implicitly has been approved by the United States Supreme Court. Therefore, law enforcement officers may be well advised to comply with Miranda-Edwards standards whenever a suspect is interrogated under the circumstances here.2 Reliance on *52the majority's view of what constitutes a constitutionally antiseptic confession may result in the suppression of crucial evidence. It would appear to this writer to be prudent to follow Espinoza by assuming that defendants who request assistance of counsel at an initial appearance and remain in custody have thereby invoked their fifth amendment right to counsel, and police-initiated interrogation is thereafter prohibited in respect to any crime unless the suspect waives his right to counsel. I respectfully dissent and would reverse the trial court's judgment of conviction. I am authorized to state that Justice Shirley S. Abrahamson and Justice William A. Bablitch join in this dissent. I would like to clarify that our advice was not followed by these officers and does not serve as part of the majority's opinion. The majority misinterprets Miranda and its progeny. It is true that the officers in this case gave Miranda warnings to the defendant before they interrogated him and after he invoked his fifth amendment right to counsel by requesting an attorney at his initial appearance. Miranda, however, stands for more than the *52prophylactic rule that requires law enforcement officers to inform defendants of their right to counsel. Miranda recognized the already existing fifth amendment right to have counsel present at custodial interrogations. The fifth amendment right to counsel, as interpreted in Edwards, requires that police-initiated interrogation cease with respect to any crime once the defendant has invoked that right. Accordingly, it was not enough for the police officers in this case to read the defendant his Miranda rights again. The fifth amendment requires that police-initiated interrogation must cease.

CourtListenerOpinion

2024-06-11T07:23:54.922376

2023-08-26 19:07:40.297903+00

9736823

JUSTICE STEIGMANN delivered the opinion of the court: In September 1996, plaintiff, Berryman Transfer and Storage Company, Inc. (Berryman), sued defendant, New Prime, Inc., d/b/a Prime, Inc. (Prime), seeking to enforce ari August 1995 contract between the parties. In June 2001, Berryman filed its second-amended complaint. In October 2002, following a bench trial, the trial court entered judgment in Prime’s favor. Berryman appeals, arguing that the trial court erred by finding that paragraph eight of the parties’ contract was ambiguous and entering judgment in Prime’s favor. We reverse and remand for the trial court to enter judgment in Berryman’s favor and assess damages. I. BACKGROUND Because the parties are familiar with the evidence presented at the September 30 through October 1, 2002, bench trial, we review it only to the extent necessary to put the parties’ arguments in context. Berryman and Prime were both companies in the business of transporting goods via truck and brokering the transportation of goods. When Berryman acted as a broker, a customer (the shipper) paid Berryman to transport its goods. Berryman, in turn, found a contract carrier to transport those goods. Berryman made money when it found a contract carrier to transport the goods for an amount less than it had been paid by its customer. Berryman commonly referred to its customers as its “accounts.” In 1995, one of Berryman’s accounts was Nichols Aluminum, Inc. (Nichols), located in Lincolnshire, Illinois. In August 1995, Berryman entered into a contract with Prime, pursuant to which Prime agreed to work as a contract carrier for Berryman. Paragraph eight of the parties’ contract provided as follows: “Carrier understands and agrees that [blroker has put forth substantial effort and investment in order to develop its accounts and it will at no time during the term of this [algreement, and for a period of one (1) year after the effective date of termination of this [algreement, either directly or indirectly, attempt to solicit, divert, by-pass, back-solicit[,] or perform any services for compensation for any account of [blroker which [blroker has secured and has previously tendered to [c]arrier for transportation, unless [blroker has given prior written authorization. In the event that [c]arrier violates the terms of this section, [clarrier shall be hable to [blroker for the normal and customary commission which [blroker would have received for each individual movement, and [clarrier shall deliver said amount to [blroker within thirty (30) days after billing of the shipper.” Pursuant to the contract, Berryman tendered to Prime four shipments of Nichols’s goods, from Nichols’s Lincolnshire facility to a California destination. In early February 1996, Berryman agents were at Nichols’s Lincolnshire facility when they noticed that Prime was independently shipping for Nichols. Berryman then pursued its right to commissions under paragraph eight of its contract with Prime, resulting in this lawsuit. At the bench trial, Michelle Wagner, Nichols’s materials manager, testified that Berryman had been a carrier for Nichols since around 1990. In 1995, Berryman was handling about 25% to 30% of Nichols’s shipping from the Lincolnshire facility. Wagner further testified that Nichols first hired Prime as one of its carriers in January 1996. She acknowledged that prior to that time, Nichols had paid Prime for shipping jobs as a “third[-]party payer.” Wagner explained that some of Nichols’s product was shipped to a Kentucky company, Worldsource, to be painted. Worldsource was then responsible for arranging the shipping of the painted product to Nichols’s customers, even though Nichols covered the cost of that shipping. Worldsource had hired Prime to do some of its shipping of Nichols’s product. As a result, between October 1994 and July 1995, Nichols paid Prime a total of $53,221.34 for shipping its goods from Worldsource to Nichols’s customers. Prime argued at trial that paragraph eight of the contract did not require Prime to pay Berryman a commission for shipping jobs Prime did for Nichols because Nichols was a preexisting account of Prime. At the conclusion of the trial, the trial court ruled in Prime’s favor, upon finding that Nichols was an account of Prime when Prime moved Nichols’s product from Worldsource to Nichols’s customers prior to Berryman and Prime entering into the August 1995 contract. The court further stated, in pertinent part, as follows: “[T]he evidence in this case suggests and supports a finding by the [c]ourt that Prime was doing business with [Nichols] for some months prior to the time that the contract binding the parties here was entered into. *** It seems to me that the document is ambiguous, at least to the extent that issues arise as to what happens if the carrier under [p]aragraph [eight] has previously done business with the, what’s the phrase that’s used in here, the account. I would have absolutely no problem awarding damages to [Berry-man] if [Prime] had not billed and done business with [Nichols] prior to that — prior to the date of the contract.” This appeal followed. II. ANALYSIS Berryman argues that the trial court erred by determining that paragraph eight of the contract was ambiguous. We agree. The determination of whether a contract is ambiguous is a question of law; we thus review that determination de novo. Shields Pork Plus, Inc. v. Swiss Valley Ag Service, 329 Ill. App. 3d 305, 311, 767 N.E.2d 945, 949 (2002). A contract is ambiguous when its language is “ ‘susceptible to more than one meaning [citation] or is obscure in meaning through indefiniteness of expression.’ ” Shields Pork Plus, 329 Ill. App. 3d at 310, 767 N.E.2d at 949, quoting Wald v. Chicago Shippers Ass’n, 175 Ill. App. 3d 607, 617, 529 N.E.2d 1138, 1145 (1988). The trial court found paragraph eight to be ambiguous because it did not address whether it applied when, as in this case, the contract carrier had previously done business with the broker’s account. We disagree with the court’s determination that the absence of an exception for preexisting business relationships constitutes an ambiguity in the contract terms. Pursuant to paragraph eight of the contract, Prime agreed not to perform any service for compensation during the term of the contract (and for a period of one year thereafter) for any account that Berryman had tendered to Prime, without paying Berryman the customary commission. Paragraph eight provides one exception— namely, when Berryman provides “prior written authorization.” Paragraph eight does not provide an exception for Berryman accounts for whom Prime had previously worked. In ruling as it did, the court, in essence, added that exception to paragraph eight and thus provided Prime with a better bargain than Prime had negotiated for itself. Illinois recognizes a strong presumption against provisions that easily could have been included in a contract but were not. Miner v. Fashion Enterprises, Inc., 342 Ill. App. 3d 405, 417, 794 N.E.2d 902, 914 (2003). Further, “the rights of parties to a contract are limited by the terms expressed in the contract and courts may not rewrite language or add provisions to make the agreement more equitable.” Jewelers Mutual Insurance Co. v. Firstar Bank Illinois, 341 Ill. App. 3d 14, 26, 792 N.E.2d 1, 11 (2003) (McBride, PJ., specially concurring in part and dissenting in part); Shields Pork Plus, 329 Ill. App. 3d at 312, 767 N.E.2d at 950 (recognizing that courts will not add terms to a contract about which the contract is silent); Frederick v. Professional Truck Driver Training School, Inc., 328 Ill. App. 3d 472, 481, 765 N.E.2d 1143, 1152 (2002) (quoting Owens v. McDermott, Will & Emery, 316 Ill. App. 3d 340, 349, 736 N.E.2d 145, 154 (2000), for the “well-established” rule that “ ‘where the terms of a contract are clear and unambiguous, they must be enforced as written, and no court can rewrite a contract to provide a better bargain to suit one of the parties’ ”). Accordingly, we conclude that the trial court erred by determining that the contract was ambiguous because it failed to provide an exception for Prime’s preexisting business relationships and entering judgment in Prime’s favor. III. CONCLUSION For the reasons stated, we reverse and remand for the trial court to enter judgment in Berryman’s favor and assess damages. Reversed and remanded. APPLETON, J., concurs.

CourtListenerOpinion

2024-06-11T07:23:54.924015

2023-08-26 19:07:44.794056+00

9736824

JUSTICE COOK, dissenting: I respectfully dissent and would affirm the decision of the trial court. Berryman and Prime, tracking companies, entered into a contract on August 14, 1995, under which Prime agreed to make shipments, as requested by Berryman, which Berryman had previously contracted to make for various shippers. The contract was a fill-in-the-blank standard-form contract regularly used by Berryman. The contract did not identify any shippers by name. The contract provided that Prime would not solicit “any account of [Berryman] which [Berryman] has secured and has previously tendered to [Prime] for transportation.” If Prime violated that provision, Prime “shall be liable to [Berryman] for the normal and customary commission which [Berryman] would have received.” In August and September 1995, pursuant to the contract, Berryman requested that Prime make some shipments for Nichols. Then in January 1996, Prime made some shipments for Nichols without any involvement by Berryman. The problem is that prior to the date of the contract, Prime was already making shipments for Nichols. Some of Nichols’s product was shipped to a Kentucky company, Worldsource, where it was painted and shipped on to Nichols’s customers. Worldsource hired Prime to do some of that shipping, but it was Nichols’s product that was being shipped, and it was Nichols that paid Prime for the shipment. Michelle Wagner testified that she is the materials manager at Nichols. According to Wagner, Nichols paid Prime $53,221.34 for shipping services between October 1994 and July 1995 for the shipments from Worldsource in Hawesville, Kentucky. On October 3, 1994, Prime was given a supplier identification number by Nichols. On October 24, 1994, Kevin Hanks of Prime contacted Nichols to solicit its business. On November 21, 1994, Nichols requested Prime’s federal identification number. In May 1995, Hanks sent rate proposals to Nichols, quoting rates from Lincolnshire, from Hawesville, and from other locations. In January 1996, Nichols began direct use with Prime, due to an increase in shipments to a customer in Helena, Arkansas. Wagner, who was unaware of the contract between Berryman and Prime, felt that many of the loads Berryman complained of, which had been given to Prime, would not have been given to Berryman: “If Prime wouldn’t have been able to, I would have called other carriers, not Berryman. They were not an area that Berryman typically covered for us, or we didn’t have a good rate at that time.” The majority chooses to decide this case on the basis of legal rules and to ignore the intent of the parties. The majority assumes that any work Prime does for Nichols during the term of the contract (and for a period of one year thereafter) requires Prime to pay Berryman a comir. 'Sion. The only exception is where Berryman “provides ‘prior writte authorization.’ ” 345 Ill. App. 3d at 863. There is no “exception for Berryman accounts for whom Prime had previously worked.” 345 Ill. App. 3d at 863. “In ruling as it did, the court, in essence, added that exception to paragraph eight and thus provided Prime with a better bargain than Prime had negotiated for itself.” 345 Ill. App. 3d at 863. The modern approach to contract law is to attempt to interpret contracts as the parties and business people would interpret them. Course of dealing, usage of trade, and course of performance may be considered to explain or supplement the terms of an agreement even without a determination that the agreement is ambiguous. 810 ILCS Ann. 5/2 — 202, Uniform Commercial Code Comment (l)(a) (SmithHurd 1993) (rejecting the premise that the language used has the meaning attributable to it by legal rules of construction rather than the meaning that arises out of the commercial context in which it was used); see also Towne Realty, Inc. v. Shaffer, 331 Ill. App. 3d 531, 545, 773 N.E.2d 47, 58 (2002) (Cook, J., dissenting) (rule of construction against drafter does not attempt to discern intent of parties but simply decides who will win the case, like flipping a coin). “In interpreting a contract, it is axiomatic that the primary goal is to give effect to the intent of the parties.” Putnam v. Village of Bensenville, 337 Ill. App. 3d 197, 209, 786 N.E.2d 203, 211 (2003); see also Shields Pork Plus, 329 Ill. App. 3d at 310, 767 N.E.2d at 949. The courts have come to disfavor strict contract interpretation and have recognized the impossibility of ascertaining the intended meaning of an agreement without reference to evidence of surrounding circumstances, even though the agreement at issue was not “ambiguous.” First Bank & Trust Co. of Illinois v. Village of Orland Hills, 338 Ill. App. 3d 35, 47-48, 787 N.E.2d 300, 310-11 (2003); cf. Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 463-64, 706 N.E.2d 882, 885 (1999) (retaining “four-corners rule” for determining ambiguity where contract contains an explicit integration clause); see 810 ILCS 5/2 — 202(b) (West 2002) (consistent additional terms not reduced to writing may not be proved if writing intended as a complete and exclusive statement of the terms of the agreement). “ ‘The meaning of words cannot be ascertained in a vacuum.’ ” URS Corp. v. Ash, 101 Ill. App. 3d 229, 234, 427 N.E.2d 1295, 1299 (1981), quoting Ortman v. Stanray Corp., 437 F.2d 231, 234-35 (7th Cir. 1971); Michael Nicholas, Inc. v. Royal Insurance Co. of America, 321 Ill. App. 3d 909, 915, 748 N.E.2d 786, 792 (2001) (insurance contract). “An insurance policy is not to be interpreted in a factual vacuum ***. What at first blush might appear unambiguous in the insurance contract might not be such in the particular factual setting in which the contract was issued.” Glidden v. Farmers Automobile Insurance Ass’n, 57 Ill. 2d 330, 336, 312 N.E.2d 247, 250 (1974). “ ‘[N]o form of words, no matter how all encompassing, will foreclose scrutiny of a release [citation] or prevent a reviewing court from inquiring into surrounding circumstances to ascertain whether it was fairly made and accurately reflected the intention of the parties.’ ” Carlile v. Snap-on Tools, 271 Ill. App. 3d 833, 839, 648 N.E.2d 317, 321 (1995), quoting Ainsworth Corp. v. Cenco, Inc., 107 Ill. App. 3d 435, 439, 437 N.E.2d 817, 821 (1982). The majority recites the catchphrase that “Illinois recognizes a strong presumption against provisions that easily could have been included in a contract but were not.” 345 Ill. App. 3d at 863. Under that principle, we could rule for either of the parties in this case: Prime could have included a provision that no commission was due on shipments related to Prime’s precontract dealings with Nichols; Berryman could have included a provision that a commission was due on such shipments. Under the majority’s approach, every contract dispute should be dismissed because the parties could have included language that would have made the contract clear. The cases that apply the phrase, however, are not cases involving uncertain language, but cases where the language is beyond dispute. See Klemp v. Hergott Group, Inc., 267 Ill. App. 3d 574, 580, 641 N.E.2d 957, 962 (1994) (plain language of agreement clearly indicated defendants were only required to pursue rezoning before the city council); Cress v. Recreation Services, Inc., 341 Ill. App. 3d 149, 185, 795 N.E.2d 817, 850 (2003) (parties made no attempt to limit measure of damages available on breach). Shields Pork Plus, cited by the majority in support of the presumption “ ‘against provisions that easily could have been included in the contract but were not,’ ” was actually critical of the presumption and refused to apply it. Shields Pork Plus, 329 Ill. App. 3d at 312, 767 N.E.2d at 950, quoting Klemp, 267 Ill. App. 3d at 581, 641 N.E.2d at 962 (parties did include term; fact that it was ill-defined did not mean parties intended contract to be silent as to that term). The presumption at best restates the obvious: if the contract says “orange,” it should not be read to say “blue.” If the parties wanted to say “blue,” they could easily have done so. Modern authorities have considered the course of dealing between the parties even absent a finding of ambiguity. See 810 ILCS 5/2 — 202, 1 — 205 (West 2002). In the present case, however, it is clear an ambiguity exists. When the language used is susceptible to more than one meaning or is obscure in meaning through indefiniteness of expression, a contract is properly considered ambiguous. Wald v. Chicago Shippers Ass’n, 175 Ill. App. 3d 607, 617, 529 N.E.2d 1138, 1145 (1988). Does the language, “for any account of [Berryman] which [Berryman] has secured,” include accounts Berryman did not secure but which were Prime’s preexisting accounts? Does the language, “shall be hable to [Berryman] for the normal and customary commission which [Berryman] would have received,” require payment for commissions Berryman would not have received? It is not at all clear that those questions should be answered in the affirmative. The contract is ambiguous. While the question whether an ambiguity exists is one of law, the question of the effect of that ambiguity is one of fact. We will not disturb a trial court’s finding of fact unless it is manifestly against the weight of the evidence, as that court is in a superior position to determine credibility, weigh evidence, and determine the preponderance thereof. Rybicki v. Anesthesia & Analgesia Associates, Ltd., 246 Ill. App. 3d 290, 301, 615 N.E.2d 1236, 1244 (1993). The trial court found “that Prime was doing business with this company [Nichols] for some months prior to the time that the contract binding the parties here was entered into.” The trial court found “that the document is ambiguous, at least to the extent that issues arise as to what happens if the carrier under [p]aragraph [eight] has previously done business with the, what’s the phrase that’s used in here, the account.” Based on Wagner’s testimony that the product shipped to Worldsource was always Nichols’s product, from the time that it went to Worldsource, while it was at Worldsource, and after it left Worldsource until it reached the ultimate consumer, the trial court found “that in fact this was an account of Prime prior to the date of the contract.” The trial court’s decision was not contrary to the manifest weight of the evidence. There is another way to look at this case. Even if we assume no ambiguity and refuse to look outside the contract, Berryman is entitled to a commission only on accounts it “has secured and previously tendered” to Prime. Berryman is only entitled to commissions which it “would have received” for a particular movement. The trial court was entitled to conclude that Berryman did not secure and tender the Nichols business to Prime, that Prime had already done business that Prime would have received the shipments complained of even without the relationship with Berryman. Berryman had to prove that the complained-of work was on an account it had secured and tendered to Prime. Berryman failed to do so. The amazing thing about the majority’s holding is that if Prime had done nothing more than continue to make Nichols’s Worldsource shipments as it had been doing since 1994, Prime would have owed Berryman a commission on any shipments after the date of the contract, August 14, 1995. Those shipments were certainly not secured by Berryman, but the majority would read that requirement out of the contract. The argument could be made that, in determining Nichols was not an account secured by Berryman and tendered to Prime, the trial court rendered the contract meaningless. That argument would be incorrect. The contract applied to any shipments tendered by Berry-man to Prime, not just the Nichols shipments. There may have been shippers other than Nichols, where Berryman in fact secured the account and tendered it to Prime.

CourtListenerOpinion

2024-06-11T07:23:54.926145

2023-08-26 19:07:44.798801+00

2207552

802 N.E.2d 284 (2003) 345 Ill. App.3d 250 280 Ill.Dec. 359 Donald SHIPP, Cheryl Shipp, Theodore Rietveld, Joan Rietveld, Park City Mobile Homes, Inc., Plaintiffs-Appellees, v. COUNTY OF KANKAKEE, an Illinois Municipal Corporation, and Village of Bourbonnais, an Illinois Municipal Corporation, Defendants-Appellants. No. 3-02-0642. Appellate Court of Illinois, Third District. December 16, 2003. Rehearing Denied January 28, 2004. *285 Edward D. Smith, State's Attorney, Brenda L. Gorski (argued), Kenneth B. Nelson, Assistant State's Attorneys, Kankakee, *286 for County of Kankakee, Village of Bourbonnais. Michael P. O'Brien (argued), William F. Smith, O'Brien & Smith, P.C., Bradley, for Appellant. Jack M. Siegel (argued), Holland & Knight, LLP, Chicago, J. Dennis Marek, Ackman, Marek & Boyd, Kankakee, for Park City Mobile Homes, Inc., Joan Rietveld, Theodore Rietveld, Cheryl Shipp, Donald Shipp. Justice LYTTON delivered the opinion of the court: Plaintiffs filed an application for a special use permit and variance with the County of Kankakee, in order to develop a manufactured home park. The county denied the permit, causing plaintiffs to file a complaint for declaratory judgment, claiming that the county unconstitutionally denied their special use permit application and that the village improperly denied them sewer service. The circuit court ordered the county to grant the permit application. We reverse. Plaintiffs are the owners and contract purchasers of a 158 acre parcel of land in Kankakee County. Plaintiffs intended to develop the land into a manufactured home park containing nearly 700 residential sites. A manufactured home park is permitted as a special use in Kankakee County. Under the county zoning code, a party must file an application for a special use permit for any proposed manufactured home park construction. The zoning code provides that applicants must include the following information in the permit application: a. Name and address of applicant. b. Location and legal description of the proposed manufactured home park. c. Plans and specifications of the proposed manufactured home park development including but not limited to the following: 1. Map including area and dimensions of tract of land; 2. Number, location and size of home sites; 3. Location and width of public and private streets, roadways, and walks; 4. Location of all water, storm sewer and sanitary sewer lines, water supply, and refuse and sewage disposal facilities; 5. All buildings existing or to be constructed within the park; 6. Location of internal lighting and electrical systems. Kankakee County Zoning Ordinance § 6.03(U) (ratified May 11, 1999). Plaintiffs applied for a special use permit. Their application was a sketch plan, i.e., a general drawing of the proposed park. The sketch plan included the following items required under the zoning code: the numbering and placement of the residential sites; a legal description of the land; a breakdown of the acreage indicating how much land was dedicated to open space and recreational areas; a picture of a standard residential lot; and a general description of the location of common areas, buildings, existing easements, and streets. However, the sketch plan did not include other code requirements, such as the specific dimensions of any buildings or structures, the location of sewer lines or water supply lines, or a description of the internal lighting and electrical systems. The county board determined that the application was insufficient and denied the special use permit. Plaintiffs also filed a request for a variance of five feet from the set back requirements to afford home owners the space to construct a garage on each lot. The land is located within the Village of Bourbonnais' facility and planning area jurisdiction. *287 Plaintiffs never filed an application for sewer service with the village. After plaintiffs' permit was denied, they filed a complaint seeking injunctive relief and a declaratory judgment that the zoning ordinance relating to special use permits was unconstitutional as applied. The complaint also sought a declaratory judgment against the Village of Bourbonnais, seeking an adjudication that the village must provide sewer service to the project. The circuit court found the ordinance unconstitutional as applied to the subject property and enjoined the county from "interfering with the development and to issue such permits as may be required upon proper application." The court also ordered the village to provide water and sewer service to the project. I. Special Use Permit Application The county argues that it was premature for the trial court to review the denial of the permit application on the merits since the county did not deny the permit on its merits. It contends that plaintiffs' permit application was incomplete and could not be properly considered or acted upon; thus, the trial court improperly reviewed the substantive rights of the parties We agree. Counties have a right and a duty to maintain their land use through zoning regulations. See Hawthorne v. Village of Olympia Fields, 204 Ill.2d 243, 256, 274 Ill.Dec. 59, 790 N.E.2d 832 (2003). A special use is a property use which the controlling zoning code expressly permits within a zoning district as long as the use meets certain criteria or conditions. Chicago Heights v. Living Word Outreach Full Gospel Church And Ministries, Inc., 196 Ill.2d 1, 16, 255 Ill.Dec. 434, 749 N.E.2d 916 (2001). "The purpose of special uses is to provide for those uses that are either necessary or generally appropriate for a community but may require special regulation because of unique or unusual impacts associated with them." Chicago Heights, 196 Ill.2d at 16, 255 Ill.Dec. 434, 749 N.E.2d 916. Since a special use permit allows property owners or developers to use their land in an express exception to the zoning code, the application must prove that the property falls squarely within that exception. Chicago Heights, 196 Ill.2d at 23, 255 Ill.Dec. 434, 749 N.E.2d 916. The Kankakee County zoning code regulates manufactured home parks as special uses. The code establishes criteria which the application for a special use permit must meet to be considered by the county. Plaintiffs' application failed to meet these criteria. Among other things, the code requires that the permit application describe the location of all water lines and sewage disposal facilities, a description of all buildings on the property, and the location of internal lighting and electrical systems. Kankakee County Zoning Ordinance § 6.03(U). Plaintiffs' sketch plan did not contain specific information describing any of the above requirements. It ignored details and locations of pedestrian walkways, sewer lines, lighting and electricity lines, natural gas lines and fire hydrants. The plan also failed to establish how each of the lots would meet setback and space requirements. The Kankakee County zoning code established a set of standards for each permit applicant to meet. If the criteria are not met, the county cannot ensure that the proposed development is consistent with the special use which the zoning code authorizes. Because the application was incomplete, the county lacked the information to determine whether the property qualified for a special use exception. Nonetheless, plaintiffs argue that they presented expert testimony in the circuit *288 court suggesting that their completed development would meet the county's requirements. However, that argument is flawed because counties have little or no control over the development of manufactured home parks after the special use permit is granted. A county must have all the pertinent information before it can rule on the merits of an application. To ensure public safety, utility and proper growth, a county must be able to determine whether the proposed development meets those requirements before the permit is approved. See Chicago Heights, 196 Ill.2d at 22-26, 255 Ill.Dec. 434, 749 N.E.2d 916. The code requires special use applicants to demonstrate compliance with the zoning requirements when the application is made. Plaintiffs were required to include specific facts in their application, but instead made only a general promise to comply with those requirements in the future. To provide that information for the first time in the circuit court erroneously removed the special use authorization from the zoning board and placed it in the hands of the trial judge. Because the county could not rule on an incomplete application, it never had the opportunity to make an informed decision. Before the county, through its regulatory process, could determine whether the proposal met its special use requirements, the trial court forced the approval of the incomplete application. The trial court removed the proposal from the county's review and, in the process, usurped the county's statutory duty to ensure proper growth and land use. See Chicago Heights, 196 Ill.2d at 22-26, 255 Ill.Dec. 434, 749 N.E.2d 916. Since the trial court erroneously granted plaintiffs' permit, we reverse. However, inasmuch as the county denied plaintiffs' permit on procedural grounds, plaintiffs must be allowed to file a new permit for the county's consideration. See People ex rel. Redd v. Mulholland, 134 Ill.App.3d 929, 930-31, 89 Ill.Dec. 756, 481 N.E.2d 307 (1985). To that end, we remand the cause to the zoning board so that plaintiffs may file a new special use permit application. II. Variance Plaintiffs also sought a variance from the zoning code for their proposed development. Since the county properly denied the special use permit, the variance request for the lots in the development must also fail. Therefore, we need not decide whether the variance should have been granted. III. Sewer Service In their complaint, plaintiffs claimed that the Village of Bourbonnais wrongfully denied them sanitary sewer service for the proposed development. The village argues that since plaintiffs never applied for sewer service, it could not have wrongfully denied the service; thus, plaintiffs failed to present an actual justiciable controversy ripe for review. When determining the ripeness of a declaratory action, the court must first determine whether the complaint states an actual legal controversy between the parties. Best v. Taylor Machine Works, 179 Ill.2d 367, 228 Ill.Dec. 636, 689 N.E.2d 1057 (1997). An "actual controversy" exists where there is a legitimate dispute involving an immediate and definite determination of the parties' rights, the resolution of which would help terminate all or part of the dispute. Dolezal v. Plastic & Reconstructive Surgery, S.C., 266 Ill. App.3d 1070, 1083, 204 Ill.Dec. 10, 640 N.E.2d 1359 (1994). A declaratory judgment action is used "to afford security and relief against uncertainty with a view to avoiding litigation, rather than in aid of it." *289 Dolezal, 266 Ill.App.3d at 1083, 204 Ill.Dec. 10, 640 N.E.2d 1359. In addition, the complaint must show that the underlying facts and issues of the case are not moot or premature. Pincham v. Cunningham, 285 Ill.App.3d 780, 782, 221 Ill.Dec. 105, 674 N.E.2d 898 (1996). Courts cannot pass judgment on mere abstract propositions of law, render advisory opinions, or give legal advice as to future events. Pincham, 285 Ill.App.3d at 782, 221 Ill.Dec. 105, 674 N.E.2d 898. If the question of whether plaintiffs will suffer any infringement of their rights is speculative, i.e. if their interests would be adversely affected only in the event some future possibility does or does not occur, the action for a declaratory judgment should be dismissed. Township High School District v. Northfield, 184 Ill. App.3d 367, 373, 132 Ill.Dec. 625, 540 N.E.2d 365 (1989). Here, plaintiffs asked the trial court to find that the village wrongfully denied their application for sanitary sewer service before any application was made. Since plaintiffs did not file an application, the village could not have denied it. Plaintiffs objected to a denial that never occurred. Plaintiffs suggest that the village will deny their application in the future. But any infringement on the right to sanitary sewer service is speculative. Until the village considers and denies an application, the village cannot infringe upon plaintiffs' rights, and an actual controversy does not exist. Because plaintiffs' complaint for declaratory judgment did not state an actual controversy, it was not ripe for review and should have been dismissed. IV. Circuit Court Review The county argues that the trial court erred by reviewing the case de novo, and that the court should have taken the case under administrative review. The county bases its argument on our supreme court's recent holding in Klaeren v. Village of Lisle, 202 Ill.2d 164, 269 Ill.Dec. 426, 781 N.E.2d 223 (2002). In Klaeren, our supreme court held that "a legislative body acts administratively when it rules on applications for special use permits." 202 Ill.2d at 182, 269 Ill.Dec. 426, 781 N.E.2d 223. While it is clear that permit denials after Klaeren constitute an administrative act subject to administrative review, we need not determine whether Klaeren should have been applied retroactively. Since we are reversing the circuit court, its standard of review of the board's denial of the permit is not relevant to our decision. CONCLUSION The order of the circuit court of Kankakee County is reversed, and the cause is remanded to the zoning board of appeals. Reversed and remanded. BARRY, J., and McDADE, P.J., concurring.

CourtListenerOpinion

2024-06-11T07:23:54.931138

2013-10-30 08:36:20.825591+00

2207559

367 Pa. 152 (1951) Commonwealth ex rel. Sheeler v. Burke. Supreme Court of Pennsylvania. March 29, 1951. *153 Louis B. Schwartz and Raymond J. Bradley, for Petitioner. John H. Maurer, District Attorney and James W. Tracey, Jr., First Assistant District Attorney, for Commonwealth. OPINION BY MR. JUSTICE JONES, March 29, 1951: Rudolph Sheeler, the relator, filed his original petition with this court for a writ of habeas corpus on the ground that he was being illegally restrained of his liberty in the Eastern State Penitentiary as a result of a life sentence imposed upon him by the Court of Oyer and Terminer of Philadelphia County on March 31, 1939, following his plea of guilty to an indictment (No. 574, March Sessions 1939, in said court) charging him *154 with the murder of James T. Morrow, a police officer of the City of Philadelphia, on November 23, 1936, in Northeast Philadelphia. The petitioner alleges that his plea and confession of the crime charged in the indictment were obtained and used in violation of the due process clause of the Fourteenth Amendment of the Constitution of the United States and of Article I, Section 9, of the Constitution of Pennsylvania. We entered a rule to show cause why the prayer of the petition should not be granted on the district attorney of Philadelphia County who duly filed a responsive answer. The petition and answer raised such important issues of material fact (for the resolution whereof on testimony taken at a hearing an appellate court lacks the requisite facilities) that we referred the matter to Honorable LOUIS E. LEVINTHAL, a judge of the Court of Common Pleas of Philadelphia County, for the purpose of holding a hearing on the issues framed by the petition and answer with notice to all interested parties; the order further directed that a record of the hearing, including a transcript of the testimony taken, together with the hearing judge's findings of fact on the issues raised be returned to this court. Judge LEVINTHAL ably and thoroughly performed the duties imposed upon him by our order of reference and the matter is now before us for final disposition. The findings of the learned referee are, however, purely advisory. The instant petition is peculiarly a matter for this court's action in the exercise of our original jurisdiction which, by reason of the unusual circumstances pleaded, we invoked at the instance of the relator. The services performed by the referee were in aid of our discharge of our duties in the premises. From the findings of the referee, who heard and saw the witnesses, we summarize and adopt the following *155 salient facts and conclusions which are amply supported by substantial evidence. Sheeler was taken into custody by the police of Philadelphia on February 16, 1939, on suspicion of having participated with a confederate, one Howard, in the murder of Officer Morrow. He was held by the police incommunicado in City Hall under a fictitious name which they intentionally gave him. He was subjected to coercion, both physical and psychological, in an effort to force from him a confession that he had been a participant in the Morrow murder. During the time he was so held by the police, he was denied opportunity to communicate with family or friends and was taken from his cell-room many times for questioning by detectives for a total of 45 to 50 hours within the first week. At the end of that period, to wit, on the morning of February 23, 1939, he orally "confessed" that he was with Howard when the Morrow crime was committed. A little later the same morning, he signed a statement in which he vaguely narrated the commission of the crime. He was given a hearing before a magistrate on February 24th where he denied that his "confession" was voluntary. He was held without bail for further hearing on the representation of the detective in charge that additional time was required for investigation and, thereupon, was recommitted to the custody of the police. Later that day (February 24th), he signed a statement in which he repudiated his earlier public assertion that the "confession" was involuntary. On March 24, 1939, the relator was arraigned on various bills of indictment for the crimes covered by the "confession", including indictment No. 574 for the Morrow murder, whereto he pleaded guilty. He was not represented by counsel at the time of his arraignment and pleas. *156 On the same day (March 24, 1939), Sheeler signed and swore to an "affidavit of destitute circumstances and request to assign counsel" under the Act of March 22, 1907, P.L. 31, Sec. 1, 19 PS § 784. The court subsequently assigned him counsel who were notified of their appointment about noon of March 28th, the day before the court hearing for determining the degree of the murder "confessed" and fixing the penalty. The court-appointed counsel mistakenly believed that Sheeler's "confession" and pleas of guilty were voluntary as he himself confirmed to them. They, therefore, did not consider it necessary or desirable to ask for a continuance of the hearing in order to examine into the "confession" or to investigate the underlying facts. The following morning, March 29, 1939, a hearing on indictment No. 574 for the murder of Officer Morrow was had before the court en banc. The "confession" of February 23rd was offered in evidence and attached to the record. Sheeler also testified in support of the "confession". Several discrepancies in the evidence were noted by one of the members of the court en banc. After the hearing, the police retained their custody of the accused and on March 31st a final "confession" was obtained from him whereby the discrepancies above-mentioned were eliminated. The court then adjudged Sheeler guilty of murder in the first degree and sentenced him to imprisonment for life in the Eastern State Penitentiary to which he was transferred and where he is now held. The accused's plea to the indictment for murder and his self-incriminating testimony, as well as the "confession", were the result of coercion, subtly and psychologically exerted upon him by the attendant and ever-present police in whose exclusive custody he was from the day of his apprehension (February 16, 1939) *157 to the time of his commitment to the Eastern State Penitentiary on April 1, 1939. The question involved is not whether the relator was guilty or innocent of the murder charged against him but whether his conviction was obtained by violating his constitutional rights. As has long been recognized, a petition for habeas corpus is incapable of performing the functions of a writ of error or appeal: Passmore Williamson's Case, 26 Pa. 9, 17; Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 47, 24 A. 2d 1, and cases there cited. We take occasion to note in passing that no comparison is to be drawn between the instant application for habeas corpus and the extraordinary remedy of a motion for a new trial, nunc pro tunc, which we heretofore accorded the relator at his instance under the Act of April 22, 1903, P.L. 245, Sec. 1, and which was ultimately ruled against him. We are unanimous that the relator's conviction of the murder of Officer Morrow was had without due process of law and that, consequently, the sentence imposed upon him and his plea of guilty on March 24, 1939, to the indictment charging him with that murder cannot be upheld. (1) The arraignment of and acceptance of a plea of guilty from an uncounseled defendant, charged with a capital crime, constitutes a denial of due process especially where, as here, legal knowledge is required to determine whether the accused is properly chargeable with the alleged crime: cf. Powell v. Alabama, 287 U.S. 45, 71. That Sheeler was not represented by counsel when he was arraigned and so pleaded to the indictment for murder is indisputably established by the evidence. Indeed, that fact is expressly conceded of record. (2) The failure of a court to assign counsel timely to a destitute person charged with a capital offense is equally a violation of constitutional due process: see Powell v. Alabama, *158 supra, where it was said at p. 71 that a court's duty to assign counsel for a destitute defendant charged with a capital crime ". . . is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case." Cf. also Commonwealth v. Bryant, at p. 135 ante. (3) A conviction in a capital case based upon a confession or self-incriminating testimony which has been coerced from the defendant by police officers likewise constitutes a denial of due process (e.g., Turner v. Commonwealth of Pennsylvania, 338 U.S. 62) which, in the procedural circumstances here present, is remediable by habeas corpus: see United States ex rel. Innes v. Hiatt, 141 F. 2d 664, 665-666 (C.A. 3rd Cir.). The petitioner has met the burden of establishing that he is illegally detained and is, therefore, entitled to relief. But, inasmuch as his guilt or innocence of the crime charged cannot be resolved by this proceeding, we will follow the practice adopted in Commonwealth ex rel. Townsend v. Burke, 361 Pa. 35, 42-43, 63 A. 2d 77, and make the following order. The sentence imposed on the relator by the Court of Oyer and Terminer of Philadelphia County on March 31, 1939, upon indictment No. 574, March Sessions 1939, is hereby vacated and set aside as is, likewise, the relator's plea of guilty to that indictment. It is further ordered and directed that Judge LEVINTHAL'S report be filed as a part of the record in this proceeding at the cost of the County of Philadelphia.

CourtListenerOpinion

2024-06-11T07:23:54.934254

2013-10-30 08:36:20.872116+00

2207560

208 Cal.App.2d 633 (1962) THE PEOPLE, Plaintiff and Respondent, v. LUTHER C. HUNTER, Defendant and Appellant. Crim. No. 8175. California Court of Appeals. Second Dist., Div. Three. Oct. 17, 1962. Thomas H. Greenwald for Defendant and Appellant. Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and George Roth, Deputy Attorney General, for Plaintiff and Respondent. SHINN, P. J. Luther C. Hunter was accused by information in count I of grand theft and in count II of forgery. In a nonjury trial the cause was submitted on the evidence contained in the transcript of the preliminary hearing. Hunter was acquitted of forgery, but upon count I the court found him guilty of violation of section 650 1/2 of the Penal Code, as if it were included in the crime of grand theft. Proceedings were suspended and probation was granted for one year on the condition, among others, that defendant pay a fine of $200. He appeals from the order granting probation, as a judgment. The facts were: the Superior Court of Los Angeles County approved a compromise of a claim of defendant's daughter, Linda Hunter, a minor, for personal injuries. The net amount due the minor was $618.50. The order required defendant *634 to deposit the money in Wilshire Federal Savings and Loan Association in defendant's name as trustee for the minor, and to be withdrawn only upon order of the court. Defendant received a check for the amount payable to him as trustee for Linda and to Wilshire Federal Savings and Loan Association. Defendant endorsed the check by writing thereon the name of the loan association and his own name as trustee. The loan association did not authorize the endorsement. Defendant deposited the check to his own account in a Nevada bank. The sole point on the appeal is that defendant was found guilty of an offense which is not necessarily included in the offense of grand theft. Section 650 1/2 of the Penal Code provides that any person who commits any of a number of enumerated acts "for which no other punishment is expressly prescribed by this code, is guilty of a misdemeanor." It is unnecessary to decide whether violation of section 650 1/2 is an offense necessarily included within the offense of grand theft. [1] Defendant could not be found guilty of violation of section 650 1/2 for the reason that it does not apply to a prosecution for grand theft, for which other punishment is prescribed by section 489 of the Penal Code. (People v. Proctor, 46 Cal.2d 481 [296 P.2d 821].) The judgment is reversed. Ford, J., and Files, J., concurred.

CourtListenerOpinion

2024-06-11T07:23:54.935903

2013-10-30 08:36:20.873751+00

9736825

Murphy, P.J. The issue before this Court is limited. Did the trial court err by including language in a postjudgment divorce order that provided that "the minor child may use the surname of Gregory if she so wishes”? The parties were married in 1977. Their only child, Adria, was born November 27, 1978. In 1981, the parties separated. Defendant mother took custody of Adria and left South Africa where the parties had been living. By 1982, defendant and Adria were living in the United Kingdom with William Gregory. Plaintiff and defendant were divorced in 1984. The judgment of divorce granted defendant mother physical custody of the child. Following the divorce, defendant married William Gregory. In the fall of 1984, the Gregorys and Adria returned to the United States to live in Jackson, Michigan. From the time defendant and William Gregory began living together, they called Adria "Adria Gregory” rather than "Adria Rappleye,” the *398child’s birth name. Adria’s medical, dental, and school records state her surname to be Gregory. However, the school administration is aware of her legal name and legal documents such as her passport, social security card, and bank account show the surname Rappleye. Adria’s friends refer to her as Adria Gregory. When plaintiff learned that his daughter was using Gregory instead of her legal surname, he asked defendant to change Adria’s name back to Rappleye. Later, plaintiff brought a motion to enforce his visitation rights which also asked the court to enjoin defendant from using any surname for Adria other than her legal name. We are not presented with issues concerning the propriety of a legal name change of a minor under the probate code, MCL 711.1; MSA 27.3178(561). We are not dealing with an order of the court that requires a minor to go by a surname other than that given on her birth certificate pursuant to MCL 333.2824; MSA 14.15(2824). In fact, we are not even facing a legal name change at all. Simply, we have before us an order from the trial court that allows a minor, if she so desires, to continue informal use of a name she has used for the past several years. At common law a person could adopt any name he or she wished, without resort to any court and without legal proceedings, provided it was not done for fraudulent purposes. Piotrowski v Piotrowski, 71 Mich App 213, 215-216; 247 NW2d 354 (1976). Similarly, the common law would permit a minor who was of sufficient age and maturity to make an intelligent choice to assume any chosen name. 57 Am Jur 2d, Name, § 42, p 679. There is no contention in this case that Adria Rappleye’s use of the surname Gregory was for a fraudulent purpose. If common law allows such use, we are *399hard pressed to conclude that the trial court erred by ordering nothing more than that which is permitted at common law.1 Again, we emphasize that we are not addressing a grant of a legal name change for the parties’ minor child pursuant to the probate code, a decision we would review for an abuse of discretion. MCL 711.1; MSA 27.3178(561). Assuming that this is the correct standard in the present case, we cannot conclude on this record that the trial court abused its discretion by determining that it is in the minor child’s best interest to allow her to continue using the name Gregory, if she so desires. Abuse of discretion implies that the trial court’s decision was not based on fact, logic, and reason. Poet v Traverse City Osteopathic Hosp, 433 Mich 228, 251; 445 NW2d 115 (1989); Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). In the present case, the trial court’s decision was clearly based on the facts and on what was right and equitable under the circumstances. See Lagnes v Green, 282 US 531, 541; 51 S Ct 243; 75 L Ed 520 (1931). The record establishes that Adria, who was almost ten years old at the time of the hearing, expressed her desire to use the name Gregory. She had used that name since she was four years old. She was in the custody of her mother who is remarried and is known by the surname of Gregory. The child was known to her friends and classmates by the name Adria Gregory. The trial court interviewed the minor child, in camera, to determine whether the use of the Gregory surname was being imposed for the purpose of *400frustrating the plaintiff father’s relationship with his child and to foster ill feelings. The court concluded that it was the child’s true desire to be known as Gregory. The trial court had ample opportunity to determine the child’s maturity level and was apparently satisfied that she was mature enough to understand her own desires and make an intelligent choice.2 We defer to the trial court’s special opportunity to judge the credibility of the parties and, in particular, of the minor child, and will not disturb its findings. MCR 2.613(C). Affirmed. Cavanagh, J., concurred. We also question the practicality, effectiveness, and enforceability of an order that attempts to restrain the third party, or the individual whose name is at issue, from informally using a surname other than the person’s birth name. Although not stated by the court, it is certainly conceivable that forcing a change in the minor child’s commonly used name at this point would only confuse the child and her friends and acquaintances. A forced change might well foster such resentment in the child as to lead to a further breakdown in the already fragile parental relationship between plaintiff and the child.

CourtListenerOpinion

2024-06-11T07:23:54.937008

2023-08-26 19:07:50.537716+00

9736826

Mackenzie, J. (dissenting). The issue in this case is whether a custodial mother may, over the objection of the noncustodial father, informally change their minor child’s surname to that of the child’s stepfather. Under the circumstances of this case, I conclude that she may not. The parties were married in 1977. Their only child, Adria, was born November 27, 1978. In 1981, the parties separated and defendant mother took custody of Adria. By 1982, defendant and Adria were living with William Gregory. The parties were divorced in 1984. The judgment of divorce granted defendant mother physical custody of the child. Following the divorce, defendant married William Gregory. From the time defendant and William Gregory began living together, they have called Adria ”Ad*401ria Gregory” rather than "Adria Rappleye,” the child’s birth name. Adria’s medical, dental, and school records state her surname to be Gregory, although legal documents such as her passport,, social security card, and bank account are listed in the surname Rappleye. Adria and her friends refer to her as Adria Gregory. In 1988, plaintiff father filed a motion which in relevant part sought an order preventing defendant mother from using any surname for the minor child other than Rappleye. Following a hearing, the trial court denied the motion. The court essentially found that the child preferred to be called Adria Gregory, and found that preference controlling. Under the common law a person may adopt any name he or she wishes, without resort to any court and without any legal proceedings, provided it is not done for fraudulent purposes. Piotrowski v Piotrowski, 71 Mich App 213, 215-216; 247 NW2d 354 (1976). There is no requirement that any person go through the courts to establish a legal change of name. Piotrowski, supra, p 216. While Michigan, as most states, has a statute authorizing procedures by which a probate court can, upon petition, change the name of any person, see MCL 711.1; MSA 27.3178(561), such name change statute does not abrogate or supersede the common-law right. Id. Moreover, the common-law right to change one’s name without legal formality extends to minors. Laks v Laks, 25 Ariz App 58; 540 P2d 1277 (1975), 57 Am Jur 2d, Name, §42, p 679. Thus, a minor can effectuate a common-law change of name on his or her own initiative, provided he or she is of sufficient age and maturity to make an intelligent choice. Id. In this case, the decision to change Adria’s surname to Gregory was not made on her own *402initiative, nor was it made when she was capable of expressing a meaningful opinion about the change. It was instead made unilaterally by her mother and William Gregory when Adria was approximately three years old. Adria’s mother has acted to effectuate a common-law change of the child’s name; Adria has not. A mother who has been awarded custody of a minor child may not, over the objection of the noncustodial father, unilaterally change the surname of a child to that of the mother’s subsequent husband unless the change would be in the best interest of the child. See Sobel v Sobel, 46 NJ Super 284: 134 A2d 598 (1957), Kay v Bell, 95 Ohio App 520: 121 NE2d 206 (1953), Nitzberg v Bd of Ed of City of New York, 104 NYS2d 421 (1951), Hall v Hall, 30 Md App 214; 351 A2d 917 (1976), Laks v Laks, supra, Young v Young, 356 NW2d 823 (Minn App, 1984), and Cohan v Cunningham, 104 AD2d 716; 480 NYS2d 656 (1984). See, generally, Anno: Rights and remedies of parents inter se with regard to the names of their children, 92 ALR3d 1091, §10, pp 1118-1123. There appear to be at least three rationales for this rule. Some courts have noted that, while under the common law one may adopt any name he or she chooses, that right does not grant other persons the right to select for a person a name different from the name by which such person is known. See, e.g., Kay v Bell, supra. Second, at least one court has refused to allow a unilateral name change because neither parent has a superior right to determine a child’s name. See Cohan v Cunningham, supra. The third rationale advanced is that, when there is a divorce and the mother is given custody of the children, the bond between the father and his children becomes tenuous, and if the children’s name is changed *403that bond may be further weakened or destroyed. See Laks v Laks, supra. In deciding whether a custodial mother’s unilateral change of a child’s surname from that of the child’s father is in the child’s best interest, courts look to several factors. Primary considerations are whether the father has engaged in misconduct, or abandoned or refused to support the child. Hall v Hall, supra. The preference of the child may be given some weight, depending on the age of the child and the circumstances of the case. Id. The desirability of maintaining a bond with the father and the father’s family is given substantial weight. Id. The inconvenience or embarrassment of having more than one surname in the mother’s household has been held not to be determinative. Id. In this case, plaintiff father has shown an interest in Adria’s welfare. He retains joint legal custody. There are no allegations of misconduct. While there have been ongoing visitation problems, plaintiff has sought to exercise his visitation rights. With one exception, when he was denied visitation, plaintiff has made support payments. The child maintains contact with plaintiff’s family; her paternal grandparents appear to exercise their visitation rights regularly. Given Adria’s young age and the circumstances of this case, it is questionable whether she is capable of making an intelligent choice in the matter. See Hall v Hall, supra. Her preference with respect to a change of name should thus be given minimal weight. On the other hand, it is apparent that the bonds between the child and her father have been greatly weakened by this divorce, and the desirability of maintaining some bond should be given substantial weight. In light of the above, I am convinced that the trial court abused its discretion in concluding that *404defendant should not be restrained from unilaterally changing Adria’s name to Adria Gregory. There is insufficient justification for such a common-law name change at this time. Accordingly, I would reverse.

CourtListenerOpinion

2024-06-11T07:23:54.938613

2023-08-26 19:07:50.542105+00

9736827

OPINION SCHUMACHER, Judge. Pursuant to plea negotiations, appellant Dale Einar Synnes pleaded guilty to a reduced charge of burglary in the second degree and receiving stolen goods. The parties agreed to a sentence of 53 months executed for second degree burglary and a consecutive term of 37 months executed for receiving stolen goods, concurrent with parole revocation. In exchange, the state agreed to dismiss another charge of burglary in the second degree. The trial court adopted the recommended sentence in the plea agreement. FACTS Appellant was charged in Hennepin County District Court with three offenses: *647burglary in the first degree, receiving stolen property, and burglary in the second degree. Appellant pleaded not guilty to all three charges on December 1, 1988. On January 17, 1989, pursuant to a plea agreement, appellant pleaded guilty to the charge of burglary in the second degree (reduced from first degree burglary), and to the charge of receiving stolen property. On May 1, 1989, prior to sentencing, appellant brought a motion to withdraw his guilty plea. The motion was denied by the trial court that same day. On July 25, 1989, the trial court adopted the recommended sentence in the plea agreement and sentenced appellant to 53 months executed for burglary in the second degree, and a consecutive term of 37 months for receiving stolen goods. The original charge of second degree burglary was dismissed. The sentence, in regard to receiving stolen property, constitutes an upward departure from the Minnesota Sentencing Guidelines, both as to duration and consecutive service. At the time of sentencing, the trial court gave no reasons for the departure. Appellant alleges the trial court abused its discretion in departing from the sentencing guidelines where there were no substantial and compelling reasons cited to justify the departure, even though there was a negotiated plea. ISSUE Did the trial court abuse its discretion by sentencing appellant to a consecutive sentence of 37 months for the offense of receiving stolen property where there were no substantial and compelling reasons cited to justify the departure? ANALYSIS The.Minnesota Sentencing Guidelines require that a judge provide written reasons justifying a departure. The Guidelines provide as follows: When departing from the presumptive sentence, a judge must provide written reasons which- specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence. Minnesota Sentencing Guidelines II.D. Minnesota Rules of Criminal Procedure also require that the trial court provide written reasons justifying a departure. Minn.R.Crim.P. 27.03, subd. 4(C). The Minnesota Supreme Court has stated: If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.” Williams v. State, 361 N.W.2d 840, 844 (Minn.1985). The facts in the present case reveal the trial judge gave no reasons for departure at sentencing. The prosecutor provided the court with a memorandum in support of a sentencing departure which listed four reasons he claimed justified departure. The record does not indicate, however, that the trial court adopted these reasons. Although we are concerned about the result in this case, we do not feel we are in a position to create an exception to Williams, nor to disregard the language in State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981). An attempt * * * by the parties to limit sentence duration does not create a “substantial and compelling circumstance” which may be relied upon as justifying a departure from the Guidelines. Only the court, acting in accordance with the Guidelines, and not the parties, has the authority to determine the appropriate sentence. State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981). We conclude, under present Minnesota law, the trial court must provide a written record stating the reason for departure when there is a negotiated plea. DECISION We hold that because the trial court provided no written reasons justifying the departure at the time of sentencing, no departure is allowed. We reverse and remand for imposition of a presumptive concurrent sentence under the Minnesota Sentencing Guidelines of 44 months executed for receiving stolen property. Reversed and remanded.

CourtListenerOpinion

2024-06-11T07:23:54.939943

2023-08-26 19:07:52.272523+00

9736828

*648PORSBERG, Judge (concurring specially): I concur primarily because the defendant attempted by motion to withdraw his plea prior to sentence. If defendant had unequivocally agreed to the plea bargain, it may be that defendant waived any objection to the departure, or at least we could uphold the sentence because the record in this case indicated strong grounds for departure. What troubles me about this case is that either the prosecutor or the court will in the future be inhibited from accepting such plea agreements which may be in the interest of the defendant as well as the public.

CourtListenerOpinion

2024-06-11T07:23:54.940581

2023-08-26 19:07:52.276379+00

2207573

161 Pa. Commonwealth Ct. 149 (1993) 636 A.2d 279 D'ANDREA WINE & LIQUOR IMPORTS, Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent. Commonwealth Court of Pennsylvania. Submitted October 8, 1993. Decided December 30, 1993. *151 Patrick J. Thomassey, for petitioner. Clifford F. Blaze, Deputy Chief Counsel, for respondent. Before DOYLE and FRIEDMAN, JJ., and RODGERS, Senior Judge. FRIEDMAN, Judge. D'Andrea Wine & Liquor Imports, Inc. (Employer) appeals an order of the Unemployment Compensation Board of Review (Board) which reversed the referee's decision and granted benefits to Donna Knight (Claimant) on the basis that she voluntarily quit her job for cause of a necessitous and compelling nature. We affirm. The facts, as found by the Board, are as follows: 1. Claimant was last employed as a bookkeeper by D'Andrea Wine & Liquor Imports, Inc. from June 1991, at a final rate of $8 per hour and her last day of work was July 14, 1992. 2. The claimant had previously worked for the employer as an employee from February, 1991 to March, 1991, and had voluntarily terminated her employment due to sexual harassment by the employer. 3. The claimant was subsequently offered subcontracting work by the employer, accepted the offer, and worked for the employer as a subcontractor from March, 1991, thru May, 1991. 4. At the time the claimant started back with the employer, there were no instances of sexual harassment. 5. At the end of May, 1991, upon completion of her subcontracting work, the claimant requested that the employer keep her on as an employee, and the claimant was hired to work three days per week by the employer. 6. The employer subsequently assigned the claimant to work for Tri State Liquor Company, a company owned by *152 the employer's sons, even though the employer would continue to pay the claimant, and the claimant came under the supervision of one of the employer's sons. 7. On May 29, 1992, the employer grabbed the claimant and began kissing her. He stopped this harassment when claimant demanded that he stop this behavior. 8. On July 14, 1992, the claimant finished her work after being sexually harassed[1] and then voluntarily quit her employment. Board Decision, April 8, 1993 (footnote added). On appeal,[2] Employer contends that the Board capriciously disregarded competent evidence and erred in reversing the referee's decision. Employer misconstrues our standard of review. Where, as here, both parties testify, we must determine whether substantial evidence in the record, taken as a whole, supports the findings of the Board, Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1977), not whether the Board capriciously disregarded the evidence. Section 402(b) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 802(b) provides in pertinent part: An employe shall be ineligible for compensation for any week — . . . . (b) In which [her] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . . *153 The burden of proving that the termination resulted from cause of a necessitous and compelling nature rests with the employee. Charles v. Unemployment Compensation Board of Review, 122 Pa.Commonwealth Ct. 439, 552 A.2d 727 (1989). A necessitous and compelling cause for voluntarily leaving employment arises when circumstances "produce pressure to terminate employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner." Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 359, 378 A.2d 829, 832-33 (1977). Prior cases of this court have held that in order to prove that a claimant has used common sense in voluntarily quitting her employment as a result of sexual harassment, she must show that she made her employer aware of the harassment. St. Barnabas, Inc. v. Unemployment Compensation Board of Review, 106 Pa.Commonwealth Ct. 191, 525 A.2d 885 (1987). Here, Claimant demanded that Employer stop his sexually harassing behavior on May 29, 1992. Apparently, over a month elapsed before the behavior began again. When, on July 14, 1992, Employer again sexually harassed her, she did not need to again tell him that this behavior was abhorrent to her. At the time of the May 29, 1992 incident, Claimant acted reasonably by demanding that Employer stop his behavior and put him on notice that she would not tolerate such behavior in the future. Employer argues that the father who was conducting the harassing behavior was not the appropriate person to whom to complain. However, the record indicates that he was the head of the business and also the person doing the harassing, that the line of authority between Claimant and the son was not clear and that Claimant reasonably believed that speaking to the son would have made no difference. Our review of the record convinces us that substantial evidence supports the Board's conclusions. Accordingly, we affirm. *154 ORDER AND NOW, this 30th day of December, 1993, the order of the Unemployment Compensation Board of Review, dated April 8, 1993, is affirmed. NOTES [1] As to this incident of sexual harassment, Claimant alleged that Employer reached into her shirt and bra, petted her chest and said, "Didn't that get your blood going." R.R. at 23a, 24a. [2] Our scope of review is limited to determining whether constitutional rights have been violated, whether an error of law has been committed, or whether necessary findings of fact made by the Board are supported substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

CourtListenerOpinion

2024-06-11T07:23:54.943774

2013-10-30 08:36:20.998384+00