Datasets:

harvard-lil

/

cold-cases

like 17

Follow

Harvard Library Innovation Lab 26

[ "244 Ga. App. 675", "536 S.E.2d 608" ]

[ { "author_str": "Pope", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPope, Presiding Judge.\nThe decision of the Court of Appeals in this case having been reversed by the Supreme Court in Fleming v. State, 271 Ga. 587 (523 SE2d 315) (1999), our decision in Fleming v. State, 233 Ga. App. 483 (504 SE2d 542) (1998), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court.\n\nJudgment reversed.\n\n\nJohnson, C. J., Andrews, P. J., Blackburn, P. J., Smith, P. J., Ruffin and Eldridge, JJ, concur.\n\n", "ocr": true, "opinion_id": 7869239 } ]

[ "245 Ga. App. 776", "538 S.E.2d 557" ]

[ { "author_str": "Eldridge", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nEldridge, Judge.\nAppellant appeals the order of the juvenile court terminating her parental rights to A. L. B. and A. L. B.1 Although the appellant challenges the sufficiency of the evidence to support the termination of her parental rights, we disagree and affirm.\nOn April 9, 1999, the Laurens County Department of Family & Children Services (“DFCS”) filed a petition for termination of parental rights under provisions of OCGA § 15-11-81 (b) (4) (B) (ii) and (iv) against appellant and her husband for chronic unrehabilitated abuse of alcohol, domestic violence, and child molestation. The juvenile court heard the petition on September 10, 1999, and December 10, 1999, thereafter ordering their parental rights terminated. This appeal followed.\nAppellant contends that there was insufficient evidence to terminate her parental rights for want of evidence showing that her children’s deprivation was likely to continue.2\n*777Parental rights are terminated under OCGA § 15-11-81 upon a two-prong analysis.\nFirst, the court determines whether there is clear and convincing evidence of parental misconduct or that the parent is unable to care for and control the child. Second, the court determines whether termination is in the best interest of the child.\n(Citations and punctuation omitted.) In the Interest of S. H. P., 243 Ga. App. 720 (534 SE2d 161) (2000).\nParental misconduct or inability is determined by finding: 1) that the child is deprived; 2) that the lack of proper parental care or control is the cause of the deprivation; 3) that such child’s deprivation is likely to continue or will not be remedied; and 4) that continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A).\nIn the Interest of D. I. W., 215 Ga. App. 644, 645 (1) (451 SE2d 804) (1994).\nOn appeal, we are required to view the evidence in the light most favorable to the juvenile court’s order in determining whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights had been lost. Ours is not to weigh the evidence, but to defer to the trial judge as the factfinder. In the Interest of S. H. P., supra at 721; In the Interest of D. I. W., supra.\nSo viewing the evidence, the record reflects that the appellant has a long history involving alcohol abuse and domestic violence. It is undisputed that when the superior court entered its order terminating her parental rights in February 2000, the appellant no longer had a driver’s license; she had five DUIs; she had most recently been arrested for an alcohol-related offense in December 1998, threatening suicide over it; she had a history of treatment for alcohol abuse and relapse; she had been continuously sober for a nine-month period only once, having started drinking at age twelve; she had been involved in seventeen family violence incidents; she had been severely beaten in the last of these in October 1999; and she was under medication for depression.3 Morever, although the appellant *778testified she had complied with the ten-goal reunification plan in effect before the termination petition was filed, a DFCS caseworker testified that her effort to follow the plan had not been conscientious — this because drinking and domestic violence recurred through December 1998, notwithstanding the participation of the appellant and her husband in an alcohol and drug treatment program.\nAppellant here argues the insufficiency of the evidence to show that the deprivation of the children would likely continue in the future, seeking our reversal of the termination of her parental rights. However, “ ‘the past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue. (Cits.)’” In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991), citing In the Interest of J. L. Y., 184 Ga. App. 254, 257 (361 SE2d 246) (1987). While the record does show that appellant attended Alcoholics Anonymous, got a job, and began paying child support, this belated activity occurred after the termination petition was filed and does not negate the years the appellant neglected the children. In the Interest of S. H. P., supra at 723. Neither did the appellant present evidence of having her own home4 or of any emotional bond or attachment to the children. Finally, while the appellant correctly argues that the superior court erred in admitting child hearsay alleging child molestation against her husband and in her presence5 for failure to show the availability of the child witness under Woodruff v. Woodruff, 272 Ga. 485 (531 SE2d 714) (2000) (competency of children in civil actions established upon a showing of their understanding of the meaning and effect of an oath), she has not demonstrated prejudice inuring to her detriment. Tarleton v. Griffin Fed. Sav. Bank, 202 Ga. App. 454, 455 (2) (b) (415 SE2d 4) (1992) (“An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful. [Cits.]”). In this regard, the appellant admitted on being cross-examined that she allowed her husband to sleep with the complaining child when she and her husband argued, disclaiming any child molestation because “[her husband] always wore shorts or something.”\nAccordingly, we conclude that there is clear and convincing evi*779dence that the children are deprived due to parental misconduct, that their deprivation will likely continue into the future or will not be remedied, and that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the children.\nDecided August 25, 2000\nReconsideration denied September 6, 2000.\nNelson & Smith, Carlton K. Nelson III, for appellant.\nThurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Laura W. Hyman, Assistant Attorneys General, Cheeley & Joiner, John P. Cheeley, William L. Tribble, for appellee.\nIn determining the best interest of a child, a trial court may consider the child’s need for stability in the home and the adverse consequences attendant to extended foster care. In the Interest of M. R., 213 Ga. App. 460, 464 (444 SE2d 866) (1994), overruled on other grounds, In the Interest of C. W. S., 231 Ga. App. 444 (498 SE2d 813) (1998). Such a court is properly concerned with the need for stability in a child’s life. In the Interest of S. H. P., supra at 724 (2). The children have been in foster care in the home of their paternal aunt and uncle since October 1997, a placement made upon the recommendation of both parents. They are doing well in that setting, and their adoption appears likely. While the appellant argues by her brief on appeal that the progress she has made in achieving the goal established by the case plans aimed at reunifying the family, as well as progress in her personal life, demonstrates her capacity to be an effective parent, “‘the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact. [Cit.]’ ” In the Interest of D. I. W., supra at 646. Also, “ ‘(t)he same factors which prove a parent’s inability to properly raise [her] children may also serve to show that termination of parental rights would be in the children’s best interests. (Cit.)’ In the Interest of V. S., [230 Ga. App. 26, 30 (495 SE2d 142) (1997)].” In the Interest of S. H. P., supra.\nAccordingly, the juvenile court’s finding that the termination of parental rights is in the best interests of the children was also authorized by clear and convincing evidence.\n\nJudgment affirmed.\n\n\nBlackburn, P. J, and Barnes, J., concur.\n\n\n The father's parental rights in the two children were also terminated, although he has not subsequently appealed.\n\n\n In doing so, the appellant, by brief, concedes that the children were deprived within *777the meaning of OCGA § 15-11-81 (b) (4) (A) (i) at the time the termination petition was filed. Inasmuch as the juvenile court’s order determining the children to be deprived was not appealed, such status is binding on appeal. In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993).\n\n\n Perhaps illustrative of her depression, at trial the appellant identified a State’s *778Exhibit 7 as a photograph depicting cigarette burns on her arm. She explained, “Me and this guy was playing chicken and he put a cigarette there; that’s how this got there.”\n\n\n It is undisputed that the “[appellant] is living in another [c]ounty in a relative’s home in a small three bedroom house. One bedroom has a [ ]hole in the roof and is unusable. Should the children be returned to the mother, they would be required to live in the aunt’s room and not in the mother’s room.”\n\n\n It is also undisputed that “[appellant’s husband pled] guilty to a criminal offense related to child molestation in regard to his [oldest daughter, then approximately five], and the [appellant] was similarly charged but those charges were dropped in a plea bargain arrangement whereby the father pleaded guilty to offense of sexual battery against [such] daughter.”\n\n", "ocr": true, "opinion_id": 7869314 } ]

[ "150 A.3d 272", "169 Conn. App. 903" ]

[ { "author_str": "Per Curiam", "per_curiam": true, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam\nThe appeal is dismissed.\n", "ocr": true, "opinion_id": 7869340 } ]

[ "246 Ga. App. 533", "541 S.E.2d 120" ]

[ { "author_str": "Mikell", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMikell, Judge.\nA jury found Kenneth C. Blair guilty of three counts of entering an automobile with the intent to commit theft, OCGA § 16-8-18. The trial court denied his motion for new trial. On appeal, Blair argues that the evidence is insufficient because the testimony of his accomplice was not corroborated, as required in felony cases by OCGA § 24-4-8. We find that the state presented sufficient evidence to corroborate the accomplice’s testimony and affirm Blair’s conviction.\nOn appeal, this Court views the evidence in a light most favorable to the verdict; we determine evidence sufficiency and do not weigh the evidence or determine witness credibility. Palmer v. State, 243 Ga. App. 656 (533 SE2d 802) (2000). So viewed, the evidence shows that three “smash and grab” thefts occurred in the parking lots of three restaurants in Bibb County on August 22, 1998. The three victims each testified that after finishing their meals, they returned to their vehicles to find either a passenger’s side or driver’s side window smashed. Purses were taken from two of the vehicles, and a camera and tool set were stolen from a third vehicle. During that day, credit cards bearing the names of two of the victims were used to make unauthorized purchases at a nearby mall and gas station.\nSecurity officers at the mall caught a woman later identified as Kathy Scott with some of the stolen credit cards. She gave the officers a description of Blair and his truck and disclosed the location in the mall parking lot where he awaited her. Based on this information, officers found Blair. Stolen goods, screwdrivers, and items obtained through the fraudulent use of stolen credit cards were discovered in his truck.\nScott was the state’s key witness. She testified that she waited in the truck while Blair broke into all three vehicles utilizing a screwdriver. According to Scott, Blair removed the credit cards from the purses and threw the purses away. She and Blair then used the credit cards to buy gas, beer, and cigarettes at a gas station as well as merchandise at the mall. Scott further testified that they made two trips to the mall. Blair went with her the first time, and they bought jewelry, including a gold chain she saw him wearing at their joint arraignment. Finally, Scott testified that the state had promised her no leniency for her testimony, and that she was unaware at the time she pleaded guilty to three counts of financial transaction card fraud that she would be summoned to testify against Blair.\nWhile the testimony of a single witness usually is sufficient to establish a fact, in order to sustain a felony conviction *534based upon the testimony of an accomplice, there must be independent corroborating evidence which connects the accused to the crime. While such corroborating evidence must do more than merely “cast on the defendant a grave suspicion of (doubt),” it may consist entirely of circumstantial evidence, or evidence of an accused’s conduct before and after the crime that infers he participated therein. The sufficiency of the corroborating evidence is a matter for the jury, and if the verdict is based upon the slightest evidence of corroboration connecting an accused to a crime, even if it is circumstantial, it is legally sufficient.\nDecided October 24, 2000.\nWilliam D. Phillips, for appellant.\nCharles H. Weston, District Attorney, Marci F. Goldman, Dorothy A. Vinson, Assistant District Attorneys, for appellee.\n(Footnotes omitted.) Edmond v. State, 267 Ga. 285, 287 (2) (476 SE2d 731) (1996). Here, Blair’s unexplained recent possession of items stolen from the victims’ vehicles, as well as his possession of screwdrivers used to break into the vehicles, is substantially more than the slight evidence needed to corroborate Scott’s testimony. It follows that the trial court did not err in denying Blair’s motion in limine to exclude the testimony of his accomplice. Finally, we hold that the evidence authorized the jury’s finding that Blair was guilty, beyond a reasonable doubt, of entering an automobile with the intent to commit theft. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).\n\nJudgment affirmed.\n\n\nPope, P. J., and Miller, J., concur.\n\n", "ocr": true, "opinion_id": 7869376 } ]

[ "249 Ga. App. 440", "548 S.E.2d 118" ]

[ { "author_str": "Miller", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMiller, Judge.\nIn March 2000, Judd A. Sparagon commenced this contract action, seeking to recover on a Uniform Series Gold Bond approved on October 17, 1870, whereby the State of Georgia acknowledged itself indebted to the bearer in the sum of $1,000, which sum it promised to repay on demand, on the first day of December 1894, with interest payable at seven percent.1 The State admitted that it refused Sparagon’s 1995 demand for payment and moved to dismiss solely upon the statute of limitation applicable to bonds and other instruments under seal. The trial court concluded that any right of action to recover the debt represented by the bond accrued on December 2, 1894, and granted the State’s motion to dismiss.\nOn appeal, Sparagon argues the applicable statute of limitation was not triggered until he made his 1995 demand for payment as the bearer and so the instant action is timely. We affirm the dismissal because the claim is untimely.\n1. In Georgia, “[a]ctions upon bonds or other instruments under seal shall be brought within 20 years after the right of action has accrued. No instrument shall be considered under seal unless so recited in the body of the instrument.”2 The gold bond at issue recites that it is attested to under the Seal of the State of Georgia, and so the trial court correctly concluded that the applicable limitation period is that for instruments under seal, namely, 20 years “after the right of action has accrued,” under OCGA § 9-3-23.3\n2. Relying on Smith v. Early,4 Sparagon urges that, unlike with *441ordinary promissory notes governed by OCGA § 11-3-118 (b), an actual demand for payment and subsequent refusal to pay are necessary to start the limitation period against the State bond payable “on demand.” He reasons that no right of action accrues until a breach of the contractual obligation occurs and argues that no breach occurred until the State refused his demand in 1995. We disagree.\nSmith v. Early involved an unwritten agreement whereby money was advanced and invested in a business, and it was not contemplated by the parties that the money “would be repaid at any specific time, or that a demand for repayment. . . would be made until some indefinite time in the future. . . ”5 Thus, because of those two factors evincing the intent of the parties (ho express maturity date and the mutual expectation that any demand for repayment would be deferred indefinitely), this Court ruled that the limitation period did not run until an actual demand for payment was made.6 Whatever continuing vitality exists for the rule applied in Smith v. Early7 that rule is not applicable here.\nThis gold bond is a written debt instrument with an express maturity date of December 1, 1894. “The Statute of Limitation [ ] was not enacted to protect persons from claims, fictitious in their origin, but from ancient claims, whether well or ill founded. . . ”8 The applicable statute of limitation begins to run on any given claim on the date the claim accrues — in other words, on the date that suit on the claim can first be brought to a successful result.9 As to when the right accrues, we discern no meaningful distinction between a bond on the one hand and a promissory note under seal on the other hand. A “bond” is a sealed writing10 containing an obligation to “pay a fixed sum of money, at a definite time, with a stated interest. . . ”11 A “promissory note” is the maker’s unconditional written promise to pay a sum certain to the bearer or a designated person.12\nThe Supreme Court of Georgia has previously used the maturity date of debt instruments under seal as the commencing point for when a right of action accrues for purposes of the 20-year statute of limitation.13 This is because the promise to repay the debt was *442enforceable either by suit or demand after the maturity date.14 In our view, no actual demand and subsequent refusal were required in order to accrue the right of action on a matured debt instrument. To hold otherwise would only reward the lassitude of the bearer. Thus, all other things being equal,15 the bearer of this gold bond could have successfully sued for repayment starting on the day after maturity. The trial court correctly concluded that the OCGA § 9-3-23 twenty-year limitation period started to run on December 2, 1894, and so ended no later than December 2, 1914. It follows that Sparagon’s claim initiated in March 2000 is untimely and that the trial court correctly dismissed the action.\nDecided April 30, 2001.\nRobert H. Putnam, Jr., for appellant.\nThurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Warren R. Calvert, Senior Assistant Attorney General, Anthony J. Musto, Assistant Attorney General, for appellee.\n\nJudgment affirmed.\n\n\nAndrews, P. J., and Eldridge, J., concur.\n\n\n “This type of bond existed until 1933, when the U. S. monetary system abandoned the gold standard.” Black’s Law Dictionary (7th ed. 1999), p. 173.\n\n\n OCGA § 9-3-23.\n\n\n See Hixon v. Woodall, 246 Ga. 758, 759 (272 SE2d 727) (1980).\n\n\n 60 Ga. App. 506, 511 (3 SE2d 913) (1939) (where parties do not stipulate a fixed time for payment but agree that money is payable only upon a demand in fact therefor, the stat*441ute of limitation does not begin to ran until an actual demand).\n\n\n (Punctuation omitted.) Id. at 507.\n\n\n Id. at 511 (on motion for rehearing).\n\n\n See Johnson v. Hodge, 223 Ga. App. 227, 229 (1) (477 SE2d 385) (1996).\n\n\n (Citation and punctuation omitted.) Dickinson v. McCamy, 5 Ga. 486, 488 (2) (1848).\n\n\n Hoffman v. Ins. Co. of North America, 241 Ga. 328, 329 (245 SE2d 287) (1978).\n\n\n Black’s Law Dictionary, supra, p. 169 (1).\n\n\n (Citation and punctuation omitted.) Id. at 169 (2).\n\n\n Id. at 1086.\n\n\n Bonner v. Metcalf, 58 Ga. 236, hn. 1 (1877) (promissory note); Stansell v. Corley, 81 Ga. 453, 457 (2) (8 SE 868) (1888) (acknowledgment of debt under seal); Elrod v. Bagley, 150 Ga. 329, 332 (3) (103 SE 841) (1920) (promissory note). Compare Persons v. Dallas, 178 Ga. *442778, hn. 1 (174 SE 699) (1934) (in deed under seal where grantee acknowledged debt, grantor’s rights in action accrued upon delivery and acceptance of deed).\n\n\n Harris a Stribling, 66 Ga. App. 321, 323-324 (17 SE2d 766) (1941). Accord Blitch v. Brewer, 83 Ga. 333, 335 (9 SE 837) (1889).\n\n\n We express no opinion whether the General Assembly’s legislative repudiation of these Reconstruction Era bonds through Ga. L. 1875, pp. 24-28 and Ga. L. 1877, p. 24, codified into the Ga. Const, of 1877, Art. VII, Sec. XI, Par. I, is enforceable in light of Art. I, Sec. 10, Clause I of the U. S. Constitution (“No State shall. . . pass any . . . Law impairing the Obligation of Contracts.”), but only note that such an anticipatory breach would establish a cause of action. McLeod v. McLatcher, 201 Ga. App. 17, 19 (410 SE2d 144) (1991). In our view, that breach would start the running of the limitation period as early as 1877.\n\n", "ocr": true, "opinion_id": 7869642 } ]

[ "252 Ga. App. 211", "555 S.E.2d 504" ]

[ { "author_str": "Eldridge", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nEldridge, Judge.\nThis is the second appearance of this case before this court. In Bishop v. State, 241 Ga. App. 517 (526 SE2d 917) (1999) (Bishop I), we reversed the superior court’s order denying defendant Kyle Richard Bishop’s motion to suppress audiotaped recordings made by the *212parents of the underage1 victim of her conversations with the defendant. Subsequently, a Cobb County jury convicted the defendant of child molestation2 (Count 1), aggravated child molestation3 (Counts 2 and 3), and aggravated sexual battery4\n5(Count 4). The defendant was sentenced consecutively and concurrently to 40 years confinement, to serve 30, and the remainder probated upon the underlying facts as set out in Bishop I. The defendant now appeals, contending that the superior court erred: (1) in admitting the testimony of the victim’s mother as to a telephone conversation she overheard between the victim and the defendant, a recording of which we suppressed in Bishop I; (2) in refusing to admit defendant’s Exhibit 3, a typewritten note to the defendant purportedly signed by the victim, for confusing the question of the note’s admissibility with its authenticity as written by the defendant; and (3) in not admitting testimony that the victim had previously been molested upon expert State’s testimony describing the victim as exhibiting characteristics consistent with having earlier been sexually abused as a child. For the reasons that follow, we affirm.\n1. The General Assembly amended OCGA § 16-11-66, effective April 20, 2000, permitting parents, as third parties, to intercept and tape telephone conversations to which their children are parties upon a “reasonable or good faith belief that such conversation ... is evidence of criminal conduct involving such child as a victim or an attempt, conspiracy, or solicitation to involve such child in criminal activity affecting the welfare or best interest of such child.” OCGA § 16-11-66 (d)† Malone v. State, 246 Ga. App. 882, 884-885 (541 SE2d *213431) (2000). The defendant correctly argues that OCGA § 16-11-62 makes it “unlawful for . . . [a]ny person in a clandestine manner intentionally to overhear, transmit, record or attempt to overhear, transmit, or record the activities of another which occur in a private place and out of public view.” OCGA § 16-11-62 (1). However, the defendant errs insofar as he further asserts that the 2000 amendment .cannot be applied retroactively to the 1996-1997 offenses of which he was convicted.\nWhile OCGA [§ 16-11-66 (d)] was passed after the commission of the offense [s] for which [defendant] was tried, it did not inflict greater punishment than was permitted by the law in effect at the time of the offense [s]; it did not make criminal an act which was innocent when done; it did not change the quality or degree of [defendant’s] offense; it did not require less or different evidence than required at the time of the offense; and it did not deprive [defendant] of any substantial right or immunity he possessed at the time of the offense. See Todd v. State, 228 Ga. 746, 751-752 (187 SE2d 831) (1972).\nLove v. State, 271 Ga. 398, 399 (1) (517 SE2d 53) (1999). The sole effect of the amendment was to make evidence admissible in a criminal case which would not have been admissible at the time the offense was committed. Todd v. State, supra at 751. There is no claim that the victim’s mother lacked a proper basis to monitor surreptitiously the complained-of telephone conversation in this case, and, by its own terms, OCGA § 16-11-66 (d) authorizes the parents of minor children under 18 to monitor or intercept the telephone conversations of such children, with or without their consent. Accordingly, the superior court properly gave retroactive effect to OCGA § 16-11-66 (d); Price v. State, 269 Ga. 222, 225 (4) (498 SE2d 262) (1998); State v. Martin, 266 Ga. 244, 245-246 (3) (466 SE2d 216) (1996), and no error resulted upon admitting the mother’s testimony as to her daughter’s telephone conversation with the defendant.\n2. The superior court did not err in refusing to admit defense Exhibit 3. The burden of proving the authenticity of a writing rests upon the party introducing it. OCGA § 24-7-1; Anderson v. Cuthbert, 103 Ga. 767, 773 (30 SE 244) (1898); State v. Smith, 246 Ga. 129 (269 *214SE2d 21) (1980). The defendant failed to meet his burden in this regard. On cross-examination, the victim denied having written the exhibit in issue. Further, although she conceded that the signature thereon looked like her own, the victim testified that she had not signed the writing.\nDecided October 15, 2001\nReconsideration denied October 31,2001\nBrenda J. Bernstein, for appellant.\nPatrick H. Head, District Attorney, Eleanor A. Kornahrens, Dana J. Norman, Assistant District Attorneys, for appellee.\n3. The defendant also asserts that he should have been allowed to present evidence as to a prior molestation of the victim by a family member. However, “[e]vidence of prior molestation or previous sexual activity on the part of the victim is not relevant in a . . . molestation case to show either the victim’s reputation for nonchastity or his [or her] preoccupation with sex. [Cits.]” (Punctuation omitted.) Duncan v. State, 232 Ga. App. 157,163 (5) (500 SE2d 603) (1998). “[A]n exception to this exclusion may be authorized when the State introduces . . . evidence . . . that the child has been sexually abused [in the past] or when the State presents evidence that the child exhibits symptoms of the [child] abuse accommodation syndrome. [Cit.]” Rocha v. State, 248 Ga. App. 53, 56 (2) (545 SE2d 173) (2001). Here the State presented neither medical evidence showing that the victim had been molested nor evidence showing that she had indicated symptoms consistent with the child abuse accommodation syndrome. As a result, the exception was inapplicable and inquiry into the victim’s sexual history was properly precluded under OCGA § 24-2-3 (b).\n\nJudgment affirmed.\n\n\nAndrews, R J, and Miller, J., concur.\n\n\n At the time of the offenses the victim was 13.\n\n\n “A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a).\n\n\n “A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” OCGA § 16-6-4 (c).\n\n\n “A person commits the offense of aggravated sexual battery when he intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.” OCGA § 16-6-22.2 (b).\n\n\n OCGA § 16-11-66 (d) provides:\nThe provisions of this article shall not be construed to prohibit a parent or guardian of a child under 18 years of age, with or without the consent of such minor child, from monitoring or intercepting telephonic conversations of such minor child with another person by use of an extension phone located within the family home . . . for the purpose of ensuring the welfare of such minor child. If the parent or guardian has a reasonable or good faith belief that such conversation ... is evidence of criminal conduct involving such child as a victim or an attempt, conspiracy, or solicitation to involve such child in criminal activity affecting the welfare or best interest of such child, the parent or guardian may disclose the content of such telephonic conversation ... to the district attorney or a law enforcement officer. A recording or *213other record of any such conversation or communication made by a parent or guardian in accordance with this subsection that contains evidence of criminal conduct involving such child as a victim or an attempt, conspiracy, or solicitation to involve such child in criminal activity shall be admissible in a judicial proceeding except as otherwise provided in subsection (b) of this Code section.\n\n", "ocr": true, "opinion_id": 7869863 } ]

[ "254 Ga. App. 129", "561 S.E.2d 468" ]

[ { "author_str": "Mikell", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMikell, Judge.\nViewed in the light most favorable to the jury’s verdict, the record shows that at approximately 9:00 p.m. on April 12, 2000, Deputy George W. Halliburton of the Crawford County Sheriff’s Department, acting undercover, purchased $20 worth of crack cocaine from Trederick Thomas. A jury convicted Thomas of selling cocaine, and the trial court sentenced him to ten years confinement and denied his subsequent motion for new trial. This appeal followed. In the sole error raised on appeal, Thomas argues that the court erred in denying his motion for a mistrial after the prosecutor improperly commented on Thomas’ failure to testify. We disagree and affirm.\n“The decision of whether to grant a mistrial because of improper conduct by counsel rests with the trial judge. OCGA § 17-8-75. His decision will not be overturned . . . absent a manifest abuse of discretion.” (Citations and punctuation omitted.) Grant v. State, 185 Ga. App. 497-498 (1) (364 SE2d 628) (1988). There was no such abuse of discretion in this case.\nThomas objects to the following statements made by the prosecutor during his closing argument:\n[The defense attorneys] came in here today and really the only thing they had to throw at you in the way of a Defense was their cross-examination of the State’s witnesses. . . . Have you heard any witnesses take the witness stand today and place either one of these two Defendants at any other location on April 12th? Any alibi witnesses? Have you heard any evidence from any source that they’re not the ones who sold the agent cocaine? No, you haven’t. The only evidence you’ve heard has been the State’s evidence. . . . It’s all on the side of the State because the only evidence that these Defendants put up were these two tapes. Now, if you want to balance the scales of justice, which side does the weight come down the heaviest on? Which side does reasonable doubt settle on? Well, it settles on the side of the State. . . . They’ve had their day in court, they’ve had the opportunity to call in witnesses they want to call, to put up any evidence *130they want to put up, defend their case anyway [sic] they want to and there’s not anything anybody can do about it. . . . It’s simply a matter of do you believe the police officer because you haven’t heard anybody else testify. . . . You can’t evaluate anybody else’s testimony because nobody else testified. He’s the only one you get to place that burden on in that way.\nDecided March 6, 2002.\nAndrew S. Foster, for appellant.\nHoward Z. Simms, District Attorney, Henry O. Jones III, Myra H. Kline, Assistant District Attorneys, for appellee.\nIn Lobdell v. State, 256 Ga. 769, 774-775 (10) (353 SE2d 799) (1987), the Supreme Court applied the following two-prong test:\nreversal for improper prosecutorial conduct requires a finding that (1) the prosecutor’s manifest intention was to comment upon the accused’s failure to testify or (2) the comment was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.\n(Punctuation omitted.) Id., citing Lowe v. State, 253 Ga. 308, 309-311 (1) (319 SE2d 834) (1984); Ranger v. State, 249 Ga. 315, 319 (290 SE2d 63) (1982); United States v. Rochan, 563 F2d 1246 (5th Cir. 1977). See also Salters v. State, 244 Ga. App. 219, 221-222 (2) (535 SE2d 278) (2000).\nApplying this test to the case sub judice, we conclude that the prosecutor’s statements did not warrant a mistrial. “The argument[s] made in this case [do] not show a manifest intention on the part of the prosecutor to comment upon appellant’s failure to testify, nor were the remarks of such a character that a jury would . . . necessarily construe them as a comment on appellant’s failure to testify.” (Citations and punctuation omitted.) Perry v. State, 232 Ga. App. 484, 487 (2) (b) (500 SE2d 923) (1998). We have expressly recognized that the State has the right to argue that the defense failed to rebut or contradict evidence demonstrating guilt. Id. Accordingly, the trial court did not abuse its discretion in denying Thomas’ motion for a mistrial.\n\nJudgment affirmed.\n\n\nAndrews, P. J., and Phipps, J, concur.\n\n", "ocr": true, "opinion_id": 7870013 } ]

[ "257 Ga. App. 539", "571 S.E.2d 529" ]

[ { "author_str": "Eldridge", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nEldridge, Judge.\nA jury found Lakeisha Zachery guilty of obstruction of a law enforcement officer, a violation of OCGA § 16-10-24 (a), a misdemeanor offense. Zachery appeals from the denial of her motion for new trial. In her sole enumeration of error, Zachery contends the trial judge erred when he denied her motion for directed verdict of acquittal. Finding no error, we affirm.\nIn reviewing a trial court’s denial of a defendant’s motion for directed verdict of acquittal, an appellate court applies the “sufficiency of the evidence” test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Moore v. State, 273 Ga. 11, 12 (1) (537 SE2d 334) (2000). Viewed in the light most favorable to the verdict, the evidence shows the following. On June 2, 2001, Officer D. M. Vagnini of the DeKalb County Police Department responded to a 911 *540call at 1908 Pennington Place. When Officer Vagnini arrived, Jeffrey Thompson was standing in the driveway; he directed her to. his brother, Kirby Thompson, who was at the top of the driveway demolishing J. Thompson’s car. As Officer Vagnini attempted to calm K. Thompson down, K. Thompson started running down the driveway toward his brother threatening to kill him. Officer Vagnini was unable to restrain K. Thompson as he kept breaking free. Backup officers arrived, and Officer Vagnini and three other officers were able to subdue and handcuff K. Thompson. Officer Vagnini and Officer A. S. Lewis both testified that during the struggle to subdue and handcuff K. Thompson, Zachery and another female started yelling and attempted to pull Officer Vagnini off K. Thompson’s legs by grabbing and pulling Officer Vagnini’s shirt and arms as the officer sought to stop K. Thompson’s kicking.\nZachery alleges that because J. Thompson’s testimony at trial was “diametrically opposed to the two officers’ testimony,” it provided a basis for a reasonable doubt which demands reversal.1 However, this argument goes to witness credibility and asks this Court to do what we are not authorized to do, which is, to weigh evidence and determine witness credibility. “On appeal the evidence must be viewed in a light most favorable to the verdict, and [the defendant] no longer enjoys a presumption of innocence; moreover, on appeal this [C]ourt determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.” (Citations omitted.) Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).\n“A jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it. [Cit.]” Drake v. State, 238 Ga. App. 584, 586 (1) (519 SE2d 692) (1999). The jury heard all the evidence and accepted the testimony of Officers Vagnini and Lewis, which was sufficient to enable a rational trier of fact to find Zachery guilty beyond a reasonable doubt of the offense of obstruction of an officer (misdemeanor) in that Zachery knowingly and wilfully obstructed or hindered Officer Vagnini in the lawful discharge of her official duties. See OCGA § 16-10-24 (a).\n\nJudgment affirmed.\n\n\nSmith, P. J., and Ellington, J., concur.\n\n*541Decided September 20, 2002.\nRobert J Storms, for appellant.\nGwendolyn R. Keyes, Solicitor-General, Heather C. Waters, Assistant Solicitor-General, for appellee.\n\n J. Thompson testified that he called the police and helped the police subdue his brother. J. Thompson further testified that Officer Vagnini was not involved in the actual handcuffing of his brother and that it was only after the handcuffs had been placed on his brother that Officer Vagnini came over to where K. Thompson was and began hitting him with her baton. J. Thompson went on to testify that Zachery was either standing in the yard across the street or in the street the entire time and did not interfere with any of the police in their arrest of his brother.\n\n", "ocr": true, "opinion_id": 7870286 } ]

[ "257 Ga. App. 741", "572 S.E.2d 86" ]

[ { "author_str": "Smith", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSmith, Presiding Judge.\nLouis Jasper English was convicted by a jury of misdemeanor obstruction of a law enforcement officer. OCGA § 16-10-24 (a). Following the denial of his motion for new trial, he appeals, enumerating as error the trial court’s refusal to grant his motion for directed verdict. We find no error, and we affirm.\nConstrued in favor of the verdict, evidence was presented that Officer Kevin Isenhour was on patrol on a dead-end street in an area of Buford known for high drug activity. After reaching the dead end, Isenhour turned his vehicle around in the driveway of Everett English (“Everett”), the brother of Louis English. Isenhour had been in the area “many times,” and he and Everett were acquainted with one another. After Isenhour pulled into Everett’s driveway, Everett approached Isenhour’s vehicle, stuck his head inside the car, shook Isenhour’s hand, and thanked him “for coming around to patrol the area and told me that I was welcome there anytime.”\nIsenhour turned his vehicle around and noticed a car parked “up past [Everett’s] house a little bit, just at the far comer, like it would be leaving from the area.” The car “was pulled off to the side of the *742road” and had two people inside. Isenhour sent a radio message that he was investigating “a suspicious female.” He parked behind the car and was walking toward it when Everett called out to him, “Those people are okay, don’t worry about it.” Isenhour replied, “Well, let me find out who they are.” He explained at trial that he “wanted to see what they looked like, who they were, because if I saw them again and knew that they were supposed to be in the area and they weren’t some of our drug users or sellers, wave at them the next time I see them and that would be it.” Everett told Isenhour that he needed “to leave, this is private property.” Isenhour told him that he was “just going to check on them” and “would be out of here in a few minutes.” Although Isenhour’s familiarity with and respect for Everett changed his own suspicion of illegal activity in the car, Isenhour felt he needed to meet the occupants, because “[t]hat was our job, to get to know the people in the drug areas.”\nIsenhour never reached the vehicle, however. While Everett was telling Isenhour that the occupants of the car were “okay,” English quickly approached Isenhour, yelling and cursing at Isenhour, telling him “to get off the property, it was his property, that I had no business there.” English was “mean” and very loud, and he refused to do anything Isenhour told him to do. Isenhour backed away from English and threatened to use pepper spray if English did not retreat. English refused to do so and continued to advance, and Isen-hour engaged the pepper spray. English knocked the canister from Isenhour’s hand and struck Isenhour in the mouth. Isenhour and English struggled as Isenhour tried to arrest him. Everett pulled Isenhour away from English, and a woman grabbed Isenhour when he tried a second time to arrest English. For one to two minutes, Everett and the woman held Isenhour’s arms and refused to let him transmit on his radio or reach for his baton. He finally pushed away, pulled his gun, told them to “back away,” and got down behind his car. Several bystanders had gathered at the scene by the time other officers arrived. After a struggle between English and the officers, English was finally subdued. He, Everett, and the woman who helped detain Isenhour were arrested. During the struggle, the bystanders threw “bricks and wood, anything that they could find laying on the ground” at the officers.\nThe jury found English guilty of misdemeanor obstruction of a law enforcement officer. On appeal, he argues that his motion for directed verdict should have been granted because the evidence did not show that Isenhour had permission to be on private property or that exigent circumstances warranted his presence there. He also argues that Isenhour was not in the lawful discharge of his duties because he lacked reasonable suspicion of criminal activity with respect to the parked vehicle.\n*743Decided October 7, 2002.\nDerek M. Wright, for appellant.\nDaniel J. Porter, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.\nWe find no merit in English’s contentions. It was within the exclusive province of the jury to assess witness credibility, resolve conflicts in the evidence, and reach a determination as to the facts. Hodnett v. State, 269 Ga. 115, 116 (1) (498 SE2d 737) (1998). Although Everett and English both made self-serving statements that Isenhour was on “private property,” Isenhour testified that he was not on private property but was on a clearly marked, paved road. A rational trier of fact was authorized under this evidence to conclude that Isenhour was not on private property.\nIn addition, Isenhour was not required to have reasonable, articulable suspicion of criminal activity in order to approach the parked vehicle and talk with the occupants. Isenhour explained his reasons for wanting to identify and talk with the occupants of the car as being part of his duties on the Anti-Crime Team Unit assigned to the area, and he was in uniform and was patrolling the area on the night of the incident. More importantly, “[i]t is well established that an officer’s approach to a stopped vehicle and inquiry into the situation is not a ‘stop’ or ‘seizure’ ” requiring an articulable suspicion that a person is involved in criminal activity. (Citation omitted.) Stokes v. State, 238 Ga. App. 230, 232 (518 SE2d 447) (1999). “Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual.” (Citation omitted.) Id. Isenhour clearly was authorized to try and talk with the people in the car. Unlike the facts involved in Holt v. State, 227 Ga. App. 46 (487 SE2d 629) (1997), on which English relies, no detention was involved in this case, and no Fourth Amendment concerns against an unlawful seizure were implicated. A rational trier of facts was authorized to conclude that Isenhour was acting within the lawful discharge of his duties when his encounter with English occurred. The trial court therefore did not err in denying English’s motion for directed verdict.\n\nJudgment affirmed.\n\n\nEldridge and Ellington, JJ, concur.\n\n", "ocr": true, "opinion_id": 7870302 } ]

[ "258 Ga. App. 846", "575 S.E.2d 747" ]

[ { "author_str": "Johnson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJohnson, Presiding Judge.\nThis case involves a dispute between a landlord, Curtis Reeves, and a tenant, Pattie Burnett, over a lease with an option to purchase. Burnett appeals from the judgment entered upon the jury’s award of $19,160 to Reeves, the trial court’s dismissal of a motion for new trial, the trial court’s issuance of an eviction order, and the trial court’s grant. of Reeves’ motion for a directed verdict that the purchase option was not properly exercised by Burnett. Because each of these enumerations of error lacks merit, we affirm the judgments.\nThe record shows that on January 22, 1996, Reeves and Burnett entered into a two-year property lease for $1,200 per month. The lease contained an option to purchase the property for $100,000. When Burnett failed to make lease payments, Reeves demanded that Burnett vacate the premises and then served Burnett with a dispos-sessory warrant. At the dispossessory hearing, Burnett produced a lease indicating that the lease payments were only $760 per month and containing an option to purchase the property for $80,000. Reeves contended the lease submitted by Burnett was a forgery.\nThe trial court ordered Burnett to pay rent into the court and set the matter down for a jury trial. Burnett failed on two occasions to timely pay rent into the court. The first time, the trial court granted an extension. After the second occasion, the trial court issued a writ of possession.\nSubsequently, the jury heard the case. At the close of the evidence, Reeves moved for a directed verdict concerning Burnett’s failure to exercise the purchase option. This motion was granted by the trial court since Burnett testified that at no time did she tender any money to purchase the property.\n1. Burnett contends the trial court erred in issuing the writ of possession. However, the evidence clearly shows that Burnett failed on two occasions to make timely rent payments into the court registry. OCGA § 44-7-54 (a) (1) states that a tenant shall be required to pay rent into the registry of the court in any case where the right of possession cannot be finally determined within two weeks from the *847date of service of the summons. The statute further mandates that if the tenant fails to make a payment as it becomes due, “the court shall issue a writ of possession and the landlord shall be placed in full possession of the premises by the sheriff, the deputy, or the constable.”1 The trial court did not err in issuing the writ of possession in this case.\nDecided December 13, 2002\n2. The trial court did not \"err in granting Reeves’ motion for a directed verdict concerning Burnett’s failure to exercise the purchase option.2 Payment of the purchase price or an unconditional tender of that amount to Reeves on the specified date, or a showing that tender of the purchase money on that date had been waived, was “indispensably necessary to convert the offer or option to sell into a contract of purchase and sale.”3 Here, Burnett unequivocally testified that she did not tender any money to Reeves to purchase the property, either under the lease submitted by Reeves or the lease submitted by Burnett.\n3. Burnett contends the verdict is not supported by the evidence. However, existence of the lease agreement and supporting testimony by Reeves clearly supported the jury’s verdict for past rent owed, as well as a denial of Burnett’s claims. Burnett’s argument that the lease submitted by her controls the issues and her arguments regarding actions taken by Reeves merely go to the weight and credibility of the evidence — issues within the exclusive province of the jury.4 The evidence was sufficient to support the jury’s verdict.\n4. Burnett contends the “dismissal” of her motion for new trial was not made on the merits of the case, but was used to punish her and her attorney when her attorney failed to appear at the scheduled hearing. However, the record shows that despite the failure of Burnett’s trial counsel to appear at the hearing or notify the trial court regarding the reason for his absence, the trial court reviewed Burnett’s motion for new trial and denied the motion on the merits: Accordingly, this enumeration of error lacks merit.\n\nJudgment affirmed.\n\n\nBlackburn, C. J., and Miller, J., concur.\n\nAllan E. Alberga, for appellant.\nCornelison & Ziolo, John A. Ziolo, for appellee.\n\n OCGA § 44-7-54 (b).\n\n\n See Burns v. Reves, 217 Ga. App. 316, 317 (1) (457 SE2d 178) (1995); Carpenter v. Parsons, 186 Ga. App. 3, 4 (2) (b) (366 SE2d 367) (1988).\n\n\n Barhley-Cupit Enterprises v. Equitable Life &c., 157 Ga. App. 138, 142 (2) (276 SE2d 650) (1981).\n\n\n OCGA § 24-9-80; see Sparti v. Joslin, 230 Ga. App. 346, 348 (3) (a) (496 SE2d 490) (1998); Baynes v. Baynes, 219 Ga. App. 848, 849 (1) (467 SE2d 195) (1996).\n\n", "ocr": true, "opinion_id": 7870392 } ]

[ "259 Ga. App. 302", "576 S.E.2d 673" ]

[ { "author_str": "Adams", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nAdams, Judge.\nRicky Kemp appeals following his conviction by a jury of one count of armed robbery. He argues that he was denied a trial by a fair and impartial jury because his trial was conducted during the week of September 11, 2001, the date of the terrorist attacks on New York City and Washington, D.C. He also asserts that he received ineffective assistance of trial counsel because his attorneys failed to move for a continuance of his trial. We affirm.\nVoir dire began in this case on the morning of September 11, and by 12:05 p.m., a jury was impaneled and sworn. At that point, a deputy announced that the courthouse was being closed for security reasons, and the jury was sent home after receiving cautionary instructions regarding the case and the media. The court reconvened the *303next day, and the trial continued with the state’s case. Kemp chose not to present any evidence on his own behalf.\nDecided January 24, 2003.\nWendell R. Adams, for appellant.\nRalph M. Walke, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellee.\n1. Kemp does not contend that the state failed to meet its burden of presenting sufficient evidence of his guilt, but only asserts that the trial should not háve been held during the week of September 11. While the events of September 11 were of unquestionable national importance, Kemp does not explain how he contends those events affected his trial, except to suggest that they were distracting. But there is nothing in the record before us to indicate that these events had any effect on the proceedings other than to delay them for one-half day. Nor is there anything to suggest that the jury disregarded its oath or the trial court’s instructions to base the verdict on the evidence. Accordingly, there is nothing to support a finding that Kemp was denied a trial by a fair and impartial jury unless we simply assume that the jury disregarded its duties. We decline to make such an assumption. See generally Stokes v. State, 204 Ga. App. 141, 142 (1) (418 SE2d 419) (1992); United States v. Brimberry, 779 F2d 1339, 1351 (8th Cir. 1985); United States v. Steinhorn, 739 FSupp. 268, 275 (D. Md. 1990).\n2. Kemp also asserts that his trial attorneys were ineffective in failing to request a continuance in light of the events of that week. This argument also fails because even if Kemp could establish that his attorneys’ performance was deficient, he has not met his burden of showing that a reasonable probability exists that, but for that performance, the result of the trial would have been different. Strickland v. Washington, 466 U. S. 668, 695-696 (104 SC 2052, 80 LE2d 674) (1984).\n\nJudgment affirmed.\n\n\nRuffin, P. J., and Barnes, J., concur.\n\n", "ocr": true, "opinion_id": 7870430 } ]

[ "261 Ga. App. 778", "584 S.E.2d 27" ]

[ { "author_str": "Miller", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMiller, Judge.\nA. L. S., a child, was found delinquent for committing acts that would have supported convictions for driving on the wrong side of the road and second degree vehicular homicide had she been tried as an adult. She appeals, contending that (1) the juvenile court erred in reopening the case to allow the State to present additional evidence after the State had rested and after A. L. S. had moved for a directed verdict, and (2) the evidence was insufficient to support the finding of delinquency for second degree vehicular homicide. We discern no error and affirm.\n*779' Viewed in the light most favorable to the finding of delinquency, the evidence reveals that A. L. S. was driving in the southbound lane of Highway 169. Although there was no evidence of any obstruction in the southbound lane, A. L. S. drove across the centerline of the road and entered the northbound lane, where she collided with a truck being driven by the victim. The victim was seriously injured in the accident and taken to the hospital, where he eventually died from his injuries.\nAt the delinquency hearing, the State presented evidence that A. L. S.’s car moved from the southbound lane into the northbound lane, causing the accident, but did not present evidence that the victim died as a result of injuries suffered in the accident. Although prior to the delinquency hearing A. L. S.’s attorney had stipulated to the fact that the victim died as a result of injuries that he suffered in the car accident, the State (due to an inadvertent oversight) did not alert the court to this stipulation until the State had already rested its case. A. L. S. moved for a directed verdict, citing, among other things, the State’s failure to establish a causal link between the victim’s injuries suffered in the accident and his subsequent death. The court denied the motion and reopened the evidence to allow the State to introduce a certified copy of the death certificate that established that the victim died from injuries suffered in the car accident.\nThe court found A. L. S. delinquent, and A. L. S. now appeals.\n1. A. L. S. contends that the juvenile court abused its discretion by reopening the evidence to allow the State to introduce a certified copy of the death certificate after the State had already rested its case and A. L. S. had moved for a directed verdict. We disagree.\nA court has broad discretion to reopen a case after the close of evidence, even after the defendant has moved for a directed verdict. McFarland v. State, 137 Ga. App. 354, 357 (5) (223 SE2d 739) (1976). The lower court’s decision will not be disturbed on appeal absent an abuse of discretion. Carruth v. State, 267 Ga. 221 (476 SE2d 739) (1996).\nThe juvenile court did not abuse its discretion by reopening the evidence to allow the State to introduce the death certificate. A. L. S.’s attorney had previously stipulated to the very fact that she now complains was not established before the State rested its case, and the stipulation had only been omitted due to an inadvertent oversight by the State. We find no abuse of discretion here. See Thompson v. State, 175 Ga. App. 645, 646 (1) (b) (334 SE2d 312) (1985) (trial court did not abuse its discretion by reopening case for State to establish venue where defendant did not contest location of incident); McFarland, supra, 137 Ga. App. at 357 (5) (trial court did not abuse its discretion by reopening case to allow State to ask ques*780tions that it had inadvertently neglected to ask prior to the close of evidence).\nDecided June 19, 2003\nDubberly & McGovern, Joseph D. McGovern, for appellant.\nJ. Thomas Durden, Jr., District Attorney, Melissa L. Heifferon, Mark A. Hendrix, Assistant District Attorneys, for appellee.\n2. A. L. S. argues that the evidence presented at the delinquency hearing was insufficient to sustain a finding of delinquency for committing an act that would have supported a conviction for second degree vehicular homicide. We disagree.\n“In juvenile proceedings, the standard of proof on charges of a criminal nature is the same as that used in criminal proceedings against adults — proof must be beyond á reasonable doubt.” (Citation and punctuation omitted.) In the Interest of A. F., 236 Ga. App. 60 (1) (510 SE2d 910) (1999).\nOCGA § 40-6-393 (b) provides:\nAny person who causes the. death of another person, without an intention to do so, by violating any provision of this title other than subsection (a) of Code Section 40-6-163 or subsection (b) of Code Section 40-6-270 or Code Section 40-6-390 or 40-6-391 or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death. . . .\nHere the evidence showed that A. L. S. caused the victim’s death through a violation of OCGA § 40-6-40 (must drive on the right side of the road), which dangerously placed her car into oncoming traffic on a public highway. The evidence sufficed to sustain a finding of delinquency for an act that would constitute second degree vehicular homicide. See OCGA § 40-6-393 (b); see also Caffey v. State, 210 Ga. App. 395, 396 (2) (436 SE2d 102) (1993); Rank v. State, 179 Ga. App. 28, 30 (2), (4), (5) (345 SE2d 75) (1986) (evidence sufficed to sustain conviction for second degree vehicular homicide where underlying offense was driving on wrong side of road); cf. Abernathy v. State, 191 Ga. App. 350, 351 (2) (381 SE2d 537) (1989) (criminal negligence to support second degree vehicular homicide can be shown where unintentional violation of motor safety statute is done under circumstances from which probable death or injury to others might be reasonably anticipated).\n\nJudgment affirmed.\n\n\nSmith, C. J, and Ruffin, P. J., concur.\n\n", "ocr": true, "opinion_id": 7870646 } ]

[ "159 A.3d 1204", "173 Conn. App. 902" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam.\nThe judgment is affirmed.\n", "ocr": true, "opinion_id": 7870957 } ]

[ "268 Ga. App. 164", "601 S.E.2d 481" ]

[ { "author_str": "Andrews", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nANDREWS, Presiding Judge.\nRobert McIvory a/k/a Jowon Johnson appeals from the trial court’s denial of his motion for new trial following his conviction by a jury of armed robbery, possession of a firearm during the commission of a felony, eluding police, and no driver’s license in his possession. McIvory argues that both his pretrial identification and his in-court identification by Barbrey, the victim, should not have been allowed into evidence,1 that his trial counsel was ineffective, and that the evidence was legally insufficient.\n1. In his third and fourth enumerations, McIvory argues that the trial court erred in denying his motion for directed verdict and that the verdict is decidedly and strongly against the weight of the *165evidence. Both address the legal sufficiency of the verdict and they are considered together. OCGA§ 17-9-1; Bright v. State, 238 Ga. App. 876, 877 (1) (520 SE2d 48) (1999); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).\nViewed with all inferences in favor of the jury’s verdict, Wilson v. State, 233 Ga. App. 327, 328 (1) (503 SE2d 924) (1998), the evidence was that Robert Barbrey was planning to take his wife and two children to Disney World after work Monday and was cleaning out his plum colored Saturn in front of his Savannah home at 1:35 a.m. on Sunday, February 7, 2000. The area where his car was parked was well lighted with a porch light and two street lights illuminating the car. The windows were rolled up and the doors were locked. While gathering his tools in the car, Barbrey noticed five African-American young men of various heights and weights walking by his car. One was wearing a red hooded sweatshirt while the others had on dark clothing. Barbrey started his car as if he were leaving the area. When the young men had walked on, Barbrey turned off his car and continued cleaning it.\nBarbrey was sitting in the driver’s seat of the Saturn, which had tinted windows. Seconds after the five young men walked away, Barbrey heard the passenger door handle jiggle.2 Immediately, Barbrey heard a tapping on the driver’s window. As he looked toward the tapping, he saw Mclvory wearing the red sweatshirt hood on his head, tapping on the window with a silver handgun with a black handle. Mclvory told Barbrey to roll down the window, which he did. Mclvory then leaned in the window until his face was only eight to twelve inches from Barbrey’s. Barbrey looked straight into his eyes and noticed his facial features, including his complexion and his neatly trimmed facial hair. While face to face with Mclvory, Barbrey was asked by him for his wallet. Barbrey explained that he did not have it, it was in the house. When Barbrey offered to go in and get it, Mclvory asked him how much money was in it and Barbrey told him $30. When asked if anyone was in the house, Barbrey told Mclvory his wife and kids were inside. Mclvory then stated, “[i]t’s not worth it. We’ll take the car.” Barbrey got out of the car when he was told to by Mclvory. Mclvory hacked up so Barbrey could get out of the car and directed him to lie down on the sidewalk. As he walked around his car toward the sidewalk, Barbrey heard Mclvory and Jackson discussing the controls for the car and Barbrey ran inside his house and called 911.\nCorporal Hagan was on patrol and responded to Barbrey’s house.3 *166He got a brief description from Barbrey of the two men, one dressed in a red sweatshirt with hood who was on the driver’s side and had a weapon and the other man wearing dark clothing and taller than the man with the gun, seated on the passenger side. Barbrey also described his plum Saturn. At 3:07 a.m., approximately an hour and 30 minutes after the robbery, Hagan noticed a plum colored Saturn following a gold car. Discovering that the gold car had been stolen, Hagan began following the two cars. Barbrey’s plum Saturn passed the gold car and drove away at a high rate of speed. Hagan saw the Saturn run a red light and then come to an abrupt halt near a police precinct. McIvory, wearing a red hooded sweatshirt, jumped out of the driver’s side and began running. Jackson stayed in the passenger seat because another officer was pointing his gun at him. Hagan ran after McIvory and caught him hiding under a house. McIvory did not have a driver’s license.\nAt the police station, a photo was taken of McIvory, still wearing the sweatshirt but with the hood down. This photo was placed in a photo array with five other photos of similar looking men, all African-American, approximately the same age as McIvory, all with similar hair lengths and facial hair. Barbrey was called down to the station approximately three hours after the robbery. After the detective read Barbrey the “Photographic Show-Up Admonition,”4 Barbrey immediately selected McIvory’s photo as the man on the driver’s side with the gun and said he did most of the talking. He picked Jackson from a separate array as the man on the passenger side. Jackson was in fact several inches taller than McIvory.\nBarbrey was then taken to retrieve his car, from which the speakers had been removed. As he was driving it home, he reached under the front seat and discovered a silver handgun, which he recognized as the one that had been pointed at him earlier by Mclvory.\nAt trial, Barbrey also identified Mclvory without hesitation and stated that his identification stemmed from the robbery itself.\nBarbrey’s speakers were found in co-defendant Jackson’s closet. Jackson’s girlfriend contacted Brown and asked him to sell the speakers to raise money for Jackson’s bail.\nA rational trier of fact could have found from the evidence that McIvory was guilty beyond a reasonable doubt of the charged offenses. Anderson v. State, 265 Ga. App. 428 (1) (594 SE2d 669) (2004).\n*1672. Mclvory’s first enumeration is that the trial court erred in denying his motion seeking to exclude Barbrey’s pretrial identification from the photo array as well as his in-court identification of Mclvory.\nIt is error to allow testimony concerning a pre-trial identification of a defendant if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972); Reid v. State, 210 Ga. App. 783 (2) (437 SE2d 646) (1993). The taint which renders an identification procedure impermissibly suggestive must come from the method used in the identification procedure. Sherman v. State, 225 Ga. App. 869 (2) (485 SE2d 557) (1997). An identification procedure is impermissibly suggestive when it leads the witness to an “all but inevitable identification” of the defendant as the perpetrator (Brewer v. State, 219 Ga. App. 16 (6) (463 SE2d 906) (1995)) or, as was held in Heyward v. State, 236 Ga. 526 (224 SE2d 383) (1976), is the equivalent of the authorities telling the witness, “This is our suspect.”\nClark v. State, 271 Ga. 6, 12 (7) (b) (515 SE2d 155) (1999).\n(a) At the pretrial hearing on McIvory’s motion, the trial court found that the identification procedure used in the array was not impermissibly suggestive. When ruling on the motion for new trial, however, the trial court concluded that, based on Heng v. State, 251 Ga. App. 274 (554 SE2d 243) (2001), the array was impermissibly suggestive. There, during two armed robberies, the Asian robber wore an unusual orange, sleeveless jacket which both victims had described. In the photo array, Heng was the only person wearing an orange, sleeveless jacket. Prior to being shown the photo array, one victim had been shown a $100 bill with distinctive writing on it, which had been taken from him in the robbery, along with a Glock similar to the one used. He therefore knew the police had someone in custody. The officer then opened the door, allowing this victim to see four Asian young men standing in front of a bench, with Heng wearing the orange sleeveless jacket. The victim identified Heng.\nThe second victim was shown a photo array of five young Asian males in which only Heng could be seen wearing a sleeveless orange jacket. Some of the other photos had been cropped so that no clothing was viewable.\nAlthough this Court concluded that these pretrial displays were impermissibly suggestive, it was further determined that they did *168not lead to a substantial likelihood of misidentification, based on Jones v. State, 273 Ga. 213, 216 (2) (539 SE2d 143) (2000).\nThe photographic display involving Mclvory is included in the record before us and we agree with the trial court’s initial conclusion that the display is not impermissibly suggestive. In addition to the facts regarding Barbrey’s encounter with Mclvory set out in Division 1, unlike in Heng, a sweatshirt with a hood is much more common than the sleeveless jacket and other actions of the officers there led to the impression that Heng was the suspect. Here, no such suggestive actions were taken. Barbrey stated that he was focused on Mclvory because he had a gun pointed at him and that he identified him from the photo spread mainly by his facial features, not because he was wearing the red sweatshirt. Therefore, the array was not impermissibly suggestive. See Williams v. State, 275 Ga. 622,623 (2) (571 SE2d 385) (2002); Standfill v. State, 267 Ga. App. 612 (600 SE2d 695) (2004); Jones v. State, 226 Ga. App. 428, 431 (3) (487 SE2d 62) (1997).\n(b) Because the trial court later found the array impermissibly suggestive and proceeded to the second step of the analysis, i.e., whether, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification. In making this determination, we consider factors including the witness’ opportunity to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Based on these factors, we agree with the trial court’s conclusion that it did not give rise to a substantial likelihood of misidentification.\nBecause of the short time period between the robbery and the array, Barbrey’s memory of the events was fresh and even had there been a one-on-one showup of McIvory in the hooded red sweatshirt, under these circumstances, there was no substantial likelihood of misidentification. See, e.g., Rogers v. State, 265 Ga. App. 628 (595 SE2d 326) (2004); Anderson v. State, supra at 431 (3); In the Interest of L. J. P., 258 Ga. App. 762, 765 (2) (b) (574 SE2d 839) (2002), affd, 277 Ga. 135 (587 SE2d 15) (2003).\n3. In his second enumeration, McIvory, through new appellate counsel, argues that his trial counsel rendered ineffective assistance prior to and during the trial.\nThe burden was on [McIvory] to establish that he received ineffective assistance of counsel (Van Alstine v. State, 263 Ga. 1 (426 SE2d 360) (1993)), and he was required to show that counsel performed deficiently and that, but for the *169deficient performance, there was a reasonable likelihood that the outcome of the trial would have been different.\nDecided June 28, 2004\nMartin G. Hilliard, for appellant.\nSpencer Lawton, Jr., District Attorney, Kimberly Rowden, Assistant District Attorney, for appellee.\nPittman v. State, 274 Ga. 260, 264 (5) (553 SE2d 616) (2001), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).\nFurther, a trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. Jordan v. State, 247 Ga. App. 551, 554 (2) (544 SE2d 731) (2001).\nWith the “clarity afforded by hindsight[,]” Fambro v. State, 164 Ga. App. 359 (3) (297 SE2d 111) (1982), appellate counsel raises six alleged errors of trial counsel, a criminal defense attorney for thirty years, including inadequate trial preparation and insufficient number of personal visits with McIvory.5\nSuffice it to say that, even assuming error in any of these instances, there has been a total failure to show that, but for the claimed errors, there was a reasonable likelihood that the outcome would have been different. “Since an appellant claiming ineffective assistance of counsel must show both deficient performance and actual prejudice stemming from that deficiency, an insufficient showing on either of these prongs relieves the reviewing court of the need to address the other prong. [Cit.]” Cain v. State, 277 Ga. 309, 311 (4) (588 SE2d 707) (2003).\nThere was no error in the trial court’s denial of the motion for new trial on this ground.\n\nJudgment affirmed.\n\n\nMiller and Ellington, JJ., concur.\n\n\n McIvory presented this issue by a motion to suppress rather than the appropriate motion in limine. See OCGA § 17-5-30; Robinson v. State, 208 Ga. App. 528, 530 (2) (430 SE2d 830) (1993).\n\n\n This was Romean Jackson, McIvory’s co-defendant, who pled guilty.\n\n\n He was not the primary investigating officer, who was on his way.\n\n\n Including that the group of photos may or may not contain a picture of the person who committed the crime; that hairstyles, beards, and mustaches may be easily changed; and that photos may not always depict the person’s true complexion which may be lighter or darker than the photo.\n\n\n McIvory acknowledged there had been four visits, and trial counsel testified there had been at least four.\n\n", "ocr": true, "opinion_id": 7871114 } ]

[ "269 Ga. App. 12", "602 S.E.2d 904" ]

[ { "author_str": "Mikell", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMikell, Judge.\nA jury convicted Jesse Dean McKinney of two counts of child molestation, two counts of aggravated child molestation, rape, aggravated sexual battery, and cruelty to children for sexually abusing the daughter of his ex-girlfriend from July 1995 through February 2001. The jury acquitted McKinney of statutory rape and a second count of rape. The court sentenced him to 15 years in confinement and 15 years on probation. McKinney appeals the denial of his motion for new trial, arguing that the evidence was insufficient to support his convictions and that the trial court erred in denying his motion for funds to hire an expert witness. We disagree and affirm.\n*13Viewed in the light most favorable to the jury’s verdict, the evidence shows that McKinney sexually molested K. W. over the course of several years, beginning when K. W. was three or four and ending when she was eight or nine. McKinney and K. W.’s mother were romantically involved and lived together from 1992 until October 2000. K. W. believed that McKinney was her father and called him “daddy.”\nK. W, who was ten years old at the time of trial, testified that on several occasions when she was three or four years old and living in a duplex with her mother and McKinney, McKinney removed her clothes, got on top of her and placed his “private part” inside her “private part.” K. W. testified that it hurt a little. When presented with diagrams, K. W. indicated that McKinney touched her vaginal area with his penis and mouth. K. W. further testified that McKinney forced her to “suck” his private part and that “white stuff would come out” and get on her belly button. K. W. also testified that McKinney “touched [her] inside [her] hole with his hand” and put baby lotion on her vagina.\nThe record shows that in March 1999, the family, including K. W, her sister C. M., who was born in 1996, her mother, and McKinney, moved to a house on Cherokee Overlook, K. W. testified that on several occasions McKinney “did s-e-x” with her in the basement. After McKinney and K. W.’s mother broke up, K. W. would visit McKinney at his grandmother’s house and sometimes spend the night with McKinney in his room. K. W. testified that, on more than one occasion, she had “[s] -e-x in his room” and that McKinney put his “thing” in her mouth and put his mouth on her “private parts.” K. W. testified that she did not tell anyone what McKinney had done because she was afraid and “didn’t even know what it was at first.”\nIn June 2001, K. W. told her biological father that McKinney raped her: “[he] got on top of me and he — he put his thing in my hole.” K. W.’s father took K. W. to her grandmother’s home where K. W. told her grandmother that McKinney was having sex with her, that he would “turn her upside down and lick on her [vagina]” and that “[h]e tried to stick it in her and she peed on herself.” K. W.’s grandmother told K. W. to call her mother. K. W. called her mother crying and told her that “J-e-s-s-e was having sex with [her].” K. W.’s mother further testified that K. W. asked, “ ‘Mommy, do you remember when you came home from the store one day . . . [t]here was a wet spot on the bed... [m]e and [McKinney] were doing something.’ ” K. W. also told her mother that “[McKinney] made her get on top of him and that she was sucking his thing while he was doing her and that he would stick his finger into her hole.” K. W.’s mother contacted the authorities, and McKinney was arrested.\n*14Amy Economopolous, a clinical child specialist supervisor who conducted a videotaped interview with K. W. immediately after the abuse was reported, testified that K. W. told her that McKinney touched her vaginal area with his mouth, hand, and penis and that K. W. touched McKinney’s penis with her mouth and hands.\nDr. Terese DeGrandi, a pediatrician who examined K. W. immediately after the abuse was reported, testified that her examination of K. W. was consistent with the history that she was given. Dr. DeGrandi had been told that McKinney performed oral sex on K. W., had K. W. perform oral sex on him, had intercourse with him, and that K. W. had delayed reporting the sexual abuse. Dr. DeGrandi testified that she performed a gynecological examination on K. W., which revealed no acute trauma to the hymen. Dr. DeGrandi testified that “[K. W.’s] hymenal tissue was perfectly normal.” Dr. DeGrandi explained that a delay in reporting sexual abuse affects the ability to make physical findings. According to Dr. DeGrandi, in cases of delayed disclosure, almost 90 percent of exams are normal because the area has healed or in cases of oral sex, physical trauma would not be expected. According to Dr. DeGrandi, rips or bruising of the hymen can heal within four to five days.\nAt trial, McKinney denied sexually abusing K. W.\n1. First, McKinney argues that the trial court erred in denying his motion for funds to hire an expert witness. We disagree.\nThe record reflects that on August 14, 2002, McKinney filed a “38b Ex Parte Motion to Provide Funds for Expert Assistance” and a “43a Ex Parte Motion to Provide Funds for Expert Assistance,” both of which were ordered sealed by the trial court. In an ex parte hearing, the trial court denied the latter motion but granted the former, ordering that Cherokee County pre-trial services pay $800 to Amy Morton, a professional therapist hired by McKinney to examine the propriety of the investigative interviews of K. W. In the 43a motion, McKinney asked for funds to hire Savannah physician Mary Jean Cardin, a pediatrician and expert in child abuse cases, to review Dr. DeGrandi’s report and to explain that if K. W. had been sexually abused, she would have suffered “some type of damage.” The trial court denied the motion, finding that the expert was not critical and that there was nothing “unique about this field that would require us to bring a doctor from Savannah.” In particular, the trial court noted that Dr. DeGrandi’s report did not prove or disprove that McKinney sexually abused K. W.\n“The granting or denial of a motion for [funds to hire an] expert witness [ ] lies within the sound discretion of the trial court. Unless there has been an abuse of discretion, the trial court’s ruling will be upheld.” (Citation, punctuation and footnote omitted.) Hall v. State, 255 Ga. App. 631, 633 (3) (566 SE2d 374) (2002). “A motion for funds *15to obtain an expert witness requires a reasonable showing to the court, by the defendant, why the expert’s services are required, what services are to be performed by such expert, the identity of the expert, and the cost to provide the needed services.” Coalson v. State, 251 Ga. App. 761, 766 (3) (555 SE2d 128) (2001). See also Roseboro v. State, 258 Ga. 39, 41 (3) (d) (365 SE2d 115) (1988). McKinney also must show that without the assistance of the expert, his trial “would be rendered fundamentally unfair.” Coalson, supra.\nAlthough McKinney’s motion was in the proper format, he failed to show that without Dr. Cardin’s assistance, his trial would be rendered fundamentally unfair. In support of his motion, McKinney identified Dr. Cardin as the proposed expert, her hourly rate of $125 to $ 150, and stated that her services were needed for trial preparation and during the guilt/innocence stage of the trial. McKinney further stated that he needed Dr. Cardin to help interpret the medical reports, which were beyond defense counsel’s expertise. McKinney also included a copy of Dr. Cardin’s curriculum vitae. During the ex parte hearing, McKinney’s counsel specifically stated that Dr. Cardin would be brought in to counter Dr. DeGrandi’s testimony. Specifically, Dr. Cardin would testify that if K. W. had sexual intercourse with an adult male as many times as alleged, there would be some physical damage. Counsel further stated that he needed Dr. Cardin to explain the following statement from Dr. DeGrandi’s report: “normal physical exam — which is consistent with the patient’s history of sexual abuse.” The trial court explained that K. W.’s exam was normal for a sexually active adult female and found that McKinney did not need an expert from Savannah. The trial court instructed defense counsel to follow up with Dr. DeGrandi and reassert the motion if the court misunderstood the report. The motion was never reasserted.\nIn light of the fact that (a) Dr. DeGrandi’s report was neutral on the question of whether K. W. showed signs of sexual abuse, and (b) McKinney never reasserted his motion, we cannot say that the trial court abused its discretion in finding that the expert was not critical to McKinney’s defense. Moreover, McKinney has failed to show that without Dr. Cardin’s assistance, his trial was rendered fundamentally unfair.\nWe reject McKinney’s contention that his situation is similar to that of the defendant in Thornton v. State, 255 Ga. 434 (339 SE2d 240) (1986). In that case, our Supreme Court granted interlocutory review of the trial court’s denial of the defendant’s motion for funds to hire a forensic dental expert. The defendant sought to hire an expert to examine dental impression evidence. The dental impression was the sole piece of evidence linking the defendant to the murder victim and there was some question as to the reliability of such “novel” evidence. The state acknowledged that the dental impression was critical to the *16prosecution of the case and the Court agreed, reversing the trial court. Id. at 435 (4). Here, by contrast, the medical evidence was not critical to the prosecution.1 On the contrary, as the trial court recognized when it granted McKinney’s motion for funds to hire Morton, the critical evidence was K. W.’s testimony. Therefore, the trial court did not abuse its discretion in denying McKinney’s motion for funds to hire Dr. Cardin.\nDecided August 6, 2004.\nLouis M. Turchiarelli, for appellant.\nGarry T. Moss, District Attorney, Wallace W. Rogers, Jr., Assistant District Attorney, for appellee.\n2. McKinney contends that the evidence was insufficient to support his convictions. We disagree. McKinney argues that there was no “real evidence” that he sexually abused K. W. Even though K. W. testified that the abuse began when she was three or four years old and continued for at least five years, K. W. never told anyone about the abuse, never showed physical signs of injury, and could not remember times or dates, he claims.\nThe evidence of the victim alone was sufficient to authorize a guilty verdict. Spradlin v. State, 262 Ga. App. 897, 898 (1) (587 SE2d 155) (2003). “No requirement exists that this testimony be corroborated. The jury obviously believed the victim’s testimony as to the counts on which [McKinney] was found guilty. Determining the credibility of witnesses is entirely within the province of the jury.” (Punctuation omitted.) Id., citing Ferrell v. State, 256 Ga. App. 692, 694 (1) (569 SE2d 899) (2002). See also Dorsey v. State, 265 Ga. App. 404, 405 (1) (593 SE2d 945) (2004); Cobb v. State, 254 Ga. App. 48 (1) (561 SE2d 124) (2002). The evidence in this case was more than sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).\n\nJudgment affirmed.\n\n\nBlackburn, P. J., and Barnes, J., concur.\n\n\n McKinney himself acknowledges this when he states in his brief that Dr. DeGrandi testified that “even though [K. W.] may have been raped there could be a normal finding provided there was a history but she also testified that the other hypothesis would be that it never happened.”\n\n", "ocr": true, "opinion_id": 7871167 } ]

[ "272 Ga. App. 506", "613 S.E.2d 157" ]

[ { "author_str": "Blackburn", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBlackburn, Presiding Judge.\nPleading guilty in 1997 to giving a false name to an officer,1 Julian Elias, a foreign national, filed no appeal but rather served his misdemeanor sentence of 12 months probation. Six years later, he moved the trial court to modify2 his now-completed sentence to a period of less than twelve months, so as to facilitate his efforts to become a naturalized citizen.3 After an evidentiary hearing, the trial court denied the motion, and Elias moved for a new trial on this ruling, which the trial court after a second evidentiary hearing also denied. Elias appeals the denial of his motion for new trial. We affirm.\nWithout addressing whether a motion for new trial was the proper procedural vehicle for seeking review of the ruling on the motion to modify, we hold that the trial court did not abuse its discretion in denying the motion for new trial on the matter. See OCGA § 5-5-25 (court to exercise sound legal discretion in determining motions for new trial). Here, in denying the motion to modify, the court considered the facts that the sentence had long since been served, that six years had run since sentencing, and that the sentence was within the statutory guidelines for misdemeanors. See OCGA § 17-10-3 (a) (1). The same considerations formed the basis for the court’s decision to deny the motion for new trial on the matter. We *507discern no abuse of discretion.4\nDecided March 25, 2005.\nChatham & Rea, Jeb W. Chatham, for appellant.\nRoger G. Queen, District Attorney, Joe W. Hendricks, Jr., Clifford A. Sticker, Assistant District Attorneys, for appellee.\n\nJudgment affirmed.\n\n\nMiller and Bernes, JJ., concur.\n\n\n OCGA § 16-10-25.\n\n\n OCGA § 17-10-3 (b) (sentencing courts retain jurisdiction to modify misdemeanor sentences at any time).\n\n\n Some evidence indicated that the federal government considered any charge carrying a sentence of 12 months or more as an aggravated felony and thus as cause for denial of permanent residence. Cf. 8 USC § 1101 (a) (43) (S).\n\n\n We note that much of Elias’s brief focuses on arguments that question the voluntariness of Elias’s guilty plea. Of course, such arguments are in vain, as Elias has not appealed his conviction nor sought to withdraw his guilty plea (nor could he in light of the time that has expired). See OCGA § 5-6-38 (a) (notice of appeal must be filed within 30 days of entry of judgment); Davis v. State, 274 Ga. 865 (561 SE2d 119) (2002) (motion to withdraw guilty plea must he filed in term of court in which defendant was sentenced; otherwise, only available through habeas corpus proceedings).\n\n", "ocr": true, "opinion_id": 7871421 } ]

[ "276 Ga. App. 249", "622 S.E.2d 915" ]

[ { "author_str": "Miller", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMiller, Judge.\nBilly Buff pled guilty to the offense of unauthorized possession of a weapon by an inmate and was sentenced to serve three years concurrent with the sentence he was already serving. He appeals from the denial of his motion to withdraw his guilty plea. We affirm.\n“It is well settled that after a sentence is pronounced, as here, permission to allow the withdrawal of a guilty plea lies within the trial court’s sound discretion, and the court’s decision will not be disturbed unless that discretion is manifestly abused.” (Citations and punctuation omitted.) Sibley v. State, 249 Ga. App. 664 (550 SE2d *250104) (2001). In his sole enumeration of error, Buff argues that the trial court erred in denying his motion to withdraw based on his current preference for a jury trial. He also contends that the substitution of a second public defender to represent him at the plea hearing confused him.\nDecided November 4, 2005.\nSamuel G. Oliver, Tina E. Maddox, for appellant.\nTom Durden, District Attorney, for appellee.\nBuff has not alleged that trial counsel was ineffective, and testified at the plea hearing that he was satisfied with the services of both public defenders and that he had discussed his case with both attorneys. Likewise, at no time did Buff inform the court that he wished to have the first public defender present at the hearing. Therefore, we cannot conclude that the trial court’s refusal to allow Buff to withdraw his guilty plea was a manifest abuse of discretion. See, e.g., Stephens v. State, 235 Ga. App. 756, 757-758 (510 SE2d 575) (1998) (defendant’s argument that he was confused at the plea hearing was without merit where the record revealed that he was aware of the rights he was waiving as well as the consequences of his plea); Battle v. State, 234 Ga. App. 143, 144 (2) (505 SE2d 573) (1998) (defendant cannot complain of the court’s failure to appoint him counsel of his own choosing when he did not request counsel of his own choosing).\n\nJudgment affirmed.\n\n\nBlackburn, P. J., and Bernes, J., concur.\n\n", "ocr": true, "opinion_id": 7871635 } ]

[ "151 N.W.2d 301" ]

[ { "author_str": "Teigen", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nTEIGEN, Chief Justice.\nThe respondent moved to dismiss this appeal on the ground that the Supreme Court has no jurisdiction. The motion is based on the ground that an appeal from a part of a judgment does not lie under § 28-27-32, N.D.C.C. The appellant resisted the motion and noticed an alternative motion to amend the notice of appeal to provide that the appeal is taken from the whole judgment, which motion was resisted by the respondent. Both motions were argued at the same time and this Court took the matter under advisement.\nIt appears from the pleadings that the appellant commenced this action against the respondent, seeking a money judgment, and premises his claim upon numerous transactions between the parties over a period of time, and alleges the defendant has failed and refused to account to the plaintiff for profits, as agreed. Both parties were plumbing contractors. It appears the appellant furnished to the respondent certain materials and money for use in its plumbing business, and it is alleged it was the agreement that the appellant and respondent would share equally in the profits of the respondent’s operation. The respondent admits a business arrangement, but denies it is indebted to the appellant, and counterclaims for money damages as the result of plaintiff’s conduct in relation to the arrangement between them. Included in such counterclaim are allegations in tort also based on the transactions that are the subject matter of the appellant’s claim. Both parties also asked for punitive damages in the same amount as prayed for general damages. The case was tried to the court without a jury. The trial court dismissed both the appellant’s complaint and the respondent’s counterclaim, and awarded costs to the respondent. A single judgment was entered. The respondent then served a copy of the judgment, together with notice of entry thereof, upon the appellant. Thereafter the appellant served and filed notice of appeal, which instrument was entitled Notice of Appeal, Specification of Errors at Law and Insufficiency of the Evidence. This instrument was, in part, in words as follows:\nYOU WILL PLEASE TAKE NOTICE That the plaintiff above named hereby appeals to the Supreme Court of the State of North Dakota from the judgment entered, docketed and filed in the above entitled action on the 3rd day of May 1966, in favor of the defendant and against the plaintiff for a dismissal of plaintiff’s complaint in the above entitled action and for taxable costs in the amount of $746.00 in favor of the defendant and against the plaintiff; that this appeal is only from that portion of the judgment dismissing plaintiff’s complaint and that portion of the judgment awarding the defendant costs against the plaintiff in the sum of $746.00.\nYOU WILL PLEASE FURTHER TAKE NOTICE That upon appeal the plaintiff does hereby demand a trial de novo of all questions of law and fact, *303and respectfully demands and requests a review and retrial of this case relating to plaintiff’s complaint, in the Supreme Court of the State of North Dakota.\nYOU WILL PLEASE FURTHER TAKE NOTICE That the plaintiff specifies the following errors of law and particulars in which the evidence is insufficient to support the judgment and decree herein and the particulars in which the evidence is sufficient to support a reversal of the judgment herein dismissing plaintiff’s complaint.\nThen follow specifications of claimed errors at law and of insufficiency of the evidence.\nThe parties stipulated waiving the undertaking for costs on appeal and supersedeas bond on appeal. The appellant then took the other required steps to bring the cause before this Court for review. Before the case was reached on the calendar, the respondent noticed its motion to dismiss the appeal on the ground of jurisdictional defect.\nWe must first consider the respondent’s motion to dismiss, because if the notice of appeal was insufficient to vest jurisdiction in this Court, we have no jurisdiction to consider the appellant’s motion to amend its notice of appeal.\nThe plaintiff has apparently taken the appeal and perfected the same in this Court upon the theory the judgment entered in the trial court was separable and divisible; that it might appeal from that portion of the judgment which was entered on its ■complaint without submitting the whole cause for a retrial in this Court. The wording of the notice of appeal, heretofore quoted, makes this clear. Furthermore, it also seeks a trial de novo limited to a review and retrial relating to plaintiff’s complaint. The specifications of error, made a part of the notice of appeal, are also directed to the claim it was error to dismiss the plaintiff’s complaint.\nUnder the circumstances we are of the opinion that this Court has no jurisdiction to try the cause anew.\nThe only authority possessed by the Supreme Court to try cases anew is that conferred by § 28-27-32, N.D.C.C. Clauson v. Olson, 79 N.D. 858, 60 N.W.2d 198 (1953); First National Bank of Crary v. Bremseth, 60 N.D. 401, 234 N.W. 758; Tronsrud v. Farm Land & Finance Co., 18 N.D. 417, 121 N.W. 68; Mapes v. Metcalf, 10 N.D. 601, 88 N.W. 713; Littel v. Phinney, 10 N.D. 351, 87 N.W. 593.\n It is clear that the judgment, as entered, was a single indivisible judgment denying relief to both the plaintiff and the defendant, and this appeal is from only that part with which the appellant is dissatisfied, and it seeks a review in this Court of only so much of the case as pertains to that part of the judgment. It is well settled that the Supreme Court has no jurisdiction to review or retry an action tried and appealed under § 28-27-32, supra, unless the entire judgment appealed from is before us for final disposition. Clauson v. Olson, supra; First National Bank of Crary v. Bremseth, supra; Marquette Nat. Fire Ins. Co. v. McCutcheon, 54 N.D. 596, 211 N.W. 433; Hoellinger v. Hoellinger, 38 N.D. 636, 166 N.W. 519; Tronsrud v. Farm Land & Finance Co., supra; Crane v. Odegard, 11 N.D. 342, 91 N.W. 962; Mapes v. Metcalf, supra; Prescott v. Brooks, 11 N.D. 93, 90 N.W. 129.\n The appellant cites Montana-Dakota Utilities Co. v. Amann, 81 N.W.2d 628 (N.D.1957), in which this Court allowed an appeal taken from a part of the judgment and a part of an order denying a new trial. Section 28-27-05, N.D.C.C., provides that an appeal must be taken by serving a notice of appeal and filing the same in the office of the clerk of court, and which, among other things, must state whether the appeal is “from the whole or a part” of the judgment or order appealed from, and if from a part only, specifying the part appealed *304from. This Court in that case held that the statute is an express authorization of an appeal from a part of a judgment and a part of an order, but held that the statute allows such an appeal from a part thereof only if that part is severable from the remainder. It then laid down the test as to whether the part of a judgment or order appealed from is severable. It is stated in the syllabus as follows:\nThe test as to whether a part of a judgment and order appealed from is so interwoven with other provisions as to preclude an independent examination of the part challenged is whether the matters or issues embraced therein are the same as, or inter-dependent upon, matters or issues which' have not been attacked.\nThe Court in Amann found when the appeal was from a judgment in an eminent domain action tried to a jury to establish damages, and the award for damages complained of, was to the remainder of the farming unit apart from the taking of the fifty-foot easement that the two were sev-erable and divisible. The holding in that case is not applicable to the case at bar. The plaintiff’s complaint, and the defendant’s counterclaim in the instant case, are so interwoven as to preclude an independent examination of the part challenged without consideration of the issues embraced in the other. The basis of the counterclaim arose out of the same transactions as the plaintiff’s claim; it was a compulsory counterclaim under Rule 13(a), N.D.R.Civ. P. A determination of one cannot be made without consideration of the issues alleged in the other. The single judgment dismisses both. It follows that the appeal must be dismissed.\nThe appellant’s motion to amend the notice of appeal must be denied. The failure to appeal from the whole of an indivisible and inseparable judgment is a jurisdictional defect. First National Bank of Crary v. Bremseth, supra; and Marquette Nat. Fire Ins. Co. v. McCutcheon, supra. The judgment in this case was entered on May 3, 1966, and notice of entry served the same day. The notice of appeal was served on October 25, 1966. The motion to amend the notice of appeal was made on May 17, 1967. Thus the application to amend was made long after the time for appeal from the judgment had expired.\nFor the reasons herein stated it is ordered that the appeal be dismissed and the motion to amend the notice of appeal be denied.\nSTRUTZ, ERICKSTAD, KNUDSON and PAULSON, JJ., concur.\n", "ocr": true, "opinion_id": 7871871 } ]

[ "279 Ga. App. 765", "633 S.E.2d 362" ]

[ { "author_str": "Blackburn", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBlackburn, Presiding Judge.\nIn Auto-Owners Ins. Co. v. Karan, Inc.,1 we reversed the trial court’s denial of summary judgment to Auto-Owners Insurance Company in its declaratory judgment action to determine insurance coverage. The Supreme Court granted certiorari and, in Karan, Inc. v. Auto-Owners Ins. Co.,2 reversed our decision. We therefore vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.\n\nJudgment affirmed.\n\n\nRuffin, C. J., Andrews, R J., Barnes, Mikell, Adams and Bernes, JJ., concur.\n\n\n Auto-Owners Ins. Co. v. Karan, Inc., 272 Ga. App. 620 (612 SE2d 920) (2005).\n\n\n Karan, Inc. v. Auto-Owners Ins. Co., 280 Ga. 545 (629 SE2d 260) (2006).\n\n", "ocr": true, "opinion_id": 7871910 } ]

[ "231 N.W.2d 773" ]

[ { "author_str": "Pederson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPEDERSON, Judge.\nCASE SUMMARY\nThis is an appeal from the revocation by the district court of its order theretofore issued allowing costs of appeal to be taxed by the Ward County clerk of court in favor of the defendant-appellant and against the plaintiff-appellee. Oral argument was waived.\nFACTS\nFor the third time these parties are before us on matters arising out of a collision on U. S. Highway 52 on the evening of June 8, 1972, which resulted in the death of Mitchell Zietz. The first decision is found as State v. Hagge, 211 N.W.2d 395 (N.D.1973), and the second is State v. Hagge, 224 N.W.2d 560 (N.D.1974). The State was successful on the first appeal and Hagge was successful on the second appeal. Both cases were appeals from rulings in criminal trials.\nCosts on appeal are not mentioned in either opinion. The printed form used by this court, labeled “Mandate” and attached to the opinions issued, contains the following:\n“AND IT IS FURTHER CONSIDERED AND ADJUDGED, That have and recover of the costs and disbursements on this appeal expended, to be taxed and allowed in the District Court.”\nThe mandate attached to each of the Hagge opinions had all of the above-quoted language crossed out by typewriter. The record before us does not show whether the State, as the successful party, entered or tried to enter costs in the district court against Hagge after the first appeal.\nAfter the second appeal, Hagge, as the successful party, made a motion for an order allowing costs and disbursements upon appeal, pursuant to Rule 39(e), N.D.R. App.P. After first granting Hagge’s motion, the trial court, upon reconsideration, ruled that costs are not taxable against the State and revoked the previous order. This third appeal was then taken by Hagge.\nISSUES\nBoth parties agree that there is only one issue, to wit: Is Marvin Hagge entitled to his costs on appeal under Rule 39, N.D.R. App.P.?\nDECISION\nRule 39, N.D.R.App.P., patterned after Rule 39, Federal Rules of Appellate Procedure, was adopted by an order of the Supreme Court on December 13, 1972, effective March 1, 1973. In order to understand the intent of Rule 39 and its application to a criminal appeal, it is necessary to examine the historical background of the Rule.\nPrior to the Rule, costs in criminal appeals were rarely awarded to either the State or the defendant, regardless of the outcome of the appeal. 20 Am.Jur.2d, Costs, § 100, states the general rule to be:\n“Costs in criminal prosecutions are unknown at common law; their recovery in any criminal case depends wholly upon statutory provisions therefor.”\n20 C.J.S. Costs § 435, uses the language:\n“ * * * it is the rule as well in criminal as in civil cases that the recovery and allowance of costs rest entirely on statutory provisions — that no right to or liability for costs exists in the absence of statutory authorization.”\n*775Our examination of the rules and statutes applicable prior to March 1, 1973 (Rules of Practice in Causes in the Supreme Court of North Dakota, 76 N.D. Reports, Rules 17,18 and 19; and Chapter 29-28, N.D.C.C.), fails to disclose any specific rule or statute allowing costs on appeal in a criminal matter. It presumably could be argued that Rule 18 left an inference that in both civil and criminal appeals, “unless otherwise ordered by the court in the opinion or remittitur, costs * * * (for briefs) shall be allowed the prevailing party * *\nThe only case referred to us by Dakota Digest, Costs (on appeal in criminal cases), key number 317, is that of State v. Richardson, 16 N.D. 1, 109 N.W. 1026 (1906), which was not an appeal of a criminal case but an appeal from a statutory removal proceeding which specifically provided for costs. No other pertinent cases are called to our attention by the parties and we have found none.\nNew rules of appellate procedure were proposed by the State Bar Association in a petition to the Supreme Court of North Dakota, dated July 1,1971. Costs on appeal were provided for in proposed Rule 23 as follows:\n“RULE 23. COSTS\n“(a) To Whom Allowed. Unless otherwise provided by law, (1) if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the court; (2) if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; (3) if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; and (4) if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the Court.\n“(b) Costs on Appeal Taxable in the Trial Court. Costs incurred in the preparation and transmission of the record, the cost of the reporter’s transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal, the reasonable and necessary costs of preparing briefs under the rules (presumed to be $100.00 for appellant’s brief and $75.00 for respondent’s brief), and the fee for filing the notice of appeal shall be taxed in the trial court as costs of the appeal in favor of the party entitled to costs under this rule.\n“(c) Costs on Appeal. Taxable in the Supreme Court. In original proceedings before the Court costs, as applicable in (b) above, may be taxed by the Clerk in favor of the party entitled to costs.”\nAn earlier copy, labeled “Draft # two”, was submitted to the court by the Appellate Procedure Subcommittee of the Procedure Committee, with a letter dated March 10, 1970, from its chairman, J. Philip Johnson, in which he states, in part:\n“Some states follow separate rules of civil and criminal appellate procedure. It was determined that we would attempt to follow the federal rules in incorporating both in one set of rules.”\nRule 23 of Draft # two reads as follows:\n“RULE 23. COSTS\n“(a) To Whom Allowed. Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the court.\n“(b) Costs for and Against the State of North Dakota. In cases involving the State or an agency or officer thereof, if an award of costs against the State is authorized by law, costs shall be awarded in accordance with the provisions of subdivision (2); otherwise, costs shall not be awarded for or against the State.\n*776“(c) Costs of Briefs, Appendices, and Copies of Records. The cost of printing or otherwise producing necessary copies of briefs and appendices shall be taxable in this Court at actual and reasonable costs incurred. The cost of preparing briefs under the rules shall be presumed to be not less than $100.00 for the appellant and $75.00 for the appellee. A party who desires such costs to be taxed shall state them in an itemized and verified bill of costs which he shall file with the clerk, with proof of service, within 14 days after the entry of judgment.\n“(d) Clerk to Insert Costs in Mandate. The clerk shall prepare and certify an itemized statement of costs taxed in this Court for insertion in the mandate. If the mandate has been issued before final determination of costs, the statement, or any amendment thereof, may be added to the mandate at any time upon request of the clerk of this Court.\n“(e) Costs on Appeal Taxable in the District Courts. Costs incurred in the preparation and transmission of the record, the cost of the reporter’s transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal, and the fee for filing the notice of appeal shall be taxed in the district court as costs of the appeal in favor of the party entitled to costs under this rule.”\nThe court records fail to disclose the reasons why the provision relating to costs for and against the State of North Dakota was omitted from the petition to the Supreme Court.\nThe proposed rules were thereafter adopted. Rule 23 became Rule 39 of N.D.R. App.P., to conform to the Federal Rules of Appellate Procedure. There is no provision in Rule 39 comparable to proposed Rule 23(b) (Draft # two) or to Rule 39(b) of the Federal Rules. Rule 39 of the N.D.R. App.P. now reads as follows:\n“Rule 39\n“COSTS\n“(a) To whom allowed. Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered ; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; and if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the court.\n“(b) [Reserved for future use.]\n“(c) [Reserved for future use.]\n“(d) [Reserved for future use.]\n“(e) Costs on appeal taxable in the trial court'. Costs incurred in the preparation and transmission of the record, the cost of the reporter’s transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal, the reasonable and necessary costs of preparing briefs under the rules (presumed to be $100 for appellant’s brief and $75 for appellee’s brief), and the fee for filing the notice of appeal shall be • taxed in the trial court as costs of the appeal in favor of the party entitled to costs under this rule.\n“(f) Costs taxable in the supreme court. In original proceedings before the court, costs as applicable in (e) above may be taxed by the clerk in favor of the party entitled to costs.” [Emphasis added.]\nSince the adoption of these rules, this court has decided forty criminal appeals. On only one occasion did this court refer in the decision itself to Rule 39 of the N.D.R.App.P., that being the case of State v. Mayhew, 207 N.W.2d 330 (N.D.1973), wherein the court, at 333, said:\n*777“Therefore we direct the clerk of this court to enter a judgment, * * * and that no costs be taxed against either party under Rule 39 of the N.D.R.App.P.”\nThe mandate in Mayhew made no affirmative statement concerning costs but had the same cost provisions crossed out by typewriter as was done in both Hagge opinions, and as was done in thirty-five of the other thirty-seven cases decided by this court after March 1, 1973. The two exceptions were cases in which there were certified questions of law and the standard mandate form was not used, and, in which cases, the mandate affirmatively stated that neither party was to be allowed costs.\nWhen this court orders that no costs shall be allowed in a criminal case, the clerk of this court follows the standard practice of crossing out the printed mandate provisions allowing costs. The same procedure has been followed since March 1, 1973, regardless of whether the State or the defendant has been the successful party on appeal and regardless of whether the State is furnishing counsel and all other costs for the defendant or the defendant pays for such expenses.\nRecognizing the universal principle that, at common law, costs, as such, were unknown in a criminal case, North Dakota’s criminal statutes have long provided for costs at the trial level.\nA number of states have provided for costs on appeal in criminal cases by statute, e. g.:\nPennsylvania [see Commonwealth v. Trunk, 320 Pa. 270, 182 A. 540 (1936)]\nWashington [see State v. Crockett, 159 Wash. 303, 293 P. 287 (1930)]\nMassachusetts [see Connor v. Commonwealth, 296 N.E.2d 172 (Mass.1973)]\nMichigan [see People v. Smith, 334 Mich. 10, 53 N.W.2d 595 (1952), and People v. Willis, 1 Mich.App. 428, 136 N.W.2d 723 (1965)]\nMissouri [see Cramer v. Smith, 350 Mo. 736, 168 S.W.2d 1039 (1943)]\nWe hold that Rule 39(a), N.D.R. App.P., requires an order by this court, either in the decision or in the mandate, if the costs are not to be assessed as specified in Rule 39(a), and that the action by the clerk of this court of striking out of the mandate all provisions relating to costs is pursuant to, and constitutes a constructive order that costs are not to be allowed to either party according to the Rule itself.\nThe order of the trial court revoking its previous order allowing costs on appeal to Hagge is affirmed.\n' Neither party shall recover costs on this appeal.\nERICKSTAD, C. J., and PAULSON, SAND and VOGEL, JJ., concur.\n", "ocr": true, "opinion_id": 7872277 } ]

[ "240 N.W.2d 669" ]

[ { "author_str": "Legrand", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nLeGRAND, Justice.\nThis is an appeal by Mari Sherwood from that portion of a decree of dissolution of marriage which awarded custody of two minor children to Michael Albert Sherwood. We affirm the trial court.\nMari and Michael were married August 12, 1968. Their first child, Matthew John, was born February 9, 1970. The second, Candace Erin, was born April 9,1971. During the seven years the marriage lasted, they were separated four different times. The first three were for periods varying from several weeks to several months. The fourth culminated in the dissolution action now the subject of this appeal.\nMari and Michael each concedes the other loves the children. Each claims, however, to be the one in whose care the children would fare best. Witnesses for the respective parties were of little help, in most instances merely expressing personal preferences for one or the other as the desirable custodial parent.\nMari and Michael were critical of each other’s conduct in several areas. There was testimony about Michael’s drinking and his use of marijuana, a practice which Mari also engaged in occasionally. Michael decried Mari’s admittedly adulterous conduct with a man to whom she was contemplating marriage “as soon as he gets his divorce.”\nA detailed recitation of the testimony would be purposeless. Neither party has parental qualities markedly superior to the other. The children will have adequate care and equal affection no matter who prevails. Under the record before us, we conclude either Mari or Michael would be a proper custodian for the children.\n*670The legal principles governing these cases are well settled. Difficulty results only when those rules must be applied to particular facts. In Re Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974); In Re Marriage of Bowen, 219 N.W.2d 683, 688 (Iowa 1974); In Re Marriage of Dawson, 214 N.W.2d 131, 132 (Iowa 1974).\nIn this de novo appeal we have given consideration to the applicable factors the above authorities hold significant in determining custodial rights. We hold the trial court rightly decided the best hopes for the children dictate that Michael should have custody.\nThe judgment is\nAFFIRMED.\n", "ocr": true, "opinion_id": 7872316 } ]

[ "282 Ga. App. 466", "638 S.E.2d 874" ]

[ { "author_str": "Smith", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSMITH, Presiding Judge.\nIn this personal injury action, Linda Biddy contends she was injured by an unknown substance emanating from a City of Carters-ville truck. She appeals from the grant of summary judgment in favor of defendant City of Cartersville, asserting that the trial court erred in concluding that she failed to demonstrate that any act or omission of the City caused her alleged injuries or that those injuries were caused by the unknown substance. We need not reach the question of medical causation of Biddy’s injuries. She has failed to establish that the truck was owned or operated by the City and thus also has failed to establish that the City’s act or omission caused the incident. For this reason, we affirm the trial court’s grant of summary judgment.\nThe relevant facts are not in dispute. On December 3, 2001, Linda Biddy was driving her mother to a doctor’s appointment when she pulled up behind a truck stopped at a traffic light in the City of Cartersville. She testified on deposition that the truck was a large truck with a “kind of a tank that looked like a ... water tank.... And coming from the top of the back of the truck . . . was this large hose about twice the size of a dryer hose and it was black.” The light turned green and the truck did not move; Biddy thought the truck was stalled and put her head out the window to look. As she did so, she was gassed or sprayed by some unknown substance “like kind of a gray mist” that came out of the hose. Biddy was “horrified because I had heard a lot about, you know, stuff, things that’s overseas was coming over spraying everything.” Her eyes began to burn and her throat started closing up, and she started choking and coughing. When the mist cleared, she saw the truck going down the road “still throwing out that stuff.” She attempted to follow the truck, but “[h]e just kind of *467disappeared. He went off in traffic and we couldn’t keep up with him.” Biddy and her mother never saw the truck again.\nIn her deposition, Biddy testified that she believed the truck belonged to the City because it had “City of Cartersville” in large red letters on the door. When she reported the incident to the police, they referred her to an assistant director in the City’s maintenance department to try to locate the truck. Biddy testified that the director walked her around the truck yard and let her look at all the trucks, except for some that he said had not come in for the afternoon. She was unable to find the truck involved in the incident. She thought that a street sweeper she saw was “similar but not identical” to the truck involved, but she did not remember the “sweeper things” being on the truck. She also visited a county facility because the assistant director thought some City trucks might be there, but Biddy testified that the employees there “had the doors locked and I didn’t see anything.”\nHer doctor told her that her symptoms were an allergic reaction to something and they needed to find out what it was. She inquired of a named person in City Hall, who told her that it was only cement dust in the street, and Biddy testified that she replied, “I seen the cement but that wasn’t what sprayed me.” She complains of many symptoms as a result of the alleged exposure. She does not know what the gray material that came out of the hose was, “[mjaybe a cement truck that has the liquid cement in there, you know, that mixes up, or gas, some kind of gas or pesticide, street sweeper. I don’t know.” The trial court held a hearing and granted the City’s motion for summary judgment. From this order, Biddy appeals.\n“To recover damages based upon a defendant’s negligence, a plaintiff must show that the defendant’s acts or omissions proximately caused the injury.” (Citation and footnote omitted.) Govea v. City of Norcross, 271 Ga. App. 36, 44 (608 SE2d 677) (2004).\nOn motion for summary judgment, the movant may prevail by (1) submitting evidence which negatives an essential element of the plaintiffs case, or (2) showing the absence of evidence supporting the case as to any essential element. If this burden is discharged by the movant, the nonmovant cannot rest on its pleadings, but instead must come forward with specific evidence giving rise to a triable issue.\n(Citations, punctuation and footnote omitted.) AdvanceMe, Inc. v. Finley, 275 Ga. App. 415, 418 (3) (620 SE2d 655) (2005).\nGeorgia law is abundantly clear that the mere presence of lettering or a logo on the side of a vehicle, without more, is insufficient to establish liability.\n*468Neither evidence that a truck had “Southern Bell” lettered on it, nor evidence that a tractor-trailer truck had the letters “UPS” on it, nor evidence that a taxicab had “Checker Cab” lettered on it, nor proof that a locomotive engine had “Southern Railway Company” written on it, unsupported by any other evidence, was sufficient to authorize inferences of ownership or that the locomotive or vehicles were being operated by agents or employees of the defendants in the course of their employment. [Cits.]\nSellers v. Air Therm Co., 231 Ga. App. 305, 308 (498 SE2d 167) (1998). In that case, we concluded that a company’s name on the side of a van, a description of the driver, and a partial license number “is not specific evidence giving rise to a triable issue as to ownership and agency nor does such testimony give rise to a presumption of ownership or agency.” Id. at 307. This testimony does not establish that the driver was an agent or employee of the company, or that the driver was acting within the scope of his employment. Id. See also McCoy v. Southern Bell Tel. &c. Co., 172 Ga. App. 26 (322 SE2d 76) (1984) (testimony that plaintiff struck by white pickup truck with colored stripes, the words “Southern Bell Telephone,” and Southern Bell symbol did not make out prima facie case); Burns v. United Parcel Svc., 135 Ga. App. 890 (219 SE2d 624) (1975) (testimony that truck was painted in UPS colors and had UPS symbols on tractor and trailer insufficient to show prima facie case).\nBiddy argues that she has presented “circumstantial evidence” that the City was responsible for her injury, because the City had a truck in the area cleaning up some spilled cement mix bags. But Biddy presents only speculative conjecture rather than facts established by testimony in the record, and on some points her conjecture contradicts her own deposition testimony. For example, she contends in her brief that the broken cement bags were at fault, but she testified in her deposition that she saw “the cement but that wasn’t what sprayed me.” Moreover, she also testified that she ran over the cement herself and that the truck involved in the incident was going the wrong way to have been involved in cleaning up the cement because “[h]e would have had to run over it.” Biddy also argues in her appellate brief that the City may have some truck “designed to suck up leaves or debris” and that a wrong button pushed in the cab “would blow the material it had just sucked up back out through the hose.” But this is mere speculation, and unsupported by record testimony that the City owns such a truck so equipped or even that such a truck *469exists. “Allegations of facts appearing only in the briefs and unsupported by evidence in the record will not be considered on appellate review. [Cit.]” Hallisy v. Snyder, 219 Ga. App. 128, 129 (2) (464 SE2d 219) (1995).\nDecided November 17, 2006.\nDeming & Hoyt, Robert P. Hoyt, for appellant.\nArcher & Lovell, Edward K. Lovell, Charles E. Johnson III, for appellee.\nThe truck involved in this incident was never identified, and it was never shown that the City owned a truck such as that described by Biddy. Under these circumstances, Biddy has failed to meet her burden of proof that her alleged injuries were caused by an act or omission of the City of Cartersville. The trial court therefore correctly granted summary judgment to appellee.\n\nJudgment affirmed.\n\n\nRuffin, C. J., and Phipps, J., concur.\n\n", "ocr": true, "opinion_id": 7872538 } ]

[ "267 N.W.2d 727" ]

[ { "author_str": "Yetka", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nYETKA, Justice.\nAppeal by defendant from a judgment entered in district court. The trial court granted plaintiff’s motion for summary judgment and denied defendant’s motion for summary judgment. It found that the insurance policy issued by defendant to plaintiff’s decedent provided coverage for his death resulting from the crash of a private airplane which he was piloting. We reverse.\nPlaintiff was the beneficiary of a policy of insurance issued by defendant to plaintiff’s husband, Roger LaPlante. Roger La-Plante died in the crash of an airplane which he was piloting. Plaintiff made a claim under the policy, but defendant denied coverage on the ground that the policy expressly excluded benefits for injury resulting from the operation of a private noncommercial aircraft. The trial court found that the policy was ambiguous and construed it against the insurance company.\nThe issue raised is: Where an insurance policy excludes coverage for injury sustained as a consequence of occupying a private aircraft, are the death benefits under the policy payable when the insured dies in the crash of-a private aircraft?\nThe policy in question provided a $5,000 death benefit to the named beneficiary—\n“[w]hen injury results in the death of the Insured within ninety (90) days after the date of the accident * * *.”\nPart I defined injury as used in the policy as—\n*729“ * * * accidental bodily injury sustained while this policy is in force and resulting directly and independently of all other causes in loss covered by this policy.”\nPart VIII of the policy excluded benefits with respect to—\n“ * * * (2) [ijnjury sustained as a consequence of riding in any type of aircraft except as a passenger for transportation only in a licensed civilian passenger aircraft.”\nThe trial court found that the policy was ambiguous and held that the exclusion of benefits with respect to injury sustained as a consequence of operation of an aircraft did not exclude benefits for death as a consequence of operation of’ an aircraft. It relied on the well settled principle that ambiguities in insurance contracts are to be construed against the insurer, e. g., Caspersen v. Webber, 298 Minn. 93, 213 N.W.2d 327 (1973). The trial court noted that the boldfaced print advised the insured that he was purchasing accidental death benefits. It reasoned that the insurance company could as easily have excluded death and injury in exclusion (2) as it did in exclusion (1).1\nDefendant argues that the policy is unambiguous and that the court should not read an ambiguity into the policy in order to construe it against the insurance company. Bobich v. Oja, 258 Minn. 287, 104 N.W.2d 19 (1960). It argues that “injury” includes both fatal and nonfatal injuries in its ordinary meaning. It further contends that the explicit provisions of the policy exclude death benefits in this case. Its argument is as follows: “Injury” is defined as injury resulting in loss covered by the policy. Death benefits are payable for injury (resulting in loss covered by the policy) which result in death. Because injury resulting from the operation of aircraft does not result in loss covered by the policy, there has been no covered injury resulting in death.\nAt oral argument, plaintiff’s attorney admitted that if the policy contained language in the exclusion clause denying recovery for injury or other loss as a consequence of riding in a private aircraft, he would concede no recovery should be had. While the language referring to loss other than injury is not contained in the exclusion, the word loss is used in Part I, set forth above. Moreover, Part IV of the policy makes it clear that payment of death benefits occurs only when injury results in the death of the insured within 90 days. We thus find that there is no ambiguity in the policy. It is clear that the policy intended the word “injury” should include death from that injury.\nThe district court is therefore reversed and judgment is ordered entered for defendant.\n\n. Exclusion (1) excluded benefits with respect to “(1) Suicide while sane or insane; intentionally self inflicted injury; or self inflicted injury while insane.” (Italics supplied.)\n\n", "ocr": true, "opinion_id": 7872758 } ]

[ "274 N.W.2d 504" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nDefendant was found guilty by a Mower County District Court jury of charges of aggravated assault, Minn.St. 609.225, subd. 1, and criminal sexual conduct in the second degree, Minn.St. 609.-343(c) and (e)(i), and was sentenced by the trial court to a maximum term of 15 years in prison. Issues raised by defendant on this direct appeal relate to the legal sufficiency of the evidence and to the admission of certain evidence, primarily eyewitness identification testimony and evidence of statements defendant made to the police after he was arrested. No useful purpose *505would be served by reciting the facts or discussing the issues in detail. We conclude that the trial court did not commit prejudicial error in any of its evidentiary rulings and that the evidence of defendant’s guilt was strong.\nAffirmed.\n", "ocr": true, "opinion_id": 7872900 } ]

[ "281 N.W.2d 699" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nCertiorari on the relation of the employer and insurer to review a decision of the Workers’ Compensation Court of Appeals awarding employee compensation for continuing temporary total disability. Relators contend that the medical evidence did not justify a finding that employee’s disability continued after May 6, 1976. We affirm.\nEmployee sustained a work-related injury to her back on January 20, 1976, after lifting and carrying 30-pound cartons for several hours. Relators admitted liability and paid employee for temporary total disability' from January 21 to May 6, 1976. On that day they filed notice of intention to discontinue paying such benefits because Dr. Ronald Lampert, a board-certified orthopedic surgeon who examined employee on their behalf on April 21, 1976, had reported that she could return to her work. She objected to the discontinuance. After May 6, rela-tors paid employee compensation for a 10-pereent permanent partial disability of the back, based on the opinion of Dr. Richard Ivance, a board-eligible orthopedic surgeon who had been treating. employee, that she had sustained such a disability. On August 2, 1976, relators filed a notice of intention to discontinue all compensation payments. Employee again filed an objection.\nAt the hearing on employee’s objection to discontinuance, she testified that her back was very sore when she left work on January 20, 1976, her condition has not improved, and she has a constant backache, which becomes worse upon standing, walking, bending, and lifting. She said she intended to apply for Social Security disability benefits in July 1976 but was advised to apply for old age benefits because it would take considerable time to obtain disability benefits. She began receiving old age benefits in September 1976. She acknowledged that the employer had informed her that it would give her a job within whatever restrictions Dr. Ivance placed upon her and said that she had never sought to return to work because she could not perform any job because of back pain.\nDr. Ivance and Dr. Lampert agreed that employee had sustained a lumbosacral muscle strain. They agreed also that she did not have restricted motion or neurological abnormalities. Dr. Lampert said, however, that x-rays revealed an essentially normal lumbar back, while Dr. Ivance testified that they showed degenerative changes at the L5-S1 facet joints and some narrowing of *700the L3-4 joint space. The witnesses also expressed contrary opinions about employee’s ability to work. Dr. Lampert .thought that she could return to work; Dr. Ivance thought that she could not perform any job, basing his opinion primarily on her complaints of back pain. He also said that when a person has strained muscles in his back, increased activity often makes it worse.\nOn this evidence the compensation judge determined that employee had not been disabled since May 6, 1976, and that she had voluntarily retired in July when she applied for Social Security. Upon employee’s appeal, the court of appeals appointed Dr. Kenath Sponsel, also an orthopedic surgeon, as a neutral examiner.\nAfter examining employee on October 13, 1977, Dr. Sponsel submitted a report stating that x-rays showed narrowing at L2-3 and L3-4, some arthrosis at the facet of L5-S1, and a moderate amount of osteoporosis. His diagnosis was that she had hurt her back lifting at her work, has a functional change in her back as a consequence of that injury, and has a 15-percent permanent partial disability. He concluded that she could function subject to these disabilities, adding:\n“ * * * She could lift up to 10-15 pounds on occasion through the day. She could sit for half an hour to an hour. She might be able to stand and walk for 10-15 minutes at a time. * * * She might be able to do light assembly on sitting.”\nNeither employee nor relators requested cross-examination of Dr. Sponsel.\nThe court of appeals viewed the limitations Dr. Sponsel had enumerated as requiring the conclusion that employee is still temporarily totally disabled. Although relators claim that, on the contrary, Dr. Sponsel expressed the opinion that employee can work, the restrictions he placed on employee’s activities are so substantial that the court of appeals’ conclusion does not appear unreasonable. Dr. Sponsel’s findings and opinions were obviously more compatible with those of Dr. Ivance than those of Dr. Lampert. The court of appeals was required to evaluate the report of the neutral physician and to resolve the conflict in the opinions of the medical witnesses. Stotz v. Sabin Brothers, 257 N.W.2d 359 (Minn.1977). We are required to conclude that the finding that employee continues to be temporarily totally disabled has substantial support in the opinions of Dr. Ivance and Dr. Sponsel as well as in employee’s testimony.\nNor do we see any reason to interfere with the implicit finding that employee did not voluntarily retire. The evidence on that issue reasonably permitted an inference either way; therefore, the court of appeals’ determination must stand. Nelson v. Lutheran Mutual Life Insurance Co., 311 Minn. 445, 249 N.W.2d 445 (1976).\nEmployee is allowed attorneys fees of $350.\nAffirmed.\n", "ocr": true, "opinion_id": 7873025 } ]

[ "291 N.W.2d 678" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIt appearing that there is pending before this court a petition by the Administrative Director on Professional Conduct alleging that respondent Wegner has pled guilty in the United States District Court to the commission of a felony for which he has been sentenced to prison; and,\nIt further appearing that respondent has entered a stipulation by the terms of which he has waived his right to contest a petition for his immediate suspension;\nNOW, THEREFORE, IT IS ORDERED that respondent James L. Wegner is hereby suspended from the practice of law in the State of Minnesota pending final disposition of the petition for his discipline and until further order of the court.\n", "ocr": true, "opinion_id": 7873180 } ]

[ "298 N.W.2d 51" ]

[ { "author_str": "Otis", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOTIS, Justice.\nThis appeal from a declaratory judgment concerning the effect of state land use regulations on the development of a parcel of land was consolidated with an appeal from a condemnation award involving the same property, City of St. Paul v. Rein Recreation, Inc., Minn., 298 N.W.2d 46, released herewith. The district court determined that despite state land use regulations, appellants Rein Recreation, Inc. and Clayton G. Rein had a vested right to construct one high-rise apartment building on the property, but the right did not extend to a second high-rise included in the same plan. Additional facts are contained in the companion case.\nThe sole purpose of this declaratory judgment action was to fix appellants’ rights to develop their property, because the extent of those rights affected the market value of the real estate. However, because we have affirmed the condemnation award after reviewing all of the issues, we need not review this appeal since it no longer has any practical effect, In re Consolidation of Glendale with Savage, 288 Minn. 340, 180 N.W.2d 925 (1970). Accordingly it is hereby dismissed as moot.\nAppeal dismissed as moot.\nTODD, J., took no part in the consideration or decision of this case.\nAMDAHL, J., not having been a member of the court at the time of the argument and submission, took no part in the consideration of this case.\n", "ocr": true, "opinion_id": 7873297 } ]

[ "298 N.W.2d 792" ]

[ { "author_str": "Henderson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nHENDERSON, Justice.\nACTION\nThis is an appeal involving a garnishment action by Arthur F. Sigler (appellant), individually and as special administrator of the-estate of Vera Sigler, deceased, from an order of the trial court granting summary judgment in favor of St. Paul Fire & Marine Insurance Company, Robert Emery, and XYZ Corporation (appellees). The principal case is not on appeal. We affirm.\nFACTS\nOn March 29, 1975, Vera Sigler was injured in an automobile accident involving a vehicle owned by Thane, Inc., and driven by one of its employees. Vera Sigler and her husband, appellant, brought suit against Thane, Inc. and its employee (defendants) in August of 1975. On January 12, 1978, appellant and his wife stipulated with the defendants that judgment be entered for appellant and his wife in the amount of $35,000. It was further agreed between the parties that appellant and his wife would not execute a levy on any of the defendants’ property, but rather seek collection from Milbank Mutual Insurance Company, St. Paul Fire & Marine Insurance Company, and New Underwood Insurance Agency. Vera Sigler died soon thereafter and appellant was appointed special administrator of her estate. Due to Vera Sigler’s death, an amended agreement, similar to the agreement of January 12,1978, was subsequently entered into between the defendants and appellant.\nJudgments were entered against the defendants on October 3, 1978, and garnishment actions were commenced against ap-pellees and Milbank Mutual Insurance Company. Appellee Robert Emery managed the New Underwood Insurance Agency *793which was owned by appellee XYZ Corporation. New Underwood Insurance Agency was a general agency for appellee St. Paul Fire & Marine Insurance Company. Appel-lees filed disclosures under oath stating that they did not have possession or control of any property of the defendants nor were they in any way indebted to the defendants. In effect, appellees and Milbank Mutual Insurance Company denied the existence of any insurance policies issued by them covering defendants’ vehicle at the time the accident occurred which caused Vera Sigler’s injury. All appellees moved to dismiss appellant’s garnishment proceedings for failure to state a claim upon which relief could be granted. On July 6,1979, the trial court entered an order of summary judgment in favor of all appellees under authority of SDCL 15-6-12(b). Milbank Mutual Insurance Company moved for summary judgment which was granted by the trial court on July 6, 1979, from whence no appeal was taken.\nOn May 18, 1974, Kip Dunsmore, the president of Thane, Inc., applied to appellee Emery for insurance on a 1966 Ford pickup owned by Thane, Inc. A policy on this vehicle was thereafter issued by St. Paul Fire & Marine Company. Subsequently, the 1966 pickup was involved in an accident requiring extensive repairs and Dunsmore, on behalf of Thane, Inc., made a request to appellee that the vehicle no longer be insured. This was done. Dunsmore deposed that in October of 1974 he orally requested appellee Emery to reissue an insurance policy on the 1966 pickup, which had been repaired. Dunsmore also deposed that he had written and mailed a message to appel-lee Emery in October of 1974 stating that the 1966 pickup should be reinsured. Ap-pellee Emery deposed that he never spoke with Dunsmore regarding any reissuance of an insurance policy on the 1966 pickup, nor had he seen the aforementioned message until approximately six months after the pickup collision with appellant and his wife. No policy was ever produced which showed the 1966 pickup was insured on the date of the accident. Consequently, it is disputed whether or not the 1966 pickup was insured by appellee St. Paul Fire & Marine Insurance Company when appellant’s wife was injured.\nISSUE\nDid the trial court err in ordering summary judgment in favor of appellees so as to preclude them from being subjected to a garnishment action by appellant? We hold that it did not.\nDECISION\nGarnishment actions in South Dakota are governed by SDCL Ch. 21-18. SDCL 21-18-1 states:\nIn any action to recover damages founded upon contract, express or implied, or upon judgment or decree, or at any time after the issuing in any case of an execution against property and before the time when it is returnable, any creditor shall be entitled to proceed by garnishment in any court having jurisdiction of the subject of the action, against any person, including the state and any municipal or public corporation, and including any corporation organized or authorized to be organized by or under the laws of any state or of the United States, which has the power to sue or be sued who shall be indebted to or have any property, real or personal, in his possession or under his control belonging to such creditor’s debtor, in the cases, upon the conditions, and in the manner prescribed in this chapter. (Emphasis supplied.)\nSDCL 21 18-14 states:\nNo judgment shall be rendered upon a liability of the garnishee arising by reason of any money or other thing owing from him to the defendant, unless before judgment against the defendant it shall have become due absolutely and without depending on any future contingency, but judgment may be given for any money or other thing owing after it shall have become due absolutely and without depending on any contingency. (Emphasis supplied.)\n*794These statutes indicate that the following prerequisites are necessary before a garnishment action can occur: (1) the garnishee must be indebted to or have property in its possession or under its control belonging to a judgment debtor; or (2) the garnishee’s liability to the judgment debtor must be absolute and without dependence on any future contingency. The question for our determination, then, is whether ap-pellees have an absolute and noncontingent liability owing the judgment debtor, Thane, Inc.\nIn the past, this Court has strictly construed South Dakota’s garnishment statutes. See Schuler v. Johnson, 63 S.D. 542, 261 N.W. 905 (1935); Woodbine Savings Bank v. Yager, 58 S.D. 542, 237 N.W. 761 (1931).\nAppellant has cited several out-of-state cases supporting the proposition that garnishment is an appropriate procedure for the collection for damages from a judgment debtor’s liability insurer. Upon closer examination, however, these authorities are not beneficially persuasive for appellant. In Lajoie v. Central West Casualty Co., 228 Mo.App. 701, 71 S.W.2d 803 (1934), the court held that upon recovery for personal injury against one holding liability insurance, the insurer becomes the insured’s “debtor” and is liable to garnishment by a judgment creditor. In Lajoie, however, the dispute focused upon the scope of the insurance policy; there was no question that the insurance policy was in existence, as exists in the case at bar. Similarly, in Hinton v. Carmody, 186 Wash. 242, 60 P.2d 1108 (1936), the existence of the liability insurance policy was not in issue. “Under a liability policy, the obligation to pay arises as soon as liability against the insured is established.\" Id. at 1111 (emphasis supplied). Peninsula Insurance Company v. Houser, 248 Md. 714, 238 A.2d 95 (1968), also cited by appellant, dealt with the extent of coverage a garnishee’s insurance policy provided and not with the question of whether garnishment could be obtained on an insurer where a dispute exists as to the actual existence of insurance coverage. Appellant’s reliance upon Wilson v. Marshall, 277 Mich. 583, 269 N.W. 607 (1936), and Glick v. State Automobile Ins. Ass'n, 127 Neb. 350, 255 N.W. 57 (1934), is also misplaced. Both Wilson and Glick involved the primary issue of whether the judgment debtor is entitled to recover from the insurer garnishee under the terms of an existing policy.\nAppellant’s strongest authority, and the case which is extensively quoted from in his brief, is Zimek v. Illinois Nat. Casualty Co., 370 Ill. 572, 19 N.E.2d 620 (1939). In Zimek the garnishee insurer claimed that it was not subject to garnishment because the judgment debtor’s claim was contingent and unliquidated. The Illinois Supreme Court, in construing the applicable Illinois garnishment statute, found that a garnishment action was proper against the insurer despite the insurer’s claim it was not liable to the judgment debtor. A close inspection of the facts, however, renders appellant’s use of Zimek inappropriate. The denial of liability by the insurer in Zimek was based upon a provision in the insurance policy which only provided coverage to individuals using the vehicle with the permission of the insured. The insurer denied that the driver of the vehicle had the permission of the insured when the accident occurred. The actual existence of the insurance policy itself was never questioned. In reaching its decision, the Zimek court stated:\nA contingent claim is one where liability hinges upon some future event, which may or may not occur; it is dependent upon some condition as yet unperformed .... Where the amount due may be ascertained by computation or reference to the contract out of which the claim arises it is a liquidated claim for purposes of garnishment. (Emphasis supplied.)\n370 Ill. at 576, 19 N.E. at 623 (citations omitted). In the case at bar, the existence of an insurance policy is totally at issue. Appellant’s claim is contingent upon that policy being in existence. The basic fact is that appellee’s liability is dependent upon an as yet unperformed condition: the establishment, either through a lawsuit or other*795wise, of an absolute and noncontingent debt owing the judgment debtor from appellees.\nWe agree with the Illinois Appellate Court when it stated: “The claim which [the judgment creditor] endeavors to assert against [the garnishee insurer] is predicated upon an alleged breach of duty owed by [the garnishee insurer], is at best contingent upon proof of the requisite breach thereof[.]” Powell v. Prudence Mutual Casualty Co., 88 Ill.App.2d 343, 348, 232 N.E.2d 155, 158 (1967). Here, appellant’s act of garnishment is predicated upon a showing that the judgment debtor’s vehicle was in fact insured by appellees, hence, creating a noncontingent duty on the part of appellees to provide monetary restitution for the insured. The facts have not shown that such a duty exists. It should be noted, however, that our holding does not preclude the adjudication of liability an insurer-garnishee may have toward a judgment debtor under an existing policy. If an insurer-garnishee denies liability on the ground that a policy does not cover the accident which caused the loss, determination of liability between the insurer-garnishee and judgment debtor can occur in a garnishment proceeding brought by the judgment creditor. Bruins v. Anderson, 73 S.D. 620, 47 N.W.2d 493 (1951).\nAppellant has brought a garnishment action based upon an alleged liability which, as the facts and noted authorities indicate, is neither liquidated nor free of contingency. We decline to allow appellees to be subjected to garnishment proceedings under these facts as we do not believe that the South Dakota garnishment statutes are intended to allow such a searching determination of liability.\nThe summary judgment of the trial court in favor of appellee is affirmed.\nDUNN, MORGAN, and FOSHEIM, JJ., concur.\nWOLLMAN, C. J., dissents.\n", "ocr": true, "opinion_id": 7873316 }, { "author_str": "Wollman", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nWOLLMAN, Chief Justice\n(dissenting).\nI would reverse the order granting summary judgment on the ground that the fact situation here is sufficiently analogous to the facts in Bruins v. Anderson, 73 S.D. 620, 47 N.W.2d 493 (1951), and Murphy v. Hopkins, 68 S.D. 494, 4 N.W.2d 801 (1942), to permit the use of the garnishment procedure. I do not agree that in the past this Court has strictly construed our garnishment statutes. In Schuler v. Johnson, 63 S.D. 542, 261 N.W. 905 (1935), and Woodbine Sav. Bank v. Yager, 58 S.D. 542, 237 N.W. 761 (1931), the Court was concerned about the fact that the liability of the garnishee-defendant to the judgment debtor depended upon a future contingency. In the instant case, there is no future contingency in the sense of any requirement that additional events occur. All of the events that would support a determination of liability on the part of the insurer have already occurred. The determination whether an insurance policy existed in the legal sense is no more of a contingency than the determination that was necessary to establish liability under an existing policy in the Bruins and Murphy cases, supra.\n", "ocr": true, "opinion_id": 7873317 } ]

[ "287 Ga. App. 23", "651 S.E.2d 344" ]

[ { "author_str": "Barnes", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBarnes, Chief Judge.\nGeorge Brimidge appeals his conviction for aggravated assault. Brimidge contends (1) the trial court erred by denying Brimidge’s request for a jury charge regarding a defense of habitation; (2) the trial court improperly commented on the evidence by telling the jury that the parties agreed that there was no gun involved in the incident; (3) the trial court erred in not giving a jury charge on reckless conduct, a lesser included offense; and (4) he received ineffective assistance of counsel. Because we find that the trial court improperly commented on the evidence, we reverse and remand for a new trial.\nThe evidence shows that an altercation occurred after Brimidge and the victim went to a party together in May 1997, where both men drank. Brimidge had the victim’s gun until the victim asked for it in the car on the way to Brimidge’s residence. After the victim entered Brimidge’s residence, the altercation intensified, and the victim was stabbed inside Brimidge’s residence, later stating he stabbed the victim in self-defense.\n1. Brimidge contends the trial court erred by denying his request for a jury charge of defense of habitation. In reviewing the denial of a requested jury charge, we must determine whether the charge *24sought was confusing, inappropriate, or not authorized by the evidence, and if it is, the trial court does not err in denying the requested instruction. Buckalew v. State, 249 Ga. App. 134, 138 (5) (547 SE2d 355) (2001). The requirements for a defense of habitation are as follows:\nA person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:\n(1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence.\n(Emphasis supplied.) OCGA§ 16-3-23. Brimidge argues that because the victim lacked permission to be in the room and was intoxicated, cursing, and confrontational, the victim was behaving in a manner consistent with OCGA § 16-3-23 (1). Because the evidence did not authorize the charge of defense of habitation, we find the trial court properly denied Brimidge’s request for that charge.\nBrimidge cites Leverette v. State, which held that force is justified against one who “intends in a riotous and tumultuous manner to enter the habitation of another for the purpose of assaulting or offering personal violence.” (Emphasis supplied.) Leverette v. State, 104 Ga. App. 743, 745 (3) (122 SE2d 745) (1961). Brimidge, unlike Leverette, did not allege that the victim was attempting to enter a habitation. See also Stobbart v. State, 272 Ga. 608, 611 (4) (533 SE2d 379) (2000) (holding that OCGA § 16-3-23 “is clearly concerned with the use of deadly force to counter entry, or attempted entry, into the home”). Brimidge testified that after he and the victim ascended to Brimidge’s room, Brimidge left his door open, and the victim came in. In denying the requested charge of defense of habitation, the trial court properly noted the lack of evidence of a struggle with the victim trying to get into Brimidge’s residence.\nBrimidge also cites Fannin v. State in support of his argument, noting that Fannin allowed the victim in that case into his home, but after repeatedly asking the victim to leave, believed the victim was threatening him and shot the victim. Fannin v. State, 165 Ga. App. 24, *2525 (299 SE2d 72) (1983). We reversed the trial court’s refusal to give a charge on the defense of habitation to Fannin, but Brimidge fails to note that the evidence in Fannin showed “that the deceased used coercion and threats to gain entry into the defendant’s home.” Id. No evidence was presented in the instant case to suggest that the victim used coercion or threats to gain entry into Brimidge’s residence.\n2. Brimidge contends the trial court improperly commented on the evidence. During their deliberations, the jury sent out a question asking whether “both sides agree that the gun, ‘the .22,’was in the car at the time of the incident.” Brimidge objected to the court answering the question, stating, “the question draws attention to something that they can use their recollection on.” The court noted that Brimidge “agreed that it was in the car,” having provided “no evidence to the contrary.” Finding that Brimidge had not “take[n] issue with that fact,” the court answered the jury in the affirmative. OCGA § 17-8-57 reads, in pertinent part, “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” Brimidge argues that because self-defense was a central issue in this case, and because the presence of a gun was relevant to the jury’s consideration of this defense, it was error for the judge to express the opinion that there was no gun present during the altercation.\nThe State notes that in Miller v. State, the Supreme Court of Georgia found no error when the trial court included undisputed facts in its charge: that the defendant had held a pistol, pointed it at the deceased, and fired bullets from it which killed the deceased. Miller v. State, 151 Ga. 710 (108 SE 38) (1921). The State also cites McFarland v. State, 109 Ga. App. 688 (137 SE2d 308) (1964), which offers more guidance than Miller. The Miller court found no error in a comment by the trial court after weighing that comment “[u]nder a fair construction of all of the evidence and the prisoner’s statement.” Miller, 151 Ga. at 710. Only after considering all the relevant evidence, including Brimidge’s defenses, can we decide whether the trial court erred in its statement regarding what the evidence had proven. In conducting this test, we consider the McFarland factors.\nFirst, we must determine whether the trial court’s statement in the instant case issued from contested evidence. Second, we will consider whether more than one inference is possible from the evidence. Third, we will determine whether the presence of the gun was undisputed, but not admitted, and goes to the essential issue of the guilt or innocence of Brimidge. We held in McFarland that it is error for a court to state facts issuing from contested evidence. McFarland v. State, 109 Ga. App. at 690. We also held in McFarland that it is error for the trial court to assume as a fact undisputed, but *26not admitted, evidence “if it goes to the essential issue of the guilt or innocence of the accused,” but it is not error for a trial court to assume a fact “not denied except by the general plea of not guilty and which does not go to the essential issue of guilt or innocence.” (Emphasis supplied.) Id. We note another exception to the general rule that a trial court may not express an opinion regarding what has been proven in a case: where only one inference from the evidence is possible, it is not improper for the court to assume the fact to be true. Green v. State, 129 Ga. App. 27, 28 (2) (198 SE2d 343) (1973). By considering these factors, we satisfy the requirement set forth in Miller that we weigh the comment made by the trial court “[u]nder a fair construction of all of the evidence and the prisoner’s statement.” Miller, 151 Ga. at 710.\nOur first query is whether the presence of the gun during the altercation at Brimidge’s residence was contested. The victim testified that his gun was in his car during the altercation in Brimidge’s residence. Brimidge did not testify that the gun had been anywhere other than in the victim’s car. It appears from the record, therefore, that Brimidge did not contest the location of the gun during the altercation, so the trial court’s statement did not issue from contested evidence.\nOur second query is whether only one inference from the evidence was possible. The victim’s uncontested testimony was that his gun was in his car during the altercation, but the credibility of that testimony was squarely within the jury’s factfinding duties. See Hammontree v. State, 283 Ga. App. 736, 737 (1) (642 SE2d 412) (2007) (holding that judging the credibility of a witness is the job of the jury). The victim admitted in his testimony that he sold drugs, that he had a gun, and that he had been snorting cocaine and drinking on the night of the altercation. The jury was free to believe or disbelieve some or all of the victim’s testimony. Therefore, more than one inference from the evidence was possible. The trial court’s statement did not fall into the exception, noted in Green, to the general rule that a trial court may not express an opinion regarding what has been proved in the case.\nOur third query is whether the undisputed, but not admitted, absence of the gun goes to the essential issue of Brimidge’s guilt or innocence. Brimidge testified that he stabbed the victim in self-defense. The use of force “intended or likely to cause death or great bodily harm” is justified only if the defendant “reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person.” OCGA§ 16-3-21 (a). Whether the evidence showed Brimidge had that reasonable belief was a question for the jury. See Windham v. State, 278 Ga. App. 663, 666 (629 SE2d 837) (2006) (holding that it is for a jury to decide whether the evidence *27supports the existence of a reasonable belief that self-defense required deadly force). The trial court charged the jury that the State had the burden of proving every essential element of the crime charged and the burden of disproving any defenses beyond a reasonable doubt. The trial court charged the jury regarding the details of the defense of justification. The location of the gun was linked to the defense of justification and to the State’s burden of disproving this defense to the satisfaction of the jury. We find that the location of the gun goes to the essential issue of Brimidge’s guilt or innocence, and therefore the trial court’s statement regarding the gun’s location was error.\nDecided July 10, 2007\nReconsideration denied July 31, 2007.\nThomas S. Robinson III, for appellant.\nPaul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Marc A. Mallon, Assistant District Attorneys, for appellee.\nWe briefly address the issue of the alleged source of the jury’s confusion. When the motion for a new trial was being heard, the trial court noted its belief that the jury’s confusion arose when counsel for the defense stated in his closing argument, “Mr. Turner was drinking and driving. Mr. Turner had a gun.” The trial court expressed its exasperation “with juries not having the facts and running down rabbit trails.” The trial court intended “to clear up that rabbit trail” with its statement regarding the location of the victim’s gun. The court went on to admit that instead of commenting on the location of the gun, “I could have said, ‘ladies and gentlemen, I’m charging you again, anything the lawyer says is not evidence . . . you [must] remember the evidence.’ ” See, e.g., Sanders v. State, 156 Ga. App. 44, 45 (3) (274 SE2d 88) (1980) (holding a correction by the trial court of defense counsel’s misstatement of evidence to be proper where the jury was instructed to consider only the evidence of both parties and to credit the parties as it saw fit).\n3. Brimidge further contends that the trial court erred in not giving a jury charge on reckless conduct, and he contends he received ineffective assistance of counsel inasmuch as trial counsel failed to request a charge on reckless conduct. In light of our holdings above, we need not reach these issues.\n\nJudgment reversed and case remanded for new trial.\n\n\nMiller, J., concurs. Smith, P. J., concurs in the judgment only.\n\n", "ocr": true, "opinion_id": 7873674 } ]

[ "320 N.W.2d 522" ]

[ { "author_str": "Fosheim", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nFOSHEIM, Justice.\nAppellant brought this action to recover for work performed for appellee. The jury awarded appellant $2,400. Appellee’s motion for judgment notwithstanding the verdict was granted and a judgment was entered accordingly. This appeal is from the order and judgment notwithstanding the verdict. We affirm.\nAppellant is a family corporation that operates heavy equipment to clear land and do earthwork. The firm’s two full time employees, who also operate the equipment, are the president, Ronald J. Lanning, and *523his son, Daniel J. Lanning, the vice president. Both corporate officers had numerous conversations with appellee about clearing and sloping 60 acres of appellee’s farmland along the Missouri River. The parties subsequently entered into a contract whereby appellant agreed to clear appellee’s land for $300 per acre or a total price of $18,000.1\nAppellant’s complaint asked for a recovery of $2,953.50 for sloping the land, claiming that this was extra work in addition to the contract work.2 Appellant contends there was credible evidence of an independent oral contract supporting the verdict. The court instructed the jury to determine whether appellant’s claimed extra work was outside of the written contract, and if so, whether the parties had specifically agreed that appellant was to be paid for such extra work over and above the written contract’s consideration.\nIt is, however, for the court to determine the preliminary question of whether the parties intended to have the written contract supersede the alleged oral agreement. Harrison v. Soffer, 221 Pa.Super. 275, 289 A.2d 752 (1972); Gianni v. R. Russel & Co., 281 Pa. 320, 126 A. 791 (1924); Restatement (Second) of Contracts §§ 209(2), 210(3) (1981); 3 A. Corbin, Cor-bin on Contracts § 595 (1960) [cited herein as Corbin]; McCormick, The Parol Evidence Rule as a Procedural Device for Control of the Jury, 41 Yale L.J. 365 (1931-32); see Barnes v. Hill City Lumber Co., 34 S.D. 158, 147 N.W. 775 (1914).3 To determine this preliminary question the court may examine extrinsic evidence of the circumstances surrounding the making of the agreement. IX J. Wigmore, Evidence, § 2430 (Chad-bourn rev. 1981) [cited herein as Wigmore]; Corbin § 582; 4 S. Williston, A Treatise on the Law of Contract, § 633 (3rd ed. 1961) [cited herein as Williston]; see Unke v. Thorpe, 75 S.D. 65, 59 N.W.2d 419 (1953); compare Farmers Elevator Co. v. Swier, 50 S.D. 436, 210 N.W. 671 (1926) and Eggers v. Eggers, 79 S.D. 233, 110 N.W.2d 339 (1961) with Janssen v. Tusha, 66 S.D. 604, 287 N.W. 501 (1939) and McCollam v. Littau, 307 N.W.2d 144 (S.D.1981). In examining these circumstances to determine whether the written agreement supersedes any oral agreement the Court must determine whether the writing concerned itself with *524the same matter as the oral negotiations or stipulations did. See SDCL 53-8-5; Wig-more.\nWhen does the oral agreement come within the field embraced by the written one? This can be answered by comparing the two, and determining whether parties, situated as were the ones to the contract, would naturally and normally include the one in the other if it were made. If they relate to the same subject-matter, and are so interrelated that both would be executed at the same time and in the same contract, the scope of the subsidiary agreement must be taken to be covered by the writing. This question must be determined by the court.\nGianni v. R. Russel & Co., 126 A. at 792; see Seitz v. The Brewers Refrigerating Machine Co., 141 U.S. 510, 12 S.Ct. 46, 35 L.Ed. 837 (1891); Kindley v. Williams, 76 S.D. 225, 76 N.W.2d 227 (1956); Taylor v. More, 195 Minn. 448, 263 N.W. 537 (1935); Corbin § 583; Williston § 638.\nWhen we review the circumstances surrounding the making of this agreement it appears the parties had always discussed both the clearing and the sloping as the work that was to be done. Daniel Lanning testified that the steepness of the river banks made the land unsuitable for farming. Ronald Lanning testified that when the trees were cleared, some of the river bank was to be pushed into the holes left from removing the smaller trees while the bank was to be pushed over the larger tree stumps that could not be removed. Appel-lee wanted this earthwork done so that the excellent soil could be farmed. The contract required that the work be completed by spring planting. All the oral negotiations preceding the contract focused on the single purpose of making the land suitable for farming. Bulldozing down the trees, resulting in tree root holes, alone would not render the land capable of being farmed. The Lannings were experienced equipment operators and must have known the nature of the work to be done.\nFinally, it was Ronald Lanning who suggested that the parties draw up a written contract for the work. Yet, Daniel Lanning testified that at the time the contract was signed he told appellee that the bank sloping was not included in the $18,000 contract price but was to be done by the hour. The Lannings testified that appellee agreed to this. Appellee, of course, disputed this. Moreover, the Lannings admitted that nothing more than this was ever discussed about the sloping. Neither the cost of sloping nor the method of payment were mentioned, both of which were terms included in the written contract. The completeness of the writing is in sharp contrast to the indefiniteness of the oral agreement appellant alleges. Would the same parties who had so carefully defined their obligations in a written contract also make such a formless oral agreement?\nFrom our review of the circumstances surrounding the negotiations of the written contract, the parties naturally and normally would have included any agreement to do sloping work in the written contract.4 Any oral stipulation for a separate consideration to perform the sloping work was merged into the written contract which superseded any such stipulations. See SDCL 53-8-5; McLaughlin Electric Supply v. American Empire Insurance Co., 269 N.W.2d 766 (S.D.1978).\nIn the usual case the function of the judge in determining the law of the case and the function of the jury as the fact finder are clearly divided. When a question within the province of the jury is presented we have said:\nTo reverse the judgment n. o. v., some substantial, credible evidence must be found in the record in support of the verdict. We will view that record in a light most favorable to the jury verdict giving [the non-moving party] the benefit *525of every available inference. Lytle v. Morgan, 1978, S.D., 270 N.W.2d 359; Meylink v. Minnehaha Co-op. Oil Co., 1938, 66 S.D. 351, 283 N.W. 161.\nMcGillivray v. Siedschlaw, 278 N.W.2d 796, 800 (S.D.1979). In the case at bar, however, the question of whether the oral agreement was superseded by the written contract was for the court. We still recognize that any conflicts in the evidence or questions of its sufficiency, generally, present determinations for the jury to make. Heiser v. Rodway, 247 N.W.2d 65 (S.D.1976). Appellee’s motion for a judgment notwithstanding the verdict was made not only on the ground that there was no evidence of an oral agreement for extra work beyond the writing, but also on the ground that any oral agreement that did exist was merged into the writing. The latter question was for the court to decide. The court must exercise its sound judicial discretion when it considers the question of merger and grants a motion for judgment notwithstanding the verdict. See Strain v. Shields, 63 S.D. 60, 256 N.W. 268 (1934). It did not abuse this discretion when it entered a judgment for appellee notwithstanding the verdict.\nThe order and judgment notwithstanding the verdict are affirmed.\nDUNN, MORGAN and HENDERSON, JJ., concur.\nWOLLMAN, C. J., dissents.\n\n.The contract, prepared by the parties apparently without any legal advice, provided as follows:\nCONTRACT\nAGREEMENT BETWEEN LANNING CONSTRUCTION, INC. AND ERNEST ROZELL-landowner.\nLanning Construction, Inc. agrees to clear 60 acres of timber for Ernest Rozell for the price of $300.00 per acre. The total price of clearing —$18,000.00, will be due and payable to Lan-ning Construction, Inc. on December 1st, 1980. Lanning Construction, Inc. will take down all trees and remove all shrubbery by machine (no hand picking up of small sticks) and pile into windrows.\nThe work will be completed by spring planting time (1980) weather conditions allowing.\nErnest Rozell agrees to help Ronald J. Lanning operating as Lanning Construction, Inc. secure money from the First National Bank of Sioux City, Iowa to be used for operating expenses while clearing the land. Ronald J. Lanning will pay any and all interest on said money. Lanning Construction, Inc. will have full rights to all logs and firewood which said company will take from the cleared 60 acres.\nDate_\n/s/ Ronald J. Lanning\nLanning Construction, Inc.\n/s/ E. E. Rozell\n/s/ Dan Lanning Witness\n\n\n. Appellant’s sole theory of recovery was that there was an express contract. The complaint alleged as follows:\nI.\nThat on January 24, 1980, Plaintiff and Defendant entered into a contract, copy of which is attached as Exhibit “A”.\nII.\nThat thereafter, Plaintiff performed extra work, outside of and in addition to said contract, see Exhibit “B” attached.\nIII.\nThat Defendant owes Plaintiff the sum of $2,953.50, together with interest and costs herein.\n\n\n. Because the evidence conflicted, the fact question for the jury was only whether the parties had made any oral agreement. Corbin and Wigmore acknowledge the paradox of receiving evidence of the oral negotiations and agreements and the surrounding circumstances to determine whether to exclude them as having been superseded by a written contract. Corbin § 582 at 450; Wigmore § 2430.\n\n\n. Nothing we have said here changes what we acknowledged in Barnes v. Hill City Lumber Co., 34 S.D. 158, 165-166, 147 N.W. 775, 777 (1914). “A valid oral contract, collateral to a written contract, exists as an independent contract, even though the consideration therefor be found in some of the terms or conditions of the written contract.”\n\n", "ocr": true, "opinion_id": 7873695 }, { "author_str": "Wollman", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nWOLLMAN, Chief Justice\n(dissenting).\nOn the basis of the facts as set forth in the majority opinion, I would hold that there was sufficient evidence of an independent oral contract to warrant' submitting the issue to the jury. Barnes v. Hill City Lumber Co., 34 S.D. 158, 147 N.W. 775 (1914); Putnam v. Dickinson, 142 N.W.2d 111 (N.D.1966). Accordingly, I would reverse the judgment notwithstanding the verdict and direct the trial court to reinstate the jury verdict.\n", "ocr": true, "opinion_id": 7873696 } ]

[ "196 A.3d 950" ]

[ { "author_str": "Marconi", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nHANTZ MARCONI, J.\nThis appeal arises from the termination from employment of the petitioner, James Cole, by the respondent, the New Hampshire Department of Information Technology (DOIT). The New Hampshire Personnel Appeals Board (PAB) upheld Cole's termination. On appeal, Cole argues that his termination did not comply with New Hampshire Administrative Rules, Per 1002.08 because he did not receive three written letters of warning in accordance with New Hampshire Administrative Rules, Per 1002.04 for the same or substantially similar conduct or offense. DOIT argues that we lack subject matter jurisdiction to decide this case, and, in the alternative, that Cole's termination complied with Per 1002.08 and Per 1002.04. Finding that we have jurisdiction, we affirm the PAB's decision.\n*953I\nThe following facts were found by the PAB or are otherwise derived from the record. Cole had been a DOIT employee for fifteen years as of May 2015. During that month, his position was defunded and he was transferred to a new position within DOIT at the New Hampshire Department of Transportation. Cole's supervisor in his new position was Charles Burns.\nOne of Cole's initial assignments was overhauling an Account Security Form (ASF). This was intended to be a short-term project. Although some aspects of Cole's work on this project were satisfactory, his incorrect processing of other aspects of the overhaul resulted in audits being conducted on the forms to ensure accuracy. Cole was also initially assigned a \"Wireless Access Point\" Project (WAP). This project required communication with customers who were requesting installation of a WAP, and coordination with the persons who were to install the WAPs. However, Cole's communications were inadequate. This resulted in customers not knowing how to use the WAPs after they were installed, or even that the WAPs had been installed.\nOn March 1, 2016, Burns issued Cole a memorandum of counsel to document and address his concerns with Cole's work on the ASF and WAP projects. The memorandum included recommended corrective actions to address the problems with both projects. After the memorandum was issued, however, Cole continued to have problems with the ASF project. Customers continued to complain that there were problems with the form. An audit revealed that 20% of a sample of forms that Cole processed contained errors, the majority of which were serious. Cole ultimately performed eleven major revisions to the ASF, but the revised form was substantially similar to the original one and the project took much longer to complete than intended.\nOn April 13, 2016, Burns issued Cole a letter of warning. The letter cited Cole's \"failure to meet any work standard\" and \"failure to take corrective action as directed\" under Per 1002.04(b)(1) and (2) as grounds for its issuance. The letter also detailed Cole's mishandling of the ASF project, and contained a corrective action plan.\nOn May 6, 2016, Cole was issued a second letter of warning. This letter also cited Cole's \"failure to meet any work standard\" and \"failure to take corrective action as directed\" under Per 1002.04(b)(1) and (2). This letter partially concerned Cole's work on the \"IMP\" project. Cole was originally assigned this project in December of 2015. Cole was responsible for holding a \"kickoff\" meeting to discuss the details of the project. Despite being reminded on several occasions by Burns about the need to hold the meeting, Cole did not hold one until April 2016. Even after the kickoff meeting was held, there was no timeline for the project and customers did not have some necessary information. The May 6, 2016 letter of warning also addressed issues with a different project that had been assigned to Cole to establish internet connectivity at a particular location. Cole had problems establishing timelines for this project, communicating with interested parties, and keeping customers satisfied. This letter of warning, like the first letter as well as the memorandum, contained a corrective action plan to address the problems identified in the letter.\nOn June 7, 2016, Burns conducted a performance evaluation of Cole. Burns noted several ongoing concerns, including Cole's lack of communication, his lack of progress and timelines, and general inaccuracies in his work. Two days later, when Burns spoke to Cole about an overdue *954project, Cole told Burns that he was not given enough time to complete the project. A short time later, Burns saw Cole doing a crossword puzzle at his desk during work hours. When asked if he was on a break, Cole said he was not.\nOn June 16, 2016, the DOIT Commissioner, Denis Goulet, issued Cole a third letter of warning. This letter stated that the quality of Cole's work continued to be below expectations, as detailed in the June 7 performance evaluation and the previous letters of warning and memorandum of counsel. The letter also referenced the crossword puzzle incident. Cole was dismissed from employment on July 29, 2016, as detailed in a final notice of dismissal dated August 1, 2016.\nCole appealed his dismissal to the PAB. He was represented by the State Employees' Association/Service Employees' International Union (SEA/SEIU) at the PAB hearing. The PAB heard testimony from Burns, Burns' supervisor, a human resources administrator, and Cole, and received into evidence the memorandum of counsel, the three letters of warning, the June 7 performance evaluation, and the August 1 notice of dismissal. The PAB concluded that the letters of warning were issued for the \"same or substantially similar conduct or offenses,\" thus satisfying the requirements of Per 1002.08(c)(1) for dismissal. The PAB found that \"all three ... [letters] were issued to specifically address [Cole's] poor quality of work,\" and therefore all three letters were issued for \"failure to meet any work standard\" under Per 1002.04(b)(1). Specifically addressing the third letter and the crossword puzzle incident, the PAB noted that Cole stated he did not have enough time to complete a project, but was then found working on a crossword puzzle shortly afterwards during work hours. The PAB concluded that \"[t]he fact [Cole] did not complete the project on time demonstrates that this, too, fits only into the category of failure to meet any work standard [in Per 1002.04(b)(1) ].\"\nCole filed a motion for reconsideration and/or rehearing, which the PAB denied. SEA/SEIU filed this appeal thirty days later. DOIT then filed a motion to dismiss the appeal, arguing that we lack jurisdiction because SEA/SEIU named itself as the petitioner in the notice of appeal. A motion to amend the petition for appellate review to include Cole as the captioned petitioner was then filed, as well as an objection to DOIT's motion to dismiss. We denied DOIT's motion without prejudice, with the understanding that the parties would be allowed to brief the issues raised in DOIT's motion in their respective briefs. We granted the motion to amend the appeal document to include Cole as the captioned petitioner. Prior to oral argument, we asked the parties to address the implications of Atwater v. Town of Plainfield, 156 N.H. 265, 931 A.2d 1220 (2007), on the jurisdictional issue raised by DOIT. Both parties submitted memoranda of law on the matter.\nOn appeal, Cole argues that the PAB misapplied our holding in Appeal of Murdock, 156 N.H. 732, 943 A.2d 757 (2008), as well as Per 1002.08 and Per 1002.04, in reaching its conclusion that the three letters of warning concerned the same or substantially similar conduct. DOIT argues that we lack subject matter jurisdiction to answer this question because the SEA/SEIU initially listed itself, not Cole, as the petitioner in this case, and did not move to amend the appeal document with Cole's name until after the 30-day jurisdictional deadline of RSA 541:6 had passed. See RSA 541:6 (2007). Because the existence or absence of jurisdiction determines whether we may proceed to the merits of the appeal, *955we turn first to the jurisdictional issue.\nII\nSubject matter jurisdiction is jurisdiction over the nature of the case and the type of relief sought: the extent to which a court can rule on the conduct of persons or the status of things. Gordon v. Town of Rye, 162 N.H. 144, 149, 27 A.3d 644 (2011). In other words, it is a tribunal's authority to adjudicate the type of controversy involved in the action. Id. A court lacks power to hear or determine a case concerning subject matter over which it has no jurisdiction. Id. A party may challenge subject matter jurisdiction at any time during the proceeding, including on appeal, and may not waive subject matter jurisdiction. Id.\nBecause the scope of our power to hear appeals from the PAB is governed by statute, see RSA 21-I:58, II (2012), a determination of our jurisdiction in this case requires statutory interpretation, see Gordon, 162 N.H. at 150, 27 A.3d 644. The interpretation of a statute is a question of law. STIHL, Inc. v. State of N.H., 168 N.H. 332, 334, 126 A.3d 1192 (2015). In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. Id. When construing a statute's meaning, we first examine the language found in the statute, and where possible, we ascribe the plain and ordinary meanings to the words used. Id. We interpret statutory provisions in the context of the overall statutory scheme. Id. at 335, 126 A.3d 1192.\nAdjudicative decisions made by the PAB are subject to appeals to this court within the parameters of RSA chapter 541. RSA 21-I:58, II. All such appeals must be filed within thirty days of the denial of a motion for rehearing submitted to the PAB, or, if the motion for rehearing is granted, within thirty days after the decision on such rehearing. RSA 541:6. Compliance with this statutory thirty-day rule \"is a necessary prerequisite to establishing jurisdiction in the appellate body.\" Dermody v. Town of Gilford, 137 N.H. 294, 296, 627 A.2d 570 (1993) (quotation omitted). If an appeal is filed outside of the thirty-day window, subject matter jurisdiction does not vest. See Appeal of Carreau, 157 N.H. 122, 123, 945 A.2d 687 (2008) (dismissing for lack of jurisdiction an appeal brought under RSA chapter 541 filed one day late). We do not have authority to waive this jurisdictional deadline: if the appeal is filed even one day after the thirty-day mark, we are required to dismiss it for lack of jurisdiction. See id.\nIn this case, Cole's motion for reconsideration and/or rehearing was denied by the PAB on April 26, 2017. A notice of appeal of the PAB's decision was filed in this court on May 26, 2017, within the thirty-day appeal period. However, the appeal document named the SEA/SEIU as the petitioner, not Cole. The motion to amend the appeal document to specifically name Cole was not filed until June 23, 2017, after the thirty-day window had closed. DOIT argues that the failure to amend the appeal document within the thirty-day appeal period deprives this court of jurisdiction.\nA similar situation arose in Atwater. At issue there was an appeal of a town planning board's decision to the superior court pursuant to RSA 677:15, which also has a thirty-day jurisdictional filing deadline. Atwater, 156 N.H. at 266-67, 931 A.2d 1220 ; see RSA 677:15 (Supp. 2006) (amended 2009, 2013). The petitioners mistakenly named an intervenor as the defendant in their caption rather than the town, the town being the proper defendant.\n*956Id. at 266, 931 A.2d 1220. After the thirty-day window had closed, the petitioners moved to substitute the town as the defendant. Id. The town moved to dismiss for lack of jurisdiction due to noncompliance with RSA 677:15. Id. The superior court granted the motion, but we reversed. Id. at 266, 269, 931 A.2d 1220.\nNoting that the statute at issue required only that the petition be filed by a certain date, we concluded that the \"filing of the appeal within thirty days of the planning board's [decision] ... established jurisdiction,\" even though the petitioners named an incorrect defendant. Id. at 268, 931 A.2d 1220. Unlike other cases where a new defendant is sought to be substituted after a statute of limitations has run, we explained that an administrative appeal is simply the continuance of the original suit first heard in the administrative forum, which would otherwise become final without filing the appeal document. See id. In order to transfer jurisdiction, RSA 677:15 required \"no more than timely fil[ing of] the petition.\" Id. at 267-68, 931 A.2d 1220. Thus, jurisdiction vested and the case was transferred to superior court upon the filing of the appeal document, even though a party was inaccurately named. See id. at 268, 931 A.2d 1220.\nWe find the reasoning of Atwater equally applicable to this case. Both RSA 677:15 and RSA 541:6 contain a filing deadline as a prerequisite to establishing appellate jurisdiction over decisions of an administrative body. In both contexts, by filing the appeal document within the jurisdictional window, the appellant extends the life of the case originally brought in the administrative forum. No new case or cause of action is brought. Seasonable filing of the appeal document transfers jurisdiction from the administrative to the appellate body, but deficiencies in case-captioning do not disrupt the extension of the case's lifetime. See id. at 267-68, 931 A.2d 1220. In other words, neither the instant case nor Atwater presents the situation seen in Carreau, because both here and in Atwater the appeal document was filed within the thirty-day window, see Atwater, 156 N.H. at 266, 931 A.2d 1220, whereas in Carreau, the initial filing of the appeal document just one day after the window had closed precluded jurisdiction, see Carreau, 157 N.H. at 123-24, 945 A.2d 687.\nDOIT argues that Atwater does not control. Atwater concerned a timely petition brought by persons who were proper petitioners with standing to appeal. DOIT argues that this case involves an appeal document filed by a party who lacks standing to appeal: SEA/SEIU. Because SEA/SEIU lacks standing to appeal, DOIT argues, its petition for appellate review had no legal effect and there was no legal instrument in existence by the time the jurisdictional window had closed that could be amended to include Cole.\nDOIT correctly notes that standing, like the filing deadline of RSA 541:6, is a jurisdictional prerequisite. See Duncan v. State, 166 N.H. 630, 640, 102 A.3d 913 (2014). However, we have long allowed for \"substitution of an entirely new party as plaintiff, including substitution of a plaintiff with standing for an original plaintiff with no standing, when required to prevent injustice and in the absence of resultant prejudice to the defendant.\" Nat'l Marine Underwriters, Inc. v. McCormack, 138 N.H. 6, 8, 634 A.2d 1008 (1993) (emphasis added); see also RSA 514:9 (2007) (affirming court's power at \"any stage of the proceedings\" to allow nonprejudicial amendments when necessary to prevent injustice). Amendments may be given retroactive effect to a petition's filing date in order to cure a defective form of action if justice so requires.\n*957Morphy v. Morphy, 112 N.H. 507, 510-11, 298 A.2d 580 (1972). We have declined to interpret statutory filing requirements similar to the one at issue here as jurisdictional necessities. See Simonsen v. Town of Derry, 145 N.H. 382, 384, 765 A.2d 1033 (2000) (declining to define the verification requirement of RSA 677:15 as a jurisdictional prerequisite to appeal of an administrative decision). We likewise decline to do so in this case. DOIT has not been prejudiced by the inaccurate captioning of the appeal document. See Edgewood Civic Club v. Blaisdell, 95 N.H. 244, 247, 61 A.2d 517 (1948) (finding it was \"proper\" for trial court to allow an amendment substituting plaintiffs with standing for a plaintiff with no standing after a thirty-day period for appeal of a zoning decision had expired); RSA 514:9. Furthermore, the original appeal document, on the very first page, states that it is appealing the decision of the PAB in \"APPEAL OF JAMES COLE,\" and provides the docket number of the PAB's decision immediately thereafter. We conclude that DOIT was on fair notice of which PAB decision was being appealed, and was not otherwise prejudiced. See Nat'l Marine, 138 N.H. at 8, 634 A.2d 1008.\nDOIT also argues that a consideration of the merits in this case would amount to this court \"creating jurisdiction\" outside of the scope set by the legislature in RSA 541:6, and in contravention of our decision in Carreau. We disagree. A plaintiff with standing may be substituted for a plaintiff without standing. See ibr.US_Case_Law.Schema.Case_Body:v1\">id. ; Blaisdell, 95 N.H. at 247, 61 A.2d 517. Such a substitution may be given retroactive effect if justice so requires and in the absence of prejudice to the opposing party. See Nat'l Marine, 138 N.H. at 8, 634 A.2d 1008. For us to have jurisdiction over the appeal of a PAB decision, the appeal document must be filed within thirty days of the denial of a motion for rehearing submitted to the PAB, or, if the motion for rehearing is granted, within thirty days after the decision on such rehearing. RSA 541:6. That requirement was not satisfied in Carreau, which is why we lacked jurisdiction in that case. See Carreau, 157 N.H. at 123, 945 A.2d 687. Here, by contrast, the appeal document was filed within the thirty-day window of RSA 541:6. Because the appeal document was timely filed, and because we conclude that RSA 541:6 does not make accurate case-captioning a jurisdictional prerequisite, we have authority to decide this case on the merits in the absence of any prejudice to DOIT.\nDOIT also argues that Cole is prohibited from making arguments for jurisdiction not made in his objection to DOIT's motion to dismiss/motion for summary affirmance. DOIT argues that Cole was on notice of DOIT's jurisdictional argument at the time he submitted his brief but chose not to address it outside of a short reference to the initially inaccurate caption. Citing our decision in Panas v. Harakis & K-Mart Corp., 129 N.H. 591, 529 A.2d 976 (1987), DOIT asserts that Cole waived any argument as to the existence of jurisdiction by not addressing the issue in his brief. Even assuming, without deciding, that an argument related to subject matter jurisdiction can be \"waived,\" but see Gordon, 162 N.H. at 149, 27 A.3d 644, DOIT's argument is misplaced. In Panas, the petitioners raised an argument for the first time on appeal in their reply brief. Panas, 129 N.H. at 617, 529 A.2d 976. We concluded that reply briefs may only respond to the opposing party's brief, and cannot raise entirely new issues. Id. In this case, DOIT, not Cole, is the party raising the jurisdictional issue. Cole did not address DOIT's jurisdictional arguments in his brief, but did respond to them in a reply brief. Our order granting the motion to amend the appeal document to include *958Cole stated that it was \"subject to [DOIT's ] ability to present in its brief the arguments set forth in its motion to dismiss.\" (Emphasis added). The order then stated that the parties \"may\" address the jurisdictional issue in their respective briefs. Cole's response to DOIT's jurisdictional argument is the proper subject of a reply brief, not the improper assertion of a new issue in a reply brief. See State v. Blunt, 164 N.H. 679, 685, 62 A.3d 1285 (2013).\nIn light of the above, we conclude that we have jurisdiction to proceed to the merits of this appeal. We do so now.\nIII\nRSA chapter 541 governs our review of PAB decisions. See Appeal of Morton, 158 N.H. 76, 78, 960 A.2d 332 (2008). We will not set aside the PAB's order except for errors of law, unless the petitioner proves by a clear preponderance of the evidence that the order is unjust or unreasonable. RSA 541:13 (2007). The PAB's findings of fact are presumed prima facie lawful and reasonable. Id. In reviewing the PAB's findings, our task is not to determine whether we would have found differently or to reweigh the evidence, but rather to determine whether its findings are supported by competent evidence in the record. Appeal of Collins, 171 N.H.----, ----, 189 A.3d 316 (decided June 8, 2018) (slip op. at 2). However, we review the PAB's interpretations of statutes and administrative rules de novo. Appeal of Alexander, 163 N.H. 397, 401, 42 A.3d 804 (2012). When interpreting both statutes and administrative rules, we ascribe the plain and ordinary meanings to words used, looking at the rule or statutory scheme as a whole, and not in a piecemeal fashion. Morton, 158 N.H. at 78, 960 A.2d 332.\nPer 1002.08(c)(1) provides that:\nAn appointing authority may dismiss an employee for conduct described in Per 1002.04 when the employee has previously received 2 written warnings for the same or substantially similar type of conduct or offense within a period of 5 years, by issuing a final written warning and notice of dismissal as set forth in this rule ....\nPer 1002.04(b) provides, in part, that:\nAn appointing authority may issue a written warning to an employee for unsatisfactory work performance or conduct including, but not limited to, the following:\n(1) Failure to meet any work standard;\n(2) Failure to take corrective action as directed;\n...\n(9) Disruptive, disorderly, or disrespectful conduct in the workplace, including the use of insulting or abusive language or gestures ....\nCole concedes that the first two letters of warning \"likely\" concern \"the same or substantially similar\" behavior. See N.H. Admin. R., Per 1002.08(c)(1). He argues on appeal that the PAB erred in finding that the third letter of warning concerned the same or substantially similar conduct or offense as the first two.\nIn Murdock, we reversed in part a decision of the PAB that upheld an employee's termination under the predecessor to Per 1002.08(c)(1). Murdock, 156 N.H. at 738, 943 A.2d 757. When Murdock was decided, the predecessor rule authorized termination upon the employee's receipt of \"a third written warning for the same offense within a period of 5 years.\" Id. at 735, 943 A.2d 757 (quotation omitted). In that case, the employee had received a warning for transporting alcohol in a state vehicle, a *959warning for displaying inappropriate photographs in the workplace, and a warning for taking a lunch break outside of his allotted time. Id. at 733-34, 943 A.2d 757. Each warning asserted that the employee had violated the predecessor to Per 1002.04(b)(1); each warning was issued for conduct that purported to amount to a failure to meet any work standard. See id. In reversing the PAB's decision to uphold the employee's termination, we emphasized that the language \"same offense\" in the applicable administrative rule referred to the behavior giving rise to the warnings, rather than to \"behavior that might be characterized as a similar violation.\" Id. at 738, 943 A.2d 757 (quotation omitted). Since that case was decided, however, the applicable administrative rule has been amended. The rule no longer requires the three written warnings to be for the \"same offense.\" It now provides for termination after \"2 written warnings for the same or substantially similar type of conduct or offense within a period of 5 years [upon] issuing a final written warning and notice of dismissal.\" N.H. Admin. R., Per 1002.08(c)(1) (emphasis added).\nIn light of Murdock, Cole argues that the third letter of warning was not issued for the same or substantially similar conduct or offense as the first two letters because the crossword puzzle incident has \"nothing in common\" with the concerns raised by the first two letters. To prevail in this argument on appeal, Cole must demonstrate that the PAB erred as a matter of law in reaching the opposite conclusion, or that its conclusion was unjust or unreasonable. See RSA 541:13. We conclude that Cole has not carried his burden.\nAfter a full hearing, the PAB concluded that all three letters were issued for conduct properly grouped under Per 1002.04(b)(1) for \"failure to meet any work standard.\" Addressing the third letter of warning, the PAB noted that the crossword puzzle incident occurred within the context of Cole's inability to complete his assignments in a timely fashion. The PAB concluded the crossword puzzle incident illustrated Cole's poor quality of work because it showed his inability to complete projects on time, and therefore the letter was properly issued under Per 1002.04(b)(1). Because all three letters arose from Cole's poor quality of work, as reflected in his inability to timely complete assignments, the PAB concluded that they concerned the same or substantially similar conduct or offenses within the meaning of Per 1002.08(c)(1). Based on our review of the record and evidence considered by the board, including all three letters of warning, we conclude that the board's decision is supported by competent evidence, and is neither erroneous as a matter of law nor unjust or unreasonable.\nCole also argues that, the amended language of Per 1002.08(c)(1) notwithstanding, Murdock requires reversal of the PAB's decision. According to his argument, Murdock demonstrates that if a particular behavior can be categorized in a Per 1002.04(b) category more specific than \"failure to meet any work standard,\" it must be so categorized; otherwise the catch-all work standard category would render the others superfluous. Cole further argues that the crossword puzzle incident is more accurately defined as \"[d]isruptive, disorderly, or disrespectful conduct\" within the meaning of Per 1002.04(b)(9). However, based on our review of the record in this case, we cannot conclude that the PAB erred in finding that the only category in which the crossword puzzle incident fits is failure to meet any work standard. Evidence in the record *960supports the PAB's finding that the crossword puzzle incident occurred within the context of Cole being unable to complete assignments in a timely manner, and therefore was properly characterized as an issue of work quality. We therefore conclude that the PAB's decision was not unjust or unreasonable.\nAffirmed.\nHICKS and DONOVAN, JJ., concurred.\n", "ocr": true, "opinion_id": 7873806 } ]

[ "328 N.W.2d 435" ]

[ { "author_str": "Amdahl", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nAMDAHL, Chief Justice.\nThis is an appeal by Douglas Allen Dahms, age 34, from an order of the district court denying his petition for postconviction relief in the form of resentencing under the Minnesota Sentencing Guidelines pursuant to Minn.Stat. § 590.01, subd. 3 (Supp.1981). We affirm.\nPetitioner was found guilty by a district court jury of six counts of receiving stolen property, twelve counts of possessing or *436selling property with an altered or removed serial number, and two counts of theft for transferring the owner’s property without consent. Minn.Stat. § 609.52, subd. 2(1), (11) (1980). The trial court sentenced petitioner to a limited maximum term of 5 years in prison. Minn.Stat. §§ 609.52, subd. 3(2), 609.53, subd. 1(1) (1980). In State v. Dahms, 310 N.W.2d 479 (Minn.1981), we reversed four of the convictions, reduced one, affirmed the others, and remanded for resentencing. The trial court on remand reimposed the original 5-year term. Thereafter, petitioner filed a petition pursuant to Minn.Stat. § 590.01, subd. 3 (Supp.1981) for resentencing according to the Minnesota Sentencing Guidelines. That petition was denied because the district court was unable to find that petitioner’s early release from sentence would not be incompatible with the welfare of society. This appeal followed.\nThe most severe of the offenses of which petitioner was convicted is a severity level III offense under the Guidelines. If the Guidelines had been in effect at the time the crimes were committed, petitioner’s criminal history score at the time he was sentenced for all of the offenses would have been zero. The presumptive sentence for a severity level III offense by a person with a criminal history score of zero is 1 year and 1 day stayed. Petitioner has been released from prison. The effect of resentencing him to the presumptive sentence would be to discharge him from supervision immediately.\nIn State v. Champion, 319 N.W.2d 21, 23 (Minn.1982), we stated that “we generally will not interfere with the postconviction court’s refusal to make the finding that is prerequisite to resentencing, at least in cases in which the petitioner is serving a sentence for a violent offense or has a record suggesting that he is likely to engage in criminal conduct after his release.” In Thiele v. State, 326 N.W.2d 13, 14 (Minn.1982), we stated that “This does not mean that we necessarily will interfere whenever the offense in question is not a violent offense and the petitioner does not have a record of recidivism.”\nPetitioner not only took a large amount of money from other people by his crimes but committed the crimes with sophistication over a long period of time and against a large number of victims. These same factors, which could have been used to support a departure if the Sentencing Guidelines had been in effect, justify the district court’s refusal to find that petitioner’s early release from sentence would not be incompatible with the welfare of society.\nPetitioner remains subject to the jurisdiction of the Commissioner of Corrections.\nAffirmed.\n", "ocr": true, "opinion_id": 7873948 } ]

[ "338 N.W.2d 870" ]

[ { "author_str": "Larson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nLARSON, Justice.\nLoretta Ferree appeals her termination as a teacher in the Benton Community School District, where she had taught for fifteen years. In the spring of 1981, the school was confronted with an enrollment, personnel, and budgetary situation that required the layoff of one staff member. There is no dispute as to the necessity of or authority for this conclusion. Nor is there a question of whether chapter 279 procedural requirements were met. Given that one teacher would be dismissed, the question before us is whether Ferree was properly chosen as that teacher. The district court affirmed the actions of the school board terminating Ferree’s employment; the Court of Appeals reversed, and we granted *871further review. We now vacate the Court of Appeals decision and affirm the judgment of the district court.\nArticle XIII of the master contract covering employment in the Benton Community School District provided a detailed procedure for staff reduction and provided the order in which terminations would occur:\nARTICLE XIII. REDUCTION OR REALIGNMENT OF STAFF\n[[Image here]]\n2. Whenever a reduction in employees is deemed necessary by the Board the procedure set forth in this Article shall be under the procedures specified below.\n3. The order of reduction within each category shall be under the procedures specified below:\nStep 1. Normal attrition resulting from employee’s retiring, resigning, or voluntary reduction will be relied upon to the extent it is administratively feasible.\nStep 2. The remaining employees to be reduced will be selected by the Board. The Board shall take into account the following facts in making its decision:\n1. Staff members with emergency and/or temporary certification shall be reduced first, unless needed to maintain a program.\n2. Staff members currently on probation, or who were held on the same step of the salary schedule the previous year may be reduced next.\n(Emphasis added.)\nIn November, 1980, Ferree’s principal placed her on probation as the result of several negative evaluations. She was subsequently notified in writing that her progress was still unsatisfactory and that she would remain on probation. She was also advised that this status “could” subject her to termination; in a later evaluation she was advised that her continued probation status “will mean termination of your contract.”\nIn 1981, it became clear that a reduction in staff was going to be necessary because of declining enrollment and resulting budget constraints. Natural attrition did not cure the situation. Under step 2(1) of the staff reduction provisions of the master contract, the administration was then required to look to staff members “with emergency and/or temporary certification.” This category yielded no names. Ferree, as a “staff member currently on probation” was then selected for termination under step 2(2).\nFerree argues that the probation which put her in a priority position for termination was void for several reasons. The school district responds that (1) the probation was proper and, in any event, Ferree had waived any objection to it by failing to file a grievance under the master contract; and (2) since it was undisputed that a staff reduction was called for and Ferree was then on probation, her termination was not only permitted by the master contract, it was in fact mandated by it.1\nWe begin with the observation that school boards and teachers are authorized to enter into employment contracts, Iowa Code section 279.12, and “that the determination of which teacher should be selected for layoff, when layoff is necessary, may properly be the subject of a Negotiated Agreement authorized by Iowa Code section 20.9 [scope of negotiations] .... ” Shenandoah Education Association v. Shenandoah Community School District, 337 N.W.2d 477, 480 (Iowa 1983). See also Ar-We-Va Community School District v. Long, 292 N.W.2d 402 (Iowa 1980). There is no dispute that “personnel and budgetary requirements” can constitute just cause under section 279.15(2), Briggs v. Board of the Hinton Community School District, 282 N.W.2d 740, 742 (Iowa 1979); the parties have stipulated to such circumstances in this case.\n*872Ferree concedes the necessity for staff reduction; in effect she argues only that some other staff member should be terminated. Her attack on the termination is on a very narrow ground: that the probation status which put her first in line for staff reduction was illegal. She urges a variety of arguments to support that theory, from lack of definition and lack of authority to impose probation to the claim that this probation was improperly used to fire Ferree because of her epileptic condition. The problem with Ferree’s attack on the probation is that it is not timely. The master contract provides a detailed grievance procedure. Article II of the contract provides that\n[a] grievance shall mean only an allegation that there has been a violation, misinterpretation, or misapplication of any of the specific provisions of this Agreement.\nThe master contract also provides that all grievances must be presented “within five (5) working days of the date of occurrence of the event giving rise to the grievance” and that a failure to act on a grievance within the prescribed time limits will constitute a waiver of it and a bar to further action.\nFerree was notified in November, 1980, that she was on probation, and why. She first challenged that action when termination proceedings were commenced in 1981. While the Court of Appeals held her time for filing the grievance began to run when she was sought to be terminated, we do not agree. The notice of November 1980 significantly changed her status relative to staff reduction by placing her in step 2(2) of the staff reduction agreement. Ferree knew, or should have known because she was a party to the contract, that being on probation made her employment position significantly less secure at that time. The potential consequence of that status on her employment was explicitly stated on two evaluations. Thus, under the grievance procedure, she could have contested the probation within the time provided by the master contract. Her obligation to file a timely grievance arose then, not when the later proceedings were commenced.\nUnder the contract between these parties, Ferree has waived her objections to the probation status; we will not consider them on this appeal. Given the necessity for the staff reduction and her status under the master contract as a teacher currently on probation, we conclude that she was properly terminated under the terms of that agreement.\nDECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.\n\n. The district also argues that the arbitrator’s decision is binding on this appeal under principles of issue preclusion. Neither this claim nor any evidence supporting it, however, appear in the record made before the board, and we will not consider it here.\n\n", "ocr": true, "opinion_id": 7874168 } ]

[ "339 N.W.2d 746" ]

[ { "author_str": "Kelley", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nKELLEY, Justice.\nDefendant was charged by indictment with first-degree premeditated murder, Minn.Stat. § 609.185(1) (1982), in the September 6, 1981, shooting death of 41-year-old Bernard Webber of rural Menagha. A district court jury found defendant guilty of the lesser included offense of first-degree heat-of-passion manslaughter, Minn. Stat. § 609.20(1) (1982). The presumptive sentence was an executed term of 54 months in prison pursuant to Minn.Stat. § 609.11 (1982) and Minnesota Sentencing Guidelines and Commentary, II.E. (1982), but the trial court departed durationally and sentenced defendant to a 43-month term, which the court later reduced to 30 months. Defendant’s sole claim on this appeal from judgment of conviction and from the order denying his motion for post-trial relief from the verdict is that the state failed to prove that the killing was either intentional or unjustifiable. We affirm.\nDefendant and the victim were involved in a feud that stemmed from a dispute over wages defendant owed the victim. Each man made threats against the other. On September 6,1981, the victim found defendant at the residence of defendant’s former wife in Menagha. After a fight in which defendant cut the victim with a knife, defendant got out his 30.06 rifle, loaded it with one bullet, and ordered the victim to leave. When the victim did not leave, defendant fired the gun once from a distance of about 38 feet. The bullet struck the windshield of the victim’s truck on the driver’s side and broke into fragments; one of the fragments ricocheted off and penetrated the skull of the victim, who was standing near the windshield. The victim died instantly.\nWe hold, as did the trial court in denying defendant’s post-trial motion, that the evidence was sufficient to establish that the killing was intentional and unjustified.\n(a) Evidence supporting the determination that defendant intended to kill the victim included evidence that defendant previously had threatened to kill the victim, evidence that defendant explicitly repeated the threat minutes before the shooting, and evidence that defendant did not show any remorse following the shooting. Defendant contends that if he had intended to kill the victim he would have fired so as to hit the victim directly. However, we hold that the *747fact that the victim was killed by a bullet fragment that ricocheted off the windshield does not, under the circumstances of the case, negate the possibility that defendant intended the bullet to strike the victim. Defendant, by his own admission, was under the influence of alcohol and had difficulty in looking through the scope of the rifle. In other words, the jury could conclude that his failure to hit the victim was not the result of a lack of intent to kill but the result of poor aiming.\n(b) Defendant’s claim that the killing was justifiable is without merit.\nAffirmed.\n", "ocr": true, "opinion_id": 7874176 } ]

[ "345 N.W.2d 248" ]

[ { "author_str": "Wahl", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nWAHL, Justice.\nDefendant was charged in district court with attempted first-degree murder, assault in the first degree and burglary. He waived his right to a jury trial and was tried before the trial court, which acquitted him of the attempt charge but found him guilty of the other two charges. The court sentenced defendant to executed concurrent terms of 76 and 21 months in prison. On this appeal from judgment of conviction defendant contends that he should be given a new trial because the trial court prejudi-cially erred in (a) admitting eyewitness *249identification testimony by the victim and (b) ruling that if defendant testified the state would be allowed to prove a Spreigl offense. We affirm.\nOn the evening of December 24, 1981, a Kandiyohi, Minnesota, resident heard suspicious sounds coming from the grocery store next door. Her 75-year-old husband went to investigate and surprised defendant, who had broken the front door and entered the store. Defendant violently attacked him with a tire iron, causing serious injury, then fled on foot. The victim and his wife sought help from guests at a nearby Christmas party, two of whom chased and caught defendant, who was still carrying the tire iron.\nDefendant’s claim that the trial court erred in admitting the victim’s identification testimony is based on his contention that the photographic display shown to the victim that night was suggestive. We hold that the procedures used did not create a “very substantial likelihood of irreparable misidentification” and that, therefore, the trial court did not err in admitting the victim’s identification testimony. Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972). Furthermore, identity was not an issue, since defendant was caught leaving the scene.\nDefendant’s other contention relates to the trial court’s ruling at the omnibus hearing that if defendant testified the court would allow the state to show that 3 years earlier, when defendant was a juvenile, he had committed a similar offense using a tire iron. Defendant contends that the trial court should have waited until after defendant testified before deciding whether to admit the evidence on rebuttal and that the effect of the trial court’s ruling was to prevent defendant from testifying concerning his intoxicated condition. We affirm the trial court’s ruling. If defendant had testified concerning his intoxication — see Minn.Stat. § 609.075 (1982)— the Spreigl evidence clearly would have been admissible under Minn.R.Evid. 404(b) to rebut defendant’s testimony and to help persuade the trier of fact that defendant had the requisite intent when he committed the acts in question. United States v. Dysart, 705 F.2d 1247 (10th Cir.1983); United States v. Smith, 552 F.2d 257, 260 n. 3 (8th Cir.1977). Defendant was not prejudiced by the timing of the court’s decision, since the decision made it possible for him to make an informed decision as to whether or not to testify.\nAffirmed.\n", "ocr": true, "opinion_id": 7874285 } ]

[ "348 N.W.2d 381" ]

[ { "author_str": "Sedgwick", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOPINION\nSEDGWICK, Judge.\nThis is a consolidation of two sentencing appeals. Defendant pled guilty to four counts of aggravated robbery and one count of second degree aggravated assault. In December, 1982, the trial court sentenced him to 54 months for each offense, which was the presumptive, mandatory minimum sentence. Four of the sentences were ordered to be served consecutively. This gave defendant an aggregate sentence of 216 months. The trial court refused to reduce this sentence to conform to the modification in guidelines on November 11, 1983.\nWe affirm.\nFACTS\nThe maximum presumptive sentence for these five aggravated offenses against separate victims would have been 270 months, i.e., five times the then minimum sentence of 54 months. The trial judge elected to make four of the five sentences run consecutively and the fifth concurrent.\nThe original sentence of 216 months was appealed to and upheld by the Minnesota Supreme Court which held that there was no merit to defendant’s claim that consecutive sentencing in his case unfairly exaggerated his criminality. State v. Kennedy, 342 N.W.2d 631 (Minn.1984). The change in the guidelines was not before the Supreme Court on the appeal.\nAfter the November 1, 1983 guidelines modification, defendant requested resen-tencing. The trial judge refused to change the original 216 months sentence. The departure reasons cited for the conviction on second degree assault were valid. The judge referred to the three aggravated robbery files, but did not cite specific reasons for departure on these three crimes.\nISSUE\nIs defendant entitled to an automatic retroactive modification of his sentence?\nANALYSIS\nWe can only sympathize, in these sentencing appeals, with trial judges who have already thoughtfully determined and pronounced sentence, only to have the guidelines force them to either resentence or to go back through the record and determine reasons for departure. This trial judge clearly considered the types of convictions, determined to sentence consecutively because of the aggressive assaultive nature of the five convictions, and chose a substantial sentence that was less than the maximum then allowed by law.\nThe victim of the second degree assault nearly died from blood loss from the gunshot wound. This plea was negotiated and' the charges of attempted murder in the first and second degree and assault in the first degree were dropped. Minn.Stat. § 609.222 (1982) states:\nWhoever assaults another with a dangerous weapon but without inflicting great bodily harm * * *.\n(Emphasis added.)\nThe trial judge cited the extreme harm to the victim as a reason for departure. Painful, debilitating and near fatal injuries are *383not part of the crime of second degree assault, and justify departure.\nOn three of the aggravated robbery convictions (another being dropped by plea negotiation), three young women and a man were trussed like cattle with their hands and one leg tied behind them with electrical cord, and forced to lie face down with pillows over their heads to prevent them from seeing what was going on. One of the women was fondled in the crotch during the robbery. The trial judge referred to these files as reasons for refusing to depart, but did not cite specific reasons. The degrading and demeaning treatment of these victims is not necessary to aggravated robbery and constitutes particular cruelty to each victim adequately justifying the limited durational departure from 180 to 216 months. See, State v. Hamilton, 348 N.W.2d 112, (Minn.Ct.App.1984).\nDECISION\nAlthough not stated by the trial judge, the record discloses particular cruelty to victims of aggravated robbery by forcing them to lie face down with hands and legs tied with wire behind their heads and pillows over their heads, to justify refusal to resentenee under the November 1, 1983 guideline modification. We affirm.\n", "ocr": true, "opinion_id": 7874344 } ]

[ "349 N.W.2d 862" ]

[ { "author_str": "Popovich", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPOPOVICH, Chief Judge.\nThis is an appeal by the Commissioner of Public Safety from an order of the county court rescinding the revocation of respondent’s driver’s license. The Commissioner contends the trial court lacked jurisdiction because respondent’s petition for judicial review was not filed within the 30-day statutory period. We reverse.\nFACTS\nPursuant to Minn.Stat. § 169.123 (1982), the implied consent law, Ronald Ulven was asked to submit to chemical testing. Following his refusal, the Commissioner of Public Safety sent a notice and order of revocation of driver’s license on October 14, 1983. Ulven’s petition for judicial review was dated November 21, 1983 and was filed on November 25,1983. The Commissioner moved for dismissal for lack of jurisdiction on December 2, 1983. A hearing was held, and on December 29, 1983, the county court dismissed the revocation of Ulven’s license and reinstated his driving privileges.\nISSUE\nDid the county court have jurisdiction to review the driver’s license revocation under Minn.Stat. § 169.123, subd. 5c (1982) when the petitioner failed to file the petition for judicial review within 30 days?\nANALYSIS\nMinn.Stat. § 169.123, subd. 5c (1982) provides in part:\nWithin 30 days following receipt of a notice and order of revocation pursuant to this section, a person may petition the court for review. * * *\nThis court recently decided that a trial court is without jurisdiction to order a post-revocation hearing under Minn.Stat. § 169.-123, subd. 5c when the hearing request is not filed within the 30-day statutory period. Qualley v. Commissioner of Public Safety, 349 N.W.2d 305 at 307-308 (Minn.Ct.App.1984). The record clearly shows Ul-ven’s petition for. review was filed more than 30 days after the notice and order of revocation. Thus, the county court lacked *863jurisdiction and should not have reinstated respondent’s driving privileges.\nDECISION\nThe order of the trial court reinstating respondent’s driving privileges is reversed because the court lacked jurisdiction. The Commissioner’s order revoking Ulven’s driving privileges is reinstated.\nReversed.\n", "ocr": true, "opinion_id": 7874384 } ]

[ "289 Ga. App. 578", "657 S.E.2d 642" ]

[ { "author_str": "Andrews", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nANDREWS, Presiding Judge.\nActing on behalf of the Mount Salem Missionary Baptist Church, the Church’s Board of Deacons1 filed a petition in the Jones County Superior Court seeking to enjoin the pastor of the Church, James L. Smith, and others2 from exercising control over Church property in violation of Church bylaws. The petition also sought an order requiring that a vote on whether to retain or discharge Smith as pastor be limited to votes by those persons who were admitted to membership in the Church according to the Church bylaws. The court entered an order granting injunctive relief and limiting the vote to persons who obtained membership in the Church pursuant to the bylaws. In accordance with this order, a majority of the Church members voted to discharge Smith as pastor. After Smith refused to abide by the vote and refused to relinquish possession of the Church property, the court entered an order upon motion by the Board of Deacons requiring *579Smith to cease and desist from acting as pastor and to relinquish control over the Church property. On appeal, Smith claims: (1) that the court violated the constitutional principle of separation of church and state by deciding that only persons who were Church members pursuant to the existing bylaws were eligible to vote, and (2) that the vote to remove him as pastor was not fair and impartial. For the following reasons, we affirm.\n1. The principle of separation of church and state embodied in the First Amendment to the United States Constitution and in the Georgia Constitution of 1983 (Art. I, Sec. I, Par. IV) prevents courts from deciding questions involving a church’s internal affairs in matters of theology, church discipline, or church governance. Carnes v. Smith, 236 Ga. 30, 33 (222 SE2d 322) (1976); Holiness Baptist Assn. v. Barber, 274 Ga. 357, 358 (552 SE2d 90) (2001). This principle, which prevents a court from exercising jurisdiction over an ecclesiastical matter, is not violated when a court is called upon to decide a civil dispute over control of church property. Bolden v. Barton, 280 Ga. 702 (632 SE2d 148) (2006). Because the petition in the present case involved a dispute over the control of church property, it presented a civil matter over which the court had jurisdiction. Id.; Gervin v. Reddick, 246 Ga. 56 (268 SE2d 657) (1980).\nSmith does not dispute that existing Church bylaws set forth the manner in which a person becomes a member of the Church; he does not dispute that the Board of Deacons had standing to bring the petition on behalf of a majority of such Church members; and he does not dispute that the Church was congregational in nature with authority residing in the Church members by majority vote to retain or discharge him as pastor of the Church. Smith’s argument is that the existing Church bylaws for admitting a person into Church membership are too restrictive and do not take into account the Church tradition that persons are also accepted as new Church members when they are given “the right hand of fellowship” by existing members. Accordingly, Smith argued that the court’s order limiting the vote only to persons who obtained membership in the Church pursuant to the Church bylaws improperly decided an ecclesiastical matter and improperly excluded votes by persons who became members of the Church by being given “the right hand of fellowship.” Smith offered no evidence in the superior court to support his argument that persons obtained membership in the Church by means other than the procedure set forth in the Church bylaws.\nOn this record, we find that the trial court did not involve itself in ecclesiastical matters when it ordered that persons eligible to participate in the majority vote on whether to retain or discharge Smith as pastor were limited to those who obtained membership in the Church pursuant to the Church bylaws. This was not an order *580deciding the criteria for Church membership or controlling a matter of Church governance, but merely an order requiring that the Church bylaws setting forth the procedure for obtaining membership be followed. Waverly Hall Baptist Church v. Branham, 276 Ga. App. 818, 825-826 (625 SE2d 23) (2005); Srisovana v. Cambodian Buddhist Society, 269 Ga. App. 600, 602 (604 SE2d 637) (2004); Bolden, 280 Ga. at 704.\nDecided February 12, 2008.\nAntavius M. Weems, for appellants.\nJoseph H. Briley, for appellees.\n2. Contrary to Smith’s argument, there is no evidence in the record that the vote to discharge him as pastor was not fair and impartial, or that it failed to reflect a vote by the majority of the Church members.\n\nJudgment affirmed.\n\n\nRuffin and Bernes, JJ., concur.\n\n\n The Board of Deacons is comprised of Darryl Brown, Melvin Appling, Leonard Huff, Jerrold Pitts, James Carter, Milton Towles, Earnest James, and Lee James.\n\n\n The petition also named Cynthia King, the secretary of the Church, and “unknown John Does.”\n\n", "ocr": true, "opinion_id": 7874424 } ]

[ "353 N.W.2d 656" ]

[ { "author_str": "Sedgwick", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOPINION\nSEDGWICK, Judge.\nDefendant Taylor appeals his conviction of two counts of criminal sexual conduct in the first degree. He maintains the sexual activity was consensual. The victim maintains it was at gun point. The evidence is sufficient to support the jury verdict. We affirm.\nISSUES\n1. Was the evidence sufficient to sustain the verdict?\n2. Did the trial court err in prohibiting the defense from introducing evidence of victim’s pending criminal charges, questioning the victim about an abusive boyfriend and allowing the state to argue in closing that the victim had no reason to lie?\nFACTS\nAbout 5:00 p.m. on June 10, 1983, the complainant Lannie Crossland was unable to start her car. Defendant was driving by, observed her standing by the car and stopped. He tried unsuccessfully to start the car and, according to him, agreed to go to his home, get tools and fix it in exchange for sexual intercourse with her. He maintains she agreed. She admits agreeing to go to his house for tools, but says that sex was never mentioned.\nCrossland got into defendant’s car. They took her small daughter to her sister-in-law’s house and at the victim’s request stopped at a restaurant so she could take out some food. After they arrived at defendant’s house, they went downstairs to defendant’s bedroom. Defendant maintains she willingly had intercourse. Cross-land testified that as soon as he mentioned sex she immediately requested that he take her back to her sister-in-law’s house. She testified that he pointed a shotgun at her. He testified he pulled the sawed-off shotgun from under his pillow and laid it next to his bed while he continued to have sex with her with her permission.\nAppellant’s cousin and his wife knocked on the bedroom door during these activities. The door opened. The cousin testified he observed defendant and Crossland sitting on the bed watching TV and that Crossland had shorts on. His wife testified they were both naked, were having sexual relations, and that the TV was off.\nAppellant’s sister-in-law, who was upstairs on the night of June 10th, testified she never saw the cousin and his wife that night.\n*658Appellant’s mother had come in the house sometime during the evening and was upstairs when appellant left the house to drive Crossland to her sister-in-law’s house. The victim did not tell defendant’s mother about the rape because the mother was drunk and cussing.\nAs soon as Crossland got to her sister-in-law’s she reported the rape and called the police.\nAt trial, Crossland’s former employer testified that she had a bad reputation for truthfulness and that he would not believe her testimony under oath. The basis for this testimony, which was not revealed to the jury, was Crossland’s forgery of over $10,000 in checks while she was employed with his company. The trial court denied the defense pretrial motion to introduce evidence of the pending criminal charge. The defense was also prevented from cross examining Crossland about prior beatings she had received from her boyfriend. This testimony would allegedly show her motive to falsify testimony to avoid another beating if the boyfriend found out she voluntarily had sex with appellant. The evidence of the criminal charge would allegedly show her motive in testifying was to get favorable treatment from the state in her criminal case.\nANALYSIS\nAppellant alleges insufficiency of the evidence.\nOn appeal, this court will hold the evidence sufficient to sustain a guilty verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it with proof beyond a reasonable doubt of each element of the crime, could reasonably conclude from the evidence contained in the record that the defendant was guilty of the offenses of which he was convicted. State v. Norgaard, 272 Minn. 48, 136 N.W.2d 628 (1965). Ordinarily we will view the evidence in the light most favorable to the state, assuming that the jury believed the state’s witnesses and disbelieved anything which contradicted their testimony. State v. Hawkins, 260 N.W.2d 150 (Minn.1977).\nState v. Hamilton, 289 N.W.2d 470, 476 (Minn.1979).\nApplying the foregoing to the record before us, we hold that the evidence supports the verdicts.\nHere, the testimony of complainant’s comfortable behavior with appellant prior to the offense, i.e., dropping the child off at her sister-in-law’s, picking up food to eat at appellant’s place, is consistent with her testimony that she only expected to pick up tools at his house and get her car fixed. The jury could well have believed that her story, as well as her behavior after the offense, was consistent with a rape. She made no mention of the rape to defendant’s mother, because the mother was drunk and hostile, but reported it immediately to her sister-in-law and the police. She was distraught and crying as soon as she was able to get away from defendant.\nThe jury obviously believed the state’s witnesses, and disbelieved defendant’s. Considering the discrepancies in defense witnesses’ testimony, the jury acted logically.\nThe defense alleges the trial court erred in not allowing evidence of her pending forgery charges, claiming that “Ms. Crossland was shading her testimony to please the state.” It is difficult to follow this logic. Crossland was not a co-defendant of appellant, hoping for a reduced charge or sentence if she testified against him. She was the victim of a rape by defendant. There was no error in disallowing this evidence.\nThe trial court properly sustained, as irrelevant, the state’s objection to the following question:\nQ. (defense counsel) You have been the subject of physical abuse by men in the past, haven’t you?\nFinally, appellant alleges the trial court erred in not precluding the prosecutor from arguing in closing that Crossland had no reason to lie. To put the picture in *659perspective as the jury saw it, the following closing argument was given by the defense.\nMR. BUSH: Another thing that the judge will tell you about is assessing the credibility of a witness. Actually, I believe the judge told you this at the beginning of the trial. It is the frankness and candidness with which the witness answers questions. And in looking at this frankness and candidness with which the witness answers questions, remember Lannie Crossland’s testimony when I asked her about prior misconduct and truthfulness when she was an employee of Berman Buckskin? Was she candid? No, she took the Fifth Amendment. She said, I refuse to answer that on the ground of the Fifth Amendment. The Fifth amendment says, you don’t have to answer questions that would incriminate you.\nMR. COLISH: Your Honor, I’m going to object to this as to its relevancy.\nTHE COURT: Sustained as to—\nMR. BUSH: Your Honor—\nTHE COURT: Just a moment, counsel. It’s sustained as to instructing the jury on the law. Please don’t go into what the Fifth Amendment says.\n⅜! ⅝ ⅜ ⅝ ⅝ 5⅜\nMR. BUSH: She took the Fifth Amendment. Why? Was that candid? Was that truthful? Was that honest?\nMR. COLICH: Your Honor, I’m going to object to any argument on the Fifth Amendment right of a person.\n⅝ * ‡ * ⅜ *\nTHE COURT: Okay. Sustained, counsel.\nWhat is her motive? There are a number of reasons for motive that we can talk about. Maybe she has a boyfriend that would be upset if she had casual sex.\n* ⅜ ⅜ * * ⅝\nMR. COLICH: I object to his asking the jury to speculate on evidence not before the court.\nTHE COURT: The objection is overruled. You may proceed, Mr. Bush.\nMR. BUSH: There could be any number of possible motives. A potentially jealous boyfriend, who would be upset if she engaged in casual sex. Potential relatives who would be upset if she engaged in casual sex. * * *\nDECISION\nThere was sufficient evidence to sustain appellant’s conviction. There were no errors in the trial court’s evidentiary rulings. Affirmed.\n", "ocr": true, "opinion_id": 7874482 } ]

[ "357 N.W.2d 479" ]

[ { "author_str": "Gierke", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nGIERKE, Justice.\nRodney Brudvig and Esther Hanson have appealed from a district court judgment entered upon a jury verdict distributing crop proceeds. We affirm in part, reverse in part, and remand.\nOn August 7, 1979, Hanson and Meester entered into an earnest money agreement by which Hanson agreed to convey to Meester 300 acres of farmland. After a dispute arose between them, Meester filed suit against Hanson in January of 1980 for specific performance of the agreement. While that suit was pending, the land was farmed in 1980 by a person not involved in this case.\nBy agreement dated October 10, 1980, Hanson leased the land to Brudvig for one year. Under the terms of the lease, Han-, son was to receive one-third of all crop production and government payments and Brudvig was to receive the remaining two-thirds. Brudvig fall-plowed the stubble *480ground in mid-October, 1980, at which time there were 142 acres of sunflowers not yet harvested. Neither this lease agreement nor the above referenced earnest money agreement was recorded.\nThe specific performance action was tried on November 14, 1980. The trial court issued findings of fact, conclusions of law, and order for judgment granting specific performance on November 18, 1980. Entry of judgment, however, was delayed pending the outcome of a foreclosure action involving the same land filed by E.E.E., Inc. Meester's attorney filed a notice of Us pendens with the Griggs County Register of Deeds on November 20, 1980. Judgment was entered on June 3, 1981.\nIn the spring of 1981, Brudvig disced the sunflower ground and applied anhydrous ammonia to it and the other land he intended to plant that year.\nOn April 23, 1981, Meester informed Brudvig that possession of the property was being litigated and there was going to be a hearing in court the next day. Brudvig contacted the attorneys for Meester and Hanson that evening. The attorneys gave Brudvig opposite opinions of the probable results of the hearing scheduled for the next day. Brudvig, who was not a party in either of the pending actions, was not represented by counsel, and had not been served with process of any kind, attended the April 24, 1981, hearing, in the foreclosure action brought by E.E.E., Inc. At that hearing, the trial court noted:\n“THE COURT: That still leaves us with the question of the claim of a right of a tenant in possession. That is, Mr. Brudvig, I believe his name was, and he doesn’t appear in the action by counsel or by document in any way.”\nThe following exchange took place between the trial court and Brudvig:\n“THE COURT: It’s the 24th of April and the crop needs to be put in. Mr. Brudvig, are you willing to put your, plead your case before the Court at this time without any other preparation?\n“MR. BRUDVIG: No, yesterday was the first that I knew of any of this court proceedings. Mr. Meester stopped by and I was working out in the field and he stopped by and informed me that there was court this morning and that was the first I knew of anything. There are rumors once in a while that the land will be sold and so forth, but there wasn’t anything that I knew of.”\nThe trial court subsequently orally ordered as follows:\n“There is nothing before the Court to prevent the carrying forward of the judgment of requiring specific performance and because of the exigencies of the season the Court is of the opinion that some decision has to be made rather than to await the decision of whether or not actually to appeal within 60 days after the entry of the decree to be entered hereon and, therefore, it would be the judgment of the Court that possession of the farm land should be surrendered to Mr. Meester in accordance with the prior judgment of the Court ....\n\n\n\n“THE COURT: The purpose of the Court’s action is to secure possession effective today in Mr. Meester and this is a court of record. The order of the court subsists from the time it is stated in open court and the entry of a document called the order of the court. It commensu-rates the deed that takes place in open court so in the Court’s understanding Mr. Meester is entitled to the possession of the property from and after this moment. And all the other rights of other parties as previously stated. Subject to the right of appeal by Mrs. Hanson.”\nBrudvig thereafter seeded 81 acres of durum on the land before giving up possession after Meester told him “you know the Court had give me possession.” Meester then seeded the rest of the crop.\nBrudvig filed suit in May 1981 for an injunction and damages. Brudvig and Hanson later sought to recover damages for waste they alleged that Meester committed on the premises. Meester remained in possession of the land. After the crop *481was harvested, Hanson was paid one-third of the proceeds and the remainder was placed in a bank account pending trial.\nJudgment granting Meester specific performance of the earnest money agreement was entered on June 3, 1981. That judgment, as well as the judgment decreeing invalid the mortgage held by E.E.E., Inc., was appealed to this Court. On April 1, 1982, we issued our opinion in E.E.E., Inc. v. Hanson, 318 N.W.2d 101 (N.D.1982), in which we reversed both judgments.\nThe instant action was tried to a jury in October 1983. The jury determined that Meester should recover expenses of $13,-806.81 from the crop proceeds and that Brudvig should recover expenses of $538.52 from the crop proceeds. The jury also determined that Meester did not commit waste upon the premises. Judgment was entered in accordance with the verdict and Hanson and Brudvig appealed.\nOn the matter of Meester’s and Brudvig’s interests in the two-thirds of the crop proceeds not paid to Hanson, the trial court instructed the jury:\n“Meester is entitled to receive the reasonable value of the farming and labor expenses he put into the land since he was farming the land in reliance on a court order at the time he farmed the land.\n“It is up to you to decide on amount he should be reimbursed.\n“Since plaintiff Brudvig farmed the land under a valid lease agreement with Esther Hanson, he is entitled to two-thirds of the proceeds of the land, which would include his expenses, less any reasonable expenses defendant and third party plaintiff Meester incurred in farming the land.\n“Since Brudvig was later determined to have been entitled to possession, he is entitled to two-thirds of the present crop proceeds, including his expenses, less the reasonable expenses of Meester.\n“Here again, it is up to you to decide the amount Brudvig should receive for his two-thirds share, including his reasonable expenses, less Meester’s reasonable expenses.\n“Two-thirds of the present crop proceeds is approximately $14,345.33 ($13,-575.33 in the bank and $770 held by ASCS).”\nMeester and Brudvig agree that, through the foregoing instruction, the trial court directed the jury to return a verdict awarding Meester all the expenses he had incurred in farming the land. As far as is pertinent to this matter, the special verdict form submitted to the jury was returned as follows:\n“1) What are the reasonable expenses expended by Anneus Meester in farming the land? Amount: $13,806.81\n“2) What are the reasonable expenses of Rodney Brudvig in farming the land before April 24, 1982? Amount: $4224.60\n“3) What are the reasonable expenses of Rodney Brudvig in farming the land after April 24, 1982? Amount: $1016.69\n“4) What amount is the defendant An-neus Meester entitled to receive from the crop proceeds to reimburse him for expenses? Amount: $13,806.81\n“5) What amount, including his expenses, is the plaintiff Rodney Brudvig entitled to receive from the crop proceeds? Amount: $538.52”\nIn farming the land when they did, both Meester and Brudvig did so in reliance upon matters on which they were reasonably and justifiably entitled to rely. Brud-vig farmed the land in reliance upon a valid lease from Hanson, who owned the land. Meester farmed the land in reliance upon the authorization 1 by a judge of the dis*482trict court to do so, although the determination that Meester was entitled to specific performance of the earnest money agreement (upon which the authorization was based) was later reversed in E.E.E., Inc. v. Hanson, supra.\nIn our view, a directed verdict in favor of Meester was improper. To the extent that the judgment was based upon an improperly directed verdict, it is reversed. In directing a verdict in favor of Meester, the trial court in its instruction improperly relegated the valid lease upon which Brudvig relied to a status inferior to that of the court order relied upon by Meester.\nIn light of the foregoing, it appears to us that the most fair and equitable resolution of the controversy over the amount of expenses to be recovered by Meester and Brudvig is to award each his proportionate share of the expenses incurred. By its special verdict, the jury found that Meester incurred reasonable expenses in the amount of $13,806.81 and that Brudvig incurred reasonable expenses in the amount of $5,241.29. The reasonable expenses expended by Meester and Brudvig totalled $19,048.10. The expenses incurred by Meester constituted 72.48 percent of the total expenses incurred and the expenses incurred by Brudvig constituted 27.52 percent of the total. As the trial court instructed the jury, there were crop proceeds of only approximately $14,345.33 to be distributed.\nIn an attempt to obviate the necessity of a new trial on this matter, we remand with instructions that, unless Meester within ten days after remand agrees to a reduction of the crop proceeds paid him to 72.48 percent of the crop proceeds available for distribution ($10,397.50) and an increase of the crop proceeds paid to Brudvig to 27.52 percent of the crop proceeds available for distribution ($3,947.83), Brudvig be granted a new trial without an instruction directing a verdict in favor of Meester. Absent a new trial, any interest accumulated should be shared in the same proportions.\nBrudvig has asserted that the trial court erred in holding as a matter of law that Meester was not a trespasser in bad faith. Under all of the circumstances involved, we are unable to conclude that the court erred.\nHanson has asserted that the jury’s finding that Meester did not commit waste upon the premises is clearly erroneous under Rule 52(a), N.D.R.Civ.P. Rule 52(a) is not applicable to the jury verdict here involved. Upon viewing the evidence in the light most favorable to the verdict (Matter of Estate of Knudsen, 342 N.W.2d 387 (N.D.1984)), we conclude that there is substantial evidence to support it. This determination renders unnecessary a determination of whether or not a stipulation entered into by Meester and Hanson released Mees-ter from liability for waste.\nFor the reasons stated, the judgment is affirmed insofar as it awards no damages for waste, reversed as to crop proceeds paid to Meester and Brudvig to the extent that the judgment was based upon an improperly directed verdict, and remanded for further proceedings consistent with this opinion.\nERICKSTAD, C.J., and SAND, VANDE WALLE and PEDERSON, JJ., concur.\n\n. There was some question at oral argument as to what \"court order\" the trial court’s instructions referred. We deem it of little moment whether the trial court in this case was referring to his written order of June 24, 1981, denying Brudvig’s motion for a temporary injunction and ordering that Meester retain possession of the land, or the verbal \"order” of the judge presiding at the April 24, 1981, hearing in the foreclosure action. Both were based upon the November 18, 1980, determination that Meester was entitled to specific performance, which was *482later reversed by this Court in E.E.E., Inc. v. Hanson, supra, upon appeal from the judgment entered in that specific performance action on June 3, 1981.\nWe need not determine the legal effect of the court’s April 24, 1981, verbal \"order”, for, regardless of its legal effect, Brudvig relinquished possession of the land because of it and has been able to litigate his right to crop proceeds produced on the land in 1981.\n\n", "ocr": true, "opinion_id": 7874674 } ]

[ "368 N.W.2d 207" ]

[ { "author_str": "Oxberger", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOXBERGER, Chief Judge.\nThe defendant City has appealed from the trial court’s decision that the plaintiff is entitled to an agriculture deferment. We affirm.\nPlaintiff Louis Pfohl, as trustee under this mother’s testamentary trust, holds legal title to a parcel of farm land located within the City of Dubuque. In 1980 two persons who owned property located near plaintiff’s farm petitioned the City for extension of the public sewer to their area. Plaintiff objected. In mid-1980 the City’s staff recommended that the City proceed with the sewer extension. The bulk of the financing was to be met by assessing the owners of the property through which the extension would run, including plaintiff.\nThe city council adopted a proposed resolution of necessity for the project and other relevant proposed resolutions. Notices of *208the public hearing on the matter to be held January 18, 1982, were mailed and published.\nAt the public hearing, plaintiff appeared through his attorney and objected to the project. On January 25, 1982, plaintiff delivered a written letter to the city clerk requesting an agricultural deferment of any special assessment. The resolutions were subsequently adopted.\nAfter adopting the resolution, another property owner filed a request for an agricultural deferment. The city staff had anticipated the plaintiffs request, but was not aware other requests for deferment might be filed. On February 5, 1982, the city manager reported that bidding would be canceled and recommended to the city council it repeal the resolution of necessity. On February 15, the council voted to reject repealing the resolution and told the staff to attempt to resolve the problems with the project.\nA number of meetings followed with the plaintiff which culminated in an agreement. The matter of plaintiffs deferment was discussed at the meetings. The parties agreed to realign the sewer through plaintiffs property along an easement granted by plaintiff to the City for $1.00. The plaintiff was to pay the City $4000 for realigning the sewer. This agreement saved the City the trouble and cost of condemnation proceedings. On September 17, 1982, plaintiff delivered the easement to the city.\nThe city manager decided the council should adopt another resolution of necessity on the project because nine months had passed since the earlier resolution, the agreed change in alignment of the sewer over the Pfohl property had occurred, and because of the effects of inflation on the January cost estimate. The resolution adopted was identical to the earlier resolution except for realignment through plaintiffs property, two new specifications regarding asphalt and bedding of the pipe, and an inclusion that a portion of the costs would be paid by an additional city fund. Notice of the public hearing was mailed on November 8, 1982.\nPlaintiff attempted through an employee to file another deferment request, but the letter was not filed by the employee until eleven days following the hearing, one day longer than indicated under the applicable statute.\nOn December 1982, plaintiff filed a petition seeking a declaration as to the validity of the deferment request, also alleging the assessment was invalid and that defendants breached their contract with plaintiff.\nThe district court decreed that plaintiff was entitled to an agricultural deferment. The court ruled against plaintiff with regard to the validity of the assessment and the contract claim. The defendant has appealed.\nDefendant claims the court erred in allowing the deferment, since the letter was filed one day too late under Iowa Code section 384.62. The court found there was no distinction between the two resolutions passed, and that the first had never been repealed. The City responds by saying the resolutions were the same, but the projects were different.\nIt is not surprising that there are no cases on point regarding this narrow area of law. This is an equitable action, however, and we will look to the equities of the situation.\nWe find the doctrine of relation back is relevant to the circumstances here. Authorities have indicated this is “that principle by which an act done at one time is considered by a fiction of law to have been done at some antecedent period ...” 76 C.J.S. Relation (1952). Plaintiff points out the case of another jurisdiction describing it as an equitable doctrine, and defined it as:\n[A] fiction of law adopted by courts solely for the purposes of justice; a legal fiction invented to promote the ends of justice, or to prevent injustice and the occurrence of injuries where otherwise there would be no remedy.\n*209Consumer Public Power District v. Eldred, 146 Neb. 926, 936, 22 N.W.2d 188, 194 (1946). We have allowed a claim to relate back to an original pleading when it arises out of the conduct, transaction, or occurrence set forth in the original pleading. Iowa R.Civ.P. 89, Pease v. Zazza, 295 N.W.2d 43, 49 (Iowa 1980). This type of relation back is permitted to prevent a bar of limitations “especially where there is reasonable ground for holding the amendment to be only an amplification and expansion of the cause of action...” 54 C.J.S. Limitations of Action § 279 (1948).\nWhile the City would like this court to believe the resolutions dealt with two projects, it is evident that one project is involved; the development of the sewer system over an area including plaintiffs property. Not only was the first resolution never repealed, the city council explicitly refused to repeal the resolution. It appears the city council was of the opinion that one project and one resolution, with amendments, was considered. We agree with the trial court that, “It would require unjustifiable ‘fine distinction’ to deny Plaintiff’s deferrment on the grounds urged by Defendant inasmuch as there is no material distinction between the two resolutions of necessity.” Equity requires a finding that plaintiff is entitled to the deferment.\nAFFIRMED.\n", "ocr": true, "opinion_id": 7875031 } ]

[ "213 A.3d 39" ]

[ { "author_str": "Valihura", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nVALIHURA, Justice:\n*42This is a consolidated appeal of two separate actions, both of which arise from a dispute involving a theater partnership.1 Robert E. Nederlander, Sr. (\"Robert\")2 controls Nederlander of San Francisco Associates (\"Nederlander\"), a California general partnership. Carole Shorenstein Hays (\"Carole\") and her family control CSH Theatres L.L.C. (\"CSH\"), a Delaware LLC.3 Nederlander and CSH each own a fifty-percent membership interest in Shorenstein Hays-Nederlander Theatres LLC (\"SHN\"), a Delaware LLC that operates theaters in San Francisco under SHN's Plan of Conversion and Operating Agreement of the Company (the \"LLC Agreement\").\nIn 2010, CSH Curran LLC (\"CSH Curran\"), an entity that Carole co-manages,4 purchased the Curran Theatre in San Francisco (the \"Curran\"). SHN had been operating under a lease from the Curran's then-owners, the Lurie Company (\"Lurie\"), since the beginning of the partnership. Carole and her husband, Dr. Jeffrey Hays (\"Jeff\") (collectively, the \"Hayses\"), did not extend that lease with SHN when it expired in 2014. Thereafter, the Hayses began staging productions at the Curran. In February 2014, CSH sued Nederlander in the Court of Chancery for a declaratory judgment that it had no legal obligation to renew the Curran lease (the \"Declaratory Judgment Action\").5 Nederlander asserted counterclaims against CSH and third-party claims against the Hayses for breaches of their fiduciary and contractual obligations, among other claims.6 The court held in a thorough July 31, 2018 opinion that there was no enforceable promise to renew the lease of the Curran to SHN, that CSH did not breach the LLC Agreement, and that the Hayses breached their common law fiduciary duties of loyalty (the \"Declaratory Judgment Opinion\").7\nIn September 2018, Nederlander sought a preliminary injunction in the Court of Chancery against CSH and the Hayes to *43prevent them from staging Dear Evan Hansen and Harry Potter and the Cursed Child (\"Harry Potter \") at the Curran (the \"PI Action\"). In the PI Action, Nederlander asserted four counts, but focused its injunction efforts on Count I, which asserted breach of contract claims (based upon the \"provisions of Section 7.02 of the LLC Agreement or the contractual fiduciary duties owed to SHN and its members under the LLC Agreement\")8 against all defendants in that action.9 The trial court denied that motion in a November 30, 2018 opinion (the \"PI Decision\").10 On December 21, 2018, the trial court entered a partial final judgment as to Count I of Nederlander's Complaint, pursuant to Court of Chancery Rule 54(b), to allow for an immediate appeal of the PI Decision.\nNederlander argues on appeal that the trial court erred in the Declaratory Judgment Action by refusing to enforce Section 7.02(a) of the LLC Agreement against the Hayses. Specifically, Nederlander contends that the Hayses engaged in competitive conduct at the Curran that violated their contractual duty under Section 7.02(a) to maximize SHN's economic success. Alternatively, Nederlander argues that the trial court erred in the PI Decision by holding that the Hayses did not \"control\" Dear Evan Hansen and Harry Potter , and that the Hayses violated Section 7.02(b) of the LLC Agreement as a result. On cross-appeal, CSH contends that Nederlander's arguments are irrelevant because the trial court incorrectly held in the Declaratory Judgment Action that CSH's Affiliates, including the Hayses, are bound by Section 7.02.\nFor the reasons explained below, we agree with Nederlander that the Court of Chancery misinterpreted Section 7.02(a) and that the Hayses cannot stage competitive productions (not falling within Section 7.02(b)'s exceptions) at the Curran that violate its contractual duty to maximize SHN's economic success. Accordingly, we reverse that aspect of the trial court's decision. Because Nederlander has not challenged the court's rulings in the Declaratory Judgment Action as to damages and other forms of relief, we decline to remand that action.11 Further, in view of our reversal of the trial court's interpretation of Section 7.02(a) in the Declaratory Judgment Action, we order remand of the PI Action for further proceedings consistent with this Opinion. We find no error with any other aspect of the trial court's decisions.\nI. Background12\nSHN began in 1977 as Shorenstein-Nederlander Productions of San Francisco, a partnership formed between Walter Shorenstein, Carole's father, and James M. Nederlander, Robert's brother. Since then, SHN has staged productions at several *44San Francisco theaters. On January 1, 1980, the partnership entered into a ten-year, written lease of the Curran with Lurie.13 The partners extended the lease in 1989, 1990, and 1997.\nIn 1990, Walter Shorenstein sued Nederlander, claiming that it was \"[b]ooking productions to play in competing geographic locations\" and \"[s]cheduling productions to play in nonpartnership theaters on the most advantageous and profitable dates.\"14 The partners settled that litigation and supplemented the partnership agreement in 1992. Out of concern for Nederlander competition with the partnership, that supplement included a new provision in the partnership agreement, Section 4, which provided that:\nBoth partners will devote their efforts to maximize the economic success of the Partnership and avoid conflicts of interest. Neither party will stage any production within 100 miles of San Francisco unless (i) it has first played in a Partnership theatre, or (ii) it has been rejected for booking by the other party, or (iii) the Partnership shares in the profits and/or losses of such booking pursuant to an agreement.15\nThis trial court found that this provision was \"substantially similar\" to Section 7.02 of the LLC Agreement, a key provision on appeal.16 The trial court stated that limiting competition by the Nederlanders was \" 'the most important thing' the agreement was meant to do.\"17\nOn November 6, 2000, the partnership was converted into a Delaware LLC, and Nederlander and CSH entered into the LLC Agreement as members with a fifty-percent ownership stake each. The LLC Agreement provides for a four-member board of directors, to which both members have the right to appoint two directors. Carole served as co-president of SHN between 2000 and June 2, 2014 (except from January 15, 2013 to March 16, 2013, when she served as SHN's sole president), and as one of the CSH-appointed directors of SHN from 2000 until June 2, 2014. Jeff also served as a CSH-appointed director from 2010 until October 27, 2014. Robert has been a Nederlander-appointed director of SHN since 2000 and its co-president since 2009.18 Raymond Harris has served *45as the other Nederlander-appointed director since 2012.\nAs of 2010, SHN was operating three theaters in San Francisco: the Golden Gate Theatre, the Orpheum Theatre, and the Curran. SHN owned, and still owns, the Golden Gate and Orpheum, but, at that time, it leased the Curran. Producers prefer the Curran for \"sit-down\" productions-those that play for an extended time, sometimes for multiple years-because it most closely resembles a traditional Broadway theater. In 2009, Lurie had offered to sell the Curran to SHN for $30 million. After negotiations with Robert, Lurie lowered the price to $17.5 million in January 2010. Robert refused to purchase the Curran because he believed the price was still too high. Carole, however, viewed the Curran \"as a special place\" and decided to purchase it herself. The parties agreed that Carole had asked for Robert's permission to purchase the Curran, and that he gave his approval. But the parties disputed whether that approval was contingent on leasing the Curran back to SHN following the expiration of the Lurie lease on December 31, 2014. On December 15, 2010, Carole purchased the Curran through CSH Curran for $16.6 million, which she then rebranded as \"SHN Curran Theatre.\"19\nAfter Walter Shorenstein died in 2010, Carole began to feel that Robert was not interested in building a relationship with her. She was also worried about succession plans for SHN, and she \"felt maligned, and, indeed, somewhat bullied that [she] was the one who bought\" the Curran.20 Accordingly, Carole \"began to focus on obtaining sole control of the Company.\"21\nIn 2010 or 2011, Carole began instructing Greg Holland, who had been hired as SHN's CEO in 2001, not to communicate with Robert or Harris unless she and Jeff were present or part of the conversation. Yet, during that time, Carole and Holland were meeting together three or four times per week outside the presence of any Nederlander representatives. Concerned with Carole's instructions, Holland hired a personal attorney to advise him on the direction Carole had been giving him. At trial, he testified that Carole would often say that she viewed SHN as her company.22 Carole also felt that she was doing most of the SHN-related work, and she thought the LLC Agreement should better reflect her work on SHN's behalf.\nIn January 2012, Carole emailed Thomas Hart, one of her business associates and managers of her trusts, saying:\n[I]t just seems that the partnership has grown and evolved since it was originally drawn up ... and goodness, within me, dare I say, the Organization would be quite different, we should perhaps look at the whole document ... it's important that I maintain CONTROL ... so I might suggest this is the IDEAL time to completely restructure the Partnership Agreement ....23\nCarole also emailed Jeff and Hart in October 2012, stating that the new Curran *46lease \"should lead to [a] new management agreement.\"24 And in January 2013, Carole emailed Hart, saying: \"I think it is time together [sic] a new management agreement in place, Tom. Succession and fees are key. This is the appropriate time to involve [our lawyer] and get clarity. I firmly believe that to start with the [C]urran lease is foolish. We are in the prime spot.\"25 In addition to tying the Curran lease to a new LLC agreement, Carole sent several emails in January 2013 proposing the idea of blocking SHN's ability to make distributions until a new LLC agreement was in place. The trial court, citing testimony from Holland about Carole physically blocking an exit to a January 14, 2013 SHN board meeting, found that Carole \"acted on her desire for more control.\"26\nAs Carole contemplated methods to leverage a new LLC agreement, Hart and Harris had been negotiating a new lease of the Curran to SHN. But in an executive session of SHN's January 28, 2014 board meeting, the Hayses told Robert that they would not continue negotiating a lease on the Curran until a new LLC agreement was contemplated. Carole demanded a new LLC agreement \"to be more reflective of the time in which [they] lived, in that [Robert] was never in San Francisco, in that [she] could never get [Robert] on the phone, in that it became apparent that [Robert and Holland] were in constant communication and aligning.\"27 Carole even admitted at trial that had Robert offered to give her control through a new LLC agreement, she would have approved the Curran lease \"in a heartbeat.\"28\nAfter several follow-up emails between Robert and the Hayses in February 2014, including a threat of legal action against CSH, the Hayses filed suit in the Court of Chancery on February 24, 2014. In its Complaint, CSH sought a declaratory judgment that it would not be in breach of the LLC Agreement or Delaware law if it did not renew the Curran lease with SHN. Carole resigned as co-president and a director of SHN on June 2, 2014, as the relationship between the Nederlander and Shorenstein-Hays factions continued to deteriorate.29 Jeff remained a director of SHN for several more months, where, after at least one board meeting, he communicated SHN information to Carole. He did not resign as a director of SHN until October 27, 2014.\nDuring that time, the Hayses were also planning new ventures at the Curran. On August 1, 2014, Carole invested $1 million *47in the musical production Fun Home . In return, she gained an obligation on the part of Fun Home to \"endeavor to present the opening engagement at the Curran in San Francisco, taking into consideration the schedule and availability of the Curran,\" and a promise that it would not present the production in any other San Francisco area theater without Carole's approval.30 After SHN's lease of the Curran expired on December 31, 2014, the Hayses embarked on a multi-million-dollar renovation of the Curran. The Curran reopened in 2017, after which it staged award-winning Broadway shows like Bright Star , Fun Home , and Eclipsed .\nAs the litigation in the Declaratory Judgment Action continued in 2017, the Hayses booked two more Broadway hits. First, on December 11, 2017, Carole and the producers of Dear Evan Hansen entered into a production agreement to play at the Curran from December 5 to December 30, 2018. In that agreement, Carole guaranteed the producers at least $1.3 million per week in revenue.31 Carole also promised the producers \"financial protection in the event that [the Court of Chancery] enjoined the show from playing at the Curran.\"32 Second, the Hayses booked Harry Potter for a \"sit-down\" production scheduled to play from the fall of 2019 through December 31, 2022. The agreement with Ambassador Theater Group (\"Ambassador\"), an international theater owner and operator, included:\n(1) only allowing the presentation of \"an extended sit-down production of Harry Potter \" unless a replacement production is \"approved in writing in advance by [Carole],\" (2) guaranteeing revenue for [Carole], (3) Ambassador agreeing to hire current Curran personnel, and (4) [Carole] maintaining control over physical alterations to the theater necessary for Harry Potter .33\nAmbassador entered into a separate show license with Harry Potter's producers, which it signed simultaneously with its deal with CSH Curran on April 20, 2018. The producers of both Dear Evan Hansen and Harry Potter openly negotiated with multiple venues, including SHN theaters, that were competing against each other to stage the productions.34\nOn September 25, 2018, Nederlander brought the PI Action in the Court of Chancery. Nederlander argued that the defendants breached their contractual and fiduciary duties by entering into contracts to stage Dear Evan Hansen and Harry Potter in violation of the LLC Agreement. Nederlander sought to enjoin the defendants from presenting those plays at the Curran.\nII. Key Terms of the LLC Agreement\nAt the center of this dispute on appeal is Section 7.02 of the LLC Agreement, which provides:\nSECTION 7.02. Cooperation and Non-Competition.\n(a) The Shorenstein Entity and the Nederlander Entity hereby agree to devote their efforts to maximize the economic success of the Company and to avoid any conflicts of interests between the Members. All actions of the Members and their representatives with regard to the Company and theater matters will be carried out in good faith and in a prompt and expeditious manner.\n*48(b) Until the termination of the Company pursuant to this Agreement, neither the Shorenstein Entity nor the Nederlander Entity will stage any Production that it controls (as defined in Section 7.03) within 100 miles of San Francisco unless (i) such Production has first played in one of the Theatres; or (ii) such Production has been rejected for booking at one of the Theatres by the other Member's representative on the Board of Directors; or (iii) the Company shares in the profits and/or losses of any booking pursuant to an agreement mutually acceptable to the Members.35\nThe \"Shorenstein Entity\" and \"Nederlander Entity\" are defined through a series of definitions, beginning with the preamble to the LLC Agreement:\nThis Plan of Conversion and Operating Agreement (the \"Agreement\") of Shorenstein Hays-Nederlander Theatres LLC (the \"Company\") is entered into as of November 6, 2000 by and between CSH Theatres LLC, a Delaware limited liability company (together with any Permitted Tranferees, as hereinafter defined, the \"Shorenstein Entity\" ), and Nederlander of San Francisco Associates, a California general partnership (together with any Permitted Transferees, the \"Nederlander Entity\" ), as members.36\n\"Permitted Transferee\" \"means (a) an Affiliate of any Member or (b) in the case of a Nederlander Entity, a Nederlander Controlled Entity or any member of the Nederlander family.\"37 An \"Affiliate\" is \"a Person that, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with the subject Person.\"38 \"Control,\" \"Controls,\" and \"Controlled\" are defined as \"the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, through contract, or otherwise.\"39 Further, a \"Person\" is defined as \"an individual or a corporation, all types of partnership, trust, unincorporated organization, association, limited liability company or other entity.\"40 \"Members\" means \"the Shorenstein Entity and the Nederlander Entity and any additional Person who is admitted to the Company as a Member in accordance with this Agreement and is listed from time to time on the books and records of the Company.\"41\nFinally, two other provisions in Section 7 are relevant to this appeal. Section 7.03 defines \"control over the production\" as used in Section 7.02(b):\nSECTION 7.03. Most Favored Nation Treatment for Shorenstein and Nederlander Productions. If either the Shorenstein Entity or the Nederlander Entity or any Affiliate thereof has control over a Production, that Production and the relevant Theatre will be accorded \"most favored nation\" treatment by the other in theater licensing arrangements. For purposes of this Section 7.03, \"control over production\" means the Person having the ability to determine where the *49Production plays and the terms and conditions of said engagement .42\nSection 7.06 sets forth the parties' general ability to engage in non-SHN business:\nSECTION 7.06. Outside Activities. Subject to the other provisions of this ARTICLE VII, including Section 7.02, any Member, any Affiliate of any Member or any officer or director of the Company shall be entitled to and may have business interests and engage in business activities in addition to those relating to the Company, and may engage in the ownership, operation and management of businesses and activities, for its own account and for the account of others, and may (independently or with others, whether presently existing or hereafter created) own interests in the same properties as those in which the Company or the other Members own an interest, without having or incurring any obligation to offer any interest in such properties, businesses or activities to the Company or any other Member, and no other provision of this Agreement shall be deemed to prohibit any such Person from conducting such other businesses and activities. Neither the Company nor any Member shall have any rights in or to any independent ventures of any Member or the income or profits derived therefrom.43\nIII. The Court of Chancery Proceedings\nA. The Declaratory Judgment Action\nCSH sued Nederlander in the Court of Chancery on February 24, 2014, seeking a declaratory judgment that CSH would not be in violation of the LLC Agreement if it did not renew the Curran lease. Nederlander counterclaimed against CSH and asserted third-party claims against CSH Curran, Carole, and Jeff, including breaches of the LLC Agreement and breaches of the Hayses' fiduciary duties, among other claims. As to the breach of the LLC Agreement, Nederlander asserted \"that the Hayses were competing directly with SHN, misappropriated SHN's confidential information, and used the Curran as a means of attempting to seize control of the Company.\"44 The related common law fiduciary claims45 focused on \"(1) the competing shows; (2) the withholding of the Curran lease, (3) alleged misuse of confidential information; and (4) waste of assets.\"46 Nederlander sought relief in the form of damages, a permanent injunction, a declaratory judgment, and specific performance of renewal of the Curran lease.\nCSH moved to dismiss Nederlander's claims. In its April 21, 2015, Motion to Dismiss Opinion, the Court of Chancery granted in part and denied in part CSH's motion to dismiss.47 In that opinion, the *50court evaluated some of the contractual issues now relevant on appeal, and it held that the LLC Agreement was unclear in two respects. First , the court held that the definition of \"Shorenstein Entity\" was ambiguous. The court noted that a literal reading of the LLC Agreement's definitions includes \"Affiliates\" in the definition of \"Shorenstein Entity.\"48 As CSH pointed out, however, other provisions such as Section 7.03 refer to \"the Shorenstein Entity ... or any Affiliate thereof ,\" indicating that the parties may not have intended to bind Affiliates. Because the court held that CSH's interpretation was not the only plausible one, it declined to dismiss Nederlander's allegations of breach of the LLC Agreement.49\nSecond , the court held that the definition of \"control\" in Section 7.03 could have two potentially reasonable interpretations. CSH essentially argued that, because neither a producer nor theater owner could unilaterally set the terms of staging any play, \"control\" only encompasses actions in which the producer also owned the theater-although the court noted that \"[i]t is questionable whether this extremely narrow interpretation is reasonable.\"50 The court found Nederlander's interpretation to be reasonable in that, \"[b]ecause the family entities appear to be in the business of running theaters, rather than producing plays, the language and structure of Sections 7.02 and 7.03 seemingly contemplate shows being under one of the entities' 'control' even though the entity controls only the venue.\"51 Regardless, because the definition of \"control\" was possibly ambiguous, the court refused to dismiss that aspect of Nederlander's claims.\nThe parties proceeded to trial in late 2017, and the Court of Chancery issued its Declaratory Judgment Opinion on July 31, 2018. The Court of Chancery first held that Nederlander failed to meet its burden of showing that Carole promised to renew the lease of the Curran to SHN52 or that the promise was otherwise enforceable.53 The Court of Chancery also held that *51there were no contractual breaches, but that the Hayses breached their common law fiduciary duties while serving as directors and managers of SHN. The court first addressed the contractual claims. Looking to the plain text of the LLC Agreement, the court analyzed the definition of \"Shorenstein Entity\":\nThe LLC Agreement defines the \"Shorenstein Entity\" as CSH Theatres \"together with any Permitted Transferees.\" For the Shorenstein Entity, a Permitted Transferee is \"an Affiliate.\" An Affiliate is \"a Person that, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with the subject Person.\" Under the LLC Agreement, a Person is \"an individual or a corporation, all types of partnership, trust, unincorporated organization, association, limited liability company or other entity.\" Control, Controls, or Controlled \"means the possession, direct or indirect, of the power to direct or cause the direction of the management and polices of a Person, whether through the ownership of voting securities, through contract, or otherwise.\"\nUnder these definitions in the LLC Agreement, the Hayses and any entities they control are Affiliates and part of the Shorenstein Entity and, therefore, are bound by Section 7.02(a).54\nCSH objected to the court's interpretation of \"Shorenstein Entity\" because of the LLC Agreement's definition of \"Members,\" which is defined as \"the Shorenstein Entity and the Nederlander Entity,\" along with subsequently admitted members. If CSH is not synonymous with \"Shorenstein Entity\" and Nederlander is not synonymous with \"Nederlander Entity,\" CSH argued, it would lead to absurd results in other provisions. The trial court recognized that it \"may well be the case\" that its interpretation could lead to absurd results, but it noted that if it were to adopt CSH's interpretation, the string of definitions stemming from \"Shorenstein Entity\" would \"become mere surplusage.\"55 The court also reasoned that the drafters of the LLC Agreement used \"Members\" in certain provisions and \"the Shorenstein Entity and the Nederlander Entity\" in others, \"which suggests the terms mean different things.\"56 The court held that CSH's argument raised an ambiguity at the most.\nBecause of that possible ambiguity, the trial court considered extrinsic evidence. Looking at the supplement to the partnership agreement executed in 1992 that was meant to guard against competition by the Nederlanders, the court concluded that \"[t]he only way Walter and Carole's fears of competition by the Nederlanders are assuaged is if Nederlander Entity means more than just NSF Associates, which is consistent with the definition in the LLC Agreement.\"57 That is, if the partnership agreement or LLC Agreement applied only to Nederlander and CSH, it would do nothing to limit Nederlander competition-\" 'the most important thing' the agreement was meant to do.\"58 Additionally, the court found that Nederlander's course of conduct favored the court's interpretation. For example, Nederlander Affiliates in the San Francisco area made offers to SHN to participate in some, but not all, shows. The court reasoned that those offers would only be necessary if Affiliates *52believed they were bound by Section 7.02.59\nDespite holding that the Hayses and their affiliated entities are part of the \"Shorenstein Entity\" bound by Section 7.02(a), the court held that \"[w]hile Section 7.02(a) requires the 'Shorenstein Entity' to 'devote their efforts to maximize the economic success of the Company and avoid any conflicts of interest between the Members,' Section 7.06 contains an exception to this broad provision.\"60 The trial court further held that \"[t]his exception is itself limited by Section 7.02(b).\"61 In other words, the Shorenstein and Nederlander Entities may compete with SHN unless that competition violates Section 7.02(b)-that is, if it occurs in the form of staging a controlled production within one-hundred miles of San Francisco, assuming none of the exceptions in Section 7.02(b) applies.\nThe court held that, by staging Fun Home , Carole appeared to have violated the general prohibition in Section 7.02(b) on staging controlled productions within one-hundred miles of San Francisco because she had invested $1 million in the venture and received the right of first refusal to stage the production in the Bay Area.62 Thus, Carole had \"control\" of Fun Home as defined in Section 7.03. Although Fun Home had not played at either of SHN's theaters, the court noted that there was no evidence in the record regarding whether the other exceptions to the one-hundred-mile prohibition applied, e.g. , whether the Nederlanders had rejected Fun Home or entered a profit-sharing agreement with CSH's presentation at the Curran. Because of those failures of proof, along with Nederlander's failure to prove damages related to the staging of Fun Home , the court held that Nederlander had not satisfied the final element in its breach of contract claim.63\nAs to the common law fiduciary claims, the court held that Carole breached her duty of loyalty as a director and co-president of SHN by (1) threatening fellow board members with refusing to approve the subscription series64 unless Robert *53agreed to give her more control of SHN, (2) using her fiduciary position to prevent SHN from pursuing shows she wanted for her competing business, and (3) instructing Holland not to communicate with her co-president and fellow SHN directors.65 Likewise, the court held that Jeff breached his common law fiduciary duties as a director of SHN by sharing confidential information with a director of a competitor company and attempting to secure confidential information to hire away SHN's employees. \"These actions were not in the best interest of the Company; instead the Hayses took these actions, while acting in their capacities as fiduciaries of the Company, to advance their own interest at the expense of the Company.\"66\nAs to damages, Nederlander presented \"one unified remedy theory\" in which it alleged that the Hayses' conduct was part of a larger scheme to take control of SHN, or, if that failed, to sabotage and improperly compete with SHN.67 The court held that it was unable to award damages for the parts of Nederlander's case that it was able to prove because \"it has given me no way to separate the actual harm to the Company from the consequences of allowed behavior by the Hayses.\"68 Specifically, the court observed that:\n[Nederlander] has not provided the Court with any information about the harm caused to the Company by (1) the Company's reliance on the purported promise to lease the Curran to the Company-e.g., the rebranding of the Curran and the booking of shows into the Curran after December 31, 2014; (2) the Hayses attempting to steal shows from the Company; (3) the Hayses presenting shows that violate Section 7.02(b); (4) Carole's threats and actions that violated her fiduciary duties while she was a manager of the Company; or (5) Jeff's disclosure of confidential information to Carole while he was a manager of the Company. Any attempt by the Court to determine the harm caused by these actions would be entirely speculative conjecture, and thus, I award only nominal damages for the breaches of fiduciary duty .69\nOn September 20, 2018, the Court of Chancery entered its final order and judgment in the Declaratory Judgment Action.70 The court ruled in favor of CSH on its sole count of declaratory judgment, holding that it did not breach the LLC Agreement or any other duty by not renewing the Curran lease with SHN. As to Nederlander's Counterclaims, the court entered judgment on Count I (breach of common law fiduciary duties) in Nederlander's favor and awarded nominal damages. The court also enjoined the Hayses from using confidential SHN information to compete with SHN. Further, the court granted partial relief as to Count VI (declaratory judgment), in which the court declared that Section 7.02(b) applies to *54CSH and its Affiliates as a part of the Shorenstein Entity and that the Hayses breached their fiduciary duties as directors and managers of SHN. However, the court declared that CSH may operate the Curran in competition with SHN as long as it complies with Section 7.02(b). The trial court denied all other claims asserted under Count VI (declaratory judgment), and it dismissed all remaining counts in Nederlander's Counterclaims.71 Finally, the court awarded attorney' fees and costs of $32,219.94 to Nederlander for Carole's bad faith deposition conduct.72\nFollowing issuance of the post-trial decision and final judgment in the Declaratory Judgment Action, on August 6, 2018, Nederlander and SHN filed a Motion for Clarification. They argued that \"the Opinion should be clarified to state that the Shorenstein Entity must comply with Section 7.02(b) with respect to Dear Evan Hansen and Harry Potter .\"73 The trial court denied the motion, holding that \"the existence of Dear Evan Hansen and Harry Potter is not new evidence about the definition of control under Sections 7.02(b) and 7.03 of the LLC Agreement,\" and that, \"[i]nstead, these productions at the Curran are new potential breaches, and Counterclaim Plaintiff will have to litigate them as such.\"74\nB. The PI Action\nAccordingly, and on September 25, 2018, Nederlander filed the PI Action in the Court of Chancery to prevent the Hayses from staging Dear Evan Hansen and Harry Potter at the Curran, arguing that they controlled both productions and had breached Section 7.02(b).75 In part of its analysis in the PI Decision, the court interpreted Nederlander's argument to mean that staging virtually any production at the Curran amounts to control as defined in Section 7.03. The court rejected that argument for several reasons.\nFirst , the court held that Nederlander's interpretation would turn \"large parts of Section 7 of the LLC Agreement into 'mere surplusage.' \"76 Second , although the court considered Section 7.02 unambiguous, it looked to extrinsic evidence for additional support. It noted that Section 4 of the partnership agreement barred staging any production, while Section 7.02(b) of the LLC Agreement narrowed the provision to controlled productions. The trial court concluded from that change \"that 'stage' and 'control' do not have the same *55meaning.\"77 Third , the court distinguished Dear Evan Hansen and Harry Potter from Fun Home -which the court held in the Declaratory Judgment Action was a Hays-controlled production-based on several important facts that Nederlander had acknowledged. Thus, because \"[s]taging does not mean control under the LLC Agreement,\" the court held that Nederlander \"failed to show a likelihood of success on the merits\" necessary to win a preliminary injunction.78 The court then entered final judgment as to Nederlander's alleged breach of Section 7.02(b) pursuant to Court of Chancery Rule 54(b).\nIV. Claims on Appeal\nNederlander raises two arguments on appeal. First , as to the Declaratory Judgment Action, it argues that the Hayses breached their duty under Section 7.02(a) to maximize SHN's economic success by staging competing productions at the Curran.79 Nederlander claims that the Court of Chancery erred by subjecting Section 7.02(a) to Section 7.06, which the court held allowed competition unless that competition violated Section 7.02(b). Nederlander did not appeal (and did not discuss in its opening brief) any of the trial court's rulings denying relief in the form of damages, declaratory relief (as to renewal of the lease), permanent injunctive relief, or disgorgement. Second , Nederlander argues, in the alternative,80 that the court erred in the PI Action by holding that the Hayses did not \"control\" Dear Evan Hansen and Harry Potter , and that the trial court \"mischaracterized\" and \"misunderstood\" its arguments. Nederlander does not challenge any of the factual findings relating to that decision.81\n*56On cross-appeal, CSH contends that Nederlander's arguments are irrelevant because the trial court incorrectly held in the Declaratory Judgment Action that CSH's Affiliates, including the Hayses, are bound by Section 7.02. CSH also contends that Nederlander waived any claim under Section 7.02(a) because it abandoned that theory in the Declaratory Judgment Action.\nV. Standard of Review\n\"This Court 'will uphold the trial court's factual findings unless they are clearly erroneous.' We review questions of law and contractual interpretation, including the interpretation of LLC agreements, de novo .\"82\nVI. Analysis\nWe first address the threshold question on cross-appeal, in which CSH argues that the Court of Chancery erred by holding that CSH Affiliates are included in the definition of \"Shorenstein Entity.\" Next, we consider Nederlander's primary argument on appeal: that the Court of Chancery erred in its interpretation of Section 7.02(a) in the Declaratory Judgment Action. We conclude by addressing Nederlander's alternative argument that the court erred in the PI Action by holding that CSH does not \"control\" Dear Evan Hansen and Harry Potter .\nWe agree with Nederlander that the Court of Chancery misinterpreted Section 7.02(a), and we reverse that aspect of that decision. But we decline to order a remand in the Declaratory Judgment Action because Nederlander has not challenged the trial court's ruling in that action that it failed to prove damages relating to its contractual or fiduciary claims. Nor does it address on appeal in any way the denial of other possible forms of relief. However, reversal of the trial court's interpretation of Section 7.02(a) in the Declaratory Judgment Action impacts the decision in the PI Action. Although we are reluctant to remand the PI Action for the reasons stated below, we reverse and remand for further proceedings consistent with this Opinion.\nA. We Affirm the Court of Chancery's Interpretation of \"Shorenstein Entity\" in the Declaratory Judgment Action\nOn cross-appeal, CSH argues that the Court of Chancery erred in the Declaratory Judgment Action by holding that \"Shorenstein Entity\" includes CSH Affiliates, including the Hayses, and therefore Section 7.02 does not bind Affiliates of CSH. It relies on both the plain language of the LLC Agreement and extrinsic evidence. If CSH is correct that Section 7.02 binds only Nederlander and CSH, then Nederlander's arguments on appeal must fail.\nWe interpret contracts \"as a whole and we will give each provision and term effect, so as not to render any part of the contract mere surplusage,\" and \"will not read a contract to render a provision or term meaningless or illusory.\"83 \"When the contract is clear and unambiguous, we will give effect to the plain-meaning of the *57contract's terms and provisions.\"84 \"When a contract's plain meaning, in the context of the overall structure of the contract, is susceptible to more than one reasonable interpretation, courts may consider extrinsic evidence to resolve the ambiguity.\"85 Applying those principles, we affirm the Court of Chancery's interpretation of \"Shorenstein Entity.\"\nCSH advances two primary arguments in support of its position that \"Shorenstein Entity\" means only CSH. First , it argues that as a general principle, only formal parties-CSH and Nederlander-are bound by the terms of the LLC Agreement. As such, \"Permitted Transferees\" refers only to parties that may one day become \"Members\" and thereafter part of the Shorenstein Entity. Second , CSH argues that the trial court's interpretation creates absurdities and surplusage. For example, because the term \"Members\" in the LLC Agreement is defined as the Shorenstein and Nederlander Entities, the trial court's interpretation would grant Affiliates the same distribution and voting rights as Nederlander and CSH. Additionally, CSH argues that other sections of the LLC Agreement, such as Section 7.03, include terms like \"the Shorenstein Entity or the Nederlander Entity or any Affiliate thereof ,\" which would be superfluous if the entities include Affiliates by definition.\nWe reject both of CSH's arguments. Plainly read, \"Permitted Transferees\" is defined as \"an Affiliate of any Member\"-not an Affiliate of any Member who has received or will receive transferred membership interests. Contracts may impose obligations on affiliates in this context.86 Additionally, the LLC Agreement contains some inconsistencies and contractual surplusage regardless of whose interpretation is applied. For example, CSH's interpretation renders the definition of \"Shorenstein Entity\" and \"Nederlander Entity\" in the preamble to the LLC Agreement mere surplusage, and the trial court's interpretation renders some of the language in provisions like Section 7.03 unnecessary. Further, as the trial court noted, the LLC Agreement uses both \"Members\" and \"Nederlander Entity\" or \"Shorenstein Entity,\" which suggests that they have different meanings.\nWe agree with the Court of Chancery's initial determination in the Motion to Dismiss Opinion that those inconsistencies render the meaning of \"Shorenstein Entity\" and \"Nederlander Entity\" ambiguous.87 Nonetheless, CSH argues that the extrinsic evidence supports its interpretation.88 We disagree and instead find no fault with, *58and defer to, the trial court's evaluation of the extrinsic evidence.89\nIn light of the previous litigation between the Nederlander and Shorenstein partners, the trial court noted that limiting competition from the Nederlanders was \" 'the most important thing' the agreement was meant to do.\"90 The court also reasoned that limiting the partnership and LLC Agreements to only the partner or member entities \"would do nothing to limit competition\" from the Nederlanders.91 Indeed, under CSH's interpretation, it could set up a shell entity next door to the other theaters and compete directly with SHN's core business. Further, the trial court found that Nederlander Affiliates in or near San Francisco had made offers to SHN to participate in certain shows.92 That is, the conduct of Nederlander Affiliates indicates that they considered themselves to be bound by Section 7.02. We agree with the Court of Chancery that Affiliates are bound by Section 7.02, and we affirm that aspect of the Declaratory Judgment Opinion.\nB. The Court of Chancery Erred in Interpreting Sections 7.02(a) and 7.06\nNederlander argues on appeal that the Court of Chancery misinterpreted Section 7.02(a) of the LLC Agreement in the Declaratory Judgment Opinion by subjecting it to Section 7.06, which, the court held, allows competition between CSH and SHN subject to the limitations in Section 7.02(b). CSH argues that the court's determination was correct, but that we need not reach the merits of that argument because Nederlander abandoned its Section 7.02(a) claim below. We first address the threshold issues of abandonment and waiver in the Declaratory Judgment Action, followed by the merits of Nederlander's Section 7.02(a) argument. We conclude that Nederlander fairly raised its Section 7.02(a) argument in the Declaratory Judgment Action, but that the Court of Chancery erred in its interpretation of that provision.\n1. Nederlander Fairly Presented its Section 7.02(a) Claim in the Declaratory Judgment Action\nCSH's contention that Nederlander did not fairly present its Section 7.02(a) argument in the Declaratory Judgment Action largely focuses on two points. First , CSH claims that Nederlander abandoned its Section 7.02(a) argument in its briefing. A review of the briefing below reveals that this argument is incorrect. In Count II of its counterclaims, Nederlander alleged that:\nSection 7.02(a) of the LLC Agreement requires members and their affiliates to devote their efforts to maximize SHN's economic success, avoid conflicts of interests between members, and act in regard to the Company and theatre matters in a good faith and prompt and expeditious manner.... By failing to act in good faith by withholding use of the Curran Theatre, lying in regard to the purchase-lease agreement, stalling lease renewal efforts, blocking theatre sponsorships and advertisements, wasting corporate assets, promoting their own interests to the detriment of SHN, directly competing with SHN, using *59SHN's confidential and proprietary information to further this competition, and attempting to seize control of the Company and unilaterally rewrite the terms of the LLC Agreement, CSH, through Mr. and Mrs. Hays, has breached the LLC Agreement.93\nNederlander likewise consistently advanced Section 7.02(a) in its pretrial briefing, either expressly or by referencing language found only in Section 7.02(a):\n• \"The LLC Agreement obligates the Shorenstein Entity (CSH) and its Affiliates (the Hayses and CSH Curran) to devote their efforts to maximize the economic success of SHN and to avoid any conflicts of interest between the Members. JX 10, LLC Agreement § 7.02(a). It provides further that all actions of CSH, its Affiliates, and their representatives must be carried out in good faith and in a prompt and expeditious manner.\"94\n• \"The Hays Group has breached the fiduciary and contractual duties owed to SHN and NSF.... [T]he Hays Group and CSH refused to act in the best interest of SHN and to maximize SHN's business. Most significantly, the Hays Group refused to lease the Curran Theater to SHN and, over the recommendation of their attorneys, established a competing business at the Curran.\"95\n• \"The fiduciary duties CSH and the Hayses owed to [Nederlander] and SHN are mirrored in the LLC Agreement, which obligates the Shorenstein Entity to devote its efforts to maximize the economic success of SHN and to avoid any conflicts of interest between the Members.... The Hays Group willfully and in bad faith breached these obligations.\"96\nFinally, Nederlander preserved its Section 7.02(a) arguments in its post-trial briefing:\n• \"Perhaps most egregious, the Hayses' position, if accepted, would permanently harm SHN, leaving the Company to face a lifetime of improper competition from a 50% owner, which started this unlawful competition while its principals were SHN officers or directors, with duties of loyalty and duties to maximize SHN's economic success.\"97\n• \"Section 7.02 of the LLC Agreement imposes duties on the Hays Group, including duties to 'maximize the economic success of [SHN]'; 'avoid any conflicts of interest between the Members'; act 'in good faith'; and avoid competition within 100 miles of San Francisco unless certain conditions (not met here) have been satisfied. Mr. Nederlander and Mr. Harris have always understood that Section 7.02 binds both the Nederlander and Shorenstein affiliates. Prior to trial, the Hayses admitted that, as directors, officers, or owners, they had duties to act in SHN's best interests, maximize the company's success, act in good faith, maintain SHN's confidential information, *60avoid conflicts between the Members, and not compete with SHN within 100 miles.\"98\n• \"These [fiduciary] duties are mirrored in the LLC Agreement. See ... § 7.02(a) (imposing duties to maximize SHN's economic success; avoid Member conflicts; and carry out actions in good faith) .... The evidence establishes conclusively that the Hays Group knowingly acted in bad faith, breached the duty of loyalty, and caused CSH to breach the contractual duties in the LLC Agreement by: Competing against SHN, and not acting in SHN's best interests, by presenting Broadway shows at the Curran that SHN sought to present ... [f]ailing to otherwise act in the best interests of SHN, and to maximize SHN's business, by refusing to renew the Curran lease; attempting to bar SHN's CEO from meeting with agents and producers .... None of these actions was in SHN's best interest. Rather, they were taken solely to benefit the Hayses and their competing business at the Curran. By putting their own interests ahead of SHN's interests, the Hays Group breached the LLC Agreement and the duty of loyalty (including the duty to act in good faith).\"99\n• \"The Hayses were warned by counsel that operating the Curran outside of SHN would expose them to litigation risk, and the Hayses acknowledged that they had duties not to compete, to maximize SHN's economic interests, and to maintain SHN's information in confidence. They knowingly violated each of these duties.\"100\nAlthough Nederlander's post-trial briefs clearly focused much more on Section 7.02(b) than Section 7.02(a), Nederlander fairly raised and preserved its Section 7.02(a) argument in its briefing in the Declaratory Judgment Action.\nSecond , CSH argues that Nederlander waived its Section 7.02(a) claim because Robert \"unequivocally testified that Section 7.02(a) applies to 'just NSF' 'on the Nederlander side, and that NSF's Permitted Transferees 'didn't have to' 'devote[ ] their efforts to maximizing the success of SHN.' \"101 The Court of Chancery made no findings concerning the credibility or meaning of Robert's testimony on this point, and it declined to afford any weight to the \"inordinate emphasis\" the parties placed on fact witnesses' testimony on legal questions.102 Further, read in its full *61context, Robert's testimony appears to be inconsistent on its face.103 Based upon the record before us, we decline to conclude that Robert's inconsistent trial testimony effected a waiver of Nederlander's Section 7.02(a) argument.\n2. The Court of Chancery Misinterpreted Section 7.02(a)\nNederlander contends that the Court of Chancery erred because finding that \"Section 7.06 allows competition, without regard to the obligations expressed in Section 7.02(a), contravenes the plain language of the LLC Agreement and deprives Section 7.02(a) of meaningful effect.\"104 The court held that \"[w]hile Section 7.02(a) requires the 'Shorenstein Entity' to 'devote their efforts to maximize the economic success of the Company and avoid any conflicts of interest between the Members,' Section 7.06 contains an exception to this broad provision.\"105 The court then held that Section 7.02(b) limited Section 7.06.106\nWe see two problems with the court's interpretation. First , Section 7.06 does not discuss competition . Rather, Section 7.06 provides that:\nSECTION 7.06. Outside Activities. Subject to the other provisions of this ARTICLE\n*62VII, including Section 7.02 , any Member, any Affiliate of any Member or any officer or director of the Company shall be entitled to and may have business interests and engage in business activities in addition to those relating to the Company , and may engage in the ownership, operation and management of businesses and activities, for its own account and for the account of others, and may (independently or with others, whether presently existing or hereafter created) own interests in the same properties as those in which the Company or the other Members own an interest, without having or incurring any obligation to offer any interest in such properties, businesses or activities to the Company or any other Member, and no other provision of this Agreement shall be deemed to prohibit any such Person from conducting such other businesses and activities. Neither the Company nor any Member shall have any rights in or to any independent ventures of any Member or the income or profits derived therefrom.107\nThis provision speaks to the parties' rights to engage in outside business activities-it says nothing about the right to compete against SHN.108\nSecond , and even more problematic, the trial court held that Section 7.02(b), but not Section 7.02(a), limited Section 7.06. In doing so, the court ignored the language stating that Section 7.06 is subject to Section 7.02 in its entirety. Section 7.06's \"subject to\" provision does not exclude Subsection 7.02(a). The plain language reading of Section 7.06 is that individuals and entities bound by the LLC Agreement may engage in business unless that business interferes with the obligations in Section 7.02, including the obligation in Section 7.02(a) to maximize the economic success of SHN and avoid conflicts of interest.\nEven so, Section 7.02(a) must still be interpreted in light of Section 7.02(b), which is a more narrowly drafted provision. Usually, \"[s]pecific language in a contract controls over general language, and where specific and general provisions conflict, the specific provision ordinarily qualifies the meaning of the general one.\"109 We must therefore consider how those provisions interact and the extent to which Section 7.02(a) is qualified by Section 7.02(b).\nOne possible reading of Section 7.02(b) is that it qualifies Section 7.02(a) entirely as to competing productions. Under that reading, because Section 7.02(b) only limits controlled productions, it implicitly allows competing productions near San Francisco so long as they are not under the \"control\" of either entity. If so, the key question in Nederlander's Section 7.02(a) breach allegation is whether CSH \"controls\" the productions it stages at the Curran. Nederlander, however, advocates for another reading of Section 7.02(a)-one in which Section 7.02(a) is in harmony with Section 7.02(b), rather than entirely qualified by it.110 Under that reading, either entity can *63stage a production it does not control only if staging that production would also not undermine the duty to maximize SHN's success. In other words, there is some competition not within Section 7.02(b)'s exceptions that is prohibited by Section 7.02(a).\nSection 7.02 is at least arguably ambiguous. The Court of Chancery did not discuss the direct interaction between Sections 7.02(a) and (b), but it did make findings based on the extrinsic evidence that are relevant to the interpretation of Sections 7.02(a) and (b).111 The trial court found that Walter Shorenstein initiated litigation in the early 1990s because James Nederlander was allegedly competing with their partnership in the areas surrounding San Francisco. The two partners settled that litigation in 1992. As a part of that settlement they included Section 4 of the partnership agreement, which the court found was \"substantially similar\" to Section 7.02 and included the duty to \"devote their efforts to maximize the economic success of the Partnership and avoid conflicts of interest.\"112 The trial court found that limiting competition was \" 'the most important thing' the agreement was meant to do.\"113 Additionally, the historic Curran Theatre was one of three theaters controlled by SHN in San Francisco. These three theaters were close in proximity and were part of the entity's core business.114\nThose findings, combined with Section 7.02(a)'s plain language that the Shorenstein and Nederlander Entities must devote their efforts to maximizing SHN's economic success, are fundamentally inconsistent with the trial court's conclusion that Sections 7.02(b) and 7.06 generally allow competition that could undermine the economic success of SHN. Although the outer contours of Section 7.02(a)'s requirement that the Shorenstein and Nederlander Entities \"devote their efforts to maximize the economic success\" of SHN may be unclear, at its essence, Section 7.02(a) establishes a contractual duty to SHN to not engage in competitive activities that would undermine the economic success of SHN, or that would create conflicts of interest between the Members. Thus, CSH cannot itself or through its Affiliates use the Curran to compete with the core business of SHN if such competition would not maximize the economic success of SHN, unless the competition involves \"controlled productions\" falling within one of Section 7.02(b)'s exceptions.115\n*64Although we hold that the trial court erred in its interpretation of Section 7.02(a), we decline to order a remand in the Declaratory Judgment Action. Nederlander has not challenged on appeal the trial court's award of nominal damages based on Nederlander's \"unified remedy theory.\"116 Nederlander does not attempt to explain how damages from a breach of Section 7.02(a), which it interprets to be a contractual duty of loyalty, would differ from the nominal damages the trial court found for the Hayses' breach of the common law fiduciary duty of loyalty. Further, Nederlander has not challenged any other aspect of the court's damages analysis.117 Nor has it appealed the denial of any other forms of relief.\nAs for the PI Action, it is a much closer question as to whether Nederlander fairly presented and preserved its Section 7.02(a) argument. Nederlander quoted Section 7.02(a) in its PI complaint and stated that \"the Shorenstein Entity is bound by the provisions of the LLC Agreement,\" including Section 7.02(a).118 The complaint further alleges that the Shorenstein Entity breached \"the contractual anti-competition\" provisions set forth in the LLC Agreement, including Section 7.02(a).119 The subsequent briefing, however, is largely silent on Section 7.02(a).120 In addition, Nederlander never directly referenced Section 7.02(a) during oral argument in the PI Action.\nNederlander raises a practical point: Nederlander stated in oral argument on appeal that it did not \"focus on\" its Section 7.02(a) claim in the PI Action because it *65would \"not [be] very persuasive to say we're going to succeed on the merits on a claim [where the Vice Chancellor] already entered judgment against us\" in the Declaratory Judgment Action.121 Counsel's hesitation to press its Section 7.02(a) argument in the PI Action is perhaps understandable. But Nederlander's delay in challenging that ruling is less understandable if it intended to press its Section 7.02(a) theory in the PI Action. For example, Nederlander chose not to move for re-argument of its Section 7.02(a) argument in the Declaratory Judgment Action-even though it sought clarification of other issues in that action. And it did not promptly appeal the Declaratory Judgment Opinion to seek a review of its Section 7.02(a) claim of error. Instead, Nederlander took the full thirty days to file an appeal. Further, Nederlander filed a new action challenging Dear Evan Hansen and Harry Potter that focused on Section 7.02(b), and only stated in a footnote to its reply brief in the PI Action that \"SHN and NSF reserve their rights to enforce Defendants' conduct that violates Section 7.02(a).\"122\nGiven those facts and Nederlander's request (made only in the PI Action) that this Court issue an expedited decision before July 1, 2019, we are tempted to deny Nederlander an opportunity to press its Section 7.02(a) theory on remand in the PI Action as to Dear Evan Hansen and Harry Potter .123 However, given the complicated procedural posture and timing of events in the two related cases, and the fact that the trial court entered partial final judgment only upon Count I of Nederlander's complaint in the PI Action,124 we reject the Hayses' claim that Nederlander has completely waived Section 7.02(a), and we order a remand in the PI Action so that the impact of this court's reversal of the Section 7.02(a) ruling in the Declaratory Judgment Action may be considered. As to its other claims in the PI Action, Nederlander only tangentially mentioned them in a footnote of its opening brief in that action,125 and, thus, the trial court declined to rule on them.126 Although it appears to us that *66the trial court concluded that those claims had been abandoned for all purposes, because we remand the PI Action, we ask the trial court to determine whether any of those claims, and which remedies, if pressed by Nederlander, remain viable.\nWe remind the parties that the trial court has wide discretion to appropriately narrow proceedings on remand, particularly given the extensive proceedings that have already taken place. And more specifically, given Nederlander's apparent choice to defer any challenge to the Section 7.02(a) ruling until after obtaining the ruling in the PI Action, we think, absent new and compelling factual developments, that the trial court would be well within its discretion to deny any renewed request for expedited preliminary injunction proceedings as to the two productions at issue in the PI Action.127\nC. We Find No Error in the Court of Chancery's Interpretation and Application of Section 7.03 in the PI Action\nNederlander contends on appeal that the Court of Chancery erred in its interpretation and application of \"control,\" as defined in Section 7.03, as to Dear Evan Hansen and Harry Potter in the PI Action.128 Specifically, Nederlander claims that the trial court \"misunderstood\" and \"consequently mischaracterized\" its argument to mean that the Hayses control any production that they stage at the Curran, and that it therefore \"never considered the facts supporting [its] claim or the merits of the claim.\"129 We reject Nederlander's claim of error for two reasons. First , the trial court did not \"misunderstand\" or \"mischaracterize\" Nederlander's arguments. Rather, it addressed the very arguments that Nederlander presented. Second , the trial court actually did consider the relevant facts and the merits of Nederlander's control arguments.\nAs to the first issue, Nederlander argues that the trial court erred by interpreting its argument to mean that the Hayses \"control every play that is staged (i.e. presented) at the Curran if they engage in the 'making of the agreement' or if they retain any influence over programming,\" and thus, \"in essence, [Nederlander] argues that [the Hayses] control any production *67that they stage.\"130 Instead, Nederlander claims to have argued that, between the two extremes of passive ownership of a theater and total control of both the production and theater,131 there \"lies a broad middle space where the issue of control over production becomes highly fact-dependent,\" and that \"the specific rights the Hayses had obtained for themselves in connection with staging DEH and Harry Potter were sufficient to give the Hayses joint control over those productions.\"132\nBut on the question of what constitutes \"joint control,\" Nederlander argued below that \"[p]roducers and theater operators jointly determine the location and terms\" and that it is merely \"the making of an agreement between a theater operator and producer that provides them both with control over the engagement.\"133 Nederlander also argued: \"It is undisputed that theater operators and producers jointly control the terms of the engagement. Even where a producer has substantial leverage, the theater operator remains free to accept, reject, or attempt to negotiate the terms of the engagement.\"134 As to what kind of staging at the Curran would not result in joint control, Nederlander offered the long-term Lurie lease as an example:\n[The Hayses] argue that NSF's interpretation makes the phrase \"control over production\" meaningless because NSF's interpretation encompasses every show that will play at the Curran. [The Hayses] are wrong. As the Court is aware, the Curran was leased for decades by the Luries to SHN. The Luries owned the [Curran], but they did not control any production that played at the theater because they (unlike [the Hayses] ) agreed to a lease that ceded control over particular shows and their terms to SHN.135\nFrom those statements, the trial court interpreted Nederlander's argument to mean that control \"exist[s] under the LLC Agreement anytime Defendants 'stage' (i.e. , present) a show directly (rather than through a passive lease with another party controlling all programming such as the choice of production, pricing, marketing, etc.).\"136 We hold that this was a reasonable *68interpretation of Nederlander's position, and we find no error with the trial court's analysis of those arguments.\nAs to the second issue, the Court of Chancery fully considered the merits of Nederlander's argument. In doing so, it cited the relevant facts and distinguished them from its interpretation and application of Section 7.03 to Fun Home in the Declaratory Judgment Action-a ruling and analysis that Nederlander has not contested.137 In fact, Nederlander, in its opening brief on appeal, affirmatively states that it \"agrees with the trial court's interpretation of 'control over the production' in the\" Declaratory Judgment Action, and that \"the court properly concluded that the Hayses had 'control' over Fun Home.\"138 Regarding Dear Evan Hansen , the court recognized Nederlander's argument that the Hayses controlled \"[t]he financial terms, the number of performances, the dates, the duration of the show,\" \"[t]icketing fees, for example, facility fees,\" \"[s]eat sales, sale dates, [and] the dynamic pricing arrangement.\"139 Similarly, as to Harry Potter , the court cited Nederlander's arguments that the Hayses had \"control over terms and conditions,\" including \"that [Carole] had to approve the manager of [the] operation ... [and got] priority seating requirements for subscribers,\" and that she \"had final say over physical renovations to the [Curran].\"140\nBut the trial court noted that, unlike in Fun Home , \"the Defendants had no independent right or authority to cause DEH or Harry Potter to play at the Curran or to set the terms for either play,\" and that \"DEH or Harry Potter could have chosen to play at an SHN theater without breaching any obligation to any of the Defendants.\"141 The terms that the Hayses and the producers did agree upon were the \"product of negotiations that occurred simply because Hays's affiliate owns the Curran and she had the ability to say no to a request to use the Curran on terms that she did not find agreeable.\"142 Additionally, the trial court expressly found that the producers of Dear Evan Hansen and Harry Potter \"openly negotiated with multiple venues\" in San Francisco, and that \"the parties engaged in an open competition to show both DEH and Harry Potter .\"143 Thus, the court concluded, \"the facts of Fun Home do not apply.\"144\nBased on those factual findings-which Nederlander did not challenge below and has not challenged on appeal-the court held that Nederlander had \"failed to show *69a likelihood of success on the merits\"145 and entered final judgment as to Nederlander's alleged breach of Section 7.02(b) pursuant to Court of Chancery Rule 54(b).146 We agree with the Court of Chancery's analysis and affirm that aspect of the PI Decision.\nVII. Conclusion\nFor the foregoing reasons, we AFFIRM in part, and REVERSE in part, the Court of Chancery's July 31, 2018 opinion, and we AFFIRM in part, REVERSE in part, and REMAND the Court of Chancery's November 30, 2018 opinion for further proceedings consistent with this Opinion. This Court expects the parties to work together in a cooperative manner in the proceedings on remand so that any remaining issues can be appropriately narrowed and resolved by the trial court in an efficient manner.\nAddendum\nFinally, we comment on one last point that was addressed by the trial court, but is not an issue raised by the parties on appeal, namely, the deposition misconduct by Carole Shorenstein Hays.147 In Paramount Communications Inc. v. QVC Network Inc. ,148 this Court addressed, in an Addendum, deposition misconduct by a lawyer at a deposition. This Addendum addresses a less frequently discussed corollary concerning the duty of counsel who is faced with a deponent's inappropriate conduct at a deposition.\nIn Paramount , the Supreme Court, sua sponte , addressed misconduct by out-of-state counsel who was representing a director of Paramount Communications in a deposition. That attorney was barred in Texas, was not admitted pro hac vice , and did not otherwise appear in the Delaware proceeding representing any party. No member of the Delaware bar was present at the deposition representing any of the defendants or the stockholder plaintiffs.\nAfter examining the deposition transcript, the Supreme Court held that the attorney had abused the privilege of representing a witness in a Delaware proceeding by: (a) improperly directing the witness not to answer certain questions; (b) being extraordinarily rude, uncivil, and vulgar; and (c) obstructing the ability of the questioner to elicit testimony to assist the court in the pending matter.149\nThe Supreme Court found the unprofessional behavior to be \"outrageous and unacceptable.\"150 After quoting portions of the deposition transcript, we stated:\nAs noted, this was a deposition of Paramount through one of its directors. Mr. Liedtke was a Paramount witness in every respect. He was not there either as an individual defendant or as a third party witness. Pursuant to Ch. Ct. R. 170(d), the Paramount defendants should have been represented at the deposition by a Delaware lawyer or a lawyer admitted pro hac vice . A Delaware lawyer who moves the admission pro hac *70vice of an out-of-state lawyer is not relieved of responsibility, is required to appear at all court proceedings (except depositions when a lawyer admitted pro hac vice is present), shall certify that the lawyer appearing pro hac vice is reputable and competent, and that the Delaware lawyer is in a position to recommend the out-of-state lawyer. Thus, one of the principal purposes of the pro hac vice rules is to assure that, if a Delaware lawyer is not to be present at a deposition, the lawyer admitted pro hac vice will be there. As such, he is an officer of the Delaware Court, subject to control of the Court to ensure the integrity of the proceeding.151\nThis Court stated that counsel attending the deposition on behalf of the Paramount defendants had an obligation to ensure the integrity of the proceeding. We stated further that a Delaware lawyer, or a lawyer admitted pro hac vice , would have been expected to put an end to the misconduct in the deposition.152 As in Paramount , although this Addendum has no bearing on the outcome of the case, we are compelled to address Hays's misconduct and the role of her counsel when faced with such a situation.\nThe following are excerpts of her deposition testimony. Most of these excerpts were reprinted at the end of the Court of Chancery's Declaratory Judgment Opinion and formed the basis for the trial court's award attorneys' fees and costs:153\nQ. Have you ever been deposed before?\nA. Yes .\nQ. How many times?\nA. Once .\nQ. When?\nA. I believe it was a while ago .\nQ. What was the matter about?\nA. It was a difference of opinions .\nQ. I'm sorry, go ahead. Were you done with your answer?\nA. Yes .\nQ. A difference of opinion about what?\nA. How best to proceed in one's lives .\nQ. Was it involving a lawsuit?\nA. Oh, definitely .154\n....\nQ. Did you ever meet with your counsel in advance of this deposition?\nA. Oh, absolutely .\nQ. How much time did you spend with your counsel to prepare for the deposition?\nA. Sufficient .\nQ. How much is sufficient?\nA. The appropriate amount needed .\nQ. Can you give me an estimate of the amount of time?\nA. It was completely enjoyable .\nQ. How many times did you meet with your counsel to prepare for the deposition?\nA. Preparation is always a good thing .\nQ. That wasn't my question. How many times did you meet with your counsel to prepare for the deposition?\nA. I met with them - I'm not understanding the question .\nQ. You told me you met with your counsel to prepare for the deposition.\nA. Sure .\nQ. How many times?\n*71A. Well, see, I think of time as a continuum. So I think I met with them from the beginning to the end. And the beginning was the start, and then there was the rehearsal, and then there was the preview, and now it's what I think of as the performance. So, in my mind, I'm answering what you're asking. If you could be more specific. Do you want hours?\nQ. Yes.\nA. Oh, I don't wear a watch. So I know the sun coming up in the morning and the moon coming up at night .\nQ. Can you tell me the number of times that you met with your counsel to prepare for the deposition? I'm looking for a number.\nA. Well, I gave you that .\nQ. What was the number?\nA. The number was the beginning to the end .\nQ. How many times?\nA. You know, I think - I don't recall .\nQ: Did you review any documents to prepare for the deposition?\nA. Oh, certainly.\nQ. What documents did you review?\nA. The ones that were put in front of me.\nQ. What were they?\nA. Documents.\nQ. Can you recall any of them?\nA. Yes.\nQ. Tell me which ones.\nA. Many.\nQ. Great. Tell me.\nA. Many, many, many .\nQ. Tell me about them.\nA. Well, they were full of words and communications and -\nQ. Can you identify any of them by date or what type of document it is, or who the sender or recipient was?\nA. No.155\n....\nQ. Did you go to college?\nA. Well, yes .\nQ. Where?\nA. I mean tuition was paid .\nQ. Where did you go?\nA. Oh, I had books from a lot of different places .\nQ. Did you enroll at any of those places?\nA. Oh, sure .\nQ. Where did you enroll?\nA. Many, many universities - not that many - a few .\nQ. So you enrolled in a few universities?\nA. Throughout my years, sure .\nQ. Which universities?\nA. Well, one was here, NYU .\nQ. Any others?\nA. Stanford. I don't recall .\nQ. Did you graduate from NYU?\nA. No .\nQ. Did you -\nA. Well, maybe. It's unclear .\nQ. You're not sure?\nA. You mean do I have a diploma? No. Did I receive enough credits to graduate, is that your question?\nQ. That's a question, that's fine.\nA. Is that your question?\nQ. Sure.\nA. You know, it's been said that I have -*72Q. It's been said that you have what? That you have graduated?\nA. It's been said that .\nQ. Do you have a degree from NYU?\nA. Do I have something like a piece of parchment?\nQ. No. Did you finish the requirements -\nA. Did I receive -\nQ. If you could wait until I finish my question.\nA. Sorry .\nQ. Did you complete the coursework and earn enough degrees [sic] to earn a degree? I don't care if you have a piece of paper on your wall. I want to know, did you earn a degree?\nA. I don't recall .\nQ. You don't recall whether you have a degree from NYU?\nA. Correct .156\n....\nQ. When did you attend NYU?\nA. Oh, goodness. You see, definitely, definitely in my youth .\nQ. Can you be more specific?\nA. No .\nQ. For how many years did you attend NYU?\nA. Again, time is a compendium. So I was there a while .\nQ. Can you be more specific?\nA. No .\nQ. Since you completed your studies at NYU, have you had employment anywhere?\nA. How do you define \"employment\"?\nQ. You've never used the word employment in your life?\nA. I'm just wondering how you define it .\nQ. Have you used the word employment in your life, ever?\nA. I'm asking you .\nQ. You don't get to ask the questions. I get to ask the questions.\nA. Oh, sorry .\nQ. Have you ever used the word employment in your life?\nA. I've used many words .\nQ. Have you used the word employment in your life?\nA. It's a word I'm familiar with .\nQ. What is your understanding of the word employment?\nA. Well, I think it has to do with - I'm not sure .\nQ. You're not sure what the word employment means?\nA. Yeah .\nQ. Have you ever worked for any kind of company or somebody who might be referred to as an employer?\nA. Possibly .\nQ. You're not sure?\nA. I would say sure .\nQ. Who have you worked for? And if you could give this to me in chronological order.\nA. Oh, that's - I could give it to you as best I could .\nQ. Sure.\nA. Okay. So I've worked - just in terms of work or in terms of remuneration?\nQ. Work.\nA. So you - well, I've worked on political campaigns .\nQ. And you consider those political campaigns to be your employer?\n*73A. Well, I - I considered it to be work. That to me was the question posed to me .\nQ. Let's see if we can start again.\nA. Okay .\nQ. I'm looking for your employment history. This isn't a trick question. Are you able to give me your employment history?\nA. I don't know .\nQ. Have you ever worked at SHN?\nA. I have a deep association with it, yes .\nQ. When you say \"a deep association,\" have you ever worked at SHN?\nA. That's my answer .\nQ. Yes or no, have you worked at SHN? I don't understand your answer.\nA. I answered the question .\nQ. I don't understand your answer. Can you please answer it again?\nA. I'm comfortable with my answer .\nQ. Okay. So you're unwilling to tell me whether you've ever worked at SHN?\nA. My answer reflects the question posed to me .\nQ. I don't even know what that means. My question is, have you ever worked at SHN, yes or no?\nA. I find my answer to be most inclusive .\nQ. I don't understand what that --\nA. And embracing .157\n....\nQ. Have you ever been arrested?\nA. I don't recall .\nQ. You might have been arrested and you just don't remember?\nA. I've led a long life, very colored .\nQ. Sitting here today, can you tell me whether any of that color involved being arrested?\nA. I don't recall .\nQ. Do you know what SHN is?\nA. They're letters in the alphabet .\nQ. Do you know of a company that goes by SHN?\nA. I certainly have a deep, deep association with it .\nQ. What is SHN, beyond letters in the alphabet? I'm referring to the company.\nA. It's a company - it's a company .\nQ. Is it in the theatre business?\nA. It's a company that has people associated with it .\nQ. Is it in the theatre business?\nA. How do you define \"theatre\"?\nQ. I just want to make clear, I'm asking you if SHN is in the theatre business, and you can't answer that question without further explanation?\nA. Can you ask the question again?\nQ. Sure. Is SHN in the theatre business?\nA. There's many different types of theatres. Are we today in the theatre business? This is perhaps a piece of theatre that's being recorded. So I think, again, I need more context .158\n....\nQ. When was SHN founded?\nA. At the beginning .\nQ. In what year?\nA. The year it was founded .\nQ. Can you give me a year?\nA. No .\nQ. Who founded it?\nA. I was there .\n*74Q. What do you mean when you say you were there?\nA. I was there at the very beginning when it was - at the very day one .\nQ. Does that make you a founder?\nA. Does giving birth to a child make you a mother?\nQ. Yes, but that wasn't my question. My question was, the fact that you were there, does that make you a founder?\nA. I believe it's semantics .\nQ. Yeah, well, we're here today about semantics and words matter.\nA. Sure .\nQ. So my question is, was your father a founder of SHN?\nA. My - I am the daughter of my father .\nQ. By definition, you are the daughter of your father. My question was, is your father a founder of SHN?\nA. My father and my mother raised me in an environment to have a great love and appreciation of the arts and introduced me to many, many people .\nQ. My question was, is your father a founder of SHN?\nA. That wasn't close, that wasn't close, the answer?\nQ. No.\nA. No?\nQ. No.\nA. Tell me again, was my father -\nQ. Was your father, Walter Shorenstein, a founder of SHN?\nA. He certainly cleared a path for me, and I can't - I don't know what that word means .\nQ. You don't know what the word founder means?\nA. No .159\n....\nQ. No, my question is specific to this meeting. Did you say during this meeting that you were unappreciated?\nA. Well, I think when you ask for a thank you and you don't get a thank you - so under-appreciated is so ...\nQ. Mrs. Hays, my question isn't about what the word means. My question is, at this meeting, did you -\nA. You're getting yourself agitated .\nQ. Did you say the words - and please stop commenting on me - did you say the words I'm unappreciated or underappreciated? That's my question. Did you say I'm unappreciated, I'm not getting enough appreciation? Did you say something like that?\nA. You're smiling, so I'll answer it. Sure, I did .160\n....\nQ. Then you write: \"Feeling duped by the Stuart Thompsons.\" Who is Stuart Thompson?\nA. A person who works in the business .\nQ. What does he do?\nA. He's a general manager and producer .\nQ. Of what shows?\nA. Many shows .\nQ. Can you give me his most successful shows?\nA. No .\nQ. Can you give me any of the shows?\nA. I don't recall .\nQ. You don't recall any shows that Mr. Thompson has produced? Is that a no? You were shaking your head.\nA. I don't recall .\n*75Q. Okay. Had you been duped by Stuart Thompson?\nA. I don't recall .\nQ. It refers to Oskars, O-S-K-A-R-S. What is that a reference to?\nA. I don't recall .\nQ. And feeling I was just a slob with Felix. Who is Felix?\nA. I don't recall .\nQ. You understand you're under oath, right?\nA. I recall .\nQ. You recall that you're under oath?\nA. I recall .\nQ. And you're going to tell me you don't know - you can't tell me a single show that Stuart Thompson has produced?\nA. Something I'm sure would be in the deep recesses of my mind. Should we sit and tell - would that be a value to why we're here? Would you like me to do that? Because I can .161\n....\nQ. Why did you write \"Yipppppe de da\"?\nA. I like using that word .\nQ. What meaning were you trying to convey?\nA. Yipppppe de da, doo da, you know, a jazz term .\nQ. And what does that mean when it's used in an e-mail like this?\nA. Different beats along the way .\nQ. That's what you meant to convey -\nA. Trumpets, yeah .\nQ. You meant to convey to your husband trumpets?\nA. Sure .\nQ. And what was the significance of trumpets?\nA. Good tone .\nQ. What does it have to do with Bullets over Broadway?\nA. Bullets over Broadway is very, very interesting, because you know what, I was wrong. So when I said more often than not I'm right, here is an example where I'm wrong. It closed on Broadway and lost its 12 to $15 million investment. So I think the Nederlanders should be more than elated that I'm not part of their esteemed venerable organization of picking hits, because had I done it, whoa, Yipppppe de da .162\n....\nQ. And is it right that the plan is for the season to include Broadway-style shows?\nA. Those were her words. This was a proposal .\nQ. Was that - I'm sorry?\nA. This was a proposal .\nQ. Was that your plan, to show Broadway-style shows?\nA. I'm always open to ideas .\nQ. Is Fun Home a Broadway-style show?\nA. I'm always open to ideas, and I'm always open to great art, and I'm always open to great artists, and I always work in a way when the art is first - when it's not evident. So I maintain that what I personally do or what one does in life is with the artist, and whether it's within 10 blocks in New York City, or downtown, or in Berlin, or London, as long as what I, Carole Shorenstein Hays, do, is immaterial to any of this .163\n....\n*76Q. After that conversation before it opened, have you ever discussed with anyone the idea of bringing Hamilton to the Curran Theatre?\nA. You know, I would love everything that I love to be at the Curran. So would I have loved Hamilton to be at the Curran, you betcha .\nQ. Did you talk to anyone about it?\nA. I talked to the butcher, the baker, the candlestick maker .\nQ. But did you talk to the people who have any connection with Hamilton?\nA. I talk. I talk. You know, I talk. Hamilton went where it went. So I think that I am doing right by me and SHN is doing right by them. And this idea of scorched earth and I'm not allowed to talk to certain people is really kind of un-American .164\n....\nQ. What other plays that we haven't discussed have you tried to bring to the Curran?\nA. I'm always in conversation and none - and I stand by what I say, that I wish everyone, everyone well and my success is no reflection on SHN's [success or] failure. They truly maintain that I had nothing whatsoever to do with this business. So why are you so focused on who I am? I just find it really fascinating that on the one hand I know nothing, but on the other hand everything I know is stolen, perched, poached. So I think you better really think about the questions in a crisper way .165\n....\nQ. And tell me about the shows that, are there any shows that you're in discussions with now that have not yet been announced?\nA. For?\nQ. The Curran. And again, we can limit this to Broadway.\nA. That will be announced at -you know, it's all subjection, isn't it? Because these are shows, and this is what I do and have always done with my own personal money, I invest in artists, I nurture them. They come to Broadway, they work, they go over places. It's interesting how you just said Broadway. See, it's such a Nederlander thing, because I am like in Brooklyn, downtown, and you don't ask me about that. You wouldn't ask me about Hamilton if when I had the conversation with Oskar Eustis - so it's a very Nederlander mindset that suddenly what is on Broadway is their fiefdom - and I say, whoa, wait a second, bring it on then, you guys tell me because, you know what -\nQ. Mrs. Hays, I'm just trying to get a list. I started with Broadway because you told me earlier my question was too broad. I know that Fun Home is playing. I know Eclipsed is playing. We've talked about a number of other shows. Are there other Broadway-style shows that you have had conversations with people about bringing them to the Curran?\nA. I always have conversations -\nQ. What shows?\nA. - with people. There are numerous shows .\nQ. Tell me.\nA. I don't want to. I don't think it's any of your business whatsoever. I am pleased to answer the question. I am not hiding information. But it's my own money. I'm like free and clear. Why do *77I have to keep answering when I've just simply tried to get from Bob Nederlander who is behind him, who the successors are, and suddenly you have the right, the glee, the kaboom to ask me to go is that your personal e-mail - yes, we're going to emotionally water board you, we're going to keep you down as far as you can go, as though that's like what we do under the name of the law that's what you went to law school for and that you will go home and tell your wife you had a great day - that's what we're doing?\nI'm just simply trying to do my life at the Curran, and to do community programs. Let's talk about that. Let's talk about things that I wanted to do at SHN that I couldn't, because they weren't interested in.\nI will be having - the reason I'm doing Eclipsed is because it has, it is about the Liberian kidnapped girls. Do you know about that? I'm sure you've heard about that. This is a show that no one would bring to Broadway except someone like me who believed in it, and it's a show that my son has really picked up, and it's about art and activism, and we at the Curran, we at the Curran are going to open our doors to bring in school kids to see shows maybe for the first time, to see, to do that.\nThat's what I want to do, and that's what I want to talk about. And you want to just take my, me and my and just keep bashing it against the wall, and I'm happy to stay until the lights come up and the lights go down. Don't bother me at all. Because I've been doing this 30 years. And you know what, I'm like Judy Garland, I can keep, keep, keep, - I got another song in me, and I know when I walk throughout the community, they're thrilled of what I'm doing.\nIt's - they don't look at me as being combative. They're thrilled I have a love of the Curran. I've never - I've never and I've always said to Bob Nederlander and to Greg Holland and to everyone else, this is a wonderful, wonderful, wonderful, business .166\nThis is a representative but incomplete identification of Hays's ridiculous and problematic responses to questions. It appears from the cover page of the deposition transcript that the only Delaware lawyer present was an attorney representing the nominal defendant, SHN.167 Two attorneys appeared at the deposition on behalf of Hays, including Brian T. Frawley, a partner with Sullivan & Cromwell LLP, and an associate from that firm.168 They were both admitted pro hac vice in the Court of Chancery proceedings. Frawley took the lead in defending Hays's deposition. From our reading of the record (the transcript), it appears that Frawley made no attempt to put an end to Hays's flagrantly evasive, nonresponsive, and flippant answers. In fact, at one point, the examiner implored Frawley to control his own client but was rebuffed:\nMR. DOLUISIO: I just want to know for the record, Mr. Frawley, I don't want this deposition to go multiple days. It will. I'm getting non-responsive answers and now I'm getting speeches. I'm trying not to be rude. I think you recognize what I'm going through here.\nMR. FRAWLEY: I think you frankly deserve that one, but we'll go on.\n*78MR. DOLUISIO: I asked her where she was employed.\nMR. FRAWLEY: That's not really what you asked her. But are you done, Carole.\nTHE WITNESS: Uh-huh.169\nThe trial court appropriately awarded attorneys' fees and costs for Hays's willful bad faith litigation tactics. The deposition appears to have been a colossal waste of time and resources due to her behavior, which made a mockery of the entire deposition proceeding. Although this award of fees and costs is not challenged on appeal, we write to remind counsel that they have a responsibility to intercede and not sit idly by as their client engages in abusive deposition misconduct.170\nDepositions are court proceedings, and counsel defending the deposition have an obligation to prevent their deponent from impeding or frustrating a fair examination. Although counsel can be caught off guard by a client's unexpected, sanctionable outburst, that is not what happened here. Rather, Hays's flippant, evasive, ridiculous answers and speech-making continued throughout the entirety of the deposition, which began at 9:38 a.m. and concluded at 7:13 p.m. An attorney representing a client who engages in such behavior during the course of a deposition cannot simply be a spectator and do nothing.171 Here, Hays's counsel made no apparent effort to curb her misconduct.\nDelaware counsel moving the admission of out of state counsel pro hac vice also bear responsibility in such a situation. They must ensure that the attorney being admitted reviews the Principles of Professionalism for Delaware Lawyers, but they must also ensure that the out-of-state counsel understands what is expected of them in managing deposition proceedings *79outside the courthouse so that the litigation process is not abused.172 Such abusive tactics do a disservice to our busy trial courts, to all involved in the litigation process, and ultimately they impair the truth-seeking function of the discovery process. It is hard to imagine that any reliable factual information could be mined from the Hays deposition fiasco.\nPerhaps this episode can be used positively as a lesson to those training new lawyers on deposition skills. Lawyers have an obligation to ensure that their clients do not undermine the integrity of the deposition proceedings by engaging in bad faith litigation tactics; they cannot simply sit and passively observe as their client persists in such conduct. Given the restrictions on conferring with a client during deposition proceedings, these points obviously should be addressed beforehand in the deposition preparation.\n\nIn re Shorenstein Hays-Nederlander Theatres LLC Appeals , Consol. Nos. 596, 2018 and 620, 2018 (Del. Jan. 9, 2019) (ORDER) (consolidating the separate appeals from C.A. No. 9380 and C.A. No. 2018-0701).\n\n\nTo avoid confusion, this Opinion refers to certain individuals by their first names. We intend no disrespect or familiarity.\n\n\nThe Shorenstein-Hays family controls CSH through CJS Trust-A, which is one of two trusts relevant to this dispute that Carole's father, and the patriarch of the Shorenstein family, Walter Shorenstein, set up for Carole's benefit. The other trust is CSH Doule Trust. Carole, her husband, their two children, and Thomas Hart manage those trusts.\n\n\nCarole purchased the Curran indirectly through CSH Doule Trust. CSH Doule Trust owns CSH Curran LLC, which Carole and Hart manage through CSH Doule LLC, the sole member of CSH Curran.\n\n\nThe demand for a declaratory judgment pursuant to 10 Del. C. § 6501 was the sole count in CSH's complaint. See App. to Opening Br. at A364-68 (CSH Complaint).\n\n\nNederlander's counterclaims and third party claims included counts of breach of fiduciary duty against the Hayses (Count I), breach of the LLC Agreement against CSH (Count II), fraudulent inducement against CSH and Carole (Count III), breach of contract against CSH and Carole (Count IV), promissory estoppel against CSH, CSH Curran LLC, and the Hayses (Count V), and declaratory judgment with respect to the LLC Agreement pursuant to 10 Del. C. § 6501 (Count VI). Id. at A422-27 (Nederlander Counterclaims and Third Party Complaint).\n\n\nCSH Theatres, L.L.C. v. Nederlander of San Francisco Assocs. , 2018 WL 3646817, at *37 (Del. Ch. July 31, 2018) [hereinafter Declaratory Judgment Opinion ].\n\n\nApp. to CSH Answering Br. at B494 (Mot. for Preliminary Injunction).\n\n\nThe defendants included CSH, CSH Curran LLC, Curran Live, LLC, CSH Productions, LLC, the Hayses, and Thomas Hart. In addition to Count I, Nederlander also alleged a breach of contractual fiduciary duties against CSH (Count II), aiding and abetting a breach of contractual fiduciary duties against all defendants but CSH (Count III), and breach of common law fiduciary duties against CSH, the Hayses, and Thomas Hart (Count IV).\n\n\nNederlander of San Francisco Assocs. v. CSH Theatres LLC , 2018 WL 6271655, at *11 (Del. Ch. Nov. 30, 2018) [hereinafter PI Decision ].\n\n\nNederlander also has not challenged the trial court's finding in the PI Action that Nederlander abandoned its claims that are not within the scope of the partial final judgment.\n\n\nThe Court of Chancery's factual findings are largely unchallenged on appeal, so we rely on them in this Opinion.\n\n\nA 1978 letter of understanding signed by James Nederlander and Walter Shorenstein states that their \"initial purpose [was] solely the operation of the Curran.\" App. to Opening Br. at A184 (1978 Letter of Understanding).\n\n\nId. at A250 (First Amended Complaint dated October 29, 1990).\n\n\nDeclaratory Judgment Opinion , 2018 WL 3646817, at *3.\n\n\nId. at *26.\n\n\nId. (quoting Robert's trial testimony). Testimony from some of the key witnesses in this litigation is consistent with the court's finding that the Shorensteins were concerned about competition from the Nederlanders. Robert testified that \"Walter [Shorenstein] was adamant that this be included.\" App. to Nederlander Reply Br. at AR239, p. 834 (Robert's Oct. 25, 2017 Testimony). Raymond Harris, a Nederlander-appointed director of SHN and Nederlander's Chief Financial Officer, submitted an affidavit stating that \"a provision limiting such competition was injected into the LLC Agreement at the request of Mr. Shorenstein due to his concerns that another Nederlander entity might compete by presenting productions within a 100-mile radius of San Francisco.\" App. to Opening Br. at A649 (Harris Affidavit). Likewise, when Carole was asked as a witness at trial whether she \"insist[ed] that a clause be put in the operating agreement to prevent competition by the Nederlanders,\" Carole replied, \"[w]e were very concerned about it, so yes.\" App. to Nederlander Reply Br. at AR234, p. 263 (Carole's Oct. 23, 2017 Testimony).\n\n\nRobert had also served previously as president and CEO of the Nederlander Organization, which owns and operates nine Broadway theaters in New York City and at least fifteen others around the United States, including Broadway San Jose in San Jose, California.\n\n\nDeclaratory Judgment Opinion , 2018 WL 3646817, at *6.\n\n\nId. at *7.\n\n\nId.\n\n\nId. (\"Greg testified that Carole would often express the opinion that, 'she had created the company, that it was her company, that it was all her money that had created the company, and that ... it was really majority her company.' \").\n\n\nId.\n\n\nId. Carole testified at trial that she considered it \"silly business to agree to a lease without a new management agreement.\" Id.\n\n\nId.\n\n\nId. at *8. According to Holland's testimony:\nCarole stood in front of the door and told us that no one was leaving until she got what she want[ed]. And then she just started saying that she wanted to control the company. No one had thanked her for buying the Curran Theater for the company, and she didn't feel she deserved to be treated that way. [Robert] thanked her several times. She kept pressing that she -- you know, she deserved to have control of the company, that I wasn't providing her information. And after what felt like a long, long period of time, [Robert] agreed that she would be the sole president of SHN for a 60-day period, and that he wanted -- part of that job for her would be that she would increase sponsorships and lower costs.\nId.\n\n\nId. at *9.\n\n\nId.\n\n\nSee id. at *11 (quoting an email from Carole to Jeff on August 2, 2014, saying that they should go at Robert and Holland \"with 'guns ablaze' \").\n\n\nId. at *12.\n\n\nPI Decision , 2018 WL 6271655, at *3.\n\n\nId.\n\n\nId. at *4.\n\n\nId. at *11.\n\n\nApp. to Opening Br. at A304-05 (LLC Agreement § 7.02).\n\n\nId. at A285 (LLC Agreement Preamble) (emphasis added).\n\n\nId. at A288 (LLC Agreement § 1.01).\n\n\nId. at A286 (LLC Agreement § 1.01).\n\n\nId. at A287 (LLC Agreement § 1.01).\n\n\nId. at A288 (LLC Agreement § 1.01).\n\n\nId. at A287 (LLC Agreement § 1.01).\n\n\nId. at A305 (emphasis added) (LLC Agreement § 7.03).\n\n\nId. (LLC Agreement § 7.06).\n\n\nCSH Theatres, LLC v. Nederlander of San Francisco Assocs. , 2015 WL 1839684, at *8 (Del. Ch. Apr. 21, 2015) [hereinafter Motion to Dismiss Opinion ].\n\n\nThe common law fiduciary claims and allegations of a breach of the LLC Agreement overlapped below. See id. at *8 n.37 (\"Indeed, the parties' briefing sometimes conflated the analysis of the breach of the LLC Agreement Count with the breach of fiduciary duty Count, making it difficult to disentangle these distinct theories of alleged wrongdoing.\").\n\n\nId. at *11.\n\n\nThe Court of Chancery dismissed Count I (breach of fiduciary duty against the Hayses) to the extent Nederlander alleged waste, dismissed Count III (fraudulent inducement) entirely, and dismissed Count V (promissory estoppel) as to Jeff. Id. at *23. The court denied CSH's motion to dismiss as to the remaining Counts.\n\n\nId. at *10 (\"The definitions [in the LLC Agreement] reveal the problem: the family entities (the Members) are defined to include Permitted Transferees, which itself is defined to include Affiliates. Thus, according to Nederlander, any time the family entities are referred to in a provision of the LLC Agreement, Affiliates definitionally are included.... [CSH] contend[s] that the reference in the definition of the Shorenstein Entity to the term Permitted Transferee contemplates some form of future transfer from CSH to, for example, a successor entity within the defined set of Permitted Transferees. That successor entity would assume the Shorenstein Entity's interest in SHN. In other words, at any given point in time, the 'Member' of SHN on the CSH side would be either the initial Shorenstein Entity or a Permitted Transferee, but not both.... The LLC Agreement, read literally, defines the Shorenstein Entity to include Affiliates. Thus, even if [CSH's] interpretation is plausible, I cannot say that it is the only reasonable one.\").\n\n\nId. (\"Resolving all ambiguities in favor of Nederlander as the nonmoving party, I must recognize that the LLC Agreement could be construed to impose restrictions on Affiliates of CSH, including Mrs. Hays. It is reasonably conceivable, therefore, that, when CSH's Affiliates' behavior is included in the analysis, Nederlander could prove a breach of the LLC Agreement, such as a violation of the duty imposed in Section 7.02(a) requiring the Shorenstein Entity to work toward maximizing SHN's economic success.\").\n\n\nId. at *13.\n\n\nId.\n\n\nDeclaratory Judgment Opinion , 2018 WL 3646817, at *15 (\"Based on the testimony and all the other evidence presented at trial, I find that [Nederlander] has not shown by a preponderance of the evidence that Carole promised to rent the Curran to the Company after the expiration of the Lurie Lease.\").\n\n\nId. at *15-19.\n\n\nId. at *23.\n\n\nId. at *25.\n\n\nId.\n\n\nId. at *26.\n\n\nId. (quoting Robert's trial testimony).\n\n\nId. at *27.\n\n\nId. at *24 (footnotes omitted).\n\n\nId.\n\n\nId. at *25 (\"[Carole] entered into an investment agreement with the production Fun Home on behalf of her entity CSH Productions, LLC. As part of that agreement, Fun Home agreed that if the production went on tour it would not perform at any other Bay Area theater but the Curran as it was understood that an important inducement for [Carole's] significant investment in the Broadway Production is to obtain the first right to present the first commercial production of the Play in the Bay Area, preferably to launch the national tour. This concession constitutes control over the production as defined in Section 7.03 because it allows Carole the ability to determine where the Production plays and the terms and conditions of said engagement. Fun Home played at the Curran in 2017. This means Carole staged a production that she controlled within 100 miles of San Francisco.\" (citations and quotations omitted)).\n\n\nId. (\"Fun Home did not play at either of the Company's theaters, but the post-trial briefs do not point to any evidence regarding whether the Nederlanders rejected Fun Home for the Company or if the Company shared in the profits and losses of Fun Home . [Nederlander] has the burden to prove its case by a preponderance of the evidence. Even if there is evidence in the record that shows Carole did not adhere to Section 7.02(b), [Nederlander] has not offered any evidence regarding its damages relating to Fun Home and, thus, has not satisfied the final element for its breach of contract claim.\" (citations omitted)).\n\n\nThe subscription series is a significant income-generator for SHN. \" 'A subscription, really everywhere in the country for Broadway, is five to seven shows that are put in a package that you buy at once, similar to a sports season ticket. Subscribers get special benefits, typically discounts, opportunity to get gifts, better seats than everywhere else.' \" Id. at *9 n.123 (quoting Holland's trial testimony).\n\n\nId. at *27. The common law fiduciary duty breaches are not at issue in this appeal.\n\n\nId.\n\n\nId. at *29. This theory alleged \"breaches of both contractual and fiduciary duties.\" Id.\n\n\nId.\n\n\nId. at *30 (emphasis added). Further, Nederlander's expert witness, Dr. John Hekman, did not calculate damages for \"poaching\" individual shows. See App. to CSH Answering Br. at B337 (Dr. John Hekman Testimony).\n\n\nSee CSH Theatres, LLC v. Nederlander of San Francisco Assocs. , 2018 WL 4522728 (Del. Ch. Sept. 20, 2018).\n\n\nFollowing the Motion to Dismiss Opinion, the remaining claims consisted of Counts II (breach of the LLC Agreement), IV (breach of contract), and V (promissory estoppel).\n\n\nSee Addendum; Ex. C to Opening Br. (Nov. 1, 2018 Order).\n\n\nApp. to CSH Answering Br. at B446 (Order Denying Mot. for Clarification).\n\n\nId. at B446-47.\n\n\nNederlander moved for expedited proceedings, which the trial court granted on October 5, 2018 in a telephonic hearing.\n\n\nPI Action , 2018 WL 6271655, at *11 ; see also id. at *10 (\"If, as Plaintiff contends, to stage a production is to control it, Section 7.02's limits on a member or affiliate's ability to 'stage a Production that it controls (as defined in Section 7.03)' is repetitive, because 'that it controls (as defined in Section 7.03)' adds nothing to the sentence. This interpretation creates surplusage.\" (citations omitted)); id. (\"[Nederlander's] interpretation would reduce Section 7.06 to only allowing competition when the member or affiliate is a passive, uninvolved investor. This interpretation would make large parts of Section 7.06-for example, the language regarding the ability to operate and manage a business for its own account and others' accounts-unnecessary surplusage.\").\n\n\nId. at *10.\n\n\nId. at *11.\n\n\nThe issues concerning the renewal of the Curran lease and the staging of Fun Home are not at issue on appeal. Further, Nederlander does not assert common law fiduciary claims on appeal. Rather, Nederlander frames its argument concerning improper competitive conduct as a violation of a contractual duty of loyalty under Section 7.02(a). See Opening Br. at 24 (\"That language [in Section 7.02(a) ] expressly imposes upon the parties a contractual and fiduciary duty of loyalty to SHN.\" (citations omitted)); Oral Argument Video at 15:20-15:44, https://livestream.com/DelawareSupremeCourt/events/8670837/videos/191018409 (Q: \"And as I read your brief, your fiduciary duty argument is, on appeal, limited to the contractual fiduciary duties as opposed to the common law fiduciary duties?\" A: \"Right. We are arguing that the contractual fiduciary duty of loyalty that's in the contract comports with and is coterminous with duty of loyalty under common law. But the source of that duty on what we're appealing is the contractual duty.\").\n\n\nSee Opening Br. at 4-5 (\"If this Court credits [the Section 7.02(a) ] Argument and reverses on that basis, that would dispose of both appeals. Argument II is made on the alternative assumption that, even if this Court were to reject Argument I, the court nonetheless reversibly erred in denying the injunctive relief sought in the [PI Action].\").\n\n\nSee Nederlander Reply Br. at 35 n.92 (\"NSF does not dispute any of the trial court's factual findings. NSF's procedural decision to seek a final judgment on those facts does not, as Appellees suggest, waive its right to argue that the court misinterpreted NSF's legal theory based on those facts.\"); Oral Argument Video at 14:31-15:20, https://livestream.com/DelawareSupremeCourt/events/8670837/videos/191018409 (Q: \"In the PI Action, you're not challenging the court's actual factual findings, are you? Rather, you're saying she misconstrued your position in your argument?\" A: \"The principal error by the trial court in the PI finding was to misconstrue the term 'control,' that's essentially a legal interpretation question. What does the contract mean? We respectfully believe she got it wrong. Against the right standard, our facts speak for themselves. She didn't dispute the individual factual findings ... she just said this body of evidence didn't meet a test that, with all respect, the court came up with on its own-pre-existing contractual right, which isn't in the agreement, wasn't argued by either side.\").\n\n\nCompoSecure, L.L.C. v. CardUX, LLC , 206 A.3d 807, 816 (Del. 2018) (quoting Gatz Props., LLC v. Auriga Capital Corp. , 59 A.3d 1206, 1212 (Del. 2012) ).\n\n\nOsborn ex rel. Osborn v. Kemp , 991 A.2d 1153, 1159 (Del. 2010) (internal quotations omitted).\n\n\nId. at 1159-60.\n\n\nSalamone v. Gorman , 106 A.3d 354, 374 (Del. 2014) (citing In re IBP, Inc. S'holders Litig. , 789 A.2d 14, 55 (Del. Ch. 2001) ).\n\n\nSee Medicalgorithmics S.A. v. AMI Monitoring, Inc. , 2016 WL 4401038, at *18 (Del. Ch. Aug. 18, 2016) (holding that where an agreement included \"Affiliates\" within the definition of \"Parties,\" the agreement imposed obligations on a contractually-defined affiliate that was under the control of a party to the agreement); MicroStrategy Inc. v. Acacia Research Corp. , 2010 WL 5550455, at *12 (Del. Ch. Dec. 30, 2010) (where an agreement defined the term \"affiliate\" to include \"any entity which either party now or hereafter, directly or indirectly, owns or controls,\" the court held that the phrase \"now or hereafter\" unambiguously contemplated that the agreement would apply to later-acquired or formal entities owned or controlled by the parties to the agreement).\n\n\nSee Motion to Dismiss Opinion , 2015 WL 1839684, at *9-*10.\n\n\nSpecifically, CSH points to Robert's trial testimony, Section 4 of the partnership agreement (which CSH argues applied only to the partners), and the conduct of Nederlander's alleged Affiliates, such as Broadway San Jose.\n\n\nSee Declaratory Judgment Opinion , 2018 WL 3646817, at *25 (\"[A]t most, Counterclaim Defendants have raised an ambiguity in the contract that allows me to look at extrinsic evidence, and the extrinsic evidence supports [Nederlander]'s interpretation of Section 7.02.\").\n\n\nId. at *26 (quoting Robert's trial testimony).\n\n\nId.\n\n\nId. at *27.\n\n\nApp. to Opening Br. at A423 (Nederlander's Counterclaims and Third Party Complaint).\n\n\nId. at A569 (Nederlander Pretrial Opening Br.).\n\n\nId. at A570-71 (citing Section 7.02(a)) (internal citations omitted).\n\n\nId. at A615 (citing Section 7.02(a)) (Nederlander Pretrial Answering Br.).\n\n\nId. at A762-63 (Nederlander Post-Trial Opening Br.).\n\n\nId. at A785 (internal citations omitted).\n\n\nId. at A810-12 (internal citations omitted).\n\n\nId. at A840 (internal citations omitted).\n\n\nCSH Answering Br. at 39 (internal citations omitted).\n\n\nDeclaratory Judgment Opinion , 2018 WL 3646817, at *22 n.248 (\"Both parties put an inordinate emphasis on the witnesses' opinions about various legal questions. None of the witnesses are experts on Delaware law, and even if they were, questions of legal interpretation are reserved for the Court. Thus, I do not allocate weight to the legal opinions of fact witnesses.\"). We agree with the trial court's observation on that point. Additionally, CSH's reliance on Oxbow Carbon & Minerals Holdings v. Crestview-Oxbow Acquisition, LLC , 202 A.3d 482 (Del. 2019) is misplaced. In Oxbow , we quoted a principal's testimony concerning his understanding of an LLC agreement that was consistent with, and an example of, a position that a party and its counsel actually took in the Court of Chancery. That position was directly inconsistent with a new argument that party raised on appeal. Id. at 508-09. Here, Robert's testimony was vacillating and inconsistent. To the extent his testimony suggests that Affiliates are not bound by Section 7.02(a), that testimony was inconsistent with the position that Nederlander argued below and which it has consistently maintained on appeal. See App. to CSH Answering Br. at B431 (Nederlander's Post-Trial Oral Argument) (acknowledging Robert's testimony in a slide deck but clarifying that it did \"Not Comport with Plain Language\" and does not change the \"Plain Language of the LLC Agreement\"); id. at B438 (stating that Robert's testimony was \"inconsistent with [its] interpretation\").\n\n\nSee, e.g. , App. to CSH Answering Br. at B267-75 (Robert's Oct. 25, 2017 Testimony) (Q: \"There was no obligation that was imposed here on other members of the Nederlander family; right?\" A: \"We took care of that. It was an obligation, basically, in the Nederlander family and the Shorenstein family.\" Q: \"Well, let me just be clear about something. When this deal was signed in 1992 ... May 22, 1992, you personally, Robert E. Nederlander, Sr., you didn't think you were required to devote your efforts to maximizing the economic success of the partnership, did you?\" A: \"Robert Nederlander personally? No. I didn't think so.\" ... Q: \"You didn't yourself get involved in the day-to-day negotiations of [the LLC Agreement], did you?\" A: \"I was concerned that we carry forward some of those documents - - I haven't looked at this in some time - - which basically says, in effect, that everybody is bound by this, relatives and otherwise. That's why the Shorenstein entity and the Nederlander entity are bound by this. This is not something that - - I have to look at it, but 'Permitted Transferees' in the case of - - are any member of the Nederlander family. Nederlander family, I think, is - - I haven't looked at it - - is the descendants of David Nederlander. And that includes all the Nederlanders. So Walter [Shorenstein] was protected, that any Nederlander entity is bound by this. Any Nederlander descendent is bound by this. Just like any Shorenstein entity is bound by this, including family members.\"); id. at B293-94 (Robert's Nov. 28, 2017 Testimony) (Q: \"You said [in the October 25, 2017 cross-examination] that your brother, Jimmy Nederlander, and your nephew, Jimmy, Jr., were not required by Section 7.02(a) to devote their efforts to maximizing the success of SHN. Correct?\" A: \"Yes.\" Q: \"Is it also correct that your two sons, Robert, Jr. and Eric, were not required by this contract, Section 7.02(a), to devote their efforts to maximizing the economic success of SHN?\" A: \"They're not involved in it.\" Q: \"So they're not required. Correct?\" A: \"They're not - - I don't know where you're going with this. You're trying to confuse me with taking sentences out of context.\" ... Q: \"Is it correct, Mr. Nederlander, that neither of your two sons, Bob, Jr. and Eric, were ever required by Section 7.02(a) to devote their efforts to maximize the economic success of SHN?\" A: \"They weren't required to do that.\").\n\n\nOpening Br. at 32.\n\n\nDeclaratory Judgment Opinion , 2018 WL 3646817, at *24 (footnotes omitted).\n\n\nId. (\"This plain language of the contract, when read through the lens of generalia specialibus non derogant , creates a detailed scheme governing competition.\" (footnotes omitted)).\n\n\nApp. to Opening Br. at A305 (LLC Agreement § 7.06) (emphasis added).\n\n\nSee Concord Steel, Inc. v. Wilmington Steel Processing Co. , 2008 WL 902406, at *8 (Del. Ch. Apr. 3, 2008) (\"One plausible definition is that 'competitive' refers to a situation where 'two or more commercial interests [try] to obtain the same business from third parties.' \" (quoting Black's Law Dictionary 302 (8th ed. 2004))); id. at *8 n.66 (recognizing another plausible definition of \"competitive\" \"as a '[r]ivalry between two or more businesses striving for the same customer or market' \" (quoting The American Heritage Dictionary of the English Language 376 (4th ed. 2000))).\n\n\nDCV Holdings, Inc. v. ConAgra, Inc. , 889 A.2d 954, 961 (Del. 2005).\n\n\nOral Argument Video at 5:02-6:18, https://livestream.com/DelawareSupremeCourt/events/8670837/videos/191018409 (Q: \"Is there competitive conduct that does not fall within [Section7.02(b) ] that is still prohibited by [Section 7.02(a) ]?\" A: \"Yes. Exactly at the heart of this issue.... [T]he meaning of that [Section 7.02(a) ], you cannot engage in activity that harms SHN. You must avoid conflicts of interest. That means you can't compete against the business. Competition against the business is antithetical to a duty to maximize. [Section 7.02(b) ], therefore-we get to the question of the real heart of it-what does 7.02(b) mean in that construct? The way we look at it, [Section 7.02(b) ] is a specific application of the parties' agreement not to compete applying to specific facts that the parties anticipated. Because they had experience with those facts. If you had a controlled production, the parties' agreement was very simple. You cannot put a controlled production within one-hundred miles of San Francisco unless you comply with one of three exceptions.\").\n\n\nSee supra p. 51-52.\n\n\nDeclaratory Judgment Opinion , 2018 WL 3646817, at *26.\n\n\nId. (quoting Robert's trial testimony).\n\n\nSee App. to Opening Br. at A184 (1978 Letter of Understanding) (stating that the \"initial purpose\" of the partnership was \"solely the operation of the Curran.\").\n\n\nSee Thorpe v. CERBCO, Inc. , 676 A.2d 436, 442 (Del. 1996) (stating that it is a \"fundamental proposition that directors may not compete with the corporation\" and that doing so violates the duty of loyalty); Cantor Fitzgerald, L.P. v. Cantor , 2000 WL 307370, at *22 (Del. Ch. Mar. 13, 2000) (holding that a contractual duty of loyalty was necessary to prevent partners from competing in the \"very business that is central to [the partnership's] success\"), overruled on other grounds , Scion Breckenridge Managing Member, LLC v. ASB Allegiance Real Estate Fund , 68 A.3d 665, 686 (Del. 2013). The trial court expressly found that the \"Counterclaim defendants admit they are Affiliates of the Shorenstein Entity.\" Declaratory Judgment Opinion , 2018 WL 3646817, at *23 n.263.\n\n\nSee supra p. 53-54.\n\n\nNederlander requested disgorgement of CSH's profits from SHN and mitigation costs. See App. to Opening Br. at A830-32 (Nederlander Opening Post-Trial Br.). The trial court noted that those remedies were related to the Curran lease claims, on which the court ruled in favor of CSH and which are not at issue on appeal. Declaratory Judgment Opinion , 2018 WL 3646817, at *28, *29 n.320 (\"I do not address [Nederlander's] request for disgorgement of corporate distributions, mitigation costs, and specific performance of the Promise or oral lease renewal because I find that no contract or lease renewal exists.\"). Nederlander has not challenged that finding.\n\n\nApp. to CSH Answering Br. at B467-68, B471 (PI Complaint).\n\n\nId. at B484 (\"By permitting, authorizing, working in furtherance of and/or contracting to stage productions at the Curran over which they exercise control - including without limitation Dear Evan Hansen and Harry Potter - without first satisfying one of the three exceptions set forth in Section 7.02(b), CSH, CSH Curran, CSH Productions, Curran Live, Carole Shorenstein Hays, Jeff Hays, and Thomas Hart breached the contractual anti-competition provisions set forth in Sections 7.02(a), 7.02(b), and 7.06 of the LLC Agreement and the related, implied covenant of good faith and fair dealing.\").\n\n\nSee App. to Opening Br. at A1094 (Nederlander Opening PI Br.) (stating that Sections 7.02(b) and 7.03 \"are consistent with Section 7.02(a), which requires the Shorenstein Entity to 'devote their efforts to maximize the economic success' of SHN, avoid conflicts, and act in good faith\"); id. at A1222 (Nederlander Reply PI Br.) (stating, in a footnote, that \"SHN and NSF reserve their rights to enforce Defendants' conduct that violates Section 7.02(a) of the LLC Agreement\").\n\n\nOral Argument Video at 6:50-7:25, https://livestream.com/DelawareSupremeCourt/events/8670837/videos/191018409.\n\n\nApp. to Opening Br. at A1222 (Nederlander Reply PI Br.).\n\n\nMot. to Expedite at 6. Nederlander explained that the showing of Harry Potter also requires that the Curran undergo extensive modifications to alter the appearance and structure of the theater, which are set to begin as early as July 1, 2019. Id.\n\n\nNederlander of San Francisco Assocs. v. CSH Theatres LLC , 2018 WL 6790280, at *1 (Del. Ch. Dec. 21, 2018) [hereinafter PI Action Rule 54(b) Order ].\n\n\nApp. to Opening Br. at A1100 (Nederlander Opening PI Br.) (\"NSF has also brought claims for breach of fiduciary duty and aiding and abetting breaches of fiduciary duty. There is also a reasonable probability of success on those two claims. CSH is a member and 50% owner of SHN. Given its significant control over SHN and various terms in the LLC Agreement, CSH owes common law and contractual fiduciary duties. As such, the individual defendants who ultimately control CSH likewise owe fiduciary duties. Moreover, Delaware law recognizes a claim for aiding and abetting breach of fiduciary duty, including contractually created fiduciary duties. Here, CSH owed and breached contractual and common law fiduciary duties. Even if the other Defendants did not breach duties they owed directly, they knowingly participated in CSH's breaches by causing or participating in the transactions that violated those duties. Accordingly, they are liable as aiders and abetters.\" (internal citations omitted)).\n\n\nPI Decision , 2018 WL 6271655, at *11 (\"Nederlander raises in a footnote [of its opening brief in the PI Action] that it has brought claims for breach of fiduciary duty and aiding and abetting and that these have a 'reasonable probability of success' because CSH is a member and fifty percent owner of SHN, leading to 'common law and contractual fiduciary duties.' ... [Nederlander] addresses the issue so summarily in its footnote that it lends no assistance to its argument about reasonable probability of success on the merits. [Nederlander] does not mention the issue at all in its sections on Irreparable Harm or Balance of the Equities. Finally, because [CSH and its Affiliates] objected to the issue as not properly raised, and because [Nederlander] did not respond to that objection either in its Reply Brief or at Oral Argument, it appears that [Nederlander] has abandoned this argument. Thus, I decline to rule on the fiduciary duty claim.\"). Nederlander has not challenged this holding on appeal.\n\n\nNederlander's decision to not seek immediate re-argument or immediate appellate review of the trial court's interpretation of Section 7.02(a) in the Declaratory Judgment Action likely provides a sufficient basis to reject any request by Nederlander for a second bite at expedited preliminary injunction proceedings in the PI Action as to the two challenged productions. Additionally, we note that the Hayses opposed Nederlander's request for expedition of the PI Appeal, pointing out that CSH was \"set to turn over the Curran to a third-party tenant pursuant to a lease beginning on July 1, 2019, and the producers of Harry Potter have announced that the show will not open until sometime in the fall of 2019.\" Opposition to Mot. to Expedite ¶ 7.\n\n\nSection 7.03 defines \"control\" as \"having the ability to determine where the Production plays and the terms and conditions of said engagement.\" App. to Opening Br. at A305 (LLC Agreement § 7.03).\n\n\nOpening Br. at 37, 40.\n\n\nPI Decision , 2018 WL 6271655, at *8.\n\n\nNederlander describes that spectrum of control as follows:\nOn one end of the spectrum, the theater owner may contract away all control over the operations of the theater, giving a third party complete freedom to operate and stage productions with no involvement from the theater owner. This paradigm includes the \"long-term, passive lease\" that described the terms of SHN's lease of the Curran from the Lurie family. On the opposite end of the spectrum, the theater owner maintains complete control over all theater operations, including the right to operate the theater to stage all productions that the owner itself produces. Under the former paradigm arrangement, the owner has no control over any production staged at the theater, because the owner has contracted away any right to determine where that production plays or any terms and conditions of the production. Under the latter paradigm arrangement, the theater owner has complete control over every production staged at the theater. That is because the owner, as the theater owner, wearing its hat as the proprietor, operator and producer, would incontestably have the ability to determine where each production plays and its terms and conditions\nOpening Br. at 38-39.\n\n\nId. at 39, 41 (emphasis added).\n\n\nApp. to Opening Br. at A1224 (Nederlander PI Reply Br.) (emphasis added).\n\n\nId. at A1225 (citations omitted).\n\n\nId. (citations omitted).\n\n\nPI Decision , 2018 WL 6271655, at *10 ; see also id. (\"[Nederlander] argues that this control can occur at any time prior to the staging of the show, whether two years before staging the show (based on something like the right of first refusal in Fun Home ) or two days before the staging of the show (based on a contract allowing the production to play). Therefore, [Nederlander] argues, the control over the productions of DEH and Harry Potter that Defendants gained through the contracts they signed booking those productions to play at the Curran is sufficient to make the productions subject to Defendants' 'control' as defined in Section 7.03. This, [Nederlander] explains, is because Defendants were involved in negotiating the terms and could have rejected them at any time, preventing DEH and Harry Potter from playing at the Curran. \" (emphasis added) (citations omitted)).\n\n\nId. at *9 (\"I must now evaluate [Nederlander's] contention that the circumstances surrounding the production of DEH and Harry Potter evidence control-the ability to determine where to produce the plays and the terms and conditions of said engagement.\").\n\n\nOpening Br. at 37.\n\n\nPI Decision , 2018 WL 6271655, at *9 (internal quotations omitted).\n\n\nId. (internal quotations omitted).\n\n\nId. at *9, *11.\n\n\nId. at *9.\n\n\nId. at *11.\n\n\nId.\n\n\nId.\n\n\nPI Action Rule 54(b) Order , 2018 WL 6790280, at *1.\n\n\nWe comment on this matter \"under our 'exclusive supervisory responsibility to regulate and enforce appropriate conduct of ... all lawyers, litigants, witnesses, and others' participating in a Delaware proceeding.\" Kaung v. Cole Nat'l Corp. , 884 A.2d 500, 507 (Del. 2005) (quoting Paramount Commc'ns Inc. v. QVC Network Inc. , 637 A.2d 34 (Del. 1994) ).\n\n\n637 A.2d 34 (Del. 1994).\n\n\nId. at 53.\n\n\nId. at 55.\n\n\nId. at 55-56.\n\n\nId. at 56.\n\n\nThe citations within the excerpts quoted above are to the pages of Hays's deposition transcript [hereinafter \"Hays Dep.\"].\n\n\nHays Dep. 6:23-7:16.\n\n\nId. at 11:19-14:16.\n\n\nId. at 15:21-18:2.\n\n\nId. at 18:9-22:3.\n\n\nId. at 23:7-24:19.\n\n\nId. at 24:24-27:2.\n\n\nId. at 157:20-158:14.\n\n\nId. at 282:21-284:16.\n\n\nId. at 310:13-311:21.\n\n\nId. at 328:2-25.\n\n\nId. at 357:15-358:10.\n\n\nId. at 360:9-25.\n\n\nId. at 364:8-368:6.\n\n\nApp. to Nederlander Reply Br. at AR002 (Hays Dep. Tr.).\n\n\nId.\n\n\nHays Dep. 57:12-58:3. Hays's appellate counsel did not help matters during oral argument before this Court when he was questioned about his client's deposition behavior. Aside from repeatedly interrupting the Court and talking over the Court when the Court was raising the matter near the end of counsel's allotted time for oral argument, counsel for Hays failed to acknowledge the inappropriateness of Hays's conduct and then even tried to make an excuse for her by simply-and incorrectly-telling the Court that this was Hays's first deposition. See Oral Argument at 38:06-39:40, https://livestream.com/accounts/5969852/events/8670837/videos/191018409/player 39:30; see also Hays Dep. 6:23-25 (Q. \"Have you ever been deposed before?\" A. \"Yes.\").\n\n\nSee Kaung , 884 A.2d at 508 (holding that deposition misconduct can be \"just as outrageous and unacceptable when accomplished by a non-lawyer consultant or a witness at a deposition,\" and stating that \"[f]or future guidance and deterrence, we emphasize that sanctions may be imposed upon anyone participating in a Delaware proceeding who engages in abusive litigation tactics\"); see also GMAC Bank v. HTFC Corp. , 248 F.R.D. 182, 194-95 (E.D. Pa. 2008) (sanctioning both the deponent and counsel for extremely abusive, obstructive and vulgar deposition conduct of the client, and where client's counsel \"persistently failed to intercede\" and \"sat idly by as a mere spectator to [the client's] abusive, obstructive, and evasive behavior\").\n\n\nWe recognize that conferences between the attorney and deponent during the deposition should not occur except to \"assert a privilege against testifying or on how to comply with a court order.\" Ct. Ch. R. 30(d)(1). Parties may also make a motion \"upon a showing that the examination is being conducted or defended in bad faith or in such manner as unreasonably to annoy, embarrass or oppress the deponent or party.\" Ct. Ch. R. 30(d)(3); see also Hall v. Clifton Precision , 150 F.R.D. 525, 531-32 (E.D. Pa. 1993) (ruling that \"[c]ounsel and their witness-clients shall not engage in private, off-the-record conferences during depositions or during breaks or recesses, except for the purpose of deciding whether to assert a privilege\").\n\n\nSee Ct. Ch. R. 170(b) (\"The admission of an attorney pro hac vice shall not relieve the moving attorney from responsibility to comply with any Rule or order of the Court.\"); Ct. Ch. R. 170(c)(ii) (\"Any attorney seeking admission pro hac vice shall certify the following ... [t]hat the attorney shall be bound by the Delaware Lawyers' Rules of Professional Conduct and has reviewed the Principles of Professionalism for Delaware Lawyers, as effective on November 1, 2003, and as amended.\"); Del. Principles Professionalism for Lawyers A(4) (\"A lawyer should represent a client with vigor, dedication and commitment. Such representation, however, does not justify conduct that unnecessarily delays matters, or is abusive, rude or disrespectful. A lawyer should recognize that such conduct may be detrimental to a client's interests and contrary to the administration of justice.\"). These obligations apply with equal force to lawyers who are permitted to practice in this state under a pro hac vice admission. See Ct. Ch. R. 170 (c)(ii); Lendus, LLC v. Goede , 2018 WL 6498674, at *8 (Del. Ch., Dec. 10, 2018) (holding that revocation of pro hac vice admission is an appropriate sanction for \"conduct that is repugnant to this Court's ideals of civility and candor\"); State v. Mumford , 731 A.2d 831, 835-36 (Del. Super. 1999) (holding that an attorney's failure to control witness's offensive behavior during deposition warranted revocation of pro hac\n\n", "ocr": true, "opinion_id": 7875052 } ]

[ "385 N.W.2d 15" ]

[ { "author_str": "Wozniak", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOPINION\nWOZNIAK, Judge.\nOn August 19, 1974, appellant Donald Schleicher, a cement truck driver for respondent Cemstone Products Company, was injured in a construction accident while unloading cement at a site in St. Paul. He collected workers’ compensation benefits from Cemstone and brought negligence actions against appellant Lunda Construction Company, the general contractor on the project, and respondent Advance Shoring Company, one of the subcontractors.\nLunda appeals from an order granting summary judgment in favor of Advance and dismissing Advance from the suit. The trial court granted summary judgment on the grounds that Advance was engaged in a common enterprise with Cemstone and that, because Schleicher had elected to collect workers’ compensation benefits from Cemstone, his action against Advance was barred by Minn.Stat. § 176.061 (1984).\n*17In this appeal, Lunda also raises issues presented in á second order of the district court. This order, dated September 9, 1985, denied Lunda’s motion to join Advance by way of a third-party action for contribution.1\nWe reverse the order granting summary judgment in favor of Advance and remand for further proceedings. Because we reverse this order, it is unnecessary to reach the issues presented in the second order.\nFACTS\nIn 1973 Lunda entered into a highway construction contract with the State of Minnesota for improvements on a bridge deck at the intersection of Interstate 94 and State Highway 61 in St. Paul. Lunda was the general contractor on the project. Lun-da subcontracted portions of the project to Advance and Cemstone.\nCemstone, plaintiff's employer, delivered concrete to the bridge site. Advance owned and set up a hopper-conveyor system which transported poured concrete from Cemstone’s trucks to the \"placing and finishing” crew, supplied by Lunda, who were responsible for setting the poured concrete in the areas to which it was transported.\nThe bridge ran east-west. At the time of the accident, the crews were pouring cement for the south half of the bridge deck, which constituted the westbound traffic lanes. The eastbound traffic lanes were barricaded off and remained open during this phase of the construction. The hopper-conveyor system ran from west to east along the south half of the bridgedeck. Two Advance employees were on the site, one at each end of the hopper-conveyor. When making their deliveries, the cement trucks would come from the east and travel to the west end of the bridgedeck. The trucks would pull past the hopper-conveyor and then back their trucks up between the median and the barricade. When dumping their loads two abreast, there would be approximately 12 to 18 inches between the trucks. The trucks would dump their loads during normal traffic hours.\nOne Cemstone employee was at the work site intermittently. He had the title of job coordinator and his function was to coordinate the deliveries from Cemstone's plant to the work site.\nElroy “Junior” Wright, the Advance employee stationed at the west end of the hopper-conveyor, directed the trucks as they backed up. Wright then helped the drivers place their chutes in the hopper. He did this for every truck driver who unloaded that day. After they had pulled up, the drivers would leave the truck cab and walk to the rear of the truck, where they would climb up on the truck and prepare to operate the controls which controlled the mixture of cement. When the drivers had unloaded their cement, Wright testified that he “occasionally” helped them scrape out and fold up their chutes and lift them out of the hopper, depending on whether or not he was needed to “pitch in.” According to Schleicher, Wright would then order, the driver to drive away. At one point in his deposition, Wright testified that he never gave such orders, that it was unnecessary to tell the drivers when to pull away. He later admitted he “occasionally” gave such orders to the drivers, but not at the time the accident occurred.\nWright testified that there was no custom or understanding in the industry as to whose job it was to put the chutes into the hopper and take them out. He stated that there was never any meeting or agreement with the truck drivers as to who would do it on this particular site.\nOn the date of the accident, Schleicher was making his third delivery to the construction site. He backed his truck up next to the hopper while another Cemstone driver, John Edmon, was dumping his load. Wright assisted Schleicher in placing his *18cement chute inside the hopper. Wright testified that he left the area as Schleicher prepared to dump his cement. Schleicher positioned himself at the controls to begin pouring the cement. Edmon’s truck was emptied and Schleicher immediately began to discharge cement into the hopper. Schleicher testified that the last thing he saw before the accident was Wright scraping out Edmon’s chute. He then heard Wright order Edmon to “Get the hell out of here. Go.” Wright, on the other hand, testified that he left the area immediately after Schleicher backed in and was standing across the median of the highway when the accident occurred. He denied ordering Edmon to drive out, and stated that he never saw the accident.\nEdmon’s chute was still in the hopper as he drove away. The lip of the chute caught in the hopper and the entire hopper-conveyor system began to move. The movement caused Schleicher’s chute to move rapidly toward him and pin him against his truck.\nISSUE\nWere respondent Advance Shoring Company and respondent Cemstone Products Company engaged in a “common enterprise” or “the same or related purposes” within the meaning of Minn.Stat. § 176.-061, subd. 4 at the time of the plaintiff’s injury?\nANALYSIS\nIn reviewing an entry of summary judgment, the facts are viewed in the light most favorable to the party against whom summary judgment was granted, and the sole issue before this court is whether an issue of material fact exists. Ostendorf v. Kenyon, 347 N.W.2d 834, 836 (Minn.Ct.App.1984).\nMinn.Stat. § 176.061, subd. 1 (1984), the election of remedies provision of the workers’ compensation statute, provides:\nIf an injury or death for which benefits are payable occurs under circumstances which create a legal liability for damages on the part of a party other than the employer and at the time of the injury or death that party was insured or self-insured in accordance with this chapter, the employee, in case of injury, or the employee’s dependents, in case of death, may proceed either at law against that party to recover damages or against the employer for benefits, but not against both.\n(Emphasis added.)\nThe election of remedies defense, however, only applies where the employer and the third party are engaged in a “common enterprise” or “the same or related purpose.” Section 176.061, subd. 4 provides:\nThe provisions of subdivisions 1, 2, and 3 apply only where the employer liable for benefits and the other party legally liable for damages are insured or self-insured and engaged, in the due course of business in, (a) furtherance of a common enterprise, or (b) in the accomplishment of the same or related purposes in operations on the premises where the injury was received at the time of the injury.\n(Emphasis added.)\nThe reason for the joint enterpriser’s immunity is that the joint enterpriser can be liable, at least in part, for the workers’ compensation benefits through the employer’s subrogation rights. Peterson v. Little-Giant Glencoe Portable Elevator Division of Dynamics Corp., 366 N.W.2d 111, 116 (Minn.1985).\nIn order for the “common enterprise” defense to serve as a bar to employee claims against third parties, three requirements must be met:\n(1) The employers must be engaged on the same project;\n(2) The employees must be working together (common activity); and\n(3) In such fashion that they are subject to the same or similar hazards.\nMcCourtie v. United States Steel Corp., 253 Minn. 501, 506, 93 N.W.2d 552, 556 (Minn.1958).\nThe supreme court has held that the mere supplying of a product by one em*19ployer to another does not bring the employers within the common enterprise provision. See, e.g., Swanson v. J.L. Shiely Co., 234 Minn. 548, 48 N.W.2d 848 (1951); Tevoght v. Polson, 205 Minn. 252, 285 N.W. 893 (1939). These cases are dispositive of the issue here.\nIn Swanson, the plaintiff, a carpenter, was an employee of Raymer Hardware Company, which was dismantling an overhead garage door as part of a project to build an extension onto a warehouse. Steenberg Construction Company was the general contractor for the extension; defendant J.L. Shiely was a supplier of concrete. As one of Steenberg’s employees was helping one of the Shiely drivers back his truck into position to unload inside the warehouse, the truck knocked over the ladder on which plaintiff was standing. The court held that there was no common enterprise between plaintiffs employer and either Steenberg or Shiely.\n[W]e find no mutuality of hazard between Raymer’s employes, who were removing the door, and either Shiely’s driver, who was delivering concrete, or Steenberg’s employes, who were then engaged elsewhere on the premises in wholly different activities. We hold that the [election of remedies provision] does not avail either defendant.\nThere is an additional reason why Shiely may not avail itself of the [election of remedies provision] as a defense. Shiely was merely delivering a commodity to Steenberg. Duus v. Duus, 181 Minn. 232, 232 N.W. 114; Anderson v. Interstate Power Co., 195 Minn. 528, 263 N.W. 612; Tevoght v. Polson, 205 Minn. 252, 285 N.W. 893, Gentle v. Northern States Power Co., 213 Minn. 231, 6 N.W.(2d) 361. These cases hold squarely that the mere supplying and delivery of a product by one employer to another does not bring the employers within [the election of remedies provision]. Shiely is in the same position as if it had been delivering sand or cement separately to Steenberg. It did nothing but unload the mixture at the points designated by Steenberg. It was not engaged in a common enterprise or related purpose with either Steenberg or Raymer.\nSwanson, 234 Minn, at 559-60, 48 N.W.2d at 855.\nSimilarly, in Tevoght, the plaintiff, an employee of the City of Minneapolis at its incinerator, was injured by a truck delivering coal to the incinerator. The court cited a prior case that held that:\nthe mere supplying of a product by one employer to another did not bring the employers within [the election of remedies provision], that is, the vending and delivery of supplies upon the premises of one of the employers does not amount to either a furtherance of a common enterprise or to the accomplishment of the same or related purposes.\nTevoght, 205 Minn, at 255, 285 N.W. at 894 (citing Anderson v. Interstate Power Co., 195 Minn. 528, 532-33, 263 N.W. 612, 614 (1935)).\nAdvance argues that this case is distinguishable from the “mere delivery” line of cases. According to this argument, Cemstone, with its trucks, and Advance, with its hopper-conveyor system, were involved in a single, ongoing operation of unloading cement and conveying it to the placing and finishing crew at the other end of the bridge. In other words, according to Advance, more than mere delivery was taking place here. This argument fails.\nAs were the employers in Swanson and Tevoght, Cemstone was merely a supplier of a product to the work site. Although the facts regarding the extent to which an Advance employee was assisting with the unloading of the cement are in dispute, these facts are not material for purposes of the summary judgment order at issue here. In a typical delivery situation, an employee of the deliveree may assist in unloading the product being delivered. The Minnesota Supreme Court has never held that this creates an exception to the Swanson and Tevoght line of cases. The fact that the product involved here was cement makes no difference.\n*20After the trial court granted Advance’s motion for summary judgment, Lunda moved the court for leave to serve a third-party complaint seeking contribution from Advance. The trial court denied Lunda’s motion. Appellant also argues that the common enterprise provisions of section 176.061 subds. 1 and 4, violate the due process and equal protection clauses of the United States and Minnesota constitutions. Because we reverse the order granting summary judgment and hold that Advance is not immune from direct suit under the common enterprise defense, it is unnecessary to reach these issues.\nDECISION\nReversed and remanded.\n\n. Lunda filed a petition for discretionary review of the September 9 order on October 11, 1985. By order dated November 5, 1985 (C5-85-1910), this court denied the petition but ordered that Lunda could raise the issues presented in the September 9 order in its appeal of the summary judgment order.\n\n", "ocr": true, "opinion_id": 7875589 } ]

[ "389 N.W.2d 202" ]

[ { "author_str": "Amdahl", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nAMDAHL, Chief Justice.\nEmployee, a self-employed dentist, seeks review of a decision of the Workers’ Compensation Court of Appeals which determined that he did not have insurance coverage for workers’ compensation liability on January 1, 1981, and vacated an award of compensation based on the compensation judge’s determination that the cumulative effects of employee’s work activities had resulted in a personal injury, an aggravation of a preexisting cervical spondylosis, which resulted in temporary partial disability between January 1, 1981, and February 8, 1983, for which employee waived any claim to compensation; in temporary total disability from February 9 to June 30, 1983; in temporary partial disability thereafter; and in a 30% permanent partial disability of the back. Employee contends that the WCCA erred in reversing the compensation judge’s finding that he had workers’ compensation coverage in the years 1981, 1982 and 1983, and that it also erred in determining that a finding he had sustained a personal injury on January 1,1981, was res judicata and not reviewable. We reverse and remand for a new hearing.\nWith respect to the coverage issue, the record discloses that at the beginning of the compensation hearing the employer-insurer admitted that insurance coverage existed. At that point, however, employee claimed that he had sustained a personal injury by March 1982 and the employer-insurer took the position that there was no causal relationship between his condition and his work or, alternatively, that he did not sustain compensable injury until February 9, 1983, when he underwent surgery required by the development of a spinal lesion. It is clear that the employer-insurer’s admission of coverage did not concede coverage on January 1, 1981, so the compensation judge’s finding that there was coverage at that time is unsupported. However, upon the employer-insurer’s appeal from the compensation judge’s award, the WCCA substituted its finding that coverage did not exist on that date, basing the finding upon an affidavit which the insurer prepared after the compensation judge’s decision was filed. As a court of review, the WCCA improperly considered the affidavit, which obviously had never been submitted to the compensation judge for consideration, and its finding that employee was not insured for workers’ compensation liability on January 1, 1981, cannot stand. Although it was justified in setting aside the compensation judge’s finding of coverage, the WCCA’s proper course was to remand the matter for a further evidentia-ry hearing on the issue.\nIt is clear also that the WCCA erred in determining that the employer-insurer’s appeal had brought before it only the issue of coverage. Without adverting to the notice of appeal filed by the employer-insurer, the WCCA treated the appeal as involving only the coverage issue, interpreted the compensation judge’s decision as setting forth an injury date of January 1,1981, and determined that the compensation judge’s decision on that issue was res judicata because Minn.Stat. § 176.421, subd. 6 (1984), limits the jurisdiction of the WCCA to issues raised by a party on appeal or cross-appeal. However, the notice of appeal demonstrates that the compensation judge’s findings concerning employee’s injury were placed in issue on appeal. The notice of appeal lists as “specific findings appealed from” findings 4 and 9 of the compensation judge’s decision, which provided:\n4. As a result of the cummulative effect of employee’s employment activities as a dentist for many years the employee sustained a personal injury in the nature of an aggravation of a preexisting spon-dylosis of the cervical spine resulting in disability commencing January 1, 1981, in the nature of a loss of ability to engage in the full-time duties of his occupation efficiently and loss of wage earning *204capacity resulting from the impairment affecting employee’s efficiency and therefore, employee was temporarily partially disabled from on or about January 1, 1981 to February 9, 1983.\n‡ ⅝ # ‡ ⅛: sjt\n9. As a further result of employee’s personal injury of January 1, 1981 to February 9, 1983, employee has suffered a 30% permanent partial disability to his back and spine based upon the injury to his cervical spine superimposed upon his underlying spondylosis.\nThe findings clearly dealt with the nature and time of employee’s injury, and the WCCA erred in determining that the date of injury was res judicata.\nMoreover, it is difficult to determine whether the compensation judge was in fact determining that the date of injury was January 1, 1981. Finding 4 would suggest that this is so, as did the compensation judge’s determination of employee's compensation rate based on his 1980 earnings, but Finding 9 sets forth a Gillette injury culminating in disability on February 9, 1983. The findings appear to be inconsistent. Moreover, no evidence appears to support an injury date of January 1, 1981. At that time employee had lost no time from work, and had noticed no neurological symptoms.\nWe conclude that the only appropriate response to the problems raised by the case is to reverse the decision under review and to remand the matter for a new hearing on all issues.\nEmployee is awarded attorney fees of $400.\n", "ocr": true, "opinion_id": 7875743 } ]

[ "297 Ga. App. 99", "676 S.E.2d 413" ]

[ { "author_str": "Johnson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJOHNSON, Presiding Judge.\nDewey Blackmon pled guilty to one count of robbery in April 2008. Later that month, he moved to withdraw his plea, alleging that he did not enter it knowingly and voluntarily. The trial court denied Blackmon’s motion, and this appeal followed. We affirm.\n1. When a defendant challenges the validity of his guilty plea, the state must demonstrate that he intelligently and voluntarily entered the plea.1 It “may do so by either (1) showing on the record of the plea hearing that the defendant understood the rights he was waiving and the consequences of his plea, or (2) filling a silent record with extrinsic evidence that affirmatively shows the plea was knowing, intelligent, and voluntary.”2 Acting as the factfinder, the trial court exercises its discretion in resolving a motion to withdraw a guilty plea, and we will not disturb its ruling absent a manifest abuse of that discretion.3\nThe record shows that before entering his plea, Blackmon signed a written Plea Proceeding Record, which listed the various rights he was waiving by pleading guilty. He indicated on the form that he understood the nature of the robbery charge, was entering the plea knowingly and voluntarily, had not been influenced by any promise or threat, and had been informed of the possible punishment range.\nBlackmon then made similar representations at the plea hearing. The prosecutor informed him of the charge, the penalty range, and the rights he was waiving. Blackmon acknowledged this information, indicated that he understood his rights, and stated that he wished to plead guilty. He also testified that he was satisfied with his attorney, was not under the influence of drugs or alcohol, and had not been induced to plead guilty.\nAt that point, the prosecutor presented the facts underlying the robbery charge. According to the prosecutor, Blackmon stole several cartons of cigarettes from a grocery store clerk after handing her a note in which he threatened to kill her. Blackmon admitted to the trial court that he stole the cigarettes, and he again acknowledged that he was waiving various rights by pleading guilty. The trial court accepted Blackmon’s plea after concluding that it had a factual basis and was entered knowingly and voluntarily.\nA few weeks later, Blackmon moved to withdraw the plea. The trial court held a hearing, and Blackmon asserted that he did not *100have sufficient time to review the state’s discovery and met with counsel only once before pleading guilty. He also claimed innocence, testifying that he “actually purchased the cigarettes.”\nDecided March 26, 2009.\nThe trial court denied Blackmon’s motion to withdraw, again concluding that he knowingly and voluntarily entered the plea. We find no error. Although Blackmon claimed at the withdrawal hearing that he lacked sufficient time to make his plea decision, he raised no such concern at the plea hearing, and he received the state’s discovery material several days before the plea. Blackmon’s other allegations — including his claimed innocence and complaints about counsel — similarly contradicted his plea hearing testimony.\nAny discrepancies between Blackmon’s testimony at the withdrawal hearing and the plea hearing presented credibility issues for the trial court to resolve.4 And given the record of the plea proceeding, it did not abuse its discretion in finding that Blackmon understood his rights and knew the consequences of his plea. Accordingly, the trial court properly denied the motion to withdraw.5\n2. Citing plea counsel’s alleged failure to prepare him, Blackmon also argues that he received ineffective assistance of counsel during the plea proceeding. Blackmon, however, did not raise an ineffective assistance claim below. He filed no written motion asserting that counsel was constitutionally inadequate. Although he complained at the withdrawal hearing that he met with plea counsel only once, he did not claim ineffective assistance or offer any argument in that regard. As a result, the trial court never addressed the sufficiency of counsel’s representation.\n“A claim of ineffective assistance of counsel must be raised in the trial court at the earliest practicable moment, and the failure to raise the issue constitutes a waiver.”6 We recognize that Blackmon’s plea counsel filed the original motion to withdraw. But Blackmon eventually obtained new counsel, who filed a motion below and represented him at the withdrawal hearing. Blackmon could have asserted an ineffective assistance claim in the trial court, but he did not do so, and he never requested a ruling on any ineffective assistance allegation. Accordingly, he cannot now raise this claim on appeal.7\n\nJudgment affirmed.\n\n\nEllington and Mikell, JJ., concur.\n\nJohn D. Rasnick, for appellant.\nPeter J. Skandalakis, District Attorney, Lynda S. Caldwell, Assistant District Attorney, for appellee.\n\n Ransom v. State, 293 Ga. App. 651, 652 (667 SE2d 686) (2008).\n\n\n (Citation and punctuation omitted.) Id.\n\n\n Id.\n\n\n Voils v. State, 266 Ga. App. 738, 742 (2) (598 SE2d 33) (2004).\n\n\n See Ransom, supra at 653; Voils, supra at 741-742 (2).\n\n\n Sheffield v. State, 270 Ga. App. 576, 578 (2) (607 SE2d 205) (2004).\n\n\n Id.; see also Rowe v. State, 246 Ga. App. 855, 856 (542 SE2d 578) (2000).\n\n", "ocr": true, "opinion_id": 7875804 } ]

[ "299 Ga. App. 505", "683 S.E.2d 80" ]

[ { "author_str": "Bernes", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBernes, Judge.\nR. W., a 17-year-old male, was charged in the juvenile court with aggravated assault, armed robbery, and theft by taking. Following a hearing, the juvenile court transferred R. W.’s case to the superior court so that he could be treated as an adult offender. R. W appeals from the transfer order,1 contending that the juvenile court erred by finding that there were reasonable grounds to believe that he committed the alleged offenses and that the interests of R. W and the *506community required the transfer of jurisdiction to the superior court. We disagree and affirm.\nBefore transferring jurisdiction from juvenile to superior court, the juvenile court must find that\nthere are reasonable grounds to believe that the child committed the delinquent act alleged; the child is not committable to an institution for the mentally retarded or mentally ill; the interests of the child and the community require that the child be placed under legal restraint and the transfer be made; and the child was at least 15 years of age at the time of the alleged delinquent conduct.\n(Punctuation and footnote omitted.) In the Interest of S. K. K., 280 Ga. App. 877, 877-878 (635 SE2d 263) (2006). See OCGA § 15-11-30.2 (a) (3), (4) (A). On appeal, “[t]he function of [this] court is limited to ascertaining whether there was some evidence to support the juvenile court’s determination,” and absent an abuse of discretion, we will affirm the order transferring jurisdiction. (Punctuation and footnote omitted.) In the Interest of S. K. K., 280 Ga. App. at 878 (1).\nHere, R. W. challenges the juvenile court’s findings that there were reasonable grounds to believe that he committed the delinquent acts alleged, and that the interests of R. W. and the community required that he be placed under legal restraint and the- transfer be made. R. W. does not contest that there was sufficient evidence to establish the other statutory factors for transferring the case to superior court.\nThe evidence presented at the transfer hearing showed that R. W. had a history of twenty-two prior offenses dating back eight years that had been handled in the Juvenile Court of Fulton County. R. W. had previously been offered counseling and treatment for his anger management issues through his juvenile court probation officer, but R. W failed to continue reporting to his probation officer and never participated in the services offered. Currently, R. W. was in custody based on charges of aggravated assault, armed robbery, and theft by taking for three separate incidents in Fulton County that occurred in May and June 2008. The evidence as to those three incidents was as follows.\nThe Aggravated Assault. In May 2008, R. W. approached the victim, pointed a gun at him, and pulled the trigger twice. The gun, however, did not fire, and R. W. fled from the scene. The police responded to a 911 call concerning the assault, and the victim identified R. W by name as the perpetrator. The victim later identified R. W. in a photographic lineup as the individual who assaulted him.\n*507The Armed Robbery. In June 2008, two males entered the Brazil Fine Italian Clothing Store. One of the males pulled out pepper spray, sprayed it into the female victim’s eyes, and punched the victim in the face twice. As this occurred, several other males entered the store, grabbed over $30,000 worth of blue jeans and other clothing, and fled from the premises.\nThe incident was captured on a surveillance videotape that was handed over to the police, who showed the videotape on the Crime Stoppers television show. A female who went to school with R. W. and knew him contacted the police and informed them that R. W. was one of the perpetrators seen in the videotape. Two other females, who were interviewed by police in connection with a similar armed robbery, were also shown the videotape. They too recognized R. W as one of the perpetrators. Additionally, R. W. was caught in a vehicle that contained clothing taken from the store, and two of his co-perpetrators implicated him as having participated in the robbery.\nThe Theft by Taking. That same month, three males entered the Ginza Boutique in Underground Atlanta, grabbed over $500 worth of clothing, and ran out of the store without paying. A store employee who witnessed the incident identified R. W. from a photographic lineup as one of the perpetrators. Several items of the stolen clothing were later recovered during the execution of a search warrant at the home where R. W told police that he lived.\nAfter R. W was taken into custody, he received notice that the juvenile court planned to conduct a hearing to determine whether jurisdiction of his case would be transferred to superior court so that he could be treated as an adult offender. At the transfer hearing, the police officers who investigated the three criminal incidents testified to the events as set out above. The probation officer previously assigned to R. W testified concerning how the prior attempt to provide R. W. with rehabilitation services had been unsuccessful. Additionally, R. W.’s mother testified on her son’s behalf but admitted on cross-examination to his long history of delinquency offenses.\n1. Based on the evidence set forth above admitted through the testimony of the investigating officers, the juvenile court did not abuse its discretion in finding reasonable grounds to believe that R. W committed the alleged crimes of aggravated assault, armed robbery, and theft by taking. See In the Interest of T. F., 295 Ga. App. 417, 420 (2) (671 SE2d 887) (2008); OCGA § 16-2-20 (b) (parties to a crime). See also OCGA §§ 16-5-21 (a) (aggravated assault); 16-8-2 (theft by taking); 16-8-41 (a) (armed robbery). “OCGA § 15-11-30.2 (a) (3) (A) requires only that the court find there were reasonable grounds to believe the child committed the crime, not proof beyond *508a reasonable doubt.” (Citation and punctuation omitted.) In the Interest of T. F., 295 Ga. App. at 420 (2). And while it is true, as R. W. emphasizes, that the testimony of the officers included hearsay, such testimony is admissible in transfer proceedings to establish that reasonable grounds existed to believe that the accused committed the alleged crimes. See id. at 419-420 (1). See also In the Interest of R. B., 264 Ga. 602, 603 (1) (448 SE2d 690) (1994); In the Interest of D. W. B., 259 Ga. App. 662, 663 (2) (577 SE2d 819) (2003). We therefore discern no ground for reversal.\nDecided August 3, 2009.\nPhillip Jackson, for appellant.\n2. The juvenile court likewise committed no error in finding that the interests of R. W and the community required the transfer of jurisdiction to the superior court. See OCGA § 15-11-30.2 (a) (3) (C).\nWhether a child is amenable to treatment in the juvenile system is a factor to consider in determining the child’s and the community’s interests. If the evidence shows the child is not amenable to treatment, the child’s interest in treatment in the juvenile system is minimized because of the treatment’s potential ineffectiveness, and, because of that ineffectiveness, the community has an interest in treating the child as an adult. Moreover, even if there is evidence that the child may be amenable to treatment, the juvenile court may still transfer the case if it finds that the amenability factor is outweighed by the interest of the community in treating this child as an adult.\n(Citations omitted.) In the Interest of J. B. H., 241 Ga. App. 736, 739 (2) (527 SE2d 18) (1999). Here, the testimony of the probation officer and R. W.’s mother established that R. W. had an extensive history of delinquency offenses dating back eight years, and that past rehabilitative attempts had proven fruitless. Furthermore, several of the pending charges against R. W. who was 17 years old at the time of the transfer hearing, involved seriously violent behavior. Under these combined circumstances, we conclude that there was sufficient evidence for the juvenile court to find that the interests of R. W. and the community would be better served if he were prosecuted as an adult offender in superior court. See id. at 739-740 (2). See also In the Interest of T. F., 295 Ga. App. at 421 (3).\n\nJudgment affirmed.\n\n\nSmith, P. J., and Phipps, J., concur.\n\nPaul L. Howard, Jr., District Attorney, Kathleen A. Giroux, Stephany J. Luttrell, Assistant District Attorneys, for appellee.\n\n An order transferring a case from juvenile to superior court is a final order that is directly appealable. See Rivers v. State, 229 Ga. App. 12, 13 (1) (493 SE2d 2) (1997).\n\n", "ocr": true, "opinion_id": 7876008 } ]

[ "304 Ga. App. 225", "695 S.E.2d 739" ]

[ { "author_str": "Johnson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJohnson, Judge.\nI. W.’s biological father appeals the juvenile court order finding nine-year-old I. W. deprived and ordering that long-term custody be granted to the child’s maternal aunt rather than to him. We find no error and affirm the juvenile court’s order.\nThe record shows that I. W’s mother died on December 1, 2008, and I. W began residing with her maternal aunt when her mother entered the hospital shortly before that time. The mother had never married I. W’s biological father, and the biological father had never legitimized I. W. In June 2009, the maternal aunt sought the assistance of the Clayton County Department of Family and Children Services (the “Department”) in obtaining custody of I. W On August 5, 2009, the Department filed a complaint and deprivation petition that alleged I. W.’s mother was deceased and her biological father had informed the Department he was unable to care for I. W. because his job required him to travel. The complaint further alleged that I. W. had resided with her maternal aunt since her mother’s death and that the Department was “in the process of doing a home study on the home of the maternal aunt.”\nOn September 10, 2009,1. W’s father filed a motion to intervene in the juvenile court and noted that DNA results showed him to be the biological father of I. W The juvenile court issued an order of legitimation on October 26, 2009. The father subsequently filed a petition to dismiss the deprivation hearing, asked that he not be required to attend the hearing because it was unnecessary, and asserted that “if no further notice [was] given, [he would] not be in attendance for this hearing as it [was] no longer necessary.” The juvenile court did not grant the father’s motion to dismiss or excuse his absence at the deprivation hearing. Nevertheless, the father failed to attend the deprivation hearing.\nAt the deprivation hearing, a Department caseworker testified that she contacted I. W.’s father after the aunt filed her petition for custody. The father indicated to the social worker that “he had no problem with” I. W staying with her aunt because he was unable to care for her “because of his job.” He further requested that his family be allowed to have continued involvement in I. W’s life if the aunt was awarded custody. The social worker completed a study of the aunt’s home and determined that the aunt appeared “to have the *226ability to provide for [I. W.’s] needs.” In fact, the aunt had moved to a new home which provided “more room.”\nThe social worker also spoke with I. W. and her 14-year-old half-brother, who also lived with the aunt, “separately and privately,” and each child informed her that they wished to continue living with their aunt. I. W. told the social worker that she had gotten close with her aunt and that she would do things with her aunt even when her mother was alive. The social worker recommended allowing the children to continue to reside with the aunt.\nThe aunt testified that I. W and her half-brother had lived with her since their mother’s hospitalization in November 2008, that she was able to provide for the children, and that she desired custody of them. She further testified that the father had only given her a total of $50 as financial assistance to help with I. W during the time I. W. resided with her aunt. According to the aunt, I. W’s father did not provide any support for I. W, did not attend the mother’s funeral, and did not console I. W during her mother’s death. She recounted that I. W’s father “had been in and out of” her life, in and out of jail, and was not even present when I. W was born. When the aunt asked the father about his attempt to gain custody, he explained that “he wanted his sister to have [I. W] because his sister and her husband ma[d]e a lot of money.” The aunt stressed that I. W. was bonded with her half-brother, that the mother’s will stated she wanted the children to remain together, and that the mother did not want I. W to be with the father because he moved “from woman to woman and place to place.” According to the aunt, the children “begged” her to let them live with her.\nI. W’s 19-year-old half-sister, who does not live with the aunt, testified that I. W. was happy living with her aunt and wanted to continue doing so. The half-sister saw I. W. nearly every day and believed the aunt provided I. W. with a good home. The half-sister also testified that the father had not provided I. W with any support since their mother had died and that the mother was their sole caretaker before her death.\nI. W.’s attorney reported to the juvenile court that I. W. wanted to stay with the aunt “very much.” While I. W. wanted to have weekend visits with her father, she “definitely [did] not want to live with [him].” The attorney reported that the children were “well taken care of” at the aunt’s house.\nThe juvenile court entered a written order finding that I. W. was deprived because her mother died without leaving a guardian or custodian to provide for I. W’s needs, and the father failed to provide for I. W’s needs and care. Finding that long-term custody to the aunt was in I. W’s best interest, the juvenile court granted the aunt’s custody petition.\n*2271. The father first contends the trial court erred in “continuing with the November 9, 2009 [deprivation hearing] without notifying [him] of its intention.” We disagree.\nAlthough the father filed a motion to dismiss the custody petition in the juvenile court on October 28, 2009, and asked the court to grant the motion and excuse his attendance from the deprivation hearing, the juvenile court never ruled on the motion and did not excuse the father’s attendance from the deprivation hearing. Merely asserting that a hearing is “no longer necessary” and that he will not appear unless “further notice is given” does not excuse a party from appearing in court when necessary to defend his position or argue his motion. The father, as movant, possessed the “responsibility to present sufficient evidence in support of his motion to dismiss.”1 He also bore the responsibility of presenting evidence at the deprivation hearing showing that I. W. was not deprived and that it was not in I. W’s best interest to be placed in the aunt’s custody.2\nThe father further argues that the juvenile court bore the burden of confirming his attendance at the hearing and that its failure to do so deprived him of the opportunity to establish facts in support of his position that I. W was not deprived and should be in his custody. However, the father has cited to no authority, and we can locate no authority, holding that the juvenile court was obligated to inform the father that the deprivation hearing would continue as scheduled merely because the father requested the court to do so in his motion to dismiss. In fact, the Supreme Court of Georgia has ruled that a party who was “properly informed and had actual knowledge of the trial date” but “chose not to participate,” was not deprived of his due process rights.3 The father in the present case knew of the impending hearing and was afforded an opportunity to present his evidence and objections, but he chose not to participate.\nContrary to the father’s argument, the superior court’s order of legitimation in no way exempted him from participating in the deprivation case pending in the juvenile court. In fact, the juvenile court has exclusive original jurisdiction over juvenile matters and is the sole court to hear cases concerning any child who is alleged to be deprived.4\n*228It is clear from the record that the father was fully aware of the juvenile court’s deprivation hearing and that he elected not to participate in the hearing. Thus, he was not denied his right to due process, and this enumeration of error must fail.\n2. The father asserts that the juvenile court used a wrong standard to award custody of I. W. to her aunt. Specifically, he argues that the juvenile court based its custody award to the aunt solely on the basis that the father had failed to provide substantial contribution to I. W’s needs and care. However, the record shows that the juvenile court cited numerous reasons for its decision to award long-term custody of I. W. to her aunt, including: (a) the father failed to appear at the deprivation hearing despite receiving notice, (b) the father previously reported he was unable to care for I. W.’s financial needs and that he traveled a lot for business, (c) the father had been in and out of I. W’s life, including a stretch of four to five years where even his own family did not know the father’s whereabouts, (d) the father had never provided support for I. W, (e) the father did not attend the mother’s funeral or provide emotional support to I. W. during her mother’s death, (f) I. W had lived with her aunt for over a year and wished to remain living with her, (g) I. W and her half-brother are bonded and doing well at the aunt’s home, and (h) the social study completed on the aunt’s home was favorable. It is also worth noting that I. W. was born on August 9, 2000, yet the father did not legitimize her until October 26, 2009.\nWhile there is a rebuttable presumption that it is in the best interest of a child that custody be awarded to a parent, that presumption may be overcome by showing that an award of custody to a third party is in the best interest of the child.5 Moreover, OCGA § 19-7-1 (b) (3) provides that parental power shall be lost by the failure to provide necessaries for the child or abandonment of the child. The record supports the juvenile court’s decision that granting long-term custody to I. W.’s aunt is in her best interest.6\n3. The father contends the trial court erred in failing to use the clear and convincing evidence standard in depriving him of his parental rights to I. W We find no error.\nUnder Georgia law, a deprived child includes a child who “[i]s without proper parental care or control, subsistence, education as *229required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals” or who has been abandoned by his or her parents.7 These definitions focus on the needs of the child, regardless of parental fault.8 The issue of whether the father had, and would, provide proper parental care and control for I. W and whether he abandoned I. W. were the chief inquiries presented in the deprivation proceeding.9\nDecided May 27, 2010.\nRuby L. Knight, for appellant.\nOn appeal, we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived.10 We do not weigh the evidence or determine the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard of review is not met.11 Though the words “clear and convincing evidence” were not stated in the juvenile court’s order in the present case, “the trial judge is presumed to know the law and presumed to faithfully and lawfully perform the duties devolved upon it by law.”12 And this Court will not presume that the trial court committed error where that fact does not affirmatively appear.13\nHere, the evidence clearly and convincingly demonstrated that the father had physically, mentally, and emotionally neglected I. W.14 He had been “in and out” of her life, was completely absent from her life for extended periods of time, chose not to legitimize her for nine years, and failed to emotionally support her during her mother’s death. “The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.”15 The evidence supports the trial court’s finding of deprivation.\n\nJudgment affirmed.\n\n\nMiller, C. J., and Phipps, P. J., concur.\n\nThurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, Toni G. McDowell, Jemma Moses, for appellee.\n\n In the Interest of R. D. K, 266 Ga. 294, 297 (4) (466 SE2d 572) (1996).\n\n\n See In the Interest of S. B., 287 Ga. App. 203, 209 (1) (a) (651 SE2d 140) (2007) (mother was responsible for making necessary arrangements to attend deprivation hearing); Reliable Bonding Co. v. State, 262 Ga. App. 280, 283 (585 SE2d 192) (2003) (party has a responsibility to attend hearings and show why judgment should not be entered).\n\n\n Cormier v. Cormier, 280 Ga. 693, 693-694 (1) (631 SE2d 663) (2006).\n\n\n OCGA § 15-11-28 (a) (1) (C); In the Interest of J. P., 267 Ga. 492 (480 SE2d 8) (1997).\n\n\n Jones v. Burks, 267 Ga. App. 390, 392 (599 SE2d 322) (2004).\n\n\n See Tucker v. Dimpfl, 143 Ga. App. 545, 546 (2) (239 SE2d 215) (1997) (father had abandoned children by reason of his lack of interest, failure to furnish love and affection without good reason to show why he could not, and the failure to supply material support for a period of more than four years).\n\n\n OCGA § 15-11-2 (8) (A), (C).\n\n\n See In the Interest of A. B., 289 Ga. App. 655, 656 (1) (658 SE2d 205) (2008).\n\n\n See In the Interest of J. V., 241 Ga. App. 621, 625-627 (526 SE2d 386) (1999).\n\n\n See In the Interest of S. S., 232 Ga. App. 287, 289 (501 SE2d 618) (1998).\n\n\n Id.\n\n\n (Citations and punctuation omitted.) In the Interest of A. L. L., 211 Ga. App. 767, 770 (5) (440 SE2d 517) (1994).\n\n\n Id.\n\n\n See OCGA § 15-11-94 (b) (4) (B) (v).\n\n\n (Citations and punctuation omitted.) In the Interest of D. B. C., 292 Ga. App. 487, 496 (1) (c) (664 SE2d 848) (2008).\n\n", "ocr": true, "opinion_id": 7876515 } ]

[ "434 N.W.2d 4" ]

[ { "author_str": "Forsberg", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOPINION\nFORSBERG, Judge.\nCass County appeals a decision of the Commissioner of Veteran Affairs that Donald Gramke was entitled to a discharge hearing following his firing as Cass County Chief Deputy Sheriff. We affirm.\nFACTS\nJames Dowson was elected Cass County Sheriff in November 1986. Donald Gramke lost to Dowson in the primary and thereafter actively supported Dowson. On *5January 5, 1987, Dowson hired Gramke as chief deputy. His appointment was on a form used for deputy sheriff.\nDeputy sheriffs in Cass County are part of the civil service classified system. Deputy sheriffs are also represented by a union. Gramke’s appointment was not processed through civil service and Gramke was not represented by the deputy’s labor union. The chief deputy position was the only appointed position in the Sheriff’s Department.\nThe parties dispute the amount of authority that Gramke had after his appointment. Gramke did not schedule personnel. He did not have keys to the sheriff’s office. Gramke did have confidential discussions with Dowson involving political situations, criminal investigation, and sensitive employment matters. Several employees testified that Gramke did not appear to have the authority that Dowson, the previous chief deputy, had.\nOn July 15, 1987, Sheriff Dowson orally dismissed Gramke. Gramke, a veteran, applied to the Sheriff and the County Board of Commissioners for a hearing. The request was denied on the basis that Gramke was a “chief deputy” and excluded from the benefits of the Veterans Preference Act. Gramke then appealed to the Commissioner of Veteran Affairs (Commissioner) under the provisions of Minn.Stat. §§ 197.46, 197.481 (1986 & Supp.1987).\nThe Administrative Law Judge (AU) found that because Minn.Stat. § 387.145 (Supp.1987) did not authorize a chief deputy sheriff for Cass County, Gramke’s position was that of a deputy sheriff. AU also found that Gramke did not occupy a position which involved a “strictly confidential relation to the appointing officer” within the meaning of Minn.Stat. § 197.46 (1986). The AU recommended Gramke be given a hearing, at which time Cass County must establish cause for his discharge. The AU also recommended that Gramke be paid from the time of discharge until the existence of cause for termination was shown. The Commissioner adopted the findings and conclusions of the AU and ordered a hearing and pay for Gramke. Cass County appeals.\nISSUES\n1. Did Donald Gramke hold the position of chief deputy for Cass County?\n2. Did Donald Gramke have a “strictly confidential” relationship with the appointing officer?\nANALYSIS\nIn reviewing a decision of the Commissioner of Veteran Affairs, this court may reverse, affirm, modify, or remand for further proceedings if substantial rights of the petitioner have been prejudiced because administrative findings or conclusions are:\n(a) In violation of constitutional provisions; or\n(b) In excess of the statutory authority of jurisdiction of the agency; or\n(c) Made upon unlawful procedure; or\n(d) Affected by other error of law; or\n(e) Unsupported by substantial evidence in view of the entire record as submitted; or\n(f) Arbitrary or capricious.\nMinn.Stat. § 14.69 (1986). Agency decisions are presumed correct and deference is given to an agency’s expertise or special knowledge in a certain field.\nI.\nThe AU determined that Gramke was not chief deputy within the meaning of the Veterans Preference Act (VPA), Minn. Stat. § 197.46 (1986). The VPA provides that veterans cannot be removed from public employment except for incompetency or misconduct shown after a hearing. However,\nNothing in section 197.455 or this section [197.46] shall be construed to apply to the position of private secretary, teacher, superintendent of schools, or one chief deputy of any elected official or head of a department, or to any person holding a strictly confidential relation to the appointing officer. The burden of establishing such relationship shall be upon *6the appointing officer in all proceedings and actions relating thereto.\nMinn.Stat. § 197.46 (1986). Cass County argues that Gramke was a chief deputy within the meaning of the statute and thus is not entitled to hearing. The AU found that Gramke was not a chief deputy because Cass County was not authorized to have a chief deputy. Minn.Stat. § 387.145 (1986) provides:\nNotwithstanding the provision of any law to the contrary the sheriff of any county which has 100,000 or more inhabitants according to the 1980 federal census or the latest federal census thereafter may appoint a chief deputy or first assistant with the approval of the county board.\nThe AU took judicial notice, and neither side disputes, that Cass County has less than 100,000 inhabitants.\nThe AU reasoned that although there is no specific statute prohibiting counties with population of less than 100,000 from appointing a chief deputy, that results from the “natural import of the language used.” The AU stated\nNo reason is apparent why legislative authorization would be required for the appointment of a chief deputy or first assistant in counties with a population of at least 100,000 inhabitants if the general authority of the sheriff to appoint deputies contained in Minn.Stat. § 387.14 (1986) is sufficient to create the position of chief deputy * * * in counties with a smaller population.\nWe agree.\nII.\nCass County argues that not only was Gramke chief deputy, but he also had a confidential relationship with his appointing officer. The existence of a confidential relationship depends on the duties of the position and the relationship. Blaski v. Fisher, 194 Minn. 75, 77, 259 N.W. 694, 695 (1935); State v. Mangni, 231 Minn. 457, 466-67, 43 N.W.2d 775, 780 (1950). The record shows that Gramke was told he would act as sheriff in Dowson’s absence and perform duties delegated by Dowson. These are the types of responsibilities that do not establish the existence of the necessary confidential relationship to the appointing authority. The sheriff may have had unspecified expectations about the degree of confidence he might develop in Gramke in the future, but this is insufficient. The AU found the only evidence to support a confidential relationship were unspecified conversations related to the running of the office and therefore Dowson had not met the burden of showing this confidential relationship.\nDECISION\nWe find Donald Gramke was not a chief deputy sheriff nor did he have a “strictly confidential” relationship with the sheriff. Therefore the exceptions to Minn.Stat. § 197.46 (1986) do not apply and Gramke is entitled to a hearing and pay.\nAFFIRMED.\n", "ocr": true, "opinion_id": 7876784 } ]

[ "438 N.W.2d 441" ]

[ { "author_str": "Crippen", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n*442OPINION\nCRIPPEN, Judge.\nThis appeal arises out of appellant’s claim of negligent transmission of a disease, Acquired Immune Deficiency Syndrome (AIDS). Respondent can be charged with knowledge in May 1985 that he was ill and that the AIDS virus was a possible problem for people who have had homosexual activity. He contends, first, that there is no evidence he knew or should have known that he had AIDS in May 1985, and second, that no evidence shows at that time he should have known he could transmit AIDS by sexual contact with appellant.\nThe trial court granted summary judgment in favor of respondent, concluding that until October 1985, respondent had no actual or constructive knowledge that he had the AIDS virus, and that appellant failed to show respondent’s duty to warn appellant of his condition. We affirm.\nFACTS\nAppellant (C.A.U.) and respondent (R.L.) met in May 1984. The following September, the parties became engaged to be married in May 1985. In March 1985, respondent went to the doctor because of headaches, spots on his legs, weakness and fatigue. In April 1985, his doctor ordered a kidney biopsy. The parties evidently ended their sexual relationship late in April 1985. As stated by respondent in his deposition, between May and September 1985 the parties’ only physical contact was kissing, and after September 1985, they had no physical contact.\nAfter an episode of abdominal pain in June, and a collapsed lung in July, respondent was again hospitalized for three weeks in October 1985 for pneumocystis pneumonia. Respondent recalled that in October, his doctors said he might have the AIDS antibody but they could not be positive. In a medical report at that time, his physicians concluded respondent tested positive for the AIDS antibody but “rule[d] out” the Acquired Immune Deficiency Syndrome.\nIn December 1985, respondent was again hospitalized, and herpes was detected in his bone marrow. In a December discharge diagnosis, respondent’s doctor concluded it was probable that respondent had AIDS. In a memorandum to the trial court, appellant purported to quote a doctor’s notation indicating that in February 1986 appellant admitted to having had one high risk homosexual contact.\nAppellant stated in her deposition that she asked respondent in April 1985 if he had AIDS, to which he responded “no.” Respondent said the first time he heard of the AIDS disease was in July 1985 when the media published the information that movie actor Rock Hudson had AIDS. Hudson’s Illness Spurs Flurry of Calls About Aids, Minneapolis Star and Tribune, July 27, 1985 at IB.\nRespondent stated in his deposition that he discovered he had AIDS in January 1986, and subsequently informed appellant of his condition. Appellant has since tested positive for AIDS, indicating the initial or “carrier” stage of the disease.\nRespondent died December 11, 1986. His father was appointed special administrator of his interests in this action.\nISSUE\nAre there any genuine issues of material fact regarding respondent’s knowledge that he could transmit AIDS through intimate sexual contact?\nANALYSIS\nOn appeal from summary judgment it is this court’s function to determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn.1979). Upon review the evidence is considered in a light most favorable to the nonmoving party. Nord v. Herreid, 305 N.W.2d 337, 339 (Minn.1981).\nAs correctly stated by appellant, Minnesota courts have long recognized that persons may be liable for the negligent transmission of dangerous, communicable *443diseases. Kowalske v. Armour & Co., 300 Minn. 301, 305, 220 N.W.2d 268, 271 (1974) (brucellosis), overruled in part, Ruberg v. Shelly Oil Co., 297 N.W.2d 746 (Minn.1980) (overruling dicta contrary to law on joint and several liability); Skillings v. Allen, 143 Minn. 323, 326, 173 N.W. 663, 664 (1919) (scarlet fever); R.A.P. v. B.J.P., 428 N.W.2d 103, 106-07 (Minn.Ct.App.1988) (genital herpes), pet. for rev. denied (Minn. Oct. 19, 1988).\nAppellant claims there is a genuine issue of material fact as to whether respondent should have known he was a likely carrier of the AIDS virus during the time the parties were sexually involved.1 Appellant argues that because of media coverage regarding AIDS, respondent should have known he was in a high risk group because of his alleged homosexual contacts. Respondent contends the trial court properly found as a matter of law that during the time the parties were in a sexual relationship he owed no legal duty to appellant.\nRecently, the supreme court restated the following standard for determining whether a duty exists:\nIf the connection is too remote to impose liability as a matter of public policy, the courts then hold there is no duty, and consequently no liability. On the other hand, if the consequence is direct and is the type of occurrence that was or should have been reasonably foreseeable, the courts then hold as a matter of law a duty exists.\nBalder v. Haley, 399 N.W.2d 77, 81 (Minn.1987) (quoting Germann v. F.L. Smithe Machine Co., 395 N.W.2d 922, 924 (Minn.1986)); see also Prosser and Keeton on the Law of Torts § 42, at 273-275 (W.P. Keeton 5th ed. 1984).\nIt is well established that an essential element in determining whether a legal duty exists is the actor’s actual or imputed knowledge of the facts. Rue v. Wendland, 226 Minn. 449, 452-53, 33 N.W.2d 593, 595-96 (1948). The supreme court has found that “perception, memory, and experience” bear on whether a person is charged with knowledge. Id. at 453, 33 N.W.2d at 596.\nIn this case, respondent’s knowledge only consisted of what he perceived at the time of their relationship, coupled with his memory and experience, concerning the transmission of AIDS. It is required only that respondent’s perception be reasonable under the circumstances, and he is not expected to perceive what was not apparent. Id.\nWhether a legal duty existed between respondent and appellant is generally an issue of law to be resolved by the court. Larson v. Larson, 373 N.W.2d 287, 289 (Minn.1985). Cases involving close questions of foreseeability are for the jury to determine, while those with clear issues of foreseeability should be resolved by the court as a matter of law. Patzwald v. Krey, 390 N.W.2d 920, 922 (Minn.Ct.App.1986) (citing Larson v. Larson, 373 N.W.2d 287, 289 (Minn.1985); Lundgren v. Fultz, 354 N.W.2d 25, 28 (Minn.1984)), pet. for rev. denied (Minn. Oct. 22, 1986).\nAppellant argues that it was reasonable for respondent to be on notice that he was at risk in transmitting AIDS to appellant because of the media coverage regarding AIDS. And thus, appellant asserts, given that respondent allegedly had previous homosexual contacts, he should have known that his sexual relationship with appellant would result in injury. Appellant specifically cites to articles regarding the transmission of AIDS that appeared in Newsweek in April 1983, and in the Minneapolis Star and Tribune from June 1983 to August 1985.\nIn Kozup v. Georgetown University, 663 F.Supp. 1048 (D.D.C.1987), a case based on allegations that the defendant should have known certain facts about AIDS, the court found:\nIt was not until 1984 that the medical community reached a consensus as to the proposition that AIDS was transmissible by blood. * * * In April 1984, scientists *444identified the virus HTLV-III as the cause of AIDS. * * * By May, 1985, [a] * * * test was made available, which screens antibodies sensitive to HTLV-III.\nId. at 1052 (citations omitted); see also McKee v. Miles Laboratories, Inc., 675 F.Supp. 1060, 1063 (E.D.Ky.1987) aff'd, 866 F.2d 219 (6th Cir.1989).\nPrior to May 1985, the content of the literature appearing in local newspapers was threefold: few persons in Minnesota had contracted AIDS, the disease was associated primarily with homosexuals and intravenous drug users, and there was a belief that AIDS was transmitted through blood or semen. A May 1985 news commentary contained within it a statement that “there is clear evidence that heterosexual intercourse transmits AIDS.” Public Needs Better Information About AIDS Risk, Minneapolis Star and Tribune, May 24, 1985, at 15A. In August 1985, a prominent article stated that AIDS was spreading beyond homosexuals and could be transmitted heterosexually. Fears About AIDS Spread Outside High-Risk Groups, Minneapolis Star and Tribune, August 25, 1985, at 1A.\nAlthough a test for the presence of AIDS antibodies became available in June 1984, according to the Minnesota Department of Health, this test was used for screening blood to protect blood bank supplies; it was not designed to diagnose AIDS. Not until the final week of July 1985 could persons who considered themselves at risk be tested anonymously for the AIDS virus.\nBased on the affidavits submitted by respondent’s physicians, and the information available to the general public through the time the parties ended their sexual contact, it was not reasonable for respondent to have constructive knowledge he might have AIDS, or that he was capable of transmitting the disease to appellant. The deficiency of appellant’s case is further compounded by the absence of a proper demonstration of evidence that respondent had a history of homosexual activity. We conclude there are no genuine issues of material fact regarding respondent’s actual or constructive knowledge of his affliction with AIDS or propensity to contract AIDS. We note also that appellant has not claimed or shown that respondent’s illness in the spring of 1985, if not reasonably known to be AIDS, otherwise indicated a disease respondent should have known he might communicate to appellant.\nBecause the court properly concluded respondent owed no legal duty to appellant, it is unnecessary to discuss whether he acted with reasonable care in maintaining his sexual relationship with appellant from May 1984 through May 1985, or whether respondent ought to have revealed his past sexual history of homosexual contacts.\nDECISION\nThe trial court properly determined that respondent was under no duty to warn appellant he had the AIDS disease because at the time of the parties’ relationship it was not reasonably foreseeable that he had the disease or could cause appellant harm through intimate sexual contact.\nAffirmed.\n\n. Appellant does not dispute, and the medical records support the fact that respondent acquired actual knowledge that he had AIDS or one of the initial stages of the virus sometime between October 1985 and January 1986.\n\n", "ocr": true, "opinion_id": 7876879 } ]

[ "449 N.W.2d 485" ]

[ { "author_str": "Short", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOPINION\nSHORT, Judge.\nThe state appeals a pre-trial order suppressing evidence and dismissing criminal complaints against both respondents. We affirm.\nFACTS\nIn May of 1988, the Brown County Police Department received a tip from an informant that respondent Glen Lieder would receive controlled substances by mail from California. In December of 1988, the informant told the Brown County police that Lieder would receive a package from California in the near future containing cocaine, delivered by either United States Mail or the United Parcel Service (UPS). The police contacted the UPS and told it to be on the lookout for a package addressed to Lieder coming from California. The police did not inform the UPS of the suspected contents of the package.\nOn January 25,1989, the package arrived at the UPS. On its face, the package did not violate any UPS rule or policy. The UPS called the police, stating it would hold the package until the police came to the UPS facility. Upon arriving, the police asked the UPS to determine who sent the package. The UPS discovered the package originated from a business named Pacific Auto, but that no Pacific Auto actually existed at the return address. Further, the zip code accompanying the return address did not match the city of the return address.\nThe police then told Keith Jones, the manager of the UPS facility, that they believed the package contained cocaine, narcotics, or other illegal substances. Jones told the police he' was authorized by his superiors to open the package if it contained illegal substances because UPS had a policy against transporting contraband. Under this policy, UPS will open any package it believes to contain illegal substances.\nThe police then brought in a specially trained dog to see if it could detect illegal substances by sniffing the package. The dog failed to detect illegal substances. Jones then determined that he would open the package. Jones testified at the hearing that the sole basis for his determination to *487open the package was the suspicions of the police.\nA search warrant was never sought nor issued to allow the police to open the package. The police did not specifically request that Jones open the package, nor did they assist him in opening the package. The police were present, however, when Jones opened the package. The package contained cocaine.\nBased upon the informant’s tip, the suspicious origin of the package, and the cocaine in the package, the police obtained a warrant to search Lieder’s home. Both Lieder and respondent Kimberly Ann Tess-mer were present in Lieder’s home during the execution of the warrant by the police. Tessmer’s purse was opened and searched. The police found cocaine in the purse. Additional drugs were found in Lieder’s home. Both Lieder and Tessmer were placed under arrest and charged with violating various state laws against the possession and sale of drugs.\nThe trial court found that the UPS manager, Jones, did not act independently of the police, but in fact acted at the instigation of the police, and for the purpose of assisting the police. The trial court determined that the UPS and the police entered a joint enterprise when investigating and opening the package addressed to Lieder. Because the package was opened under these circumstances without a search warrant, the trial court found the search violated Lieder’s constitutional rights.\nThe trial court then found that without the contents of the package, there was insufficient evidence to find probable cause to obtain a search warrant for Lieder’s home. Without probable cause, the search warrant for Lieder’s home was invalid, and thus, the entire search of Lieder’s home, including the search of Tessmer’s purse, was illegal. The trial court suppressed the evidence obtained from the search of both the package and Lieder’s home.\nWithout this evidence, as the state admits, there was insufficient evidence to prosecute either Lieder or Tessmer. Accordingly, the trial court dismissed the complaints against both Lieder and Tess-mer. The state now appeals the trial court’s order.\nISSUES\nI. Did the trial court err in finding a warrantless search of a package by a UPS employee was unlawful?\nII. Did the trial court err in finding the search warrant invalid?\nANALYSIS\nThe trial court’s pre-trial findings should be reversed only if the state clearly and unequivocally demonstrates that the trial court erred in its judgment and that, if not reversed, the error will have a critical impact on the outcome of the trial. State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn.1987).\nI.\nBoth article 1, section 10 of the Minnesota Constitution and the fourth amendment to the United States Constitution prohibit warrantless searches by the government. “[T]he Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative * * Skinner v. Railway Labor Executives’ Association, — U.S.-, -, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639 (1989). Accordingly, a private, non-governmental person or entity cannot violate an individual’s fourth amendment rights, see Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921), and evidence obtained by a private search and seizure is not subject to the exclusionary rule. United States v. Haes, 551 F.2d 767, 770 (8th Cir.1977).\n“[Wjhere a search is physically conducted by a private individual but only at the government’s initiation and under their guidance it is not a private search.” Id. “The government may not do, through a private individual, that which it is otherwise forbidden to do.” United States v. Feffer, 831 F.2d 734, 737 (7th Cir.1987). Before a citizen can be deemed to be an instrument of the state, “[t]he government must be involved either directly as a partic*488ipant or indirectly as an encourager of the private citizen's actions.” United States v. Walther, 652 F.2d 788, 791 (9th Cir.1981).\nWhether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government’s participation in the private party’s activities, * * * a question that can only be resolved “in light of all the circumstances.”\nSkinner, — U.S. at -, 109 S.Ct. at 1411. Each case must be decided upon its own specific facts consistent with the principles of the fourth amendment.' Walther, 652 F.2d at 791.\nTwo critical factors distinguish private and governmental searches: first, whether the government knew of and acquiesced in the search; second, whether the private party’s purpose for conducting the search was to assist police efforts or to further the party’s own ends. Feffer, 831 F.2d at 739.\nThe package gave no outward indication that it contained illegal substances or that it violated the UPS rules or policy. The police told the UPS to look for and hold the package. The police initiated the search for the return addressee, resulting in the discovery that the return address was nonexistent or incorrect. The police told Jones they suspected the package contained narcotics. Jones would not have been suspicious of the package, nor would he have opened the package, but for the conduct of the police. Further, the police remained at the UPS facility and were present when Jones opened the package. We conclude the search of the package was a public search because the police aroused the suspicions of the UPS and encouraged the UPS to open the package.\nThe state argues the search was private because the police neither asked Jones to open the package nor assisted him in any way in opening the package. That the police did not compel Jones to perform a search does not, by itself, establish that the search is a private one. Skinner, — U.S. at-, 109 S.Ct. at 1411. While it is true Jones physically opened the package, the impetus to do so came directly from the police. Further, the police were highly involved in the search.\nWe do not hold that a search of a package by a carrier is a public search merely because the police asked the carrier to intercept the package. We hold that a search is public where the carrier actively sought to assist the police after overt police involvement, police-initiated suspicion, and police encouragement. Thus, we affirm the trial court.\nII.\nUnder the derivative evidence rule, incriminating evidence “discovered by exploiting a previous illegality is inadmissible.” State v. Jensen, 349 N.W.2d 317, 321 (Minn.Ct.App.1984); see also State v. Mathison, 263 N.W.2d 61, 63 (Minn.1978). Since the search of the package violated Lieder’s constitutional rights, the evidence discovered in that search cannot be used to support a finding of probable cause to issue a search warrant for Lieder’s home.\nThe state argues that even without the illegally obtained evidence, sufficient probable cause existed to justify issuing a search warrant for Lieder’s home. We disagree. Probable cause is determined under a totality of the circumstances test. State v. Wiley, 366 N.W.2d 265, 268 (Minn.1985). After omitting the evidence obtained in the illegal search, the only information remaining to support a finding of probable cause to search Lieder’s home was: (1) a tip that Lieder was going to receive a package, containing cocaine, from California through the mail or the UPS; (2) the arrival of a package from California, addressed to Lieder, at a UPS station; and (3) the fact that the return address on the package was incorrect or nonexistent.\nThe mere receipt of a package from California through the UPS certainly has no criminal implications. The fact that the package’s origin was suspicious is no indication that Lieder’s home might contain drugs. A tip that Lieder would receive a package of drugs is also no indication that there were additional drugs in his home. *489Further, the supporting affidavit makes no mention of the informant’s reliability. Under these circumstances, there was no probable cause to issue the search warrant for Lieder’s home.\nDECISION\nThe warrantless opening and search of the package addressed to Lieder was a public search in violation of Lieder’s constitutional rights. Without the evidence obtained in this illegal search, there was no probable cause to search Lieder’s home. Thus, the evidence obtained from the search of both the package and the home, including Tessmer’s purse, is inadmissible.\nAffirmed.\n", "ocr": true, "opinion_id": 7877123 } ]

[ "313 Ga. App. 265", "721 S.E.2d 93" ]

[ { "author_str": "Adams", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nAdams, Judge.\nThe trial court granted an oral motion for mistrial asserted by Cedric Rafael Demory in his trial on charges of burglary, felony obstruction of an officer and misdemeanor possession of marijuana. Demory subsequently filed a “Plea of Former Jeopardy” on the ground that the mistrial was caused by the intentional misconduct of the prosecutor. The trial court denied that plea, and Demory appeals.\nWhere, as here, a mistrial is granted at the request of a criminal defendant, retrial is not prohibited on the basis of double jeopardy unless it is established that the State intended to goad the defendant into moving for a mistrial in order for the State to avoid a reversal due to prosecutorial or judicial error, or otherwise to obtain a more favorable chance of a guilty verdict on retrial. Whether the prosecutor intended to goad the defendant into moving for mistrial *266calls for the trial court to make a finding of fact by inferring the existence or nonexistence of intent from objective facts and circumstances. When the trial court sits as the fact-finder, its resolution of factual issues will be upheld by the appellate court unless it is clearly erroneous. A trial court’s findings of fact will not be deemed to be clearly erroneous if there is any evidence to support them, and this holds true even if the findings are based upon circumstantial evidence and the reasonable inferences which flow from them.\n(Citations and punctuation omitted.) Brown v. State, 303 Ga. App. 814 (694 SE2d 385) (2010). “It doesn’t even matter that [the prosecutor] knows he is acting improperly, provided that his aim is to get a conviction. The only relevant intent is the intent to terminate the trial, not the intent to prevail at trial by impermissible means.” (Citation and punctuation omitted.) State v. Traylor, 281 Ga. 730, 732 (642 SE2d 700) (2007).\nThe evidence at trial showed that the home of Jack and Violet Waldrip was burglarized on November 5, 2009. It appeared that someone broke into the Waldrips’ house by breaking a glass door leading to a porch at the rear of the home and reaching in to unlock a deadbolt. Police lifted what appeared to be recent fingerprints from the door area and one of the prints was matched to Demory, who was subsequently arrested for the crime. Some of the items taken from the Waldrips’ home were later produced by Shacara Rucker, a friend of the Waldrips and Demory’s cousin, or recovered by Sheklia Rucker, Shacara’s sister.\nDuring the State’s examination at trial of Dan Schraeder, an investigator with the Gainesville Police Department, the prosecutor asked whether Schraeder ever had the chance to meet Demory after his fingerprints had been discovered at the scene. Schraeder responded that he did meet Demory. Demory’s attorney moved for a mistrial, arguing that this question was a violation of Demory’s Fifth Amendment right to remain silent because there was no testimony that he had spoken to Demory as he had testified regarding other individuals. His attorney argued that the clear intent of the question was to let the jury know that “everybody else spoke to the police,” but Demory had not. The prosecutor informed the trial court that, to the contrary, she had instructed the investigator not to comment on Demory’s right to remain silent. The trial court denied Demory’s motion.\nDemory subsequently took the stand and testified that on the day of the robbery, his cousin Shacara asked him to drive her to a house he later learned was the Waldrips’ house. He waited for her in the car and when she did not return, he went to the back door to find *267her, and he placed his hand on the glass. They then drove to a pawnshop where Shacara attempted to sell jewelry, but was told it was worthless. In reviewing the events of that day on cross-examination, the prosecutor asked Demory, “Have you ever told the police officer about Shacara going into the house?” Demory replied, “I had never been questioned.” His attorney then again moved for a mistrial on the ground that the question violated Demory’s Fifth Amendment rights.\nThe prosecutor first attempted to defend the question as relevant, but after the trial court stated that he believed the question to be improper, she asked for curative instructions. The trial judge decided to take the night to consider the motion. The next morning, the prosecutor conceded that her research had shown that her question had been improper, but she argued against a mistrial, citing cases to assert that her question should be considered harmless error. The trial court ruled, however, that the question deprived Demory of a fair trial and granted the motion for mistrial. Afterward, the State re-indicted Demory on the same charges and also indicted Shacara Rucker as a co-defendant in the burglary, although she had not previously been indicted, and Demory filed his plea in bar.\nAt the hearing on Demory’s plea, the prosecutor stated in her place that she did not intend to goad the defense in moving for a mistrial. She said the prosecution did not want a mistrial. The prosecutor believed that the trial was going very well, in fact “better than a lot of the cross-examinations that I have done in my career.” She said that she had asked similar questions in other trials and that she was surprised when Demory’s attorney asked for a mistrial. When she discovered in her research that the question was considered improper, she was “mortified.” The prosecutor later took the stand and testified that she had been a lawyer for ten years, and that she had tried approximately seventy-five jury trials. The prosecutor stated that she felt that it was “very obvious” that Demory’s trial testimony was not credible because she believed that he had given “multiple inconsistent statements throughout the course of his testimony, both direct and cross-examination, so I was very pleased with how the trial was going.” She felt her question was relevant and because she did not realize it was improper, she felt the motion for mistrial would quickly be denied. But the prosecutor acknowledged that other members of the prosecution team appeared to be more concerned at the time about the propriety of the question.1 She also *268asserted that the prosecution team did not want a mistrial because they had to work “pretty hard” to track down and coordinate the witnesses, some of whom had left law enforcement.\nThe trial court denied Demory’s plea in bar based upon the prosecutor’s testimony that “she was unaware that this particular question under these particular circumstances would be an improper comment on the Defendant’s right to remain silent”; the State’s “diligent efforts” to save the case and oppose the motion for mistrial; and the tenor of the trial up to the point of the question. The court, who was there to observe the trial as it progressed, found the prosecutor’s statement that the trial was going well to be credible.\nDemory argues on appeal, however, that the question in this case was so “blatant and so contrary to the most basic rules of prosecu-torial procedure and conduct” that it cannot be attributed to negligence. We disagree. The prosecutor’s question in this case does not rise to the level of the prosecutorial misconduct in the cases upon which Demory relies. Compare, e.g., Anderson v. State, 285 Ga. App. 166, 167 (645 SE2d 647) (2007) (prosecutor elicited specific testimony from police officer that defendant refused to sign a waiver of his rights after being arrested); Wilson v. State, 233 Ga. App. 327, 329-330 (3) (503 SE2d 924) (1998) (physical precedent only) (prosecutor asked defendant if he had tried to negotiate a nolo contendere plea, which necessarily entails an admission of guilt,2 to the charges at issue).\nIn denying the plea, the trial court stated that the prosecution’s question was an unintentional reference to Demory’s right to remain silent. We cannot say that this finding was clear error because the record contains evidence to support the trial court’s conclusion that the prosecutor’s question was not intended to goad the defense into seeking a mistrial. The prosecutor consistently opposed the mistrial and requested a curative instruction instead. The trial judge, who had the opportunity to observe the prosecutor’s demeanor and the progress of the trial, found the prosecutor’s explanation and assessment of the case to be credible. “Where, as here, the evidence authorized the trial court to find that the person in control of the prosecution did not instigate any such misconduct either directly or through collusion in order to goad the defendant into moving for a mistrial, double jeopardy does not bar retrial.” (Punctuation and footnote omitted.) Brown v. State, 303 Ga. App. at 818.3 See also *269Allen v. State, 302 Ga. App. 852, 854 (691 SE2d 908) (2010).\nDecided October 7, 2011\nReconsideration denied December 12, 2011\nTravis A. Williams, H. Bradford Morris, Jr., Larry L. Duttweiler, t for appellant.\nLee Darragh, District Attorney, Wanda L. Vance, Kelley M. Robertson, Assistant District Attorneys, for appellee.\n\nJudgment affirmed.\n\n\nBarnes, P. J., and Blackwell, J., concur.\n\n\n Another attorney with less experience testified that she recognized immediately that they were heading for a mistrial. Nevertheless, this Court has acknowledged that the experience of the prosecutor is not determinative on the issue of whether to grant a double jeopardy plea in bar. Brown v. State, 303 Ga. App. at 817.\n\n\n “A plea of nolo contendere constitutes a plea of guilty except that it cannot work any civil disqualification upon the defendant.” (Citation and punctuation omitted.) McMahon v. State, 308 Ga. App. 292, 294 (1) (a) (707 SE2d 528) (2011).\n\n\n Cf. Williams v. State, 258 Ga. 305, 312 (1) (A) (369 SE2d 232) (1988) (actions of the prosecutor constituting even intentional prosecutorial misconduct do not raise the bar of *269double jeopardy, notwithstanding the fact that the defendant was thereby deprived of due process of law, unless the prosecutor’s actions were intended to subvert the protections afforded by the Double Jeopardy Clause).\n\n", "ocr": true, "opinion_id": 7877264 } ]

[ "313 Ga. App. 485", "722 S.E.2d 82" ]

[ { "author_str": "Miller", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMiller, Presiding Judge.\nAyn Murray, proceeding pro se, appeals from the trial court’s order granting Isaac Hooks’s petition for legitimation and awarding him physical custody of their son. On appeal, Murray generally contends that the trial court erred in its custody award and violated her due process rights by failing to provide her an adequate opportunity to be heard. For the reasons stated below, we affirm.\nA fundamental requirement of due process in any proceeding is that litigants have notice and an opportunity to be heard, but due process does not guarantee a particular form or method of state procedure. Nodvin v. State Bar of Ga., 273 Ga. 559, 560 (3) (544 SE2d 142) (2001). “Due process is flexible and calls for such procedural protections as the particular situation demands.” (Citations and punctuation omitted.) Id. Additionally, due process does not provide an individual the right to have all arguments considered at a particular hearing. In the Interest of P. N, 291 Ga. App. 512, 514 (1) (662 SE2d 287) (2008).\nThe record shows that Isaac Hooks filed the petition for legitimation of his biological child in October 2007. In January 2008, the trial court awarded Hooks temporary custody of the child, finding that the child was deprived due to Murray’s incarceration. In March 2008, the trial court entered a final order of legitimation and awarded physical custody to Hooks, noting that a hearing on the matter had been scheduled, but Murray failed to appear. Murray subsequently moved to vacate this final order. The court granted Murray’s motion, but held that the temporary custody order remained in effect. The court then set the matter for a 60-day status conference to be held in June 2010, and scheduled a bench trial for February 28, 2011. On February 14, 2011, Murray filed a “Motion for Emergency Hearing,” acknowledging that she was aware of the scheduled bench trial. Thereafter, on February 28, 2011, the trial court conducted a bench trial on Hooks’s amended petition, which included a prayer for custody. Following trial, the trial court awarded joint legal custody of the child to both parents, with visitation to Murray, and physical custody of the child to Hooks.\nThe above evidence shows that Murray received notice of the February 2011 bench trial. Although Murray’s notice of appeal did not request that a transcript of the bench trial be included in the record, the trial court’s order indicates that Murray appeared at the trial. “In the absence of a transcript, we must assume the trial court’s findings were supported by evidence presented, and the actions taken by the trial court during the hearing were appropriate.” (Citations and punctuation omitted.) Baugh v. Robinson, 179 *486Ga. App. 571, 572 (346 SE2d 918) (1986) (holding that, without the hearing transcript, this Court assumes that an appellant was not denied due process rights or the opportunity to be heard); see also Chariot v. Goldwire, 310 Ga. App. 463, 464 (1) (713 SE2d 667) (2011) (holding that in the absence of transcripts from a custody hearing, this Court assumes that the evidence “adduced therein was sufficient to support the trial court’s findings that the custody and visitation decision was in the best interest of the child”).\nDecided December 15, 2011\nReconsideration denied January 9, 2012\nAyn Murray, pro se.\nJohn G. Walrath, for appellee.\nTo the extent Murray argues that her due process rights were violated based on the court’s prior January and February 2008 hearings held in her absence, her claim affords no basis for reversal. Murray has not demonstrated any harm from the January 2008 temporary custody order because it was superseded by the final custody order, or from the March 2008 order because it was vacated. See generally In the Interest ofB. B., 267 Ga. App. 360, 362 (2) (599 SE2d 304) (2004) (“[Wjithout harm, the alleged error presents no basis for reversal.”). Moreover, even if there were any procedural violations as to these initial hearings, they were cured by the subsequent February 2011 hearing, where, as discussed above, we assume that she received adequate notice and an opportunity to be heard. See Pryor Organization, Inc. v. Stewart, 274 Ga. 487, 491 (3) (554 SE2d 132) (2001) (“An initial procedural violation can be cured by a subsequent procedural remedy.”) (citation omitted).\n\nJudgment affirmed.\n\n\nEllington and Doyle, JJ., concur.\n\n", "ocr": true, "opinion_id": 7877321 } ]

[ "313 Ga. App. 580", "722 S.E.2d 173" ]

[ { "author_str": "Ellington", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nEllington, Judge.\nBradley Graydon entered a guilty plea in the Superior Court of Whitfield County to felony theft by shoplifting, OCGA § 16-8-14 (a). See also OCGA § 16-8-14 (b) (2) (felony punishment when the stolen property exceeds $300 in value). The trial court denied Graydon’s request for first offender treatment. Graydon filed a motion to vacate his judgment of guilt and sentence on the basis that the trial court applied a mechanical sentencing formula and, thus, failed to exercise its discretion as required under the First Offender Act, OCGA § 42-8-60 et seq. The trial court denied Graydon’s motion, and he appeals. Finding no error, we affirm.\nThe First Offender Act\nprovides that, for a defendant without prior felony convictions, a court may defer entering a judgment of guilt and *581place the defendant on probation or in confinement. While the decision whether to sentence a defendant as a first offender lies entirely within the trial court’s discretion, the trial court is required to exercise that discretion rather than apply an inflexible rule.\n(Citations and punctuation omitted.) Wnek v. State, 262 Ga. App. 733, 733-734 (586 SE2d 428) (2003). “[A] trial court’s use of a mechanical sentencing formula or policy as to any portion of a sentence amounts to a refusal to exercise its discretion and therefore is an abdication of judicial responsibility.” (Citation and punctuation omitted.) Shell v. State, 264 Ga. App. 547, 550 (2) (591 SE2d 450) (2003). There is a presumption, however, that a trial court regularly and correctly conducted the proceedings. Powell v. State, 271 Ga. App. 550, 552 (610 SE2d 178) (2005); Camarón v. State, 246 Ga. App. 80, 83 (2) (539 SE2d 577) (2000). We will remand only when the record clearly establishes either that the trial court refused to consider first offender treatment on the merits or erroneously believed that the law did not permit such an exercise of discretion. Steele v. State, 270 Ga. App. 488, 491 (606 SE2d 664) (2004); Shell v. State, 264 Ga. App. at 550 (2).1\nIn rejecting Graydon’s request for first offender treatment, the trial court explained that, ‘‘under most circumstances,” it did not grant requests for first offender treatment in cases involving theft but ‘‘[t]ypically” granted it in cases such as those involving “simple possession of a drug without any other aggravating circumstances.” At the hearing on Graydon’s motion to vacate his sentence, the trial court further explained:\nI have no absolute rule in regard to first offender [treatment]. As a practical matter, however, I’m inclined to give it to people who [have a] first drug offense. Those [cases] involving serious dishonesty, like theft, I’m not inclined to give [it]. That doesn’t mean I wouldn’t in a very unusual case. But[,] the felony theft by shoplifting, the nature of the offense was the primary requisite that went into [denying Graydon’s request].\n*582Decided January 13, 2012.\nLee A. Feeley, for appellant.\nKermit N. McManus, District Attorney, Susan Franklin, Assistant District Attorney, for appellee.\nThe trial court’s statements show neither an outright refusal to consider first offender treatment nor an erroneous belief that the law does not permit first offender treatment in such a case. The record shows, rather, that the trial court was aware that it could treat Graydon as a first offender but, after considering the conduct Gray don admitted, exercised its discretion not to do so. Thus, the judgment must be affirmed. Steele v. State, 270 Ga. App. at 491-492.\n\nJudgment affirmed.\n\n\nPhipps, P. J., and Dillard, J., concur.\n\n\n See, e.g., Wnek v. State, 262 Ga. App. at 735 (Trial court failed to exercise its discretion where it had a policy of not granting a request for first offender treatment to a defendant who goes to trial and is found guilty by a jury.); Wilcox v. State, 257 Ga. App. 519, 520-521 (571 SE2d 512) (2002) (Trial court failed to exercise its discretion where it had a per se rule of refusing to permit first offender treatment in armed robbery cases.); Jones v. State, 208 Ga. App. 472, 473 (431 SE2d 136) (1993) (Trial court failed to exercise its discretion where it had a policy of never granting a request for first offender treatment in a case in the superior court.).\n\n", "ocr": true, "opinion_id": 7877335 } ]

[ "317 Ga. App. 229", "730 S.E.2d 493" ]

[ { "author_str": "Doyle", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nDoyle, Presiding Judge.\nThis appeal arises from the trial court’s grant of summary judgment to defendant Pilot Travel Centers, LLC, in a negligence and personal injury action. Kenneth Courter, his employer J & R Schugel Trucking, Inc., and its workers’ compensation carrier Great West Casualty Company filed this action following an incident in which Courter slipped and fell at one of Pilot’s fuel service stations, sustaining injuries that prevented him from carrying out his duties of employment. Following the grant of summary judgment, the plaintiffs appealed, challenging the trial court’s conclusion that Courter had equal knowledge of the hazard causing his fall and that he failed to exercise ordinary care for his own safety. Finding no error, we affirm.\nSummary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. [1] A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.2\nViewed in this manner, the record establishes that Courter became a licensed commercial driver in 1996. Prior to the accident in question, he had never slipped and fallen anywhere to his recollection, nor had he seen or heard of other truck drivers slipping and falling on diesel fuel at a truck stop. He had walked through diesel fuel before and was aware that it was slippery. He also knew that diesel is even more slippery when mixed with water, and that water is often splashed on the pavement when truck drivers wash their windshields at truck stops.\nOn August 24, 2006, while on his way from Indiana to a warehouse in Georgia, Courter stopped at a Pilot center just north of Cartersville, Georgia, in order to wash his windshield and get coffee. Courter arrived at the fuel location at about 10:30p.m., and pulled up to a covered, well-lit fuel island. After stopping his truck with the driver’s side door about four feet away from the fuel island, Courter applied the parking brakes, opened the door, and observed that the concrete surface was wet. He also saw that the pavement was *230discolored due to diesel fuel having been spilled on the ground, like at “every other truck stop.” He was not concerned that the ground might be slippery.\nCourter climbed down from the truck, holding the hand rails of the truck with his hands, and upon setting both feet on the ground, he felt that it was slippery. Upon sensing this, he chose not to get back into the truck to go to a different fuel island because he wished to clean his windshield. Instead, after waiting three or four seconds, he tried to turn around and close the door, at which time he slipped and fell onto his left side, landing on his hip, elbow, and foot. Because the ground was so slippery, Courter was unable to get up initially after falling down, and he had to grab the steps of his truck to pull himself up.\nCourter then got back into the truck, pulled out of the fuel island, and went inside the service station to inform the cashiers of his fall. The cashiers informed their manager, who then spoke with Courter, filled out an accident report, took pictures of him, and then instructed a worker to wash down the fuel island with a pressure washer. As Courter waited inside the service station, he felt pain in his elbow and had a scrape on his left hand, but did not ask for medical attention at the scene aside from a first aid kit to clean up his abrasions. Initially, he did not feel further pain, but thereafter began to experience pain in his elbow, shoulder, and neck.\nDue to Courter’s injuries, the plaintiffs filed suit, and following the trial court’s grant of summary judgment, they timely appealed to this Court.\nAppellants first contend that the trial court erred by concluding that Courter had equal knowledge of the hazard as a matter of law.3 We disagree.\n“[A] proprietor may be liable only if he had superior knowledge of a condition that exposed an invitee to an unreasonable risk of harm.”4 Although “summary judgment is granted only when the evidence is plain, palpable, and undisputed,”5\n[t]he mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such *231persons, even when he has invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one rightfully upon the premises.6\nDecided July 11, 2012\nReconsideration denied July 27, 2012\nTurkheimer & Hadden, John D. Hadden, Carlock, Copeland & Stair, Christopher A. Whitlock, Aaron L. Michelman, for appellants.\nMcLain & Merritt, Wiliam S. Sutton, for appellee.\nHere, Courter admitted that he saw that the pavement was wet prior to alighting from his vehicle. He also admitted that he saw staining from diesel fuel and other foreign substances on the pavement. Courter further deposed that he was aware that the combination of diesel fuel and water can render the ground particularly slippery. Under these facts, Courter cannot show that Pilot had superior knowledge of the wetness and staining which caused him to fall.7 Our courts have noted that it is “common-sense” that “everyone knows that wet surfaces can become slippery,”8 and in this case Courter deposed that he was aware of the particular risk of wet, fuel-stained ground surfaces. Therefore, even assuming that Pilot had constructive knowledge of the condition of the ground, the trial court correctly concluded that the record lacks evidence showing Pilot’s superior knowledge of the hazard causing Courter’s fall.9 Because Courter had this knowledge and observed the hazard even prior to stepping onto the pavement, we discern no error.\n\nJudgment affirmed.\n\n\nAndrews and Boggs, JJ., concur.\n\n\n OCGA § 9-11-56 (c).\n\n\n Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).\n\n\n The appellants’ brief conflates concepts of general premises liability with the affirmative defense of assumption of the risk. Nevertheless, the trial court’s order employed a premises liability analysis, which we review here.\n\n\n (Punctuation omitted.) Dickerson v. Guest Svcs. Co. of Va., 282 Ga. 771, 772 (653 SE2d 699) (2007). See also Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).\n\n\n See Robinson, 268 Ga. at 748 (2) (b).\n\n\n (Punctuation omitted.) Hadaway v. Cooner Enterprises, 172 Ga.App. 113, 114 (321 SE2d 830) (1984).\n\n\n See, e.g., Walker v. Sears Roebuck & Co., 278 Ga. App. 677, 681 (2) (629 SE2d 561) (2006) (summary judgment was appropriate because the premises owner lacked superior knowledge compared to plaintiff, who deposed that she also was aware that customers track water into stores on rainy days).\n\n\n Dickerson, 282 Ga. at 772.\n\n\n See Music v. Steamco, Inc., 265 Ga. App. 185, 186 (593 SE2d 370) (2004).\n\n", "ocr": true, "opinion_id": 7877797 } ]