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4,200,405 | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT EURICE McGILL, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D17-1492 [August 31, 2017] Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No. 10-12523CF10A. Eurice McGill, Lake City, pro se. No appearance required for appellee. PER CURIAM. Affirmed. WARNER, DAMOORGIAN and KUNTZ, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. | opinion_plain_text | 83 | 2017-08-31 15:10:30.817226+00 | 010combined | f | f | 4,423,152 | null | null | C | f | Published | 0 | EURICE MCGILL v. STATE OF FLORIDA | null | null | null | null | null | null | null | null | null | null | null | 6,146,166 | 17-1492 | 0 | fladistctapp | SA | t | District Court of Appeal of Florida | District Court of Appeal of Florida |
2,251,008 | 889 N.E.2d 809 (2005) 356 Ill. App.3d 1130 PEOPLE v. NEWSOME. No. 1-03-2985. Appellate Court of Illinois, First District. April 29, 2005. Affirmed. | opinion_html_with_citations | 23 | 2013-10-30 08:51:32.80475+00 | 010combined | f | f | 2,251,008 | null | null | L | f | Published | 0 | People v. Newsome | Newsome | null | null | null | null | null | null | null | null | null | null | 2,102,724 | 1-03-2985 | 0 | illappct | SA | t | Appellate Court of Illinois | Appellate Court of Illinois |
4,858,364 | *234In re Cordes, Paul; Hurdlik, Paulette;—Plaintiff(s); Applying For Writ of Certio-rari and/or Review, Parish of Orleans, Civil District Court Div. E, No. 04-14706; to the Court of Appeal, Fourth Circuit, No. 2009-CA-0976. Denied. | opinion_xml_harvard | 33 | 2021-08-26 01:28:25.294915+00 | 020lead | t | f | 5,044,497 | null | null | U | f | Published | 0 | Cordes v. Board of Zoning Adjustments & Audubon, LLC | Cordes | Paul CORDES and Paulette Hurdlik v. BOARD OF ZONING ADJUSTMENTS AND AUDUBON, LLC | null | null | null | null | null | null | null | null | null | 60,294,368 | No. 2010-C-0584 | 0 | la | S | t | Supreme Court of Louisiana | Supreme Court of Louisiana |
2,790,710 | Twersky v Incorporated Vil. of Great Neck ( 2015 NY Slip Op 02755 ) Twersky v Incorporated Vil. of Great Neck 2015 NY Slip Op 02755 Decided on April 1, 2015 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on April 1, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RANDALL T. ENG, P.J. LEONARD B. AUSTIN JEFFREY A. COHEN BETSY BARROS, JJ. 2014-07552 (Index No. 9576/12) [*1]Sharon Twersky, respondent, v Incorporated Village of Great Neck, et al., defendants, FHM Mortgage Corp., et al., appellants. Cascone & Kluepfel, LLP, Garden City, N.Y. (Howard B. Altman of counsel), for appellants. Isaacson, Schiowitz & Korson, LLP, Rockville Centre, N.Y. (Jeremy Schiowitz of counsel), for respondent. DECISION & ORDER In an action to recover damages for personal injuries, the defendants FHM Mortgage Corp. and Killer B's Realty Holding Corp. appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Janowitz, J.), entered June 17, 2014, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. ORDERED that the order is affirmed insofar as appealed from, with costs. On the evening of November 18, 2011, the plaintiff, while walking on a sidewalk abutting property then owned by the defendants FHM Mortgage Corp. and Killer B's Realty Holding Corp. (hereinafter together the appellants), allegedly slipped and fell on a driveway apron covered by a blanket of wet and slimy leaves. The plaintiff testified at her deposition that it was very dark in the area where the accident occurred and that the lamp posts in the vicinity did not provide much illumination. She also testified that the portion of the apron on which she slipped sloped down to meet the driveway. The appellants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The Supreme Court denied their motion. A property owner has a duty to keep his or her property in a "reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" ( Basso v Miller, 40 NY2d 233, 241 [internal quotation marks omitted]; see Neiderbach v 7-Eleven, Inc., 56 AD3d 632, 633). However, a landowner does not have a duty to protect against an open and obvious condition, which, as a matter of law, is not inherently dangerous ( see Cupo v Karfunkel, 1 AD3d 48, 52). Whether a condition is open and obvious depends on the circumstances of the case, and a condition that may ordinarily be observable may be obscured by other objects or by inadequate illumination ( see Russo [*2]v Incorporated Vil. of Atl. Beach, 119 AD3d 764; Pellegrino v Trapasso, 114 AD3d 917, 918). The appellants failed to establish, prima facie, that the alleged condition which caused the plaintiff to slip and fall was open and obvious ( see Russo v Incorporated Vil. of Atl. Beach, 119 AD3d at 764; Pellegrino v Trapasso, 114 AD3d at 918; Franzese v Tanger Factory Outlet Ctrs., Inc., 88 AD3d 763, 764; Gutman v Todt Hill Plaza, LLC, 81 AD3d 892, 892). Since the appellants failed to meet their initial burden of establishing, prima facie, their entitlement to judgment as a matter of law, we need not review the sufficiency of the plaintiff's opposition papers ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Accordingly, the Supreme Court properly denied the appellants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. ENG, P.J., AUSTIN, COHEN and BARROS, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court | opinion_html_with_citations | 644 | 2015-04-01 19:05:17.073529+00 | 010combined | f | f | 2,790,710 | Austin, Barros, Cohen, Eng | null | CU | f | Published | 0 | Twersky v. Incorporated Village of Great Neck | Twersky | Sharon Twersky, Respondent, v. Incorporated Village of Great Neck Et Al., Defendants, and FHM Mortgage Corp. Et Al., Appellants | null | null | <parties id="AvU">
Sharon Twersky, Respondent, v Incorporated Village of Great Neck et al., Defendants, and FHM Mortgage Corp. et al., Appellants.
</parties><citation id="AiFJ">
[7 NYS3d 309]—
</citation> | null | null | null | null | null | null | 2,646,175 | 2014-07552 | 0 | nyappdiv | SA | t | Appellate Division of the Supreme Court of New York | Appellate Division of the Supreme Court of the State of New York |
1,470,544 | 951 A.2d 180 (2008) Philip S. HORNER v. GOVERNOR, State of New Hampshire and another. No. 2007-668. Supreme Court of New Hampshire. Argued March 27, 2008. Opinion Issued: June 19, 2008. *181 Philip S. Horner, pro se, and Richard E. Samdperil, of Exeter (Mr. Horner on the brief, and Mr. Samdperil orally), for the plaintiff. Kelly A. Ayotte, attorney general (Karen A. Schlitzer, assistant attorney general, on the memorandum of law and orally), for the defendants. BRODERICK, C.J. The plaintiff, Philip S. Horner, appeals an order of the Superior Court ( Smukler, *182 J.) denying his petition for a writ of prohibition to enjoin the State from enforcing RSA 651-B:11 (2007 & Supp.2007), which mandates the collection of a sex offender registration fee. We affirm. The plaintiff was convicted in 2000 of five counts of felonious sexual assault, see RSA 632-A:3 (2007). Every sex offender and offender against children is required to register with the New Hampshire Division of State Police (division) which maintains the sex offender registry. RSA 651-B:2, I (2007), :11, I (Supp.2007). Upon release from prison, sex offenders must inform the division where they intend to reside and the division enters this information into the law enforcement name search system. RSA 651-B:3, I (Supp.2007). When the division is notified by law enforcement that a sex offender has moved to New Hampshire, the division must locate the offender, serve notice of duty to register and enter the offender's information in the system. RSA 651-B:3, II (Supp.2007). On a semi-annual basis, the division is required to verify the offender's address by sending a letter by certified mail to the offender. RSA 651-B:3, III (2007). Offenders must register in person on a semi-annual basis, be photographed and provide specific information about their appearance, employment and vehicles. Id.; RSA 651-B:4, I(a)(2)-(3) (2007). Pursuant to the statute, sex offenders must pay "a fee of $17 semiannually." RSA 651-B:11, I. The plaintiff brought a petition for a writ of prohibition contending that the statute violates the prohibition against disproportionate taxation in Part I, Article 12 and Part II, Article 5 of the State Constitution. Following a hearing, the trial court denied the petition, ruling that the plaintiff failed to establish that RSA 651-B:11 imposes a tax. On appeal, the plaintiff argues that the sex offender registration fee "is in reality a disproportionate tax, being an enforced contribution to fund a public safety measure (the registry) which benefits all citizens, not just registrants." The State argues that the charge is a fee because the statute serves a regulatory purpose and the fee helps to defray the cost of maintaining the registry. "The interpretation of a statute is a question of law, which we review de novo." Nicolaou v. Vt. Mut. Ins. Co., 155 N.H. 724 , 727, 931 A.2d 1265 (2007). "In reviewing a legislative act, we presume it to be constitutional and will not declare it invalid except upon inescapable grounds." Baines v. N.H. Senate President, 152 N.H. 124 , 133, 876 A.2d 768 (2005) (quotation omitted). RSA 651-B:11, I, provides: A sexual offender or offender against children shall pay a fee of $17 semiannually. Of this amount, the department shall receive $15 to be used to defray the costs of maintaining the sex offender registry. Such funds shall be nonlapsing and shall be continually appropriated to the department for such use. The municipality in which the sexual offender or offender against children registers shall keep the remaining $2 to defray any costs associated with implementing the provisions of this paragraph. The distinction between a tax and a fee "is often difficult to determine because each partakes to some extent of the characteristics of the other." Opinion of the Justices, 98 N.H. 527 , 528, 96 A.2d 733 (1953). However, our case law has identified factors which aid in distinguishing a tax from a fee. First, "[a] tax is an enforced contribution to raise revenue and not to reimburse the state for special services." American Automobile Assoc. v. State, 136 N.H. 579 , 584, 618 A.2d 844 *183 (1992) (quotation omitted). Second, to be valid, a fee "must be incidental to the implementation of a regulatory program and cannot primarily be intended to produce additional revenues." Id. at 585, 618 A.2d 844 . Third, "[t]o determine the proper characterization of a statute, it is necessary to discover its basic purpose." Id. (quotation omitted). "In so doing, we must consider the statute's declared purpose as well as its essential characteristics." Id. (quotation omitted). We have previously determined that the sex offender registry serves a regulatory purpose, "providing a means for law enforcement agencies in this State to share information regarding the whereabouts of convicted sexual offenders." State v. Costello, 138 N.H. 587 , 590, 643 A.2d 531 (1994). "It has long been recognized that governmental undertakings can properly be supported in whole or in part by charges made upon those who necessitate the services or who avail themselves of the advantages offered thereby." Opinion of the Justices, 117 N.H. 382 , 384, 373 A.2d 640 (1977) (penalty assessment of $2 or 10% on each fine, penalty or forfeiture imposed by the court for a criminal offense is not a tax where penalty assessment would be used to provide funding for police training programs). "Charges of this nature are not taxes, and constitutional limitations upon the taxing power have no application thereto." Id. The plaintiff argues at length that "governmental fees must be voluntarily assumed and must confer a particular benefit upon the party paying the fee, rather than upon society as a whole." The plaintiff offers no New Hampshire law in support of this position. We decline to rely upon the federal and other state cases set forth in his brief to determine whether, under our State Constitution, the regulatory charge is a tax or a fee. The plaintiff does not challenge whether the $17 fee approximates the cost incurred in maintaining the sex offender registry. See D'Antoni v. Comm'r, N.H. Dep't of Health & Human Servs., 153 N.H. 655 , 658, 917 A.2d 177 (2006) (amount of a fee will be sustained if not grossly disproportionate to the regulatory expenses). The division retains $15 of the $17 semi-annual charge "to defray the costs of maintaining the sex offender registry," while the respective municipality receives $2 "to defray any costs associated with implementing the provisions of [the statute]." RSA 651-B:11, I. There is no suggestion that such charges fail to "bear a relation to the expense of rendering the particular service." Opinion of the Justices, 117 N.H. at 384, 373 A.2d 640 . We hold that the $17 semi-annual charge imposed upon sex offenders is not intended to raise additional revenue but, rather, is used solely to support a governmental regulatory activity made necessary by the actions of those who are required to pay the charge. As the trial court found, the sex offender registration fees "are applied directly to regulatory services that would not be necessary if there were no sex offenders." There is no evidence that the fee does not "bear a relationship to and approximate the expense" of maintaining the sex offender registry, see D'Antoni, 153 N.H. at 658, 917 A.2d 177 , nor is there evidence that the fee is not incidental to regulation but is rather "primarily for the purpose of producing revenue." Appeal of Ass'n of N.H. Utilities, 122 N.H. 770 , 773, 451 A.2d 164 (1982) (quotation omitted). Accordingly, the $17 semi-annual charge is properly characterized as a fee and not a tax. In addition, the plaintiff argues that "the addition of a monetary exaction to criminal registration requirements violates *184 New Hampshire's constitutional prohibition against retrospective laws." The State Constitution provides that, "Retrospective laws are highly injurious, oppressive, and unjust. No such laws, therefore, should be made . . . for . . . the punishment of offenses." N.H. CONST. pt. I, art. 23. As discussed above, the sex offender registration law serves a regulatory purpose. Thus, the $17 semi-annual charge under RSA 651-B:11 is not imposed as punishment, but to defray the costs of maintaining the sex offender registry. Accordingly, there is no ex post facto violation. See State v. Comeau, 142 N.H. 84 , 88, 697 A.2d 497 (1997) (appropriate focus in ex post facto analysis is whether law increases the punishment for or alters the elements of an offense, or changes the ultimate facts required to prove guilt). Furthermore, the fee is imposed at the time of registration with the division, which occurs upon the sex offender's release from prison. See RSA 651-B:2, I, :3, I, :11, I. Therefore the requirements of registration and payment of the fee occur prospectively, not retrospectively. See In re Estate of Sharek, 156 N.H. 28 , 30, 930 A.2d 388 (2007). Affirmed. DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred. | opinion_html_with_citations | 1,472 | 2013-10-30 06:23:26.439857+00 | 010combined | f | f | 1,470,544 | Broderick, Dalianis, Duggan, Galway, Hicks | null | LU | f | Published | 1 | Horner v. Governor of New Hampshire | Horner | Philip S. Horner v. Governor, State of New Hampshire & A. | null | null | <p data-order="0" data-type="docketnumber" id="b440-9">
Merrimack
</p><docketnumber data-order="1" data-type="docketnumber" id="A9E">
No. 2007-668
</docketnumber><br><parties data-order="2" data-type="parties" id="b440-10">
Philip S. Horner v. Governor, State of New Hampshire
<em>
& a.
</em>
</parties><br><otherdate data-order="3" data-type="otherdate" id="b440-13">
Argued: March 27, 2008
</otherdate><decisiondate data-order="4" data-type="decisiondate" id="AO_">
Opinion Issued: June 19, 2008
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b441-10">
<span citation-index="1" class="star-pagination" label="401">
*401
</span>
Philip S. Horner,
<em>
pro se,
</em>
and
<em>
Richard E. Samdperil,
</em>
of Exeter (Mr. Horner on the brief, and
<em>
Mr. Samdperil
</em>
orally), for the plaintiff.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b441-11">
<em>
Kelly A. Ayotte,
</em>
attorney general
<em>
(Karen A. Schlitzer,
</em>
assistant attorney general, on the memorandum of law and orally), for the defendants.
</attorneys> | null | null | null | null | null | null | 1,621,241 | 2007-668 | 0 | nh | S | t | Supreme Court of New Hampshire | Supreme Court of New Hampshire |
1,083,484 | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED FEBRUARY, 1997 SESSION August 15, 1997 Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9508-CR-00263 ) vs. ) Davidson County ) ANTONIO DEMONTE LYONS, ) Honorable Thomas H. Shriver, ) Judge ) Appellant. ) (Withdrawal of Guilty Plea) FOR THE APPELLANT: FOR THE APPELLEE: CHARLES GALBREATH JOHN KNOX WALKUP 211 Union St., Suite 901 Attorney General & Reporter Nashville, TN 37201 EUGENE J. HONEA Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General WILLIAM REED Assistant District Attorney General Washington Square, Suite 500 222 Second Ave. N. Nashville, TN 37201-1649 OPINION FILED: AFFIRMED IN PART AND VACATED IN PART AND REMANDED CURWOOD WITT, JUDGE OPINION The appellant, Antonio Demonte Lyons, pleaded guilty in Davidson County Criminal Court to second-degree murder, a Class A felony, for which he received a Range II sentence of forty years. He now appeals from the trial court’s order denying his motion to set aside his guilty plea. He contends that the trial judge erred 1. by instructing a minor defendant that he could be sentenced to death if he did not plead guilty; 2. by finding that the plea of guilty was not influenced by fear and misunderstanding; 3. by finding that the state had provided an accurate factual basis to sustain a conviction; and 4. by finding that the defendant was adequately represented by counsel. 1 The gravamen of appellant’s complaint is that the trial judge abused his discretion in denying appellant’s motion to withdraw his guilty plea and that, but for the ineffectiveness of counsel, he would have insisted on going to trial.2 1 The appellant also raises the issue of his eligibility for bail pending appeal. This issue was resolved on June 24, 1996, when this court denied appellant’s motion for bond. 2 The state contends and we acknowledge that the appellant failed to file a timely notice of appeal in this case. The trial court denied the motion to withdraw his guilty plea on Friday, June 9, 1995. The notice of appeal was filed thirty-three days later on Wednesday, July 12. Rule 4(a) of the Tennessee Rules of Appellate Procedure provides that a notice of appeal must be filed within thirty days of the judgment. However, the rule also provides that in criminal cases the thirty-day period is not jurisdictional and “may be waived in the interest of justice.” Tenn. R. App. P. 4(a). In this instance, we disregard the untimely filing of the notice of appeal and consider the case on its merits. 2 For the reasons discussed below, we affirm the judgment of the trial court in part and remand this case for further findings and/or proceedings. The events leading to appellant’s acceptance of a plea bargain were vigorously disputed, and we must discuss them in some detail. This case arose out of the death of thirteen-month-old Alexandria Gleaves, the daughter of appellant’s girl friend, who died on December 13, 1993 as result of internal bleeding caused by blunt trauma to the abdomen. The appellant, who was seventeen years old, was arrested in connection with her death. He waived his rights in juvenile court and was indicted for first-degree murder on June 20, 1994. The trial court found that the defendant was indigent and appointed the public defender’s office to represent him. Between August, 1994, and April, 1995, the case was before the trial court seventeen times. At least eight of these occasions were appearances on the settlement docket.3 Prior to a plea agreement being made, counsel spoke to Mr. Garey Lyons, the appellant’s father, and encouraged him to talk to his son about accepting the plea bargain which had been on the table for several weeks. The state had offered to accept a plea for second-degree murder in exchange for an agreed Range II sentence of forty years. Defense counsel testified that, although the appellant had never admitted his guilt, he had indicated that he would consider pleading guilty if the sentence were reduced to thirty years. The appellant had, however, repeatedly declined the current offer. Because facilities for personal interviews were not available at the courthouse, Mr. Lyons sent a message to his 3 The eight settings on the settlement docket were September 29, November 11, December 12, 1994, and January 6, February 21, 28, March 14, and April 4, 1995. The last date was the date the plea was entered. The record reflects there was confusion about the date scheduled for determining the status of the plea, the defendant believing erroneously on April 4, 1995, that the last status date would be a few weeks later. 3 son urging him to plead guilty, and the appellant agreed. The trial court accepted the plea and imposed sentence on that day, April 4, 1995. On May 3, 1995, the appellant, who had retained new counsel, filed a “Motion to Withdraw Plea and to Set this Case for Trial”. The trial court held an extensive, nine-hour evidentiary hearing on the motion on June 9, 1995. Garey Lyons, testified that defense counsel had told him that if his son insisted on going to trial he could receive the death penalty or be sentenced to life without parole. Phylis West, the Director of the Employee Assistance Program for Nashville’s Metropolitan Government, testified that she was present at a meeting in which she believed defense counsel mentioned a possibility that the case could not be won at trial and that the jury could impose the death penalty. The appellant testified that he did not commit the crime and pleaded guilty only because his father told him he should. He said that his attorney had made it clear that he could not win at trial and that he could be sentenced to life without parole or otherwise subject to a minimum confinement of twenty-five calendar years. Paul Newman, the assistant public defender who represented the appellant during the plea negotiations, testified. Newman stated that he told the appellant and his father numerous times that, as a juvenile, appellant was not eligible for the death penalty.4 He also explained to them that, since the state had 4 Tennessee Code Annotated section 37-1-134(a)(1)(1996) provides that no “child transferred under the provisions of this section [dealing with the transfer of cases from juvenile court to criminal court] [may] receive ... a sentence of death for the offense for which the child was transferred.” See also Tenn. Code Ann. section 39-13-208(a), (c)(Supp. 1996); Tenn R. Crim. P. 12.3(b). 4 not provided the required notice, the defendant could not be sentenced to life without parole.5 He testified that he had carefully explained that if the appellant were convicted at trial of first-degree murder he would have to serve a minimum of twenty-five years before he would be eligible for parole. Newman explained that the state’s offer to agree to a plea of guilty to murder in the second degree upon a Range II sentence of 40 years had been conveyed to the appellant several weeks before April, 1995.6 Newman formally conveyed the offer with explanatory information by letter dated March 1, 1995. On or about March 4, 1995, Newman met with the appellant and the appellant’s father and told the appellant that he would not allow the appellant to plead guilty if the appellant told him he was not guilty. Newman testified that when he left that meeting, appellant’s father told him that the appellant and his father would discuss the offer and make a decision. Newman also testified that he fully discussed the plea with the appellant who signed the plea petition in which he waived his constitutional rights and agreed to be sentenced as a Range II offender prior to the hearing in the courtroom on April 4, 1995. The transcript of the guilty plea submission hearing was entered into evidence at the hearing and is part of the record on appeal. The record reveals that, after the appellant acknowledged his counsel had discussed the guilty plea, the 5 Tennessee Code Annotated section 39-13-208(b) (Supp. 1996) provides that, when in a capital case the state intends to seek life imprisonment without possibility of parole, “written notice thereof shall be filed not less than thirty (30) days prior to trial.” If such notice is filed “later than this time, the trial judge shall grant the defendant a reasonable continuance of the trial.” Id. It is evident from the language of this subsection that the state’s ability to seek a life sentence without possibility of parole was transitory rather than permanent in nature. 6 The appellant testified he first received the terms of the offer in 1994. 5 trial judge, the assistant district attorney, and defense counsel engaged in the following discussion: The Court: All right. Mr. Lyons, uh -- you are charged with first degree murder of -- uh -- Alexandria Gleaves on December 13th 1993. I’ve forgotten . . . . the supreme court did something about this -- this child abuse murder statute. Is -- does it still carry the death penalty or did they hold that it does not? Mr. Newman: Your Honor, I -- it’s my understanding that it carries the death penalty for typical first degree murder. General Statom: That’s my understanding, also . . . . And I believe under the new statute -- uh -- you can have the death penalty under it, and it only has to be one incident other than . . . . The trial court then advised the defendant: The Court: Okay. Mr. Lyons, if -- if you were convicted of this case, had a trial, you could get the death penalty or you could get a life sentence with no possibility of parole or a life sentence which means at least twenty- five years to serve without -- in order (sic) words, twenty-five years before you would be considered for parole. Those are the three possibilities if you were convicted of the crime you’re charged with committing. Now, do you understand that? Lyons: Yes, sir. The Court: Mr. -- did Mr. Newman explain all that to you? Lyons: What did you say? The Court: Did Mr. Newman explain all these possible punishments to you? Lyons: Yes, sir. (Emphasis added). The trial judge went on to explain the plea bargain sentence and repeated twice that the appellant, if he were convicted of first-degree murder, could receive either the death penalty, life without parole, or life in prison. At no time did the trial court or the attorneys state that, because the defendant was a juvenile and 6 the state had not provided the requisite notice, the only sentence that could be imposed in a conviction for first degree murder would be life in prison. The trial court advised the appellant of his constitutional rights as required by Rule 11, Tenn. R. Crim. P. Then, the assistant attorney general stated that the defendant had caused the injuries to the thirteen-month old victim while she was under his exclusive control and that the offense occurred on December 13, 1993, in Davidson County. After determining the number of days the appellant had already served, the trial court accepted his plea. At the conclusion of the hearing on the motion to withdraw the plea, the trial court found as follows: 1. The state had made no misrepresentations and had committed no fraud that might have induced the plea. 2. The only problem was the discussion of the death penalty at the submission hearing. 3. Defense counsel had informed the appellant and his father of the fact that the appellant was not eligible for the death penalty because he was a juvenile, and that the state could not seek life without parole because it had not provided timely notice. 4. The factual basis for the plea was substantial. 5. The appellant was laboring under no misapprehensions when he pleaded guilty to second-degree murder. 6. The appellant had received effective assistance of counsel during the negotiations leading up to the acceptance of the plea. 7 The trial judge, with the complicity of the assistant district attorney general and with at least the acquiescence of defense counsel, stated that he essentially viewed the appellant’s motion to withdraw his guilty plea as a petition for post-conviction relief. The trial court then treated the motion as a post-conviction petition and “denied” same based upon the general findings summarized above. The trial court (and trial counsel) made no reference to Rule 32(f) of the Tennessee Rules of Criminal Procedure.7 The appellant on this appeal seeks to withdraw or set aside the guilty plea because (1) the appellant received ineffective assistance of counsel and/or (2) the trial court should have otherwise allowed the withdrawal of the plea presumably based upon Rule 32(f), Tenn. R. Crim. App.8 We examine these two issues separately. We reach the merits of the ineffective assistance of counsel claim and affirm the trial judge’s determination that there was no ineffective assistance of counsel that would taint the guilty plea. With respect to the general attack upon the guilty plea, however, we find that the trial court and trial counsel misapprehended the nature of the proceeding, resulting in a failure of the trial court to apply the appropriate standard in assessing the appellant’s claim. For reasons explained 7 The trial court did refer to grounds for withdrawal of guilty pleas as recognized in Swang v. State, 42 Tenn. 212 (1965) and State v. Davis, 823 S.W.2d 217 (Tenn. Crim. App. 1991). Davis does mention Rule 32(f), but Davis held that manifest injustice existed under Rule 32(f) so as to support the withdrawal of a guilty plea in that case because of a failure of the state to disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83 , 83 S. Ct. 1194 (1963). The trial court focused upon issues of prosecutorial misconduct or misrepresentation, and perhaps the existence of fear that would vitiate the decision to plea, rather than the larger standard of manifest injustice that Rule 32(f) prescribes. See section II of this opinion, infra. 8 Not only was Rule 32(f) not mentioned in the trial court, but appellant’s counsel on appeal mentions neither Rule 32(f) nor Rule 11 in his brief. 8 below, we vacate the order overruling the motion and remand the case to the trial court for further proceedings consistent with the scheme of Rule 32(f) and with the guidance offered in this opinion. I. Effective Assistance of Counsel. When an appeal challenges the effective assistance of counsel, the appellant has the burden of establishing (1) deficient representation and (2) prejudice resulting from that deficiency. Strickland v. Washington, 466 U.S. 668 , 686 (1984); Baxter v. Rose, 523 S.W.2d 930 , 936 (Tenn. 1975). Deficient representation occurs when counsel provides assistance that falls below the range of competence demanded of attorneys in criminal cases. Bankston v. State, 815 S.W.2d 213 , 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable likelihood that, but for deficient representation, the outcome of the proceedings would have been different. Overton v. State, 874 S.W.2d 6 , 11 (Tenn. 1994). On review, there is a strong presumption of satisfactory representation. Barr v. State, 910 S.W.2d 462 , 464 (Tenn. Crim. App. 1995). As to guilty pleas, the petitioner must establish a reasonable probability that, but for the errors of counsel, he would not have entered into the plea. Hill v. Lockhart, 474 U.S. 52 , 59, 106 S. Ct. 366 , 370 (1985); Adkins v. State, 911 S.W.2d 334 , 349 (Tenn. Crim. App. 1994); Wilson v. State, 899 S.W.2d 648 , 653 (Tenn. Crim. App. 1994). In the direct appeal now before us, the appellant claims his trial counsel rendered ineffective assistance in that he failed to investigate the case fully and misinformed the appellant as to the possibility of him receiving the death penalty. 9 The complaint about counsel’s investigation centers around counsel not interviewing the victim’s mother and sister prior to the submission hearing. Both the victim’s mother, Kim Jackson, and the victim’s sibling, a five-year old child, were in the home during portions of the general time frame in which the victim received the fatal blows. The appellant contends there was evidence that Jackson had previously abused the victim. Trial counsel testified at the submission hearing that the investigators employed through his office had been unable to locate these persons through Jackson’s reputed places of employment and residence. Counsel testified he had received from the state a copy of her transcribed statement and that efforts were still being made to interview these witnesses prior to the trial date. Neither of these witnesses was presented at the motion hearing, and accordingly, there is no indication in the record that the testimony of either would have influenced the appellant to eschew a guilty plea and go to trial. When the claim of ineffective assistance is based upon the failure to present potential witnesses, their testimony should be offered at the hearing at which counsel’s representation is challenged. In this manner the court can consider whether (a) a material witness existed and could have been discovered but for counsel’s neglect, (b) a known witness was not interviewed by counsel, (c) the failure to discover or interview a witness prejudiced the petitioner, or (d) the failure to call certain witnesses denied critical evidence to the prejudice of the petitioner. See Black v. State, 794 S.W.2d 752 , 757 (Tenn. Crim. App. 1990). In the case before us, the putative witnesses did not testify, and we are precluded from reviewing the import of their testimony. Hence, the appellant has failed to show prejudice, assuming arguendo that the failure to interview these persons prior to the submission hearing was deficient representation. The claim is without merit. 10 Next, the appellant contends that, but for his attorney misleading him into believing that he could receive the death penalty, he would not have been frightened into pleading guilty. The record does not support the appellant in this claim. The appellant’s own testimony fails to support that counsel misinformed the appellant as to the applicability of the death penalty. The essence of appellant’s testimony is that he was influenced by his father and by the statements of counsel that disparaged the chances of avoiding a life sentence at trial. Ms. Phylis West, who attended the conference among the appellant, appellant’s father, and trial counsel on March 4, 1995, stated when asked if the death penalty was mentioned, “Uh--I believe it was mentioned in that meeting, too, that [counsel] said that--uh-- there was a possibility that [the appellant] could even get the death sentence.” This somewhat tentative testimony was found by the trial court to be overcome by the affirmative assertions by trial counsel that counsel knew the appellant was not eligible for the death penalty and that he never told the appellant that he could receive this penalty. The evidence does not preponderate against the trial court’s finding, and accordingly, this issue too is without merit. We hold that the appellant has failed to establish his claim of ineffective assistance of counsel. II. Withdrawal of Guilty Plea in General. In this appeal, the defendant challenges the trial court’s overruling his motion to withdraw his guilty plea. Generally, a defendant who submits a guilty plea is not entitled to withdraw the plea as a matter of right. State v. Turner, 919 S.W.2d 346 , 355 (Tenn. Crim. App. 1995) (citing State v. Anderson, 645 S.W.2d 251 , 253- 254 (Tenn. Crim. App. 1982) and 8A Moore’s Federal Practice § 32.09[1] at p. 32- 11 87 (1991 Revision)). The decision to allow the withdrawal of a guilty plea is within the discretion of the trial court and may not be overturned on appeal absent an abuse of discretion. Henning v. State, 184 Tenn. 508 , 511, 201 S.W.2d 669 , 670 (1947); State v. Davis, 823 S.W.2d 217 , 220 (Tenn. Crim. App.. 1991). However, the existence of discretion implies that there are limits to its exercise. State v. Williams, 851 S.W.2d 828 , 832(Tenn. Crim. App. 1992). The record must contain some substantial evidence to support the trial court’s decision. Goosby v. State, 917 S.W.2d 700 , 705 (Tenn. Crim. App. 1995). Under Tennessee law, a trial court may set aside the acceptance of a guilty plea in three different circumstances. Rule 32(f) of the Tennessee Rules of Criminal Procedure governs two situations in which a defendant wishes to withdraw a guilty plea before the judgment has become final.9 Post-conviction procedures found at Tennessee Code Annotated sections 40-30-201, et seq., become available once a judgment is final. Because the record in this case discloses some confusion with respect to the appropriate standard, we discuss the matter in some detail. According to the rule, a trial court may permit the withdrawal of a guilty plea upon a showing “of any fair and just reason” before it sentences the defendant. Tenn. R. Crim. P. 32(f).10 Once the defendant is sentenced, however, Tennessee’s 9 (f) Withdrawal of Plea of Guilty A motion to withdraw a plea of guilty may be made upon a showing by the defendant of any fair and just reason only before sentence is imposed; but to correct manifest injustice, the court after sentence, but before the judgment becomes final, may set aside the judgment of conviction and permit the defendant to withdraw his plea. Tenn. R. Crim. P. 32(f). 10 For cases in which the “any fair and just reason” standard is applied, see, for example, State v. Anderson, 645 S.W.2d 251 (Tenn. Crim. App. 1982); State v. Dean Allen Trinkle, No. 03C01-9304-CR-00123 (Tenn. Crim. App., Knoxville, Nov. 30, 1993), perm. app. denied (Tenn. 1994); State v. 12 rule requires that defendants meet a different standard. The rule also imposes a time constraint.11 According to the rule, a trial court may permit the withdrawal of a guilty plea after sentencing and before the judgment becomes final only “to correct manifest injustice.” Tenn. R. Crim. P. 32(f).12 Rule 32(f) of Tennessee’s Rules of Criminal Procedure is, therefore, applicable only until the judgment has become final. Once final, the judgment may be set aside pursuant to the Post-Conviction Procedure Act. Tenn. Code Ann. § 40- 30-202(a)(Supp. 1996). The Act provides that a conviction or sentence is void or voidable only if the conviction or sentence were obtained through an abridgment of a right guaranteed by the Constitution of Tennessee or the Constitution of the Vincent Daugherty, No. 02C01-9104-CR-00071 (Tenn. Crim. App., Jackson, July 15, 1992), perm. app. denied (Tenn. 1992); State v. Larry Roddy, No. 246 (Tenn. Crim. App., Knoxville, March 19, 1990); State v. Bruce E. Vincent, Jr., No. 18 (Tenn. Crim. App., Knoxville, January 20, 1989). 11 Unlike Tennessee’s rule, Rule 32 of the Federal Rules of Criminal Procedure imposes no time limit on a trial court’s authority to permit the withdrawal of a guilty plea to correct a manifest injustice. The federal rule states: A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea. Fed. R. Crim. P. 32(d). 12 For Tennessee cases in which the “manifest injustice” standard is considered see, for example, State v. Turner, 919 S.W.2d 346 (Tenn. Crim. App. 1995); State v. Davis, 823 S.W.2d 217 (Tenn. Crim. App. 1991); State v. Drake, 720 S.W.2d 798 (Tenn. Crim. App. 1986); State v. Haynes, 696 S.W.2d 26 (Tenn. Crim. App. 1985); State v. James A. Bear, No. 03C01-9510-CC-00301 (Tenn. Crim. App., Knoxville, Sept. 9, 1996), perm. app. denied (Tenn. 1997); State v. Michael Leon Chambers, No. 01CO1-9505-CC-00143 (Tenn. Crim. App., Nashville, June 20, 1996), perm. app. denied (Tenn. 1996); State v. Steve Pickett, No. 01CO1-9211-CC-00344 (Tenn. Crim. App., Nashville, June 2, 1994); State v. William Ray Hutchins, No. 03C01-9302-CR-00044 (Tenn. Crim. App., Knoxville, Dec. 7, 1993) perm. app. denied (Tenn. 1994); State v. Daniel Leroy, No. 03C01-9206-CR-00199 (Tenn. Crim. App., Knoxville, Aug. 4, 1993); State v. Anthony Brown, No. 02C01-9106-CC-00130 (Tenn. Crim. App., Jackson, March 11, 1992); State v. Charles Eugene Lane, No. 111 (Tenn. Crim. App., Knoxville, Dec. 5, 1990); State v. Arthur Harris, No. 103 (Tenn. Crim. App., Jackson, Oct. 11, 1989). 13 United States. Tenn. Code Ann. § 40-30-203( Supp. 1996). The United States Supreme Court has ruled that a guilty plea must be voluntarily, understandingly, and intelligently entered to pass constitutional muster. Brady v. United States, 397 U.S. 742 , 747, n. 4, 90 S. Ct. 1463 , 1468, n. 4 (1970); Boykin v. Alabama, 395 U.S. 238 , 89 S. Ct. 1709 (1969). Our supreme court has long held that “a plea of guilty must be made voluntarily and with full understanding of its consequences.” State ex rel. Barnes v. Henderson, 220 Tenn. 719 , 727, 423 S.W.2d 497 , 501 (1968). In summary, a trial court may permit the withdrawal of or may set aside a guilty plea 1. for any fair and just reason before the sentence is imposed; Tenn. R. Crim. P. 32(f); 2. to correct manifest injustice after sentence but before the judgment becomes final; Tenn. R. Crim. P. 32(f); 3. once the judgment is final, if the plea was not entered voluntarily, intelligently, and knowingly or was obtained through the abridgment of any right guaranteed by the United States or Tennessee Constitutions. State v. Mackey, 553 S.W.2d 337 , 340-341 (Tenn.1977); Tenn. Code Ann. § 40-30-203. The three standards are neither identical nor separate and distinct. They are on a continuum in which the more general standard includes the more specific. Immediately after entering a guilty plea, any fair and just reason will suffice to justify the withdrawal of the plea. But by its express language, Rule 32(f) contemplates that trial courts will use a more demanding standard once a sentence has been imposed. The rationale for raising the hurdle over which a defendant must jump once sentence is imposed is based “upon practical considerations important to the proper administration of justice.” Kadwell v. United States, 315 14 F.2d 667 , 670 (9th Cir. 1963).13 In Kadwell, the Ninth Circuit Court of Appeals reasoned: Before sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight as compared with the public interest in protecting the right of the accused to trial by jury. But if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe. The result would be to undermine respect for the courts and fritter away the time and painstaking effort devoted to the sentencing process. Id. The concept of manifest injustice under Rule 32(f) is not identical to the requirements of constitutional due process. However, we agree that “where there is a denial of due process, there is a ‘manifest injustice’ as a matter of law.” State v. Davis, 823 S.W.2d 217 , 220, (Tenn. Crim. App. 1991)(quoting from United States v. Crusco, 536 F.2d 21 , 26 (3rd Cir. 1976)).14 Federal courts have consistently held that, although there may be considerable overlap between the standards, manifest injustice allows a trial judge greater latitude than the constitutional requirements. United States v. Washington, 341 F.2d 277 , 281 fn. 3 (3rd Cir. 1965); Pilkington v. United States, 315 F.2d 204 , 209 (4th Cir. 1963). In Pilkington, the court recognized that “the facts disclosed in a hearing might not be sufficient for the court to conclude that the guilty plea was involuntary and violative 13 Although Tennessee’s Rule 32(f) imposes time constraints absent in Rule 32(d) of the Federal Rules of Criminal Procedure, both refer to the identical standard of “manifest injustice” in the withdrawal of a guilty plea after sentencing. Consequently, abundant federal precedent assists our interpretation of the term. 14 Certainly, a denial of due process would also be “a fair and just reason” for setting aside a guilty plea. 15 of due process, yet the court may be of the opinion that clear injustice was done.” 315 F.2d at 209 . Although we have found no Tennessee case that clearly articulates the proposition recognized in Pilkington, the concept is inherent in the structure of Rule 32 and the Post-Conviction Procedures Act. For instance, this court, in State v. Turner, first found that the defendant’s guilty plea satisfied the requirements of Tennessee Rules of Criminal Procedure 11 and met the constitutional standards of Boykin v. Alabama, 395 U.S. 238 , 89 S. Ct. 1709 (1969) and North Carolina v. Alford, 400 U.S. 25 , 92 S. Ct. 160 (1970). State v. Turner, 919 S.W.2d 346 , 351-354(Tenn. Crim. App. 1995). The Turner court then turned to Tennessee case law to discover those factors Tennessee courts have considered when applying the manifest injustice standard. Id. at 355. Implicit in this analysis is a recognition that, although the standards overlap, a trial court may, under some circumstances, permit the withdrawal of a guilty plea to prevent manifest injustice even though the plea meets the “voluntary and knowing” requirements of constitutional due process.15 In this case, the defendant moved to set aside his guilty plea after sentencing but before the judgment was final. The timing of the motion, therefore, invoked the manifest injustice rule. Tenn. R. Crim. P. 32(f). The term “manifest injustice” is not defined either in the rule or in those cases in which the rule has been applied. Trial courts and appellate courts must determine whether manifest 15 A plea of guilty must be made voluntarily, understandingly, and intelligently to pass constitutional muster. Boykin v. Alabama, 395 U.S. 238 , 244, 89 S. Ct. 1709 , 1713 (1969). The essence of Boykin is the requirement “that no guilty plea be accepted without an affirmative showing that it was intelligent and voluntary.” Boykin, 395 U.S. at 244 , 89 S.Ct. at 1713. A reviewing court may look to any relevant evidence in the record to determine the voluntariness of a plea. State v. Turner, 919 S.W.2d 346 , 353 (Tenn. Crim. App. 1995). 16 injustice exists on a case by case basis. State v. Turner, 919 S.W.2d 346 , 355 (Tenn. Crim. App. 1995). The defendant has the burden of establishing that a plea of guilty should be withdrawn to prevent manifest injustice. Id. In this case, however, the trial court received and disposed of the motion to withdraw the guilty plea as a petition for post-conviction relief. See Tenn. Code Ann. § 40-30-101-124 (1990) (repealed, effective May 10, 1995, Pub. Acts 1995, Ch. 207). This approach was taken without objection but in spite of the provisions of Rule 32(f) of the Tennessee Rules of Criminal Procedure. Although the motion to withdraw the guilty plea did not mention Rule 32(f), the motion is clearly authorized and governed by the rule. The court’s transmogrification of the motion to a post-conviction petition presumably led to the application of the rule, described above, that only errors of constitutional dimension are cognizable . Tenn. Code Ann. § 40-30-105 (1990) (repealed, effective May 10, 1995, Pub. Acts 1995, Ch. 207). As pointed out above, the applicable standard under Rule 32(f) is manifest injustice, a standard that is more inclusive and less stringent than constitutional abridgement. The trial judge did not mention manifest injustice nor Rule 32(f) in his findings and conclusions.16 We are constrained to find that the trial court did not apply the less stringent standard and that the appellant’s motion was not properly considered. Because the correct standard was not applied below and because a number of witnesses testified, including defense counsel and the appellant, such that credibility of witnesses and the weight to be given to their testimony could have been key issues in the trial court’s analysis,17 we vacate the 16 See n.7, supra . 17 See State v. Sheffield, 676 S.W.2d 542 , 547 (Tenn.1984). 17 order denying the appellant’s motion and remand this case in deference to the trial court in order for that court to enter such further findings, or to conduct such further proceedings, as are indicated by the provisions of Rule 32(f) and by the applicable portions of this opinion. On remand, the trial court shall determine whether a further hearing on the motion is necessary in order to find and settle facts material to the applicable standard of manifest injustice. If no hearing is held, the trial court shall make its findings with respect to manifest injustice based upon the applicable principles of law and the hearing previously held. Having reviewed the record and the briefs thoroughly, however, in the interest of judicial efficiency we offer our analysis of certain issues which the trial court confronted, for the benefit of the trial court on remand. a. Nature of the Conviction Offense To determine whether the appellant should be permitted to withdraw his guilty plea “to correct manifest injustice,” a court must scrutinize carefully the circumstances under which the trial court accepted the plea. An analysis of the submission process under Rule 11(c), Tenn. R. Crim. P., facilitates an inquiry into the existence of manifest injustice. Rule 11 and our supreme court’s decisions in State v. Mackey, 553 S.W.2d 337 (Tenn.1977) and State v. McClintock, 732 S.W.2d 268 (Tenn. 1987), control the acceptance of guilty pleas in this state. Trial judges are required to adhere substantially to the procedure prescribed in the rule. State v. Newsome, 778 S.W.2d 34 , 38 (Tenn.1989). A submission hearing transcript must establish on its face that the trial court substantially complied with the requirements of Rule 11, Boykin v. Alabama and the teachings of State v. Mackey, 18 553 S.W.2d at 341-42 , and State v. McClintock, 732 S.W.2d 268 , 273 (Tenn.1987). State v. Turner, 919 S.W.2d at 352 . In this case careful attention should be given to the interrelated application of subsections (c)(1) and (f) of Rule 11. Rule 11(c)(1), in pertinent part, provides: Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law .... Tenn. R. Crim. P. 11(c)(1) (emphasis added). This rule is related to Rule 11(f) which states that “[n]otwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.” This requirement exists primarily to ensure that the defendant pleads guilty with the understanding “that his admitted conduct actually constitutes the offense with which he is charged or a lesser included one.” State v. Lord, 894 S.W.2d 312 , 317 (Tenn. Crim. App. 1994), perm. app. denied (Tenn. 1995). Upon a review of the record, one might fairly ask whether the appellant understood the elements of the offense to which he was pleading, as opposed to the offense with which he was originally charged. The record does not clearly demonstrate that the appellant was told by his counsel, the trial judge, or anyone else about the elements required for second-degree murder. We note that the indictment charges that the appellant “recklessly did kill Alexandria Greaves (D.O.B. 05/22/92), a child less than thirteen (13) years of age and Alexandria Greaves’ 19 death resulted from aggravated child abuse. As defined by § 39-15-402....” Thus, the appellant was not indicted for first-degree murder via premeditation, under Tenn. Code Ann. section 39-13-202(a)(1) (Supp. 1996), and, although the plea petition affirmatively shows that the appellant read, understood, and had explained to him the elements of first-degree murder, it is not clear if he was aware of any scienter requirements of either offense, beyond recklessness as alleged in the indictment for first-degree murder. Second-degree murder is the “knowing” killing of another.18 Tenn. Code Ann. § 39-13-210(a) (1990) (amended, effective July 1, 1995, Pub. Acts. Ch. 460). A person acts knowingly when the person is aware of the nature of the conduct, the existence of the circumstances, or is aware that the conduct is reasonably certain to cause the result. Tenn. Code. Ann. § 39-11-302(b) (1990). There is no indication in the record that the “knowing” requirement of the offense to which he pleaded was articulated to this appellant. The trial court did not address the issue, nor does the plea petition deal specifically with the required elements of second-degree murder, nor does the factual basis offered under Rule 11(f) speak to the scienter element. On the other hand, there was no inquiry during the submission hearing designed to test the appellant’s understanding of the nature of second-degree murder, and moreover there was no inquiry during the hearing on the motion to withdraw the plea which indicated any prior misunderstanding on this point. The appellant has not raised this issue, and the failure to raise it may well be because he acknowledges, tacitly at least, that he was aware of the nature of the 18 We note the anomaly involved when the conviction is for second- degree murder and the offense charged is first-degree murder alleged under Tenn. Code Ann. § 39-13-202(a)(4) (Supp. 1993): The lesser grade of the offense requires a higher degree of scienter (knowing killing) than does the higher grade of the offense (reckless killing). 20 conviction offense. See Johnson v. State, 843 S.W.2d 922 , 926 (Tenn. 1992) (failure to instruct a guilty-pleading defendant of his constitution rights entitles the defendant to no relief if the defendant is otherwise aware of the information the mandated advice would have imparted). We are reluctant to presume a waiver of rights from a silent record, but this issue is not one of waiver. Rather, it is an issue of whether there existed a “meeting of the minds” on the plea being offered and accepted. We cannot discern the appellant’s mind on this point from the record on appeal. Constitutionally, the beginning point in a Rule 11(c)(1) inquiry is Boykin v. Alabama, 395 U.S. 238 , 89 S. Ct. 1709 (1969), summarized above, in which the Supreme Court ruled that a guilty plea in a criminal case must be supported in the record by an affirmative showing that the accused pleaded voluntarily, understandingly, and knowingly. Boykin, 395 U.S. at 242 , 89 S.Ct. at 1711. Later, the Supreme Court held that the accused did not act “voluntarily” when he pleaded guilty to “second-degree murder without being informed that intent to cause the death of his victim was an element of the offense.” Henderson v. Morgan, 426 U.S. 637 , 638, 96 S. Ct. 2253 , 2254 (1976). In Morgan, the court noted: There was no discussion of the elements of the offense of second-degree murder, no indication the nature of the offense had ever been discussed with respondent, and no reference of any kind to the requirement of intent to cause the death of the victim. 426 U.S. at 642-43 , 96 S.Ct. at 2256. Significantly, the respondent in Morgan testified at his post-conviction evidentiary hearing that “he would not have pleaded guilty if he had known that an intent to cause the death of his victim was an element of the offense of second-degree murder.” 426 U.S. at 643-44 , 96 S.Ct. at 2257. The court acknowledged that in most cases it may be “appropriate to presume that ... defense counsel routinely explain[ed] the nature of the offense in sufficient detail 21 to give the accused notice of what he is being asked to admit,” 426 U.S. at 647 , 96 S.Ct. at 2258, but the Supreme Court declined to apply such a presumption in Morgan because the trial court had found affirmatively as a fact that “the element of intent was not explained to the respondent.” 426 U.S. at 647, 96 S. Ct. at 2258 - 59. Based upon such a record, the court said the plea could not be voluntary “in the sense that it constituted an intelligent admission that he committed the offense unless the defendant received ‘real notice’” of the nature of the conviction offense. 426 U.S. at 645 , 96 S.Ct. at 2257 (citations omitted). 19 “Adequate notice of the nature of the charges is a constitutional requisite in any criminal prosecution.” Bryan v. State, 848 S.W.2d 72 , 75 (Tenn. 19 This court reviewed a post-conviction challenge to a guilty plea in Chamberlain v. State, 815 S.W.2d 534 (Tenn. Crim. App. 1990). In Chamberlain we acknowledged the obligations placed upon a trial court in Tennessee, in receiving a guilty plea, as articulated in Boykin and in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977) and Rule 11 of the Tennessee Rules of Criminal Procedure. Chamberlain, 815 S.W.2d at 538-40 . We concluded in Chamberlain that the record did not affirmatively disclose that the plea was voluntarily and understandingly made. Id. at 540. However, we pointed out that this determination did not end the inquiry. Rather, the burden shifted to the state “to prove that the defendant voluntarily, understandingly, and knowingly entered the pleas.” Id. at 540-41. The attempt to carry this burden may be made at the evidentiary hearing. Id. at 541. Furthermore manifest injustice conceivably embraces the notion of substantial compliance. In State v. Neal, 810 S.W.2d 131 (Tenn. 1991), the Tennessee Supreme Court held that in a post-conviction attack upon a guilty plea the conviction was not void even though, prior to pleading, the trial court did not explain any of the defendant’s rights except for his right to have a jury trial and to confront witnesses. Id. at 133. The court acknowledged that in Rounsaville v. Evatt, 733 S.W.2d 506 (Tenn. 1987), it promulgated strict compliance with Mackey, but in Neal the court elected to “depart from the strict holding of Rounsaville.” Id. at 134. The court held that, although full compliance with the requirements of Boykin, Mackey, Rule 11, and State v. McClintock, 732 S.W.2d 268 (Tenn. 1987), is required, “absolutely literal compliance with the advice to be given is not required.” Id. at 137. The court noted that “expressing the sense of the substance of the required advice to a guilty-pleading defendant” is substantial compliance. Id. 22 Crim. App. 1992). A trial court need not explain “in litany fashion” each element of every offense to which an accused is pleading guilty. Id. Nor does a trial judge in a guilty plea submission hearing have a duty to define each term and phrase as he would for a jury. State v. Michael Leon Chambers, No. 01CO1-9505-CC-00143, slip op. at 5 (Tenn. Crim. App., Nashville, June 20, 1996). A defendant, however, must understand the nature of the crime to which he is pleading guilty before he can determine whether his actual conduct constitutes that offense. A defendant may become aware of the elements of the offense through allegations in the indictment, the contents of the guilty plea petition, or the statement of the charges and the stipulated evidence provided by the state during the guilty plea hearing. Bryan v. State, 848 S.W.2d at 75 . b. Maximum Penalty Advice. Tennessee law also requires that the trial court address the defendant personally in open court, inform him of, and determine that he understands the mandatory minimum and maximum possible penalties for the offense to which the defendant is pleading guilty. Tenn. R. Crim. P. 11(c)(1); Blankenship v. State, 858 S.W.2d 897 , 905 (Tenn.1993); State v. McClintock, 732 S.W.2d 268 , 273 (Tenn.1987); State v. Timothy W. Brown, No. 01CO1-9211-CC-00343, slip op. at 8 (Tenn. Crim. App., Nashville, June 9,1994) (Tipton, J., concurring) (citing State v. Mackey, 553 S.W.2d 337 , 341 (Tenn.1977)); James Carl Ferguson v. State, No. 922, slip op. at 5 (Tenn. Crim. App., Knoxville, June 19, 1991). The failure to employ the proper sentencing statute and to advise the defendant accordingly may preclude a defendant from entering a knowing and intelligent plea, State v. Arthur 23 Harris, No. 103, slip op. at 3 (Tenn. Crim. App., Jackson, October 11, 1989), and a plea of guilty may be withdrawn if the defendant’s decision to plead guilty was based on misinformation about the effect of the plea. Henning v. State, 184 Tenn. 508 , 511, 201 S.W.2d 669 , 670 (1947). The appellant asserts that he was misinformed and induced to plea, in part, because of his needless fear of receiving the death penalty. We have examined this claim above from the perspective of the effective assistance of counsel, but where the object to be focused upon is the validity of the plea, the effectiveness of counsel’s assistance is but one facet of the prism through which we view the object. Even though we have held that there was no ineffective assistance that might otherwise contribute to a finding of manifest injustice, the underlying facts of the plea must be reviewed independently of the effective assistance issue. c. McClintock Advice. In passing, we invite the trial court to consider on remand whether the advice imparted at the submission hearing complied with the requirements set forth in State v. McClintock, 732 S.W.2d 268 , 273 (Tenn. 1987), that the appellant be advised that his conviction could be used to enhance any punishment for subsequent offenses. If there is an omission of this advice, the effect on manifest injustice must be evaluated. See Bryan, 848 S.W.2d at 75 . d. Procedure on Remand. The common and compelling purpose behind Rule 11 and the additional requirements imposed by case law is “to insulate guilty pleas from 24 coercion and relevant defendant ignorance.” State v. Neal, 810 S.W.2d 131 , 135 (Tenn.1991). In determining whether to permit the withdrawal of a guilty plea, the Sixth Circuit has held that district courts should consider a number of factors including: “(1) the delay in filing the motion to withdraw the plea; (2) the reasons for any delay; (3) whether the defendant has consistently maintained his innocence; and (4) the circumstances underlying the plea and the background of the defendant.” United States v. Alexander, 948 F.2d 1002 , 1003 (6th Cir. 1991). Tennessee courts have allowed the withdrawal of guilty pleas to prevent manifest injustice “when it is established that the plea was entered due to (a) “coercion, fraud, duress or mistake,” (b) ”fear”, (c) a “gross misrepresentation” made by the district attorney general, or an assistant, (d) the district attorney withholds material, exculpatory evidence which influences the entry of the plea, or the plea was not voluntarily, understandingly, or knowingly entered.” State v. Turner, 919 S.W.2d at 355 (citations to other cases omitted). Courts have also found that manifest injustice resulted from the trial court’s failure to advise a defendant of the appropriate sentencing range, to apply the appropriate sentencing statute, or to inform a defendant of the consequences flowing from the guilty plea. State v. Timothy W. Brown, No. 01CO1-9211-CC-00343 (Tenn. Crim. App., Nashville, June 9, 1994); State v. Arthur Harris, No. 103 (Tenn. Crim. App., Jackson, Oct. 11, 1989). 20 20 The United States Court of Appeals for the Third Circuit found that the trial court’s inadvertent failure to advise a defendant of the correct maximum sentence and the defendant’s resulting confusion created manifest injustice in United States v. Crusco, 536 F.2d 21 , 23-24 (3rd Cir. 1976). See also Pilkington v. United States, 315 F.2d 204 , 210 (1963) ( manifest injustice results when trial court’s misinformation causes defendant to plead guilty). A Wisconsin court has found that the failure to establish a factual basis is evidence that a manifest 25 To determine whether a plea is voluntary, intelligent and knowing, the Tennessee Supreme Court has looked to various circumstantial factors, such as the relative intelligence of the defendant; his familiarity with criminal proceedings; the competence of his counsel; the extent of advice from counsel and court, and the reasons for the decision to plead guilty. Blankenship v. State, 858 S.W.2d 897 , 904 (Tenn.1993). We consider these factors to be equally appropriate in determining whether the withdrawal of a guilty plea is required to correct manifest injustice. We agree that a guilty plea should not be withdrawn merely because the defendant has had a change of heart. Ray v. State, 224 Tenn. 164 , 170, 451 S.W.2d 854 , 856 (1970). Nor should a defendant’s dissatisfaction with an unexpectedly harsh sentence be sufficient justification for a withdrawal. Clenny v. State, 576 S.W.2d 12 , 15 (Tenn. Crim. App. 1978); State v. Charles Eugene Lane, No. 111, slip op. at 2 (Tenn. Crim. App., Knoxville, Dec. 5, 1990). In summary, the trial court must review the appellant’s motion to withdraw the guilty plea under the manifest injustice standard of rule 32(f) as it is amplified in this opinion. The review encompasses the elements enumerated in Rule 11(c), Tenn. R. Crim. P., Mackey, and McClintock, subject to the proviso that manifest injustice may conceivably exist even where all of these elements are satisfied. If the trial court determines that the existing evidence is inadequate for applying the requisite standard, a further hearing should be ordered, bearing in mind injustice has occurred. State v. Harrington, 512 N.W.2d 261 , 263 (Wis. App. 1994). A similar result was reached in State v. Dodson, 550 N.W.2d 347 , 354 (Neb. 1996) (failure to establish venue in factual basis requires withdrawal of guilty plea). In Hicklin v. State, 535 P.2d 743 (Wyo. 1975), the record did not demonstrate manifest injustice because no actual reliance on the court’s misstatement was demonstrated. 26 that “‘discretion . . . should always be exercised in favor of innocence and liberty.’” Henning v. State, 184 Tenn. 508 , 512, 201 S.W.2d 669 , 671 (1947). Having offered the foregoing comments for the benefit of the trial court, we affirm the trial court’s judgment on the issue of ineffective assistance of counsel but otherwise vacate the order denying the appellant’s motion, remanding this case in order for the trial court to make further findings and/or to conduct further proceedings in accordance with this opinion. CURWOOD WITT, JUDGE CONCUR: GARY R. WADE, JUDGE DAVID G. HAYES, JUDGE 27 | opinion_html_with_citations | 8,411 | 2013-10-09 21:16:46.172414+00 | 010combined | f | f | 1,083,484 | null | null | C | t | Published | 0 | State v. Antonio Demonte Lyons | null | null | null | null | null | null | null | null | null | null | null | 700,324 | 01C01-9508-CR-00263 | 0 | tenncrimapp | SA | t | Court of Criminal Appeals of Tennessee | Court of Criminal Appeals of Tennessee |
2,193,107 | 905 A.2d 15 (2006) 279 Conn. 682 Kathleen DUFFY, Administratrix (Estate of Sage T. Warren), et al. v. Julie S. FLAGG et al. No. 17455. Supreme Court of Connecticut. Argued April 18, 2006. Decided August 29, 2006. *16 Charles W. Fleischmann, with whom were Madonna A. Sacco and, on the brief, Paul E. Pollock and David J. Robertson, Shelton, for the appellants (named defendant et al.). Antonio Ponvert II, with whom was James D. Horwitz, Bridgeport, for the appellees (plaintiffs). BORDEN, NORCOTT, PALMER, VERTEFEUILLE and SULLIVAN, Js. VERTEFEUILLE, J. The defendants Julie S. Flagg, a physician, and her medical practice, Crescent Street Ob-Gyn (Crescent Street), [1] appeal, following our grant of certification, from the judgment of the Appellate Court reversing the judgment of the trial court in favor of the defendants following a jury trial. Duffy v. Flagg, 88 Conn.App. 484, 869 A.2d 1270 (2005). The defendants claim that the Appellate Court improperly concluded that the trial court improperly excluded certain evidence relative to the issue of informed consent. We agree with the defendants, and accordingly, we reverse the judgment of the Appellate Court. The record reveals the following factual and procedural history. In August, 1997, the plaintiff Kathleen Duffy [2] became pregnant with her second child and sought medical treatment from Flagg and Crescent Street. The plaintiff had received medical care from the defendants approximately two years earlier when she was pregnant with her first child, who was delivered by cesarean section. During the course of her prenatal care for her second child, the plaintiff discussed with Flagg and other members of Crescent Street the possibility of having her second child born vaginally despite the fact that her first child had been delivered by cesarean section. During these discussions, the defendants informed the plaintiff of the risks of the procedure known as "vaginal birth after cesarean section," including the risk of uterine rupture and the possibility of a resulting risk of death to the plaintiff and her infant. On one occasion, while discussing the procedure with Flagg, the plaintiff asked Flagg whether she had encountered any difficulty in her prior vaginal birth after cesarean section deliveries. [3] Flagg responded that there had been "a bad outcome" because of a uterine rupture. The plaintiff did not inquire further about the result of the uterine rupture, and Flagg did not tell the plaintiff that the *17 infant had died as a result of that uterine rupture. The plaintiff thereafter decided to attempt a vaginal birth after cesarean delivery and executed written consent forms therefor, which specifically detailed the nature, risks, alternatives and benefits of the procedure. [4] On May 19, 1998, the plaintiff was admitted to Middlesex Hospital for the delivery of her second child. The plaintiff attempted to deliver the infant vaginally, but after she displayed possible signs of a uterine rupture, Flagg transferred her to the operating room and delivered Sage T. Warren, the plaintiff's decedent, by cesarean section. As a result of complications during the birth, the infant survived on life support for eight days, but ultimately died on May 28, 1998. Thereafter, the plaintiff instituted this negligence action, alleging both medical malpractice and lack of informed consent. Prior to trial, the defendants filed a motion in limine seeking to exclude all evidence related to the fact that Flagg previously had encountered a uterine rupture during an attempted vaginal birth after cesarean section delivery, including the existence of a lawsuit against Flagg for the death of the infant that resulted from that attempt, and all testimony from or reference to the former patient involved in that delivery. The trial court thereafter granted the defendants' motion in limine. The plaintiff then withdrew her claim with regard to informed consent. [5] After the completion of the evidence, the jury returned a verdict in favor of the defendants. The plaintiff then filed a motion to set aside the verdict and for a new trial, which the court denied. Thereafter, the court rendered judgment in favor of the defendants in accordance with the verdict. The plaintiff appealed from the judgment of the trial court to the Appellate Court, claiming that the trial court improperly had granted the defendants' motion in limine to preclude evidence regarding Flagg's prior experience with vaginal birth after cesarean section, which the plaintiff claimed was relevant to informed consent. [6] *18 The Appellate Court reversed the judgment of the trial court with regard to the informed consent claim, concluding that the evidence related to Flagg's prior experience with vaginal birth after cesarean section was admissible to determine whether Flagg had obtained the plaintiff's informed consent. Duffy v. Flagg, supra, 88 Conn.App. at 493, 869 A.2d 1270 . Concluding that the trial court's error affected only the plaintiff's claim based on failure to obtain informed consent and did not warrant a new trial on the medical malpractice claim, the Appellate Court reversed the judgment of the trial court on the informed consent claim and remanded the case for a new trial solely on that claim. Id., at 495, 869 A.2d 1270 . Thereafter, we granted the defendants' petition for certification to appeal from the Appellate Court, limited to the following issue: "Did the Appellate Court properly reverse the trial court's ruling excluding certain evidence regarding the issue of informed consent?" Duffy v. Flagg, 274 Conn. 909 , 876 A.2d 1201 (2005). On appeal, the defendants claim that the Appellate Court improperly reversed the trial court's ruling excluding evidence of Flagg's prior experience with vaginal birth after cesarean section. Specifically, the defendants assert that the Appellate Court failed to apply Logan v. Greenwich Hospital Assn., 191 Conn. 282 , 292, 465 A.2d 294 (1983), and subsequent decisions, in which this court recognized that "informed consent involves four specific factors: (1) the nature of the procedure; (2) the risks and hazards of the procedure; (3) the alternatives to the procedure; and (4) the anticipated benefits of the procedure." Alswanger v. Smego, 257 Conn. 58 , 67-68, 776 A.2d 444 (2001), citing Logan v. Greenwich Hospital Assn., supra, at 292, 465 A.2d 294 . Instead, the defendants argue, the Appellate Court added an additional element to informed consent, namely an obligation on the part of a physician to disclose details of his or her professional experience even if this experience did not increase the risk to the patient. In response, the plaintiff contends that the Appellate Court properly reversed the trial court's ruling excluding evidence regarding Flagg's prior experience with vaginal birth after cesarean section. The plaintiff contends that information regarding Flagg's prior experience is relevant to informed consent because the plaintiff specifically asked Flagg about her experience with vaginal birth after cesarean section deliveries, Flagg withheld the fact that an infant previously had died during such a delivery and the plaintiff would not have attempted a vaginal birth had she known that Flagg previously had experienced an infant death during such a delivery. We agree with the defendants, and, accordingly, we reverse the judgment of the Appellate Court. We begin with the applicable standard of review. "The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court." (Internal quotation marks omitted.) Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145 , 156, 757 A.2d 14 (2000). Although ordinarily we review evidentiary claims pursuant to an abuse of discretion standard, the trial court's ruling on the motion in limine in the present case was based on its legal determination that Flagg's prior experience was not properly part of an informed *19 consent claim. "When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696 , 728, 894 A.2d 259 (2006). We must decide, therefore, whether the trial court was legally and logically correct when it decided, under the facts of the case, to exclude evidence regarding Flagg's prior experience with the procedure of vaginal birth after cesarean section. The following additional facts and procedural history are necessary to our resolution of this question. The defendants' motion in limine sought to preclude the plaintiff from introducing the following evidence: that a patient of Flagg's had experienced a uterine rupture during a prior vaginal birth after cesarean section delivery; the existence of a lawsuit against Flagg arising from the death of the infant that resulted from the uterine rupture; and any testimony from or reference to the former patient involved in that delivery. The basis for the motion was that the evidence regarding Flagg's prior experience with vaginal birth after cesarean section was not relevant to the plaintiff's medical malpractice action and that its prejudicial effect outweighed any probative value. In response, the plaintiff argued that the evidence was relevant to the plaintiff's informed consent claim because the plaintiff and Flagg had discussed Flagg's prior experience with vaginal birth after cesarean section and Flagg's experience played a key role in the plaintiff's decision to attempt a vaginal birth for the birth of her second child. Accordingly, the plaintiff argued that Flagg's prior experience and her candor in relating that experience to the plaintiff was relevant and admissible. During oral arguments on the motion in limine, the trial court asked the plaintiff's counsel for a proffer of the evidence that it planned to introduce. In response, the plaintiff's counsel indicated that he wanted to introduce evidence that, during a conversation between Flagg and the plaintiff regarding the risks of vaginal birth after cesarean section, the plaintiff had asked Flagg whether she had encountered any difficulty in her prior vaginal birth after cesarean section deliveries and Flagg stated that there had been a uterine rupture in one case, but did not say that the rupture had resulted in the death of the infant. The plaintiff's counsel further related that the plaintiff would testify that if she had been provided with information concerning the fact that Flagg had experienced a death of an infant during a vaginal birth after cesarean section delivery, rather than simply a uterine rupture, she would not have opted for that type of delivery. The plaintiff's counsel further proffered that the plaintiff would testify that, during this discussion with Flagg, she did not inquire further as to the consequences of the uterine rupture. The plaintiff's counsel also proffered that the plaintiff would testify that the risks of the vaginal birth after cesarean section were explained to her, including the risk of uterine rupture, and that she understood that one of the consequences of uterine rupture could be the death of the infant. The plaintiff would also testify that she discussed the consent forms with Flagg and other members of Crescent Street. In response to the trial court's inquiry, the plaintiff's counsel also acknowledged that there would be no evidence that Flagg's prior experience with vaginal birth after cesarean section increased the risk of harm to the plaintiff from such a procedure. After hearing the plaintiff's proffer and after argument from *20 all parties, the trial court granted the motion in limine and excluded evidence related to Flagg's prior experience with vaginal birth after cesarean section on the basis that Flagg's personal experience in performing the procedure was not relevant to an informed consent claim because it did not increase the risk of harm to the plaintiff. In reversing the judgment of the trial court, the Appellate Court found it critical that Flagg's alleged failure to provide information to the plaintiff was in response to a direct question from the plaintiff. The Appellate Court concluded that when a patient directly asks for information regarding a physician's prior experience and the physician fails to provide that information, the jury should be able to determine whether such failure supports a claim for lack of informed consent. See Duffy v. Flagg, supra, 88 Conn.App. at 493, 869 A.2d 1270 . We disagree. We begin our analysis with a brief review of the law of informed consent. "The informed consent doctrine derives from the principle that [e]very human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 278 Conn. 163 , 180, 896 A.2d 777 (2006). "Traditionally, a physician's duty to disclose information was measured by a `professional' standard which was set by the medical profession in terms of customary medical practice in the community. . . . [However, in] Logan v. Greenwich Hospital Assn., supra, [191 Conn. at] 292-93[, 465 A.2d 294 ], we adopted a `lay' standard and stated that under the doctrine of informed consent, a physician is obligated `to provide the patient with that information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy.'" (Citation omitted.) Lambert v. Stovell, 205 Conn. 1 , 5 n. 3, 529 A.2d 710 (1987). Our standard of disclosure for informed consent in this state is an objective standard that does not vary from patient to patient based on what the patient asks or what the patient would do with the information if it were disclosed. As this court stated in Logan, the lay standard of informed consent requires a physician "to provide the patient with that information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy." (Emphasis added.) Logan v. Greenwich Hospital Assn., supra, 191 Conn. at 292-93 , 465 A.2d 294 . In adopting the objective lay standard, this court recognized that "rather than impose on the physician an obligation to disclose at his peril whatever the particular patient might deem material to his choice, most courts have attempted to frame a less subjective measure of the physician's duty." (Emphasis added.) Id., at 292, 465 A.2d 294 , citing Canterbury v. Spence, 464 F.2d 772 , 787 (D.C.Cir.), cert. denied, 409 U.S. 1064 , 93 S. Ct. 560 , 34 L. Ed. 2d 518 (1972). We repeatedly have set forth the four elements that must be addressed in the physician's disclosure to the patient in order to obtain valid informed consent. "[I]nformed consent involves four specific factors: (1) the nature of the procedure; (2) the risks and hazards of the procedure; (3) the alternatives to the procedure; and (4) the anticipated benefits of the procedure." (Internal quotation marks omitted.) Janusauskas v. Fichman, 264 Conn. 796 , 810 n. 12, 826 A.2d 1066 (2003), quoting Alswanger v. Smego, supra, 257 Conn. *21 at 67-68, 776 A.2d 444 ; Logan v. Greenwich Hospital Assn., supra, 191 Conn. at 292 , 465 A.2d 294 . "We have noted that the cases on informed consent require something less than a full disclosure of all information which may have some bearing, however remote, upon the patient's decision." (Internal quotation marks omitted.) Pedersen v. Vahidy, 209 Conn. 510 , 522, 552 A.2d 419 (1989). Indeed, "the doctrine of informed consent is a limited one." Duttry v. Patterson, 565 Pa. 130 , 136, 771 A.2d 1255 (2001). The plaintiff's contention, that Flagg's prior experience with vaginal birth after cesarean section became relevant to informed consent because the plaintiff asked about Flagg's experience, is at variance with two fundamental principles of our informed consent jurisprudence in this state. First, the claim runs afoul of our adoption and consistent application of an objective standard of disclosure. We do not require a physician to disclose information that a particular patient might deem material to his or her decision, but, rather, limit the information to be disclosed to that which a reasonable patient would find material. Second, the information that the plaintiff sought to admit into evidence did not relate to any of the four specific factors encompassed by informed consent as we have defined it. Before granting the defendants' motion in limine, the trial court in the present case carefully ascertained that the plaintiff did not claim, and was not offering any evidence that, Flagg's prior experience with vaginal birth after cesarean section increased the risks or hazards of that procedure for the plaintiff. The evidence therefore had no relevance to any of the four established elements of informed consent in this state. We therefore conclude that the Appellate Court improperly reversed the judgment of the trial court. Our conclusion and reasoning are supported by the decisions of courts in several other states. The Supreme Court of Pennsylvania addressed this same issue in Duttry v. Patterson, supra, 565 Pa. 130 , 771 A.2d 1255 . In Duttry, the plaintiff brought an action against her physician alleging medical malpractice and lack of informed consent. Id., at 133, 771 A.2d 1255 . At trial, the plaintiff sought to introduce evidence demonstrating that the physician had misrepresented his experience with a certain medical procedure when he responded to the plaintiff's inquiry during a presurgery consultation. Id. The Pennsylvania Supreme Court upheld the trial court's ruling that the evidence concerning the physician's prior experience performing the procedure was inadmissible because "information personal to the physician, whether solicited by the patient or not, is irrelevant to the doctrine of informed consent." Id., at 137, 771 A.2d 1255 . The court acknowledged that the doctrine of informed consent "clearly focuses on imparting information relative only to the surgery itself"; id., at 136, 771 A.2d 1255 ; and reaffirmed that "[t]his is an objective, rather than subjective analysis; its calculus does not shift depending on how inquisitive or passive the particular patient is." Id., at 136-37, 771 A.2d 1255 . Indeed, the court cautioned that making evidence related to the physician's personal experience relevant whenever a particular patient requests such information is "highly problematic" and "divorced from the fundamental principle of the informed consent doctrine that information is material to the procedure at hand, and therefore must be divulged in order to obtain the patient's informed consent, if a reasonable person would wish to know it." Id., at 136, 771 A.2d 1255 ; see also Wlosinski v. Cohn, 269 Mich.App. 303, 308, 713 N.W.2d 16 (2005) ("physician has no duty to disclose to a patient the physician's *22 success rates for a particular medical procedure, and [the physician's] failure to advise the decedent of his success rates could not, as a matter of law, taint the patient's consent"); Whiteside v. Lukson, 89 Wash. App. 109 , 112, 947 P.2d 1263 (1997) (holding that physician does not have duty to disclose to patient information about physician's experience in performing proposed procedure in order to obtain patient's informed consent). [7] We agree with the reasoning of these courts, and reaffirm the objective standard of informed consent that is well established in our case law. The present case is also distinguishable from the Appellate Court's decision in DeGennaro v. Tandon, 89 Conn.App. 183, 873 A.2d 191 (2005). In DeGennaro, the Appellate Court concluded that there was sufficient evidence for the jury to determine that there was a lack of informed consent when the defendant dentist failed to disclose certain provider specific information to the plaintiff. Id., at 197, 873 A.2d 191 . Specifically, the defendant failed to inform the plaintiff of her inexperience with certain equipment that was used in the procedure to be performed on the plaintiff, that the defendant usually had an assistant present during this type of procedure, but would not have one present during the plaintiff's procedure, and that the defendant's office was not officially open for business at the time the procedure was performed. See id., at 185-87, 873 A.2d 191 . In ruling as it did, the Appellate Court concluded that such information should not be excluded from the dentist's duty to inform "simply because that information was provider specific as opposed to procedure specific." Id., at 191, 873 A.2d 191 . The evidence in DeGennaro, however, is distinctly different from the evidence at issue in the present case. In DeGennaro, the provider specific information was related to the "the risks posed by the circumstances under which the defendant performed the procedure" and was therefore relevant to one of the four established elements of informed consent in this state. Id., at 189, 873 A.2d 191 . Conversely, in the present case, there was absolutely no evidence that Flagg's prior experience with vaginal birth after cesarean section had any bearing on the risks to the plaintiff from the procedure or that it was otherwise relevant to any of the four established elements of informed consent. Accordingly, the Appellate Court's conclusion in DeGennaro does not conflict with our conclusion in the present case. The plaintiff asserts that in Janusauskas v. Fichman, supra, 264 Conn. at 811 , 826 A.2d 1066 , we previously determined that a physician's experience in performing a particular procedure is relevant to a *23 claim of lack of informed consent. The plaintiff's reliance on Janusauskas, however, is misplaced. First, the evidence involved in Janusauskas is distinguishable from the evidence at issue here. The evidence at issue in Janusauskas consisted of comments by the plaintiff's physician that he had had success with the proposed procedure on patients with a medical condition similar to the plaintiff's and his specific predictions as to the ultimate improvement that the procedure could have on the plaintiff's eyesight. Id. Therefore, the physician's comments were not strictly about the physician's prior experience performing the procedure, but were predictions as to the success of the plaintiff's surgery based on the physician's prior experience. These representations related to the plaintiff's surgery itself and essentially were information about the risks and benefits of the procedure, not information about the physician's prior experience with the procedure; it is undisputed that information related to the risks and benefits of a procedure is relevant to a claim of informed consent. See Logan v. Greenwich Hospital Assn., supra, 191 Conn. at 292 , 465 A.2d 294 ; see also Duttry v. Patterson, supra, 565 Pa. at 136 , 771 A.2d 1255 . Second, even if the evidence could be construed as prior experience evidence, we examined it in reference to the plaintiff's claim under the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. Therefore, we did not reach any conclusion as to whether a physician's experience in performing a particular procedure is relevant to a claim of lack of informed consent. To the contrary, we reaffirmed that "[i]nformed consent involves four specific factors . . . ." Janusauskas v. Fichman, supra, at 810 n. 12, 826 A.2d 1066 . The plaintiff further claims that if evidence regarding a physician's prior experience and/or his or her candor in revealing that experience is not relevant to an informed consent claim, then a physician will have no obligation to answer truthfully specific questions about his or her skills, qualifications, or experience. We disagree. Nothing in our ruling today suggests that a physician who misleads or misinforms his or her patient about the physician's skills, qualifications, or experience may not be liable in damages for misrepresentation. Our conclusion today is simply that we decline to expand the doctrine of informed consent to encompass answers to questions from a patient that are not relevant to the well established four factors that must be addressed in a physician's disclosure. When this court rules on the parameters of informed consent, we prescribe what each and every physician in this state must disclose to each of his or her patients. We therefore strive to establish a rule of general applicability based on the reasonable patient standard. Although physicians should answer each patient's questions accurately and candidly, we must be mindful not to expand unduly the contours of the informed consent doctrine such that physicians would lack a clear understanding of the scope of the disclosure that they must make, and patients thereby would be burdened with immaterial information that many might find confusing. Our adherence to the four factors of informed consent enunciated in Logan avoids these undesirable results. The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the trial court's judgment. In this opinion the other justices concurred. NOTES [1] Prior to trial, the plaintiff withdrew the action against another defendant, Middlesex Hospital. For purposes of this opinion, we refer to Flagg and Crescent Street as the defendants. [2] The plaintiff Kathleen Duffy commenced this action individually and as administratrix of the estate of Sage T. Warren, her daughter. For purposes of this opinion, we refer to Duffy in both capacities as the plaintiff. [3] Flagg testified at trial that she had performed approximately 200 vaginal birth after cesarean section deliveries during her career. [4] The consent form that the plaintiff signed included the following specific statements regarding the risk of harm to the plaintiff's infant: "I understand that [vaginal birth after cesarean section] is associated with a higher risk of harm to my baby than to me"; and "I understand that if my uterus ruptures during my [vaginal birth after cesarean section], there may not be sufficient time to operate and to prevent the death of or permanent brain injury to my baby." [5] The Appellate Court concluded that the plaintiff had preserved her right to challenge the trial court's ruling on the motion in limine because she did not waive her informed consent claim, but only voluntarily withdrew it in response to the court's ruling on the motion in limine, which precluded her from offering evidence regarding that claim. See Duffy v. Flagg, supra, 88 Conn.App. at 487-88 n. 4, 869 A.2d 1270 . We agree with the Appellate Court that the plaintiff did not waive her informed consent claim, on the basis of the following colloquy: "The Court: Alright, so the record will reflect that the claim of informed consent has been withdrawn by counsel, and will not be charged to the jury, nor will they be asked to make a decision on that basis. "[Plaintiff's Counsel]: And just so the record is clear, the reason that we're doing it is in view of the court's ruling, and I don't want to by virtue of having withdrawn it, waive any rights as to the issue on appeal. "The Court: I understand that. I assume that this is being done in anticipation that the court would not charge it to the jury in any event. So your rights are preserved to appeal the court's ruling in the event of an adverse outcome, on this specific issue. "[Plaintiff's Counsel]: That's right. Thank you, Your Honor." Accordingly, the issue properly was preserved for appeal. [6] In her appeal to the Appellate Court, the plaintiff originally raised other grounds for appeal in her brief, but withdrew those claims at oral argument. Those claims therefore were not decided by the Appellate Court. See Duffy v. Flagg, supra, 88 Conn.App. at 485-86 n. 3, 869 A.2d 1270 . [7] The trial court distinguished the present case from two cases in which courts in other states have concluded that evidence regarding the physician's prior experience is relevant to an informed consent claim if it increased the risks or hazards of the procedure for the plaintiff. First, in Howard v. University of Medicine & Dentistry of New Jersey, 172 N.J. 537 , 800 A.2d 73 (2002), the Supreme Court of New Jersey, although recognizing that "[c]ourts generally have held that claims of lack of informed consent based on a failure to disclose professional-background information are without merit"; id., at 555, 800 A.2d 73 ; held that a physician's prior experience may be relevant if it increased the risk to the patient from the procedure. Id., at 555-57, 800 A.2d 73 . Second, in Johnson v. Kokemoor, 199 Wis. 2d 615 , 640-41, 545 N.W.2d 495 (1996), the Wisconsin Supreme Court concluded that evidence regarding a physician's limited prior experience with a particular procedure was admissible for purposes of an informed consent claim when the plaintiff also introduced statistical evidence demonstrating that the physician's limited experience with this procedure increased the risk to the plaintiff. We agree that these cases are distinguishable from the present case. | opinion_html_with_citations | 4,728 | 2013-10-30 08:34:19.499673+00 | 010combined | f | f | 2,193,107 | Borden, Norcott, Palmer, Sullivan, Vertefeuille | null | LU | f | Published | 44 | Duffy v. Flagg | Duffy | Kathleen Duffy, Administratrix (Estate of Sage T. Warren), Et Al. v. Julie S. Flagg Et Al. | null | null | <parties data-order="0" data-type="parties" id="b704-3">
KATHLEEN DUFFY, ADMINISTRATRIX (ESTATE OF SAGE T. WARREN), ET AL.
<em>
v.
</em>
JULIE S. FLAGG ET AL.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b704-5">
(SC 17455)
</docketnumber><br><p data-order="2" data-type="judges" id="b704-6">
Borden, Norcott, Palmer, Vertefeuille and Sullivan, Js.
</p><br><otherdate data-order="3" data-type="otherdate" id="b705-4">
<span citation-index="1" class="star-pagination" label="683">
*683
</span>
Argued April 18
</otherdate><decisiondate data-order="4" data-type="decisiondate" id="AtTt">
officially released August 29, 2006
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b706-6">
<span citation-index="1" class="star-pagination" label="684">
*684
</span>
<em>
Charles W. Fleischmann,
</em>
with whom were
<em>
Madonna A. Sacco
</em>
and, on the brief,
<em>
PaulE. Pollock
</em>
and
<em>
David J. Robertson,
</em>
for the appellants (named defendant et al.).
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b706-7">
<em>
Antonio Ponvert III,
</em>
with whom was
<em>
James D. Hor-witz,
</em>
for the appellees (plaintiffs).
</attorneys> | null | null | null | null | null | null | 2,060,795 | SC 17455 | 0 | conn | S | t | Supreme Court of Connecticut | Supreme Court of Connecticut |
3,516,995 | * Corpus Juris-Cyc. References: Indictments and Informations, 31CJ, p. 821, n. 65; Intoxicating, 33CJ, p. 727, n. 22. This is an appeal by the state from a judgment sustaining a demurrer to an indictment. The indictment charged the appellee with the possession of a still "on the day of December, 1923." The ground of the demurrer, as set forth therein, is that: "The said indictment charges the defendant with no offense for the reason that said indictment fixes the date of the alleged offense as December, 1923, at a time when chapter 211 of the Laws of 1922 was in effect, and said indictment fails to negative the exceptions provided in said law." *Page 209 Chapter 211 of the Laws of 1922 prohibits any person from knowingly having in his possession a still or any part thereof, except under certain designated circumstances, the existence of which must be negatived in an indictment thereunder. State v. Speaks, 132 Miss. 159 , 96 So. 176 ; Dawsey v. State, 136 Miss. 18 , 100 So. 526 . This statute was amended by chapter 245, Laws of 1924, by adding thereto the following provision: "That in any indictment or presentment for any violation of this act it shall not be necessary to negative the exceptions herein contained; but such exceptions may be relied on as a defense and the burden of establishing the same shall be on the person or corporation claiming the benefits thereof." Ordinarily, the day of the commission of an offense alleged in an indictment is not material, and its commission on any day prior to the finding of the indictment may be proved (section 1428, Code of 1906 [section 1184, Hemingway's Code]; McCarty v. State, 37 Miss. 411 ; Miazza v. State, 36 Miss. 613 ; Oliver v. State, 101 Miss. 382 , 58 So. 6 ); but, on a demurrer to an indictment, all of the facts alleged therein, including the day of the commission of the offense, must be assumed to be true ( Hodnett v. State, 66 Miss. 26 , 5 So. 518 .). We must assume, therefore, that the offense here charged was committed in December, 1923, at which time chapter 211, Laws of 1922, was in force; consequently, the indictment is defective for the reason that it fails to negative the exceptions contained in that statute. Chapter 245, Laws of 1924, cannot be invoked in aid of the indictment for the reason that it places a greater burden upon defendants charged with the possession of a still than does chapter 211, Laws of 1922, and to apply it here would violate section 16 of the Constitution of this state, which prohibits ex post facto laws. The court below committed no error, as the attorney-general admits, in sustaining the demurrer, and its judgment in so doing will be affirmed. Affirmed. *Page 210 | opinion_html_with_citations | 477 | 2016-07-05 22:28:24.402312+00 | 020lead | f | f | 3,544,484 | Smith | null | ZU | f | Published | 10 | State v. Clark | null | State v. Clark. [Fn] | null | null | <parties id="b221-6">
State
<em>
v.
</em>
Clark.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
</parties><br><court id="b221-7">
(Division A.
</court><decisiondate id="Aid">
Suggestion of Error Overruled Nov. 29, 1926.)
</decisiondate><br><citation id="b221-8">
[110 So. 447.
</citation><docketnumber id="AdZ">
No. 25615.]
</docketnumber><br><attorneys id="b221-19">
<em>
J. A. Lauderdale,,
</em>
Assistant Attorney-G-eneral, for the state.
</attorneys><br><attorneys id="b222-7">
<span citation-index="1" class="star-pagination" label="208">
*208
</span>
<em>
Reporter’s
</em>
Notes: No brief submitted for the appellee.
</attorneys><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b221-15">
Corpus Juris-Cyc. References: Indictments and Informations, 31CJ, p. 821, n. 65; Intoxicating, 33CJ, p. 727, n. 22.
</p>
</div></div> | null | APPEAL from circuit court of Lafayette county; HON. T.E. PEGRAM, Judge. | null | null | null | null | 3,416,609 | No. 25615. | 0 | miss | S | t | Mississippi Supreme Court | Mississippi Supreme Court |
6,331,009 | Case: 20-61182 Document: 00516278598 Page: 1 Date Filed: 04/13/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED April 13, 2022 No. 20-61182 Summary Calendar Lyle W. Cayce Clerk Bolivar Chowa, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A213 475 442 Before Smith, Stewart, and Graves, Circuit Judges. Per Curiam:* Bolivar Chowa, a native and citizen of Cameroon, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) upholding the denial by the immigration judge (I.J.) of his application for asylum, with- holding of removal, and protection under the Convention Against Torture * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circum- stances set forth in 5th Circuit Rule 47.5.4. Case: 20-61182 Document: 00516278598 Page: 2 Date Filed: 04/13/2022 No. 20-61182 (“CAT”). According to Chowa, the BIA erred in affirming the denial of his claims for asylum and withholding of removal based on an adverse-credibility finding. Chowa has abandoned any challenge to the denial of his CAT claim by failing to brief the issue. See Yohey v. Collins, 985 F.2d 222 , 225 (5th Cir. 1993); see also Soadjede v. Ashcroft, 324 F.3d 830 , 833 (5th Cir. 2003). We review the BIA’s decision and consider the I.J.’s decision only to the extent that it influenced the BIA. See Zhu v. Gonzales, 493 F.3d 588 , 593 (5th Cir. 2007). Though legal questions are reviewed de novo, we review find- ings of fact for substantial evidence. Id. at 594 . Chowa has failed to show that the adverse-credibility determination is not supported by substantial evidence. See Morales v. Sessions, 860 F.3d 812 , 817 (5th Cir. 2017). The I.J. extensively analyzed the record evidence, and the BIA confirmed that the I.J. had set forth specific and cogent reasons, derived from the record, that supported the adverse-credibility determina- tion. See Singh v. Sessions, 880 F.3d 220 , 225 (5th Cir. 2018). Significantly, neither the I.J. nor the BIA was required to accept even plausible explanations for the plain inconsistencies in Chowa’s story. See Santos-Alvarado v. Barr, 967 F.3d 428 , 438–39 (5th Cir. 2020). Although the BIA apparently erred in describing one of the inconsistencies noted by the I.J., it is not clear, from the totality of the circumstances, that no reasonable factfinder could make an adverse-credibility ruling. See Morales, 860 F.3d at 817. Without credible evidence, there is no basis to analyze Chowa’s con- tentions in favor of his claims for asylum and withholding of removal. See Chun v. INS, 40 F.3d 76 , 79 (5th Cir. 1994). Accordingly, the petition for review is DENIED. 2 | opinion_html_with_citations | 469 | 2022-04-13 18:00:21.24493+00 | 010combined | f | f | 6,458,898 | null | Immigration | C | t | Unpublished | 0 | Chowa v. Garland | Chowa | null | null | null | null | null | null | null | null | null | null | 63,233,450 | 20-61182 | 0 | ca5 | F | t | Fifth Circuit | Court of Appeals for the Fifth Circuit |
2,729,050 | Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: MARIELENA DUERRING GREGORY F. ZOELLER Duerring Law Offices Attorney General of Indiana South Bend, Indiana KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana FILED IN THE Nov 01 2012, 9:12 am COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court DARRIUS WOODS, ) ) Appellant-Defendant, ) ) vs. ) No. 20A03-1202-CR-90 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. ) APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable George W. Biddlecomb, Judge Cause No. 20D03-0810-FA-50 November 1, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION BRADFORD, Judge Appellant-Defendant Darrius Woods appeals his conviction for Class A felony dealing in cocaine.1 Specifically, Woods contends that the trial court erred in admitting certain evidence at trial and that the evidence is insufficient to sustain his conviction. We affirm. FACTS AND PROCEDURAL HISTORY At all times relevant to the instant appeal, the City of Elkhart (“City”) had a noise ordinance which prohibited loud noises that could be heard from more than thirty-five feet away. At approximately 6:00 p.m. on October 10, 2008, Corporal Michael Bogart of the Elkhart City Police Department was parked in his marked police vehicle in the parking lot of a local establishment near the intersection of Main and Prairie Streets. Corporal Bogart was in the area observing traffic in response to multiple complaints about violations of the City’s noise ordinance. Corporal Bogart, whose vehicle was parked approximately fifty to sixty feet from the intersection, heard loud, thumping music that was loud enough to violate the City’s noise ordinance and determined that the music was coming from a blue Oldsmobile station wagon that was travelling northbound on Main Street. After determining that the noise was coming from the blue Oldsmobile station wagon, Corporal Bogart pulled out of the parking lot directly behind the station wagon, turned on his police lights, and gave a short burst of his siren. Corporal Bogart followed the station wagon for approximately two blocks before the driver of the station wagon pulled over and stopped. While following the station wagon, Corporal Bogart observed the driver of the station wagon “raising up in his seat and reaching up and underneath him” as if the driver was attempting to 1 Ind. Code §§ 35-48-4-1 (a)(2)(C); -1(b)(1) (2008). 2 retrieve or conceal something. Tr. p. 182. At this point, Corporal Bogart became concerned for his safety because, in light of his training and experience as a police officer, he knew that individuals often attempt to conceal weapons and drugs during traffic stops. After the driver of the station wagon pulled into the parking lot of a restaurant and stopped, Corporal Bogart approached the driver’s side of the station wagon and recognized the driver as Woods. Corporal Bogart explained the reason for the stop to Woods, i.e., a violation of the City’s noise ordinance, and requested Woods’s driver’s license and registration. Corporal Bogart provided Woods’s name and license registration to dispatch for the purpose of checking the status of Woods’s driver’s license and determining whether there were any active warrants for Woods’s arrest. In light of the suspicious movements that Corporal Bogart observed while following Woods, which again, made Corporal concerned for his safety, Corporal Bogart asked Woods to exit the vehicle while waiting for dispatch to verify Woods’s information. As Woods was stepping out of the station wagon, dispatch radioed Corporal Bogart and informed him that there were four potential local warrants for Woods’s arrest. Corporal Bogart then conducted an outer clothing pat down of Woods’s person, during which he felt an object in Woods’s right pant leg “that, obviously, was not part of his anatomy.” Tr. p. 187. Corporal Bogart was able to move the item “down from – from the outside of his clothes, [it] moved out and just fell to the ground.” Tr. p. 190. Corporal Bogart observed that the item that fell from Woods’s pant leg was a clear plastic bag containing an off-white, rock-like substance which, based on his training and experience, he recognized as crack 3 cocaine. Corporal Bogart also discovered approximately $322 or $332 in cash in Woods’s pant pocket. Dispatch subsequently confirmed that there were four active local warrants for Woods’s arrest. Woods was placed under arrest for the possession of cocaine and also because of the four local warrants. Corporal Bogart subsequently tested the off-white rock- like substance and discovered that it was in fact crack cocaine. On October 15, 2008, the State charged Woods with Class A felony dealing in cocaine. On April 27, 2010, Woods filed a motion to suppress the evidence obtained as a result of the traffic stop. The trial court conducted a hearing on Woods’s motion to suppress on August 5, 2010 and September 2, 2010, after which it denied Woods’s motion. At trial, Woods again objected to the admission of the evidence obtained as a result of the traffic stop, reiterating the reasons presented in his motion to suppress. The evidence was admitted over Woods’s objection. At the conclusion of trial, the jury found Woods guilty as charged. On February 22, 2012, the trial court sentenced Woods to forty years in the Department of Correction. The trial court further ordered that Woods’s sentence in the instant matter be served consecutive to the sentence imposed under an unrelated cause number. This appeal follows. DISCUSSION AND DECISION I. Admission of Evidence Woods contends that the trial court erred in denying his motion to suppress the evidence obtained during the traffic stop. Although Woods originally challenged the admission of the evidence through a motion to suppress, he appeals following a completed 4 trial and thus challenges the admission of the evidence at trial. “Accordingly, ‘the issue is more appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial.’” Cole v. State, 878 N.E.2d 882 , 885 (Ind. Ct. App. 2007) (quoting Washington v. State, 784 N.E.2d 584 , 587 (Ind. Ct. App. 2003)). Our standard of review for rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by an objection at trial. Ackerman v. State, 774 N.E.2d 970 , 974- 75 (Ind. Ct. App. 2002), reh’g denied, trans. denied. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Collins v. State, 822 N.E.2d 214 , 218 (Ind. Ct. App. 2005), trans. denied. We also consider uncontroverted evidence in the defendant’s favor. Id. Id. A trial court has broad discretion in ruling on the admissibility of evidence. Washington, 784 N.E.2d at 587 (citing Bradshaw v. State, 759 N.E.2d 271 , 273 (Ind. Ct. App. 2001)). Accordingly, we will reverse a trial court’s ruling on the admissibility of evidence only when the trial court abused its discretion. Id. (citing Bradshaw, 759 N.E.2d at 273 ). An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court. Id. (citing Huffines v. State, 739 N.E.2d 1093 , 1095 (Ind. Ct. App. 2000)). Woods argues that the trial court abused its discretion in admitting the evidence stemming from the traffic stop because the evidence was discovered in violation of his constitutional rights under both Article I, Section 11 of the Indiana Constitution and the Fourth Amendment to the United States Constitution. In raising these constitutional 5 challenges, Woods challenges the legality of both the traffic stop and the subsequent warrantless search of his person. A. Article I, Section 11 With respect to Article I, Section 11, Woods contends that the evidence discovered during the traffic stop should have been excluded from trial because the evidence is the fruit of an illegal traffic stop. Article I, Section 11 provides, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated....” The purpose of this article is to protect from unreasonable police activity those areas of life that Hoosiers regard as private. Moran v. State, 644 N.E.2d 536 , 540 (Ind. 1994). The provision must receive a liberal construction in its application to guarantee the people against unreasonable search and seizure. Brown v. State, 653 N.E.2d 77 , 79 (Ind. 1995). In resolving challenges asserting a Section 11 violation, courts must consider the circumstances presented in each case to determine “whether the police behavior was reasonable.” Id. We place the burden on the State to show that under the totality of the circumstances its intrusion was reasonable. State v. Bulington, 802 N.E.2d 435 , 438 (Ind. 2004). State v. Quirk, 842 N.E.2d 334 , 339-40 (Ind. 2006). Thus, we are called upon to determine whether the traffic stop was reasonable under the totality of the circumstances. See id. at 340 . Woods argues that “the pretextual stop facilitated by a mere ordinance violation ‘of questionable validity’ was not reasonable in light of the circumstances and violated Woods [sic] rights under Article I, Section 11 of the Indiana Constitution.” Appellant’s Br. p. 7 (emphasis omitted). In support, Woods relies on Turner v. State, 862 N.E.2d 695 (Ind. Ct. App. 2007), in which a panel of this court concluded that the trial court abused its discretion 6 in admitting evidence recovered as a result of a traffic stop because the stated reason for the stop, i.e., speeding, was pretextual and unreasonable under the circumstances. In making this conclusion, the Court stated that although the officer estimated Turner’s speed at fifty-five miles per hour, the officer did not know the speed limit in the area where he stopped Turner. Id. at 70. Turner, however, can be easily distinguished from the instant matter. In Indiana, it is well-settled that “[a] police stop and brief detention of a motorist is reasonable and permitted under [Article I,] Section 11 if the officer reasonably suspects that the motorist engaged in, or [is] about to engage in, illegal activity.” Quirk, 842 N.E.2d at 340 (citing Mitchell v. State, 745 N.E.2d 775 , 786 (Ind. 2001)). A stop is lawful if there is an objectively justifiable reason for it, and the stop may be justified on less than probable cause. [Jackson v. State, 785 N.E.2d 615 , 619 (Ind. Ct. App. 2003), trans. denied.] If there is an objectively justifiable reason, then the stop is valid whether or not the police officer would have otherwise made the stop but for ulterior suspicions or motives. Id. Turner, 862 N.E.2d at 699-700 . Here, unlike in Turner, Corporal Bogart had an objectively justifiable reason for stopping Woods’s vehicle. Corporal Bogart had specific knowledge of the City’s noise ordinance and could readily identify violations of said noise ordinance. Corporal Bogart testified that individuals violating the City’s noise ordinance could be given a citation and fine. Under the circumstances surrounding the stop of Woods’s vehicle, Corporal Bogart both heard the violation and determined the source of the violation before initiating the traffic stop. Because Corporal Bogart had a justifiable reason for stopping Woods’s vehicle, we conclude that the traffic stop was valid and did not violate Woods’s rights under Article I, 7 Section 11. B. The Fourth Amendment Woods also argues that the trial court abused its discretion because the traffic stop and subsequent pat down search were conducted in violation of the Fourth Amendment. The Fourth Amendment provides “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches or seizures shall not be violated.” The Fourth Amendment prohibits unreasonable searches and seizures. Burkes v. State, 842 N.E.2d 426 , 429 (Ind. Ct. App. 2006), trans. denied. The Fourth Amendment regulates nonconsensual encounters between citizens and law enforcement officials and does not deal with situations in which a person voluntarily interacts with a police officer. A full-blown arrest or a detention that lasts for more than a short period of time must be justified by probable cause. A brief investigative stop may be justified by reasonable suspicion that the person detained is involved in criminal activity. Terry v. Ohio, 392 U.S. 1 , 31, 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). Finger v. State, 799 N.E.2d 528 , 532 (Ind. 2003). A police officer may stop and briefly detain a person for investigative purposes under Terry so long as the officer has a reasonable suspicion, supported by articulable facts, that criminal activity may be afoot. Bratcher v. State, 661 N.E.2d 828 , 830 (Ind. Ct. App. 1996) (citing Terry, 392 U.S. 1 ). 1. Legality of Traffic Stop2 “Because a traffic stop is a seizure under the Fourth Amendment, police may not 2 Although Woods does not make arguments regarding the legality of the traffic stop under the Fourth Amendment separate from those relating to his state constitutional claim, Woods does make a general assertion that the allegedly illegal traffic stop violated both his state and federal constitutional rights. As such, we will review the legality of the traffic stop under the Fourth Amendment. 8 initiate a stop for any conceivable reason, but must possess at least reasonable suspicion that a traffic law has been violated or that other criminal activity is taking place.” Meredith v. State, 906 N.E.2d 867 , 869 (Ind. 2009). Reasonable suspicion exists where the facts known to the officer at the moment of the stop, together with the reasonable inferences arising therefrom, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur. Burkes, 842 N.E.2d at 429-30 . In deciding whether there was reasonable suspicion for a stop, we look to the totality of the circumstances of a given case. Id. at 430 . “An officer’s decision to stop a vehicle is valid so long as his on-the-spot evaluation reasonably suggests that lawbreaking occurred.” Meredith, 906 N.E.2d at 870. In the instant matter, the record demonstrates that at the time of the stop, Corporal Bogart had reasonable suspicion to believe that Woods was violating the City’s noise ordinance. Corporal Bogart had specific knowledge of the City’s noise ordinance and could readily identify violations of said noise ordinance. Under the circumstances surrounding the traffic stop, Corporal Bogart both heard the violation and determined the source of the violation before initiating the traffic stop. As such, we conclude that the traffic stop was valid and did not violate Woods’s rights under the Fourth Amendment because Corporal Bogart’s on-the-spot evaluation reasonably suggested that Woods was violating the City’s noise ordinance. See id. 2. Legality of Search3 3 Woods does not make a separate claim that the pat-down search was an unlawful search that violated his rights under Article I, Section 11. As such, we will analyze Woods’s claim relating to the pat down search under only the Fourth Amendment. 9 Having concluded that the initial traffic stop was proper, we must consider whether the subsequent pat down search was permissible. A judicially issued search warrant is a condition precedent to a lawful search. “Searches conducted outside the judicial process are per se unreasonable unless subject to a few well delineated exceptions.” Minnesota v. Dickerson, 508 U.S. 366 , 372, 113 S.Ct. 2130 , 124 L.Ed.2d 334 (1993). The state has the burden of demonstrating the existence of one of these exceptions. One such exception to the warrant requirement is: when a police officer makes a Terry stop, if he has reasonable fear of danger, he may conduct a carefully limited search of the outer clothing of the suspect in an attempt to discover weapons that might be used to harm him. Shinault v. State, 668 N.E.2d 274 , 277 (Ind. Ct. App. 1996). An officer’s authority to conduct a pat down search is dependent upon the nature and extent of his particularized concern for his safety. Wilson v. State, 745 N.E.2d 789 , 792 (Ind. 2001). Williams v. State, 754 N.E.2d 584 , 587-88 (Ind. Ct. App. 2001). In conducting a Terry search, the officer need not be absolutely certain that an individual was armed but only that a reasonably prudent man in the same circumstances would be warranted in believing that his safety or that of others was in danger. Bratcher, 661 N.E.2d at 831 (citing Terry, 392 U.S. at 27 ). Here, Corporal Bogart testified that he conducted a limited pat down search of Woods’s outer clothing because he feared that Woods could be armed.4 After Corporal Bogart initiated the traffic stop by pulling out behind Woods and initiating his police lights and siren, Woods continued to drive for approximately two blocks before stopping. During this time, Corporal Bogart, who was traveling in the vehicle immediately behind the vehicle 4 Woods argues on appeal that Corporal Bogart’s search was not just of his outer clothing, but that Corporal Bogart reached into his pant pocket. The record demonstrates, however, that Corporal Bogart’s initial search was only of Woods’s outer clothing and that he did not reach into Woods’s pocket until after Woods gave him permission to do so. 10 driven by Woods, observed Woods make furtive movements which, based on his experience as a police officer, he knew to be consistent with an attempt to conceal contraband, often a weapon. Woods’s movements prior to stopping were such that Corporal Bogart felt it necessary to call for back up assistance due to his officer safety concerns. Corporal Bogart testified that he requested that Woods exit the vehicle and conducted the outer clothing pat down search in order to determine whether Woods was armed. We conclude that Wood’s movement of “raising up in his seat and reaching up and underneath him” as if trying to conceal something warranted Corporal Bogart’s reasonable fear for his safety and the subsequent pat down search. Moreover, to the extent that Woods argues that the seizure of the cocaine was illegal because Corporal Bogart could not have believed the contraband concealed in his pant leg to be a weapon, we note that a police officer may seize contraband if, during a lawful pat down of a suspect’s clothing, he feels an object whose contour or mass makes its identity immediately apparent. Williams, 754 N.E.2d at 588 . Here, during the pat down of Woods’s outer clothing, Corporal Bogart felt an object in Wood’s right pant leg “that, obviously, was not part of his anatomy.” Tr. p. 187. The contour or the mass of the cocaine made its identity immediately apparent to Corporal Bogart, and, as a result, Corporal Bogart could seize the contraband. Williams, 754 N.E.2d 588 . Furthermore, even if Woods movements were insufficient to justify a search because of officer safety concerns, the admission of the cocaine discovered during the pat down search would be proper if it was inevitable that the cocaine would be discovered. “The 11 inevitable discovery exception to the exclusionary rule permits the introduction of evidence that eventually would have been located had there been no error.” Shultz v. State, 742 N.E.2d 961 , 965 (Ind. Ct. App. 2011) (internal quotations omitted). “For that instance, there is no nexus sufficient to provide a taint.” Id. (internal quotations omitted). “Thus, if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means …then … the evidence should be received.” Banks v. State, 681 N.E.2d 235 , 240 (Ind. Ct. App. 1997) (internal quotation omitted). “Anything less would reject logic, experience, and common sense.” Id. (internal quotation omitted). Here, the record demonstrates that there were four active local warrants for Woods’s arrest. Woods was ultimately arrested on these warrants in addition to his possession of the cocaine found during the pat down search. A more thorough inventory search of Woods was subsequently conducted following his arrest. As such, we believe that it is inevitable that officers would have found the cocaine during the search of Woods conducted following his arrest on the active warrants. See generally Wilson v. State, 754 N.E.2d 950 , 956 (Ind. Ct. App. 2001) (providing that one recognized exception to the warrant requirement is a search conducted incident to a lawful arrest). Any evidence discovered during the search incident to Woods’s arrest is admissible at trial. Id. (providing that evidence resulting from a search incident to a lawful arrest is admissible at trial). Accordingly, the trial court acted within its discretion in admitting the cocaine found during the pat down search because it was inevitable that the cocaine would have been discovered during the search incident to Woods’s 12 arrest on the four active, local warrants. See generally Shultz, 742 N.E.2d at 965. II. Sufficiency of the Evidence Woods also contends that the evidence is insufficient to sustain his conviction for Class A felony dealing in cocaine. When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction.… The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Drane v. State, 867 N.E.2d 144 , 146-47 (Ind. 2007) (citations, emphasis, and quotations omitted). “In essence, we assess only whether the verdict could be reached based on reasonable inference that may be drawn from the evidence presented.” Baker v. State, 968 N.E.2d 227 , 229 (Ind. 2012). Upon review, appellate courts do not reweigh the evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433 , 435 (Ind. 2002). Inconsistencies in witness testimony go to the weight and credibility of the testimony, “the resolution of which is within the province of the trier of fact.” Jordan v. State, 656 N.E.2d 816 , 818 (Ind. 1995). Indiana Code section 35-48-4-1(a)(2)(C) provides that “[a] person who … possesses, with intent to … deliver … cocaine … commits dealing in cocaine.” Indiana Code section 35-48-4-1(b)(1) further provides that “[t]he offense is a Class A felony if: (1) the amount of the drug involved weighs three (3) grams or more.” Thus in order to prove that Woods committed Class A felony dealing in cocaine, the State was required to prove that Woods 13 possessed more than three grams of cocaine with the intent to deliever. In the instant matter, Woods acknowledges that the evidence is sufficient to prove that he possessed 5.03 grams of cocaine. Woods, however, argues that the State failed to prove that he possessed the cocaine with the intent to deliver. In making this argument, Woods asserts that the cocaine was packaged in one single “baggy,” that “[t]here was no packaging material found either on Woods, or in his vehicle[,]” and that “[t]here were no ledgers, scales or other items commonly found in the vicinity of a drug dealer found either in the car, or on Woods himself.” Appellant’s Br. p. 13. Woods also asserts that he had been kicked out of his parents’ home because of his drug use and had provided an explanation for the cash found on his person that was unrelated to the cocaine found in his pant leg. Thus, Woods claims that the State failed to prove that he intended to deliver the cocaine because his possession of the 5.03 grams of cocaine is consistent with personal use. Circumstantial evidence showing possession with intent to deliver may support a conviction. Possessing a large amount of a narcotic substance is circumstantial evidence of intent to deliver. The more narcotics a person possesses, the stronger the inference that he intended to deliver it and not consume it personally. Love v. State, 741 N.E.2d 789 , 792 (Ind. Ct. App. 2001) quoting Berry v. State, 574 N.E.2d 960 , 963 (Ind. Ct. App. 1991) (citations omitted), trans. denied. Davis v. State, 791 N.E.2d 266 , 270 (Ind. Ct. App. 2003). Here, the record demonstrates that Woods possessed approximately 5.03 grams of cocaine and over $300 in cash. The cocaine was packaged in the corner of a single plastic baggie. Office David Clendenen of the Goshen City Police Department and the Elkhart County Interdiction Covert Enforcement Unit (“ICE Unit”) testified that the “typical does of 14 crack cocaine, that you buy on the street, at the street level, is what [is] call[ed] as “20-rock” is … about 0.2 grams” and cost approximately “twenty bucks.” Tr. pp. 264, 267. Officer Clendenen testified that in his experience as a drug interdiction officer, 5.03 grams of cocaine is more consistent with an amount that would be possessed by a drug dealer rather than a typical drug user, that possession of any amount of cocaine “over, roughly, three or four grams, is a significant amount[,]” and that drug users do not typically buy cocaine in bulk. Tr. p. 265. Officer Clendenen further testified that, again in his experience as a drug interdiction officer, drug users typically have paraphernalia used to ingest the cocaine on their persons, but that drug dealers typically do not. In Davis, this court concluded that the possession of 5.6225 grams of cocaine was consistent with the amount possessed by a dealer, rather than for strictly personal use. Id. Here, Woods possessed an amount similar to that possessed by the defendant in Davis. As such, we conclude that the possession of 5.03 grams of cocaine is circumstantial evidence of the intent to deliver sufficient to support an inference that Woods intended to deliver the cocaine rather than use it person consumption. See id. We further conclude that this evidence, when considered with the fact that Woods did not possess any paraphernalia by which he could ingest the cocaine at the time of his arrest, coupled with Officer Clendenen’s testimony that 5.03 grams is a significant amount of cocaine and a dealer would not typically possess any paraphernalia, is sufficient to support the inference that Woods possessed the cocaine with the intent to deliver. Woods claim to the contrary effectively amounts to an invitation to reweigh the evidence, which, again, we will not do. See Stewart, 768 N.E.2d at 15 435. The judgment of the trial court is affirmed. ROBB, C.J., and BAKER, J., concur. 16 | opinion_html_with_citations | 4,405 | 2014-09-08 21:38:34.377891+00 | 010combined | f | f | 2,729,050 | null | null | C | f | Unpublished | 0 | Darrius Woods v. State of Indiana | null | null | null | null | null | null | null | null | null | null | null | 1,202,177 | 20A03-1202-CR-90 | 0 | indctapp | SA | t | Indiana Court of Appeals | Indiana Court of Appeals |
6,237,262 | Mr. Justice Mercur delivered the opinion of the court, November 20th 1882. Both parties claim title to this land under sheriff’s sale as the property of James Strouss. The defendant purchased at a sale made in December 1815, the plaintiff at one made in March 1880. The plaintiff seeks to impeach the validity of the first sale *411on the ground that it was made in fraud of the creditors of Strouss. The law presumes that a public judicial sale is made in good faith. This presumption stands, unless overthrown by clear and satisfactory evidence of fraud or unfair means. The contention was one of fact. Much evidence Avas given bearing on the question, and some of it conflicting. The learned judge submitted the case to the jury in a clear and correct charge. He instructed them that if the sheriff’s sale was made with the intention of hindering, delaying or defeating creditors, and the purchaser had knowledge of such, it was null and void, although the full value of the property may have been paid; that a sheriff’s sale should be free, open and untainted by fraud ; that any trick or device of a purchaser which prevents a fair sale is a fraud on creditors, and if by means of it he gets the property at less than it otherwise would have sold for, he does not obtain a good title, and it may be defeated by a subsequent sale of the property on the judgment of another creditor. To work this result the purchaser must have been guilty of some falsehood or trick before or at the time of the sale which succeeded, and he must have obtained the property for less than it otherwise would have sold. All of these are essential elements to defeat the title of the purchaser. A mere fraudulent intent or effort if not successful is not sufficient, nor is the mere fact that the property was purchased at less than its value. We think the plaintiff has no reason to complain of this declaration of the law. No error is assigned thereto. Then, as to the application of the evidence tending to establish the fraud, the court affirmed a point of the plaintiff put in these words, “ under the plaintiff’s evidence tending to prove fraud on the part of the defendant, the jury will consider all the separate facts in evidence, whether each fact of itself would be sufficient or not to fasten fraud on her in the premises; and they may consider separate facts, if they are connected by the evidence and tend to prove that the [defendant entered into and carried out a scheme or plan, to purchase the land in dispute at an under value, and for the benefit of herself, and also for the benefit of James Strouss or his family.” We do not deem it necessary to consider seriatim the twenty-five specifications of error. We do not think the article of agreement Avas prima facie fraudulent as to creditors; nor do we see any error in the rejection of evidence. A wide range was given to its admission. A careful reading of it has led us to the conclusion that the portions of the charge and answer to which we have referred, fairly presented the substantial features of the case to the jury. We discover nothing which calls for a reversal. Judgment affirmed. | opinion_xml_harvard | 567 | 2022-02-17 20:35:32.092114+00 | 020lead | t | f | 6,368,396 | Gordon, Green, Mercur, Paxson, Sharswood, Sterrett, Trunkey | null | U | f | Published | 0 | Barton v. Hunter | Barton | Barton versus Hunter | <p>Error to the Court of Common Pleas No. 2 of Allegheny county: Of October Term 1882, No. 160.</p> <p>Ejectment, by E. L. Barton, against Annie E. S. Hunter, administratrix of Pev. Wm. Hunter deceased, and others, for a certain tract of land in B&aver and Allegheny counties containing about 142 acres. Both parties claimed title as purchasers at sheriff’s sales of the land, as the property of James Strouss; the defendant at a sale held in 1875, and the plaintiff at one held in 1880.</p> <p>On the trial, before White J., the following facts appeared; In 1875 the land in question was owned by James Strouss, against whom there had been numerous judgments entered, some of which were recorded in both said counties, for money due the estate of Wm. Hunter deceased, and others. In the winter or spring of this year Strouss visited Mrs. Hunter, for the purpose of procuring an additional loan from her, but subsequently the following agreement was entered into between the said James Strouss, and Mrs. Hunter and Amos W. Enlow another creditor.</p> <p>“This agreement made this third day of May 1875, between ....</p> <p>“Witnesseth that the said James Strouss, in consideration of the covenants on the part of the parties of the second part hereinafter contained, doth covenant and agree to and with the said Amos Enlow and Annie E. S. Hunter, adm’x, that he will not dispute any claims of the said parties which stand upon the file of liens in Allegheny and Beaver counties against him, but will permit all his property and real estate to be put to sale by the sheriff of either of said counties as soon as it can be done by due process of law, and that he will not interpose any hindrance thereto, and that he will give up all receipts now in his possession for moneys that have been paid upon any liens against him which have not been receipted on the docket in the Prothonotary’s office in said counties.</p> <p>“ And the said Amos Enlow and Annie E. S. Hunter, adm’x, in consideration of the covenants on the part of the party of the first part, do covenant and agree to and with the said James Strouss that they will either purchase the property and real estate aforementioned at the sale of the same made by the sheriff, or cause it to bring a fair and sufficient value if it be sold to any other parties, and further that they will, on condition of purchasing the property aforesaid, put the same to resale with payments on time, and then, after all claims of their own are liquidated, both principal and interest, they will.place all remaining proceeds of the sale in the hands of any member of the family of said James Strouss that he may designate, and further that they will pay to the said James Strouss two hundred dollars on or before the first day of , one thousand eight hundred and seventy five.</p> <p>“In witness whereof we have hereunto set our hands and seals the day and year first above written.</p> <p>“ Sealed and delivered James Strouss. [l. s.] in presence of the A. W. Enlow. [l. s.]</p> <p>Annie E. S. Hunter, [l. s.]”</p> <p>On March 5th 1875, in pursuance of this agreement Mrs. Hunter issued execution on one of the judgments held by her as administratrix and in December of the same year at the sheriff’s sale, which had been adjourned from September, she bought the property for §4,550 being about $31.50 per acre. After the sale Mrs. Hunter obtained, for cash and notes, assignments to herself of the several judgments, which were prior liens to her own against the premises, and in the sheriff’s return the $4,550 was first appropriated to the payment of these liens, and then on account of her other judgments some of which were not reached. Strouss retained possession of the property for a time but was subsequently dispossessed at the instance of the defendants, by sheriff’s jury.</p> <p>In 1880 other creditors who held judgments against Strouss subsequent to Mrs. Hunter’s issued execution and had the property sold again by the sheriff, claiming that the sale in 1875 under the above agreement, was a fraud on the other creditors and void. At this sale, in 1880, E. L. Barton the plaintiff, acting as trustee for the other creditors, purchased the property.</p> <p>The plaintiff submitted inter alia, the following points:</p> <p>(1) “ That the article of agreement of May 31st 1875, in evidence, is prima facie fraudulent as to creditors.” Refused.</p> <p>(2) “That any title to the property of James Strouss acquired by the defendant under the terms and conditions and in pursuance of the terms of the agreement of May 31st 1875, in evidence, is absolutely null and void as against bona fide creditors of the said James Strouss.” Refused.</p> <p>(14) That under the plaintiff’s evidence tending to prove fraud on part of the defendant in this case, the jury will consider all the separate facts in evidence, whether each fact of itself would be sufficient or not to fasten fraud upon her in the premises, and they may consider separate facts, if they are connected by the evidence, and tend to prove that the defendant entered into and carried out a scheme or plan, to purchase the land in dispute at an undervalue, and for the benefit of herself and also the benefit of James Strouss or his family. Affirmed.</p> <p>In the general charge the court instructed the jury inter alia as follows:</p> <p>“ A sheriff’s sale should be free, open and untainted by fraud. Any trick or device of a purchaser which prevents a fair sale is a fraud upon creditors, and if by means of it he gets the property at less than it otherwise would have sold for he does not obtain a good title and it may be defeated by a subsequent sale of the property on the judgment of another creditor. To work this result, however, the purchaser must have been guilty of some falsehood or trick before or at the time of the sale which succeeded, and he must have obtained the property for less than it otherwise would have sold for. All of these are essential elements to defeat the title of the purchaser. A mere fraudulent intent or effort, if not successful, is not sufficient, nor is the mere fact that the property was purchased at less than its value.</p> <p>Plaintiff’s counsel have asked me to instruct you that the agreement of May 31st 1875, is fraudulent on its face. We decline to give you such instructions. We say to you that it is not necessarily fraudulent, and further that we see nothing in it indicating an intention to cheat creditors or prevent a fair sale of the property. It does not bind Mrs. Hunter and Enlow, or Strouss, to do anything illegal and improper. Evidently drawn by one not much accustomed to draw such papers, it is full on unimportant matters and indefinite on those more vital. Why Strouss agreed not to dispute the claims of Enlow and Mrs. Hunter, and for what purpose he gave up the receipts, is not .apparent, nor why they were to pay him $200. It is not to be simply inferred that these were fraudulent acts or for a fraudulent purpose. They seem rather to be in the nature of a compromise between the parties of some matter's in dispute. What receipts were to be given up? Against the judgments of Enlow and Mrs. Hunter or on former judgments ? And were they given up to enable Enlow and Mrs. Hunter to protect themselves from unjust claims of prior creditors, or to enable them to practice a fraud upon other creditors ? When an agreement may be construed for an honest purpose a jury should not guess that it was intended for a fraudulent one. What was the $200 to be paid for? To secure the co-operation of Strouss in any fraud, as a loan or gratuity to him, or to avoid a factious and exactions opposition to the collection of honest claims against him ? The inference should not be in favor of dishonesty but rather of honesty. The burden of proof is on the plaintiff to show an improper or fraudulent purpose in the agreement. It is only in the light of the surrounding circumstances that we can understand its real object, and for that reason we refuse to say it is prima facie fraudulent, but submit the question to you upon all the evidence in the case. The provision to re-sell the property, and after paying the defendants’ claims, place the surplus, if any, in the hands of such member of the Strouss family as he might designate, if honestly made for the benefit of his family, and not for the purpose of hindering or delaying creditors or interfering with a fair sheriff’s sale, was not fraudulent, and would not render the defendant’s purchase at the sheriff’s sale void as to the other creditors.</p> <p>Verdict and judgment for defendants, whereupon the plaintiff took this writ, assigning for error, the charge of the court; and also the answers to numerous points submitted, and the rejection of certain offers of evidence.</p> | null | null | <p>1. If a purchaser at a sheriff’s sale has been guilty of some falsehood, trick or device before or at the time of the sale, by virtue of which he has obtained the property for less than it would otherwise have brought, he does not obtain a good title; and such a title may be defeated by a subsequent sale of the property on the judgment of another creditor.</p> <p>2. The law presumes, however, that a public judicial sale is made in good faith, and this presumption stands unless overthrown by clear and satisfactory evidence of fraud or unfair means.</p> <p>3. A., a debtor, and B., a judgment creditor, executed an agreement by which A. covenanted not to dispute any of B.’s claims of record against him, but to permit all of his real estate to be sold by the sheriff, as soon as possible, by due process of law, and not to interpose any hindrance thereto; and, further, to give up all receipts in his possession for moneys that had been paid on any liens against him, and which had not been receipted for on the docket. B, on the other hand, covenanted to purchase the property at the sheriff’s sale, or cause it to bring a fair price if sold to some one else; and, further, that if she purchased the property herself, to re-sell it on time, and after all her claims were liquidated to place the remaining proceeds in the hands of some member of A.’s family. In pursuance of this agreement A.’s property was sold by the sheriff and B. became the purchaser. In an action of ejectment against B. by the purchaser of the said property at a subsequent sheriff’s sale on a judgment of another creditor:</p> <p>Held, that the agreement was not prima facie fraudulent; and, further, that under all the evidence the plaintiff could not recover.</p> | null | null | null | null | null | 63,023,274 | null | 0 | pa | S | t | Supreme Court of Pennsylvania | Supreme Court of Pennsylvania |
27,344 | IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-20729 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOEL RAMIREZ, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-26-ALL -------------------- April 11, 2002 Before SMITH, DeMOSS, and PARKER, Circuit Judges. PER CURIAM:* Joel Ramirez appeals from his guilty-plea conviction for possession of a firearm subsequent to a felony conviction. He contends that the factual basis was insufficient to support the interstate commerce element of an 18 U.S.C. § 922(g)(1) offense and that this court should reconsider its jurisprudence regarding the constitutionality of 18 U.S.C. § 922(g)(1) in light of Jones v. United States, 529 U.S. 848 (2000), and United States v. Morrison, 529 U.S. 598 (2000). Ramirez concedes that his * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-20729 -2- arguments are foreclosed by this court’s precedent but seeks to preserve the issue for Supreme Court review. The “in or affecting commerce” element of 18 U.S.C. § 922(g)(1) requires only a minimal nexus between the firearm and interstate commerce. United States v. Gresham, 118 F.3d 258 , 265 (5th Cir. 1997). This element is satisfied because the firearm possessed by Ramirez previously traveled in interstate commerce. United States v. Rawls, 85 F.3d 240 , 242-43 (5th Cir. 1996). Ramirez’s reliance on Morrison and Jones is misplaced. In United States v. Daugherty, 264 F.3d 513 , 518 (5th Cir. 2001), cert. denied, 122 S. Ct. 1113 (2002), this court recently determined that Morrison and Jones were distinguishable from an 18 U.S.C. § 922(g)(1) case in which the defendant, like Ramirez, had stipulated to facts showing that his firearm had traveled in interstate commerce, emphasizing that “the constitutionality of § 922(g) is not open to question.” Id. (quotation and citation omitted). The judgment of the district court is AFFIRMED. | opinion_html_with_citations | 336 | 2010-04-25 09:07:24+00 | 010combined | f | f | 27,344 | null | null | C | t | Unpublished | 0 | United States v. Ramirez | Ramirez | null | null | null | null | null | null | null | null | null | null | 1,121,457 | 01-20729 | 0 | ca5 | F | t | Fifth Circuit | Court of Appeals for the Fifth Circuit |
3,781 | 09-2727-ag Shkurti v. Holder BIA A095 150 206 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 24 th day of February, two thousand ten. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 BARRINGTON D. PARKER, 9 PETER W. HALL, 10 Circuit Judges. 11 12 13 ARDIAN SHKURTI, 14 Petitioner, 15 16 v. 09-2727-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 22 23 FOR PETITIONER: Charles Christophe, New York, New 24 York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Russell J.E. Verby, Senior 28 Litigation Counsel; Monica G. 29 Antoun, Trial Attorney, Office of 30 Immigration Litigation, Civil 31 Division, United States Department 32 of Justice, Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 decision of the Board of Immigration Appeals (“BIA”), it is 3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 4 review is DENIED. 5 Ardian Shkurti, a native and citizen of Albania, seeks 6 review of a June 15, 2009, order of the BIA denying his 7 motion to reopen. In re Ardian Shkurti, No. A095 150 206 8 (B.I.A. June 15, 2009). We assume the parties’ familiarity 9 with the underlying facts and procedural history of this 10 case. 11 We review the BIA’s denial of a motion to reopen for 12 abuse of discretion, mindful of the Supreme Court’s 13 admonition that such motions are “disfavored.” Ali v. 14 Gonzales, 448 F.3d 515 , 517 (2d Cir. 2006) (citing INS v. 15 Doherty, 502 U.S. 314 , 322-23 (1992)). We review for 16 substantial evidence the BIA’s evaluation of country 17 conditions evidence submitted with a motion to reopen. Jian 18 Hui Shao v. Mukasey, 546 F.3d 138 , 169 (2d Cir. 2008). 19 A party may file only one motion to reopen removal 20 proceedings, and must do so no later than 90 days after the 21 date on which the final administrative decision was rendered 22 in the proceeding sought to be reopened. 8 C.F.R. 2 1 § 1003.2(c)(1),(2). Petitioner’s motion to reopen was 2 untimely. However, the time and number limitations do not 3 apply to a motion to reopen that is “based on changed 4 circumstances arising in the country of nationality or in 5 the country to which deportation has been ordered, if such 6 evidence is material and was not available and could not 7 have been discovered or presented at the previous hearing.” 8 8 C.F.R. § 1003.2 (c)(3)(ii). 9 Petitioner argues that the BIA failed to properly 10 consider evidence in the record. We disagree. The BIA 11 properly considered the record as a whole, explaining that 12 the evidence Petitioner submitted was “insufficient to 13 warrant reopening” because “while some changes in conditions 14 in Albania have been demonstrated, it is clear that some 15 significant changes in Albania are not advantageous to 16 [petitioner’s] claim.” 17 Petitioner points to news articles, reports, and an 18 affidavit from Prenk Camaj, that refer to the February 2007 19 elections and the disappearance or death of political 20 activists. However, the BIA considered this evidence 21 stating, “we emphasize that the Democratic Party, with which 22 [petitioner] and his family have been affiliated, has become 3 1 the ruling majority.” We have previously taken judicial 2 notice of the fact that country conditions in Albania have 3 improved rather than worsened for Democratic Party 4 supporters since Albania’s 2005 elections. See Hoxhallari 5 v. Gonzales, 468 F.3d 179 , 187 (2d Cir. 2006). On this 6 record, we cannot conclude that the BIA erred in evaluating 7 Petitioner’s evidence. See Ke Zhen Zhao, 265 F.3d at 93; 8 Jian Hui Shao, 546 F.3d at 169 . 9 For the foregoing reasons, the petition for review is 10 DENIED. As we have completed our review, any stay of 11 removal that the Court previously granted in this petition 12 is VACATED, and any pending motion for a stay of removal in 13 this petition is DISMISSED as moot. Any pending request for 14 oral argument in this petition is DENIED in accordance with 15 Federal Rule of Appellate Procedure 34(a)(2), and Second 16 Circuit Local Rule 34.1(b). 17 18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20 21 22 4 | opinion_html_with_citations | 849 | 2010-04-24 19:33:45+00 | 010combined | f | f | 3,781 | Hall, Katzmann, Parker, Peter, Roberta | null | CU | t | Unpublished | 0 | Shkurti v. Holder | Shkurti | Ardian SHKURTI, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent | null | null | <parties id="b246-10">
Ardian SHKURTI, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
</parties><br><docketnumber id="b246-12">
No. 09-2727-ag.
</docketnumber><br><court id="b246-13">
United States Court of Appeals, Second Circuit.
</court><br><decisiondate id="b246-14">
Feb. 24, 2010.
</decisiondate><br><attorneys id="b247-11">
<span citation-index="1" class="star-pagination" label="219">
*219
</span>
Charles Christophe, New York, NY, for Petitioner.
</attorneys><br><attorneys id="b247-12">
Tony West, Assistant Attorney General; Russell J.E. Verby, Senior Litigation Counsel; Monica G. Antoun, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
</attorneys><br><judges id="b247-13">
PRESENT: ROBERTA. KATZMANN, B.D. PARKER, PETER W. HALL, Circuit Judges.
</judges> | null | null | null | null | null | null | 297,582 | 09-2727-ag | 1 | ca2 | F | t | Second Circuit | Court of Appeals for the Second Circuit |
1,467,030 | 217 N.J. Super. 541 (1987) 526 A.2d 290 ALAN C. STAVER, PLAINTIFF, v. MARGARET STAVER, DEFENDANT. Superior Court of New Jersey, Chancery Division Bergen County, Family Part. March 11, 1987. *543 Donald L. Garber for plaintiff ( Donald L. Garber, attorney; Michael I. Lubin on the brief). John Fiorello for defendant ( Feldman, Feldman, Hoffman & Fiorello, attorneys). SIMON, MARGUERITE T., J.S.C. Plaintiff husband brings this motion seeking to terminate his obligation to pay alimony to defendant pursuant to a judgment of divorce entered September 6, 1974. Defendant wife brings a cross-motion for enforcement of the judgment. At the time of the entry of the final judgment, plaintiff was employed as an ordained minister earning approximately $12,000 a year. The parties entered into a consensual agreement which was incorporated into the judgment. Two pertinent stipulations of the agreement are as follows: (1) "Said alimony of $500 per month shall continue in effect regardless of the effect of earnings of either party in the future." (2) "The husband shall pay to the defendant counterclaimant in lieu of her rights to the plaintiff's pension, the sum of $6,000.00...." The judgment recited that the court was convinced that the stipulations were fair and just under all circumstances. Now, 12 years later, plaintiff is 62 and defendant is 64. Both parties appear to be in poor health and without substantial assets. Prior to plaintiff's retirement in August 1986, he was receiving $20,500 ($1,708.34 a month) in his position as pastor. He now recieves $629 a month social security pension and $1,500 a month pension from his former employment giving him a total of $2,129 a month. Defendant wife has not worked since the entry of the judgment of divorce and her sole income *544 is the $500 a month alimony and a social security pension of $348. By this motion, plaintiff argues that since defendant waived her pension rights as part of equitable distribution, none of his pension benefits can be considered as income for continuation of alimony. With this premise he states that he would be paying 80% of his income from social security if alimony were to continue at the present rate. Plaintiff relies on D'Oro v. D'Oro, 187 N.J. Super. 377 (Ch.Div. 1982), aff'd 193 N.J. Super. 385, (App.Div. 1984), as controlling. There the court considered the following question: Once a "present value" of a pension is equitably distributed, and the nonpensioner receives her share in immediate cash, and the pensioner's share is deferred, specifically "leaving all pension benefits to the employee himself," can his monthly pension benefits upon his retirement be included in an income base for purposes of re-establishment of alimony? [187 N.J. Super. at 378] According to plaintiff, any consideration of his $1,500 monthly pension benefits would amount to "double dipping" and be invalidated under D'Oro, supra . The Appellate Division, in affirming Judge Krafte's decision, commented that they were not determining if enhancement of a pension by pensioner's earnings after termination of the marriage for equitable distribution purposes should be regarded as income for alimony purposes. 193 N.J. Super. at 387. That precise issue was never raised, for in D'Oro the application for modification occurred within ten months of the final judgment. Here the amount of time is substantial. Therefore, this case presents an issue of first impression in New Jersey regarding the consideration of a divisible pension approach. It can be noted that no cases have been found from other jurisdictions which might prove helpful. The $1,500 a month pension of plaintiff husband is the result of many years of service. A portion of that monthly amount derives from accumulated service before the filing of *545 the complaint and a portion derives from accumulated service thereafter. Clearly, defendant has waived her right to the former and to permit its consideration as income for alimony purposes would amount to "double dipping." It is this court's position that the portion which accrued after the date of the complaint can be considered income for purposes of determining alimony. Twelve years have elapsed since the parties' divorce. Plaintiff continued working and continued accumulating pension benefits. Now, the respective incomes of the parties are so disparate that equity would mandate consideration of this portion of plaintiff's pension as income for purposes of determining alimony. Additionally, this portion of plaintiff's pension benefit was never included in the items subject to equitable distribution. This approach appears more practical than that suggested by dictum in D'Oro v. D'Oro, supra , 187 N.J. Super. at 379-380, which implicitly assumes this portion of a pension benefit can be considered income for purposes of alimony. The procedure suggested by D'Oro would require the pensioner to first receive the full present value of the pension subject to equitable distribution, and then subsequent pension benefits could be considered for purposes of alimony. Following the suggestion of D'Oro could be impractical in that it would require two court appearances rather than one, which could result in cessation and later renewal of alimony, and would not be easier to evaluate. Ascertaining the present value of the amount subject to distribution requires consideration of similar variables as ascertaining the amount of the present benefit subject to service before and after the date of the complaint. It has long been recognized that one of the primary purposes for granting alimony is to permit the wife, who contributed during the marriage, to share in the accumulation of the marital assets and to prevent her from becoming a public charge. Lynn v. Lynn, 153 N.J. Super. 377, 382 (Ch.Div. 1977), *546 rev'd on other grounds 165 N.J. Super. 328 (App.Div. 1979); Gugliotta v. Gugliotta, 160 N.J. Super. 160 (Ch.Div. 1978), aff'd 164 N.J. Super. 139 (App.Div. 1978). It has further been determined that alimony is based upon "need" and that in determining the issue the court must inquire into the income of the spouse seeking alimony. D'Arc v. D'Arc, 164 N.J. Super. 226 (Ch.Div. 1978). Under the circumstances of this case, it has been well established that if alimony were to terminate, defendant would have neither the ability nor the economic conditions that would allow her to continue to live at her present nominal standard. Therefore, this court, in considering plaintiff's pension benefits that have accrued since the final judgment as income, is acting in accordance with N.J.S.A. 2A:34-23, which provides, in part, that after a judgment of divorce the court may make such order as to the maintenance of the parties as the case shall render fit, reasonable and just. Further, where a court determines that alimony payments should continue pursuant to a judgment, the supporting spouse's pension receipts would fall within the definition of sources which may be used to continue to pay alimony. N.J.S.A. 2A:17-56.8 provides as follows: Every order of a court for alimony, maintenance or child support payments shall include a written notice to the obligor stating that the order shall be enforced by an income withholding upon the current or future income due from the obligor's employer or successor employers and upon the unemployment compensation benefits due the obligor and against debts, income, trust funds, profits or income from any other source due the obligor [Emphasis supplied] Moreover, the courts have ruled that the pension of a person who is ordered to pay alimony or child support is subject to execution or garnishment in order to enforce such support obligations. Thiel v. Thiel, 41 N.J. 446 (1964); Ward v. Ward, 164 N.J. Super. 354 (Ch.Div. 1978). Since support obligations may be adjusted from time to time, they are deemed to be a continuing obligation, and therefore *547 the courts have also looked to the continued receipt of social security or other similar benefits as a source of income for support. Schaeffer v. Schaeffer, 184 N.J. Super. 423, 425 (App. Div. 1982); Davis v. Davis, 184 N.J.Super 430, 441 (App.Div. 1982). The second issue before the court is the enforceability of the provision in the final judgment which stipulated that "said alimony of $500 per month shall continue in effect regardless of the effect of the earnings of either party in the future." This can be disposed of simply by noting that the agreement considered by Justice Pashman in the landmark case of Lepis v. Lepis, 83 N.J. 139, 144 (1980) also contained a provision that "specified that the presence or absence of separate earnings by the wife, or changes in the husband's income, would be irrelevant to a decision to alter or halt the husband's payments." The standards enunciated in Lepis as to changed circumstances and procedures to be applied will be applicable to this case as Lepis held that the court is not bound by such provisions. The type of escalation provision considered in Petersen v. Petersen, 85 N.J. 638 (1981) is to be distinguished as it, unlike the provisions in both Lepis and this case, does vary according to the respective incomes of the parties. In addition, comments of the Court in Petersen reaffirm the Lepis standards. Here, since the portion of plaintiff's pension which was subject to equitable distribution cannot be considered income for purposes of establishing alimony, this court finds that plaintiff has made a prima facie showing of changed circumstances which may require a modification of alimony. An expert will be appointed to determine the amount of plaintiff's pension benefit which has accrued since the date of equitable distribution. This, together with plaintiff's social security pension, will be included in the items to be considered in determining the amount of alimony, if any, to be paid. | opinion_html_with_citations | 1,592 | 2013-10-30 06:22:11.608755+00 | 010combined | f | f | 1,467,030 | Simon | null | L | t | Published | 4 | Staver v. Staver | Staver | null | null | null | null | null | null | null | null | null | null | 1,032,763 | null | 0 | njsuperctappdiv | SA | t | New Jersey Superior Court App Division | New Jersey Superior Court Appellate Division |
5,239,595 | Howard, J.: By the'will of Byron S. Briggs, which was offered for probate in the Surrogate’s Court of Madison county, Harriet 0. Briggs, his wife, was appointed executrix. After the surrogate had overruled certain objections to the probate of the will and announced his conclusion that the will should be admitted to probate, written objections were filed to the issuance of letters testamentary to the widow, on the ground that she had deliberately murdered the testator for the purpose of thwarting any attempt on his part to make another will. The objections were filed by the son of the testator; and his attitude of opposition to the widow was approved by a granddaughter of the testator. These two persons were descendants of the testator by a former wife. They were legatees under the will and had a statutory right to make objections. (See Code Civ. Proc. § 2636.) They stood ready with the witnesses in court and offered to make proof of the serious charges which they had preferred against the proponent of the will. The surrogate declined to hear any proof on the subject and made a decree directing letters testamentary to be issued to the woman who stood before him accused of murder. Section 2612 of the Code of Civil Procedure, as it stood at the time these proceedings were instituted in June, 1914, provided that a person incompetent to execute the duties of executor by reason of dishonesty should not be appointed; and section 2637 of the Code, as it was at that time, provided that the surrogate must inquire into objections filed against the incompetency of a person named in the will as executor; and that he might, in *54his discretion, receive proof of the matters alleged as objections. (See Laws of 1893, chap. 686; Laws of 1880, chap. 178.) The surrogate neither made inquiry nor took proof. He made no attempt whatever to probe into these grave, alarming and unusual charges, but rejected all such evidence and in the face of this accusation of murder he directed letters testamentary to issue to Harriet 0. Briggs. A dishonest person is one “Wanting in honesty or integrity; disposed to cheat or defraud; not trustworthy.” This is Webster’s definition of a dishonest person. If a wife deliberately murders her husband so as to prevent him from making another will, by which she fears he might disinherit her — murders him for the purpose of securing to herself the benefactions under the will then in existence, is she not a dishonest person within Webster’s definition ? It is the clear purpose of the murderess, in such a case, to cheat and defraud the persons to whom the testator might devise and bequeath his estate under his new will. The whole incentive to murder is a disposition to cheat and defraud not only the possible future legatees, but the testator himself. It is not revenge, but avarice, which prompts the crime. Such a person is manifestly wanting in honesty and integrity; and such a person is manifestly not trustworthy and is, therefore, incompetent to act as an executrix. Therefore, literally, the objections filed against the proponent herein come within section 2612 of the Code. ■ But there is a broader view of this subject which we should adopt. If there' were no statute and no written law on the subject, it is inconceivable that the administration of justice would tolerate the appointment of a person guilty of murder under the circumstances charged here. It is a well-known maxim of the law that “No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.” (Riggs v. Palmer, 115 N. Y. 506.) It would be a scandal upon our system of jurisprudence and bring our laws into ridicule and contempt if a person proven to have murdered her husband should be invested by the law with the legal right to administer upon the very booty which she had plundered from her victim. It would be shocking for the law to *55protect such a person in the enjoyment of the spoil of her iniquity. The position we are assuming here is amply sustained by the doctrine promulgated in Riggs v. Palmer (supra) and in New York Mutual Life Ins. Co. v. Armstrong (117 U. S. 591). But many of the complications and difficulties which present themselves in those cases, and in Ellerson v. Westcott (148 N. Y. 149), are absent from this case. Here the statute specifically authorizes the presentation of objections to the fitness of an executor, and specifically provides that evidence may be taken to establish such objections. The surrogate in this case refused to hear any proof and the question before us is as to whether the surrogate was right in his refusal. We think he was wrong. In refusing to receive proof the surrogate said: “I will hold I will not compel this proponent to meet the charge of murder in this civil action unless I am compelled to do so by higher authority, the Court of Appeals not having passed upon that question when they had ample opportunity to do so. I am going to take that side of it.” But we think that the proponent should have been compelled to meet the charge of murder. The charge was presented at the proper time and in the proper place. It would have been almost criminal on the part of the son to have stood idly by while the person whom he believed to be the murderess of his father was invested by the law with the custody of his patrimony. It was his moral duty, as well as his legal right, to protest. The objections were an attack upon the woman’s general fitness to act as executrix, upon her integrity, upon her trustworthiness, upon her moral character, upon her probity. The charges branded her with “dishonesty,” the very words of the statute, and with a disposition to cheat and defraud, and with the crime of murder perpetrated, deliberately and with a mercenary motive. If it had been admitted that the proponent was guilty of the offense charged against her, it cannot be that the surrogate would have appointed her. But even assuming that the evidence would have established these charges, the surrogate felt that he ought not to hear the proof. It is possible that the proof might have established the proponent’s utter unfitness. There*56fore, notwithstanding the gravity of the charges, it follows as a matter of right that the legatees who made the objections should have been afforded an opportunity to present their proof. In discussing this subject we have been compelled to refer to the charges as they were specified in the written objections. By what we have said we do not, of course, in any manner intimate that we believe the charges well founded. The proponent may be entirely innocent, and nothing that we say here should work to her detriment at the hearing which we are about to order. We are only holding that we think the learned surrogate was in error in refusing to inquire into the objections. The order of the surrogate should be reversed and a hearing granted to the contestants under the objections filed. All concurred; Lyon, J., in result. Order of the surrogate reversed and hearing granted to the contestants, with costs. | opinion_xml_harvard | 1,248 | 2022-01-06 17:22:34.293877+00 | 020lead | t | f | 5,402,447 | Howard | null | U | f | Published | 0 | In re Proving the Last Will & Testament of Briggs | null | In the Matter of Proving the Last Will and Testament of Byron S. Briggs, Walter W. Briggs and Frank J. Cregg, as Special Guardian for Gladys Briggs Blanchard, Appellants Harriet C. Briggs, as etc., of Byron S. Briggs | <p>Appeal by the contestants, Walter W. Briggs and another, heirs at law and next of kin of the deceased, from a decree and order of the Surrogate’s Court in the county of Madison, entered in the office of said Surrogate’s Court on the 14th day of September, .1914, admitting an alleged will to probate and overruling the appellants’ objections to the issuance of letters testamentary thereon to Harriet C. Briggs.</p> | null | null | <p>Executors and administrators — objection to appointment of widow upon ground that she had deliberately murdered testator — duty of surrogate to inquire into objections.</p> <p>Where, in a proceeding for the probate of a will, written objections are filed by the son of the testator to the issuance of letters testamentary to the widow on the ground that she had deliberately murdered the testator for the purpose of thwarting any attempt on his part to make another will, it is error for the surrogate to refuse to inquire into the objections before issuing letters to the widow.</p> <p>Such a person would be “ incompetent to execute the duties of executor by reason of dishonesty” within the meaning of section 2612 of the Code of Civil Procedure, prior to the amendment of 1914, and should not be appointed.</p> <p>It seems, that even though there were no statute and no written law on the subject, the administration of justice would not tolerate the appointment of a person guilty of murder under the circumstances charged.</p> | null | null | null | null | null | 61,750,824 | null | 0 | nyappdiv | SA | t | Appellate Division of the Supreme Court of New York | Appellate Division of the Supreme Court of the State of New York |
6,198,051 | Alfred M. Lama, J. In this case, the defendant was charged with the uninsured operation of a motor vehicle. The only evidence on this point was the officer’s testimony that the defendant operator failed to produce the insurance card when requested. In order to establish that a nonowner operator is guilty of uninsured operation of a motor vehicle, it must be established both that the vehicle is uninsured and that the operator was aware of that fact (Vehicle and Traffic Law, § 319, subd 1). The burden of proving both lack of insurance and knowledge is upon the People (People v Silver, NYLJ, Jan. 29, 1976, p 38, col 4; contra People ex rel. Van Kluyve v Omstadter, 213 NYS2d 882). The People are aided in the presentation of their case by a presumption of uninsurance from the evidence of a failure to produce a valid insurance identification card upon request (Vehicle and Traffic Law, § 319, subd 3). However, this presumption goes only to the element of lack of insurance and not to knowledge upon the part of the nonowner operator. To create a presumption of knowledge of uninsurance on a nonowner operator who fails to produce an insurance identification card, this court would have to read into the statute a requirement that each operator inquire of the owner concerning insurance, and ask for the insurance card before he operates the vehicle. While the Legislature could have imposed such an obligation, it has not done so and this court is reluctant to do so in the light of judicial precedent (see People v Shapiro, 4 NY2d 597). However, since the defendant rested after the People’s case without producing any evidence, if it were not for the foregoing interpretation of section 319 of the Vehicle and Traffic Law, this court would have found the defendant guilty after trial. Accordingly, the simplified traffic information is dismissed. | opinion_xml_harvard | 315 | 2022-02-05 20:27:04.205189+00 | 020lead | t | f | 6,329,497 | Lama | null | U | f | Published | 0 | People v. Simmons | Simmons | The People of the State of New York v. Thomas Simmons | null | null | null | null | null | null | null | null | null | 62,960,664 | null | 0 | nydistctsuffolk | ST | f | Suffolk County District Court | Suffolk County District Court |
1,587,382 | 709 F.Supp. 1374 (1989) Wayne R. GRIES, Plaintiff, v. ZIMMER, INC., Defendant. Michael J. MORAN, Plaintiff, v. ZIMMER, INC., Defendant. Nos. C-C-87-0576-P, C-C-87-0577-P. United States District Court, W.D. North Carolina, Charlotte Division. February 28, 1989. *1375 Louis L. Lesesne, Jr., Gillespie, Lesesne & Connette, and Richard A. Vinroot, Robinson, Bradshaw & Hinson, Charlotte, N.C., for plaintiffs. Martin N. Erwin, Julie C. Theall, Smith Helms Mulliss & Moore, Greensboro, N.C., for defendant. MEMORANDUM AND ORDER ROBERT D. POTTER, Chief Judge. I. PRELIMINARY STATEMENT THIS MATTER is before the Court on Defendant's Motion for Partial Summary Judgment, filed July 8, 1988. On January 24, 1989, a hearing was conducted on this motion, the undersigned presiding. Attorneys Louis L. Lesesne, Jr., Richard A. Vinroot, and Sam Walker appeared at the hearing to argue on Plaintiffs' behalf, and attorneys Martin N. Erwin and Julie C. Theall appeared on Defendant's behalf. After hearing the arguments of counsel, the undersigned took the motion under advisement. For the reasons that follow, this Court will grant Defendant's Motion for Partial Summary Judgment and will dismiss Counts 2 and 3 of Plaintiffs' Complaints. II. NATURE OF THE CASE These cases have been consolidated for trial. Plaintiffs were employed by Defendant. On April 6, 1987, Defendant terminated Plaintiffs' employment. Plaintiffs have filed two, substantially similar, three-count complaints. In Count 1 of both Complaints, Plaintiffs allege age discrimination, a violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C.A. §§ 621-634 (West 1985 & Supp. 1988) ("ADEA"). This Court's subject-matter jurisdiction over Plaintiffs' age discrimination claims is based upon 28 U.S.C.A. § 1331 (West Supp.1988) (federal question), and 28 U.S.C.A. § 1343 (a)(4) (West Supp. 1988) (civil rights). In the present motion, however, Defendant is seeking summary judgment only on Counts 2 and 3 of Plaintiffs' Complaints, and, therefore, this Court will not discuss the facts or the law relating to Plaintiffs' age discrimination claims. *1376 In Counts 2 and 3 of both Complaints, Plaintiffs allege breach of contract. Specifically, Plaintiffs allege that Defendant induced each of them to move from their state of residence, Virginia, to another state, Indiana, by assurances that they would be employed with Defendant for as long as they adequately performed their jobs. Plaintiffs contend that their moves to Indiana constitute sufficient independent consideration to make their employment with Zimmer terminable only for cause. Plaintiffs conclude that Defendant's termination of their employment was done without cause and, thus, breached their employment agreements. In addition, Plaintiffs allege that certain provisions of Defendant's employee handbook which provided for "bumping" of more junior employees in other positions during reductions-in-force guaranteed to them permanent employment. Plaintiffs contend that Defendant's termination of their employment breached this portion of their employment agreements. Plaintiffs are seeking damages and injunctive relief on their breach of contract claims. This Court has diversity jurisdiction, 28 U.S.C.A. § 1332 (a) (West Supp.1988), over Plaintiffs' breach of contract claims because the parties are citizens of different states and the amount in controversy exceeds $10,000.00. Defendant denies, in its Answer, having made any representations to Plaintiffs regarding "permanent employment" and denies that Plaintiffs were guaranteed permanent employment by any provisions of Defendant's employee handbook. Nevertheless, Defendant contends in its Motion for Partial Summary Judgment that even if Plaintiffs' allegations are taken as true, for the purposes of the motion, they must fail as a matter of law. III. QUESTIONS PRESENTED (1) Under North Carolina's choice of law rules, which this Court must apply to Plaintiffs' diversity claims, does North Carolina's law or Indiana's law apply to Counts 2 and 3 of Plaintiffs' complaints, which allege breach of contract? (2) If Indiana's law governs, then should this Court refuse to apply it because it is purportedly contrary to North Carolina's settled public policy? (3) Since Plaintiffs did not have an employment agreement for a definite amount of time, were Plaintiffs merely "at-will" employees, under the applicable state's law, who could be discharged for good cause, bad cause, or no cause at all without giving rise to an action for damages or did Plaintiffs furnish sufficient independent consideration to support a promise of permanent employment? (4) Did statements in Defendant's employee handbook become, under the applicable state's law, part of Plaintiffs' employment agreements with Defendant and guarantee to them "bumping" rights? IV. STATEMENT OF FACTS [1] The material facts, taken in the light most favorable to the Plaintiffs, the non-moving parties, are as follows: A. Plaintiffs Michael J. Moran ("Moran") is a citizen and resident of Mecklenburg County, North Carolina. Wayne R. Gries ("Gries") is a resident and citizen of Mecklenburg County, North Carolina. B. Defendant Zimmer, Inc. ("Zimmer") is a Delaware corporation, and it is a wholly owned subsidiary of Bristol-Myers. Zimmer manufactures and retails orthopedic devices and *1377 related surgical instruments and supplies. (Davis Depo. at 3). Zimmer's principal place of business is in Warsaw, Indiana, but it also has offices and plants in several other states, including California, Colorado, Georgia, New York, Ohio, Texas, and North Carolina. (Davis Depo. at 4). Zimmer employs in excess of three thousand people. (Davis Depo. at 4). C. The Present Action (1) Moran From 1973 until 1975, Moran worked as the assistant division controller for Crawford Manufacturing Company ("Crawford"), in Richmond, Virginia. (Moran Aff. at 1; Moran Depo. at 7). In 1975, Moran's immediate supervisor told him that he should seek other employment because new owners were going to take control of Crawford. (Moran Depo. at 18-19). [2] Zimmer interviewed Moran for a position. [3] At the time Moran accepted his position with Zimmer in Indiana, he was told that he was being hired as a "permanent employee who would be removed only for good cause," (Moran Aff. at 1), and that as long as he did his job and performed well he would not have to worry about continued employment. (Moran Depo. at 17-18). On September 15, 1975, Moran began his employment with Zimmer in Warsaw, Indiana, as the manufacturing controller. (Moran Depo. at 7). To take this job, Moran had to quit his job with Crawford and move from Richmond to Warsaw. In 1980, Zimmer transferred Moran to North Carolina to work as the division controller for Zimmer's Patient Care Systems Division, a division newly established at that time. (Moran Depo. at 7). At the time of the transfer, Moran was assured that all the benefits available to him at Zimmer's operation in Warsaw would be applicable to his new job in North Carolina. (Moran Depo. at 85-86). In 1984, Moran became Vice President of Operations for Zimmer's Patient Care Systems Division. (2) Gries From 1973 until 1979, Gries worked as the vice president and controller for United Leasing Corporation ("United Leasing"), in Richmond, Virginia. (Gries Depo. at 5; Gries Declar. at 1). In 1978, Gries learned that Zimmer had two financial-oriented jobs: budget director and international controller. (Gries Declar. at 2). Gries was at that time looking for a new job because United Leasing was making some changes in its operations. (Gries Declar. at 2). Although Gries felt that his job was secure at United Leasing, he was attracted to Zimmer because he had learned that Zimmer was generous towards its employees. (Gries Declar. at 2). Gries applied for the two financial positions, and in December 1978 Zimmer's staffing director, Jim Steger ("Steger"), called him for an interview. (Gries Declar. at 2). In January 1979, Steger interviewed Gries. Steger said at the interview that Gries' potential job with Zimmer might be the last job he would ever have "because Zimmer expected its employees to remain with them to retirement." (Gries Declar. at 2). In addition, Steger said that Zimmer expected loyalty from its employees and reciprocated by maintaining them on a "permanent basis." (Gries Declar. at 2). Further, Steger told Gries that Zimmer had never had a layoff since 1927 and that people who worked for Zimmer would be there until retirement because they would only be fired for incompetence or for doing something illegal. (Gries Declar. at 3). Other Zimmer employees, including Russ *1378 Schrode, director of profit planning, David Berry, vice president of finance, and Dick Milbern, corporate controller, made similar comments to Gries concerning job security at Zimmer. (Gries Declar. at 3; Gries Depo. at 6-7). Gries relied on these assurances when he made his decision to leave United Leasing to join Zimmer. (Gries Declar. at 3). In 1979, Gries quit his job with United Leasing, sold his house in Richmond, withdrew his children, ages 12 and 14, from school, and moved to Indiana with his family to join Zimmer as the corporate budget director of the corporate staff. (Gries Declar. at 3; Gries Depo. at 6). In 1984, Zimmer transferred Gries to North Carolina to work in Zimmer's Patient Care Systems Division. (Gries Declar. at 4). Gries was told at the time of his transfer to North Carolina that he could anticipate "permanent employment" with Zimmer. (Gries Declar. at 4). Relying on these assurances, Gries and his family moved to North Carolina to work as the Vice President of Finance for Zimmer's Patient Care Systems Division. (Gries Declar. at 4). (3) The Reduction-In-Force When they started their employment with Zimmer, each Plaintiff received Zimmer's employee handbook ("the Handbook"). (Moran Aff. at 1; Gries Depo. at 8-9; Plaintiffs' Consolidated Brief in Opposition to Defendant's Motion for Summary Judgment, Exh. A). The Handbook addresses all aspects of the employment relationship, and, in particular, it states, If it should become necessary to reduce our work force, the following procedure will apply: .... 4. Employees whose jobs have been eliminated may "bump" those most junior employees in the same job title, regardless of department. Plaintiffs' Brief in Opposition to Def't's Motion for Summary Judgment, Exh. A at 20-20; Moran Aff. at 1 (explaining that phrase "Applies to hourly workers only" on page 20-20 of Handbook was added after Moran was terminated). Moran relied on the Handbook and considered it to be a part of his employment contract with Zimmer. (Moran Aff. at 1). From 1984 until 1987, the top management of the Zimmer's Patient Care Systems Division consisted of Robert Teskey ("Teskey"), who was the President, and Plaintiffs. On April 6, 1987, Ron Davis ("Davis"), President of Zimmer's U.S. Division, announced to all employees that a corporate reorganization was being undertaken for economic reasons to reduce overhead expenses, and, therefore, the positions of Moran, Gries, and Teskey would be eliminated. Zimmer's Patient Care Systems Division was to be consolidated with Zimmer's Snyder Laboratories Division in Ohio. No other positions were eliminated on April 6, 1987, as a result of the reorganization, but other positions have been eliminated since then. Zimmer announced that it would provide assistance to Gries and Teskey in finding new positions and denied Moran's request to be reinstated to his old position. At the time of Plaintiffs' termination, there were lower rated positions held by employees with less seniority than Plaintiffs, but Zimmer did not offer to replace any such employees with Plaintiffs. V. CHOICE OF LAW From the above-recited facts, it appears that this Court is presented, at the outset, with a choice of law problem. This Court, sitting in diversity, must apply to Plaintiffs' contract claims the forum state's substantive law, 28 U.S.C.A. § 1652 (West 1966) ("Rules Decision Act"); Erie R.R. Co. v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938), including its choice of law rules, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 , 496-497, 61 S.Ct. 1020 , 1021-1022, 85 L.Ed. 1477 (1941); Kaplan v. RCA Corp., 783 F.2d 463 , 465 (4th Cir. 1986); Boone v. Aeronca, 669 F.Supp. 1353 , 1359 (W.D.N.C.1987) (Potter, C.J.). Therefore, this Court must apply North Carolina's substantive law to Plaintiffs' contract claims unless North Carolina's *1379 choice of law rule requires the application of another state's law. The parties characterize Counts 2 and 3 of Plaintiffs' Complaints as "contract" claims, and this Court readily agrees with such a characterization. The parties, however, differ on their characterizations of the types of contract issues presented. Defendant contends in its briefs that Indiana contract law governs all aspects of Plaintiffs' contract claims because Indiana, the place of the making of the contracts, is the forum to be selected under the applicable North Carolina choice of law rule. [4] Plaintiffs assert that the issues raised in Counts 2 and 3 of Plaintiffs' Complaints are matters of contract performance. Citing Bernick v. Jurden, 306 N.C. 435 , 442, 293 S.E.2d 405 , 410 (1982) (U.C.C. case), Plaintiffs contend that North Carolina's law applies to Plaintiffs' contract claims because North Carolina was the place of Zimmer's nonperformance of the employment contracts. The Bernick court stated, in dicta, "[T]he traditional rule is matters of performance and damages for nonperformance are governed by the law of the place of performance." Id. (emphasis added). Plaintiffs argue that their contract claims are based, at least in part, on Zimmer's failure to perform, in North Carolina, its agreements with them. This Court is of the opinion that the parties have mischaracterized the types of contract issues raised in Counts 2 and 3 of Plaintiffs' Complaint. Defendant has, at times, too broadly characterized these issues as being related to all aspects of Plaintiffs' employment contracts, including matters of performance. Plaintiffs, on the other hand, have incorrectly characterized these issues as being related only to matters of performance. This Court is of the opinion that the issues raised in Counts 2 and 3 of Plaintiffs' Complaint are simply, and solely, matters of contract validity and interpretation. Plaintiffs have two kinds of contract claims. First, Plaintiffs contend that they were to be employed by Zimmer for as long as they performed their work adequately and would be discharged only for cause. Second, Plaintiffs contend that they have "bumping" rights, as described in Zimmer's employee handbook. Plaintiffs' claims are premised upon the existence of enforceable employment contracts with Zimmer. Plaintiffs claim that these employment contracts had certain terms, including termination provisions "for good cause only" and contingency provisions to be used during reductions-in-force the "bumping rights." Whether employment contracts with such terms exist or not is a question of contract validity or interpretation or possibly both. The question of performance will be, and can only be, presented to this Court when it is established that the employment contracts with the disputed terms existed. Therefore, as a preliminary matter, this Court must determine, using the appropriate state's law, whether Plaintiffs have enforceable employment contracts that are terminable only for cause and whether the "bumping" rights described in Zimmer's employee handbook are part of the employment contracts. These preliminary questions are matters of contract validity and interpretation only; they are not matters of contract performance. As to matters relating to contract execution, interpretation, and validity, North Carolina's courts generally apply the choice of law rule of lex loci contractus the law of the place where the contract was made. E.g., Davis v. Davis, 269 N.C. 120 , 152 S.E.2d 306 (1967); Cocke v. Duke University, 260 N.C. 1 , 8, 131 S.E.2d 909 , 913 (1963); Roomy v. Allstate Ins. Co., 256 N.C. 318 , 123 S.E.2d 817 (1962); Cannaday v. Atlantic Coast Line R.R., 143 N.C. 439 , 55 S.E. 836 (1906); see Tanglewood Land Co., Inc. v. Byrd, 299 N.C. 260 , 262, 261 S.E.2d 655 , 656 (1980); Wallace Butts Ins. Agency, Inc. v. Runge, 68 N.C.App. 196 , 199, 314 S.E.2d 293 , 295 (1984) (employment agreement governed by lex loci contractus); Tanglewood Land Co., Inc. v. Wood, 40 *1380 N.C.App. 133, 137, 252 S.E.2d 546 , 550 (1979); Fried v. North River Ins. Co., 710 F.2d 1022 , 1024 (4th Cir.1983); see also Scudder v. Union Nat'l Bank, 91 U.S. 406 , 412-413, 23 L.Ed. 245 (1875) (giving "traditional" choice of law rules for contracts). Under North Carolina law, a contract is made where the last act necessary for the contract's validity occurred. Fast v. Gulley, 271 N.C. 208 , 212, 155 S.E.2d 507 , 510 (1967) (citing Bundy v. Commercial Credit Co., 200 N.C. 511 , 157 S.E. 860 (1931)); Clarkson v. Finance Co. of America, 328 F.2d 404 , 407 (4th Cir.1964). "Moreover, the law of the place where the contract is made is prima facie that which the parties intended and such law ought, therefore, to prevail in the absence of circumstances indicating a different intention." Tanglewood Land Co., Inc. v. Wood, 40 N.C.App. at 137 , 252 S.E.2d at 550 (citing Fast v. Gulley, 271 N.C. 208 , 155 S.E.2d 507 (1967)). This Court is of the opinion that North Carolina's choice of law rules require this Court to apply Indiana law to all questions regarding the validity and interpretation of Plaintiffs' employment contracts with Zimmer. It is undisputed that the contracts were made in Indiana when Plaintiffs accepted Zimmer's offers. There are no circumstances in the record indicating that the parties intended some other state's law to govern the validity and interpretation of the contracts. Further, as Defendant has noted, Indiana was the place of performance at the time the employment contracts were made. When Plaintiffs entered into their employment contracts with Zimmer Moran in 1975 and Gries in 1979they fully expected that they would be employed, at least for some time, at Zimmer's Indiana location. When Moran was hired in 1975, the North Carolina Patient Care Systems did not even exist. (Moran Depo. at 10). Moran did not move to Charlotte, North Carolina until 1980, five years later. Similarly, Gries worked for Zimmer in Indiana for five years 1979 through 1984. Gries did not move to North Carolina until 1984. (Gries Depo. at 56-57). These undisputed material facts sufficiently establish that the parties probably intended, at the time of the making of the employment contracts, for Indiana law to govern Plaintiffs' employment contracts with Zimmer. See Tanglewood Land Co. v. Wood, 40 N.C. App. at 137 , 252 S.E.2d at 550 . At the time the contracts were made, the parties could not have possibly anticipated that the Plaintiffs would be transferred to any particular state let alone North Carolina. Therefore, it is more probable that the parties intended Indiana law to govern the contract, if they intended the law of any state to govern at all. Plaintiffs assert that a "wooden `place of contracting'" choice of law rule makes little sense in the context of a large corporation, such as Zimmer, with a mobile workforce and operations in several states. Plaintiffs further contend that North Carolina has the most significant relationship to, and is most "interested in," the conditions of Plaintiffs' employment with Zimmer in North Carolina. Finally, Plaintiffs argue that, assuming the application of Indiana law will deprive Plaintiffs of their remedy, this Court must not apply Indiana law because North Carolina's courts will not give effect to, or enforce, foreign law or rights contrary to North Carolina's settled public policy. This Court will not address at length these points raised by Plaintiffs because they are all without merit. First, there is nothing "wooden" about a choice of law rule that looks to the place of the making of the contract when deciding matters of validity, interpretation, and construction. Zimmer's status as a corporation with operations in several states does not alter this conclusion. Instead, this Court is of the opinion that, in the absence of a contractual choice of law provision, lex loci contractus is the only choice of law rule that makes sense when employment contracts of a corporation with multi-state contacts are at issue. Certainly in the present case the parties did not expect their mutual rights and obligations under the employment contracts to depend upon Plaintiffs' possible future relocations to other states in which Zimmer operates. Second, Indiana, and not North Carolina, is the state with the *1381 most significant contacts with Plaintiffs' employment contracts. Zimmer is headquartered in Indiana; Plaintiffs went to Indiana to obtain their jobs and to make their employment contracts; and Plaintiffs initially worked for Zimmer in Indiana. While it is true that North Carolina was the place where the Plaintiffs lived and worked at the time of their discharge, this single contact with North Carolina is entirely insufficient to warrant the use of North Carolina's law in place of Indiana's law. Third, and finally, this Court does not believe the use of Indiana's law in the present case is prevented by North Carolina's settled public policy. In Boudreau v. Baughman, 322 N.C. 331 , 368 S.E.2d 849 (1988), the North Carolina Supreme Court explained the limits of the public policy exception in the following way: It is true that we have held that foreign law or rights based thereon will not be given effect or enforced if opposed to the settled public policy of the forum. However, the mere fact that the law of the forum differs from that of the other jurisdictions does not mean that the foreign statute [or law] is contrary to the public policy of the forum. To violate public policy, it must violate some prevalent conception of good morals or fundamental principle of natural justice or involve injustice to the people of the forum state. This public policy exception has generally been applied in cases such as those involving prohibited marriages, wagers, lotteries, racing, gaming, and the sale of liquor. Id. at 341-342, 368 S.E.2d at 857-858 (citations omitted). This Court does not believe the types of concerns enunciated in Boudreau prevent the application of Indiana's law to questions regarding the validity and interpretation of Plaintiffs' employment contracts. Moreover, while it is true that North Carolina's courts can refuse to enforce contractual provisions that are contrary to public morals, positive legislation, or settled public policy, the validity and interpretation of contracts made in other states cannot be affected by North Carolina's employment contract laws because such laws have no extraterritorial operation. See Bond v. Hume, 243 U.S. 15 , 20-21, 37 S.Ct. 366 , 368, 61 L.Ed. 565 (1917). In other words, it is not possible, after the making of a contract and without the assent of the parties, for North Carolina's laws to add to, or alter, the terms the original contract. In short, North Carolina's choice of law rules require this Court to apply Indiana contract law to Plaintiffs' contract claims when determining Defendant's Motion for Partial Summary Judgment. VI. SUMMARY JUDGMENT A. Standard of Decision Although this Court must apply North Carolina's substantive law to Plaintiffs' diversity claims, federal law governs all questions of procedure. Rule 56(c) of the Federal Rules of Civil Procedure establishes the standard of decision this Court must use when determining Defendant's Motion for Partial Summary Judgment: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). Recently, the United States Supreme Court has had several occasions to construe the summary judgment standard established in Rule 56. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986) (antitrust conspiracy case); Anderson v. Liberty Lobby, 477 U.S. 242 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986) (libel action); Celotex Corp. v. Catrett, 477 U.S. 317 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986) (asbestos related wrongful death action); Adickes v. S.H. Kress Co., 398 U.S. 144 , 90 S.Ct. 1598 , 26 L.Ed.2d 142 (1969) (alleged conspiracy to violate civil rights). These cases provide substantial guidance to this Court in its determination of Defendant's Motion for Partial Summary Judgment. *1382 In Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986), the Supreme Court noted: When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no "genuine issue for trial." Id. 106 S.Ct. at 1356 (emphasis in original; footnote and citations omitted; quoting Fed.R.Civ.P. 56). Stated another way, it is Defendant's burden, as the moving party, to show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. If that burden has been met, then Plaintiffs, the non-moving parties, must establish that there are indeed genuine issues of material fact; usually this can be done by producing affidavits of persons with personal knowledge setting forth specific information to be offered at trial. In Celotex Corporation v. Catrett, 477 U.S. 317 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986), the Supreme Court stated the following: In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Id., 106 S.Ct. at 2552-53; accord White v. Rockingham Radiologists, Ltd., 820 F.2d 98 , 101 (4th Cir.1987). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; Rule 56 requires that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 106 S.Ct. 2505 , 2510, 91 L.Ed.2d 202 (1986). "[T]he substantive law will identify which facts are material." Id. Thus, in the present case Indiana contract law will identify which facts are material. It is worth noting that in Anderson v. Liberty Lobby, Inc . the Court held: [T]here is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Id., 106 S.Ct. at 2511. On the other hand, all reasonable favorable inferences from the pleadings and depositions are to be drawn in favor of the party opposing the motion for summary judgment. United States v. Diebold, 369 U.S. 654 , 655, 82 S.Ct. 993 , 994, 8 L.Ed.2d 176 (1962); White, 820 F.2d at 101. Summary judgment is not a disfavored procedural shortcut; instead, it is a useful method for disposing of issues, or even cases, in a just, speedy, and inexpensive way. B. Defendant's Contentions Defendant contends that under Indiana law employment agreements that are not for a definite term are terminable at will unless the employee furnishes to the employer some independent consideration other than merely performing the required services. Defendant further contends that Plaintiffs' move from Virginia to Indiana did not constitute independent consideration. In addition, Defendant asserts that the alleged oral representations concerning permanent employment were too vague and indefinite to support a unenforceable contract. Finally, Defendant contends that in the absence of an employment agreement setting a term of employment for a definite term, the statements in the employee *1383 handbook are irrelevant they are not sufficient to transform the employment agreement from an "at-will" arrangement to a permanent arrangement. C. Plaintiffs' Contentions Plaintiffs contend that under Indiana law Plaintiffs were not terminable at will, and that Zimmer's promises of permanent employment were sufficiently definite. In addition, Plaintiffs contend that Plaintiffs' claims relating to Zimmer's employee handbook raise genuine issues of material fact. D. Discussion (1) Breach of Contract There is nothing in the record indicating that the parties had written contracts with each other, so the parties must have entered into oral agreements, or contracts, by which Plaintiffs agreed to render service to Defendant for a specified consideration. See Pearson v. Youngstown Sheet & Tube Co., 332 F.2d 439 , 441 (7th Cir.) (construing Indiana's law on employment contracts), cert. denied, 379 U.S. 914 , 85 S.Ct. 262 , 13 L.Ed.2d 185 (1964); Pennsylvania v. Dolan Co., 6 Ind.App. 109 , 115, 32 N.E. 802 , 804 (1892) ("the rule is settled that, where the contract declared upon is not all in writing, it is regarded as a parol contract"). Plaintiffs have not alleged or argued that their employment agreements with Defendant were for a definite term. There is nothing in the record establishing that Plaintiffs' employment agreements were for a definite, or determinable, length of time. In fact, if Plaintiffs' employment contracts were for a fixed term in excess of one year, then Indiana's statute of frauds would be implicated. Ind.Code § 32-2-1-1; Ohio Table Pad Co. v. Hogan, 424 N.E.2d 144 , 145 & n. 2 (Ind.Ct.App.1981); Whiteco Indus., Inc. v. Kopani, 514 N.E.2d 840 (Ind.Ct.App.1987). Plaintiffs have simply alleged that their employment contracts were to be "permanent" or for so long as they did their jobs, and they contend that, in exchange for Defendant's promises of permanent employment, they accepted Zimmer's offer and relocated to Indiana from Virginia. Under Indiana law, if a employment contract, oral or written, is for an indefinite term, or if the tenure of service cannot be determined from the terms of the contract, then such contract is terminable at the will of either party at any time. Pepsi-Cola General Bottlers, Inc. v. Woods, 440 N.E. 2d 696 , 697 (Ind.Ct.App.1982); Montgomery Ward & Co. v. Guignet, 112 Ind.App. 661 , 45 N.E.2d 337 (1942) (en banc); Shaw v. S.S. Kresge Co., 167 Ind.App. 1 , 328 N.E.2d 775 (1975); Ryan v. J.C. Penney Co., Inc., 627 F.2d 836 , 836-837 (7th Cir. 1980) (applying Indiana law and citing Shaw v. S.S. Kresge Co., 167 Ind.App. 1 , 328 N.E.2d 775 ); Hostettler v. Pioneer Hi-Bred Int'l., Inc., 624 F.Supp. 169 , 171 (S.D. Ind.1985). See generally Annotation, Comment Note. Validity and Duration of Contract Purporting to be for Permanent Employment, 60 A.L.R.3d 226 (1974) (giving general rules). Since Plaintiffs' employment agreements were not for a definite term, they were terminable at the will of either party. In Indiana, an employer can discharge an "at-will" employee at any time for good cause, bad cause, or for no cause at all without giving rise to an action for damages. Mead Johnson & Co. v. Oppenheimer, 458 N.E.2d 668 , 669-670 (Ind.Ct.App.1984); Miller v. Review Bd. of Indiana Employment Sec. Div., 436 N.E. 2d 804 , 807 (Ind.Ct.App.1982); see also Reeder-Baker v. Lincoln Nat. Corp., 644 F.Supp. 983 (N.D.Ind.1986) (construing Indiana's "at-will" doctrine). See generally Annotation, Modern Status of Rule that Employer May Discharge At-Will Employee for Any Reason, 12 A.L.R.4th 544 (1982). Since Plaintiffs are "at-will" employees, to succeed on their breach of contract claims under Indiana law, they must be able to show that they gave to Defendant sufficient independent consideration (other than their promises to render services) to support Defendant's promise of "permanent employment" or to support Defendant's promise that they would not be discharged, so long as they performed their jobs adequately, except for good cause. E.g., Ohio Table Pad v. Hogan, 424 N.E.2d 144 , 145-146 (Ind.Ct.App.1981); Stack v. *1384 Allstate Ins. Co., 606 F.Supp. 472 , 475 & n. 1 (S.D.Ind.1985). Plaintiffs have failed to demonstrate that they have given to Defendant the requisite independent consideration. The Indiana courts have held that moving one's household to a new location or the relinquishment of an existing job will not constitute sufficient independent consideration to support a contract of permanent employment or a contract imposing a requirement of good cause upon the employer's right to terminate an employee. Id. at 145-147; Hostettler v. Pioneer Hi-Bred Int'l, Inc., 624 F.Supp. 169 , 172-173 (S.D.Ind.1985). While it is true that the Indiana courts have held that the relinquishment of guaranteed permanent employment may be enough to constitute sufficient independent consideration, see Romack v. Public Serv. Co., 499 N.E.2d 768 (Ind.Ct.App.1986) (Conover, J., dissenting), rev'd, 511 N.E.2d 1024 (Ind.1987) (adopting dissent's rationale), in the present case there is nothing establishing that Plaintiffs left jobs with guarantees of permanent employment. In Romack and Whiteco Industries, Inc. v. Kopani, 514 N.E.2d 840 (Ind.Ct.App. 1987), Indiana's courts identified several factors that, together, could constitute independent consideration to support a promise of permanent employment: (1) the plaintiff must have relinquished "lifetime employment" or employment with guarantees of permanency to take the new position; (2) the defendant must have actively recruited the plaintiff to fill a position uniquely requiring a person possessing the plaintiff's precise skills and abilities; (3) the plaintiff must have advised the defendant that he would leave his existing job only if the new job with defendant offered the same permanency; and (4) the defendant must have told the plaintiff that he would have "permanent employment" if he accepted the job. "Merely surrendering an existing job in his own area of experience or expertise is insufficient." Whiteco, 514 N.E.2d at 846 . There is nothing in the record establishing that Defendant considered the Plaintiffs "uniquely qualified." Nor is there any evidence that Defendant actively recruited Plaintiffs by luring them away from their jobs in Virginia. Moreover, there is nothing in the record establishing that Plaintiffs' previous employment had any guarantees of permanency. Therefore, this Court is of the opinion that, based on the undisputed material facts, Defendant is entitled to summary judgment on Plaintiffs' breach of contract claims. (2) Promissory Estoppel [5] Under certain circumstances, Indiana's courts have recognized, as an alternative theory of recovery in employment cases, the equitable doctrine of promissory estoppel, which has been described as follows: "A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the [promisee] which does induce such action or forbearance is binding if injustice can be avoided only by the enforcement of the promise." Eby v. York Div., Borg-Warner, 455 N.E. 2d 623 , 627 (Ind.Ct.App.1983) (quoting Lyon Metal Prods., Inc. v. Hagerman Constr. Corp., 181 Ind.App. 336 , 391 N.E.2d 1152 , 1154 (1979)); see Rice v. Rent-A-Center of America, Inc., 664 F.Supp. 423 , 427 (N.D.Ind.1987); see also Restatement (Second) of Contracts § 90 (1981). "Promissory estoppel is appropriate in actions such as these when a party takes certain steps to his detriment in order to avail himself of promised employment." Eby v. York Div., Borg-Warner, 455 N.E.2d at 627; Rice v. Rent-A-Center of America, Inc., 664 F.Supp. at 427. To analyze Plaintiffs' promissory estoppel arguments, this Court must determine whether Plaintiffs have established the existence of genuinely disputed issues of material fact on four elements derived from the above formulation of the doctrine of promissory *1385 estoppel and applied to the facts of the present case: (1) whether Zimmer made a definite promise of employment to Plaintiffs which promise alone induced them to move to Indiana in reliance thereon; (2) whether Plaintiffs' move to Indiana constituted a substantial change; (3) whether Zimmer reasonably expected (or should have expected) that Plaintiffs would take such action; and (4) whether injustice can only be avoided by enforcing the promise. See Eby v. York-Div., Borg-Warner, 455 N.E.2d at 627 & n. 2. The first three elements are issues of fact, to which the fourth element, the equitable decision, is applied. Id. This Court is of the opinion that Defendant is entitled to summary judgment on Plaintiffs' promissory estoppel claims. First, it appears to this Court that Indiana's courts have never used a promissory estoppel theory to allow a plaintiff to recover anything more than moving expenses. Compare Eby v. York Div., Borg-Warner, 455 N.E.2d 623 (only seeking moving expenses) with Pepsi-Cola General Bottlers, Inc. v. Woods, 440 N.E.2d 696 (Ind.Ct.App.1982) (refusing to allow plaintiff, who was seeking enforcement of a contract for employment for a definite term, to use promissory estoppel). Plaintiffs in the present case are not seeking moving expenses. Second, Plaintiffs have failed to allege in their Complaints anything regarding Zimmer's reasonable expectation that its representations about permanent employment would cause Plaintiffs to move to Indiana. Third, Plaintiffs have failed to present any evidence to this Court that would establish a genuine issue of fact regarding Zimmer's reasonable expectations; the facts simply have not been pleaded or put into issue by way of affidavits or depositions. Fourth, and finally, Defendant's promises of "permanent employment" are too vague to satisfy the first element's requirement of definiteness. Therefore, this Court is of the opinion that summary judgment on Defendant's behalf is appropriate on Plaintiffs' claims resting on the doctrine of promissory estoppel. (3) Handbook Claims Plaintiffs also contend that the "bumping" policy, described in Zimmer's Handbook, became part of their employment contracts so that they were not terminable "at-will." See generally Annotation, Right to Discharge Allegedly "At-Will" Employee as Affected by Employer's Promulgation of Employment Policies as to Discharge, 33 A.L.R.4th 120 (1984). Under Indiana law, however, the existence of an employee handbook does not itself create an exception to the "terminable-at-will" rule. Mead Johnson & Co. v. Oppenheimer, 458 N.E.2d 668 , 670-671 (Ind.Ct.App.1984); Shaw v. S.S. Kresge Co., 167 Ind.App. 1 , 328 N.E.2d 775 (1975); Hostettler v. Pioneer Hi-Bred Int'l, Inc., 624 F.Supp. 169 , 172 (S.D.Ind.1985) ("in the absence of a promise for employment for a definite period of time, the existence or nonexistence of the employee handbook is immaterial"). The Indiana courts have refused to allow terminable-at-will employees to enforce employee handbook claims because in such cases there is a lack of mutuality of obligation or consideration between the employees and the employers. Campbell v. Eli Lilly & Co., 413 N.E.2d 1054 , 1062-63 (Ind.Ct.App.1980), transf. denied, 421 N.E.2d 1099 (Ind.1981); Shaw v. S.S. Kresge Co., 167 Ind.App. 1 , 328 N.E.2d 775 . Thus, even if this Court found that the Handbook's "bumping rights" are part of Plaintiffs' employment contracts, such promises are insufficient to restrict Zimmer's ability to discharge Plaintiffs at will at any time. VII. CONCLUSIONS NOW, THEREFORE, IT IS ORDERED Defendant's Motion for Partial Summary Judgment, filed July 8, 1988, is GRANTED. IT IS FURTHER ORDERED that Counts 2 and 3 of the Complaints in Gries v. Zimmer, C-C-87-576-P, and Moran v. Zimmer, C-C-87-577-P, are DISMISSED WITH PREJUDICE. NOTES [1] It is interesting to note that in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986), the Supreme Court recognized that Rule 56 of the Federal Rules of Civil Procedure does not require the trial judge to make findings of fact, although a statement of facts may be helpful to a reviewing court. Id. at 2511 & n. 6. Thus, this Court will provide, from its review of the entire record, a statement of facts, but such statement of facts is not intended to be exhaustive. For the purposes of the present motion, the parties have agreed upon the material facts. See Brief in Support of Defendant's Motion for Summary Judgment at 2; Plaintiffs' Consolidated Brief in Opposition to Motion for Summary Judgment at 1. [2] Specifically, Moran testified that his immediate supervisor told him that he should look for other employment because the new owners might put Moran into his supervisor's position; apparently, Moran's supervisor, to save his own job, contemplated firing Moran before the new owners arrived. (Moran Depo. at 18-19). [3] Moran has stated in his affidavit that Zimmer "actively recruited" him. (Moran Aff. at 1). Moran has failed, however, to support with specific facts this characterization of Zimmer's employment efforts. He simply states that he was promised he would be a "permanent employment who would be removed only for good cause." There is no evidence that Zimmer sought Moran because he possessed some special and hard-to-find qualities or skills. [4] To be fair, it should be noted that Defendant argued at the January 24th hearing that the issue is one of contract formation. [5] Although Plaintiffs have not specifically alleged in their Complaints a promissory estoppel theory of recovery, the parties have briefed the issue as if it appeared Plaintiffs' Complaints, and, therefore, this Court will address the issue. See Rice v. Rent-A-Center of America, Inc., 664 F.Supp. 423 , 424 (N.D.Ind.1987). | opinion_html_with_citations | 6,782 | 2013-10-30 06:51:51.693208+00 | 010combined | f | f | 1,587,382 | Robert D. Potter | null | LU | f | Published | 5 | Gries v. Zimmer, Inc. | Gries | Wayne R. GRIES, Plaintiff, v. ZIMMER, INC., Defendant; Michael J. MORAN, Plaintiff, v. ZIMMER, INC., Defendant | null | null | <parties id="b1454-11">
Wayne R. GRIES, Plaintiff, v. ZIMMER, INC., Defendant. Michael J. MORAN, Plaintiff, v. ZIMMER, INC., Defendant.
</parties><br><docketnumber id="b1454-15">
Nos. C-C-87-0576-P, C-C-87-0577-P.
</docketnumber><br><court id="b1454-16">
United States District Court, W.D. North Carolina, Charlotte Division.
</court><br><decisiondate id="b1454-19">
Feb. 28, 1989.
</decisiondate><br><attorneys id="b1455-12">
<span citation-index="1" class="star-pagination" label="1375">
*1375
</span>
Louis L. Lesesne, Jr., Gillespie, Lesesne & Connette, and Richard A. Vinroot, Robinson, Bradshaw & Hinson, Charlotte, N.C., for plaintiffs.
</attorneys><br><attorneys id="b1455-13">
Martin N. Erwin, Julie C. Theall, Smith Helms Mulliss & Moore, Greensboro, N.C., for defendant.
</attorneys> | null | null | null | null | null | null | 1,649,434 | C-C-87-0576-P, C-C-87-0577-P | 0 | ncwd | FD | t | W.D. North Carolina | District Court, W.D. North Carolina |
8,388,881 | Petition for writ of certiorari to the Court of Criminal Appeals of Tennessee, Middle Division, denied. | opinion_xml_harvard | 16 | 2022-10-24 21:17:56.871961+00 | 020lead | t | f | 8,418,535 | null | null | U | f | Published | 0 | Thomas v. Tennessee | Thomas | Calvin L. THOMAS v. TENNESSEE. | null | null | null | null | null | null | null | null | null | 65,614,543 | No. 13–10326. | 0 | scotus | F | t | Supreme Court | Supreme Court of the United States |
7,979,774 | Per Curiam. The court ordered defendant to pay plaintiff certain sums for attorney’s fees, suit money and support pendente lite of her divorce. Defendant appeals from the order. The reasonableness of each item awarded is conceded, but the contention is that the court was without authority to order defendant to pay anything whatever, because the showing disclosed that plaintiff owns certificates of deposit in banks to the amount of $1,806, and also a note for $400, secured by mortgage. Defendant is worth not less that $56,000 by 'his own admission. Temporary alimony, suit money and attorney’s fees are to be awarded cautiously. The statute, section 7119, G. -S. 1913, does not authorize the same, unless necessary for the wife’s support and for securing a proper presentation of her cause of action or defense to the court. Whether she has means of her own must be considered in determining the necessity of aid from the husband. But it was held in Stiehm v. Stiehm, 69 Minn. 461, 72 N. W. 708, that the fact that the wife in the divorce suit has some property does not preclude the court from awarding her temporary support money. Where the wife’s income from what property she- may own is not sufficient for her support and expenses while the divorce action is pending, or where it is not readily available for her immediate need, it is generally held proper for the *501court to compel the husband to contribute. Cooper v. Cooper, 185 Ill. 163, 56 N. E. 1059; Sellers v. Sellers, 141 Ind. 305, 40 N. E. 699; Campbell v. Campbell, 73 Iowa, 482, 35 N. W. 522; Rose v. Rose, 53 Mich. 585, 19 N. W. 195; Graves v. Graves, 143 App. Dlv. 923, 128 N. Y. Supp. 499; Merrit v. Merrit, 99 N. Y. 643, 1 N. E. 605; Bailey v. Bailey, 127 N. C. 474, 37 S. E. 502; Seads v. Seads, 27 Pa. Co. Ct. 26; 19 C. J. § 517, Title Divorce. We think the showing sufficient to warrant the court in the exercise of judicial discretion to order defendant to pay the several sums referred to. Order affirmed. | opinion_xml_harvard | 359 | 2022-09-09 01:04:02.713727+00 | 020lead | t | f | 8,024,130 | null | null | U | f | Published | 0 | Wetter v. Wetter | Wetter | HULDA E. WETTER v. WILLIAM F. WETTER | <p>Action for divorce in the district court for Carver county. Plaintiff moved for an order directing defendant to pay her or her attorneys $'56 for fees of officers and witnesses, $500 for fees of her attorneys and $106 per month for support of plaintiff and her youngest child. Prom an order, Tifft, X, directing the payment of $65 per month as temporary alimony, $35 for fees of officers and witnesses, and $175 for attorney’s fees, defendant appealed on the ground that the court abused his discretion in making the same.</p> | null | null | <p>Divorce —■ temporary alimony and attorney’s fee.</p> <p>Section 7119, G. S. 1913, does not authorize an award of temporary alimony, suit money and attorney’s fees, unless necessary for the wife’s support and for securing a proper presentation of her cause of action or defense to the court. The fact that the wife has some property does not foreclose the court from awarding her temporary support money. Stiehm v. Stiehm, 69 Minn. 461, 72 N. W. 708. [Reporter.]</p> <p>Same —amounts awarded were proper.</p> <p>Where plaintiff owned $1,800 in certificates of deposit and a mortgage of $406, and defendant admitted he was worth $56,600, the court did not err in directing defendant to pay $175 for attorney’s fees and $65 per month for plaintiff’s support. [Reporter.]</p> | null | null | null | Affirmed. | null | 65,119,649 | No. 21,698 | 0 | minn | S | t | Supreme Court of Minnesota | Supreme Court of Minnesota |
8,826,793 | Mr. Justice Dever delivered the opinion of the court. 5. Trial, §, 295*—when propositions of Taw should he tendered. Propositions of law should be tendered before announcement of final judgment. | opinion_xml_harvard | 30 | 2022-11-26 15:49:15.114057+00 | 020lead | t | f | 8,841,607 | Dever | null | U | f | Published | 0 | Thompson Bros. Feed Co. v. Neiman Bros. | null | Thompson Brothers Feed Company v. Neiman Brothers Company | <p>Appeal from the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in this court at the October term, 1916.</p> | null | null | <p>Abstract of the Decision.</p> <p>1. Account stated, § 25*—when evidence sufficient to show. Evidence held to support the finding of the court that the plaintiff’s claim arose on an account stated, in an action to recover for balance due after allowance of a disputed item.</p> <p>2. Cobpobations, § 354*—when hound hy action of officers. A corporation is bound by the action of its president and treasurer in accepting an account as an account stated.</p> <p>3. Pleading, § 153*—what defenses must he set up in affidavit of merits in action on account stated against a corporation. The defenses to an action against a corporation on an account stated, that the debt was due to an individual and that the agreement to pay the debt was voidable under the Statute of Frauds and was ultra vires as to the corporation, come too late when first made after the filing of an affidavit of merits; they should be specifically set up in such affidavit.</p> <p>4. Pleading, § 153*—when affidavit of merits is insufficient. In an action on an account' stated, an affidavit of merits held insufficient to show that the indebtedness sued on was that oí an individual and not the defendant corporation or that the defendant had entered into a voidable agreement to pay such indebtedness.</p> <p>5. Trial, §, 295*—when propositions of Taw should he tendered. Propositions of law should be tendered before announcement of final judgment.</p> | null | null | null | Affirmed. | null | 66,107,746 | Gen. No. 22,596 | 0 | illappct | SA | t | Appellate Court of Illinois | Appellate Court of Illinois |
3,531,217 | The purpose of this proceeding is twofold. First, to construe a will and, second, to partition the property in controversy. The will in question is that of C.C. Broyles and Margaret I., his wife. It is joint and bears date of April 11, 1889. C.C. Broyles died in 1896; Margaret I. Broyles died in 1924. The will was duly proved in the Probate Court of Barton County, in January, 1896. The plaintiffs, as well as the defendants, are the heirs at law of C.C. Broyles. The burden of the first count of the petition is that the terms of the will are too indefinite and uncertain to render the same operative as a devise of the real estate referred to. If this contention be sustained a partition will be authorized. Otherwise not. The paragraphs (3 and 4) of the will seeking construction are as follows: "3. At Margaret I. Broyles' death and after the expense of her last sickness and funeral has been paid, I direct my executors to transfer and deed all of my remaining estate to the trustees of Ozark College, an institution of learning owned and controlled by the Cumberland Presbyterian Church, situated at Greenfield, Dade County, Missouri, as an endowment fund to be loaned on real estate security perpetually, from year to year; the interest to be used to pay the school expenses of worthy young men, who are not able to educate themselves, and who declare their intention to become lifelong ministers of the Gospel in the Cumberland Presbyterian Church. "4. And if by any means or circumstances, the said Ozark College goes from the ownership of the Cumberland Presbyterian Church, or its control, then the nearest College, to the said Ozark College, that is owned and controlled by the Cumberland Presbyterian Church and is without incumbrance, or indebtedness shall become heir to the endowment fund as above described." The contention of Missouri Valley College, which was permitted to intervene, is that when Ozark College ceased to exist in the year 1901, it thereby terminated its connection with and was no longer under the control of the Cumberland Presbyterian Church and that the Missouri Valley College, being at the time the nearest college to said Ozark College owned and controlled by the Cumberland Presbyterian Church, and without incumbrance or indebtedness, became, under the terms of said will, entitled to the property or endowment fund mentioned in the will, subject to the life estate of Margaret I. Broyles. Further than this, that in the year 1906 there was a union or merger of the Cumberland Presbyterian Church and the Presbyterian *Page 74 Church in the United States of America, and that at the time of the death of Margaret I. Broyles in 1924, Missouri Valley College was the nearest college to said Ozark College, which in truth and in fact, was owned and controlled by the Cumberland Presbyterian Church without incumbrance or indebtedness; that by the terms of the will Missouri Valley College became entitled to the remainder in said property at the time Ozark College went out of existence in 1901, subject to the termination of the life estate. Bethel College, of the State of Tennessee, filed an answer and intervening petition in the cause, alleging that at the time of the death of Margaret I. Broyles in 1924, it was the nearest college to Ozark College, then owned and controlled by the Cumberland Presbyterian Church, without incumbrance or indebtedness. The issues were joined as aforesaid and upon a hearing a decree was entered in favor of the plaintiffs from which the interveners have appealed. I. The respondents contend that the grantee or beneficiary named in the will of C.C. Broyles after Ozark College ceased to exist is so indefinitely designated as to be incapable of identification. This contention is based on the rule that certainty of the identity of a devisee is necessary Indefinite to the validity of the will. There is no ground for Devisee . controversy as to the correctness of this rule under a proper state of facts. Supplemental thereto, however, and equally fundamental in the construction of a will, is the rule, that if a will is ambiguous in the designation of the beneficiary and can be made definite by evidence aliunde, such evidence is admissible to determine the intention of the testator. As illustrative of the application of these rules we held in Griffith v. Witten, 252 Mo. 627 , 641, that if a will is susceptible of construction and expresses a defined purpose, and that purpose contemplates the disposition of the testator's property, it will not be held to be void. The rule is stated more broadly in the later case of St. L. Union Tr. Co. v. Little (Mo.), 10 S.W.2d 47 and cases at page 51 et seq., to the effect that a will cannot be held to be void for uncertainty, unless it is absolutely impossible to put a fair meaning upon the terms used. In all of these cases the pole star of interpretation is the testator's intention. This cardinal doctrine has found recent expression in Coleman v. Haworth (Mo.), 8 S.W.2d 93 , in which it is held that a court must find the testator's general purpose, reconcile the conflicting provisions, if reasonably possible, and reduce the testator's intent to articulate terms. In an early case, Barkley v. Donnelly, 112 Mo. 561 , the will contained a devise providing for the establishment of a home and place for the maintenance and education of poor children and it was held *Page 75 not to be too indefinite and uncertain in its terms to be enforced in equity. In the cases cited by the respondents to sustain their contention as to the invalidity of the will on account of uncertainty it will be found upon examination that the facts in those cases in which it was held that the wills there under review were void for uncertainty, are entirely different from those in the instant case. They cannot, therefore, be fairly held to support the respondents' contention. II. In the light of the facts, therefore, guided by the rule of construction stated, is the will of C.C. Broyles void for uncertainty? Preliminary to a detailed statement of the facts it is beyond controversy that upon the death of When Contingent C.C. Broyles the title to his property, subject Remainder to the life estate of Margaret I. Broyles, was Becomes Vested . invested in Ozark College, then owned and controlled by the Cumberland Presbyterian Church, which said property was to constitute an endowment fund to be loaned upon real estate security, perpetually from year to year, the interest arising therefrom to be used to defray the cost of education of young men unable to educate themselves and whose intentions are to become life ministers of the Cumberland Presbyterian Church. At the time of the making of C.C. Broyles's will and at his death, Ozark College was under the jurisdiction of the Cumberland Presbyterian Church and was engaged in the education of young men for the ministry of that church. The devise, therefore, so far as concerns Ozark College is not assailed for uncertainty, if said college had been in existence at the time of the death of Margaret I. Broyles. It is contended, however, that since Ozark College ceased to exist in 1901 and on account of the merger of the Cumberland Presbyterian Church with the Presbyterian Church in the United States, in 1906, that the beneficiary has become indefinite and uncertain. The corporate character of the Missouri Valley College as an educational institution devoted to the education of ministers of the Presbyterian Church is not denied, or if denied it is enough to say that it is affirmatively shown by the testimony; nor is there any dispute that at the time Ozark College ceased to exist in 1901 it passed out of the control and jurisdiction of the Cumberland Presbyterian Church and that Missouri Valley College was at the time the nearest college to Ozark College, owned and controlled by the Cumberland Presbyterian Church. The contention is made, however, that the remainder in the property devised by C.C. Broyles did not vest in Missouri Valley College at the time Ozark College ceased to exist, but if at all, upon the death of Margaret I. Broyles in 1924, and that at that time Missouri Valley College had ceased to be Cumberland *Page 76 Presbyterian in character. C.C. Broyles was the owner of the fee in the land devised. Upon his death his will became operative, so far as concerns the beneficiaries named and the estates created. Upon his widow Margaret I. Broyles not only acquiescing in the will and refusing to renounce its provisions she became invested with the life tenancy and by operation of law, under the terms of the will, the other beneficiaries became entitled to remainders, subject to the contingencies mentioned. Under these facts it is evident that the estates created began to exist upon his death and not that of his wife. Incidentally, it is contended, notwithstanding uncontradicted testimony to the contrary, that the Missouri Valley College was not under the control of the Cumberland Presbyterian Church at the time Ozark College ceased to exist, because it was controlled by a board of trustees, although such trustees were elected by a synod of the Cumberland Presbyterian Church. It is a sufficient answer to this contention that the courts held that boards which incorporate civic organizations such as the Missouri Valley College are but agencies or instrumentalities of the church and subject to its control, ownership and dominion. [Helm v. Zarecor, 222 U.S. 32 ; Synod of Kansas v. Mo. Valley College, 208 Fed. l.c. 324; Barkley v. Hayes, 208 F. 319 ; Watson v. Jones, 13 Wall. 379 .] Under the testimony, therefore, and the rulings of the Federal courts above cited, when Ozark College ceased to exist Missouri Valley College, being a corporate entity, owned and controlled by the Cumberland Presbyterian Church and the nearest college of that character to Ozark College, Missouri Valley College, under the clear terms of the will and subject to the life estate of Margaret I. Broyles, became invested with a remainder in the estate devised. This estate, under the express terms of the will, was subject to a condition subsequent, that upon Ozark College ceasing to exist or as the will has it (Par. 4), "goes from the ownership of the Cumberland Presbyterian Church, or its control, then the nearest college owned and controlled by said church, without incumbrance or indebtedness, shall become heir to the endowment fund above described." III. The title or estate of Missouri Valley College upon the death of the testator was that of a contingent remainder to become vested, upon the termination of the life estate and the passing of Ozark College from the control and ownership of the Cumberland Presbyterian Church. In this connection it may be added that so far as concerns the rights and Upon Happening property interests of Missouri Valley College, of Contingency . under the will, they are unaffected by the character of the estate granted to Ozark College, whether vested or contingent. Upon the happening of the *Page 77 contingencies mentioned, the interest of the nearest college of like faith to Ozark College became vested. Numerous authorities sustain the conclusion that the law favors vested estates and where there is doubt as to whether an estate is vested or contingent the courts will construe it to be vested. [Tindall v. Tindall, 167 Mo. l.c. 225; Chew v. Keller, 100 Mo. l.c. 368.] Furthermore, the rule is that an estate shall be held to vest at the earliest possible moment in the absence of a contrary intention manifested in the grant. [Warne v. Sorge, 258 Mo. l.c. 171; Heady v. Hollman, 251 Mo. 632 .] See also Green v. Irvin, 309 Mo. 302 , where many cases on vested and contingent remainders are cited and considered. IV. The respondents, although conceding the certainty or definiteness of the devise to Ozark College and that it is in the nature of a charitable trust, contend that there existed no lawful taker when that college ceased to exist or, in other words, that there is no such designation in the will, Indefinite as the law requires, to create the trust. This Taker . contention is not supported by the facts. It was shown without contradiction that Missouri Valley College was a corporate entity; that it was of the faith and doctrine of the Cumberland Presbyterian Church; that its proximity to Ozark College at the time the latter ceased to exist was, under the terms of the will, such as to entitle it to the estate, subject to the life tenure of Margaret I. Broyles. V. It is also contended that after the merger in 1906 of the Cumberland Presbyterian Church with the Presbyterian Church of the United States, Ozark College, having ceased to exist in 1901, the beneficiary was rendered so uncertain as to Merger of destroy any claim of Missouri Valley College to the Churches . endowment under the terms of the will. This contention is based upon the mistaken assumption that the right of Missouri Valley College to a remainder did not arise until the death of the life tenant, Margaret I. Broyles, in 1924. We have adverted to the fact, which we repeat, that the right of the college as a remainderman came into existence upon the death of the testator in 1896. While it was contingent in its nature, first, upon the determination of the life estate, and second, upon Ozark College ceasing to exist, neither contingency can in reason render less certain the terms of the will or lessen the interest of Missouri Valley College, in the endowment fund. In addition, it appears that at the time of the merger of the two churches there was no material difference between their respective cardinal doctrines. Their merger therefore was purely material and did not affect either their faith or practice and the assumed passing out, *Page 78 as contended by the respondents, of Missouri Valley College from the ownership of the Cumberland Presbyterian Church, cannot be said to be more than nominal. This aside, however, the prior creation of Missouri Valley College's interest in the endowment fund and its continued existence forestalls any argument that may be made as to the effect of the merger upon that interest. We, therefore, hold that there is no vagueness or uncertainty in the will, either as to the beneficiaries or the nature of the interest devised; and that Missouri Valley College became entitled, upon the termination of the contingencies mentioned, to a vested interest in the endowment fund provided for in the will for the purposes therein defined. This finding forecloses the claim of Bethel College to any interest in the endowment fund and denies the claims thereto of the respondents as heirs at law of C.C. Broyles. The judgment of the trial court is, therefore, reversed and remanded with directions to proceed herein as indicated in this opinion. All concur. | opinion_html_with_citations | 2,524 | 2016-07-05 22:43:49.31555+00 | 020lead | f | f | 3,554,949 | Walker | null | ZU | f | Published | 4 | Bishop v. Broyles | Bishop | Columbus Bishop Et Al. v. James Broyles Et. Al.; Missouri Valley College and Bethel College, Interveners and Appellants | null | null | <parties id="b105-4">
Columbus Bishop et al. v. James Broyles et. al.; Missouri Valley College and Bethel College, Interveners and Appellants.
</parties><citation id="AVVc">
22 S. W. (2d) 790.
</citation><br><court id="b105-5">
Division Two,
</court><decisiondate id="As6">
December 11, 1929.
</decisiondate><br><attorneys id="b106-6">
<span citation-index="1" class="star-pagination" label="70">
*70
</span>
<em>
Henry 8. Cpnrad, L. E. Durham
</em>
and
<em>
Hale Houts
</em>
for appellant Missouri Valley College.
</attorneys><br><attorneys id="b107-7">
<span citation-index="1" class="star-pagination" label="71">
*71
</span>
<em>
Thos. W. Martin
</em>
for appellant Bethel College.
</attorneys><br><attorneys id="b108-6">
<span citation-index="1" class="star-pagination" label="72">
*72
</span>
<em>
11. C. Hembree
</em>
and
<em>
H. L. Moore
</em>
for respondents.
</attorneys> | null | Appeal from Barton Circuit Court. — Hon. B.G. Thurman, Judge.
REVERSED AND REMANDED ( with directions ). | null | null | null | null | 3,427,074 | null | 0 | mo | S | t | Supreme Court of Missouri | Supreme Court of Missouri |
8,940,245 | Supreme Court of Appeals of Virginia. Certiorari granted. | opinion_xml_harvard | 8 | 2022-11-27 07:52:52.309003+00 | 020lead | t | f | 8,949,525 | null | null | U | f | Published | 0 | National Ass'n for the Advancement of Colored People v. Harrison | Harrison | National Association for the Advancement of Colored People v. Harrison, Attorney General of Virginia | null | null | null | null | null | null | null | null | null | 66,215,740 | No. 689 | 0 | scotus | F | t | Supreme Court | Supreme Court of the United States |
4,364,341 | MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 04 2019, 10:41 am court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case. ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Daniel Hageman Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Matthew S. Koressel Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Sharon Louie, February 4, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1856 v. Appeal from the Marion Superior Court State of Indiana, The Hon. Clayton A. Graham, Appellee-Plaintiff. Judge Trial Court Cause No. 49G07-1801-CM-1030 Bradford, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1856 | February 4, 2019 Page 1 of 5 Case Summary [1] In July of 2018, the trial court sentenced Sharon Louie following her conviction for Class A misdemeanor operating a vehicle while intoxicated (“OWI”). The trial court sentenced Louie to four days of incarceration to be followed by 361 days of probation, stating in open court that Louie would not be required to pay any probation fees. The trial court also issued several documents, some of which indicated that Louie would pay no probation fees and others of which indicated that she would pay $340.00 in probation fees. Louie contends that the record establishes that the trial court did not intend to impose any probation fees, while the State argues the opposite. Because we agree with Louie, we remand with instructions to revise the record as necessary to reflect the imposition of no probation fees. Facts and Procedural History [2] On July 10, 2018, the trial court found Louie guilty of Class A misdemeanor OWI and sentenced her to 365 days of incarceration, with 361 days suspended to probation. Louie was also assessed a $200.00 statutory countermeasure fee and $185.50 in court costs. After Louie indicated that she had already completed an Advocates Against Impaired Driving (“AAID”) destructive decision panel class and alcohol evaluation and treatment (“AET”), the trial court stated that Louie would not be assessed a $400.00 alcohol/drug services fee unless it turned out that she had not, in fact, completed the services. The trial court also stated, Court of Appeals of Indiana | Memorandum Decision 18A-CR-1856 | February 4, 2019 Page 2 of 5 Ms. Louie will be permitted to go to non-reporting probation once it is verified that she’s completed her AAID Destructive Decision Panel class, her alcohol evaluation and treatment, and she pays her Court costs in the amount of $185.50. [….] So she’s not going to be assessed a probation fee. How soon can you pay your Court costs, ma’am, assuming that you’ve done everything else that you say that you’ve done, because that’s going to determine certain probation fees. Tr. Vol. II p. 56. [3] Also on July 10, 2018, the trial court issued several post-hearing orders and documents. The trial court’s hand-written minutes from the bench trial made no mention of probation fees, indicating that “PROB becomes non-reporting after AAID & AET completed & pmt of court costs[.]” Conf. App. Vol. II 59. Moreover, the probation order did not order the payment of any probation fees, with the spaces on the form for their entry left blank. Other portions of the record, however, do seem to indicate the imposition of $340.00 in probation fees, contradicting the trial court’s statement at sentencing. Specifically, the chronological case summary, sentencing order, and order on fees and costs listed probation fees totaling $340.00. Discussion and Decision [4] Both parties acknowledge the inconsistencies regarding the imposition of probation fees on Louie. Louie argues that the record, as a whole, indicates that the trial court did not intend to impose probation fees and asks us to vacate Court of Appeals of Indiana | Memorandum Decision 18A-CR-1856 | February 4, 2019 Page 3 of 5 any portions of the record indicating otherwise. The State argues that the record supports the opposite conclusion, i.e., that the trial court intended to impose probation fees. “Generally, sentencing determinations are within the trial court’s discretion.” McElroy v. State, 865 N.E.2d 584 , 588 (Ind. 2007). “We review the trial court’s sentencing decision for an abuse of that discretion.” Id. “An abuse of discretion has occurred when the sentencing decision is ‘clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.’” Id. (quoting K.S. v. State, 849 N.E.2d 538 , 544 (Ind. 2006)). “The approach employed by Indiana appellate courts in reviewing sentences in non- capital cases is to examine both the written and oral sentencing statements to discern the findings of the trial court.” McElroy, 865 N.E.2d at 589 . “Rather than presuming the superior accuracy of the oral statement, we examine it alongside the written sentencing statement to assess the conclusions of the trial court.” Id. “This Court has the option of crediting the statement that accurately pronounces the sentence or remanding for resentencing.” Id. We conclude that the record supports Louie’s interpretation of it. [5] At sentencing, the trial court unequivocally stated on the record that Louie was “not going to be assessed a probation fee.” Tr. Vol. II p. 56. Despite some contradictory indications in documents generated thereafter, much of the documentary record, including the trial court’s handwritten minutes from the bench trial and the probation order, is consistent with the trial court’s oral statement. In our view, the trial court’s handwritten minutes are especially Court of Appeals of Indiana | Memorandum Decision 18A-CR-1856 | February 4, 2019 Page 4 of 5 compelling evidence of its intent, as they could not have been simply copied and pasted onto the page. As for the documents that are inconsistent with the trial court’s statement (which could, for the most part, be described as “boilerplate”), we are confident that they represent clerical errors. Given the trial court’s unequivocal statement at sentencing and the documents consistent with it, we conclude that it is a true reflection of the trial court’s intent. We remand with instructions to revise the record as necessary to reflect the initial imposition of no probation fees. See Willey v. State, 712 N.E.2d 434 , 446 (Ind. 1999) (“Based on the unambiguous nature of the trial court’s oral sentencing pronouncement, we conclude that the [inconsistent] Abstract of Judgment and Sentencing Order contain clerical errors and remand this case for correction of those errors.”).1 [6] We affirm the judgment of the trial court and remand with instructions. Bailey, J., and Brown, J., concur. 1 That said, it seems just as clear to us that the trial court intended its initial non-imposition of probation fees to be conditioned on Louie’s prompt payment of court costs and resulting qualification for non-reporting probation. This intent is indicated by the trial court’s question to Louie about when she would be able to pay her court costs, “because that’s going to determine certain probation fees.” Tr. Vol. II p. 56. Put another way, while Louie was not ordered to pay any probation fees initially, the trial court left open the possibility that she could be ordered to pay probation fees if she does not pay her court costs and qualify for non- reporting probation. We do not wish our decision to be understood as tying the trial court’s hands regarding the possible imposition of probation fees in the future. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1856 | February 4, 2019 Page 5 of 5 | opinion_html_with_citations | 1,274 | 2019-02-04 16:08:10.04735+00 | 010combined | f | f | 4,587,088 | null | null | C | f | Published | 0 | Sharon Louie v. State of Indiana (mem. dec.) | null | null | null | null | null | null | null | null | null | null | null | 14,532,970 | 18A-CR-1856 | 0 | indctapp | SA | t | Indiana Court of Appeals | Indiana Court of Appeals |
9,627,650 | JOHNSON, J., concurring. In the Penal Code, there are a number of offenses that differ only in the required mental state, and because of the required mental state, have different ranges of punishment. E.g., murder under section 19.02(b)(1) (intentionally and knowingly causes the death of an individual; 1st degree felony) and manslaughter under section 19.04 (recklessly causes the death of an individual; 2nd degree felony); criminal mischief under section 28.03 (intentionally and knowingly damages or destroys property of another without consent; Class A, B, or C misdemeanor, depending on amount of damage) and reckless damage or destruction under section 28.04 (recklessly damages or destroys property of another without consent; Class C misdemeanor regardless of amount of damage). Other offenses have no required mental state, such as intoxication offenses (section 49.11). For other offenses, such as sexual assault under sections 22.011 or 22.021, “reckless” commission borders on the absurd. For other offenses, such as the one here, mental state is more similar to “manner and means” than to “lesser-included offense.” By the very use of the word “lesser,” the term connotes an act that is less blameworthy and, therefore, subject to lesser censure and a lesser punishment. If this were not so, we would use the term “included offense” instead. Texas statutes bear this out: misdemeanor theft involves a smaller loss than the higher felony charge; misdemeanor assault involves lesser injury than the felony, aggravated assault. While the statute says that “lesser-included offense” includes an offense that “differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission ...,” to say that a less culpable mental state is sufficient, in and of itself, leads to absurd results. The offense alleged by the indictment in this case, aggravated assault, Penal Code § 22.02(a),defines the elements of that offense as: 1) an assault as defined in § 22.01 (“intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse”); and 2) “causes serious bodily injury to another, including the person’s spouse....” In this case, the indictment alleged only intentionally and knowingly, thereby restricting the elements of the offense to “intentionally and knowingly causes serious bodily injury to another.” It cannot be denied that bodily injuries which cause death are serious. If we are to determine whether an offense is a lesser-included one based solely on whether it requires a less culpable mental state, then, under this indictment, manslaughter, Penal Code § 19.04 (“A person commits an offense if he recklessly causes the death of an individual.”) is a lesser-included offense of aggravated assault. It is at least arguable that, under the indictment at issue here, murder under § 19.02(b)(2)(“intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual”) is also a lesser-included offense of aggravated assault. The Legislature has shown itself able to explicitly delineate what behavior shall constitute an offense and what shall not. In the statute at issue here, the legislature decreed that recklessly causing injury is an offense, while recklessly threatening injury is not. Section 22.01 Assault. *267(a) A person commits an offense if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another [[Image here]] (2) intentionally or knowingly threatens another with imminent bodily injury ... or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Section 22.02. Aggravated Assault (a) A person commits an offense if the person commits assault as defined in Section 22.01 and.... The prescribed punishment ranges appear to be based on harm to another, rather than on mental state. An offense under § 22.01(a)(1) requires physical injury and is punishable as a Class A misdemeanor, while (a)(2) and (a)(3) do not involve physical injury and are punishable by fine only. Clearly, (a)(2) and (a)(3) are lesser-included offenses of (a)(1), because they are proved by less than all the facts required to prove (a)(1), specifically, physical injury. Subsection (a)(1) however, prescribes the same punishment for all three included mental states, indicating that the gravamen of assault under (a)(1) is injury, not the manner in which it was inflicted, whether intentionally, knowingly, or recklessly. Notice requirements mandate that manner and means be plead in the indictment so that the defendant has an adequate opportunity to prepare and present a defense. The state cannot allege murder by knife, prove murder by slow poison, and still obtain a valid conviction. Here, the state gave notice that the manner of commission was knowingly and intentionally. It may not now rely on recklessly. Indeed, that reliance is foreclosed by the state’s failure to comply with the specific notice requirements of Code of Crim. Proc. Art. 21.15. I join the judgment of the Court. | opinion_xml_harvard | 807 | 2023-08-22 08:49:35.133972+00 | 030concurrence | f | f | 1,427,807 | Cochran, Hervey, Holcomb, Johnson, Keasler, Keller, Meyers, Price, Womack | null | LU | f | Published | 56 | Reed v. State | Reed | Anthony James REED, Appellant, v. the STATE of Texas | null | null | <parties id="b280-3">
Anthony James REED, Appellant, v. The STATE of Texas.
</parties><br><docketnumber id="b280-6">
No. 1410-01.
</docketnumber><br><court id="b280-7">
Court of Criminal Appeals of Texas.
</court><br><decisiondate id="b280-8">
May 14, 2003.
</decisiondate><br><attorneys id="b280-22">
Robert H. Rogers, Dallas, for appellant.
</attorneys><br><attorneys id="b280-23">
Katherine A. Drew, Assist. DA, Dallas, Matthew Paul, State’s Attorney, Austin, for state.
</attorneys> | null | null | null | null | null | null | 895,916 | 1410-01 | 0 | texcrimapp | SA | t | Court of Criminal Appeals of Texas | Court of Criminal Appeals of Texas |
8,566,522 | RESOLUCIÓN Examinada la Moción Solicitando Reinstalación, se au-toriza la reinstalación del Sr. José A. De la Texera Barnes al ejercicio de la abogacía, por haber cumplido el término de la suspensión decretada. Notifíquese por telefax y por la vía ordinaria. Lo acordó el Tribunal y certifica la Secretaria del Tribunal Supremo. El Juez Presidente Señor Hernández Denton no intervino. (Fdo.) Aida Ileana Oquendo Graulau Secretaria del Tribunal Supremo | opinion_xml_harvard | 68 | 2022-11-23 13:07:33.68004+00 | 020lead | t | f | 8,590,715 | Acordó, Certifica, Denton, Fdo, Intervino, Supremo | null | U | f | Published | 0 | In re De la Texera Barnes | null | In re José A. De la Texera Barnes y José G. Marrero Luna | null | null | null | null | null | null | null | null | null | 65,853,185 | Número: CP-1995-15 | 0 | prsupreme | TS | f | Supreme Court of Puerto Rico | Supreme Court of Puerto Rico |
6,434,171 | By the Court. This is a bill in equity seeking the disbarment of an attorney at law. It was begun by an ordinary writ of summons and attachment. Such a proceeding cannot be instituted or maintained in this way. Boston Bar Association v. Greenhood, 168 Mass. 169, 182. Boston Bar Association v. Casey, 211 Mass. 187; 227 Mass. 46, 51. Randall, petitioner, 11 Allen, 473. Matter of Allin, 224 Mass. 9. Decree affirmed. | opinion_xml_harvard | 73 | 2022-06-25 12:10:58.911948+00 | 020lead | t | f | 6,560,422 | null | null | U | f | Published | 0 | Philbrick v. Creed | Philbrick | Edward W. Philbrick v. Edward C. Creed & another | <p>Bill in equity, inserted in a common law writ dated February 9, 1917, against an attorney at law and the Bar Association of the City of Boston, praying that the defendant attorney be removed from his office and that the defendant association “ show cause, if any it has,” why this prayer should not be granted.</p> <p>The defendant Creed inserted in his answer matter in lieu of a demurrer, averring (1) that there is no precedent nor justification for beginning a disbarment proceeding by a writ, and (2) that there is no precedent nor justification for instituting disbarment proceedings on the equity side of the court.</p> <p>The defendant Bar Association of the City of Boston in its answer also demurred to the bill.</p> <p>The case was heard upon the demurrers by Brown, J., who made a decree that the special matter by way of demurrer contained in the answer of the defendant Creed be sustained and that the demurrer of the Bar Association of the City of Boston also be sustained, and ordering further that the bill be dismissed. The plaintiff appealed.</p> | null | null | <p>Equity Jurisdiction, Disbarment proceedings. Attorney at law, Disbarment proceedings.</p> <p>A suit in equity, begun by a common law writ, cannot be maintained for the disbarment of an attorney at law.</p> | null | null | null | null | null | 63,490,429 | null | 0 | mass | S | t | Massachusetts Supreme Judicial Court | Massachusetts Supreme Judicial Court |
1,944,212 | 52 B.R. 960 (1985) In re CROUTHAMEL POTATO CHIP CO. Civ. A. No. 85-0048. United States District Court, E.D. Pennsylvania. July 23, 1985. *961 *962 Michael H. Reed, Barbara Sagar, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for trustee. Stewart Fishbein, Tax Div., Dept. of Justice, Washington, D.C., for the United States. Thomas W. Jennings, William J. Einhorn, Kent Cprek, Philadelphia, Pa., for union. MEMORANDUM LOUIS H. POLLAK, District Judge. This action involves appeals from two orders entered by Chief Bankruptcy Judge Emil F. Goldhaber dated November 23, 1984 and December 4, 1984. The November 23, 1984 Order, 43 B.R. 937 , sustained the trustee's objection to a proof of claim for wages and benefits (No. 143) filed by the International Association of Machinists and Aerospace Workers, Local No. 1092, District No. 152 ("the Union"). The December *963 4, 1984 Order, 44 B.R. 537 , denied a motion for reconsideration of Chief Judge Goldhaber's October 31 Order sustaining the trustee's objection to the Union's proof of claim for holiday pay related to the Thanksgiving holiday of 1979 (No. 106). Appellate jurisdiction of these appeals rests in this court pursuant to 28 U.S.C. § 158 (a). Because the orders appealed from involve different legal issues and different claims, I will consider them separately. A. Claim No. 106 The debtor filed its petition for reorganization under Chapter 11 of the Bankruptcy Code on October 16, 1979. [1] On that same day, the debtor dismissed all of its employees. The Union filed a proof of claim for $4,804.72 which it claims is due to all employees of the debtor who were working just prior to October 16, 1979. That proof of claim relates solely to holiday pay for the two-day Thanksgiving holiday of 1979 which the Union alleges is properly due to the employees pursuant to the collective bargaining agreement in effect between the Union and the debtor at the time the debtor filed for bankruptcy. The portion of that collective bargaining agreement under which the Union seeks to base its claim is found in Article 9 subparagraph 9.8. 9.8 Holidays will be paid to employees laid off or on non-occupational sickness or disability absence, providing the employee had worked sometime within forty-five (45) working days prior to the holiday. Employees on occupational disability or occupational illness leave will be paid holiday pay, should the holiday occur within twelve (12) months from the date of such leave. The trustee does not dispute that the employees of the debtor are entitled to recover holiday pay but disagrees with the Union's assertion that this holiday pay claim should be accorded priority status over the claims of other unsecured creditors under 11 U.S.C. § 507 . [2] The Union contends that this claim should be entitled to priority over other unsecured claims pursuant to subsections (a)(1) or (3) of section 507. Subsection (a)(1) grants first priority to claims for "administrative expenses allowed under section 503(b) of this title, and any fees and charges assessed against the estate under chapter 123 of title 28." Subsection (a)(3) accords third priority to "allowed unsecured claims for wages, salaries, or commissions, including vacation, severance, and sick leave pay (A) earned by an individual within 90 days before the date of the filing of the petition or the date of the cessation of the debtor's business, whichever occurs first" to the extent of $2000 per employee. Chief Judge Goldhaber rejected the Union's position in an Opinion and Order dated October 31, 1984 and denied the Union's motion for reconsideration in an Opinion and Order dated December 4, 1984. On appeal, the Union reasserts its contention that the holiday pay claim should receive first or third priority pursuant to section 507. The trustee disputes the merits of the Union's arguments with regard to the priorities established by section 507 and also contends that this court should not consider the merits of the appeal of this claim because the appeal was filed solely from the order of the Bankruptcy Court denying the motion for reconsideration. Therefore, the trustee asserts, the sole issue for this court to consider is whether *964 the Bankruptcy Court abused its discretion in denying the motion for reconsideration. Rule 8002 of the Bankruptcy Rules states that a notice of appeal shall be filed within ten days of the date of the entry of the judgment or order appealed from. Rule 8002(a). However, if a timely motion for reconsideration of that order or judgment is filed in the Bankruptcy Court, the time for appeal of the underlying order or judgment is extended to ten days from the entry of an order resolving the motion for reconsideration. Rule 8002(b). See In re Branding Iron Steak House, 536 F.2d 299 (9th Cir.1976) (motion for reconsideration delays time within which appeal must be filed); Indemnity Ins. Co. of North America v. Reisley, 153 F.2d 296 (2d Cir.1945), cert. denied 328 U.S. 857 , 66 S.Ct. 1349 , 90 L.Ed. 1629 (1946). The trustee's argument that the merits of the October 31, 1984 decision of the Bankruptcy Court are not properly before this court on appeal arises out of a very narrow construction of the notice of appeal filed by the Union. The trustee contends that because that notice of appeal cites solely to the December 4 decision of the Bankruptcy Court, only that December 4 ruling is properly before this court on appeal. However, although the trustee is correct that the notice of appeal does not refer directly to the October 31 Opinion and Order of Chief Judge Goldhaber, the statement of issues on appeal in the Union's designation of issues and record on appeal clearly indicates that the Union wishes to appeal the Bankruptcy Court's conclusions that the Union's claim for holiday pay should not receive priority under either subsection 3 or subsection 1 of section 507(a). Because it is clear from the designation of issues and record filed on appeal that it was the intention of the Union to appeal both the December 4, 1984 order denying the motion for reconsideration and the October 31, 1984 ruling which led up to the motion for reconsideration, I am unwilling to conclude that the technicality relied upon by the trustee should bar appellate review of the correctness of the Bankruptcy Court's decision on the merits. [3] 1. Unsecured claims for wages earned within 90 days before filing of the petition The sole question raised on this appeal with regard to the Union's assertion that the holiday pay claim under paragraph 9.8 of the collective bargaining agreement should receive priority pursuant to § 507(a)(3) is whether the holiday pay was "earned" within 90 days prior to the filing of the bankruptcy petition. The Union asserts that, under the collective bargaining agreement, the right to holiday pay vests when an employee who worked within forty-five days of the holiday is laid off. Therefore, the Union contends, since the employees were laid off at the time of the filing of the bankruptcy petition, which was within forty-five days of the holiday, the employees had a vested right to the holiday pay at the time the petition was filed. The trustee argues that holiday pay for the Thanksgiving holiday could not be earned until the holiday had arrived because, as a matter of accounting and logic, one cannot earn wages for a day which has not yet passed. Therefore, the trustee asserts, the holiday pay sought by the Union through claim 106 cannot have been earned prior to the filing of the petition as required by § 507(a)(3). The question when the holiday pay was, or was to be, "earned" in this case is a question of law which turns upon the interpretation of that term in the statute and the construction of the collective bargaining *965 agreement. Thus, on appeal, this court must consider the issue de novo. To determine whether a particular claim for wages has been earned within the statutory period prior to the filing of the bankruptcy petition does not involve an inquiry into when the debtor would have been required to pay the claim. Wages are earned within the meaning of § 507(a)(3) if they are owing at the time of the filing of the petition, In re Public Ledger, 161 F.2d 762 , 769 n. 5 (3d Cir.1947), or if they have accrued at that point. In re Ad Service Engraving Co., 338 F.2d 41 (6th Cir.1964); United States v. Munro-Van Helms Co., 243 F.2d 10 (5th Cir.1957); Division of Labor Law Enforcement v. Sampsell, 172 F.2d 400 (9th Cir.1949); In re Kinney Aluminum Co., 78 F.Supp. 565 (S.D.Cal.1948); 3 Collier on Bankruptcy ¶ 507.04[e] at 507-30 (1985). In other words, the question for the court is not when, as a matter of accounting, the employee could obtain the funds but when, as a matter of contract, the employee's right to receive those funds was fixed and could not be taken from him by the occurrence of some contingent event. See United States v. Munro-Van Helms Co., 243 F.2d 10 , 13 (5th Cir. 1957) ("On that day their rights became unconditional and absolute and these rights then accrued.") The Union asserts that the employees' right to holiday pay for the Thanksgiving holiday accrued when they were laid off within forty-five days of the holiday. However, the right to holiday pay pursuant to paragraph 9.8 of the collective bargaining agreement turns upon (1) whether an employee has worked within forty-five days of the holiday and (2) whether, on the day of the holiday, the employee is laid off. Thus, the date of layoff is only relevant to the recovery of holiday pay under paragraph 9.8 to the extent it establishes that the employee last worked within forty-five days of the holiday. If the employee is laid off within forty-five days of the holiday but is not still laid off on the holiday, the employee may only qualify for holiday pay if he or she meets one of the other holiday pay provisions in the collective bargaining agreement. For example, an employee who is not laid off or disabled at the time of the holiday must work the last day prior to the holiday and the first day after holiday or establish a reasonable excuse for failure to work on those days. Paragraph 9.6. Thus, the right to receive holiday pay, even for an employee laid off forty-five days prior to the holiday, turns upon whether the employee is still laid off at the time of the holiday. Therefore, the right to receive holiday pay cannot accrue until the holiday has occurred and all of the elements necessary to recover holiday pay pursuant to paragraph 9.8 can be established. See Division of Labor Law Enforcement v. Sampsell, 172 F.2d 400 , 402 (9th Cir.1949) (vacation pay contingent upon employee having completed a year's continuous service does not accrue if business closes prior to employee's completion of that year); In re Kinney Aluminum Co., 78 F.Supp. 565 (S.D.Cal.1948) (vacation pay contingent upon employee being on the payroll during the period of May 1 to October 31 did not accrue for employees laid off prior to May 1). Cf. In re Stunzi, U.S.A., Inc., 7 B.R. 401 (Bank.W.D.Va.1980) (vacation pay contingent upon minimum hours of service and years of service as of June 1 did accrue prior to bankruptcy for employees laid off on April 4 since all had completed sufficient years of service and hours of service prior to April 4 and could not be divested of the right to the vacation pay between April 4 and June 1 without just cause). Under these circumstances, the holiday pay for the Thanksgiving holiday could not have accrued or been earned at the time of the filing of the bankruptcy petition. Accordingly, Claim No. 106 cannot be accorded priority status pursuant to 11 U.S.C. § 507 (a)(3). [4] *966 2. Administrative expense claim Section 507(a)(1) accords priority to administrative expenses as defined by section 503(b). The Union contends that the holiday pay claim falls within subsection (1)(A) of section 503(b) which defines administrative expenses as: the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case. It is well settled that a claim for wages or benefits earned post-petition is only recoverable as an administrative expense if the payment conferred some benefit on the debtor-in-possession or trustee. In re Matter of Jartran, Inc., 732 F.2d 584 , 587 (7th Cir.1984); In re Matter of Unishops, Inc., 553 F.2d 305 , 308 (2d Cir.1977); In re Mammoth Mart, Inc., 536 F.2d 950 , 954 (1st Cir.1976). In addition, in its 1947 decision In re Public Ledger, 161 F.2d 762 (3rd Cir.1947) our Court of Appeals established the general principles which have been more fully explained in recent years by the First and Seventh Circuits. Those decisions have held that the benefit must result from a relationship which existed between the party seeking payment and the debtor-in-possession or the trustee and cannot result solely from a transaction entered into by the debtor prior to filing for bankruptcy. See Jartran, supra; Mammoth Mart, supra . But see Unishops, supra. This rule is consistent with the purpose of the administrative expense priority which is designed to assure that individuals and other businesses which provide goods and services necessary to the operation of the debtor's business will not be reluctant to deal with the debtor-in-possession or trustee due to uncertainty as to the likelihood of payment for post-petition transactions. The Union contends that the trustee and, prior to the conversion of the matter into a Chapter 7 proceeding, the debtor-in-possession, benefited from the payment of holiday pay for the Thanksgiving holiday of 1979 because the payment would maintain the good will of employees and "retain the loyalty of a full complement of employees and the debtor's ability to resume operations." In support of this argument, the Union cites the decision of the Bankruptcy Court of the Eastern District of Michigan in In re Fred Sanders Co., 22 B.R. 902 *967 (Bkrtcy.1982). The court there concluded that the value of a lease of certain property was properly charged as an administrative expense although the property was not used and the lease was eventually rejected by the debtor-in-possession. However, in that case, the court found that, after the petition had been filed, the debtor-in-possession had entered into an agreement with the lessor under which the lease would remain open for a period of time before the debtor-in-possession would be required to reject or adopt the lease. Therefore, although the property which was the subject of the lease was not actually used by the debtor-in-possession, it was possible to conclude that there had been some value to the debtor-in-possession in allowing the lease to remain unrejected for a period of time while the decision was being made whether the lease should be formally rejected. In the present case, there does not appear to be any evidence that the debtor-in-possession took any action with regard to the dismissal of the employees. However, the record is less than clear on that point. Chief Judge Goldhaber's opinion of October 31 concluded that administrative expense priority was not appropriate for the holiday pay claim in that "no services were rendered by the employees after the filing of the petition." Opinion of October 31 at 5. Very likely this statement reflects Chief Judge Goldhaber's finding that the employees had been terminated prior to the filing of the petition and that, as a result, there had been no relationship between the employees and the debtor-in-possession post-petition from which the latter could have derived benefit. It is also possible that this conclusion followed from a narrow reading of § 503(b)(1) which states that administrative expenses include wages for "services rendered after the commencement of the case." But, wages and commissions for services rendered after the petition has been filed are identified by § 503(b)(1) as merely "included" within the broader class of "actual, necessary costs and expenses of preserving the estate." Thus, once the conclusion is reached that a claim does not fall within the explicitly listed category of wages for services rendered after the commencement of the case, it is still necessary to consider whether the claim would fit within the broader class of actual and necessary costs of preserving the estate. To make that determination, the court must consider (1) whether the claim is for costs incurred post-petition which were necessary for the preservation of the estate or provided some benefit to the estate and (2) whether the claim results from a transaction or relationship between the debtor-in-possession and the creditor as distinguished from expenses resulting solely from pre-petition relationships between the debtor and the creditor. See Jartran, supra; Mammoth Mart, supra . Because it is not apparent from the October 31 Opinion of the Bankruptcy Court whether these factors were considered and because the application of these factors necessarily involves some factual determinations which are not properly made by a court for the first time on appeal, I will remand this aspect of Claim 106 to the Bankruptcy Court for consideration in light of this opinion. [5] *968 B. Claim No. 143 During the pendency of the Chapter 11 proceeding, schedules of claims filed with the Bankruptcy Court by the debtor included a liquidated Union claim which was undisputed and uncontingent. Because the inclusion of a claim of that nature among the claims listed in a schedule filed pursuant to 11 U.S.C. § 521 (1) or 1106(a)(2) is "deemed", by statute, a proof of claim, the Union did not file a separate proof of claim with the court. 11 U.S.C. § 1111 (a). The Chapter 11 proceeding was converted to a Chapter 7 proceeding on March 25, 1983. At that time, the Clerk of the Bankruptcy Court distributed a notice to all creditors, including the Union, which stated, in pertinent part: A meeting of creditors pursuant to 11 U.S.C. § 341 was held on March 7, 1983. . . . In order to share in any distribution, a creditor must file a proof of claim. Claims which are not filed within 6 months of the date of the meeting of creditors will not be allowed, except as otherwise provided by law. . . . The Union asserts that it was led to believe that it was unnecessary to file a proof of claim after the conversion of the proceeding to Chapter 7 statute because the schedules filed in the prior Chapter 11 proceeding had been deemed proof of the Union claim. Therefore, the six-month period provided in the order of the Bankruptcy Court elapsed without a proof of claim being filed on behalf of the Union. When the Union discovered that the trustee would not pay this claim on the ground that no proof of claim had been filed following the conversion to a Chapter 7 proceeding, the Union filed a proof of claim on June 27, 1984 (No. 143). The trustee objected to this claim as untimely and the Bankruptcy Court sustained the objection in an Opinion and Order dated November 23, 1984. A timely appeal of this decision was taken to this court. 1) The necessity of filing a proof of claim post-conversion Rule 1019 of the Rules of Bankruptcy Procedure and 11 U.S.C. § 348 contain specific guidance regarding the treatment of matters converted from Chapter 11 to Chapter 7. The Union contends that it was not required to file a proof of claim because under Rule 1019(d): "All claims filed in the superseded case shall be deemed filed in the chapter 7 case." The Union argued before the Bankruptcy Court and has argued on appeal that when a Chapter 11 case becomes a Chapter 7 case Rule 1019(d) obviates the need to file new proofs of claim both for those creditors who have actually filed official proofs of claims in the prior Chapter 11 phase and for those creditors whose claims were, pursuant to 11 U.S.C. § 1111 (a), "deemed" to have been filed in the Chapter 11 phase because they had been listed in the debtor's schedules as uncontested, uncontingent, liquidated obligations. The trustee responds that rule 1019(d) applies solely to those proofs of claim actually filed in the Chapter 11 proceeding and not to those claims which were deemed filed through the filing of the schedule of claims. The trustee's analysis of the issue focuses on the language of Rule 3002 of the Bankruptcy Rules: (a) An unsecured creditor or an equity security holder must file a proof of claim or interest in accordance with this rule for the claim or interest to be allowed, except as provided in Rules 3003, 3004 and 3005. Rule 3003 provides that although any creditor may file a proof of claim, the only creditors required to file proofs of claim are those whose claims are not listed in the schedule filed by the debtor or whose claims are listed in that schedule but are disputed, contingent, or unliquidated. In other words, Rule 3003 merely repeats that "deeming" provision found in 11 U.S.C. § 1111 (a). But Rule 3003, by its terms, is applicable only to proceedings under Chapter 9 and 11, not to proceedings under Chapter 7. The trustee contends that Rule 3002's requirement that, in a Chapter 7 proceeding, *969 proof of all claims must be filed, is not abrogated by the fact that this action was converted from a Chapter 11 proceeding to a Chapter 7 matter. The trustee also contends that Rule 1019(d), which relieves creditors of the need to file a proof of claim in the Chapter 7 proceeding if they have done so in the superseded Chapter 11 proceeding, does not expressly include claims which were "deemed" filed in the Chapter 11 case. Thus, the trustee asserts Rule 1019(d) can only be construed to override the requirement of Rule 3002(a) with regard to those claims which were actually filed in the Chapter 11 proceeding while Rule 3002(a)'s mandate that all claims must be filed applies to all other claims in the proceeding once it is converted into a Chapter 7 matter. The trustee's view of the issue has been adopted by the Bankruptcy Court for the Southern District of Illinois in In re Humblewit Farms, Inc., 23 B.R. 703 (Bkrtcy. 1982). In that case, the court noted that the "deeming" provision of 11 U.S.C. § 1111 (a) is consistent with the principles underlying Chapter 11 reorganization proceedings but that those principles do not apply as well to Chapter 7 liquidation matters: When Congress enacted § 1111 of the Bankruptcy Code, it intended to make a business reorganization more convenient for both debtors and creditors. Section 1111 assumes that a debtor is familiar with its creditors and is in a position to properly evaluate the claims against it. As such, when the debtor schedules a creditor and does not list the debt as disputed, contingent or unliquidated, the claim is assumed to be correct and deemed filed. This is consistent with the normal reorganization and debtor-in-possession acting as a trustee in evaluating the claims. This does not mean, however, that since the claim is deemed filed in the reorganization it is filed for all purposes under the Bankruptcy Code. When a case is converted to a liquidation pursuant to Chapter 7, a Trustee is appointed and he becomes the real party in interest. The Trustee, however, is not as intimately familiar with the claims as a debtor-in-possession, and, as such, proofs of claim must be filed in order to allow the Trustee to properly evaluate the claims. I conclude that while the Code and Rules are not crystal clear on this point, the more logical construction of the relevant provisions is that adopted in Humblewit. The requirement that all creditors must file proof of their claims either in the prior Chapter 11 proceeding or in the Chapter 7 proceeding after conversion is consistent both with the intent of Congress in establishing separate procedural requirements for Chapter 7 and Chapter 11 proceedings, Humblewit, at 705, and with the language of Rule 3002 and 1019. Therefore, I conclude that the failure to file a proof of claim with the Bankruptcy Court after the conversion of this matter from a Chapter 11 to a Chapter 7 proceeding is not excused by the listing of that claim in the schedule of claims filed by the debtor in the Chapter 11 proceeding. 2. Equitable extension of the filing deadline The Union also argues that the untimely filing of the proof of its claim should be excused under the provision for enlargement of time found in Bankruptcy Rule 9006 or under the Bankruptcy Court's general equitable powers. The trustee responds that the court's power to extend time for filing proof of a claim is strictly limited by Rule 3002 and that the limitations of Rule 3002(c)'s timeliness requirements are expressly excluded from Rule 9006(b)'s allowance for enlargement of time. See Rule 9006(b)(3) (enlargement of time pursuant to Rule 3002(c) is limited to the circumstances provided in that rule). The Union does not resist the trustee's contention that, if Rule 3002(c) governs the amount of time available for filing proof of a claim in this case, this court is without power to extend that time unless one of the exceptions to Rule 3002(c) is satisfied. In re Pigott, 684 F.2d 239 (3d Cir.1982). However, *970 the Union asserts that Rule 3002(c) is inapplicable to the present issue because the filing of claims after the conversion of a matter from Chapter 11 to Chapter 7 is governed by the more specific Rule 1019. However, Rule 1019 does not contain any provisions directly establishing the timetable for filing proof of a claim such as the one asserted by the Union. [6] Therefore, acceptance of the Union's argument would necessitate the conclusion that the Bankruptcy Court may set any timetable it chooses for the filing of proof of a claim such as that of the Union. In light of the quite clear intention of Congress in enacting the Bankruptcy Code and of the Supreme Court in establishing the Bankruptcy Rules that bankruptcy matters be pursued expeditiously and efficiently, the Union's position, which is not supported by the text of any rule or statutory provision, seems inappropriate. More logical is the view that Rule 1019 is intended to provide special rules for those matters unique to cases converted from Chapter 11 to Chapter 7 proceedings but that when Rule 1019 does not expressly apply to an issue in a converted proceeding the general rules governing Chapter 7 proceedings should be applied to resolve the question. Therefore, the lack of an explicit provision in Rule 1019 governing the time within which the Union's claim and similar claims must be filed warrants the use of the timing provisions of Rule 3002 which are generally applicable to Chapter 7 cases. [7] Because the Union's claim was not filed within the time allowed by Rule 3002(c) and because the Union does not assert that it is entitled to an extension of time under one of the express exceptions to the time bar of Rule 3002(c), the Bankruptcy Court had no power under the rules to allow an untimely filing of the Union's claim. Moreover, the Bankruptcy Court has no general equitable authority to override the strict time limits of Rule 3002(c). In re Pigott, 684 F.2d 239 (3d Cir.1982). Consequently, the Bankruptcy Court correctly sustained the objection to Claim No. 143 because the claim was not timely filed and the court had no authority to allow the untimely filing of the proof of claim. [8] An order reflecting these rulings follows. *971 ORDER For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that: 1) Chief Judge Goldhaber's ruling of December 4, 1984, relating to Claim No. 106 is AFFIRMED to the extent it denied priority to that claim as wages and is VACATED and REMANDED for reconsideration in light of this Memorandum with regard to the ruling that Claim No. 106 should not be accorded priority as an administrative expense. 2) Chief Judge Goldhaber's ruling of November 23, 1984, relating to Claim No. 143 is AFFIRMED. NOTES [1] The Chapter 11 petition was later converted into a Chapter 7 proceeding. [2] The trustee originally contested the Union's standing to raise the claims of the employees. However, that issue was resolved against the trustee in light of the decision of the Court of Appeals for the Third Circuit in In re Altair Airlines, Inc., 727 F.2d 88 (3d Cir.1984). The trustee has not pursued this objection on appeal. In addition, the parties dispute the proper amount of the holiday pay claim. However, that issue was not considered by the Bankruptcy Court due to the parties' representation that, if the Union's claim to priority were to be sustained, they would resolve that dispute by stipulation. Therefore, that question is not raised on this appeal. [3] In addition, the December 4, 1984 decision of Chief Judge Goldhaber considered not only the question whether the issues raised by the motion for reconsideration were proper for such a motion, but also the legal correctness of his underlying October 31 decision. Therefore, to the extent that this appeal is from the December 4, 1984 decision of the Bankruptcy Court denying the motion for reconsideration, it is appropriate to review the legal conclusions announced in Chief Judge Goldhaber's opinion de novo and not under the abuse of discretion standard suggested by the trustee. [4] Although not raised on appeal, the Union argued before the Bankruptcy Court that the holiday pay was "earned" within 90 days prior to the filing of the petition under the provisions of §§ 365 or 348 of the Code. Section 365(g) establishes that executory contracts rejected by the debtor-in-possession or the trustee after the petition is filed are deemed to have been breached as of the date just prior to the filing of the petition. Section 348(d) states that a claim which arises after the Chapter 11 petition is filed but prior to conversion into a Chapter 7 proceeding is deemed to be a claim which arose immediately before the date of filing the Chapter 11 petition. Both of these provisions are designed to assure that claims of the nature of those covered by these provisions are included among the group of unsecured prepetition creditors whose rights are to be determined by the Bankruptcy Court and not as post-petition creditors. Once a claim is deemed to be a pre-petition claim pursuant to one of these sections, the priority accorded to that claim depends upon whether the claim falls within one of the priorities established for unsecured claims in section 507. See generally NLRB v. Bildisco and Bildisco, 465 U.S. 513 , 104 S.Ct. 1188 , 1198-99, 79 L.Ed.2d 482 (1984). To determine whether a claim which is deemed to have arisen prior to the filing of the petition fits within one of these priorities, it is necessary to determine whether that claim satisfies the elements of one or more of the priority provisions. The holiday pay claim in this case does not fall within the wage priority of § 507(a)(3) merely because it may be deemed to have arisen prior to the filing of the petition under §§ 365 or 348. To fall within § 507(a)(3) such a claim must not merely arise prior to the filing of the petition but must be for wages earned prior to the filing of the petition. As discussed in the text, the holiday pay was not earned until after the petition was filed. Since there is no indication in the statute or in the related caselaw and legislative history that the term "earned" in § 507(a)(3) is to take on anything other than its plain meaning, I cannot conclude that claims which arise prior to the date of the petition are necessarily "earned" on the date they arise. In addition, a damages claim arising out of breach of an executory contract such as a collective bargaining agreement is not considered a claim for "wages." In re Schultz & Guthrie, 235 F. 907 (D.Mass.1916). Therefore, if the holiday pay claim is treated as a claim for damages arising out of breach of an executory contract, it cannot fall within § 507(a)(3)'s priority provision. [5] The Union suggests that the result reached by the Bankruptcy Court is inconsistent with the purpose of the Code to assure priority treatment of wage and wage-related claims. This suggestion stems from the Union's position that wage claims are necessarily included among those accorded priority either as pre-petition wages under § 507(a)(3) or as post-petition administrative expenses under § 507(a)(1). Although these provisions are complementary in many instances, they are designed to achieve different ends. The wage provision is established to protect workers who may not have received their checks at the time the petition is filed although they have provided services prior to that time. The administrative expense provision assures that the debtor-in-possession or the trustee will be able to contract for goods and services necessary to maintenance of the value of the estate. Neither of these provisions guarantees priority to all wage claims (e.g., wages earned prior to 90 days prior to filing of petition are excluded under § 507(a)(3)). Thus, the possibility that a particular wage or wage-related claim may fall outside of both of these categories does not warrant court revision of the language of these carefully-drafted statutory provisions. [6] Rule 1019 does include a subsection which establishes time requirements for filing of proof of those claims which arose after the petition under Chapter 11 was filed but prior to the conversion to a Chapter 7 proceeding. Rule 1019(7). The Union has not asserted that this portion of Rule 1019 establishes the time period under which its proof of claim should have been filed. However, such as argument would not assist the Union's cause on this appeal. The Union's claim was not filed within the time set in Rule 1019(7). Although subsection (8) of Rule 1019 expressly provides for filing of claims outside of the time limits found in subsection (7), late filed claims may only be asserted against surplus assets of the estate as provided by Rule 3002(c)(6). Thus, claims filed outside of the time limits of subsection (7) may only be collected if assets remain in the estate after all properly filed claims have been paid in full. See Advisory Committee Note to Rule 1019. [7] Rule 9006(b), which governs extensions of time under the Bankruptcy Rules, refers to both Rule 1019 and Rule 3002. In Rule 9006(b)(2), Rule 1019(2) is included among a list of rules whose timetables may not be extended, while in Rule 9006(b)(3), Rule 3002(c) is listed as one of a number of rules whose timetables may only be extended for a limited set of reasons. The Union argues that these separate references to Rule 1019 and Rule 3002 establish that these rules contain independent timetables and that the timetables in Rule 3002 do not affect the types of cases covered by Rule 1019. However, the reference to Rules 1019(2) and 3002(c) merely assures that the specific timetables set in those rules are not extended for improper reasons. They do not provide any evidence that Rule 1019 contains implicit authority for unique timetables for filing claims in a converted case. [8] Were I to accept the Union's contention that Rule 1019 allows the Bankruptcy Court to fix a time period within which claims of the nature of that asserted by the Union must be filed, I could not conclude that the Bankruptcy Court erred in this case. The Bankruptcy Court issued a notice of the conversion of this matter from Chapter 11 to Chapter 7. That notice expressly provided that all claims be filed within six months of the creditors' meeting which had taken place early in March, 1983. This time period is the same as that fixed under Rule 302, the predecessor to Rule 3002 applicable at the time of conversion in this case. See note 2, Opinion of Emil F. Goldhaber, November 23, 1984. The proof of claim filed by the Union was filed well after the close of this six-month period. Thus, the Union's assertion that its proof of claim should be treated as timely depends upon its assumption that the Bankruptcy Court would be authorized to extend the time it could fix for filing of claims. In light of the strict time limits fixed elsewhere in the Bankruptcy Rules for filing proof of claims and the narrow exceptions to those time limits and, particularly in light of the views expressed by the Court of Appeals for the Third Circuit in In re Pigott, 684 F.2d 239 (3d Cir.1982) ("expeditious administration was a prime objective of the [Code] . . . and . . . periods of limitation set up were to be strictly enforced"), I cannot conclude that the Bankruptcy Court could extend the time for filing proof of claims for any reasons beyond those allowed under Rule 3002. To allow the court to extend time for filing of proof of claims in a conversion case for broadly defined equitable reasons and not in any other type of bankruptcy proceeding might produce more equitable results in some cases but would create an anomaly in the operation of the bankruptcy courts which is not supported in law or logic. | opinion_html_with_citations | 6,259 | 2013-10-30 07:53:07.611012+00 | 010combined | f | f | 1,944,212 | Louis H. Pollak | null | LU | f | Published | 10 | In Re Crouthamel Potato Chip Co. | In Re Crouthamel Potato Chip Co. | In Re CROUTHAMEL POTATO CHIP CO. | null | null | <parties id="b1008-7">
In re CROUTHAMEL POTATO CHIP CO.
</parties><br><docketnumber id="b1008-8">
Civ. A. No. 85-0048.
</docketnumber><br><court id="b1008-9">
United States District Court, E.D. Pennsylvania.
</court><br><decisiondate id="b1008-11">
July 23, 1985.
</decisiondate><br><attorneys id="b1010-16">
<span citation-index="1" class="star-pagination" label="962">
*962
</span>
Michael H. Reed, Barbara Sagar, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for trustee.
</attorneys><br><attorneys id="b1010-17">
Stewart Fishbein, Tax Div., Dept, of Justice, Washington, D.C., for the United States.
</attorneys><br><attorneys id="b1010-18">
Thomas W. Jennings, William J. Einhorn, Kent Cprek, Philadelphia, Pa., for union.
</attorneys> | null | null | null | null | null | null | 1,772,833 | Civ. A. 85-0048 | 0 | paed | FD | t | E.D. Pennsylvania | District Court, E.D. Pennsylvania |
8,315,172 | The Court (nem. con.) refused to strike out the plea, principally on the ground stated in the affidavit of Mr. Turner. There was a demurrer to the evidence, upon which this Court rendered judgment for the defendant at October term, 1822; which was affirmed by the Supreme Court of the United States. 11 Wheat. 309. | opinion_xml_harvard | 55 | 2022-10-17 20:00:23.985908+00 | 020lead | t | f | 8,346,574 | null | null | U | f | Published | 0 | Wetzell v. Bussard | Wetzell | Wetzell v. Bussard | <p>Ti-ie plea of limitations was filed in this cause after the rule-day, and the issue was made up by the clerk.</p> <p>moved the Court to order the plea to be stricken out, because not filed before the expiration of the rule to plead ; and cited the case of Thompson v. Afflick, in this Court at June term, 1812, (ante, 46,) in which the Court decided that they would not receive the plea after the rule-day, unless upon affidavit showing that it is necessary for the justice of the case.</p> <p>opposed the motion, and produced the affidavit of Mr. Turner, the defendant’s attorney, stating that he was admitted to practice at June term, 1820, which was the return term of the writ in this cause. ' That his appearance for the defendant was entered at that term; and that during that term he was instructed by the defendant to plead the statute of limitations. - That upon inquiring of some of the practitioners at what time it was necessary to plead, he was informed and understood that all pleas would be in time if filed during the second or imparlance term. He did not ask particularly as to the plea of limitations, and did not know that it was an exception to the general rule; and therefore did not file the plea until the second term.</p> <p>• There was also an affidavit of the defendant himself, confirming that of Mr. Turner, and stating facts tending-to show that the plea was necessary to the justice of the case.</p> | null | null | <p>If the defendant instruct his attorney to plead the statute of limitations, and he pleads it after the rule-day, the Court will refuse to order the plea to be stricken out if the attorney, having been recently admitted to practice, was ignorant of the rule which requires that such a plea should be filed strictly within the rule-day.</p> | null | null | null | null | null | 65,526,372 | null | 0 | circtddc | F | f | U.S. Circuit Court for the District of District of Columbia | U.S. Circuit Court for the District of District of Columbia |
4,090,781 | [Cite as State v. Vaughn, 2016-Ohio-7384.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) STATE OF OHIO C.A. No. 27902 Appellee v. APPEAL FROM JUDGMENT ENTERED IN THE JAMALL L. VAUGHN COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE Nos. CR 2013 04 1008(D) DL 13-04-0658 DECISION AND JOURNAL ENTRY Dated: October 19, 2016 CARR, Presiding Judge. {¶1} Appellant Jamall Vaughn appeals his conviction in the Summit County Court of Common Pleas. This Court affirms. I. {¶2} An officer from the New Franklin Police Department filed complaints in the juvenile court against Vaughn, alleging multiple counts of aggravated burglary, aggravated robbery, and aggravated murder arising out of the horrific attacks on Jeffrey and Margaret Schobert. The State moved the juvenile court to relinquish jurisdiction and transfer Vaughn to the common pleas court for prosecution as an adult. After hearings, the juvenile court found probable cause that Vaughn was involved in the commission of the criminal acts and, further, that he was not amenable to rehabilitation within the juvenile justice system. Vaughn’s case was transferred to the court of common pleas. The grand jury indicted Vaughn on multiple counts of aggravated murder, aggravated robbery, and aggravated burglary, as well as some more minor 2 charges. Vaughn pleaded guilty to two counts of aggravated murder, one count of aggravated robbery, and one count of aggravated burglary, the other charges having been dismissed. At sentencing, the trial court merged the count of aggravated robbery into one count of aggravated murder. The State elected that the defendant be sentenced on the aggravated murder count in that instance. The trial court sentenced Vaughn on the remaining three counts, ordering that the sentences be served concurrently. Vaughn received an aggregate sentence of twenty-five years to life in prison. Vaughn timely appealed and raises three assignments of error for review. II. ASSIGNMENT OF ERROR I THE PLEA AND SENTENCE ARE VOID AS OHIO’S JUVENILE BINDOVER STATUTES VIOLATE THE RIGHT TO SUBSTANTIVE AND PROCEDURAL DUE PROCESS AND RIGHT AGAINST CRUEL AND UNUSUAL PUNISHMENT UNDER THE CONSTITUTIONS OF OHIO AND THE UNITED STATES. {¶3} Vaughn argues that the bindover (or transfer) provisions in R.C. 2152.10 and 2152.12, whereby a juvenile’s case may be transferred to the common pleas court for criminal prosecution, are unconstitutional as violative of due process rights and the right against cruel and unusual punishment. This Court declines to consider the merits of Vaughn’s arguments in this regard, however, because he waived them by pleading guilty. {¶4} As we recognized in State v. Quarterman, 9th Dist. Summit No. 26400, 2013- Ohio-3606, and State v. Smith, 9th Dist. Summit No. 26804, 2015-Ohio-579, The Ohio Supreme Court has held that a defendant who * * * voluntarily, knowingly, and intelligently enters a guilty plea with the assistance of counsel may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. State v. Fitzpatrick, 102 Ohio St. 3d 321 , 2004-Ohio-3167, ¶ 78, quoting Tollett v. Henderson, 411 U.S. 258 , 267 (1973). This Court has explained that a defendant who enters a plea of guilty waives the right to appeal all nonjurisdictional issues 3 arising at prior stages of the proceedings, although [he] may contest the constitutionality of the plea itself. [ ] (Internal quotations omitted.) Quarterman at ¶ 4; Smith at ¶ 25. {¶5} As in both Quarterman and Smith, Vaughn fails to argue that he did not enter his guilty plea in a knowing, voluntary, or intelligent manner. Rather, he raises a limited challenge to the constitutionality of the bindover provisions enunciated in R.C. 2152.10 and 2152.12. Because he pleaded guilty to the charges, we are constrained by our precedent and compelled to conclude that he has waived his constitutional arguments. Vaughn’s first assignment of error is overruled. ASSIGNMENT OF ERROR II THE GUILTY PLEA AND SENTENCING ARE VOID AB INITIO BECAUSE THE JUVENILE COURT FOUND THAT APPELLANT “HAD PRIOR CONTACT WITH THE JUVENILE JUSTICE SYSTEM,” WHICH IS NOT SUPPORTED BY THE RECORD AND FAILS TO COMPLY WITH R.C. 2152.12(D) AND R.C. 2152.12(E)(5). {¶6} Vaughn argues that the common pleas court lacked jurisdiction to accept his guilty plea and impose sentence because the juvenile court’s transfer of the case was based on an erroneous finding. Specifically, Vaughn argues that the State failed to present evidence that his “prior contact with the juvenile justice system” involved the commission of a category one or category two offense. Vaughn’s argument is not well taken. {¶7} The juvenile court maintains exclusive jurisdiction concerning children alleged to be delinquent based on the commission of acts that would constitute crimes if committed by an adult. R.C. 2151.23(A). Where the State has requested it, and the juvenile court has made the appropriate findings, the juvenile will be eligible for either mandatory or discretionary transfer to the common pleas court for criminal prosecution. R.C. 2152.10 and 2152.12. 4 {¶8} To be eligible for a mandatory bindover to the adult system, a child must currently be charged with a category one offense (aggravated murder or murder, including attempt), the juvenile court must find probable cause that the child committed the offense, and the child must either: (1) be sixteen or seventeen years old at the time of the commission of the act charged, or (2) be fourteen or fifteen at the time of the act charged and have previously been adjudicated delinquent and committed to youth prison for a category one or category two (voluntary manslaughter, kidnapping, rape, aggravated arson, aggravated robbery, aggravated burglary, or first degree involuntary manslaughter) offense. R.C. 2152.10(A)(1); R.C. 2152.02(BB)/(CC). A child who was sixteen or seventeen years old during the commission of a category two offense is also subject to mandatory transfer under certain circumstances, as is a child who is otherwise eligible for discretionary transfer but was previously convicted of a felony in the adult system. R.C. 2152.10(A)(2)/(3); R.C. 2152.12(A)(1)(b)/(2)(a). {¶9} By way of contrast, the juvenile court retains discretion to bind a child over to the adult system under other circumstances: Unless the child is subject to mandatory transfer, if a child is fourteen years of age or older at the time of the act charged and if the child is charged with an act that would be a felony if committed by an adult, the child is eligible for discretionary transfer to the appropriate court for criminal prosecution. In determining whether to transfer the child for criminal prosecution, the juvenile court shall follow the procedures in section 2152.12 of the Revised Code. (Emphasis added.) R.C. 2152.10(B). {¶10} Procedurally, [w]hen the state requests a discretionary bindover, the juvenile court [must] determine the age of the child and whether probable cause exists to believe that the juvenile committed the act charged. R.C. 2152.10(B) and 2152.12(B)(1) and (2). [I]f probable cause exists and the child is eligible by age, the juvenile court must then continue the proceeding for a full investigation. R.C. 2152.12(C) and Juv.R. 30(C). This investigation includes a mental examination of the child, a hearing to determine whether the child is “amenable to care or rehabilitation 5 within the juvenile system” or whether “the safety of the community may require that the child be subject to adult sanctions,” and the consideration of 17 other statutory criteria to determine whether a transfer is appropriate. Juv.R. 30(C); R.C. 2152.12(B), (C), (D), and (E). In re M.P., 124 Ohio St. 3d 445 , 2010-Ohio-599, ¶ 12. The Ohio Supreme Court has recognized that the decision to bind over a juvenile subject to discretionary transfer remains, as the name indicates, within the discretion of the juvenile court based on its consideration of whether the child “‘appear[s] to be amenable to care or rehabilitation within the juvenile system or appear[s] to be a threat to public safety.’” State v. D.W., 133 Ohio St. 3d 434 , 2012-Ohio-4544, ¶ 10, quoting State v. Hanning, 89 Ohio St. 3d 86 (2000); R.C. 2152.12(B). In considering these issues, the juvenile court must consider at a minimum the nine statutory factors favoring bindover and the eight statutory factors militating against bindover. R.C. 2152.12(D) and (E). {¶11} In this case, the parties stipulated that Vaughn was fourteen years old at the time of the commission of the aggravated murders. Moreover, there was never any dispute that Vaughn was not eligible for mandatory bindover due to his age and circumstances. In fact, the juvenile court judge stated on the record at the conclusion of the probable cause hearing that Vaughn was not subject to mandatory bindover and that the matter must, therefore, proceed to an amenability hearing at a later date to determine the propriety of transfer. Accordingly, in determining whether or not to bind Vaughn over to the common pleas court for prosecution as an adult, the juvenile court was merely required to weigh the factors for and against transfer as they are enumerated in R.C. 2152.12(D) and (E). {¶12} Vaughn argues that the juvenile court erred in its application of R.C. 2152.12(D)(6) and (E)(5), as recited here. If, “at the time of the act charged, the child was awaiting adjudication or disposition as a delinquent child, was under a community control sanction, or was on parole for a prior delinquent child adjudication or conviction[,]” that would 6 support bindover. R.C. 2152.12(D)(6). Whereas, if “[t]he child previously has not been adjudicated a delinquent child[,]” that would militate against bindover. R.C. 2152.12(E)(5). More precisely, Vaughn argues that the juvenile court erroneously relied on or misapplied these factors because the State failed to present evidence that his prior contact with the juvenile system resulted in his being adjudicated a delinquent child for a category one or category two offense, followed by a commitment to youth prison, as required by R.C. 2152.10(A)(1)(b). {¶13} R.C. 2152.10(A)(1)(b) states: A child who is alleged to be a delinquent child is eligible for mandatory transfer and shall be transferred as provided in section 2152.12 of the Revised Code in any of the following circumstances: The child is charged with a category one offense and * * * [t]he child was fourteen or fifteen years of age at the time of the act charged and previously was adjudicated a delinquent child for committing an act that is a category one or category two offense and was committed to the legal custody of the department of youth services upon the basis of that adjudication. (Emphasis added.) As noted above, category one and category two offenses include aggravated murder, murder, voluntary manslaughter, kidnapping, rape, aggravated arson, aggravated robbery, aggravated burglary, and first degree involuntary manslaughter. {¶14} As we previously noted, there was never any dispute that, in this case, Vaughn was not subject to the mandatory bindover provisions due to his age and circumstances. Accordingly, R.C. 2152.10(A)(1)(b), which deals exclusively with mandatory transfers, has no applicability to this matter. Instead, Vaughn’s bindover was governed by R.C. 2152.10(B), applicable to discretionary transfers. {¶15} In this case, the juvenile court properly applied the discretionary transfer provision in R.C. 2152.10(B) and complied with R.C. 2152.12, utilizing the factors both in favor of and against transfer as enumerated in subsections (D) and (E) in its determination. Neither subsection references category one or category two offenses. Accordingly, the juvenile court 7 was not required to determine whether Vaughn had previously been adjudicated delinquent by reason of a category one or category two offense before concluding that transfer for prosecution as an adult was appropriate. Accordingly, Vaughn’s argument invoking the mandatory bindover provisions in R.C. 2152.10(A) is misplaced and not well taken. {¶16} Finally, to the extent that Vaughn argues that the juvenile court’s allegedly erroneous factual findings implicate constitutional due process concerns, we reiterate that Vaughn has waived any such argument by pleading guilty to the charges. Smith, 2015-Ohio-579, at ¶ 25. {¶17} Vaughn’s second assignment of error is overruled. ASSIGNMENT OF ERROR III THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A SENTENCE OF TWENTY-FIVE YEARS TO LIFE AS THE TRIAL COURT FAILED TO CONSIDER THAT THE DEFENDANT WAS FOURTEEN YEARS AND ONE MONTH OLD AT THE TIME OF THE OFFENSE, DEFENDANT’S IQ, AND REFUSED TO CONSIDER STATEMENTS FROM THE PRINCIP[AL] OFFENDER AND OTHER STATUTORY FACTORS MANDATED BY R.C. 2929.12(C). {¶18} Vaughn argues that the trial court abused its discretion by sentencing him to twenty-five years to life in prison. This Court disagrees. {¶19} Vaughn directs this Court to apply the abuse of discretion standard of review pursuant to State v. Kalish, 120 Ohio St. 3d 23 , 2008-Ohio-4912. The Ohio Supreme Court, however, recently abrogated the standard in Kalish and clarified that “an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that that record does not support the sentence.” State v. Marcum, Slip Opinion No. 2016-Ohio-1002, ¶ 23. Clear and convincing evidence is that “which will produce in the mind of the trier of facts a firm belief or conviction as 8 to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. {¶20} R.C. 2929.03(A) enunciates the legally appropriate sentences that can be imposed relevant to a charge of aggravated murder. The sentencing court may impose a life term of imprisonment without parole, a life term of imprisonment with eligibility for parole after twenty years, a life term of imprisonment with eligibility for parole after twenty-five years, or a life term of imprisonment with eligibility for parole after thirty years. R.C. 2929.03(A)(1)(a)-(d). Vaughn was sentenced to life in prison with parole eligibility after twenty-five years. Accordingly, Vaughn’s sentence was not contrary to law. {¶21} Vaughn argues that his sentence violates the spirit of State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, in which the Supreme Court of Ohio held that a sentencing court, in exercising its discretion relative to the permissible sentence in R.C. 2929.03(A), “must separately consider the youth of a juvenile offender as a mitigating factor before imposing a sentence of life without parole.” (Emphasis added.) At paragraph one of the syllabus. Long is inapposite, as the juvenile bindover defendant in that case was sentenced to a term of life without parole, while Vaughn was sentenced to a life term with the possibility of parole at some time in the future. The high court clarified: [W]e expressly hold that youth is a mitigating factor for a court to consider when sentencing a juvenile. But this does not mean that a juvenile may be sentenced only to the minimum term. The offender’s youth at the time of the offense must still be weighed against any statutory consideration that might make an offense more serious or an offender more likely to recidivate. Id. at ¶ 19. {¶22} In this case, the trial court thoughtfully imposed sentence in express consideration of Vaughn’s age. The trial judge stated: 9 The sentencing decision the Court must make in this case is not one that can be drawn from a background of multiple prior cases that are like this. I am certain that there are very few cases like this in the history of the State of Ohio where a sentencing decision must be made with respect to someone who was 14 years old at the time of the commission of the murders in question. Accordingly, Vaughn’s assertion that the sentencing court disregarded his age at the time of the offense is not supported by the record. {¶23} Moreover, the trial court asserted that it considered the factors enumerated in R.C. 2929.11, 2929.12, and 2929.13 in imposing sentence. There is a presumption that the trial court gave proper consideration to these statutes even where it has not put its consideration on the record. State v. Peterson, 9th Dist. Summit No. 27890, 2016-Ohio-1334, ¶ 6. {¶24} Vaughn raises no argument regarding the trial court’s application of the statutory factors save two. He asserts that the sentencing court erroneously failed to consider any statements made by the adult co-defendant Ford in Ford’s criminal case to determine whether Vaughn’s conduct was “less serious than conduct normally constituting the offense” pursuant to R.C. 2929.12(C). {¶25} It is well established “[t]rial courts will not take judicial notice of their own proceedings in other cases, even though between the same parties and even though the same judge presided. A trial court may only take judicial notice of prior proceedings in the immediate case.” (Internal quotations and citations omitted.) In re J.C., 186 Ohio App. 3d 243 , 2010-Ohio- 637, ¶ 14 (9th Dist.). Here, the sentencing judge presided over Ford’s case and was aware of information outside the record in Vaughn’s case. Nevertheless, the judge properly refused to take judicial notice of Ford’s statements in his own case because those matters were not properly part of the prior proceedings in the case before him. Vaughn made no effort to place Ford’s statements within the record in Vaughn’s case in a procedurally proper manner. Accordingly, 10 the sentencing court was foreclosed from considering and relying on information gleaned from a separate case that happened to be on the court’s docket. Vaughn’s argument in this regard is not well taken. {¶26} Vaughn’s third assignment of error is overruled. III. {¶27} Vaughn’s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed. Judgment affirmed. There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. DONNA J. CARR FOR THE COURT 11 WHITMORE, J. SCHAFER, J. CONCUR. APPEARANCES: DONALD GALLICK, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney. for Appellee. | opinion_html_with_citations | 3,066 | 2016-10-19 16:02:57.739007+00 | 010combined | f | f | 4,313,520 | Carr | null | C | t | Published | 3 | State v. Vaughn | Vaughn | null | null | null | null | null | null | null | null | null | null | 4,480,406 | 27902 | 0 | ohioctapp | SA | t | Ohio Court of Appeals | Ohio Court of Appeals |
5,228,821 | Judgment of conviction of the County Court of Hassau county affirmed. Ho opinion. Jenks, P. J., Burr, Thomas, Carr and Rich, JJ., concurred. | opinion_xml_harvard | 23 | 2022-01-06 16:51:25.023767+00 | 020lead | t | f | 5,392,146 | null | null | U | f | Published | 0 | People v. Kocannck | Kocannck | The People of the State of New York v. Alex Kocannck | null | null | null | null | null | null | null | null | null | 61,740,432 | null | 0 | nyappdiv | SA | t | Appellate Division of the Supreme Court of New York | Appellate Division of the Supreme Court of the State of New York |
3,141,436 | No. 2--03--0345 IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT FRANK HEABLER, JR., ) Appeal from the Circuit Court ) of Kane County. Petitioner-Appellant, ) ) v. ) No. 03--MR--31 ) MUNICIPAL OFFICERS ELECTORAL ) BOARD OF THE VILLAGE OF ) LAKEMOOR and its Members ) ROBERT KOEHL, DONALD POGGENSEE, ) and LENORE LUKAS-TUTIEN, in ) Their Official Capacities; ) KATHERINE SCHULTZ, County ) Clerk of McHenry County, in ) Her Official Capacity; LENORE ) LUKAS-TUTIEN, Village Clerk of ) Lakemoor, in Her Official ) Capacity, ) Honorable ) Michael J. Sullivan Respondents-Appellees. ) Judge, Presiding. JUSTICE O’MALLEY delivered the opinion of the court: Petitioner, Frank Heabler, Jr., appeals from the March 19, 2003, judgment of the circuit court of McHenry County that affirmed the decision of the Municipal Officers Electoral Board of the Village of Lakemoor (the Electoral Board) sustaining objections to petitioner’s nominating papers filed for the April 1, 2003, Village of Lakemoor (Lakemoor) trustee election. We affirm. On January 13, 2003, petitioner filed nominating papers to be a candidate for trustee in the April 1, 2003, consolidated election in Lakemoor. The nominating papers included both a statement of candidacy and petitions for nomination that were signed by voters. There were two different types of trustee offices to be filled in the election. The first type was the full-term trustee office and carried a term of four years. The second type was created by a vacancy and carried a term of two years. A document distributed to candidates by Lakemoor stated that there were three four-year trustee offices and one two-year office to be filled in the election. The same document admonished the candidates to consult competent legal counsel in filing their petitions for nomination. Despite the two types of trustee offices available, petitioner identified the office he sought only as "trustee" on all of his nominating papers. Ralph Brindise, an incumbent trustee who was also running in the April 1 election, objected to petitioner’s nominating papers on the basis that they did not identify which type of trustee position petitioner sought. On February 3, 2003, the Electoral Board held a hearing on Brindise’s objections. At the hearing, petitioner testified that the office he sought was trustee for a four-year term. On February 5, 2003, the Electoral Board sustained Brindise’s objections, finding that petitioner had not identified which type of trustee office he was seeking in any of his nominating papers. As a result of this decision, petitioner's name was removed from the ballot. On March 19, 2003, the circuit court of McHenry County affirmed the Electoral Board’s decision. This court has granted accelerated review of this case under Supreme Court Rule 311 (155 Ill. 2d R. 311). We review the decision of the Electoral Board de novo because it involves a question of law. Brennan v. Kolman , 335 Ill. App. 3d 716 , 719 (2002). On appeal, petitioner argues that his description of the office sought as "trustee" was sufficient because a general description of an office is presumed to refer to the full-term office unless otherwise specified. We disagree. A description of the office sought by a candidate is generally sufficient where there is "no basis for confusion as to the office for which the nominating papers were filed." Lewis v. Dunne , 63 Ill. 2d 48 , 53 (1976). There is no basis for confusion where, looking at the nominating papers as a whole, it is clear which position the candidate seeks. Lewis , 63 Ill. 2d at 53 . In Lewis , a candidate for appellate judge described the office he sought only as " 'Judge of the Appellate Court of Illinois, First Judicial District' " on his statement of candidacy. Lewis , 63 Ill. 2d at 50 . The candidate properly described the office as " 'Judge of the Appellate Court of Illinois, First Judicial District, to fill the vacancy created by the retirement of the Honorable Robert E. English' " on his petitions for nomination. Lewis , 63 Ill. 2d at 49-50 . The candidate's nominating papers were challenged on the basis that the statement of candidacy did not describe the specific vacancy the candidate sought. Lewis , 63 Ill. 2d at 50 . The supreme court held that the nominating papers were valid based on two factors. First, there was "no basis for confusion as to the office for which the nominating papers were filed." Lewis , 63 Ill. 2d at 53 . Taken as a whole, the nominating papers, of which both the statement of candidacy and the petitions for nomination are part, clearly identified the office that the candidate sought because a specific description of the office was included in the petitions for nomination. Lewis , 63 Ill. 2d at 53 . Second, there was nothing about the statement of candidacy itself that made it necessary for the specific description of the office to be included therein. The purpose of a statement of candidacy is to obtain a sworn statement from the candidate establishing his qualifications to enter the primary election for the office he seeks. Lewis , 63 Ill. 2d at 53 . The general description of the office is the functional equivalent of the specific description for this purpose. Lewis , 63 Ill. 2d at 53 . Thus, there was no reason for the statement of candidacy to contain more than a general description of the office where other nominating papers contained the specific description. Zapolsky v. Cook County Officers Electoral Board , 296 Ill. App. 3d 731 (1998), a First District case cited by respondent, held that the failure to specify the precise office sought on petitions for nomination per se renders nominating papers invalid even where the specific office is identified on other nominating papers. In Zapolsky , there were full-term offices and a vacancy to be filled in the election. Zapolsky , 296 Ill. App. 3d at 732. The candidate, however, described the office she sought on her petitions for nomination only as " 'Commissioner of the Metropolitan Water Reclamation District of Greater Chicago.' " Zapolsky , 296 Ill. App. 3d at 732. The candidate correctly identified the office in her statement of candidacy and economic statement as " 'Commissioner of the Metropolitan Water Reclamation District of Greater Chicago to fill the vacancy for the unexpired two (2) year term.' " Zapolsky , 296 Ill. App. 3d at 732. As in Lewis , there was no basis for confusion as to the office for which the nominating papers were filed because the statement of candidacy and economic statement sufficiently delineated that information. The court, however, held that petitions for nomination always must identify the specific vacancy sought because of their distinctive purpose. Zapolsky , 296 Ill. App. 3d at 734. According to the court, "[t]he apparent purpose of nominating petitions signed by voters is to expand the informed participation of members of the respective parties in their primary election." Zapolsky , 296 Ill. App. 3d at 734. The court concluded that to accomplish this purpose "[a] potential signatory to a nominating petition has the right to know the specific vacancy sought by the candidate so that the signatory may make an informed decision to sign the petition or support another candidate for the same vacancy." Zapolsky , 296 Ill. App. 3d at 734. The conclusion in Zapolsky is questionable. Zapolsky premised its holding on its finding that "[t]he apparent purpose of nominating petitions signed by voters is to expand the informed participation of members of the respective parties in their primary election." Zapolsky , 296 Ill. App. 3d at 734. Zapolsky cited no authority for this finding. Other cases have held, more logically, that the primary purpose of the signature requirement is to reduce the electoral process to manageable proportions by confining ballot positions to a relatively small number of candidates who have demonstrated initiative and at least a minimal appeal to eligible voters. Lockhart v. Cook County Officers Electoral Board , 328 Ill. App. 3d 838 , 844 (2002); Huskey v. Municipal Officers Electoral Board , 156 Ill. App. 3d 201 , 206 (1987); Merz v. Volberding , 94 Ill. App. 3d 1111 , 1118 (1981); Briscoe v. Kusper , 435 F.2d 1046 , 1054 (7th Cir. 1970) . We need not decide whether to adopt the Zapolsky holding in the Second District, however. Unlike Zapolsky and unlike Lewis , here petitioner did not identify which of the two offices he sought on any of his nominating papers. A candidate's description of the office he seeks may not create "basis for confusion as to the office for which the nominating papers were filed." Lewis , 63 Ill. App. 3d at 53. In Lewis , the supreme court held that the failure to specifically identify the office sought in a statement of candidacy was excused where other nominating papers did so. Lewis , 63 Ill. App. 3d at 53. Here none of the nominating papers indicate which of the two trustee offices petitioner sought. As a result, it is not clear from the nominating papers which trustee office petitioner intended to run for. This constitutes a basis for confusion as to the office for which the nominating papers were filed. Petitioner argues that his general description of the office he sought was sufficient because nominating papers are considered filed for the full-term office unless otherwise specified. According to petitioner, only a candidate seeking to fill an office created by a vacancy need give a specific description of the office he seeks because a vacancy is "an exception to the statutory scheme." Petitioner premises this assertion on the fact that the statute provides for trustees to serve a four-year term. 65 ILCS 5/3.1--25--5 (West 2000). The trouble with this argument is that the statute also provides for trustees to serve less than a four-year term where they fill a vacancy. 65 ILCS 5/3.1--10--50(b) (West 2000). Thus, an office created by a vacancy is not "an exception to the statutory scheme" but, rather, specifically provided for by statute. Petitioner, in essence, asks us to create a default rule that a general description of an office sought is presumed to refer to the full-term office unless otherwise specified. We have found no authority that supports such a rule. Under Lewis , a candidate must make clear the office that he seeks somewhere in his nominating papers. We do not find this rule unduly burdensome such that we need qualify it today. Accordingly, petitioner's nominating papers are invalid because he failed to specify which of the two trustee positions he sought. Petitioner additionally argues that the Electoral Board was estopped to remove his name from the ballot because Lakemoor published a document listing available offices that classified both the two-year and the four-year trustee offices as "trustee." Before an estoppel against a public body can be found, it must be shown that an affirmative act occurred on the part of the governmental body that induced substantial reliance by the litigant. Schumann v. Kumarich , 102 Ill. App. 3d 454 , 460 (1981). Petitioner does not even argue that he relied on the document in failing to specify which of the two trustee positions he sought. Nor can he. The same document made clear that there were two types of trustee offices available and even admonished petitioner to consult competent legal counsel in filing his petitions for nomination. The Electoral Board was not estopped to remove petitioner's name from the ballot. The judgment of the circuit court of McHenry County is affirmed. Affirmed. KAPALA, J., concurs. JUSTICE GILLERAN JOHNSON, dissenting: I respectfully dissent. I believe that the petitioner complied with section 7--10 of the Election Code (10 ILCS 5/7--10 (West 2000)), which requires that a candidate's nominating papers state the office that the candidate seeks. Specifically, section 7--10 of the Election Code provides that the statement of candidacy must state the candidate's name, his political party, his place of residency, and the office he seeks. 10 ILCS 5/7--10 (West 2000) . The statement of candidacy must also be notarized. 10 ILCS 5/7--10 (West 2000) . Additionally, section 7--10 of the Election Code provides that a candidate's petitions for nomination be uniform in size, contain a certain number of signatures, and be fastened together in book form. 10 ILCS 5/7--10 (West 2000) . Each nominating petition must state the candidate's name, his address, and the office he seeks. 10 ILCS 5/7--10 (West 2000) . In accordance with section 7--10 of the Election Code, the petitioner stated, in both his nominating petition and statement of candidacy, that he sought the office of "trustee." That the petitioner did not designate whether he desired a four-year or two-year term did not render his description of the office insufficient. As noted above, section 7--10 of the Election Code sets out the precise form of a candidate's nominating papers. However, nowhere in section 7--10 of the Election Code does it require a candidate to designate the term of the office he desires. See 10 ILCS 5/7--10 (West 2000) . The majority's imposition of such a requirement on a candidate that he state the length of term he desires is, in the present case, superfluous, as the term of office of a trustee is defined by statute. Particularly, the Illinois Municipal Code (65 ILCS 5/3.1--25--5 (West 2000)) (the Municipal Code) provides: "In each village incorporated under this Code, the electors of the village shall elect 6 trustees. The term of office of the trustees shall be 4 years ***." Although the Municipal Code also provides for trustees to serve less than four years in instances where they fill a vacancy (65 ILCS 5/3.1--10--50 (West 2000)), this does not contravene the general rule that a trustee is an elected four-year position. The majority's position that there was a basis for confusion herein is therefore flawed. It was obvious that the petitioner was not seeking to fill a vacancy. The petitioner's nominating petition and statement of candidacy clearly indicated that the petitioner was seeking the position of trustee, which by statute is defined with a four-year term. Accordingly, the majority's suggestion that there was confusion over how long a term of office the petitioner was seeking is unfounded. Even if section 7--10 of the Election Code did require the petitioner to state the length of the term he sought, such an omission was inconsequential, and the Electoral Board should have found that the petitioner substantially complied. It is a fundamental principle that access to a place on the ballot is a substantial right and not lightly to be denied. Nolan v. Cook County Officers Electoral Board , 329 Ill. App. 3d 52 , 55 (2002). The petitioner's failure to describe the position he sought more precisely was, at maximum, a minor error. A minor error in a candidate's nominating papers should not result in a candidate's removal from the ballot. Sullivan v. County Officers Electoral Board , 225 Ill. App. 3d 691 , 693 (1992). I am mindful that compliance with section 7--10 of the Election Code has been held to be mandatory and not directory. See Bowe v. Chicago Electoral Board , 79 Ill. 2d 469 , 470 (1980). However, substantial compliance has been held, in some circumstances, to satisfy even certain mandatory requirements of the Election Code, including section 7--10. See Courtney v. County Officers Electoral Board , 314 Ill. App. 3d 870 , 876 (2000) (finding that the candidate had substantially complied with section 7--10 of the Election Code even though he failed to simultaneously file his nominating petitions with his statement of candidacy); Panarese v. Hosty , 104 Ill. App. 3d 627 , 628-29 (1982) (finding that the candidate substantially complied with section 7--10 of the Election Code even though he omitted his street and number from his nominating petition); Madden v. Schumann , 105 Ill. App. 3d 900 , 903 (1982) (holding that the candidate's omission of the phrase "is a registered voter" from the circulator's oath, as required by section 7--10 of the Election Code, was a technical deviation that did not warrant removal from the ballot); Stevenson v. County Officers Electoral Board , 58 Ill. App. 3d 24 , 26 (1978) (finding that the candidate's failure to number his nominating petitions consecutively, as required by section 7--10 of the Election Code, was a mere technical deficiency that did not render his nominating papers invalid) . Even Lewis , upon which the majority hangs its hat, establishes that a candidate can satisfy section 7--10 of the Election Code with substantial compliance. The Lewis court specifically held that the candidate "substantially complied" with section 7--10 of the Election Code even though he failed to describe the particular vacancy that he was seeking in his statement of candidacy. Lewis , 63 Ill. 2d at 53 . Although the Lewis court predicated its finding of substantial compliance on the fact that the candidate's nominating papers as a whole did describe the particular vacancy that the candidate was seeking, describing a particular vacancy in this case was not necessary because, as noted above, the petitioner was not seeking a vacancy. What was required, rather, was that the petitioner state the office he was seeking. This, I believe, the petitioner did. On a final note, the provisions of the Electoral Code are designed to protect the integrity of the electoral process. Welch v. Johnson , 147 Ill. 2d 40 , 56 (1992). Furthermore, villages such as Lakemoor have a legitimate interest in regulating the number of candidates on the ballot. Yet, when access to the ballot is involved, the restriction on that access should require the least drastic measure to achieve these ends. In this case, removing the petitioner from the ballot was a drastic measure that did little to protect the integrity of the electoral process. Moreover, the Village of Lakemoor's interests in this case were far outweighed by the petitioner's right to access on the ballot and the voters' right to elect a candidate of their choice. Frank Heabler should have been listed on the ballot for the April 1, 2003, election as a candidate for trustee. For the above reasons, I believe the Electoral Board's removal of the petitioner from the ballot was erroneous. | opinion_html_with_citations | 3,041 | 2015-10-22 17:54:00.83893+00 | 010combined | f | f | 3,141,436 | null | null | C | f | Published | 0 | Heabler v. Municipal Officers Electoral Board | Heabler | null | null | null | null | null | null | null | null | null | null | 2,999,028 | 2-03-0345 Rel | 0 | illappct | SA | t | Appellate Court of Illinois | Appellate Court of Illinois |
6,199,131 | OPINION OF THE COURT Sidney Leviss, J. In this action brought pursuant to subdivision 12 of section 63 of the Executive Law and sections 476-a and 476-b of the Judiciary Law, plaintiff seeks a permanent injunction restraining defendants from the unauthorized practice of law. Plaintiff alleges that defendants give legal advice to customers of so-called "divorce kits”. By order of this court dated April 18, 1978 defendants’ answer was stricken for failure to disclose. Plaintiff now moves without opposition for judgment. From the complaint and supporting affidavits it appears that defendants go beyond the mere selling of divorce kits to the public and in fact aid in the selection and preparation of the forms by giving legal advice. An investigator from plain*341tiffs office posed as a potential customer of a divorce kit and visited the premises of defendants in Queens. After listening to the investigator’s marital problems, defendant Wolfe, an employee of the corporate defendants, helped him select the proper grounds for divorce under section 170 of the Domestic Relations Law, and advised him, inadequately, on the meaning of cruel and inhuman treatment. In response to the investigator’s questions, defendant Wolfe further advised him about his obligation to pay alimony and about his obligation to pay debts contracted during marriage. Defendant Wolfe offered to type and file the papers for the investigator for an additional fee. At defendants’ Nassau-Suffolk office, defendant Jean Marie, who manages that office, also advised the investigator about the grounds for divorce, his liability for marital debts, and the probability of his having to pay alimony in light of the particular circumstances of the marital parties. Defendant Jean Marie advised and induced the investigator to "makeup” a third marital fight which she believed was needed to establish cruel and inhuman treatment. Another investigator went to defendants’ Queens office, where she met with defendant Wolfe. After listening to the investigator describe her marital circumstances, defendant Wolfe advised her to seek a divorce on the ground of cruel and inhuman treatment. He advised her that she would need three incidents involving physical or mental mistreatment. He urged the investigator to return to him so that he might review the papers for errors. When the investigator returned to the office a few days later saying that she was confused, defendant Kay, an employee of the corporate defendants, for a further fee, drew the papers including the paragraph of the complaint alleging cruel and inhuman treatment. In sum, the facts as alleged by the affidavits of the two investigators show that the defendants are not merely engaged in the sale of a book of forms to the public, which plaintiff admits is proper in itself, but in also giving specific legal advice to individuals. In Matter of New York County Lawyers’ Assn. v Dacey (21 NY2d 694) the Court of Appeals reversed an injunction against the sale of forms on the dissenting opinion of Justice Stevens (Matter of New York County Lawyers’ Assn. v Dacey, 28 AD2d 161, 171). Justice Stevens drew a distinction between the practice of law and the mere sale of a book of forms, stating (p 174): "Dacey’s book is sold to the public at *342large. There is no personal contact or relationship with a particular individual, nor does there exist that relation of confidence and trust so necessary to the status of attorney and client. This is the essential of legal practice — the representation and advising of a particular person in a particular situation. ” (Emphasis added.) In State of New York v Winder (42 AD2d 1039), the Appellate Division, Fourth Department, held that the publication and sale of divorce kits similar to those sold by defendants herein did not constitute the unlawful practice of law because the publication itself did not give personal advice on specific problems to individuals. The court quoted the distinction drawn by Justice Stevens in Matter of New York County Lawyers’ Assn, v Dacey and found that selling the kit did not constitute the advising of a particular person in a particular situation (State of New York v Winder, supra). However, the Appellate Division found that defendants went beyond the mere selling of the kit and gave legal advice to individuals concerning particular problems which might arise in the preparation and presentation of the documents. Therefore, the court upheld that part of the injunction directed against those practices. (State of New York v Winder, supra, p 1040.) In the case at bar, defendants’ actions constituted the unlawful practice of law. (Judiciary Law, § 476-a et seq.; Matter of New York County Lawyers’ Assn, v Dacey, supra; State of New York v Winder, supra.) Specific advice, often erroneous and inadequate, was given to particular individuals in light of their particular circumstances. Defendants advised individuals on the choice of grounds for divorce, on the disposition of jointly owned property, on the legality of alimony arrangements, on responsibility for marital debts, and on the drawing of legal papers. Rules for the admission of practice to law, rules regulating the conduct of the bar, and laws against the unauthorized practice of law were enacted to protect the public from ignorance, inexperience, and unscrupulousness. (People v Alfani, 227 NY 334.) Defendants’ conduct makes it apparent that the rationale underlying these rules is very sound. Defendants not only attempt to give legal advice in a sensitive area of the law, where the interests of spouses and children are at stake, but they also give out erroneous information and counsel perjury. One example of this occurred when defendant Jean Marie encouraged the investigator to perjure himself about a *343third fight supposedly needed to establish cruel and inhuman treatment. Other incomplete or erroneous advice given by defendants and relating, for example, to the husband’s obligation to pay alimony and his responsibility for marital debts convinces the court that the injunction sought by the plaintiff is needed for the protection of the public. Accordingly, the court grants the injunction sought by plaintiff insofar as the plaintiff seeks to enjoin defendants from the unauthorized practice of law by: (1) giving legal advice to customers about their marital problems; (2) giving legal advice to customers by selecting for them proper forms on the basis of their individual circumstances; and (3) giving legal advice by aiding and assisting individual customers in filling out legal forms. The court must deny that part of the complaint which seeks to enjoin defendants from personally selling the kits. (New York County Lawyers’ Assn, v Dacey, 21 NY2d 694, supra.) Sale of forms, even face-to-face without the giving of legal advice, is not subject to injunction. (State of New York v Winder, 42 AD2d 1039, supra.) Plaintiff’s application under CPLR 8303 (subd [a], par 6) for a discretionary allowance in the sum of $2,000 is also grantéd. | opinion_xml_harvard | 1,131 | 2022-02-05 20:30:09.946087+00 | 020lead | t | f | 6,330,577 | Leviss | null | U | f | Published | 0 | People v. Divorce Associated & Publishing Ltd. | null | The People of the State of New York v. Divorce Associated and Publishing Ltd. | null | null | null | null | null | null | null | null | null | 62,961,744 | null | 0 | nysupct | ST | t | New York Supreme Court | New York Supreme Court |
9,060,053 | C. A. 9th Cir. Certiorari denied. | opinion_xml_harvard | 6 | 2022-11-27 20:08:49.985309+00 | 020lead | t | f | 9,066,386 | null | null | U | f | Published | 0 | Akbar v. United States | Akbar | Akbar v. United States | null | null | null | null | null | null | null | null | null | 66,332,637 | No. 86-6079 | 0 | scotus | F | t | Supreme Court | Supreme Court of the United States |
9,493,494 | O’SCANNLAIN, Circuit Judge, with whom Circuit Judges TROTT and KLEINFELD join, dissenting: The sweeping language and exalted tone of the court’s wide-ranging opinion make clear that it aspires to offer a definitive interpretation of the Americans with Disabilities Act (ADA). This might be less disturbing if this case actually involved an American with a disability. Because the court reaches out to decide several important issues of first impression in a case without a proper plaintiff, I must respectfully dissent. I Robert Barnett suffers from back problems. Barnett’s doctor has imposed upon him permanent restrictions that prohibit him from excessive bending, twisting, and turning; prolonged standing or sitting; and lifting twenty-five pounds or more. Barnett claims that these restrictions prevent him from serving in the cargo position but do not prevent him from working in the swing-shift mailroom position. The functions of the mailroom position include occasional bending and frequent twisting and turning; occasional standing or sitting; and some lifting. The crucial limitation imposed upon Barnett, then, is the twenty-five pound lifting restriction, because it is the only restriction that would prevent him from handling cargo, but would not prevent him from working in the mailroom. The record evidence in this case clearly establishes that Barnett is not disabled within the meaning of the ADA. In Thompson v. Holy Family Hospital, 121 F.3d 537 (9th Cir.1997), we affirmed the summary judgment dismissal of an ADA case on the ground that the plaintiff failed to create a genuine issue of material fact as to her disability. Cynthia Thompson, like Robert Barnett, suffered from back problems, and her doctor, like Barnett’s doctor, prohibited her from lifting more than twenty-five pounds. See id. at 539. The Thompson court found this limitation inadequate to establish a triable issue as to the plaintiffs disability. Although it acknowledged that lifting and working constitute “major life activities” for purposes of the ADA’s implementing regulations, Thompson’s twenty-five-pound lifting restriction did not constitute “the requisite evidence that she is substantially limited with respect to these activities.” Id. at 539-40 (expressing agreement with “[a] number of courts [that] have held that lifting restrictions similar to Thompson’s are not substantially limiting” (citing cases)). Although Thompson’s lifting restriction prevented her from serving as a nurse performing “total patient care” duties, just as Barnett’s identical lifting restriction prevented him from serving in the cargo position, the panel held that “[t]he inability to perform one particular job does not constitute [a substantial] limitation” on the general ability to work. Id. at 540. The similarities between Thompson and the instant case, in terms of both the plaintiffs claimed disabilities and the employer’s responses thereto, are striking. Under Thompson, it is clear that no genuine issue of material fact exists as to Barnett’s disability. The district court’s grant of summary judgment should be affirmed. II The court addresses (or dodges) the question whether Barnett is “disabled” un*1124der the ADA in a footnote, noting in passing that the district court concluded that Barnett was “disabled” under the ADA and that U.S. Air did not raise the issue of Barnett’s disability on appeal. Maj. op. at 1110 n. 1. The failure of U.S. Air to file a cross-appeal, however, in no way precludes us from affirming based on Barnett’s failure to establish that he is disabled. Contrary to the suggestion in that footnote, it is well-settled that we may affirm a grant of summary judgment based on any ground supported by the record. See, e.g., Albertson’s, Inc. v. United Food and Commercial Workers Union, 157 F.3d 758, 760 n. 2 (9th Cir.1998); Intel Corp. v. Hartford Accident and Indem. Co., 952 F.2d 1551, 1556 (9th Cir.1991). In Intel, the district court granted Intel’s motion for summary judgment, holding, in part, that Hartford, which had issued an insurance policy to Intel, waived its reliance on one of the policy’s exclusions. We affirmed the grant of summary judgment, but on a different ground. We examined the policy’s exclusion, and held that there was no material issue of fact as to the exclusion’s application. See id. at 1561. Although U.S. Air did not present the issue of Barnett’s disability (or lack thereof) in a separate appeal, the parties have had more than ample opportunity to brief and to argue the issue in both the district court and this court. Before the district court, U.S. Air argued that Barnett’s lifting restrictions did not render him disabled under the ADA; Barnett opposed granting summary judgment on that basis. In a fairly brief discussion, the district court determined that summary judgment could not be properly granted on the issue because of evidence showing Barnett’s back injury to be “serious and permanent.” On August 26, 1996, Barnett filed his notice of appeal in our court; U.S. Air did not file a cross-appeal.1 One year later, on August 8, 1997, we decided Thompson. In our order filed September 16, 1997, we specifically directed the parties to file supplemental briefs discussing Thompson. These briefs were filed in advance of oral argument before the three-judge panel, held on October 8, 1997. In both the district court and this court, the parties have had the opportunity to develop, and have actually developed, the issue of Barnett’s disability, both before, and in light of, Thompson. As a result, nothing bars us from taking the prudential path and refraining from deciding weighty issues in a weightless case. Cf. Bellotti v. Baird, 428 U.S. 132, 143-44, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976). In Bellotti, the Court held that the district court should have abstained from deciding a constitutional issue, stating that, “It is not entirely clear that appellants suggested the same interpretation in the District Court as they suggest here. Nevertheless, the fact that full arguments in favor of abstention may not have been asserted in the District Court does not bar this Court’s consideration of the issue.” Id. at 143 n. 10, 96 S.Ct. 2857 (internal citation omitted). Cf. Delange v. Dutra Const. Co., 183 F.3d 916, 919 n. 3 (9th Cir.1999) (recognizing that this circuit may exercise its discretion to review issues raised for the first time on appeal). III Barnett’s case simply cannot bear the weight that the court seeks to place upon it. A case so transparently lacking in merit is an inappropriate vehicle for deciding multiple questions of first impression concerning the proper construction of an important statute (and creating a circuit split in the process, see maj. op. at 1118 n. 8). The court has issued what in effect amounts to a lengthy advisory opinion on the ADA; when this case returns to the district court, the only appropriate course of action will be to dispose of it under Thompson. *1125Because Barnett is simply not disabled under the ADA, the district court’s grant of summary judgment was proper and should be affirmed. I respectfully dissent. . The fact that Thompson was decided well after the time for U.S. Air to file a notice of appeal had passed may explain in part U.S. Air’s failure to take a cross-appeal. | opinion_xml_harvard | 1,172 | 2023-08-05 15:09:52.650214+00 | 040dissent | f | f | 770,693 | Fletcher, Gould, Hug, Kleinfeld, O'Scannlain, Pregerson, Schroeder, Tashima, Thomas, Trott | null | RU | f | Published | 111 | Robert Barnett v. U.S. Air, Inc. | null | Robert BARNETT, Plaintiff-Appellant, v. U.S. AIR, INC., Defendant-Appellee | null | null | <parties id="b1123-8">
Robert BARNETT, Plaintiff-Appellant, v. U.S. AIR, INC., Defendant-Appellee.
</parties><docketnumber id="A6E">
No. 96-16669.
</docketnumber><court id="Ak5">
United States Court of Appeals, Ninth Circuit.
</court><otherdate id="AuWa">
Argued and Submitted June 22, 2000.
</otherdate><decisiondate id="AEd">
Filed Oct. 4, 2000.
</decisiondate><br><attorneys id="b1126-6">
<span citation-index="1" class="star-pagination" label="1108">
*1108
</span>
Richard L. Davis (on brief), Menlo Park, California, Robert W. Rychlik (argued), Palm Desert, California, for the plaintiff-appellant.
</attorneys><br><attorneys id="b1126-7">
Raymond W. Thomas, Los Angeles, California, for the defendant-appellee.
</attorneys><br><attorneys id="b1126-8">
Susan L.P. Starr (argued), Julie L. Gantz (on brief), Washington, D.C., for the amicus curiae.
</attorneys><br><judges id="b1126-10">
Before: HUG, Chief Judge, SCHROEDER, FLETCHER, PREGERSON, O’SCANNLAIN, TROTT, KLEINFELD, TASHIMA, THOMAS, FISHER, GOULD, Circuit Judges.
</judges> | null | null | null | null | null | null | 2,063,404 | 96-16669 | 0 | ca9 | F | t | Ninth Circuit | Court of Appeals for the Ninth Circuit |
1,355,714 | 112 Wash. 2d 303 (1989) 771 P.2d 350 THE STATE OF WASHINGTON, Respondent, v. KIMBERLY COLLINS, Petitioner. No. 55170-7. The Supreme Court of Washington, En Banc. April 13, 1989. Marc R. Lampson of Washington Appellate Defender Association, for petitioner. Seth R. Dawson, Prosecuting Attorney, and Seth Aaron Fine, Deputy, for respondent. UTTER, J. Petitioner Kimberly Collins seeks review of a Court of Appeals decision upholding her conviction for third degree assault. She argues that the trial judge violated prohibitions against double jeopardy developed in State v. Dowling, 98 Wash. 2d 542 , 656 P.2d 497 (1983), when he, upon reconsideration, reinstated the third degree *304 assault charge after orally dismissing it for want of evidence. We hold that the trial judge's reinstatement of the charge did not constitute double jeopardy and affirm the decision of the Court of Appeals which so held. Dowling is overruled to the extent that it conflicts with this opinion. While in custody at the Snohomish County Jail, Ms. Collins bit a corrections officer on the wrist. The Snohomish County Prosecutor charged Ms. Collins with third degree assault under former RCW 9A.36.030(1)(a), which states, in part: Every person who, under circumstances not amounting to assault in either the first or second degree, shall be guilty of assault in the third degree when he: (a) With intent to prevent or resist the execution of any lawful process or mandate of any court officer or the lawful apprehension or detention of himself or another person shall assault another ... During the trial, the defense moved to dismiss for lack of evidence at the close of the prosecutor's case. Defense counsel argued that the prosecution had not proved that Ms. Collins had the intent to escape or to resist lawful detention when she bit one of the officers. Therefore, according to defense counsel, the prosecution had not proved all of the elements of third degree assault. After argument from both sides, the trial judge gave an oral ruling of dismissal. It does not appear from the record that the judge made or signed a separate journal entry of this event. Minutes later, the prosecutor offered authority contrary to the judge's ruling, citing State v. Jury, 19 Wash. App. 256 , 576 P.2d 1302 , review denied, 90 Wash. 2d 1006 (1978). After further discussion and argument on the impact of Jury, the trial judge reversed his first ruling. The trial continued and the case went to the jury, which returned a guilty verdict. Ms. Collins appealed her conviction to Division One of the Court of Appeals. Along with other arguments, she contended that, under State v. Dowling, supra , the reinstatement of the assault charge after oral dismissal amounted to double jeopardy. The Court of Appeals, in an *305 unpublished opinion by Coleman, J., rejected all of Ms. Collins' arguments, distinguished Dowling, and upheld the conviction. I The central issue here is whether or not the trial judge's ruling was final when given orally. Only if that finality is established can protections against double jeopardy attach. We find that this ruling was not final and overrule the standard enunciated in State v. Dowling, supra . In Dowling, this court held that a trial judge, sitting as a trier of fact, violated the prohibition against double jeopardy when he reversed his own previous oral order of dismissal made 4 months earlier. In so holding, we adopted a standard for determining the finality of a trial judge's ruling which, as the dissent in that case pointed out, represented a change in Washington law. As Dowling concerned a ruling by a trial judge sitting as the trier of fact, the "finality standard" was tailored to that situation. We held: A finding by the court as the trier of fact, without a jury, when read conclusively into the record in such a manner as to indicate that it is neither tentative nor made with reservation or advisement nor subject to further consideration or proceedings in the same case, will support a judgment of acquittal or dismissal. 98 Wn.2d at 547, quoting State v. Bastinelli, 81 Wash. 2d 947 , 956, 506 P.2d 854 (1973) (Hale, C.J., concurring). This standard is at odds with the one noted by the Dowling dissent: that "a case is not finally terminated until either a journal entry or, more preferably, a formal order is entered by the trial court." 98 Wn.2d at 550 (Dolliver, J., dissenting). The Dowling dissent cited a number of cases for this proposition, among them State v. Aleshire, 89 Wash. 2d 67 , 70, 568 P.2d 799 (1977) and State v. Mallory, 69 Wash. 2d 532 , 533, 419 P.2d 324 (1966). Nonetheless, this court reaffirmed the Dowling standard in State v. LeFever, 102 Wash. 2d 777 , 690 P.2d 574 (1984). The effect of the Dowling rule on past precedent has not always been clear. In Mallory, the trial judge in a bench *306 trial found the defendants guilty. On appeal, the defendants referred to the oral and memorandum opinions of the trial court. This court held that such earlier opinions may be considered in interpreting findings of fact and conclusions of law, but cannot be considered as the basis for the trial court's judgment and sentence. We stated further: A trial court's oral or memorandum opinion is no more than an expression of its informal opinion at the time it is rendered. It has no final or binding effect unless formally incorporated into the findings, conclusions, and judgment. 69 Wn.2d at 533-34. Because Mallory concerned the trial judge's function as trier of fact and the finality of that judge's oral opinions and rulings, it conflicts directly with Dowling. Aleshire concerned a jury trial and addressed the issue of double jeopardy. The trial judge there took defendant's motion to dismiss (for failure to prosecute within the "speedy trial" standards) under advisement. The judge later wrote a letter to counsel concluding, "The case is dismissed." Three days later, the judge reversed himself and allowed commencement of a new trial. This court found that the letter did not represent the final judgment; therefore the defendant had not faced double jeopardy. Citing Mallory and Chandler v. Doran Co., 44 Wash. 2d 396 , 267 P.2d 907 (1954), we held that a journal entry or a formal order would be necessary to end the case. We distinguished State v. Bastinelli, supra , upon which defendants relied, because it concerned a trial to the court on the merits. We emphasized that we could find no reason to change the Mallory rule "particularly where the issue was solely a procedural one." Aleshire, at 71. Even though the present case involved a jury trial, the Dowling finality standard applies to the trial judge's ruling. While the trial judge here was not the finder of fact, his initial oral ruling went to the case's merits. In a motion to dismiss for insufficient evidence, the trial judge must consider whether a rational trier of fact would find guilt *307 beyond a reasonable doubt. State v. Green, 94 Wash. 2d 216 , 220, 616 P.2d 628 (1980). This consideration necessitates evaluating the evidence presented; the ruling is based on the sufficiency and persuasiveness of that evidence. The judge must face the ultimate question of the defendant's guilt or innocence regarding the elements of the offense for which she is charged. The trial judge here based his oral ruling on his evaluation of the evidence relating to the defendant's guilt: "Looking at all of the evidence most favorable to the State, I don't think the requirements of State versus Green are met, and I will dismiss regarding 3rd degree assault." Verbatim Report of Proceedings, at 100. In following the "rational trier of fact" standard, the judge acted as the trier of fact for the purposes of the motion. In acting in that capacity, he fell under the scope of Dowling. Because he read the ruling "conclusively into the record," it was final under the Dowling rule. II The Court of Appeals did not find Dowling to be on point and instead followed State v. McClelland, 24 Wash. App. 689 , 604 P.2d 969 (1979), review denied, 93 Wash. 2d 1019 (1980). In McClelland, the Court of Appeals found a trial judge's apparent dismissal ("[i]t would be my decision that the matter be dismissed") to be tentative and merely an indication of the judge's thinking process when he reconsidered and reversed it before recess or adjournment. 24 Wn. App. at 692. Petitioner argues that Dowling overrules McClelland sub silentio. While this is a possibility, it is also possible to distinguish the two. The reversal of the oral ruling in McClelland came after continued argument, before the adjournment of the day's proceedings. In Dowling, the reversal came 4 months later. More importantly, the McClelland trial judge's choice of language shows that the intended finality of his "ruling" was questionable. By contrast, this court found the Dowling judge's ruling final because it was "read conclusively into the record." *308 [1] While it is possible to distinguish these cases, this very possibility reveals the serious shortcomings with the Dowling rule. Much of the determination comes down to after-the-fact analysis of subtle distinctions preserved in the record of the proceedings. The outcome of something as important as deciding whether a defendant was exposed to double jeopardy should not hang on such guesswork. Reliance on this rule cannot provide clear guidance to trial judges and can lead to inconsistent appellate decisions such as the ones cited above. To serve the ends of certainty, reliance on the final written court order or written journal entry to determine the finality of a ruling is the better rule. In this vein, our reference in Mallory to the trial court's oral opinion as "no more than an expression of its informal opinion at the time it is rendered" is relevant here. Individual trial judges' styles of ruling vary. Many judges will think out loud along the way to reaching the final result. It is only proper that this thinking process not have final or binding effect until formally incorporated into the findings, conclusions, and judgment. For this reason, we overrule the standard developed in Dowling and followed in LeFever for determining the finality of a trial judge's oral ruling. We return to the rule long followed in this state that a ruling is final only after it is signed by the trial judge in the journal entry or is issued in formal court orders. See State v. Aleshire, supra ; State v. Mallory, supra ; Chandler v. Doran Co., supra ; State v. McClelland, supra . The trial judge in the present case did not even approach signing a journal entry or issuing a formal signed order. The record indicates that he stated one position, albeit in language that reflected a ruling, in light of the authority presented by counsel. The argument of counsel, however, did not end there. The prosecutor introduced new, contrary authority, further argument followed, and the judge reversed his original position. Although the "reversal" took place within a very short time probably 10 minutes the lapse of time is irrelevant to the rule we follow. Only after *309 the signed journal entry is made or the signed order is issued will the ruling be final. A lapse of 4 months or of 10 minutes makes no difference. We therefore affirm the decision of the Court of Appeals and uphold the conviction of Ms. Collins for third degree assault. CALLOW, C.J., and BRACHTENBACH, DOLLIVER, PEARSON, ANDERSEN, DURHAM, and SMITH, JJ., concur. DORE, J. (dissenting) The majority argues that the defendant's right not to be placed in double jeopardy should not turn on "guesswork." That is a gross mischaracterization of the standard we defined in State v. Dowling, 98 Wash. 2d 542 , 656 P.2d 497 (1983), and it misrepresents that standard's application to this case. Dowling states a clear and reliable standard for determining when a defendant has been acquitted for double jeopardy purposes. In the absence of a compelling showing that Dowling is wrong, the majority's overruling Dowling cannot be justified. STARE DECISIS REQUIRES US TO ADHERE TO DOWLING The rule of stare decisis requires us to stand by our decisions unless there are compelling reasons why we should not do so. For example, in State v. Stevick, 23 Wash. 2d 420 , 161 P.2d 181 (1945) and State v. McDaniels, 30 Wash. 2d 76 , 190 P.2d 705 (1948), we held that proof of ordinary negligence would suffice to support a conviction for negligent homicide. We were persuaded in State v. Partridge, 47 Wash. 2d 640 , 289 P.2d 702 (1955), however, that the Legislature clearly meant to require a showing of recklessness as an element of that crime. We stated: We hesitate to overrule cases which have been in the books for some length of time, yet when we are confronted with a problem and are convinced that we have been wrong, it is our duty to do so. 47 Wn.2d at 645. *310 The cases overruled in Partridge were clearly wrong and were shown to be so in a carefully reasoned opinion. Here, in contrast, there has been no showing that our prior decision is clearly wrong. As demonstrated below, the majority supports its conclusion only by grossly overstating the difficulties associated with applying Dowling. Nor has there been any showing that subsequent cases have exposed weaknesses or inconsistencies in Dowling. In this regard the case can be contrasted with United States v. Jenkins, 420 U.S. 358 , 43 L. Ed. 2d 250 , 95 S. Ct. 1006 (1975). In Jenkins, the Supreme Court held that the double jeopardy clause prevented the government from appealing a dismissal of criminal charges even if granted at the defendant's motion on grounds unrelated to guilt or innocence. Subsequent to Jenkins, however, the Court held in several cases that the clause did not bar retrial or appeal where dismissal had been obtained on a variety of grounds short of mistrial. See Lee v. United States, 432 U.S. 23 , 53 L. Ed. 2d 80 , 97 S. Ct. 2141 (1977); Serfass v. United States, 420 U.S. 377 , 43 L. Ed. 2d 265 , 95 S. Ct. 1055 (1975). Therefore, within a few years the Supreme Court overruled Jenkins because these subsequent cases demonstrated that its rule was not sound. United States v. Scott, 437 U.S. 82 , 95, 101, 57 L. Ed. 2d 65 , 98 S. Ct. 2187 (1978). There has been no such showing here. On the contrary, we have relied on Dowling at least once with no difficulties and without expressing reservations. State v. LeFever, 102 Wash. 2d 777 , 690 P.2d 574 (1984). DOWLING INDICATES A CLEAR DEFENSIBLE RESULT The main reason the majority gives for overruling Dowling is that it requires "after-the-fact analysis of subtle distinctions preserved in the record of the proceedings." Majority, at 308. Just as a preliminary point, the same is true of almost every decision we make. If the need for meticulous evaluation of the record is a defect in standards *311 of appellate review, then much of this court's work is suspect. More to the point, it is clear the majority grossly overstates the difficulties involved in applying the Dowling standard. Dowling defines when a criminal defendant has been acquitted and may not be placed in jeopardy again: A finding by the court as the trier of fact, without a jury,[ [1] ] when read conclusively into the record in such a manner as to indicate that it is neither tentative nor made with reservation or advisement nor subject to further consideration or proceedings in the same case, will support a judgment of acquittal or dismissal. 98 Wn.2d at 547 (quoting State v. Bastinelli, 81 Wash. 2d 947 , 950, 956, 506 P.2d 854 (1973) (Hale, C.J., concurring)). We derived this rule from the well established principle that, when an appellate court reverses a conviction based on insufficient evidence, a retrial is not permissible. 98 Wn.2d at 544. See Hudson v. Louisiana, 450 U.S. 40 , 67 L. Ed. 2d 30 , 101 S. Ct. 970 (1981); Burks v. United States, 437 U.S. 1 , 57 L. Ed. 2d 1 , 98 S. Ct. 2141 (1978). A trial court cannot grant, by way of a motion to reconsider, what the State cannot obtain from this court on appeal. 98 Wn.2d at 545. Whatever speculative difficulties the majority may have in mind in its appraisal of Dowling, they are not present in this case. The application of the rule to this record is simple and straightforward. Contrary to the majority's representation, the trial judge did not merely state "a position" in "language that reflected a ruling." He ruled. [The Court]: Counsel, I can't see anything else but she prevented her own restraint, physical restraint within the drunk tank, per se. In her activity of striking out at one time, outside the attorney's room, it would appear to be, again, hostile assault, but not in the sense of prevention of detention; it was just an assault per se. Looking at all of the evidence most favorable to the State, I don't think *312 the requirements of State versus Green [ 94 Wash. 2d 216 , 616 P.2d 628 (1980)] are met, and I will dismiss regarding 3rd degree assault. Do you want some time to consult with each other regarding the other two matters? Report of Proceedings, at 100. The judge summarized the relevant evidence, stated the applicable legal standard, applied that standard to the facts, stated a conclusion and moved on to the next issue. No subtle analysis or guesswork is needed to identify such a statement as a clear, unambiguous ruling. Furthermore, not only did the trial court make an unequivocal ruling, the State recognized it as such. In making the motion to reconsider, counsel for the State began by saying: [Counsel]: Your Honor, I realize you have ruled, but I would like to draw your attention to State v. Jury, [ 19 Wash. App. 256 , 576 P.2d 1302 , review denied, 90 Wash. 2d 1006 (1978)] ... Report of Proceedings, at 101. In short, the trial court's ruling that the State had not met its burden was "neither tentative nor made with reservation or advisement nor subject to further consideration ..." 98 Wn.2d at 547. Under Dowling, Collins was acquitted at the moment the decision was announced, and the State's motion for reconsideration simply could not be granted without running afoul of the prohibition on double jeopardy. There is no "guesswork" involved in reaching this conclusion. The majority overstates the difficulties associated with applying the Dowling rule because it is bent on overruling it. THE TRIAL COURT'S DECISION ACQUITTED COLLINS EVEN IF IT WAS INCORRECT The majority also argues that, while the trial judge stated his ruling "albeit in language that reflected a ruling" it was not a ruling because he heard further argument and changed his mind. Majority, at 308. This, like the argument refuted above, is meant to suggest that Dowling is indefinite and difficult to apply. In fact, it amounts to saying that *313 the trial court had the power to grant a motion to reconsider because it granted a motion to reconsider which plainly begs the question. The question before us is whether the trial court could proceed at all beyond the point at which it determined that the State had not met its burden. If the defendant was acquitted at that point, the court could proceed no further without placing her in double jeopardy. To say that the trial court did so proceed is no argument for the proposition that it did so properly. The majority's argument sounds plausible only because the trial court's initial decision to dismiss apparently was incorrect. It is well established, however, that double jeopardy is prohibited even where the defendant has been acquitted in error. For double jeopardy purposes, an acquittal is defined as: "a resolution, correct or not, of some or all of the factual elements of the offense charged." United States v. Martin Linen Supply Co., 430 U.S. 564 , 571, 51 L. Ed. 2d 642 , 97 S. Ct. 1349 (1977). For example, in Fong Foo v. United States, 369 U.S. 141 , 7 L. Ed. 2d 629 , 82 S. Ct. 671 (1962), the trial court interrupted the questioning of the government's fourth witness and directed a verdict of acquittal on the ground that the government's witnesses were not credible and because the United States Attorney allegedly had committed prosecutorial misconduct. The Court of Appeals reversed. The Supreme Court, however, reinstated the original judgment of acquittal: The trial did not terminate prior to the entry of judgment, as in Gori v. United States, 367 U.S. 364 [ 6 L. Ed. 2d 901 , 81 S. Ct. 1523 (1961)]. It terminated with the entry of a final judgment of acquittal as to each petitioner. The Court of Appeals thought, not without reason, that the acquittal was based upon an egregiously erroneous foundation. Nevertheless, "[t]he verdict of acquittal was final, and could not be reviewed ... without putting [the petitioners] twice in jeopardy, and thereby violating the Constitution." United States v. *314 Ball, 163 U.S. 662 , 671 [ 41 L. Ed. 300 , 16 S. Ct. 1192 (1896)]. 369 U.S. at 143. The same reasoning applies here. If the trial court committed an error in ruling that the State had not proven its case against Collins an error far less obvious than that in Fong Foo the State could not remedy that error by a motion to reconsider. The consideration of that motion itself, like an appeal, would constitute double jeopardy. The fact that the trial court recognized its own mistake has no bearing on the effect of its earlier ruling. Regardless of the brief period of time intervening between the trial court's ruling and the State's motion, Collins was acquitted at the time the court first ruled, and was beyond the power of the State. The acquitted defendant is an innocent woman and cannot be made guilty by the majority. CONCLUSION We are justified in overruling our prior cases only when we have clearly been wrong, as demonstrated by subsequent experience or intervening case law. The majority's exaggerated account of the difficulties in applying Dowling do not constitute such a showing. Since, under Dowling, Collins was acquitted at the time the trial court granted the State's motion to reconsider and continued with the trial, I would reverse the conviction and dismiss the information. NOTES [1] As the majority acknowledges, the Dowling standard applies to this case, despite the fact that trial was by jury, because the trial court evaluated the evidence in the course of finding that the State had not met its burden of presenting evidence. Majority, at 306-07. | opinion_html_with_citations | 3,821 | 2013-10-30 05:44:34.94933+00 | 010combined | f | f | 1,355,714 | Andersen, Brachtenbach, Callow, Dolliver, Dore, Durham, Pearson, Smith, Utter | null | LU | f | Published | 28 | State v. Collins | Collins | The State of Washington, Respondent, v. Kimberly Collins, Petitioner | null | null | <docketnumber id="b339-4">
[No. 55170-7.
</docketnumber><court id="AIl">
En Banc.
</court><decisiondate id="A1m">
April 13, 1989.]
</decisiondate><br><parties id="b339-5">
The State of Washington,
<em>
Respondent,
</em>
v. Kimberly Collins,
<em>
Petitioner.
</em>
</parties><br><attorneys id="b339-12">
<em>
Marc R. Lampson
</em>
of
<em>
Washington Appellate Defender Association,
</em>
for petitioner.
</attorneys><br><attorneys id="b339-13">
<em>
Seth R. Dawson, Prosecuting Attorney,
</em>
and
<em>
Seth Aaron Fine, Deputy,
</em>
for respondent.
</attorneys> | null | null | null | null | null | null | 85,790 | 55170-7 | 1 | wash | S | t | Washington Supreme Court | Washington Supreme Court |
4,996,099 | DAVIDSON, P. J. Appellant was convicted of burglary. The indictment alleges that the offense was committed on the 19th day of April, “One Thousand Nine Hundred and -” and anterior to the presentment of this indictment. This instrument was filed in court on August SO, 1910. This shows clearly on the face of the pleadings that the offense had been barred by limitation years before the return of the indictment. Por this reason, the judgment will be reversed and the prosecution dismissed. Under this view of the ease, we deem it unnecessary to notice other questions. There is no statement of facts contained in the record. The judgment is reversed, and the prosecution ordered dismissed. | opinion_xml_harvard | 115 | 2021-09-30 14:22:11.915448+00 | 020lead | t | f | 5,174,805 | Davidson | null | U | f | Published | 0 | Bradford v. State | null | BRADFORD v. STATE | <p>Appeal from District Court, Denton County; Clem B. Porter, Judge.</p> <p>Delos Bradford was convicted of burglary, and he appeals.</p> | null | null | <p>Indictment and Information (§ 87*) — Allegation as to Time — Limitations.</p> <p>An indictment for burglary, alleging that the offense was committed on April 19, “One Thousand Nine Hundred and'-,” and anterior to the presentment of the indictment, which was filed August 30, 1910, showed on its face that the offense was barred by limitations prior to the return of the indictment, and was therefore insufficient.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 244-255; Dec. Dig. § 87.*] '</p> | null | null | null | Reversed and dismissed. | null | 60,500,745 | null | 0 | texcrimapp | SA | t | Court of Criminal Appeals of Texas | Court of Criminal Appeals of Texas |
4,059,947 | MANDATE THE STATE OF TEXAS TO THE 150TH JUDICIAL DISTRICT COURT OF BEXAR COUNTY, GREETINGS: Before our Court of Appeals for the Fourth District of Texas on November 20, 2013, the cause upon appeal to revise or reverse your judgment between IBS Asset Liquidations LLC f/k/a Icon Building Systems, LLC, Appellant V. Servicios Multiples Del Norte SA de CV, Appellee No. 04-13-00273-CV and Tr. Ct. No. 2012-CI-06095 was determined, and therein our said Court of Appeals made its order in these words: In accordance with this court’s opinion of this date, the trial court’s order denying appellant’s motion to compel arbitration is REVERSED and the cause is REMANDED to the trial court for further proceedings. It is ORDERED that appellant recover its costs of appeal from appellee. WHEREFORE, WE COMMAND YOU to observe the order of our said Court of Appeals for the Fourth District of Texas, in this behalf and in all things have the order duly recognized, obeyed, and executed. WITNESS the Hon. Sandee Bryan Marion, Chief Justice of the Court of Appeals for the Fourth District of Texas, with the seal of the Court affixed and the City of San Antonio on April 28, 2015. KEITH E. HOTTLE, CLERK Cynthia A. Martinez Deputy Clerk, Ext. 53853 BILL OF COSTS TEXAS COURT OF APPEALS, FOURTH DISTRICT, AT SAN ANTONIO No. 04-13-00273-CV IBS Asset Liquidations LLC f/k/a Icon Building Systems, LLC v. Servicios Multiples Del Norte SA de CV (NO. 2012-CI-06095 IN 150TH JUDICIAL DISTRICT COURT OF BEXAR COUNTY) TYPE OF FEE CHARGES PAID BY SUPPLEMENTAL CLERK'S RECORD $107.00 PAID LAURA PENA MOTION FEE $10.00 E-PAID MELANIE H. PHIPPS CLERK'S RECORD $80.00 PAID LAURA PENA INDIGENCY FILING FEE $25.00 E-PAID HOHMANN TAUBE SUMMERS FILING $100.00 E-PAID HOHMANN TAUBE SUMMERS SUPREME COURT CHAPTER 51 FEE $50.00 E-PAID HOHMANN TAUBE SUMMERS Balance of costs owing to the Fourth Court of Appeals, San Antonio, Texas: 0.00 Court costs in this cause shall be paid as per the Judgment issued by this Court. I, KEITH E. HOTTLE, CLERK OF THE FOURTH COURT OF APPEALS OF THE STATE OF TEXAS, do hereby certify that the above and foregoing is a true and correct copy of the cost bill of THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS, showing the charges and payments, in the above numbered and styled cause, as the same appears of record in this office. IN TESTIMONY WHEREOF, witness my hand and the Seal of the COURT OF APPEALS for the Fourth District of Texas, this April 28, 2015. KEITH E. HOTTLE, CLERK Cynthia A. Martinez Deputy Clerk, Ext. 53853 | opinion_plain_text | 431 | 2016-09-29 19:43:48.853208+00 | 010combined | f | f | 4,282,686 | null | null | C | f | Published | 0 | IBS Asset Liquidations LLC F/K/A Icon Building Systems, LLC v. Servicios Multiples Del Norte SA De CV | null | null | null | null | null | null | null | null | null | null | null | 4,449,245 | 04-13-00273-CV | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
8,143,875 | Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. | opinion_xml_harvard | 17 | 2022-09-09 20:19:03.939807+00 | 020lead | t | f | 8,181,956 | null | null | U | f | Published | 0 | Rawls v. Penn Mutual Life Insurance | Rawls | Edna M. Rawls v. Penn Mutual Life Insurance Company of Philadelphia | null | null | null | null | null | null | null | null | null | 65,279,563 | No. 940 | 0 | scotus | F | t | Supreme Court | Supreme Court of the United States |
3,433,682 | In 1928 the Southern Surety Company of Iowa sold to plaintiff certain Oklahoma improvement bonds, with a repurchasing agreement. In 1929 the Southern Surety Company of Iowa was taken over by the defendant, the Southern Surety Company of New York, which, in lieu of the repurchasing agreement of the Iowa corporation, executed a similar agreement to repurchase the bonds at their face value on October 15, 1931. It failed to carry out its agreement and this action was brought to recover $2,700 thereon on February 18, 1932. Under the writ of attachment issued on the same date plaintiff duly served notice of garnishment upon the Iowa Des Moines National Bank Trust Company, the Central National Bank Trust Company of Des Moines, and others. The garnishees answered admitting an aggregate indebtedness of about $3,000 due the defendant herein; but both asserted they had been previously garnished in another action on a claim of $1,000. E.W. Clark, intervener, was on the 23d day of March, 1932, appointed receiver of the defendant company in this state, in an action commenced by the Attorney-general of Iowa. The intervener filed a petition in intervention herein on April 30, 1932, alleging that on March 22, 1932, a decree was entered in the New York courts appointing a receiver, and ordering a forfeiture of the corporation charter and a dissolution of the corporation. He further alleges that any judgment entered against the defendant respecting any indebtedness due it from the garnishees would be in contravention of the Fourteenth Amendment to the Constitution of United States, and void under the full faith and credit clause thereof (article 4, section 1). Intervener therefore asks that this action be abated and the garnishment dissolved. The intervener admitted the allegations contained in plaintiff's petition. Plaintiff demurred to intervener's petition of intervention because the facts therein stated did not entitle him to the relief demanded, because the receiver's possession of defendant's property in this state is subject to liens acquired before his right or title became vested, and because plaintiff's rights were acquired by attachment and garnishment prior to the receivership proceedings. [1] I. Intervener claims that the decree of dissolution against the defendant corporation in the courts of New York completely abates the action pending in this state without any right of survival *Page 152 for the purpose of winding up its affairs or for any other; that all rights of the plaintiff under the garnishment proceedings were terminated by the decree of the New York court dissolving the corporation and appointing a receiver. Counsel cite some federal cases supporting their contention. Pendleton v. Russell, 144 U.S. 640 , 12 S. Ct. 743 , 36 L. Ed. 574 ; Oklahoma Gas Co. v. Oklahoma, 273 U.S. 257 , 47 S. Ct. 391 , 71 L. Ed. 634 . An examination of these cases will show that the judgments therein were obtained after the dissolution of the corporation and without any appearance by the receiver of the corporation. The case of State v. Fidelity L. T. Co., 113 Iowa 439 , 85 N.W. 638 , cited by counsel as supporting their contention, simply holds that where the court has decreed (1) a dissolution of a corporation, and (2) the appointment of a receiver, and the corporation appeals from that portion of the decree appointing the receiver, but not from that ordering its dissolution, its acquiescence in the decree of dissolution terminates its existence so that it has no capacity to prosecute an appeal from the other division of the decree. That case has no bearing upon the question involved in this case. Counsel also cite Tetzloff v. May, 172 Iowa 617 , loc. cit. 623, 154 N.W. 905 , 907 , as supporting its contention because we there said: "At common law death of a defendant abated an action, and as the action was abated, an attachment of necessity fell with it and was dissolved." That case, however, does not support intervener's contention. The paragraph from which the foregoing quotation is taken is as follows: "So much depends upon the terms of the statutes in the several states that a mere count of the cases does not show the preponderant weight of authority. At common law death of a defendant abated an action, and as the action was abated, an attachment of necessity fell with it and was dissolved. Our statutes, however, provide that all causes of action shall survive and may be brought, notwithstanding the death of the person liable (Code section 3443)." In the case of Tetzloff v. May, 172 Iowa 617 , loc. cit. 622, 154 N.W. 905 , 907 , we said: *Page 153 "We have heretofore held that an attachment on personal property in an action properly commenced is not dissolved by the death of the attachment defendant. Lord v. Allen, 34 Iowa 281 . The reason given for this holding was that the attachment created a specific lien upon the property which was not dissolved by the death of the attachment defendant, following the case of Hannahs v. Felt, 15 Iowa 141 , 144 . * * * It is true that many courts, in construing local statutes, have held that the death of an attachment defendant dissolves an attachment, whether it be upon real or personal property. [Cite a number of cases.] * * * A contrary doctrine is announced in Moore v. Thayer, 6 How. Prac. (N.Y.) 47 [and a number of other cases cited]." And then the court proceeded to say: "So much depends upon the terms of the statutes in the several states that a mere count of the cases does not show the preponderant weight of authority." The Iowa statute, however, provides for a survival of actions. Code section 10957. And for the prosecution of actions already brought. Code section 10959, which provides: "Any action contemplated in sections 10957 and 10958 may be brought, or the court, on motion, may allow the action to be continued, by or against the legal representatives or successors in interest of the deceased." The rule in this state is that the claim of a receiver of a foreign corporation, to its property in this state, will not be recognized by the courts of this state as against the valid claims of resident attaching creditor. Ayres v. Siebel, 82 Iowa 347 , 47 N.W. 989 ; Parker v. Lamb, 99 Iowa 265 , 68 N.W. 686 , 34 L.R.A. 704 ; State Bank of Ottumwa v. McElroy, 106 Iowa 258 , 76 N.W. 715 ; Neb. Ins. Co. v. Eaton, 107 N.W. 214 ; Rickman v. Rickman, 180 Mich. 224 , 146 N.W. 609 , Ann. Cas. 1915C, 1237; Shloss v. Surety Co., 149 Iowa 382 , 128 N.W. 384 ; Miller v. American Co-op. Assn., 110 Neb. 773 , 195 N.W. 167 . In the case of the Shloss v. Surety Co., 149 Iowa, 387 , 128 N.W. 384 , 385 , we said: "The contention that plaintiff, on account of the receivership proceeding and decree of dissolution therein instituted and entered *Page 154 in the state of New York, was bound to present his claim in the proper court of New York, and could not maintain his action thereon in this state, although funds of the company were available in this state out of which the claim might be paid if established, is equally without merit. The well-settled rule in this state is that the claim of a foreign receiver to funds of the corporation found in this state will not be recognized even by way of comity if the result would be to relegate the creditors of the corporation in this state to the relief to which they would be entitled in a foreign jurisdiction, when there are funds of the corporation in the state from which such claims may be satisfied." Under this rule as supported by the authorities hereinabove enumerated the defendant's property in this state is subject to the claims of resident creditors. [2] II. It is also contended that an attaching creditor by garnishment does not acquire any lien upon funds in the hands of third persons. A number of authorities are cited supporting such contention. Our statutes in relation to attachment and garnishment proceedings in actions of this kind, where the defendant corporation has been dissolved, must be considered in the light of section 8402 of the Code. Our garnishment statutes provide: "Section 12101. Property of the defendant in the possession of another, or debts due the defendant, may be attached by garnishment as hereinafter provided." Section 12157 provides: "The officer serving a writ of attachment shall garnish such persons as the plaintiff may direct as supposed debtors * * * forbidding his paying any debt owing such defendant, due or to become due, and requiring him to retain possession of all property of the defendant in his hands or under his control, to the end that the same may be dealt with according to law," etc. Section 12169 of the Code provides: "If in any of the above methods it is made to appear that the garnishee was indebted to the defendant, or had any of his property in his hands, at the time of being served with the notice of garnishment, he will be liable to the plaintiff, in case judgment is finally recovered by him, to the full amount thereof, or to the amount of such indebtedness or property held by the garnishee, and the plaintiff may have a judgment against *Page 155 the garnishee for the amount of money due from the garnishee to the defendant," etc. This action and the garnishment proceedings thereunder were properly commenced on February 18, 1932. At that time no dissolution proceedings had been commenced. The defendant corporation was still a living corporation. It must be conceded that although the plaintiff had no specific lien on the funds in the hands of the garnishee, he did have certain rights against any money or property due from the garnishee to the defendant, and it cannot be said that these rights were immediately and entirely cut off by the receivership proceedings in the state of New York, or in the state of Iowa. The receivership proceedings in this action were not commenced until the 23d day of April, 1932, and were commenced under the authority of section 8402 of the Code. This section provides: "Courts of equity shall have full power, on good cause shown, to dissolve or close up the business of any corporation, and to appoint a receiver therefor, who shall be a resident of the state of Iowa. An action therefor may be instituted by the attorney-general in the name of the state, reserving, however, to the stockholders and creditors all rights now possessed by them." (Italics ours.) The intervener was appointed receiver in the proceeding commenced by the attorney general in this state. By the provision of section 8402 all rights possessed by creditors are reserved to them. If the plaintiff acquired any rights under their garnishment proceedings, they were expressly reserved by the foregoing statute. The general rule is that "one who before the appointment of receiver levies an attachment on certain property or funds gives him a preference against the property or funds attached as against the receiver." 53 C.J. 251; Citizens State Bank v. Fuel Co., 89 Iowa 624 , 57 N.W. 444 ; Bowen v. Port Huron Engine Thresher Co., 109 Iowa 255 , 80 N.W. 345 , 47 L.R.A. 131 , 77 Am. St. Rep. 539 ; Smith v. Nursery Seed Co., 109 Iowa 51 , 79 N.W. 457 ; Gilmore Ruhl v. Cohn, 102 Iowa 254 , 71 N.W. 244 ; Kinart v. Churchill, 210 Iowa 72 , 230 N.W. 349 ; Dishman v. Griffis, 198 Ala. 664 , 73 So. 966 ; Buschman v. Hanna, 72 Md. 1 , 18 A. 962 . In the case of Bowen v. Port Huron Engine Thresher Company, 109 Iowa 255 , 80 N.W. 345 , 47 L.R.A. 131 , 77 Am. St. Rep. 539 , we said: *Page 156 "An attachment is auxiliary to the action in which it issues; and garnishment is a mode of attachment. As a general rule, no lien is created on the property in the hands of the garnishee, although it partakes of the nature of a proceeding in rem. * * * Some of the cases seem to hold that it is a mode of attachment, differing in no essential particular from an attachment by levy and seizure, except in the mode of enforcement. We have never gone to the extent of holding that it creates a specific lien upon the property or money in the hands of the garnishee, but have said, in effect, that it gives the plaintiff a specific right over and above that of a mere general creditor to the indebtedness or property [for the payment] of his claim." In Citizens State Bank v. Fuel Co., 89 Iowa 624 , 57 N.W. 444 , 446 , we said: "It being conceded that a creditor of a fraudulent chattel mortgagor can reach the property by levy of an execution or attachment, and thus test the validity of the instrument, we discover no good reason for holding that the same result cannot be accomplished under attachment by garnishment. In the one case, a lien is created upon the property; in the other, a personal obligation and liability may be established against the one holding the property. In the one case, the property itself is taken to satisfy the creditor's claim; in the other, the personal liability of the garnishee stands in lieu of the property. If the creditor be successful in the one case, his claim is paid by sale of the property so taken; in the other, he looks to one whom the law, after service of the garnishment process, holds liable for the value of the property in his hands. In either case the liability primarily arises because of the existence of property in fact owned by the debtor. In one case, a specific lien is created by levy or attachment; in the other, while no lien is created upon or attaches to the property itself, yet the effect of the garnishment is to confer upon the creditor a right to the payment of his claim, by reason of the indebtedness existing from the garnishee to the defendant, or because of the garnishee's having in his possession property of the defendant. We think that, by the garnishment, plaintiff became as fully entitled to contest the validity of the alleged fraudulent mortgage as though it had attached the property itself." It has been definitely settled in this state that the rights of an *Page 157 attaching creditor by garnishment, although not amounting to a lien upon any specific property, does amount to something equivalent thereto, by regarding the garnishment as an assignment of the debt due from the garnishee; and that the garnishing creditor is placed in the shoes of the defendant. This rule was clearly announced by us in Kinart v. Churchill, 210 Iowa 72 , loc. cit. 75, 230 N.W. 349 , 350 , where we said: "The appellant cites for our consideration a number of cases wherein we have held that a mere garnishment does not create a lien upon property in the hands of the garnishee, but only a personal liability as against such garnishee. The cases so holding belong to that class where the garnishee is a mere agent or bailee of the judgment debtor, and in possession of his property. In such a case, property may be discovered and uncovered by examination of the garnishee, but the lien is to be acquired by subsequent orders of the court. The procedure applicable in such a case has no application to the case where the garnishee is an admitted debtor of the judgment debtor. In such a case, no discovery or surrender of property is involved. The service of such garnishment is a constructive seizure of the judgment debtor's chose in action against the garnishee, and the garnishee is so notified. True, the statute contemplates a subsequent judgment of condemnation and requires the clerk of the district court to docket an action, without fee, for the purpose of final adjudication, and such adjudication is made conclusive upon the judgment debtor. * * * The force and effect of the garnishment is not postponed, however, to the later date of the judgment. On the contrary, the judgment relates back to the day of the garnishment, and confirms the seizure as of such date. It is true, therefore, that though the garnishment be tentative in the first instance and be subject to future defense by the judgment debtor, as well as by the garnishee, yet the present effect of the garnishment is not lost unless it be defeated in such future judicial proceeding. In this case, the garnishment was fully sustained by the final adjudication. To sustain the garnishment and yet to defeat its effective operation until the final adjudication be had, would be to defeat it entirely, for all practical purposes. We hold, therefore, that the final adjudication rendered the garnishment effective from the date of its service. This being so, the shoes of the judgment debtor were, at all times pending the procedure, in the occupancy of the judgment creditor. For the *Page 158 purpose of collecting his judgment, he became the constructive assignee of his debtor's cause of action against the renter. The garnishment was effective instanter to suspend the power of the judgment debtor over the chose in action previously held by him against his renter, except as to such excess as might remain over the amount due the judgment creditor. * * * It is well settled in our cases that the assignment of a claim carries with the claim all the security held by the assignor for the collection thereof. * * * We have also held that a valid garnishment is the equivalent of a constructive assignment of the debt owed by the garnishee. * * * In short, we have given to a garnishing creditor the status of an equitable or constructive assignee subject to be defeated only by judgment in the subsequent procedure. This holding is in accord with the great weight of authority from other jurisdictions." (Italics ours.) III. Under the foregoing doctrine it is clear that the plaintiff acquired positive rights under the garnishment proceedings. It is claimed, however, that because of the dissolution of the corporation there can be no judgment entered against it. The purpose of appointing a receiver is to wind up the affairs of the defendant corporation in this state. The intervener in this case was appointed receiver. He is now in court. In fact he came into the same court in which he was appointed receiver. By the statute authorizing his appointment it was specifically provided that all rights possessed by creditors at that time were reserved. The plaintiff in this case was a creditor, and had the rights given him by statute under the attachment and garnishment proceedings. The appointment of the intervener was made subject to these rights. It will not do to say that all his rights were cut off by the receivership proceedings. In respect to property of the defendant in this state the receiver stepped into the shoes of the defendant and was for this and other purposes representing the corporation in winding up its affairs. State v. Associated Packing Co., 210 Iowa 754 , loc. cit. 768, 227 N.W. 627 , 633 . In that case we said: "While it is true the corporation was annulled, nevertheless, for the purpose of liquidating it and winding up its affairs, the receiver still represents the corporation, much in the sense that the directors and officers of a corporation whose corporate period has expired still continue to act for the corporation in winding up the corporation's affairs, and further because of the fact that the receiver *Page 159 has been appointed by a court having jurisdiction of the subject-matter, to take over the assets of the corporation and act in the winding up of its affairs." [3] The intervener suggests that the plaintiff's claim be dismissed, and that he be relegated to the receivership proceedings in New York for the purpose of presenting his claim. As stated by the rule announced in the case of Shloss v. Surety Co., 149 Iowa 382 , 128 N.W. 384 , 385 : "The well-settled rule in this state is that the claim of a foreign receiver to funds of the corporation found in this state will not be recognized even by way of comity if the result would be to relegate the creditors of the corporation in this state to the relief to which they would be entitled in a foreign jurisdiction, when there are funds of the corporation in the state from which such claims may be satisfied." The receivership proceedings are pending in this state. The receiver is a party to this action. As the parties are all now in court it will afford no good purpose to require the plaintiff to dismiss his case and come right back into this court again. There is no good reason why the rights of the parties cannot be fully settled in this action. The facts alleged in plaintiff's petition are admitted. No receivership proceedings were pending at the time this action was commenced. If a judgment cannot be rendered directly against the defendant in this action, the same result can be accomplished by the allowance of the claim against the receiver. We believe the action of the trial court in sustaining the demurrer to defendant's petition was correct. The court's ruling thereon is therefore hereby affirmed. KINDIG, C.J., and ANDERSON, STEVENS, and ALBERT, JJ., concur. | opinion_html_with_citations | 3,649 | 2016-07-05 20:02:41.294997+00 | 020lead | f | f | 3,435,926 | Albert, Anderson, Kindig, Kintzinger, Stevens | null | ZU | f | Published | 2 | Watts v. Southern Surety Co. | Watts | Clarence v. Watts, Appellee, v. Southern Surety Company of New York, Defendant; E. W. Clark, Receiver, Intervenor-Appellant | null | null | <parties id="b160-4">
Clarence V. Watts, Appellee, v. Southern Surety Company of New York, Defendant; E. W. Clark, Receiver, Intervenor-appellant.
</parties><br><docketnumber id="b160-5">
No. 41633.
</docketnumber><br><decisiondate id="b160-9">
May 9, 1933.
</decisiondate><br><attorneys id="b160-11">
Parrish, Cohen, Guthrie & Watters, for appellant.
</attorneys><attorneys id="A9d">
D. Cole McMartin, for appellee.
</attorneys> | null | Appeal from Polk District Court. — O.S. FRANKLIN, Judge.
Action against the defendant upon a surety bond aided by attachment and garnishment. E.W. Clark, receiver of defendant corporation intervened, filing a petition in intervention alleging his appointment under receivership proceedings, and asking abatement of plaintiff's action and dissolution of the garnishment. Plaintiff demurred to defendant's petition in intervention. The lower court sustained plaintiff's demurrer. Intervener appeals. — Affirmed. | null | null | null | null | 3,308,051 | No. 41633. | 0 | iowa | S | t | Supreme Court of Iowa | Supreme Court of Iowa |
2,996,466 | In the United States Court of Appeals For the Seventh Circuit Nos. 02-3624 & 02-8025 MARC LIVINGSTON, et al., Plaintiffs-Appellees, v. ASSOCIATES FINANCE, INC., et al., Defendants-Appellants. Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 01 C 1659—David H. Coar, Judge. ARGUED MAY 12, 2003—DECIDED AUGUST 7, 2003 Before BAUER, KANNE, and WILLIAMS, Circuit Judges. WILLIAMS, Circuit Judge. Marc and Michelle Livingston sued Associates Finance, Inc. for violations of the Truth in Lending Act, on behalf of themselves and a purported class of similarly aggrieved borrowers. Associates, which moved to compel arbitration pursuant to an arbitration agreement, appeals the district court’s denial of its mo- tion as well as the court’s grant of the Livingston’s motion for class certification. Because we find the Arbitration Agreement controlling, and Associates’ offer to pay arbitra- tion fees sufficient to protect against potentially prohibi- tive costs, we reverse the district court’s denial of arbi- tration, vacate its class certification determination, and 2 Nos. 02-3624 & 02-8025 remand the case with instructions to the district judge to stay the case to allow the parties to proceed on their claims in arbitration. I. BACKGROUND The Livingstons were frequent borrowers from Associates. Their transactions with Associates began with one loan, but they periodically took out loans to pay off their previ- ous loans, which is typically called “loan-flipping.” When the Livingstons took out their last loan, they signed an Arbitration Agreement in which both parties waived their rights to litigate in court any and all claims arising between the parties on this loan and any and all existing or previous loans. The Agreement permits either party to demand arbitration in response to a lawsuit, and provides that Associates may pay the arbitration costs at the Livingstons’ request if they (the Livingstons) are unable to do so themselves.1 The Agreement also precludes the 1 The Arbitration Agreement provides that either party has “an absolute right to demand that any dispute be submitted to an arbitrator,” either directly or in response to the filing of a law- suit by the other party, and that such right encompasses “all claims and disputes arising out of, in connection with, or relating to” any loans, documents relating to loans, negotiations, or the validity of the Arbitration Agreement (among other things). The Agreement also provides that the party seeking arbitration is required to pay the filing fees, but the Livingstons may ask Associates to pay the fee if they believe they are financially incapable of paying it themselves. It further states that the Commercial Arbitration Rules will determine which party will pay the costs associated with arbitration, including attorneys’ fees and the cost of the hearing, and those Rules provide that arbitration costs “shall be borne equally by the parties unless they agree otherwise or unless the arbitrator . . . assesses such expenses . . . (continued...) Nos. 02-3624 & 02-8025 3 Livingstons from joining a class action lawsuit if one is filed, and from creating a class action in any arbitration proceeding. When the Livingstons obtained their last loan, they also received Truth in Lending disclosures that were supposed to detail the implications of their loans and a rate reduction rider that provided the interest rate on their loan could be lowered through regular payments over a period of time. The Livingstons believe the dis- closures do not reflect the terms of the rate reduction rider and thus do not disclose the true annual percentage rate, finance charges, and total payments of the loan. Believing this to be a violation of the Truth in Lending Act (TILA), 15 U.S.C. § 1635 (f), and Regulation Z govern- ing truth in lending, 12 C.F.R. § 226.23 , the Livingstons filed suit in federal court and moved for certification of a class of similarly aggrieved borrowers. Associates re- sponded by filing a motion to compel arbitration pursuant to the terms of the Arbitration Agreement, and a motion to dismiss the class claims based on the Arbitration Agree- ment’s prohibition against class actions. Associates also filed a scheduling motion, explaining that it was not re- sponding to the Livingstons’ class certification motion and seeking to stay briefing and discovery on the class certification question because resolution of the arbitra- tion motion could moot the class certification question. In response to Associates’ rescheduling motion, the district court stayed all briefing and discovery on the class cer- tification question. 1 (...continued) against any specified party.” Comm. Arb. R. 52. With respect to attorneys’ fees, the Rules provide that “[t]he award of the arbitrator may include . . . an award of attorneys’ fees if all par- ties have requested award or it is authorized by law or their arbitration agreement.” Comm. Arb. R. 45(d)(b). 4 Nos. 02-3624 & 02-8025 The Livingstons responded to Associates’ motion to compel arbitration, arguing that the Arbitration Agree- ment is unenforceable because they (the Livingstons) rescinded the last loan, the costs of arbitrating are prohibi- tively high, the American Arbitration Association (AAA) is biased in favor of Associates,2 and Associates fraudu- lently induced them to enter the Arbitration Agreement. They also moved for leave to seek discovery on the prohibi- tive costs question. The Magistrate Judge recommended rejecting most of the Livingstons’ arguments but permit- ting discovery on whether the costs of arbitration would be prohibitively high. The district court adopted the Magistrate Judge’s recommendations, rejecting the Liv- ingstons’ arguments on rescission, AAA bias, and fraudu- lent inducement, and allowing limited discovery on the prohibitive costs question. Associates then agreed to “pay [the Livingstons’] arbitration costs to the extent those costs exceeded what [the Livingstons] would incur in litigation in federal court,” at which point the Livingstons discontinued all discovery into whether arbitration costs would be prohibitively high and dropped the issue en- tirely before the district court. The district court rejected Associates’ arbitration mo- tion, finding that the Arbitration Agreement was unen- forceable because Associates’ offer to pay fees was “vague” and “nebulous” and had not “eliminated any possibility that the costs of arbitration could prove prohibitively high.” The district court stated that “[d]efendants com- pletely fail to iterate exactly which litigation costs would offset arbitration costs. This ‘offer’ is an invitation to further litigation about costs, nothing more.” The district court also found that the “uncertainty of an [attorneys’ fee] award by an arbitrator using his or her ‘discretion,’ coupled 2 The Arbitration Agreement provides that the AAA’s arbitra- tion rules govern any arbitration between the parties. Nos. 02-3624 & 02-8025 5 with the uncertainty inherent in [Associates’] nebulous offer to pay arbitration costs only to the extent they ex- ceed litigation costs, impermissibly impedes [the Liv- ingstons’] exercise of their rights under TILA.” Associates filed a motion for reconsideration, clarifying that its offer to pay costs was meant to be sufficient, but that they would further agree to pay “all costs of arbitration” with- out regard to the comparative costs in federal court. The district court rejected Associates’ clarified offer and de- nied its reconsideration motion. Finding the Arbitration Agreement unenforceable, the district court summarily denied Associates’ motion to dismiss the class claims, which was based on the Arbitra- tion Agreement’s prohibition of class actions and class claims in arbitration, and proceeded to certify the class. The district court reached the class certification question by considering Associates’ motion to dismiss class claims as its substantive response to the Livingstons’ motion for class certification, despite the court’s earlier decision staying all briefing and discovery on the issue. On appeal, Associates argues that the Arbitration Agree- ment should be enforced and arbitration should be com- pelled. It also argues that the class certification should be vacated because the district court’s inquiry was insuf- ficient and the class claims should be dismissed. The Livingstons argue that Associates’ offers to pay the arbi- tration costs are a material change to the Arbitration Agreement that they do not accept, therefore the Arbitra- tion Agreement is unenforceable. They also reiterate the rescission argument that was rejected by the district court and raise a new theory of judicial estoppel by asking the court to take judicial notice of a California case that they believe binds Associates to a position in favor of litigation and class certification. 6 Nos. 02-3624 & 02-8025 II. ANALYSIS A. Motion to Compel Arbitration The Federal Arbitration Act (FAA) provides that a writ- ten provision in any contract evidencing an intent to settle by arbitration any future controversy arising out of such contract “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 . The purpose of the FAA is “ ‘to reverse the longstanding judicial hostility to arbitration agreements . . . and to place them on the same footing as other contracts.’ ” Green Tree Fin. Corp.- Ala. v. Randolph, 531 U.S. 79 , 89 (2000) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 , 24 (1991)); see also Sweet Dreams Unlimited, Inc. v. Dial-a-Mattress Int’l, Ltd., 1 F.3d 639 , 641 (7th Cir. 1993) (“It is beyond perad- venture that the [FAA] embodies a strong federal policy in favor of arbitration.”). A party seeking to invalidate an arbitration agreement must establish that the agree- ment precludes them from effectively “vindicating [their] statutory cause of action in the arbitral forum.” Green Tree, 531 U.S. at 90 . We review the denial of a motion to compel arbitration de novo. CK Witco Corp. v. Paper Allied Indus., 272 F.3d 419 , 422 (7th Cir. 2001); Iowa Grain Co. v. Brown, 171 F.3d 504 , 508-09 (7th Cir. 1999). The district court denied Associates’ arbitration motion, in part, because Associates had not “eliminated any pos- sibility that the costs of arbitration could prove prohibi- tively high.” This misplaces the burden that parties must meet in order to avoid arbitration due to prohibitive costs. In Green Tree, the Supreme Court acknowledged that a legitimate reason to deny arbitration may exist if a party would “be saddled with prohibitive [arbitration] costs.” 531 U.S. at 90-92 . The Court stated, however, that “[the] party seek[ing] to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expen- Nos. 02-3624 & 02-8025 7 sive . . . bears the burden of showing the likelihood of incurring [prohibitive] costs.” Id. at 92 . While the Court did not state how detailed that showing must be before the party seeking to compel arbitration must come for- ward with contrary evidence, see id., the party opposing arbitration nevertheless must provide some individ- ualized evidence that it likely will face prohibitive costs in the arbitration at issue and that it is financially incapa- ble of meeting those costs. See Bradford v. Rockwell Semi- conductors Sys., Inc., 238 F.3d 549 , 557 (4th Cir. 2001). In the present case, the Livingstons have not offered any specific evidence of arbitration costs that they may face in this litigation, prohibitive or otherwise, and have failed to provide any evidence of their inability to pay such costs, even though the district court permitted dis- covery on that very question. Tellingly, their only “evidence” of prohibitive arbitration costs is an unsubstantiated and vague assertion that discovery in an unrelated arbitra- tion matter disclosed fees of nearly $2,000 per day. This bare assertion of prohibitive costs, without more, is too speculative and insufficient to shift the burden to Associ- ates to show how the costs are not prohibitive. Green Tree, 531 U.S. at 91 . Furthermore, the fact that Associates agreed to pay all costs associated with arbitration fore- closes the possibility that the Livingstons could endure any prohibitive costs in the arbitration process. See Large v. Conseco Fin. Servicing Corp., 292 F.3d 49 , 56-57 (1st Cir. 2002). Under these circumstances, Associates’ motion to compel arbitration was improperly denied.3 3 The Livingstons do not dispute that they failed to provide any evidence of prohibitive arbitration costs, nor that Associates offer moots their prohibitive costs argument. Instead, they pre- sent a variety of unpersuasive arguments that merit minimal attention. For example, they argue that Associates’ offer to pay (continued...) 8 Nos. 02-3624 & 02-8025 The district court’s other reason for denying Associate’s arbitration motion was its concern that the arbitrator’s discretion to award attorneys’ fees was not in accord with TILA’s restrictions on such awards to defendants. (Notably, while Associates rebuts this conclusion, the Livingstons do nothing to support it.) The TILA provides that a defen- dant is liable to a successful plaintiff for “the costs of the action, together with a reasonable attorney’s fee as determined by the court.” 15 U.S.C. § 1692 (k)(a)(3). If the plaintiff is not successful, the defendant is not en- titled to attorneys’ fees unless there is a finding that the plaintiff brought the action in “bad faith and for the purpose of harassment.” Id. The Arbitration Agreement in this case provides that attorneys’ fees will be deter- mined by the arbitrator pursuant to the Commercial Arbitration Rules, and those rules provide that “[t]he award of the arbitrator may include . . . an award of attorneys’ fees 3 (...continued) all costs of arbitration constitutes an offer to rewrite the Arbitra- tion Agreement that they do not accept and therefore the Arbitra- tion Agreement is invalid in its entirety. That belies the fact that the Arbitration Agreement and the Commercial Arbitration Rules provide that the parties may agree that one or the other (in this case Associates) may bear the costs of arbitration if the other side (the Livingstons) is financially incapable of doing so. More- over, the Livingstons cannot plead prohibitive costs on the one hand and then reject Associates’ offer to pay all costs when that offer is in accordance with the provisions of the Agreement. The Livingstons also argue that they rescinded the loan agreement and thereby the Arbitration Agreement as well. As the Magistrate Judge and district court properly acknowledged, however, this court has held that rescission is an argument for the arbitrator to decide because it is a dispute encompassed by the “arising out of, in connection with, or relating to” language contained in the Arbitration Agreement. Sweet Dreams Unlim- ited, 1 F.3d at 641-43 ; see also Large, 292 F.3d at 54-55 . Nos. 02-3624 & 02-8025 9 if all parties have requested award or it is authorized by law or their arbitration agreement.” Comm. Arb. R. 45(d)(b) (emphasis added). We fail to see how the Arbitration Agreement and the Commercial Arbitration Rules provide the arbitrator with discretion to award attorneys’ fees to Associates greater than that which is provided for in the TILA or that in any way contravenes the TILA limita- tions on such awards. Moreover, the availability of judi- cial review ensures that an arbitrator’s award is not in conflict with statutory requirements. “[T]here is no reason to assume at the outset that arbitrators will not follow the law; although judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute.” Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220 , 232 (1987) (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 , 636-37, and n.19 (1985); Kovaleskie v. SBC Capital Markets, Inc., 167 F.3d 361 , 366 (7th Cir. 1999). Accordingly, we reject this basis for denying arbitration. Because we find that Associates was improperly bur- dened with the obligation to refute an unsubstantiated assumption of prohibitive arbitration costs, and because we find the district court’s concern over the arbitrator’s ability to award attorneys’ fees to be unfounded, we reverse the district court’s decision to deny arbitration and remand this case for arbitration pursuant to the Agree- ment. B. Class Claims and Class Certification The district court also certified the Livingstons’ proposed class, despite having stayed all briefing and discovery on the class certification question, because it found Associates’ motion to dismiss class claims to be a sufficient response to the Livingstons’ motion for class certification. The court 10 Nos. 02-3624 & 02-8025 did so while simultaneously noting that Associates’ mo- tion to dismiss class claims was based solely on the Arbi- tration Agreement’s preclusion of class claims and class actions. Class certification requires a rigorous investiga- tion into the propriety of proceeding as a class, and a decision to certify a class should not be made based solely on the arguments of one party. See, e.g., Szabo v. Bridgeport Machs., Inc., 249 F.3d 672 , 676 (7th Cir. 2001); In re Am. Med. Sys., Inc., 75 F.3d 1069 , 1086 (6th Cir. 1996). The district court’s failure to provide Associates with an ade- quate opportunity to respond substantively to the Livingstons’ class certification motion, particularly in light of the court’s decision to stay all briefing and dis- covery into that question, effectively denied Associates’ due process rights on the question. Id. Accordingly, the court’s decision to certify the class must be vacated. This issue need not be remanded for further consideration, however, because having found the Arbitration Agreement enforceable we must give full force to its terms. 9 U.S.C. § 4 ; Champ v. Siegel Trading Co., Inc., 55 F.3d 269 , 274 (7th Cir. 1995). The Arbitration Agreement at issue here explicitly precludes the Livingstons from bringing class claims or pursuing “class action arbitration,” so we are therefore “obliged to enforce the type of arbitration to which these parties agreed, which does not include arbi- tration on a class basis.” Id. at 277 ; see also Randolph v. Green Tree Fin. Corp.-Ala., 244 F.3d 814 , 816-19 (11th Cir. 2001); Johnson v. W. Suburban Bank, 225 F.3d 366 , 369 (3d Cir. 2000).4 4 The Livingstons argue that judicial estoppel prevents Asso- ciates from arguing for arbitration and against class certification in this litigation when it agreed to litigate a class action on arguably similar claims in a California Superior Court action involving different parties, see Morales v. Citigroup Inc., Judicial (continued...) Nos. 02-3624 & 02-8025 11 III. CONCLUSION For the foregoing reasons, the decision of the district court denying arbitration is REVERSED and the decision of the district court granting class certification is VACATED. We REMAND to the district court for further proceedings in accordance with this opinion, directing that a stay of proceedings pending arbitration be entered. A true Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit 4 (...continued) Council Coordination Proceeding No. 4197. Their failure to present this argument to the district court waives it on appeal. Belom v. Nat’l Futures Ass’n, 284 F.3d 795 , 799 (7th Cir. 2002). Even if there was no waiver, judicial estoppel still would not apply, as the Livingstons have not shown that the facts at issue were the same in both cases (the Morales lawsuit appears to involve several claims that are not at issue in the present matter), nor have they offered any evidence that Associates argued in favor of litigation (and against arbitration) in that lawsuit. See Ogden Martin Sys. of Indianapolis, Inc. v. Whiting Corp., 179 F.3d 523 , 525 (7th Cir. 1999). USCA-02-C-0072—8-7-03 | opinion_html_with_citations | 3,196 | 2015-09-24 19:29:00.182269+00 | 010combined | f | t | 2,996,466 | Per Curiam | civil | C | f | Published | 0 | Livingston, Marc v. Associates Finance | null | null | null | null | null | null | null | null | null | null | null | 2,853,696 | 02-3624 | 0 | ca7 | F | t | Seventh Circuit | Court of Appeals for the Seventh Circuit |
8,428,604 | ORDER Maras Djokic has filed a petition for judicial review of an order of the Board of Immigration Appeals (“BIA”), that summarily affirmed an immigration judge’s denial of Djokie’s fourth motion to reopen his deportation proceedings. The parties have waived oral argument, and the panel unanimously agrees that oral argument is not needed in this case. Fed. R.App. P. 34(a). Djokic is a native and citizen of Yugoslavia, who entered this country illegally in 1985. He applied for suspension of deportation, but did not appear at a scheduled hearing on his application. Thus, an immigration judge (“IJ”) issued an in abstentia order on December 17,1998, directing that he be deported. Djokic did not appeal that order, but he did file several motions to reopen the proceedings, primarily alleging that his attorney had advised him not to appear at the hearing. The IJ denied the first motion in 1999, because Djokic had not shown that his failure to appear was caused by exceptional circumstances. A different IJ denied the second motion in 2000, because the denial of the first motion was administratively final. Another IJ denied the third motion in 2001, because it was untimely filed. Djokic did not appeal any of these orders to the BIA. Djokic filed his fourth motion to reopen on October 31, 2001, again alleging that he had been denied the effective assistance of counsel. An IJ denied this motion on November 15, 2001, because it was untimely and because Djokic had already filed the maximum number of such motions. The BIA affirmed the IJ without opinion on February 20, 2003. Thus, our analysis is focused on the IJ’s decision, rather than that of the BIA. See Denko v. INS, 351 F.3d 717, 723 (6th Cir.2003). Djokic argues that his due process rights were violated because a full panel of the BIA did not conduct an individualized review of his administrative appeal and because the BIA affirmed the IJ’s decision without issuing a reasoned opinion. However, our court has rejected these arguments in upholding the BIA’s streamlined appeals procedure against administrative law and due process challenges. See id. at 727-30 & n. 10. Hence, Djokie’s due process claim is unavailing. We review the denial of Djokie’s fourth motion to reopen for an abuse of discretion. See Scorteanu v. INS, 339 F.3d 407, 411 (6th Cir.2003). The government concedes that the IJ erred in part, because the usual numerical limit of one motion to reopen does not apply to in abstentia orders. However, the IJ also properly found that Djokie’s fourth motion was untimely. It was Djokie’s burden to show that he was not notified of the deportation hearing or that exceptional circumstances prevented him from appearing there. See id. Djokic alleged that he did not appear because of exceptional circumstances, as his attorney had advised him that the hearing *394would be continued. A motion to reopen based on exceptional circumstances must be filed within 180 days of the in abstentia order. 8 U.S.C. § 1252B(c)(3)(A). Thus, the IJ did not abuse his discretion by denying DjoMc’s fourth motion, as it was filed almost three years after the underlying order. See Scorteanu, 339 F.3d at 412- 14. Djokie argues that the ineffective assistance of his prior attorneys amounted to a due process violation that was not governed by the 180-day limitation period. This argument is unpersuasive. See id. at 412. At any rate, Djokic’s fourth motion would have been untimely, even if the limitations period were tolled while all of his prior motions were pending. See id. at 413- 14. Accordingly, the petition for judicial review is denied. | opinion_xml_harvard | 601 | 2022-11-04 04:46:36.750471+00 | 020lead | t | f | 8,456,874 | null | null | U | f | Published | 0 | Djokic v. Ashcroft | Djokic | Maras DJOKIC v. John ASHCROFT, Attorney General | null | null | null | null | null | null | null | null | null | 65,679,860 | No. 03-3393 | 0 | ca6 | F | t | Sixth Circuit | Court of Appeals for the Sixth Circuit |
6,944,151 | OPINION TROTT, Circuit Judge: This appeal arises from a suit brought by Michael Stefanow (“Stefanow”), a prisoner in the Arizona State Prison Complex, against the prison warden and other prison officials (collectively, the “prison officials”) pursuant to 42 U.S.C. § 1983. We must decide whether the prison officials’ confiscation of Christianities Ancient Enemy, a book sent to Stefanow by the pastor of his church, violated Stefanow’s First Amendment rights of free exercise of religion and free speech. Because Stefanow’s religion does not require him to read Christianities Ancient Enemy, we conclude that the prison did not violate Stefanow’s free exercise rights under the Religious Freedom Restoration Act. Also, because confiscation of the book was reasonably related to the prison’s legitimate penological interests, the prison did not violate Stefanow’s free speech rights in keeping it from him. Accordingly, we affirm the judgment of the district court in favor of the prison officials. BACKGROUND Stefanow is a prisoner at the Arizona State Prison Complex in Florence, Arizona. During his incarceration, Stefanow has committed numerous security violations for threatening staff and other prisoners, possessing prison-made knives and shanks, and possessing narcotics. Because the prison officials believe him to be a high security risk, Stefa*1469now is housed in the Special Management Unit, a cellblock used to house inmates with disciplinary problems and to isolate dangerous inmates from other prisoners. Stefanow is a practitioner of “Christian Identity,” which he says is a religion. He is a member of the “Church of Jesus Christ Christian” (“CJCC”) and of the Aryan Nations, a branch of the CJCC that eaters to prisoners by sending them literature and religious materials. The Christian Identity religion teáches that white Aryans are the true Israelites and that the promises of the Bible apply to white Aryans, not to Jews. The prison officials believe that the Christian Identity religion promotes white supremacy and is affiliated with the Ku Klux Klan and the Aryan Brotherhood, a prison gang that advocates white supremacy. Although Stefanow denies that his religion advocates white supremacy and racism, he admits that it teaches him to “keep separate” from other races. Stefanow’s CJCC pastor, Gordon “Jack” Mohr (“Mohr”), has authored several books that he sends to prisoners around the country. The prison officials have allowed Stefanow to possess and study several of Mohr’s books, including The Enemy Within, Know Your Enemies, Mind Control, Who are the Jews, and Behold the International Jew. But when Mohr sent Stefanow Christianities Ancient Enemy, prison officials, after reviewing its content, seized the book as contraband. They confiscated the book because in the warden’s considered opinion, it contains material that poses a threat to the safe, secure, and orderly operation of the prison. In Christianities Ancient Enemy, Mohr aggressively promotes the idea that America’s so-called “Zionist Occupied Government (ZOG)” is controlled and manipulated by people of the Jewish faith. In Mohr’s words: WE KNOW ... about the Rockefeller-Rothschild Jewish Group which dominates this nation, and most of the Free World. It has been studied for years. We know that this One World Group intends to enslave all of us, and kill some of us as their agents have done all around the world. We know that their Number One'motive is the “destruction of White Christian civilization.” For this has been the bulwark of freedom in this world for almost 2,000 years. Christianities Ancient Enemy at 134. As evidence of this alleged, nefarious world conspiracy, Mohr describes atrocities that Jews supposedly have committed against Christians throughout history. According to Mohr, Jews have been responsible for communist oppression, for “torture[ ] and murder[ ] by the countless thousands” in the Soviet Union, China, and North Korea, id. at 117, and for “changing] America from a Constitutional Christian Republic, into a Socialist Welfare State ... which is very close to a Zionist controlled (ZOG) New World Order dictatorship.” Id. at 121 In response to the alleged conspiracy, Mohr espouses a “perfect hatred” for those who do not accept Christianity, id. at 74, and declares that “freedom, dignity (racial pride), the protection of our women and children, and our God, are the only things worth fighting and dying for.” Id. at 134. He tells his readers that no Jew is “really innocent” of the evil perpetrated “by their International leaders,” and that “[i]n time of war, as people struggle for survival (and we are in a war for survival, right now, whether you are willing to admit it or not), there is no time to pick the innocent from the guilty. If they stand under the enemy flag, they must be considered as enemy and your foe.” Id. at 139. Mohr’s solution to. this dilemma is for white Christians “to attack the problem, if [they] wish to remain free.” Id. at 136. Thus, he calls for an “unorganized militia” to protect the bordérs from unlawful immigration, id. at 135, and pleads for white Christians to “start by preparing the groundwork for battle” between Judaism and Christianity. Id. at 137. “Both figuratively and literally,” Mohr declares, “there will be live heroes and dead cowards when the dust of battle lifts from this spiritual conflict.” Id. at 141. Mohr’s closing call to arms is representative of the book’s incendiary content and its hateful tone: As more and more Christians begin to realize how self-styled Jews have spent *1470millions of dollars to manufacture Jewish myths for Christian consumption, and that they have done this both for economic and political advantage, you will see a tremendous explosion against Jews in this country. It is coming and knowledgeable Jewish leaders know this and admit it! The unfortunate thing is that the “little Jew,” the fellow we are more apt to rub shoulders with in the business world, and who knows little about what is happening at the international level, is the one who will bear the brunt and be hurt the worst. It has always been thus How close are they to their planned takeover? As far back as 1950, Supreme Court Justice Murphy, who had been U.S. Attorney General under Franklin Roosevelt said: “We are doomed! They are too strong! They are now in complete control! They now have complete control of the President and our government.” Friends, we have gone a long way “down hill” since 1950. The only thing which is holding America back from complete disaster, is a remnant of Christians who have not become conditioned to the World Brotherhood Program, or to the indoctrination of the International Zionists and their Talmudic faith. sf- tji Do you really care about the future of our White race, our family and our country? If you do, would you join me in this Pledge today, before Almighty God: “I shall no longer ask myself is this or that expedient, only if it is right! I shall do this, not because it is noble or unselfish, but because life is slipping away and because I need for my journey a compass that will not lie. I will put my faith in God, rather than in what man says. I will do this because I no longer aspire to the highest with one part of me and deny it with another. This STAR will be God’s WORD.” Victory will be accomplished, my friends, when true Christians are willing to shake off the shackles of ignorance and superstitions and rise up in the strength and truth of our King! This world belongs to Him! One with Him will be a majority! There are more of us, than there are of them. Why should we surrender and like cowed galley slaves be beaten to death? Id. at 142-44. After the prison officials confiscated Christianities Ancient Enemy, Stefanow filed a complaint pursuant to 42 U.S.C. § 1983. He alleged, among other claims, that confiscation of the book violated his First Amendment rights of free speech and free exercise of religion. During a bench trial, Stefanow testified that his faith mandates daily study of religion and that the Bible is the central and sacred text upon which his religion is based. Stefanow testified that access to Mohr’s materials is necessary to the practice of his religion because Mohr explains things in the Bible in a clear way, making them easy to understand. He admitted, however, that his religion does not require him to study Christianities Ancient Enemy. The warden and the chaplain for the Arizona State Prison Complex testified that they believe the book advocates violence and dissension against Jews and against the government. As evidence, they cited, among other passages, the book’s call for an “unorganized militia,” its references to law enforcement officers as agents of the “Zionist Occupied Government,” and its espousal of a “perfect hatred” for Jews. They also testified that books advocating racial hatred and violence are like “gunpowder” in the prison setting, because they incite violence and interfere with rehabilitation. Specifically, the warden explained that: I think to give [violent prisoners] access to something that creates and encourages this sort of a belief that they as a group are being put upon; ... that there’s a threat to their very being and well-being by people of another race, that this other race and these other people in fact control the government, control the people who are in charge of incarcerating them, I think all of that puts them in a position ■that gives some legitimacy and would justify actual violence against members of other races and actual violence against the correctional officers themselves. *1471The district court entered judgment in favor of the prison officials; The court concluded that, because Stefanow’s religion does not require him to read Christianities Ancient Enemy, confiscation of the book did not violate his free exercise rights under the Religious Freedom Restoration Act. Also, the district court found that the “racially based statements and principles set forth in Christianities Ancient Enemy would be reasonably likely to cause violence if allowed in a prison setting.” Thus, the district court rejected Stefanow’s free speech claim because it concluded that confiscation of the. book was “directly related to the prison’s goal of preventing violence and ensuring the safety of inmates and staff.” Finally, the court ruled that, even if confiscation of the book had violated Stefanow’s constitutional rights, the defendants were entitled to qualified immunity. STANDARD OF REVIEW Whether , the prison violated Stefanow’s First Amendment rights of free speech and free exercise of religion is a mixed question of law and fact. See Friedman v. Arizona, 912 F.2d 328, 331 (9th Cir.1990), cert. denied, 498 U.S. 1100, 111 S.Ct. 996, 112 L.Ed.2d 1079 (1991). We review Stefanow’s First Amendment claims de novo because “the application of law to fact will require the consideration of legal concepts and involve the exercise of judgment about the values underlying legal principles.” Id. (quoting United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984)). DISCUSSION I. Free Exercise of Religion The Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb-2000bb-4, provides that the government shall not substantially burden a person’s exercise of religion unless its action is the least restrictive means of furthering a- compelling government interest. , 42 U.S.C. § .2000bb-l. RFRA’s purpose is “to restore the compelling interests test ... in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb-l(b)(l). Because of this broad purpose, we have held that RFRA governs prisoners’ free exercise claims. Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir.1995). Under RFRA, Stefanow must make a threshold showing that the confiscation of Christianities Ancient Enemy imposes a “substantial burden” on his exercise of religion. Id. In order to show a free exercise violation under the.“substantial burden”.test, Stefanow must prove that confiscation of Christianities Ancient Enemy prevents him from engaging in conduct or having a religious experience that his faith mandates. Id. “This interference must be more than an inconvenience; the burden must be substantial and an interference with a tenet or belief that is central to religious doctrine.” Id. (quoting Graham v. Commissioner, 822 F.2d 844, 850-51 (9th Cir.1987), aff'd sub nom. Hernandez v. Commissioner, 490 U.S. 680, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989)). Stefanow does not contend that his Christian Identity religion requires him to read Christianities Ancient Enemy or that the book is central to his religious practices. He admits that his religion only requires him to study the Bible, a fact confirmed by the prison chaplain, who has reviewed Christian Identity teachings and literature. This fact is also confirmed by Mohr himself, who instructs his readers to “study the Bible for themselves, without relying on their pastor or some Bible scholar to tell them what it means.” Christianities Ancient Enemy at 17. The prison allows Stefanow to possess the Bible and to possess some Bible study materials, including several of Mohr’s books. The prison also. allows Stefanow to study and pray at will. Because the prison has not prevented Stefanow from studying books or engaging in any practices mandated by his religion, it has not substantially burdened Stefanow’s free exercise of religion. Accordingly, we affirm the district court’s judgment in favor of the defendants on Stefanow’s free exercise claim. *1472II. Free Speech Stefanow also claims that confiscation of the book violated his First Amendment rights of free speech. “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). In determining whether the confiscation of Christianities Ancient Enemy is valid under this test, we must consider: (1) whether the regulation has a logical connection to the legitimate government interests invoked to justify it; (2) whether there are alternative means of exercising the rights that remain open to the inmate; (3) whether accommodation of the asserted constitutional right will have an impact on other inmates, guards, and prison resources; and (4) whether there' are ready alternatives that fully accommodate the prisoner’s rights at de minimis cost to valid penological interests. Id. at 89-90, 107 S.Ct. at 2261-62. Applying these factors, we conclude-that the prison’s action meets the reasonable-relation test of Turner. All four factors support the prison officials’ confiscation of the book. A. Logical Connection to the Prison’s Legitimate Interests First, for a prison action affecting constitutional rights to be upheld, “there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” Id. at 89, 107 S.Ct. at 2262 (quoting Block v. Rutherford, 468 U.S. 576, 586, 104 S.Ct. 3227, 3232, 82 L.Ed.2d 438 (1984)). Moreover, the prison’s proffered objective must be a “legitimate and neutral one.” Id. at 90, 107 S.Ct. at 2262. Here, the prison confiscated Christianities Ancient Enemy because of its concern that the book threatened the security of inmates and prison staff. Prison security is undoubtedly a legitimate-even a compelling-interest. However, because the prison confiscated Christianities Ancient Enemy on the basis of its content (advocacy of racism and violence), we must scrutinize the prison’s asserted justification more closely. See id. at 90, 107 S.Ct. at 2262 (“We have found it important to inquire whether prison regulations restricting inmates’ First Amendment rights operated in a neutral fashion, without regard to the content of the expression.”). In McCabe v. Arave, 827 F.2d 634, 638 (9th Cir.1987), we held that some content regulation is permissible in the prison context. Specifically, materials that pose a threat to security in the prison or a threat to another legitimate penological interest can be excluded on the basis of content. Id.; see also Harper v. Wallingford, 877 F.2d 728, 733 (9th Cir.1989) (upholding prison ban on materials promoting sexual relationships between adult males and juvenile males because the materials pose a threat of violence in the prison and impede prisoner rehabilitation). In McCabe, the prison, in order to prevent violence and to prevent the spread of racism, had refused to allow storage of CJCC materials in the prison library. McCabe, 827 F.2d at 638. We held that the prison regulation was too restrictive because it excluded books that merely contained racist views. Only literature that poses a threat of violence within the prison, we held, can be constitutionally banned as rationally related to the prison’s interest in preventing violence. Id. Thus, under McCabe, we must determine whether Christianities Ancient Enemy poses a threat of violence within the prison, either because it advocates violence, or because it is “so racially inflammatory as to be reasonably likely to cause violence at the prison.” Id. Merely “advocating racial purity” is .insufficient to justify confiscation. Id. Anyone familiar with prisons understands the seriousness óf the problems caused by prison gangs that are fueled by actively virulent racism and religious bigotry. Protecting staff from prisoners and prisoners from each other is a constant challenge. The warden, the deputy warden, and the chaplain for the Arizona State Prison Complex, where Stefanow lives, all testified that the inflammatory nature of the content of Mohr’s book poses a threat of violence to prisoners of other races and to the staff of that prison, whom the book generally identifies as agents of the so-called Zionist Occupation Govern*1473ment. The security concerns of prison officials are entitled to respect and deference by the courts. - Harper, 877 F.2d at 733. Judgments regarding prison security “are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974). We find no evidence in the record to suggest that the prison officials’ security concerns are unreasonable or exaggerated. Christianities Ancient Enemy does more than merely advocate racism; it promotes the idea that white Christians are being oppressed by a worldwide conspiracy-a conspiracy that controls the government of the United States and, by implication, the prisons. The book issues a call to arms for white Christians to fight back in a “war for survival.” The prison officials reasonably concluded that this material is so inflammatory it is reasonably likely to incite violence in the prison. One cannot underestimate the power of ideas to incite consequential behavior. As Judge Learned Hand said in Masses Pub. Co. v. Patten, 244 F. 535, 540 (S.D.N.Y.1917), “[wjords are not only the keys of persuasion, but the triggers of action” In November, 1095, for example, Pope Urban II issued to the council of Clermont in Auvergne, France, a call to arms for the Christian faithful to rescue Jerusalem from the grip of “an accursed race.” 4 Will Durant, The Story of Civilization: The Age of Faith 587 (1950); see also 1 Eugen Weber, The Western Tradition 279-285 (5th ed.1995). Over the next 200 years, wave after incarnadine wave of resulting crusaders vainly lost their lives and spilled the blood of others in a protracted holy war against the Moslems. Durant, supra, at 587. The First Crusade’s cleansing of Jerusalem included the herding of all Jews into a synagogue where they were burned alive. Id. Hitler in his time used words as sparks from a perverse flint to ignite a more recent holocaust against the Jews. Inflamed by his rhetoric, hoards of his disciples gassed and incinerated his targets. Although one doubts that Mohr is such a rough beast slouching to be born, his venomous doctrine surely follows in Hitler’s footsteps. Mohr’s hate would be entitled to First Amendment protection in the free marketplace of ideas, but Stefanow has for the time being encumbered his right to participate in this exchange. He is in prison where the usual constitutional rules are somewhat different. In Justice Holmes’s words, “the character of every act depends upon the circumstances in which it is done.” Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919). Mohr’s call to arms poses a more immediate and dangerous threat of violence in the prison context than it. would outside the .prison. As Justice Douglas explained in Dennis v. United States: There comes a time when even speech loses its constitutional immunity. Speech innocuous one year may at another time fan such destructive flames that it must be halted in the interests of the safety of the Republic. That is the meaning of the clear and present danger test. When, conditions are so critical that there will be no time to avoid the evil that the speech threatens, it is time to call a halt. Otherwise, free speech which is the strength of the Nation will be the cause of its destruction. 341 U.S. 494, 585, 71 S.Ct. 857, 905, 95 L.Ed. 1137 (1951) (Douglas, J., dissenting). Thus, in deciding that this book poses a realistic threat of violence, we are mindful of the peculiar characteristics of the prison setting. Prisons, by definition, are places of involuntary confinement of persons who have a demonstrated proclivity for anti-social criminal, and often violent, conduct. Inmates have- necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint; they have shown an inability to regulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others. *1474Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984). In short, the mix of different races and religions assembled in a prison setting is potentially volatile, because many of the inmates already have demonstrated a tendency toward violent, anti-social behavior and irrational thought. Stefanow’s own aggressive behavior and his status as a guest of the Special Management Unit has not escaped our attention. Stimuli that are inert in the outside world can be catalysts for conflagration in the prison setting. We would add fuel to the fire if we required' the prison to introduce material calling for white Christians to fight a war for freedom against other races and against the allegedly corrupt government that incarcerated them. To introduce this book and its advocacy into this setting is the functional equivalent of permitting someone falsely to shout “fire” in a crowded theater. See Schenck, 249 U.S. at 52, 39 S.Ct. at 249. In short, the connection between the confiscation of Christianities Ancient Enemy and the prison’s asserted security concerns is by no means “so remote as to render the policy arbitrary or irrational.” Turner, 482 U.S. at 89-90, 107 S.Ct. at 2262. On the contrary, the prison officials’ legitimate security concerns are well-founded in light of the book’s combination of extreme and vile racist views with its explicit call to arms. This call in the prison context cannot be dismissed as a harmless metaphor. Therefore, the first Turner factor weighs in favor of the defendants. B.Alternative Means of Exercising the Right “Where ‘other avenues’ remain available for the exercise of the asserted right, courts should be particularly conscious of the ‘measure of judicial deference owed to corrections officials ... in gauging the validity of the regulation.’ ” Turner, 482 U.S. at 90, 107 S.Ct. at 2262 (quoting Pell, 417 U.S. at 827, 94 S.Ct. at 2806). Here, the prison has allowed Stefanow access to many of Mohr’s other books and generally has allowed him a good measure of religious freedom. Although there are no alternative means for Stefanow to read Christianities Ancient Enemy, Stefanow’s access to other CJCC materials that do not violate the prison security policy remains unrestricted. So long as the prison continues to allow access to these materials on an appropriate, selective basis, Stefanow has ample alternative means of studying the teachings of his church. Because the prison has not deprived Stefanow of all avenues for exercising his First Amendment rights, the second Turner factor also favors upholding the prison’s confiscation of Christianities Ancient Enemy. See Friedman, 912 F.2d at 332 (validating facial-hair restriction in part because Moslem prisoners were allowed to participate in other aspects of their religion); Harper, 877 F.2d at 733 (upholding ban on literature promoting sexual contact between adults and juveniles in part because prisoners had access to other literature that did not violate the prison’s security policy); C. Effect on Guards, Prisoners, and Prison Resources “When accommodátion of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.” Turner, 482 U.S. at 90, 107 S.Ct. at 2262. As discussed above, prison officials reasonably concluded that allowing Stefanow to possess Christianities Ancient Enemy in the prison would endanger other prisoners and the prison staff. The book gives Stefanow a doctrinal justification and religious blessing for unbridled rebellious behavior against his keepers and for violence against other prisoners. Mohr’s words have the capacity “to promote a mutinous and insubordinate temper” among the inmates. Masses, 244 F. at 539 (Hand, J.). These collateral dangers further support the prison’s decision to confiscate the book. D. Alternatives for Serving the Prison’s Interests Finally, “if an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests, a court *1475may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.” Turner, 482 U.S. at 91, 107 S.Ct. at 2262. Stefanow suggests that the prison can alleviate its security concerns simply by restricting his access to the book, so that the book is only available to him in his cell. This accommodation would not remedy the prison officials’ concerns for the safety of prison staff who must work with Stefanow himself. Also, the prison officials explained at trial that Stefanow can speak to the inmates in the seven cells adjoining his own and that, if given the book, he could pass it to other prisoners in violation of prison rules. We note again that every inmate in Stefanow’s Special Management Unit has demonstrated a proclivity for violence. Stefanow’s proffered accommodation would not necessarily prevent dissemination of the book to other prisoners, and ultimately, would not resolve the prison’s concerns for the safety of inmates and prison staff. Thus, Stefanow cannot point to an alternative accommodation that does not compromise the prison’s valid penological interests. CONCLUSION Because Stefanow is not compelled by his religion to read Christianities Ancient Enemy, we hold that confiscation of the book did not impermissibly restrict his free exercise rights under RFRA. Applying the Turner factors, wé also hold that confiscation of the book was reasonably related to the prison’s legitimate penological interests and therefore that the prison did not impermissibly restrict Stefanow’s free speech rights. We defer to the prison officials’ determination that introduction of this book into the prison would pose a threat of violence to prisoners of other races and to the prison staff. Accordingly, we affirm the judgment of the district court in favor of the defendants. Because we affirm the district court’s judgment on the merits, we do not address the question of whether the defendants were entitled to qualified immunity. AFFIRMED. | opinion_xml_harvard | 4,533 | 2022-07-24 01:16:37.303786+00 | 020lead | t | f | 7,041,108 | Beezer, Roney, Trott | null | U | f | Published | 0 | Stefanow v. McFadden | Stefanow | Michael STEFANOW v. James McFADDEN, Warden Dr. McKinley Mike Shuller, Nurse, Special Management Unit Sgt. Manriquez Officer Brydon CSO Martinez CSO Simms CSO Granillo J. Polley Wes Mayhew, Administrative Assistant | null | null | null | null | null | null | null | null | null | 64,029,442 | No. 95-16134 | 0 | ca9 | F | t | Ninth Circuit | Court of Appeals for the Ninth Circuit |
3,444,750 | Reversing. Appellants owned 600 acres of land in Carter county. Appellees instituted an action in the county court to condemn a right of way 100 feet wide, 9,981 feet long, across the tract, containing 22.95 acres, for its high-power electric line, under section 1599b, Kentucky Statutes, which provides that the proceedings shall be in conformity to sections 835-840, Kentucky Statutes. Commissioners were appointed, who fixed the damages at $1,000. The landowners filed exceptions to the commissioners' report in the county court, and, the case being heard before a jury, there was a verdict fixing the damages at $2,295. The landowners declined to accept the money. The company paid the amount into court and took possession of the property. Both parties then took an appeal to the circuit court. In the circuit court, the company filed exceptions to the commissioners' report on the ground that the amount allowed was excessive, and, when the case came on for trial, asked that the company be adjudged the burden of proof. The landowners objected, but the motion was sustained. The jury in the circuit court, after viewing the property, fixed the damages at $1,600. *Page 77 The circuit court entered judgment pursuant to the verdict. The landowners appeal. In Shelbyville Turnpike Co. v. L. N. R. R. Co., 51 S.W. 805 , 21 Ky. Law Rep. 548, where both the landowner and the company filed exceptions in the county court to the commissioners' report, it was held, when the case reached the circuit court, that the burden of proof rested on the company, and this was followed in Calor Oil Co. v. Franzell (Ky.) 122 S.W. 188 . But in Chicago, etc., Railroad Co. v. Rottgering, 83 S.W. 584 , 26 Ky. Law Rep. 1167, it was held that the landowner, who alone excepted to the award of damages by the commissioners, was properly allowed the burden of proof and the right to the closing argument to the jury. Sections 838-839 provide: "At the first regular term of the county court, after the owners shall have been summoned the length of time prescribed by the Civil Code of Practice before an answer is required, it shall be the duty of the court to examine said report, and if it shall appear to be in conformity to this law, and to the extent that no exceptions have been filed thereto by either party, it shall confirm said report as against the owners not excepting. "When exceptions shall be filed by either party, the court shall forthwith cause a jury to be impaneled to try the issues of fact made by the exceptions. . . . Either party may appeal to the circuit court, by executing bond as required in other cases, within thirty days and the appeal shall be tried de novo, upon the confirmation of the report of the commissioners by the county court, or the assessment of damages by said court, as herein provided." The statute clearly contemplates that the exceptions shall be filed at the first regular term of the county court after the owners have been duly summoned, and that the case shall be tried by the jury on the exceptions so filed. When an appeal is taken to the circuit court, the case is tried de novo, but it is the case that was tried in the county court. Here the company filed no exceptions in the county court, and was willing to accept the report of the commissioners. For the first time it filed exceptions in the circuit court simply for the purpose of obtaining the burden of proof and the right to the concluding argument in the circuit court. The statute clearly was intended to provide an expeditious mode for settling *Page 78 the rights of the parties at the first term of the county court, after the parties were before the court. It does not contemplate that the party who makes no exception to the commissioners' report in the county court should be allowed to file exceptions in the circuit court, unless for cause shown, for in this way the settlement of the case might be greatly delayed, and the purpose of fixing the time when the exceptions should be filed would be defeated. The exceptions in this case, filed in the circuit court only, had no effect on the burden of proof. To permit such a practice would defeat the plain intent of the statute. The landowners should have been adjudged the burden of proof in the circuit court just as they were in the county court. Section 526 of the Civil Code provides: "The burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side." As by the judgment in the county court the damages were fixed as $2,295, and as on the trial in the circuit court, if no evidence had been given, a judgment would have been entered fixing the damages at the amount fixed in the commissioners' report, $1,000, plainly the landowners would be the party who was defeated on the appeal, if no evidence had been given, for in that event the landowners would have received $1,295 less than they would have received under the judgment of the county court, from which they had appealed. Clearly, therefore, the landowners would be in substance the party who would be defeated on the appeal, if no evidence had been given. In cases like this the court must look at substance not form. At the conclusion of the evidence, among other things, the court gave the jury this instruction: "(2) The court instructs the jury that the measure of damages in this case for the taking of the property in controversy for the uses sought in the petition is the actual, fair, and reasonable market value of the land taken, as of this date, and, in addition thereto, such a sum as will reasonably compensate the defendants for the damages, if any, done to the remainder of the tract in controversy, considering the easement and use sought thereover. The entire amount of your finding, however, shall not exceed the difference between the actual market *Page 79 value of the entire tract immediately before and the market value of what is left immediately after the taking, considering the prudent construction and operation of the transmission line in question. The jury will state the value of the land actually taken and the damages, if any, to the remainder of the tract, separately." The proof on the trial showed that the company had entered on the land after the judgment of the county court and had cut on it 1,382 trees from 6 to 9 inches in diameter, 777 trees from 10 to 17 inches in diameter, and 490 trees 18 or more inches in diameter. The necessary effect of the instruction was that the jury could allow nothing for this timber, for the jury were told to find the actual, fair, and reasonable market value of the land taken "as of this date," the date of the trial, which was on May 3, 1927, when the judgment of the county court was entered on January 17, 1927, and all this timber had been cut from this land in the meantime. The timber growing on the land was a part of the land. To take the land was to take the timber which was growing on it and a part of it. The plaintiffs were entitled to compensation for the land in its condition at the time it was taken. Pollock v. Maysville, etc., R. R. Co., 103 Ky. 84 , 44 S.W. 359 , 19 Ky. Law Rep. 1717; Big Sandy R. Co. v. Dils, 120 Ky. 563 , 87 S.W. 310 , 27 Ky. Law Rep. 952; Calor Oil Co. v. Franzell, 128 Ky. 715 , 109 S.W. 328 , 33 Ky. Law Rep. 98, 36 L.R.A. (N.S.) 456; L. N. R. R. Co. v. White Villa Club, 155 Ky. 452 , 159 S.W. 983 ; David v. Louisville I. R. Co., 158 Ky. 721 , 166 S.W. 230 ; Himlar Coal Co. v. Kirk, 224 Ky. 383 , 6 S.W.2d 480 , and cases cited. Instead of the words "as of this date the court should have inserted these words: "as of the date it was taken." The timber being a part of the land taken the property owner may show the value of the timber standing on the land, and he may also show that the land has fire clay in it or coal or any other substance giving it value; for the value of the land depends upon such things. Anything on the land or in the land making it valuable may be shown, for, in determining the value of the land, the jury should take into consideration all the facts. "In condemnation proceedings, landowners should be allowed to show all facts existing before the taking which a seller would adduce in attempting to make a sale *Page 80 and all facts resulting from the taking to which a purchaser would call attention in an effort to beat down the price." Kentucky Hydro-Electric Co. v. Reister, 216 Ky. 303 , 309 , 287 S.W. 357 , 359 . "All of the surrounding circumstances may be taken into consideration in establishing the fair market value of a tract of land." Chicago, St. L. N. O. Ry. Co. v. Ware, 220 Ky. 778 , 295 S.W. 1000 . In the first instruction to the jury, the court, after defining the rights of the company in the strip of land taken, added these words: "No timber is being sought on the property in question, but merely the right to cut the same where it interferes with the prudent and careful construction and operation of the line." This should have been omitted from the instruction. The property owner was entitled to his property as it was when it was taken under the right of eminent domain, and he was entitled under the Constitution to just compensation for the property taken. To cut the trees from the land was to take them, for they were no longer part of the land. To require the landowner to accept the cut timber and place on him the burden of taking care of it is not to give him just compensation for the taking of his property, but to place a burden on him which cannot be done under the Constitution. The cutting of the trees from the land was a conversion of the trees. In Ky.-Tenn. Light Power Co. v. Shanklin, 219 Ky. 279 , 292 S.W. 790 , the lower court, in the instruction defining the rights of the parties, used, in substance, these words: "Subject to the aforesaid rights of plaintiff, the defendants have the right to cultivate and use said land and have the fee-simple title to same." This instruction was there approved, and on another trial the court will give an instruction in these words, and mark it "No. 2." In that case the court directed the instruction on the measure of damages to be given in these words: "You will find for the defendant such a sum in damages as you may believe from the evidence is the fair and reasonable market value of the strip of land taken for the easement, less the reasonable market value of such strip of land for use and occupancy, *Page 81 subject to the easement, as defined in instructions No. 1 and No. 2. And will further award him such direct damages, if any, as you may believe from the evidence will result to the remainder of the tract of land by reason of the condition in which it is left by the placing of the easement on the strip above described, but the total amount found shall not exceed the difference between the fair and reasonable market value of the entire farm immediately before and immediately after taking by the plaintiff of the easement, nor the amount claimed in the petition, $1,400." In this case, as the land is not in the condition it was when taken, these words should be added after the word "easement," "at the time the land was taken," and the court will otherwise make instruction 2, given on the former trial, conform, in substance, with the instruction above quoted, and mark it "No. 3." Ordinarily property owners who have lived for some time in the vicinity and know the property are qualified to testify to its value. Farmers generally know the value of farm land, and may testify to its value where they know how such lands are valued in the vicinity. Persons who deal in timber and so know its value from business experience may testify to its value. See Himlar Coal Co. v. Kirk, 224 Ky. 385 , 6 S.W.2d 480 , and cases cited; 11 Rawle C . L. pp. 636-638. The fact that no sales have been made of such property in the vicinity because as here one company owns the fire clay rights, and does not sell anything, is only a circumstance to be considered by the jury in weighing the evidence. In Kentucky Hydro-Electric Co. v. Woodard, 216 Ky. 631 , 287 S.W. 990 , the court, after holding that a mere ill-defined apprehension that in the future some misfortune might come could not be considered, added this: "But if such fears be reasonable, not ill-defined, but founded on practical experience, and if they be entertained so generally as to enter into the calculations of all who propose to buy or sell, can it logically be said that they do not depreciate the market value of the property? The property owner is to be paid for his actual damage. If he cannot sell his property at as good a figure with this line on it as he could without it by reason of reasonable fears, not speculative, but founded on experience, and entertained *Page 82 by those who wish to buy, has he not been damaged in this regard? It is no fault of his that the line has been erected. Under such assumed state of facts, his land has been depreciated on account of such fear on the part of buyers. Those who cause such damage should pay for it." On another trial the court will adhere to this rule in the admission of evidence on this subject. Judgment reversed, and cause remanded for a new trial. | opinion_html_with_citations | 2,425 | 2016-07-05 20:17:10.309226+00 | 020lead | f | f | 3,446,686 | Hobson | null | ZU | f | Published | 13 | Saulsberry v. Kentucky & West Virginia Power Co. | Saulsberry | Saulsberry Et Al. v. Kentucky & West Virginia Power Company | null | null | <parties id="b89-3">
Saulsberry et al. v. Kentucky & West Virginia Power Company.
</parties><br><decisiondate id="b89-5">
(Decided September 25, 1928.)
</decisiondate><br><otherdate id="b89-6">
(As Modified on Denial of Rehearing, November 27, 1928.)
</otherdate><br><attorneys id="b90-9">
<span citation-index="1" class="star-pagination" label="76">
*76
</span>
DYSARD & MILLER and CARLTON COUNTS for appellants.
</attorneys><attorneys id="Aih">
JOHN M. THEOBALD for appellees.
</attorneys> | null | Appeal from Carter Circuit Court. | null | null | null | null | 3,318,811 | null | 0 | kyctapphigh | S | t | Court of Appeals of Kentucky (pre-1976) | Court of Appeals of Kentucky (pre-1976) |
5,737,027 | Motion by appellant for counsel fees and disbursements to prosecute her appeal, denied without prejudice to an application at Special Term for such counsel fees and disbursements, if appellant be so advised. Beldoek, P. J., Ughetta, Christ, Hill and Hopkins, JJ., concur. | opinion_xml_harvard | 42 | 2022-01-12 16:35:28.359133+00 | 020lead | t | f | 5,880,435 | null | null | U | f | Published | 0 | Bruno v. Bruno | Bruno | Rose Bruno v. Peter Bruno | null | null | null | null | null | null | null | null | null | 62,238,476 | null | 0 | nyappdiv | SA | t | Appellate Division of the Supreme Court of New York | Appellate Division of the Supreme Court of the State of New York |
3,453,925 | Affirming. J.C. Tracy, a resident of Corbin, Ky., during the year 1922, erected a large apartment building in the city of Corbin, and in the month of August placed an order with C.M. McClung Company, a wholesale dealer of Knoxville, Tenn., to furnish the heating and plumbing materials to be used in its construction. It appears that the company estimated and fixed the price on the heating material and drew plans for its installation from the blue prints of the building and that Tracy's plumber made a list of plumbing material, Tracy signing and giving to the salesman a blank order for the material which was to be shipped as specifically ordered. The first specific order was dated the 19th of September. Various other orders were made from time to time during the intervening months running through December into January, and a *Page 634 large amount of correspondence ensued in which he was requesting that shipments be expedited, the building being occupied about the first of May. Trouble arose over the adjustment of accounts and in April, 1924, McClung Company sued at law for the balance due it. Later it filed an amended petition setting out a material lien which it had properly recorded and on motion the case was transferred to equity. Tracy filed an answer and counterclaim in three paragraphs, a demurrer being sustained to the first and third paragraphs, whereupon he filed an amendment to each paragraph. Demurrers were sustained to paragraphs one and three as amended and the third was dismissed, though the first was apparently treated as if the demurrer had been overruled. Evidence was taken on all questions during preparation of the pleadings, plaintiff having concluded and the defendant having taken the principal part of his evidence before the demurrer was sustained to paragraphs one and three of the answer as amended. Before submission, but after the completion of the evidence, defendant moved to transfer the action to the ordinary docket for a trial of the question of damages, and this was overruled. On final hearing the court rendered judgment in favor of the plaintiff for $2,909.09, the amount of its claim, including interest after maturity of bills; and allowed defendant $213.89 on his counterclaim, to be credited on the principal judgment. It also adjudged the enforcement of the material lien on the house and lot. The defendant excepted to all adverse rulings and appeals. (1) Plaintiff pleaded that the goods it furnished amounted to $4,683.52, upon which defendant had paid $1,939.85, leaving a balance of $2,743.73, and that the accrued interest to May 20, 1923, amounted to $29.80, making a total of $2,773.49, for which it prayed judgment, with interest from May 20, 1923. In its amended petition the interest was computed to April 4, 1924, aggregating $179.00, and leaving a total balance of $2,909.08, for which it asked judgment from April 4, 1924. Defendant admitted the accuracy of the charges and credits, but in effect denies the interest charge and the allowance of this is assigned as error. The evidence shows that plaintiff's regular terms are sixty days "with interest charged after maturity," and indicates that demand was made for payment prior to May 20, 1923, and it can hardly be said the judgment is not sustained by the pleadings, hence this point is not well taken. Henderson Cotton *Page 635 Mfg. Co. v. Lowell Machine Shops, 86 Ky. 668 ; Magruder v. Ericson, 146 Ky. 89 ; Supreme Lodge of K. H. v. Lapp, 25 Rep. 74; McKinney Dep. Bank v. Scott, 207 Ky. 340 ; Miller v. Winter, 206 Ky. 377 ; Royster v. Waller, 186 Ky. 476 . (2) In the second paragraph of the answer as amended the defendant alleged that at the time he gave plaintiff the contract, two-thirds of the construction work had been done on the building; that he informed the plaintiff's agent that it was to be completed by the first of December; that the apartments were to be occupied by tenants and that he was desirous of contracting with a firm that could furnish the material as he needed it, so as to assure its completion at the date mentioned; that the agent represented to him that the plaintiff had all of the material necessary in stock at its plant in Knoxville, which was sufficiently near for it to be furnished at once as ordered and that this was the moving consideration in the contract. Further allegations of that paragraph related to defective material and inconvenience caused workmen by delay in shipment of material, to which reference will later be made. In the third paragraph damages were sought for loss of rents between December 1st and May 1st, it being alleged that defendant could have completed the building on that date and have rented it continuously afterward at the rate of $550.00 per month, but for the delay in the delivery of this material. The alleged contract was not set out in this paragraph, but the second paragraph was made a part of it by reference in these words; "The defendant here reiterates all the allegations of this statement to the second paragraph of this answer, set-off and counterclaim, and adopts same as an amendment to the third paragraph of the said answer, set-off and counterclaim as fully as if rewritten herein." A demurrer was sustained to this paragraph and defendant refusing to plead further it was dismissed, and this is relied upon as error. There is some confusion in our practice as to whether a paragraph of a pleading may be incorporated in and made a part of another paragraph by reference; and our decisions on this question are not entirely harmonious. Sec. 113, subsection 3 of the Civil Code provides: "If there be more than one cause of action or defense, each must be distinctly stated in a separate *Page 636 numbered paragraph; and either, which is intended to respond to part only of an adverse pleading must show to what part it is responsible. . . ." This section is thus construed by Mr. Newman: "Moreover, each paragraph or separate defense must be complete in itself without reference to others. It is true that defendant need not repeat in each paragraph the same allegations where the same facts are alike applicable to several causes of action or defenses, but having averred them in one paragraph or by way of introduction to all he may refer to them in such distinct and intelligible language as to include or incorporate them into each of the paragraphs or defenses. Each of the separate paragraphs must be a sufficient defense to the cause of action which it purports to answer and the averments of one paragraph or defense cannot, it would seem, on demurrer be brought in aid of the allegations in another without appropriate reference to such other averments." Newman on Pleading Practice, sec. 426d. No authority is cited in support of the text, but it is in line with Day v. Clark, 1 A.K. Marshall 521, though this was written before tile code. This case is also cited as the basis of the text in 31 C. J., page 47, in which the rule is thus laid down: "Facts which are alleged in other pleadings in the same cause may be made a part of the pleadings by expressly adopting them. Thus one defendant may adopt the answer of another defendant. An intervenor may adopt in his petition the allegations of the plaintiff's petition, and a defendant may adopt the allegations of plaintiff's petition in a supplemental cross bill. . . ." Consistent therewith we have said: "Each paragraph must be a sufficient defense to the cause of action which it purports to answer and the averments of one paragraph or defense cannot be brought in aid of the allegations in another without proper reference is made to such other averments. " (Our italics.) Black v. Halloway, 19 Rep. 694. *Page 637 On the contrary, in Daley v. O'Brien, 29 Rep. 811, two inconsistent paragraphs were pleaded in the petition. the court sustained a motion to elect and plaintiff elected to prosecute the cause of action set up in the second paragraph. Thereupon the court sustained a motion to strike these words from that paragraph, "and reiterating each and all the averments of the first paragraph of the petition," and later sustained a general demurrer to the cause of action set up on that pleading. In sustaining the judgment of the lower court this court said: "Nor can the plaintiff's complain of the ruling of court in sustaining the motion to strike from the second paragraph the words embraced in said motion, for it is a well-settled rule that while a pleading may contain as many distinct causes of action or defenses as the pleader may have, yet each paragraph must be complete in itself. The averments of one paragraph cannot be connected with or relied on in aid of another." Citing Black v. Halloway. It will be observed that the words italicized supra in the Halloway case were not mentioned in the Daley opinion nor in the later one of L. N. R. R. Co. v. Adams, 148 Ky. 513 , in which it is said: ". . . But when a pleading properly contains as this one did more than one paragraph, each paragraph should be sufficient in itself, or in other words state a good cause of action, without reference to the other paragraph. Black v. Halloway and Daley v. O'Brien." But in that case it does not appear whether there was an attempt to adopt by reference, and it can hardly be regarded as authority on this question. The Daley case being the only one to which our attention has been called, that positively denies the propriety of adoption by reference. Perhaps the court in that opinion overlooked the words that we have italicized in the Halloway opinion, as otherwise it indicates an intention to follow rather than conflict with it. At any rate the general practice in courts of this state has been to sanction pleadings of this character, and while authority may be cited from other states to the contrary we think the reasonable and logical rule to be as stated by Mr. Newman. It follows that the court erred in sustaining the demurrer to the third paragraph of the answer as amended. It may also be said that the defendant's answer and counterclaim raised common law issues that were properly *Page 638 triable by jury and the court erred in overruling his motion to transfer to the ordinary docket for trial thereof. Carter Vallandingham v. Weisenberg, 95 Ky. 135 ; Hill v. Phillips, 87 Ky. 169 ; Bush, c. v. E. K. T. T. Co., 28 Rep. 773; Winchester v. Watson, 169 Ky. 213 ; Scott v. Kirtley, 166 Ky. 728 . Rieger v. Schulte Eicher, 151 Ky. 129 , is relied upon as laying down a different principle, but as interpreted in Scott v. Kirtley, supra , it does not conflict with this view. But though the court erred in the particular named, as it appears that the evidence was fully developed on all the issues tendered, most of it being taken before the demurrer was sustained to the third paragraph of the answer and all being taken before the motion was made to transfer, we may examine this; and if it did not warrant a submission of the issues to the jury the defendant was not prejudiced by the court's action and a reversal cannot be granted therefor. Sec. 756, Civil Code. In this respect defendant testifies that he made a verbal contract with plaintiff's agent for the material some time in August; that the agent knew the purpose of the building which was then two-thirds constructed; that he (defendant) was looking for a firm that could furnish material at once, as the building was expected to be finished and ready for occupancy December 1st; that he so informed the salesman, who stated that plaintiff had the material in stock and would furnish it at once as ordered, and that this was a part of the consideration for the contract; that if the material had been furnished promptly as ordered the building would have been completed at that time, and that he had applicants for leases and would have leased all of the apartments from that date on, but its completion was delayed until May 1st, and in this he is corroborated by his workmen. But whatever may have been the representations of the salesman or the verbal understanding in August, such understanding does not seem to have existed on the 29th of September when the negotiations were finally completed. It does not appear to have been mentioned in the skeleton order signed by defendant, and it appears that prior to September 19th, when defendant made his first specific order, plaintiff had learned of a mortgage on his property, and that this delayed negotiations until September 29th, when it wrote plaintiff a letter accepting his order on its regular terms and informing him that part of the material had been ordered from Chattanooga *Page 639 and would be shipped to him on arrival; that it had sent the heating plans in, and when it heard from the engineers would arrange to send him a list of the heating material necessary for his plans. This was the final acceptance of the order and indicates the understanding of the parties at that time, clearly showing that it was not carrying the material in stock. No special circumstances are alluded to evincing a purpose to complete the building at any particular time, or fixing any particular time for delivery of material, nor does any of the orders of defendant evince such purpose, although these continued from time to time, the bath tubs for the entire building not being ordered until January 2nd, 1923. So that, omitting all the evidence of plaintiff except the conceded letter of September 29th finally accepting the contract, and considering the subsequent conduct of the parties, there is nothing in the transaction to distinguish it from ordinary sales of this character, in which the seller is required to deliver within a reasonable time, and it is not claimed that plaintiff failed to do this, hence defendant was not prejudiced by the court's ruling as to the third paragraph. As to the second paragraph it may be said that the court allowed practically everything claimed by defendant aside from an item of $40.00 for repairing a boiler and $400.00 for removing and repairing radiators, and there was not sufficient proof on these items to have authorized a submission thereof to the jury, hence defendant was not prejudiced by the order overruling the motion for an issue out of chancery. Wherefore, perceiving no error, the judgment is affirmed. | opinion_html_with_citations | 2,484 | 2016-07-05 20:23:37.233748+00 | 020lead | f | f | 3,455,778 | McCANDLESS | null | ZU | f | Published | 2 | Tracy v. C. M. McClung Company | Tracy | Tracy v. C. M. McClung & Company | null | null | <parties id="b646-7">
Tracy v. C. M. McClung & Company.
</parties><br><decisiondate id="b646-8">
(Decided June 8, 1926.)
</decisiondate><br><attorneys id="b647-5">
<span citation-index="1" class="star-pagination" label="633">
*633
</span>
JOHN -B. WALD and WILLIAM: LEWIS for appellant.
</attorneys><br><attorneys id="b647-6">
STEPHENS
<em>
&
</em>
STEELY and M. A. GRAY for appellee.
</attorneys> | null | Appeal from Whitley Circuit Court. | null | null | null | null | 3,327,903 | null | 0 | kyctapphigh | S | t | Court of Appeals of Kentucky (pre-1976) | Court of Appeals of Kentucky (pre-1976) |
5,063,669 | WINTERSHEIMER, Justice. This appeal is from a decision of the Court of Appeals which affirmed the judgment of the circuit court holding that candidate Noble did not meet the required residency qualifications for the position of district judge in the Thirty-ninth Judicial District composed of Breathitt, Powell and Wolfe counties. The critical issue is whether KRS 118.176 applies to non-partisan judicial races and whether the suit challenging the residency qualifications of Noble was brought in the right court. Three candidates were entered in the primary election of May 29, 1984, in the Thirty-ninth Judicial District for judge. Noble received 52 percent of the vote, Meagher, the incumbent, received 28 percent, and William P. Bach received the balance. Both Noble and Meagher were certified for nomination and their names were printed on the ballot for the November election. On October 4, 1984, only 32 days from the scheduled general election on November 6, Meagher filed a complaint in the Franklin Circuit Court alleging that Noble was not eligible to be a candidate for district judge because he did not possess the required residency qualifications pursuant to Section 122 of the Kentucky Constitution. After a hearing of evidence, the circuit court on October 15, found that Noble was not a resident of the district and ordered the Secretary of State to strike his name from the judicial ballot. Noble appealed to the Court of Appeals which af*460firmed the decision of the circuit court in regard to residency. Appeal was then taken to the Supreme Court and on October 30, 1984, after accelerated briefing by both sides, Justice Roy Vance issued an opinion and order permitting the election to proceed with both names on the ballot but reserving the final determination to the full Court. This Court reverses the decision of the Court of Appeals because the Franklin Circuit Court did not have jurisdiction to consider this pre-election suit. KRS 118.176 applies to non-partisan judicial elections and it requires that a challenge to the qualifications of a judicial candidate must be brought in the county or counties which comprise the judicial district. I Meagher argues that KRS Chapter 118A governs judicial elections and that KRS 118A.010(6) prevents KRS 118.176 from applying to judicial candidates. We do not agree. In 1984, the General Assembly amended and re-codified KRS 118.176 to extend the coverage of the statute to include any candidate seeking nomination or election in a primary or general election. We interpret the amendment to apply to candidates for judicial office. Previously, the statute had applied only to a challenge of any candidate seeking a partisan nomination or election as an independent. The 1984 amendment was passed as emergency legislation because it was thought that there was no method for challenging the qualification of some candidates. Kentucky Acts 1984, Chapter 413, § 3. The amendment was clearly intended to fill that gap. KRS Chapter 118A contains no provision for challenging the qualifications of a judicial candidate and the application of KRS 118.176 is not prohibited by the express wording of KRS 118A.010. It is the holding of this Court that the only proper procedure for challenging the qualifications of a judicial candidate before the election is the procedure set out in KRS 118.176. Consequently, the proper forum in which to challenge Noble’s qualifications would have been the circuit court of a county in which he was alleging residence in order to qualify for the office of district judge. Section 153 of the Kentucky Constitution provides that the General Assembly shall have exclusive power over elections. Section 117 states that judges shall be elected from their respective districts or circuits on a non-partisan basis as provided by law. The legislature has enacted a general law specifically dealing with challenges to a candidate. KRS 118.176 is the statutory remedy for challenges to the qualification of a candidate. The courts of this Commonwealth have long recognized that the judicial branch has no inherent power to pass on the validity of elections or the eligibility of candidates, but only has such power as given by the General Assembly or possessed at common law through a quo warranto proceeding. See Craft v. Davidson, 189 Ky. 378, 224 S.W. 1082 (1920); Ratleff v. Tackett, 209 Ky. 588, 273 S.W. 441 (1925); Wilson v. Tye, 122 Ky. 508, 92 S.W. 295 (1906); Nichols v. Pennington, Ky., 118 S.W. 382 (1909); Francis v. Sturgill, 163 Ky. 650, 174 S.W. 753 (1915). The statutes must be strictly complied with because compliance with certain statutory steps are jurisdictional requirements. See Brock v. Saylor, 300 Ky. 471, 189 S.W.2d 688 (1945); Ritchie v. Mann, Ky., 500 S.W.2d 62 (1973). Where a statute fixes the forum in which these statutory proceedings may be brought, only such fora have jurisdiction to hear and dispose of the matter. See Gallagher v. Campbell, 267 Ky. 370, 102 S.W.2d 340 (1937). All election disputes involve the application of particular statutes. It is a well established rule that the statutes must be strictly construed. For application of this principle involving election contests, see Dodge v. Johnson, 210 Ky. 843, 276 S.W. 984 (1925) and Prewitt v. Caudill, 250 Ky. 698, 63 S.W.2d 954 (1933). It is important to distinguish between an election contest and a pre-election lawsuit. The only pre-*461election suit that can be brought is by a voter prior to the primary election. Fletcher v. Wilson, Ky., 495 S.W. 787; Wells v. Lewis, 300 Ky. 675, 190 S.W.2d 28 (1945). This action is technically not an election contest. Dempsey v. Stovall, Ky., 418 S.W.2d 419 (1967), is not applicable in this situation because the jurisdiction of the Franklin Circuit Court to hear that case was never raised or considered, nor apparently did the statutes involved specify where such action should be brought. The General Assembly has provided the procedure for challenging the eligibility and qualifications of a candidate in KRS 118.176 effective April 11,1984. This reco-dification of the law in 1984 did not alter the application of prior case law or the purpose of the legislation. As a result of the judicial constitutional amendment adopted in 1975 by the people of this Commonwealth, our present judicial branch was organized. Responding to the electoral mandate, the General Assembly in 1976 enacted various items of legislation including KRS Chapter 118A regarding the election of judges. KRS 118A.010(6) provides that no provision of Chapter 118 existing on March 10, 1976, except KRS 118.015 through .045 shall apply to judicial elections. All other provisions of the election laws not inconsistent with this Chapter shall be applicable. KRS 118.176 was not specifically repealed and was relied upon in cases discussed herein after 1976. As stated earlier, in 1984, the General Assembly believed it had left a gap in its 1976 program and adopted a new provision as an emergency legislation to be effective April 11, 1984, and closed an apparent gap in the law so as to provide the exclusive remedy for challenges to judicial elections. The law does not provide any opportunity to name the Board of Elections or the Secretary of State so as to create jurisdiction in the Franklin Circuit Court. The forum and the procedures have been precisely stated by the General Assembly, and the courts of this Commonwealth have been consistent in holding that such a procedure is the exclusive remedy. See Wooton v. Smith, Ky., 155 S.W.2d 466 (1941); Thomas v. Lyons, Ky., 586 S.W.2d 711 (1979). This Court in Fletcher v. Wilson, Ky., 495 S.W.2d 787 (1973) and Fletcher v. Teater, Ky., 503 S.W.2d 732 (1974), decided that the question of the qualifications of a candidate to appear on the ballot should be challenged before the primary election, not afterwards. Meagher was aware of the questions concerning Noble’s residence before the primary. She testified that she had considered a lawsuit for sometime, but the filing of such an action was not her highest priority. She also testified that she believed that if she came in third in the primary, there would be no reason to file a lawsuit. Additional Kentucky eases on this subject may be found in Burkhart v. Blanton, Ky.App., 635 S.W.2d 328 (1982), involving a challenge to a school board candidate; Dickey v. Bagby, Ky.App., 574 S.W.2d 922, 923 (1978), involving the residency issue raised before the primary in a city election; Hall v. Miller, Ky.App., 584 S.W.2d 51 (1979), regarding the election of a mayor in a non-partisan contest. A number of older cases deal with whether it is the right of a voter or an opposing candidate to institute a pre-pri-mary challenge. The present wording of KRS 118.176 gives that right to either person. The procedures and the policies are unchanged. The challenge to a candidate’s right to appear on a ballot must be lodged before the primary. Consequently, we must disagree with the opinion of the Court of Appeals that there are no time limits in making such a challenge in a proper forum. The challenge to the qualifications under KRS 118.176 before a general election is permitted only in cases in which there was no primary. See Stewart v. Burks, Ky., 384 S.W.2d 316 (1964), and Burke v. Stephenson, Ky., 305 S.W.2d 926 (1957). *462II Although the Court of Appeals determined that KRS 118.176 applied to challenge the qualifications of a judicial candidate, it found that the strict application of the statute would result in an injustice affecting the credibility of the judicial system. It then proceeded to affirm the decision of the circuit court on the alleged merits of the dispute. We cannot agree that the circuit court was correct in applying KRS 116.035(1) as the correct guide to determine residency. The proper statutory standard to determine the residence of a non-partisan judicial candidate is set out in KRS 118.-015(7), which states that the word “residence” used in reference to a candidate shall mean actual residence of the candidate without regard to the residence of the spouse of the candidate. Here the trial court found against a background of divergent testimony that candidate Noble’s residency was outside the district. The trial court used the wrong residency statute as a measure. The judgment would be erroneous as a matter of law in that regard. A careful examination of the record, which includes more than seven hours of testimony from 38 witnesses, indicates that much of Meagher’s evidence was in regard to the residence of Noble’s wife, including her deed, voter registration and household utilities. Noble, for his part, presented evidence of his own intent to remain in Breathitt County, his motor vehicle and drivers’ license there, his taxes and utilities, as well as his living accommodations in Jackson. The principal focus must be on the residence of the candidate as distinguished from the location of his family. It should be noted that the inclusion of the Secretary of State does not elevate this suit so as to permit jurisdiction in the Franklin Circuit Court. The Secretary of State was performing only a ministerial action in regard to certifying candidates for the ballot, and he had no interest in the suit other than proceeding under the laws as ordered by the courts. III This Court is not insensitive to or unmindful of the necessity for all elected public officials to be qualified pursuant to law for the positions they fill. It must be noted that Kentucky law provides that Meagher, as a candidate, as well as the Attorney General and the Commonwealth Attorney for the district all have standing to bring an ouster action under the usurpation statutes, KRS 415.030, 415.040, 415.-050, if they have legitimate grounds to believe that Noble is holding the office of district judge without the proper qualifications. See, Wells, supra, and Friley v. Becker, 300 Ky. 749, 190 S.W.2d 355 (1945). IV It is the holding of this Court that KRS 118.176 applies to non-partisan judicial races. It is our further holding that challenges to the qualifications of candidates to appear on the ballot must be made before the primary election. The proper place to challenge Noble’s qualifications would have been the circuit court of the county in which he was alleging residence in order to qualify for judicial office. The decision of the Court of Appeals is reversed and the order of the Franklin Circuit Court is vacated. AKER, STEPHENSON, VANCE and WINTERSHEIMER, JJ., concur. STEPHENS, C.J., dissents by separate opinion in which GANT and LEIBSON, JJ., join. | opinion_xml_harvard | 2,072 | 2021-10-01 09:37:38.567546+00 | 020lead | t | f | 5,238,274 | Aker, Gant, Leibson, Stephens, Stephenson, Vance, Wintersheimer | null | U | f | Published | 0 | Noble v. Meagher | Noble | James H. NOBLE, Movant/Appellant v. Virginia MEAGHER Hon. Ray Corns, Judge, Franklin Circuit Court Drexell R. Davis, Secretary of State Margaret McPherson, Clerk, Breathitt County Anna M. Baker, Clerk, Powell County S. Kenneth Lindon, Clerk, Wolfe County | null | null | null | null | null | null | null | null | null | 60,568,597 | null | 0 | ky | S | t | Kentucky Supreme Court | Kentucky Supreme Court |
8,793,157 | WARD, Circuit Judge. The complainant exploits the patents in *»uit by means of licenses and these suits are against dealers. A suit against manufacturers is soon to be reached for final hearing before Judge Hazel in the Northern district. In it a mass of new proofs have been already taken, which have been submitted to me on this motion, and more are still to be taken. Under these circumstances preliminary injunctions may go, but they will be suspended pending the decision of the cause in the Northern district, provided the defendants give proper security to pay to the complainant any damages or profits which may hereafter be awarded. | opinion_xml_harvard | 108 | 2022-11-26 13:59:05.258538+00 | 020lead | t | f | 8,808,841 | Ward | null | U | f | Published | 0 | Kryptok Co. v. Harris | Harris | KRYPTOK CO. v. HARRIS SAME v. STRAUS | <p>In Equity. Suits by the Kryptok Company against Moses I. Harris and against Jesse I. Straus and others, trading as R. H. Macy & Co. On motions for preliminary injunctions.</p> | null | null | <p>Patents (§ 306*) — Suit fob Infringement — Preliminary Injunction.</p> <p>• Preliminary injunctions against infringement of patents granted, in suits against dealers only, subject to suspension pending decision in a suit against the manufacturer on the giving of security by defendants.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 500, 501; Dec. Dig. § 306.*]</p> | null | null | null | Granted. | null | 66,074,960 | null | 0 | nysd | FD | t | S.D. New York | District Court, S.D. New York |
8,023,000 | MB. JUSTICE COOPER delivered the opinion of the court. This is an aetion in replevin by a mortgagee to recover possession of personal property covered by two chattel mortgages, of the agreed value of $1,000, alleged to have been unlawfully seized and wrongfully detained by the defendants. To the complaint defendants filed a general demurrer. Thereafter an order was made transferring the cause from the district court of Sheridan county to the district court of Bichland county, where the demurrer was overruled. Defendants answered, and a trial by the court followed. Plaintiff had judgment, and from it defendant Bennett appeals. Before the introduction of proof the defendants' interposed a general objection to the admission of any evidence, upon the ground that the complaint failed to state a cause of action. The objection was overruled, to which ruling defendants objected. To like rulings made during the trial and at its close exceptions were taken. In the supplemental brief of appellant it is urged that the [1] case of Harrington v. Stromberg-Mullins Co., 29 Mont. 157, 74 Pac. 413, is decisive of the point upon which this appeal turns, in that the complaint nowhere alleges the ownership of the notes and mortgages to be in the plaintiff. That case so nearly resembles the one at bar that the decision must be regarded as conclusive of this appeal. Writing the opinion for this court, Mr. Justice Holloway there said: “The only question for determination is: Does the complaint state facts sufficient to constitute a cause of action? The action is by a mortgagee, whose only interest in the property, so far as *693the complaint discloses, is the lien secured to a mortgagee out of possession. * * * The mere allegation that the first note was executed on August 1 and the second on October 15, 1901, does not imply continued ownership or nonpayment of the notes. * * * If the plaintiff was not the owner of the notes at the date of the alleged conversion, or if the notes had been paid, he could have suffered no injury; for a transfer of the notes would operate to transfer the mortgages, or payment of the notes would operate to discharge the mortgages, and the necessity for an allegation that the plaintiff was the owner and holder of the notes in question, and that they had not been paid, or, if paid in part, the amount then due upon them at the date of the alleged conversion, is apparent.” The rule there laid down has been approvd on two occasions since. (J. I. Case Threshing Machine Co. v. Simpson, 54 Mont. 316, 170 Pac. 12, and Young v. Bray, 54 Mont. 415, 170 Pac. 1044.) In J. I. Case Threshing Machine Co. v. Simpson, supra, a general demurrer upon the ground that the complaint did not state facts sufficient to constitute a cause of action was seasonably interposed, and for a like reason, upon the trial, objection was made to the admission of any testimony. There, as here, the complaint alleged that certain payments were made, and that a balance, principal and interest, still remained due upon the promissory notes sued upon, but there was no allegation that the plaintiff was the owner and holder. Each of the notes was made payable to “J. I. Case Threshing Machine Co. (Incorporated), or bearer.” Emphasizing the rule announced in the former case, Mr. Justice Holloway uses this language: “Assuming that the payee and plaintiff are the identical corporation, the complaint still fails to disclose that this action is prosecuted in the name of the real party in interest, as required by section 6477, Revised Codes. The complaint does not allege that the notes were made, executed or delivered to the plaintiff, or that plaintiff is the owner or holder thereof, or that the amount due upon the indebtedness is due to the plaintiff. Section 6573, Rev. Codes. * * * A holder of a negotiable instrument may maintain an action for its collection (see. 5899, Rev. Codes); but, to state a cause *694of action in favor of .plaintiff, it was necessary to disclose some right in it by virtue of which it maintains the action and upon the faith of which defendant, by paying the judgment, may be fully discharged of his obligation and relieved of the annoyance of further litigation at the hands of someone else who may hereafter appear in possession of the notes.”' The allegation of the complaint here merely is “that the plaintiff is and has been during all the times, hereinafter mentioned entitled 'to the immediate possession” of a stock of goods which the defendants seized and have wrongfully detained since the second day of March, 1914. This may be true in point of fact; but the substantial defect pointed out is neither aided by the pleadings of the opposite party nor was it remedied in the proof upon the trial. Whether the absence of that essential averment was due to oversight or design makes no difference. We should not be obliged to resort to far-fetched legal inferences to supply matters indispensable to the adjustment of a controversy between the parties to it. The defendants were entitled to be so confronted with the issue as to whether the plaintiff was the real party in interest or not that, if the question again became the subject of dispute between them, the judgment itself would be a complete answer thereto. In this case that requirement has not been met. The judgment and order are reversed. Reversed. Mr. Chief Justice Brantly and Associate Justices Holloway and Matthews concur. Mr. Justice Hurly, deeming himself disqualified, takes no part in the foregoing decision. | opinion_xml_harvard | 948 | 2022-09-09 02:27:50.823228+00 | 020lead | t | f | 8,065,104 | Brantly, Cooper, Himself, Holloway, Hurly, Matthews, Takes | null | U | f | Published | 0 | Perkins & Co. v. Duluth Brewing & Malting Co. | null | PERKINS & CO. v. DULUTH BREWING & MALTING CO. | <p>
Appeal from District Court, Bvchland County; C. C. Hurley, Judge.
</p> <p>Action by W. L. Perkins & Co. against the Duluth Brewing & Malting Company and others. Judgment for plaintiff and defendant Jack Bennett, Sheriff, appeals.</p> | null | null | <p>Conversion — Action by Chattel Mortgagee — Allegation of Ownership—C omplaint—Insufficiency.</p> <p>Conversion—Action by Chattel Mortgagee—Allegation of Ownership— Complaint—Insufficiency.</p> <p>1. Seld, that the complaint in an action to recover possession of chattels, covered by mortgage, alleged to have been unlawfully seized and wrongfully detained by defendants, was insufficient in the absence of an averment that plaintiff mortgagee was the owner and holder of the notes secured by the mortgage at the date of conversion.</p> | null | null | null | Beversed. | null | 65,160,673 | No. 4,230 | 0 | mont | S | t | Montana Supreme Court | Montana Supreme Court |
4,891,754 | Ogden, J. Appellant brought this suit against the appellee to recover a certain mule alleged to have been unlawfully seized by the latter, and for damages for the wrongful detention of the same. The defense set up is that the animal was lawfully seized, under and by virtue of a writ of execution which issued from a justice’s court, to satisfy a judgment rendered in said court against the plaintiff below. A judgment having been rendered against the plaintiff in the District Court, he has appealed. It was claimed in the court below, and is insisted upon . here, that the animal seized by the appellee was exempted from seizure and forced sale by the Constitution and laws of the State, and that therefore the seizure was unlawful and void. The act of the Legislature of 1870 (p. 127), passed in full conformity with the requirements of the Constitution, exempts to every family from forced sale, among other things, two horses; and as it was clearly established on the trial below that at the time of the seizure appellant was the head of a family and had but two horses, or rather but one horse and one mule, those animals were not subject to seizure or forced sale for debt, and these facts alone should have entitled the appellant to a recovery of the animal sued for, as the mule seized by the officer was one of those two. The wisdom of the law exempting certain property from forced sale cannot now be legally called in question, *201while it is the imperative duty of the courts to enforce that law whenever its humane provisions have been infracted. Property may be levied upon under an execution, and the officer making the levy will be protected so long as he is ignorant of the fact that the property is not subject to execution, but whenever the interposition of the powers of the court is invoked to protect the legitimate rights of a family, all exempted property may and should be restored at any time while the same is in the custody of the law. We think it was clearly established on the trial below that the animal sued for is exempted to the family of appellant from seizure or forced sale, and that the court erred in not rendering a judgment accordingly. But it may have been contended in the court below that as the statute does not specifically exempt a mule eo nomine, therefore the animal seized was subject to levy and sale for debt. We can hardly think the Legislature intended to use the word horses in that restricted sense. The object of the Legislature in passing the exemption law was manifestly to secure to each family a sure means of comfort and support, in the enjoyment of which they might feel secure. In the exemption of two horses the Legislature evidently intended to protect to a family animals to cultivate the soil, as well as to ride or drive; and we think it would be a very illiberal construction of the legislative intent to say, that the use of the word horses, in that connection, excluded geldings, mares or mules, since all are used for the same purpose. In the case of Cobbs v. Coleman, 14 Texas, 595, it is substantially said, that statutes should be liberally construed so as to meet the objects intended to be accomplished by the Legislature, and that a horse, as used in that connection, “was not reserved because he was a horse, but because of his useful qualities, and his almost *202indispensable services.” The usefulness and services of a mule are identical with that of a horse, at least so far as the exemption is concerned; and as in common parlance the mule is hardly distinguishable from the horse, we are of the opinion that the word horses, as used in that statute, includes mules also. This view of the case must dispose of the judgment of the District Court as rendered; and as the case will go back for another trial we deem it proper to say, the execution produced in evidence on the trial is wholly insufficient of itself to sustain the levy and seizure of the mule. In the first place, as there is no indorsement on the writ of the proper execution by the officer making the seizure, there is no evidence that the seizure had been made by virtue of that execution. Again, it is alleged by the plaintiff below that the execution was issued without a judgment to support it. This allegation threw the burden of proof upon the defendant, who would protect himself in his levy, to show, affirmatively, that there was such a judgment. But by the transcript from the justice’s docket he proves that no judgment was in fact rendered, and without a judgment to support the execution it is absolutely null and void, and can confer no authority upon the officer to make the levy. (Criswell v. Ragsdale, 18 Texas, 444; Bailey v. Knight, 8 Texas, 61; and Walker v. Emerson, 20 Texas, 710.) Indeed, under the authority of the cases cited the execution should not have been admitted in evidence until the judgment, upon which that execution had issued, had been established. We think the court erred in overruling the motion for a new trial, and the judgment is therefore reversed and the cause remanded. Reversed, and remanded. | opinion_xml_harvard | 906 | 2021-09-02 23:51:09.676539+00 | 020lead | t | f | 5,076,211 | Ogden | null | U | f | Published | 0 | Allison v. Brookshire | Allison | William Allison v. W. S. Brookshire | <p>Appeal from Williamson. Tried below before the Hon. E. B. Turner.</p> <p>The facts appear in the opinion of the court.</p> | null | null | <p>The law exempting certain property from forced sale was intended to secure to each family a means of support; and, since in the exemption of two horses it was intended to protect to a family animals to use, it cannot be construed to exclude geldings, mares or mules, all being used for the same purpose.</p> | null | null | null | null | null | 60,346,522 | null | 0 | tex | S | t | Texas Supreme Court | Texas Supreme Court |
4,896,497 | HOBBY, Judge. Appellants Harcisso, Jesus, Harcisso A., and Trinidad Rodriguez, and Jesus Lafuente in their own behalf, and the last named as next friend for Simon, Delfina, Adela, and Micuela Lafuente, minors, brought this action of tresspass to try title, on the 23d day of. March, 1887, to recover the land described in the petition as the league granted to Harcisso Rodriguez, as a colonist of De Leon’s colony, on March 25, 1833. The plaintiffs sought a recovery upon the alleged ground that the grantee Rodriguez died owning said land, and that they were his heirs. There was no controversy as to the fact that Harcisso Rodriguez was the original grantee, his title having issued on March 25, 1833, under the colonization law of March 25, 1825, and there was proof by plaintiffs of heirship. The defendants pleaded not guilty, the three, five, and ten years statutes of limitation, and set up specially title under a conditional deed or mortgage, an authentic act made by the grantee Harcisso Rodriguez to Phillip Dimitt on the 30th day of September, 1833, in consideration of $5000 advanced to Rodriguez, payable in six years, with 10 per cent interest. Defendants also set up a title from said Rodriguez to W. E. Jones, administrator of the estate of said Dimitt, made subsequent to the maturity of the conditional deed or mortgage; they pleaded also stale demand. *230John Ireland made himself a party defendant, as the warrantor of John V. Haynes. No issue appears to have been made on his plea, and the judgment being for defendants, ho further notice was taken of his appearance. The cause was tried by the court at the November Term, 1887, without a jury, and judgment was rendered that plaintiffs take nothing by their suit, from which this appeal is taken. The errors assigned raise, first, the question of the admissibility of the mortgage introduced in evidence by the defendants, and its validity as a title. The propositions of appellants in support of their assignment assailing this mortgage may be considered together. They are, that the mortgage was inadmissible on account of unexplained erasures. It was never assigned to defendants, nor was the debt on which it was based. It constituted no evidence of title. It was null and void, because in contravention, of the law in force when executed. It was barred by limitation, and was no evidence of notice of defendants’ claim. Such are the objections urged to -this instrument, which was an original Spanish mortgage, executed on the 30th day of September by Narcisso Rodriguez, before the officer, with assisting witnesses. It conveyed to Phillip Dimitt, as security for $5000 loaned to Rodriguez by the former, the league of land granted the latter under the colonization law of March 25, 1825, in case of the failure to pay that amount, with 10 per cent interest, within six years, which land it recited possession of had been given Rodriguez under the law, and the “documents of which grant were delivered as a proof of the good faith of the mortgagor.” The mortgagee was required to pay the State dues on the grant, and he was authorized to take possession. Attached to the original which accompanies the transcript in this case, by order of the court below, is a copy which it is agreed was correctly translated by the Spanish translator in the General Land Office. The. erasures referred to consist of a blot over what appears to be the character and a “word” or “name” which in the original follows immediately after the name “Felipe Dimitt.” The language of the instrument, would indicate that “Felipe Dimitt” some other person appeared before the officer with Rodriguez and made the loan to him. They are referred to as the “first named parties,” who “had made a loan to the third” party (Rodriguez) of five thousand dollars. Again, referring to the title issued to Rodriguez as a colonist under the law of March 25,1825, it recites, “the documents of which grant, as a proof of the good faith which he acts, he herewith delivers, the first named parties obliging themselves to pay the State dues,” etc. At the foot of the instrument, and having no connection with it, below the signatures of the grantor and the officer, and above those of the assisting witnesses, is the second erasure, consisting also of a blot over *231what appears to be two words or names, probably intended for assisting witnesses,, but blotted out. The general rules are well settled and familiar that on the production of an instrument if it appears to have been altered, it is incumbent on the party offering it in evidence to explain this appearance. If nothing appears to the contrary, the alteration, it is said, will be presumed to be contemporaneous with the execution of the instrument. “If any ground of suspicion is apparent upon the face of the instrument the law presumes nothing, but leaves the question of the time when, the person by whom, and the intent with which the alteration ivas made as matters of fact to be found by the jury, upon proofs to be adduced by the party offering it,” etc. 1 Greenl. on Ev., sec. 564. These principles are recognized in Park v. Glover, 23 Texas, 472. Although there is not perfect harmony in the cases on the subject, it is generally agreed that as fraud is not presumed, therefore if no peculiar circumstances of suspicion attach to an altered instrument the alteration is presumed to be innocent, or to have been made prior to its execution. 1 Greenl. on Ev., sec. 564, and note 1. In the case of Park v. Glover, supra, plaintiff offered in evidence a bond from James Dixon to John Glover, and a transfer or assignment of the bond by Glover, and a certified copy from the records of the county of the bond and assignment which was written on it. The bond was read. To the reading of the assignment which was written on the bond defendants objected on the ground that it showed on its face that it had been altered. It was as follows: “For value received I transfer all my right, etc., to the above land to W. A. Park. “July 16, 1844. John Glover.” “Signed and sealed in the presence of us. “Albert Martin Glover, “S. G. Gross.” The words “W. A. Park” and the words “signed and sealed in presence of us” appeared to have been written in black, while the other words were in blue ink. The certified copy from the county records, which ivas offered along with the original, showed that the alteration ivas made after the instrument had been recorded. The facts in the present case are altogether unlike those reported in the case cited. Applying the rule mentioned to the mortgage before us, the presumption would arise that the erasures were made contemporaneously with its execution. The officer’s certificate to the original instrument, which ivas made after the condition was broken, or default in the payment of the loan, strongly supports this view. It was made on February 12, 1840, more than forty years before the trial, and recited that Isidio Venavides, one of the assisting witnesses who participated in the execution of the instrument, appeared before the county clerk of Victo*232ria County and declared under oath that “ Rodriguez had executed it,” and that he was one of the witnesses. It was recorded in Victoria County on February 25, 1840, and possession and the payment of taxes was shown from that time to the trial, with unimportant intervals. Conceding the erasures to be as claimed by appellants, the mortgage evidently conveyed Rodriguez’s interest to the grantees; and the title having passed out of him his heirs could not recover in this action by virtue of an alleged title in their ancestor which, according to their own theory with respect to the erasures, was probably vested in Dimitt and some other person. It would be in this suit wholly immaterial to Rodriguez’s heirs who the joint mortgagee may have been with Dimitt, if any.. Constituting as it would an outstanding title in a third party, it would as effectually prevent a recovery by plaintiffs, whether that party be Dimitt alone or Dimitt and another. Dnder the rule that if there had been any ground for suspicion the law would presume nothing, leaving the question of the time, intent, etc., in making the erasure to the jury, the court trying the cause, in admitting the instrument, passed upon the good faith of the alteration or erasure. The mortgage is dated September 30, 1833. It is argued by appellants, however, that it was executed in February, 1833, and therefore null because in violation of the law prohibiting at that time the alienation of lands acquired under the law of March, 1825, prior to the issuance of final title, final title having as we have seen issued to Rodriguez on March 25, 1833. The recital in the mortgage of the delivery of the final title itself to the mortgagee is a sufficient reply to the contention that it was executed before that title was extended. In answer to the position that if it was executed in September, 1833, the alienation was equally in contravention of the law inhibiting it within less than six years from, the issuance of final title, it is only necessary to say that if the mortgage or pledge be such an alienation as was contemplated by the law, it has been held in several cases in this State that although a contract which can not be enforced for the reason assigned by appellants—that is, because it was made in violation of law—the heirs of the grantee can not recover upon their legal title against parties claiming under such contract as heirs without refunding the consideration received by their ancestor. Ledyard v. Brown, 27 Texas, 404. The evidence showed that possession was taken of the land under the mortgage by Dimitt and those holding under him, and such being the case, they could not be dispossessed until the debt was paid; and this right was wholly unaffected by the lapse of time or limitation. In Hannay v. Thompson, 14 Texas, 144, it was held that where the mortgagee, as in this case, was placed in possession under the mortgage, and by its terms entitled to retain it, the mortgagor could not recover *233possession after condition broken without discharging the' debt for which it was given. There was no occasion for notice to appellants of defendants’ claim,to the land, and the objection that the mortgage was no notice of such claim is without merit. The appellants claim as heirs. If notice was essential, the possession authorized by the mortgage, followed by actual continued occupancy of Dimitt’s heirs and those claiming under them, was sufficient. To the objections that the land was not described, nor was there any assignment of the mortgage, the answer is, that the authentic act or mortgage made no attempt to describe it. The title itself accompanied it, and was referred to and contained the description. “Where the mortgagee is in possession, his conveyance of the mortgaged property is regarded as passing his interest in the mortgage, although no mention in terms is made of the debt.” Thomas on Mort., sec. 808. The objection to the partition decrees of the Probate courts of Guadalupe and Victoria counties, because not recorded in Jackson County, where the land is situated, were properly overruled. These decrees were made by the Probate courts referred to at different times between the years 1845 and 1850, and during the administration of the estate of Phillip Dimitt; and they show a distribution and division of the land .among his heirs, and that it was inventoried by his administrator, W. E. Jones, who was also guardian of some of'the heirs, as the property of the estate, and that it was managed and controlled by him as such administrator. They ivere not offered as showing in themselves title to the land under which the defendants claim, but as indicating acts of ownership under the title from Rodriguez. The statute (art. 4339, Rev. Stats.) requiring substantially that when such decrees are offered as evidence of title they must have been recorded in the county where the land is, has no application to decrees offered as these were. It is assigned as error that the witness Texas Dimit-t testified, “That the undisputed fact is that said land has been and is the property of said Dimitt for the past 45 or 46 years,” and that this evidence should have been excluded. If it was error it would furnish no ground for reversal, as the cause was tried by the court and the evidence, excluding this, was so full and satisfactory upon the issue of the ownership of and claim to the land by Dimitt and those claiming under him for that length of time, that no other decree could have been entered by the court than was rendered. The expression objected to was preceded by a lengthy statement of this witness showing possession, acts of control and ownership •over the land by the Dimitt heirs for many years, and that he, although 48 years old at the time of trial, had never heard of any claim asserted adversely until a short time before suit was brought. This testimony "was substantially the same as other witnesses testifying upon this issue. We have replied to the most important assignments, and the others we *234think do not require discussion, as none require, in our opinion, a reversal of the judgment. The facts in this case are substantially that the original grantee Rodriguez after the Texas revolution went to Mexico, and there resided until about 1842 or 1843. It appears from the testimony of Colonel Seguin, who was intimate with him, that he told him he owned no land in Texas. His widow returned to San Antonio, and died there just after “the rebellion.” The heirs, with the exception of one perhaps, have all lived in Texas—in San Antonio, Austin, Ellis, and Grimes counties. Hone of them rendered the land for taxes or claimed it until a short time before this suit. Judge White, who resided in Victoria County since 1831, had never heard of any claim adverse to Dimitt’s title. He was agent for Ireland, who purchased from Dimitt’s heirs, and the only defect in his title was that some of the deeds were not recorded in Jackson County. Ireland took possession by tenant in 1880, and actual possession was taken by the defendants, who-have held it up to the trial. Ireland purchased in 1870. Texas P. Dimitt, who was 48 years old in September, 1887, testified that as far back as he could remember the Dimitts owned, controlled, and claimed the league. He, as agent for the other Dimitt heirs, was in possession from 1866 to 1870. It was controlled by W. E. Jones, Dimitt’s administrator and the guardian of his children, as shown by the probate-records referred to, and claimed it as belonging to the Dimitt estate from about 1845 to 1850. It was in possession of J. H. Wood for Dimitt, who-placed Wood in possession, and so held by him from 1841 to 1845; Terrell purchased Wood’s improvements and took possession of it as the property of the Dimitt heirs. The Comptroller’s statement shows the payment of taxes on the land from 1846 by Dimitt and those claiming under him,, with the exception of about six years. The original mortgage, as stated, was recorded in 1840, and authorized the mortgagee, Dimitt, to take possession. In addition to these facts the-evidence showed that a title had been executed by Harcisso Rodriguez toW. E. J ones, the administrator of Dimitt’s estate, which was in the handwriting A. H. Phillips. This deed was last seen in the hands of A. H. Phillips. Among the papers'of the estate of Dimitt found in possession-of the administrator’s (W. E. Jones’) son was a package, upon which was endorsed by J. J. Thornton, the attorney for the estate, the following:: “See A. II. Phillips and get deed of Rodriguez, left by Jones.” These facts we think authorized the finding of the court, which was in substance that such a title had existed. The proper judgment was rendered by the court in this case, and a further consideration of the assignments would be useless. The judgment should be affirmed. Affirmed. Adopted February 4, 1890. | opinion_xml_harvard | 2,759 | 2021-09-02 23:58:45.773647+00 | 020lead | t | f | 5,080,847 | Hobby | null | U | f | Published | 0 | Rodriguez v. Haynes | Rodriguez | Narcisso Rodriguez v. John V. Haynes | <p>Appeal from Jackson. Tried below before Hon. W. H. Burkhart.</p> | null | null | <p>1. Erasures in Ancient Instrument.—On the production of an instrument, if it appears to have been altered, it is incumbent upon the party offering it in evidence to explain this appearance. If nothing appears to the contrary the alteration, it is said, will be presumed to be contemporaneous with the execution of the instrument. If any ground of suspicion is apparent upon the face of the instrument the law presumes nothing, but leaves the question of the time when, the person by whom, and the intent with which the alteration was made as matters of fact to be found by the jury upon proofs to be adduced by the party offering it.</p> <p>3. Case in Judgment—Presumption—Erasures.—A mortgage regularly executed in 1833 for a league of land granted to the mortgagor, a colonist, purported to have been made to secure a loan of $5000 for six years, the mortgagee to pay dues and taxes and to have possession. After the maturity of the debt the instrument was proven up (in 1840) by one of the witnesses. The mortgagor left the country, and in Mexico it was shown he disclaimed owning land in Texas. Possession was taken and held by the mortgagee, and continued by his heirs and their assigns up to the trial. Held, that the presumption of law was that erasures patent upon the face of the instrument were made at its delivery.</p> <p>3. Same.—But without the presumption of law in its favor the instrument evidently conveyed the land to either the named mortgagee, or to him and another whose name may have been erased, on which hypothesis the heirs of the mortgagor would take no interest in the land.</p> <p>4. Same.—But if the erasures were grounds of suspicion, the finding of the court passing upon the entire evidence produced in support of the instrument would be conclusive in finding its validity.</p> <p>5. Recitals.—The recitals of the particulars of the grant, and that the documents evidencing it were delivered with the mortgage, would be conclusive that the conveyance was made subsequent to the grant.</p> <p>6. Executed Contract in Violation of Law.—The heirs of aigrantor in a conveyance in contravention of law can not recover the land by reason of their legal title against one in possession under such contract without .refunding the money received by their ancestor.</p> <p>7. Mortgagee in Possession.—Where the mortgagee by the terms of the instrument is placed in possession of the land so mortgaged, the mortgagor can not recover possession after the condition broken without payment of the debt secured thereby.</p> <p>8. Notice of Claim.—The possession of the land would operate as notice of the ■claim to it by thevmortgagee in possession.</p> <p>9. Probate Proceedings in Partition—Evidence.—Where probate proceedings in partition are offered in evidence to show continual claim to the land in controversy, and not as title, it is not necessary that they be recorded in the county where offered in evidence.</p> <p>10. Witness—General Conclusions.—Where a case was on trial before the judge ■without a jury it is no ground for reversal that a witness testified uo general conclusions, especially when the witness had carefully testified to facts evidencing such conclusion.</p> <p>11. Circumstantial Evidence of Deed.—See facts held sufficient to support a finding by the court of the existence of a deed..</p> | null | null | null | null | null | 60,351,158 | No. 2579 | 0 | tex | S | t | Texas Supreme Court | Texas Supreme Court |
794,528 | 449 F.3d 954 Albino PEREZ, Petitioner-Appellant, v. Terry ROSARIO, Respondent-Appellee. No. 04-15279. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 6, 2004. Submission Deferred December 8, 2005. Resubmitted May 22, 2006. Filed May 22, 2006. Kent A. Russell, Russell and Russell, San Francisco, CA, argued the cause for the petitioner-appellant and was on the briefs. Christopher W. Grove, Deputy Attorney General of the State of California, San Francisco, CA, argued the cause for the respondent-appellee; Bill Lockyer, Attorney General of the State of California, was on the brief for the respondent-appellee. Appeal from the United States District Court for the Northern District of California, William H. Alsup, District Judge, Presiding. D.C. No. CV-02-05237-WHA. Before DIARMUID F. O'SCANNLAIN, ROBERT E. COWEN, * and CARLOS T. BEA, Circuit Judges. O'SCANNLAIN, Circuit Judge. 1 In this habeas corpus appeal, we must decide whether an attorney's alleged faulty advice to his criminal defendant client during the plea bargaining process in state court constitutes ineffective assistance of counsel. 2 * In 1987 Albino Perez's girlfriend left him for John Hernandez. Perez took a hammer to Hernandez and broke his arm before he was pulled off. 3 * Eight years later, Hernandez was driving his Honda Prelude home from running an errand, sometime between 7:00 and 7:30 PM on April 16, 1995, when he observed a dark-colored BMW stopped in the street. When he pulled forward to investigate, he saw Perez in the driver's seat, wearing a blue-knit cap. Perez then pulled out a black semi-automatic handgun. Hernandez sped away while Perez fired several shots. Hernandez escaped unhurt but his car was riddled with bullet holes. 4 The police searched the area and found ten-millimeter shell casings and a ten-millimeter bullet. They went to Perez's house but were unable to find a BMW there, outside or in the garage. Two days later, they returned with an arrest warrant and found a dark-blue BMW parked in front, which they towed because it would not start. The police also found a ten-millimeter bullet and a blue knit cap in Perez's room. Perez was charged with assault with a deadly weapon. 5 Perez turned down a plea bargain offer and trial began in September of 1996. John Hernandez testified as the prosecution's key witness. The prosecution also presented forensic evidence of gun-shot residue in Perez's BMW and had a ballistics expert testify that the markings on the bullet found in Perez's bedroom were similar to those found on the casings at the scene of the shooting. Another expert witness testified that he had examined the BMW and it could have been operable the night of the shooting. 6 In turn, Perez presented testimony that the BMW in his possession was inoperable during the time of the shooting and called a witness whose testimony provided circumstantial evidence that two unknown Asian men were the real culprits. 7 The state court jury found Perez guilty of assault with a deadly weapon and other crimes. The trial court eventually found that Perez's previous felonies qualified him for a three-strikes sentence and sentenced him to a prison term of 47 years to life. B 8 In March of 1997, counsel filed a motion for a new trial, based on the testimony of Gilbert Hernandez that John Hernandez, his brother, had admitted that he was not really sure who had shot at him. The trial court rejected the motion because Gilbert, a felon, was not credible. 9 In October of 1997, counsel then filed a second motion for a new trial, based on testimony from Monico Lopez giving circumstantial evidence that Jose Villanueva was the real shooter. This motion was also denied. 10 Perez changed attorneys and filed a third motion for a new trial, which was also denied. C 11 Perez then filed an appeal which was ultimately denied. Simultaneously, he petitioned the California Court of Appeal for a state writ of habeas corpus, claiming ineffective assistance of counsel on numerous grounds. He also submitted various supporting declarations. In one made in 1999, Perez gave his own account ("the first declaration"). He claimed that Jose Villanueva had come to him in prison before the trial and confessed to the shooting but had made him promise not to tell anyone. After the State of California responded that Perez's account did little to show ineffective assistance of counsel, Perez submitted a second declaration. In that declaration Perez added that he had told prior counsel about the Villanueva confession and had planned on testifying about it but prior counsel closed without calling him. Additional declarations were submitted, including one from a man named Jim Ford who said he accompanied Villanueva during his confession and corroborated the account in Perez's first declaration. Perez also sought but ultimately did not receive a declaration from his prior counsel. 12 The California Court of Appeal found these declarations incredible and denied Perez's habeas petition, including his request for an evidentiary hearing on the various ineffective assistance claims. The Supreme Court of California summarily denied Perez's petition to it. D 13 In due course Perez filed his petition for writ of habeas corpus in the federal district court, which denied it. Perez's timely appeal is now here. II 14 As the primary basis for his ineffective assistance of counsel claim, Perez avers that if his counsel had properly advised him that he faced a life-sentence under California's three-strikes law, he would not have rejected the plea bargain. Under the first prong of the ineffective assistance of counsel test found in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), Perez must show that his prior counsel's advice during the plea bargaining process "fell below an objective standard of reasonableness." See id. at 688, 104 S.Ct. 2052 . In evaluating Perez's claims under this prong, we must indulge, and we must permit the California state courts to indulge, "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." See id. at 689, 104 S.Ct. 2052 . 15 Under the second prong of the Strickland test Perez must show that his prior counsel's mistakes resulted in prejudice. Generally, there must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 . 16 The record shows that, at a pre-trial hearing in July of 1995, the prosecutor mistakenly came to the conclusion that one of Perez's previous convictions did not count as a strike. 1 The trial judge reinforced the error by agreeing with the prosecutor. Based on that error, the prosecutor then offered a plea bargain of fourteen years. In his 1999 declaration, Perez stated that when he and prior counsel went aside immediately thereafter to discuss the bargain, prior counsel failed to inform him that the prosecutor and the judge were mistaken and that Perez really faced a life sentence if convicted because the conviction would be his third strike. Instead, Perez claimed, prior counsel advised him to turn down the plea bargain. Prior counsel felt that fourteen years was too long a sentence for a conviction that was not a third strike. Perez stated that if properly advised that he faced a three-strikes life sentence, he would have taken a few days to think the plea bargain over and then would have accepted it. 17 The California state court had previously rejected this claim on two grounds. First, it held that Perez's uncorroborated after-the-fact declaration was alone legally insufficient to establish that he would have accepted the plea bargain if offered one. 2 Second, it made a pair of factual findings to which we must ordinarily defer: that prior counsel knew during the preliminary hearing that this conviction could potentially be Perez's third strike, and that he had already formed the strategic intention of challenging the validity of the prior strikes, if the issue arose. 18 Here, the district court also made two relevant findings of fact: that the prosecutor would have realized his mistake and withdrawn the plea bargain offer while Perez was taking a few days to think it over, and that the state trial judge would have refused to accept the plea, since Perez would have refused to admit guilt. 19 Any of these four findings, if sustained, would be enough to warrant denying Perez's claim. Because Perez contests these findings, see United States v. Howard, 381 F.3d 873 , 879 (9th Cir.2004) (reminding that evidentiary hearings can be in order "once a petitioner asserts a more detailed claim, about which there are controverted facts"), we will instead consider the unusual legal question presented by this case: whether Perez can validly claim ineffective assistance of counsel when the legal mistake that allegedly denied him effective assistance of counsel in the plea bargaining process was the same mistake that led to his being offered a plea bargain in the first place. 20 We conclude that he cannot. Even if we construe the contested facts in Perez's favor, we are doubtful that it was unreasonable, incompetent, or ineffective for prior counsel to rely in the short-term on the agreement of both the prosecution and the judge that the legal situation was more favorable to his client than he had supposed. 21 We are also persuaded that Perez cannot demonstrate prejudice in the unique circumstances of this case. To prove prejudice in the normal case, a petitioner must only show that but for counsel's bad advice the outcome of the plea bargaining would have been different. See Hill v. Lockhart, 474 U.S. 52 , 56-59, 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985) (finding prejudice where counsel's bad advice caused petitioner to accept a plea bargain); Nunes v. Mueller, 350 F.3d 1045 , 1052-53 (9th Cir. 2003) (finding prejudice where counsel's bad advice caused petitioner to reject a plea bargain). This is not the normal case: the plea bargain offer was made only because of the prosecutor's mistaken belief that Perez's prior convictions were not strikes under California's three strikes law. Perez does not dispute that the prosecution would not have offered the plea bargain at all if it had not been operating under a mistake. 22 Under these unique circumstances, a failure to capitalize on the plea bargain, though outcome determinative, may not satisfy the prejudice prong of the Strickland test. The Supreme Court has identified "situations in which it would be unjust to characterize the likelihood of a different outcome as legitimate `prejudice.'" Williams v. Taylor, 529 U.S. 362 , 391-92, 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000), referring to Lockhart v. Fretwell, 506 U.S. 364 , 113 S.Ct. 838 , 122 L.Ed.2d 180 (1993), which the Court characterized as a case in which "we concluded that, given the overriding interest in fundamental fairness, the likelihood of a different outcome attributable to an incorrect interpretation of the law should be regarded as a potential `windfall' to the defendant rather than the legitimate `prejudice' contemplated by our opinion in Strickland." Williams, 529 U.S. at 392 , 120 S.Ct. 1495 . In Lockhart, Fretwell's lawyer had failed to make an objection to the admission of certain evidence when he could have under a then-prevailing Eighth Circuit precedent. 506 U.S. at 366-67 , 113 S.Ct. 838 . The Eighth Circuit later realized that the precedent was incorrect and overruled it. Id. at 368, 113 S.Ct. 838 . The Supreme Court concluded that the lawyer's failure to capitalize on the Eighth Circuit's mistake did not prejudice Fretwell, because he had no inherent right to benefit from it. Id. at 369-71, 113 S.Ct. 838 . 23 Like Fretwell, Perez is also claiming that his attorney should have helped him capitalize on the prosecutor's legal error. Indeed, Perez's case is even less meritorious. The mistaken interpretation of law from which Perez could have benefitted did not have the dignity of a formal legal ruling, let alone one from a federal court of appeals. The real possibility that the prosecutor would have realized his mistake and retracted the plea bargain before Perez was able to accept it also makes this case even more compelling than Lockhart. It should follow that because Perez has no intrinsic right to have legal errors made in his behalf, in rejecting the plea bargain Perez was simply not "deprived . . . of any substantive or procedural right to which the law entitled him." Williams, 529 U.S. at 392-93 , 120 S.Ct. 1495 . Since Perez was not entitled to a plea bargain offer made on mistaken legal assumptions, it should follow that any attorney ineffectiveness that led him to reject the plea bargain did not prejudice him. 24 We have never specifically addressed whether a plea bargain offer made on false legal assumptions would be controlled by Lockhart, but we have relied on Lockhart in many contexts. See, e.g., United States v. Recio, 371 F.3d 1093 , 1109 (9th Cir.2004) (denying an ineffective assistance of counsel claim where counsel failed to object to a jury instruction that would have then been considered faulty but had since been rehabilitated). However, prior counsel may have erred during the plea bargaining process and regardless whether prior counsel's errors caused his client to turn down the plea bargain, Perez did not suffer any prejudice. III 25 Perez makes three other specific allegations of attorney incompetence. He alleges that his prior counsel (1) failed to interview and to call witnesses who could testify that Jose Villanueva was the real shooter, (2) failed to introduce evidence showing that Rick Adams, who lived in the neighborhood, owned a dark-colored BMW which was loaned to Villanueva at the time of the shooting, and (3) prevented him from testifying that Jose Villanueva had confessed to the shooting. 26 * The common factual basis of these claims is found in Perez's two declarations, and in supporting declarations from Jim Ford and Rick Adams. In his first declaration, made in 1999, Perez stated that in June of 1995 Jose Villanueva and Jim Ford visited him in jail. Villanueva there (1) confessed that he had done the shooting, (2) described meeting Monico Lopez just prior to it, showing him the gun, and telling Lopez that he, Villanueva, was going to "handle his business", (3) apparently revealed that he had been driving the dark-colored BMW belonging to Rick Adams at the time, and (4) asked Perez for a year's silence. Perez stated that he promised the year's silence. Perez then stated "I told my lawyer . . . that I knew who the shooter was and that he had asked me for a year. I also told [him] that I would testify to this if . . . Villanueva did not come forward in time. I was willing to testify after the year went by, and had I testified, I would have brought this up. However, my [lawyer] never prepared me to take the stand and never called me to testify. . . ." On the basis of this last testimony, Perez explained that he was entitled to relief because his prior counsel had failed to "obtain [his] informed consent to waiving his right to testify in his own defense." 27 The State of California responded that Perez's testimony did not establish that he had told his counsel Villanueva's name, or the substance of his confession, or anything else that would have plausibly required prior counsel to make any further investigations, and that attorneys were not required to obtain informed consent. 28 In his second declaration, made in 2000, Perez stated that in June of 1996 Jose Villanueva came to visit Perez in jail along with Jim Ford and confessed. Perez again stated that he informed prior counsel that he knew the shooter but had promised to wait a year. Perez then stated, for the first time, that a few weeks later he found out Jose Villanueva had died, at which time Perez had given his prior counsel full details of the confession and asked to testify. Prior counsel allegedly tried to dissuade him because prior counsel thought the testimony would "`upset the judge' . . . who was [otherwise] favorable because she was against the 3-strikes law." According to his second declaration, Perez insisted on testifying and prior counsel apparently assented. But at trial, prior counsel rested without calling Perez to the stand. Perez was "shocked and upset." Eventually, Perez added, because of prior counsel's refusal to follow up on the Villanueva story, Perez switched attorneys. 29 In Jim Ford's supporting declaration, he stated that he had read Perez's first account of the Villanueva confession and that it was accurate. In Rick Adams's supporting declaration, he stated that he had lent his dark-colored BMW to Jose Villanueva on the day of the shooting. B 30 Without holding an evidentiary hearing, the California Court of Appeal rejected all three ineffective assistance claims as not credible, especially as to the additional details mentioned for the first time in Perez's second declaration. The California court found Perez's counsel had not been told about the Jose Villanueva confession and Perez had never demanded that he be allowed to testify. 31 * These state court findings of fact are presumed correct by 28 U.S.C. § 2254 (e)(1), unless they can be rebutted by clear and convincing evidence. See Taylor v. Maddox, 366 F.3d 992 ,1000 (9th Cir.2004). Such evidence is not in the record. The only evidence that Perez told his prior counsel about the alleged Jose Villanueva episode, or that Perez insisted on testifying, is Perez's unsupported statement, offered four years after the trial in response to a state habeas filing which pointed out that Perez's first version of the episode strongly implied that Perez had not told his prior counsel about Jose Villanueva or insisted on testifying. 32 State court findings of fact are not presumed correct, however, by 28 U.S.C. § 2254 (e)(1), where "there was an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d)(1); see Taylor v. Maddox, 366 F.3d at 1000 . In many circumstances, a state court's determination of the facts without an evidentiary hearing creates a presumption of unreasonableness. Id. at 1001. We do not read Maddox or AEDPA to require an evidentiary hearing in all circumstances. 33 Decisions as to the reasonableness of requiring an evidentiary hearing must "appropriately accommodate concerns of . . . judicial economy. . . ." Keeney v. Tamayo-Reyes, 504 U.S. 1 , 8, 112 S.Ct. 1715 , 118 L.Ed.2d 318 (1992) (explaining the Court's reasons for restricting the circumstances in which an evidentiary hearing would be required in district court). Such concern for judicial economy underlies the statutes and precedents holding that evidentiary hearings and similar judicial processes are unnecessary in the unusual case where the allegations to be proven at the hearing are extremely unlikely. In the typical formulations, they are unnecessary where the allegations are said to be incredible in light of the record, or, which is much the same thing, when the record already before the court is said to establish a fact conclusively. See, e.g., Davis v. Woodford, 384 F.3d 628 , 644, 646-47 (9th Cir.2004) (in a § 2254 case, holding that a district court did not err in denying an evidentiary hearing to establish petitioner's incompetence during the state trial when "we cannot glean evidence from the record to support actual incompetence" and petitioner's proffered evidence was flimsy); Downs v. Hoyt, 232 F.3d 1031 , 1041 (9th Cir.2000) (affirming the district court's denial of an evidentiary hearing in a § 2254 case where the district court had allowed a year of discovery, citing Cardwell v. Greene, 152 F.3d 331 , 338-39 (4th Cir.1998) ("We have long held that the need for an evidentiary hearing may be obviated by . . . expansion of the record")). 3 We are satisfied that state court fact determinations are reasonable without an evidentiary hearing, as here, where the record conclusively establishes a fact or where petitioner's factual allegations are entirely without credibility. See Nunes v. Mueller, 350 F.3d 1045 , 1055 (9th Cir.2003) (acknowledging that "there may be instances where the state court can determine without a hearing that a criminal defendant's allegations are entirely without credibility"). Where there is no likelihood that an evidentiary hearing would have affected the determination of the state court, its failure to hold one does not make such determination unreasonable. 2 34 We review the record to see whether Perez's account — that Jose Villanueva confessed to him, and, especially, that Perez then told his attorney and demanded to be put on the stand — is so incredible that there is no likelihood that an evidentiary hearing would have produced evidence affecting the state court determination. At trial, Perez's counsel did not attempt to implicate Jose Villanueva, but did introduce evidence that two other men committed the offense. Indeed, defense counsel tried to show that Perez could not have committed the crime and offered, in an attempt to put the blame elsewhere, a witness who offered circumstantial evidence strongly implicating two unknown Asian males. The witness testified that on the evening in question, while he was walking near the area where the shooting occurred, a BMW with two Asian men, one of whom was wearing a knit cap, drove by. It was followed by a Honda Prelude. Moments later, he heard gun-shots from the direction the cars had driven. 35 After trial, the defense filed a motion for a new trial based on Monico Lopez's declaration implicating Jose Villanueva. Again no mention was made of Jose Villanueva's purported confession to Perez, nor Jim Ford's corroboration of that confession. Perez does not explain why prior counsel would have forgone corroborating Monico Lopez's account with Perez's story at this point. 3 36 Nor did Perez's new attorney mention the Villanueva confession. In his third motion for a new trial, the new attorney presented a variety of evidence to indicate that John Hernandez was uncertain about the identity of the shooter, along with a statement from Monico Lopez again suggesting that the shooter was really Jose Villanueva. Yet the new attorney also did not offer into evidence Perez's statement that Villanueva confessed to him, or Jim Ford's corroboration, or Rick Adams's statement that he had loaned a dark-colored BMW to Villanueva. All this after Perez had just switched attorneys because his prior counsel had dropped the ball on Villanueva. We must then either believe that both Perez's prior counsel and his new attorney were sublimely incompetent, and that Perez did nothing to protest, or we must inevitably conclude that Perez's account is not credible. 37 The Perez declarations were made well after the events they purport to describe, as much as five years. They describe rather outrageous conduct on the part of prior counsel, for the first time. All of the testimony implicating Jose Villanueva dates to well after his death in 1995 or 1996. In his first declaration, Perez has Villanueva not only confessing to the shooting but going out of his way to mention his encounter with Monico Lopez just prior to it. According to Perez, Villanueva described the encounter in terms that happen to track Monico Lopez's testimony extraordinarily closely. Monico Lopez had declared that on the evening of the shooting Jose Villanueva was driving a dark-colored BMW, pulled up next to him, showed him a semi-automatic handgun, indicated that he was going to "handle" someone he had seen in the area where the shooting would occur, and invited Lopez to come along, which invitation Lopez declined. Perez described Villanueva as mentioning that he had pulled up next to Lopez, told him he was going to "handle his business" in the area where the shooting would occur, and invited Lopez to come along, which invitation Lopez declined. 38 Additionally, the first declaration strongly suggested that Perez did not tell his prior counsel Villanueva's name and the details of his alleged confession: "I told my lawyer . . . that I knew who the shooter was and that he had asked me for a year. I also told [my lawyer] that I would testify to this if . . . Villanueva did not come forward in time. I was willing to testify after the year went by, and had I testified, I would have brought this up." When the State of California used this point in one of its state habeas briefs, Perez submitted a second declaration in which he asserted that he indeed told his prior counsel all the details, albeit in a different conversation. (Perez did not contest the state's assertion that in the initial conversation Perez told his counsel he knew who the shooter was without letting counsel know the shooter's identity). 39 In his second declaration, Perez asserted that the latter conversation occurred a few weeks after the first. In his first declaration, Perez does not mention the latter conversation at all, or any change in his willingness to testify. Instead, he simply states that "I was willing to testify after the year went by." But in his second declaration, Perez relates that a few weeks after the initial conversation with his attorney, he found out that Villanueva was dead, promptly went to his attorney, revealed everything, and quarreled with his attorney about whether he should testify or not. The omission from the first declaration of all this information, if it were true, is startling. 4 40 In his first declaration Perez said that Villanueva came to see him in June of 1995. In the second declaration Perez said that Villanueva came in June of 1996. If we are to believe the first declaration, then Perez was allegedly informed of Jose Villanueva's confession before his plea bargain hearing in July of 1995. Yet Perez would have us believe that, despite hearing Jose Villanueva's confession and his promise to confess publicly in a year, Perez would have accepted a plea bargain offer of 14 years in prison. If we are to believe the second declaration, then Perez is in the position of, just two months before trial, promising Villanueva to wait a year before making any statements and telling his attorney he'll be happy to testify himself if Villanueva has not come forward within the year. 41 Perez's first declaration gives no indication that his prior counsel kept him from the stand against his will. Yet when the State of California emphasized this point in its response brief in the state habeas proceedings, Perez's second declaration described for the first time the argument with prior counsel and the behavior by counsel in keeping him from the stand that "shocked and upset" him (but not enough, apparently, to have included it in the first declaration). 5 42 In his first declaration Perez suggested that he did not take an active role in insisting that he be put on the stand: "I was willing to testify after the year went by, and had I testified, I would have brought this up. However, my [lawyer] never prepared me to take the stand and never called me to testify . . . ." Indeed, in the accompanying habeas petition, Perez merely alleged that his prior counsel had failed to obtain his informed consent before not having him testify. But in his second declaration, Perez recounted insisting that he be allowed to testify: "I responded to [prior counsel] that I needed to tell the judge the truth, and insisted that I wanted to testify, and that if it would make the judge angry, so be it." Perez stated that his attorney finally seemed to assent. 43 In his second declaration, Perez explained that he insisted on testifying and was "shocked and upset" when his attorney did not call him to the stand. Yet in a letter written to the trial judge after the trial, Perez indicated that his decision not to testify was voluntary. There is no hint of shock or upset. "Belive [sic] me," Perez wrote, "I wanted to take the stand but was advised not to." 44 Each of these numerous reasons for discrediting the story of Villanueva's confession, and especially of Perez's subsequent interactions with his attorney, is by itself telling. Combined, they make his story entirely doubtful. We therefore confidently defer to the California court's finding, without evidentiary hearing, that Perez's account is incredible. IV 45 Perez also urges that the district court erred in failing to grant an evidentiary hearing. 4 We review for abuse of discretion. Villafuerte v. Stewart, 111 F.3d 616 , 633 (9th Cir.1997). That discretion, however, is constrained. Congress has specified circumstances in which a district court may not hold an evidentiary hearing. 28 U.S.C. § 2254 (e)(2) (stating that, with exceptions, "[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim"). There are also judicially created constraints. See Townsend v. Sain, 372 U.S. 293 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963) (listing circumstances in which district courts should generally hold an evidentiary hearing). 46 Perez requested evidentiary hearings in the state court; the district court was thus not barred from conducting a hearing. See Baja v. Ducharme, 187 F.3d 1075 , 1078-79 (9th Cir.1999). Nor was it required to grant one. Where a state court has already made the relevant findings of fact, district court evidentiary hearings would have no purpose if not to produce new evidence possibly contradicting those state court findings. Perez's allegations were still entirely incredible, and no further showings were made to suggest any real possibility of such a contradiction. The district court could not have abused its discretion in denying the request for an evidentiary hearing where, as here, clear and convincing proof was required. See Davis, 384 F.3d at 644, 646-47 ; Downs, 232 F.3d at1041 (9th Cir.2000) (affirming the district court's denial of a § 2254 evidentiary hearing request where the district court had allowed a year of discovery); see also Tejada, 941 F.2d at 1559 (upholding a district court refusal to conduct a § 2254 evidentiary hearing in part because "[a] petitioner is not entitled to an evidentiary hearing . . . when his claims are . . . contentions that in the face of the record are wholly incredible."). V 47 The judgment of the district court denying Perez's petition for writ of habeas corpus is, therefore, AFFIRMED. 5 Notes: * The Honorable Robert E. Cowen, Senior United States Circuit Judge for the Third Circuit, sitting by designation 1 All parties agree that the prosecutor was wrong 2 There appears to be some uncertainty in this circuit as to the objective reasonableness of a state court's holding that uncorroborated, after-the-fact avowals are legally insufficient to establish that a petitioner would have accepted a plea bargain See, e.g., In re Alvernaz, 2 Cal.4th 924 , 8 Cal.Rptr.2d 713 , 830 P.2d 747 , 756 (1992) ("[A] defendant's self-serving statement — after trial, conviction, and sentence — that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant's burden of proof as to prejudice, and must be corroborated independently by objective evidence. A contrary holding would lead to an unchecked flow of easily fabricated claims."). On the one hand, Turner v. Calderon, 281 F.3d 851 (9th Cir. 2002), made the comparable holding that "Turner's self-serving statement, made years later, that Mr. Ellery told him that `this was not a death penalty case' is insufficient to establish that Turner was unaware of the potential of a death verdict." Id. at 881; see also United States v. Allen, 153 F.3d 1037 , 1041 (9th Cir.1998) (citing Cuppett v. Duckworth, 8 F.3d 1132 , 1139 (7th Cir.1993) (en banc) ("[S]elf-serving statements by a defendant that his conviction was constitutionally infirm are insufficient to overcome the presumption of regularity accorded state convictions.")). On the other hand, Nunes v. Mueller, 350 F.3d 1045 (9th Cir.2003), overrode a similar state court action, though in the face of the dissent's vigorous defense of Alvernaz, id. at 1057-60 (Graber, J., dissenting), the Nunes court explained that though it thought the Alvernaz holding was probably not objectively reasonable, it was not definitively ruling on the question, see id. at 1055 n. 6. Here, we do not reach the objective reasonableness issue. 3 These instances are representative of many others See, e.g., 28 U.S.C. § 2255 (requiring federal district courts to consider collateral attacks on federal sentences unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief"); Blackledge v. Allison, 431 U.S. 63 , 76, 97 S.Ct. 1621 , 52 L.Ed.2d 136 (1977) (permitting summary dismissal of habeas petitions from state prisoners where the claims in the petition are "palpably incredible" or "patently frivolous or false" (citation omitted)); United States v. Howard, 381 F.3d 873 , 879 (9th Cir.2004) ("When a § 2255 petitioner's claim of incompetence due to the ingestion of drugs is conclusory or inherently incredible, a district court has the discretion to dismiss the petition without a hearing." (emphasis added)); United States v. Angulo, 4 F.3d 843 , 847 (9th Cir.1993) ("An evidentiary hearing is not mandated every time there is an allegation of jury misconduct or bias. . . . the court must consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source." (citation omitted)); Tejada v. Dugger, 941 F.2d 1551 , 1559 (11th Cir.1991) (in a § 2254 case, holding that "[a] petitioner is not entitled to an evidentiary hearing . . . when his claims are . . . contentions that in the face of the record are wholly incredible."). 4 Even though deference was owed to the state court's findings of facts, a federal evidentiary hearing could still be held to see if those findings could be overcome by clear and convincing proof See 28 U.S.C. § 2254 (e)(1). 5 Perez's other claims are addressed in a memorandum disposition filed concurrently herewith | opinion_html_with_citations | 5,707 | 2012-04-19 03:16:36+00 | 010combined | f | f | 794,528 | Bea, Carlos, Cowen, Diarmuid, O'Scannlain, Robert | null | RU | f | Published | 0 | Albino Perez v. Terry Rosario | null | Albino PEREZ, Petitioner-Appellant, v. Terry ROSARIO, Respondent-Appellee | null | null | <parties id="b978-24">
Albino PEREZ, Petitioner-Appellant, v. Terry ROSARIO, Respondent-Appellee.
</parties><docketnumber id="AyC">
No. 04-15279.
</docketnumber><br><court id="b978-26">
United States Court of Appeals, Ninth Circuit.
</court><br><otherdate id="b978-27">
Argued and Submitted Dec. 6, 2004.
</otherdate><otherdate id="AZHt">
Submission Deferred Dec. 8, 2005.
</otherdate><otherdate id="AY3">
Resubmitted May 22, 2006.
</otherdate><br><decisiondate id="b978-28">
Filed May 22, 2006.
</decisiondate><br><attorneys id="b979-23">
<span citation-index="1" class="star-pagination" label="955">
*955
</span>
Kent A. Russell, Russell and Russell, San Francisco, CA, argued the cause for the petitioner-appellant and was on the briefs.
</attorneys><br><attorneys id="b979-24">
Christopher W. Grove, Deputy Attorney General of the State of California, San Francisco, CA, argued the cause for the respondent-appellee; Bill Lockyer, Attorney General of the State of California, was on the brief for the respondent-appellee.
</attorneys><br><judges id="b980-4">
<span citation-index="1" class="star-pagination" label="956">
*956
</span>
Before DIARMUID F. O’SCANNLAIN, ROBERT E. COWEN,
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
and CARLOS T. BEA, Circuit Judges.
</judges><footnote label="1">
<p id="b981-8">
. All parties agree that the prosecutor was wrong.
</p>
</footnote><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b980-12">
The Honorable Robert E. Cowen, Senior United States Circuit Judge for the Third Circuit, sitting by designation.
</p>
</div></div> | null | null | null | null | null | null | 736,223 | 04-15279 | 0 | ca9 | F | t | Ninth Circuit | Court of Appeals for the Ninth Circuit |
6,254,514 | Opinion by Mr. Chief Justice Brown, The pole lines of the Erie County Electric Company and the Mutual Telephone Company are on the east side of Sassafras street, in the City of Erie. At a certain point on these lines the telephone company erected a pole, which passed between the wires of the electric company. It extended fifty feet above the ground. The poles of i the electric company were but thirty feet high, its wires being lower than those of the telephone company. After erecting the high pole the telephone company attached wires of the electric company to it by a bracket, the nearest wire being but three and one-half inches from the pole. In June, 1911, Herman Phillips, a lineman employed by the telephone company, ascended the pole in question to repair a broken telephone wire and remedy' some other trouble on the line. He climbed up the pole until his left shoulder came in contact with the appellant’s high tension wire attached to the bracket, when he was shocked and fell to the ground, sustaining injuries from which he died. His widow brought suit against the electric company, claiming that the death of her husband was due to its negligence. The appellee was notified by it to appear and defend in the suit, as the appellant would hold it liable for any damages recovered. The appellee refused to appear; the jury returned a verdict for the plaintiff, upon which judgment was subsequently entered. On appeal .to this court it was affirmed: Phillips v. Erie County Electric Company, 249 Pa. 445. The appellant, having paid the amount of the judgment, interest and costs, brought this suit to collect from the appellee the amount paid, with interest and necessary expenses incurred in preparing and defending at the trial. Its cause of action, as set forth in its statement, is, “The plaintiff was not guilty of any act of negligence by reason *184or in consequence of which, the said Herman Gr. Phillips was killed; its whole line was in perfect condition and the death occurred solely by reason of the negligence of the said Mutual Telephone Company in carelessly attaching and maintaining the wire of the said plaintiff to the pole of the said Mutual Telephone Company, in the manner above described, and in not leaving space between said wire and the pole of the said defendant to permit any person lawfully ascending the said pole to do so without coming in contact with said wire.” The plaintiff offered in evidence as its first testimony, in support of its claim against the appellee, the entire record in the action brought against it by Vera M. Phillips. By that record it has bound itself, and it is not now “at liberty to deny the principle, upon which it appears, from the face of the record itself, that the action was decided, and the recovery had against [it], or, in other words, to prove that the recovery was wrong”: Weckerly v. Lutheran Congregation, 3 Rawle 172. Turning to that record, what does it disclose? The negligence charged against the defendant as the proximate cause of the death of plaintiff’s husband was the uninsulated wire of the defendant, and, turning to the charge of the trial judge, as is proper, to ascertain what question was submitted to the jury (Follansbee v. Walker et al., 74 Pa. 306), it clearly appears that the charge of negligence upon which they were to pass was the “lack of insulation” by the electric company of its wire at the point where the deceased came in contact with it. It was the duty of that company to have its wire there properly insulated, for it is presumed to have known that not only its employees, but those of the telephone company, in the lawful performance of their duties, might climb up the pole: Fitzgerald v. Edison Electric Illuminating Company, 200 Pa. 540; Hipple v. Edison Electric Illuminating Co., 240 Pa. 91; and, if the wire had been properly insulated, no injury could have resulted from contact with it. *185Nothing that the appellee did is a basis for the claim for indemnity made against it by the appellant. It had placed its poles on Sassafras street as directed by the proper municipal authorities, who had reserved the right to grant the franchise to it to occupy the street jointly with the appellant, and, prior to the death of Phillips, no question was raised by the appellant as to appellee’s right to maintain the poles there, with the bracket attached to the one which he climbed. The nonsuit was properly entered, and the judgment appealed from is affirmed. | opinion_xml_harvard | 778 | 2022-02-17 21:26:12.990807+00 | 020lead | t | f | 6,385,378 | Brown, Frazer, Kephart, Simpson, Walling | null | U | f | Published | 2 | Erie Comity Electric Co. v. Mutual Telephone Co. | null | Erie Comity Electric Co. v. Mutual Telephone Co. | <p>Appeal, No. 34, Jan. T., 1919, by plaintiff, from order of C. P. Erie Co., Sept. T., 1915, No. 263, refusing to take off nonsuit in case of Erie County Electric Company v. Mutual Telephone Company.</p> <p>Trespass to recover the amount of a judgment which plaintiff was compelled to pay. Before Criswell, P. J., specially presiding.</p> <p>The court entered a compulsory nonsuit, which it subsequently refused to take off. Plaintiff appealed.</p> <p>.Error assigned was refusal to take off nonsuit.</p> | null | null | null | null | null | null | Affirmed. | <p>Negligence — Electric companies — Telephone companies — Non-insulated wire — Indemnity—Record of former suit.</p> <p>Where a telephone company and an electric company maintain pole lines along the same side of a street, and the telephone company attaches a wire of the electric company by a bracket to one of its own poles, and thereafter a lineman of the telephone company is killed by coming in contact with the wire which was uninsulated, and his widow recovers damages in a suit against the electric light company, the latter company, having refused to intervene in the damage suit, cannot recover the amount of such damages from the telephone company on the ground of its negligence in attaching the wire to a telephone pole, where the record of the damage suit offered in evidence by the electric company shows that the judgment recovered therein was based on a finding that the electric company had been negligent in permitting the wire to remain uninsulated.</p> | 63,040,515 | Appeal, No. 34 | 0 | pa | S | t | Supreme Court of Pennsylvania | Supreme Court of Pennsylvania |
7,638,249 | Affirmed. | opinion_xml_harvard | 1 | 2022-07-29 20:41:18.230386+00 | 020lead | t | f | 7,702,809 | null | null | U | f | Published | 0 | J.W. v. Dep't of Children & Families | J.W. | J.W., The Father v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program | null | null | null | null | null | null | null | null | null | 64,706,502 | No. 4D18-3316 | 0 | fladistctapp | SA | t | District Court of Appeal of Florida | District Court of Appeal of Florida |
6,815,344 | Sims, J., after making the foregoing statement, delivered the following opinion of the court: The questions presented by the assignments of error-will, so far as necessary, be passed upon in their order as-stated below. The question upon which we feel constrained to reverse the case is as follows: 1. Did the court err in giving the verbal instruction, to the jury set forth above concerning the standard by which they should be guided in endeavoring to agree on a verdict? The question must be answered in the affirmative. It is elementary that the meeting and concurrence of the several minds of all of the jurors is essential to a valid verdict. It is true, as stated in the opinion, of this court delivered by Judge Burks in the Sims Case, 134 Va. 736, 115 S. E. 382: “* * that the jury room is no place for pride of opinion and obstinacy, * * that it is the duty of jurors to discuss the evidence in a spirit of fairness and candor with each other and with open minds to give careful consideration to the views of their fellows, and if it can be done, without a sacrifice of conscientious convictions, agree up.on a verdict.” But this means that the views of a minority, as well as the views of the majority of the jurors, should be given careful consideration by their fellows. The majority view should not.prevail merely because it has a majority in support of it, as the jury *749were told, in substance, by the instruction in question. It should not prevail unless each and all of the jurors are in fact convinced that such view is supported by the evidence which has been introduced before them, and by the law. The verdict should have the assent of all of the jurors because it is considered by them to be based on the law and the evidence; not merely because a majority of the jurors so consider it. This is the standard, and the sole standard, by which the parties affected have the right to have verdicts found. Any other standard must necessarily result in chance verdicts which can but tend to bring jury trial into discredit. As said in Goodsell v. Seeley, 46 Mich. 623, 10 N. W. 44, 41 Am. Rep. 183, “The law contemplates that they (the jury) shall, by their decisions, harmonize their views if possible, but not that they shall compromise, divide and yield for the mere purpose of an agreement. The sentiment or notion which permits this tends to bring jury trial into discredit and to convert it into a lottery. It was no doubt desirable to the public and to the parties that the jurors should agree if they could do so without sacrificing what any one of them believed were the just rights of the parties; but not otherwise.” As said in Richardson v. Coleman, 131 Ind. 210, 29 N. E. 909, 31 Am. St. Rep. 429: “The law * * expects every juror to exercise his individual judgment, and that when a verdict is agreed to it will be the verdict of each individual juror. In arriving at a verdict, a juror should not indulge in any undue pride of personal opinion, and he should not be unreasonable or obstinate, and he should give due consideration to the views and opinions of other jurors, and listen to their arguments with a willingness to be convinced, and to yield to their views if induced to believe they are cor*750reet; but the law does not expect, nor does it tolerate, the agreement by a juror upon a verdict unless he is convinced that it is right; in other words, unless it is his verdict—a verdict which his conscience approves, and he, under oath, after a full consideration, believes to be right.” 2. The other questions raised by the assignments of error concern the action of the trial court in certain rulings in the admission of certain testimony; in giving certain instructions as asked for by the Commonwealth; and, in modifying instruction No. 1, asked for by the accused, by inserting the words “at the store door” after the word “altercation” in the tenth line of the instruction as offered as it appears in the printed record— which must be ruled upon so far as the-same questions seem likely to arise on a new trial. As none of these assignments present any novel question, we deem it sufficient to say that we find no error in the action of the court in the particulars mentioned in the preceding paragraph; except that we think that the insertion of the words “at the store door” aforesaid should have been made after the word “deceased,” in the eighth line of the aforesaid instruction No. 1, instead of being inserted where it was, so as to 'make the meaning less unmistakable; and except that the ruling of the court excluding testimony as to declarations of the deceased to the effect that the deceased had in fact caught the accused robbing the store may not have been as clearly expressed as might have been. Hence, if instruction No. 1 is again offered on a new trial, it should have the modification mentioned inserted at the place which we think preferable, as above stated; and, if the question again arises, the court should not admit testimony as to declarations of the deceased to the effect that he had in fact caught the ac*751cused robbing the store. However, if again offered on a new trial, testimony to the effect that the deceased prior to the day of the shooting made declarations charging the accused with having stolen shoes from the store will be admissible because tending to show the animus of the deceased, and who brought on the difficulty, as correctly ruled on the former trial. We will add that we do.not regard instruction No. 8, given at the request of the Commonwealth, as a model instruction; but, as applicable to the theory of the Commonwealth based on certain evidence introduced on the former trial, it was substantially correct. 3. As the evidence was such as that, to say the least of it in favor of the accused, it left room for honest difference of opinion on the part of the jurors based on the consideration of the law and the evidence, we think that the giving of the verbal instruction above mentioned was harmful error; and we therefore feel constrained to set aside the verdict, annul the judgment under review, and grant a new trial, which will be accordingly done. Reversed and new trial granted. | opinion_xml_harvard | 1,107 | 2022-07-23 19:00:08.670385+00 | 020lead | t | f | 6,919,714 | Sims | null | U | f | Published | 0 | Counts v. Commonwealth | Counts | Harless Counts v. Commonwealth | null | null | null | null | null | null | null | null | null | 63,907,990 | null | 0 | va | S | t | Supreme Court of Virginia | Supreme Court of Virginia |
9,541,671 | Kaplan, J. The New England Home for Little Wanderers (Home), which had had custody of the unmarried mothers child from about the time of its birth ten months previously, filed a petition in the Probate *632Court for Suffolk County on April 23, 1973, to dispense with the need for the mother’s consent to a subsequent adoption of the child. The petition was under G. L. c. 210, § 3, as amended through St. 1972, c. 800, § 2. Subsections (b) and (c) of § 3 allow a licensed child care agency to commence such a proceeding with regard to any child in its “care or custody”; the court is to approve the petition if it finds that “the best interests of the child” will be served thereby, and in making this determination the court “shall consider the ability, capacity, fitness and readiness of the child’s parents ... to assume parental responsibility, and shall also consider the plan proposed by the . . . agency initiating the petition.”1 In this case, *633the Home’s plan was to sponsor adoption of the child by a specific family. After a hearing at which the mother was represented and the facts were brought out, the probate judge granted the Home’s petition. The mother appeals, attacking the court’s application of § 3 as well as the constitutionality of that statute. The mother’s major argument is that, since the Home’s custody of the child originated in a voluntary consent given by her, and since she later changed her mind and now wishes to keep the child, the court must decide the case, not by applying the standard of “best interests of the child” set out in § 3, but rather by bringing in the parental “unfitness” test used.in suits under the guardianship laws to remove children from the custody of their parents. See G. L. c. 201, § 5.2 In approaching the mother’s contentions, it will be well first to set out the facts of the case as they appear from the probate judge’s report of material facts; the evidence is not reported. Finding she was pregnant, the mother entered the Crittenton Hastings House. There a social worker from the Home discussed with her possible alternatives for caring for the expected child. The mother said she planned to have the child adopted. Foster care was explained to her as an alternative which could provide time for her to make permanent plans,for the child. After the birth of the child on June 28, 1972, the mother returned to the Crittenton for a short time and while there gave written con*634sent to the Home’s assuming care and custody of the child; she had by that time met the prospective foster parents with whom the Home was to place the child. When she gave birth the mother was thirty years old and unmarried. Her mother was dead. She lived with her retired seventy-year old father and two unmarried brothers; her father was dependent for support on social security benefits and contributions from the brothers. Her employment since leaving high school after the second year had mostly been in factories. She returned to work in August, 1972, after the baby was born, but was laid off in April, 1973; at the time of the Probate Court hearing in January, 1974, she was still unemployed and was receiving unemployment compensation. She had a bank account of between $500 and $1,000, paid $18 a week toward the foster care of her child, had a car, and paid for the boarding of a horse which she owned. During the period between the birth of the baby and filing of the petition by the Home, the mother consulted with the Home’s social worker as well as with a family counselor. Her action, however, was vacillating and indecisive; no plan emerged with any definiteness that offered a realistic means by which she could raise and care for her child. Within a month of the baby’s birth she seemed to reverse her previous wish and expressed a desire to keep the child. But she could only suggest •vaguely that she would have a friend care for the child or that she would go on welfare; she had no job at the time, her father was refusing to allow her to bring the child into his household, and she had no crib or clothing for the child. About the same time she failed to show up at a meeting with the foster parents that was set to allow her to see the child as she requested. In August, by contrast, she made an unannounced visit to the child. The following month the social worker again met with her to discuss plans for the child, but although she was employed by this time her thoughts remained vague and unrealistic. Later in the fall, she had an attorney write a *635letter to the Home saying she wished the child returned, but this was never followed up. In November she again failed to appear at a meeting arranged with the foster parents so that she could see the child; again this was followed by an unannounced visit. She expressed unhappiness with her job to her family Counselor and mentioned she would prefer selling, perhaps cars or real estate, or working with animals. She thought of raising and selling Burmese kittens. An appointment was made for her to see a person who raised animals, but she failed to keep the appointment. By .the time of the hearing on the Home’s petition, she had lost her job. Her father now said he was willing to allow the baby into the household. He had thought, however, that his daughter could not cope with a baby. The mother’s plan as expressed at the hearing was to get a job and have her father or a babysitter care for the child. On these facts, the judge concluded that the mother “took an unrealistic approach to her problems and never worked out a practical way to implement her plans for herself or the child.” The judge therefore found that it was “in the best interest of . . . [the child]” to grant the petition to dispense with parental consent to adoption, so that the child could be adopted by the family the Home had selected, a young couple in their early thirties, eight years married, with another adopted child.3 In her attack on the application of the “best interests” test to her case, the mother points to the fact that the Home’s custody of the child, the basis of the § 3 action, *636derived from her consent to temporary foster care, and argues that once she withdrew that consent and sought her child’s return there was no basis for a § 3 action. She raises the possibility, if the “best interests” test were applied literally in cases of voluntary custody, that a family obliged by temporary adversity such as illness to place its child in foster care might then be deprived of the child against its will if the agency decided that another family could better raise the child. She argues that the Legislature could not so have intended to disregard the ties between the child and the natural parent, and that indeed it would be unconstitutional to do so. Hence she would have us conclude that § 3’s “best interests” test can only be applied when the parent has already been deprived of custody of the child, by court action, and that in cases where custody is based on voluntary surrender the consent of the parent may be dispensed with only on a showing of parental “unfitness” like that required to deprive a parent of custody under the guardianship statute, G. L. c. 201, § 5. She adds the complaint that she was not fully informed of the possible consequences when she gave consent to foster care and so she denies there was a “custody” to satisfy § 3. Finally, there are arguments that the § 3 “best interests” standard is unconstitutionally vague and that it violates the equal protection clause of the Constitution, in that it improperly discriminates against the poor, who are more likely to need foster care for their children. While we find force in the mother’s arguments, we believe they are based essentially on a misunderstanding of the relationship between the notions of “best interests of the child” and parental “unfitness.” The mother perceives the two criteria or tests as separate and distinct, with each to be applied in certain clearly defined circumstances. We think that the relationship is more subtle, that elements of parental “unfitness” figure strongly in the “best interests” test, while elements of “best interests of the child” weigh in any consideration of whether a *637parent is fit to have custody of his child. When the interconnection or overlap is appreciated, the mothers case on the present facts is seen to be unavailing. To trace the development of the standards: Adoptions by consent of the parents were recognized in the Commonwealth at least by the time of St. 1851, c. 324, which described procedures for such adoptions. Promptly afterwards came St. 1853, c. 402, which created the first exception to the rule that adoption required the consent of living parents; it dispensed with consent where the parent was “insane.” In 1859, by St. 1859, c. 61, consent was made unnecessary where the parent had “wilfully deserted and neglected to provide for the proper care and maintenance . . . for one year”; this was eventually codified as part of G. L. c. 210, § 3, which also specified other grounds for dispensing with parental consent, such as current imprisonment of the parent for more than three years. Chapter 593, § 1, of the Acts of 1953, codified as G. L. c. 210, § 3A, first provided for an independent proceeding, prior to adoption proceedings proper, at which it could be determined whether parental consent was to be necessary for the adoption. Its purpose was to facilitate and expedite the process of adoption of children being held in temporary foster care. See the Department of Public Welfare recommendations, 1953 House Doc. No. 118, accompanying their draft bill,. 1953 House Doc. No. 124. The proceeding could be brought by the Department of Public Welfare or any appropriate child care agency having custody of the child. But the act was silent as to the standards to be applied in deciding when consent could be dispensed with, and in Consent to Adoption of a Minor, 345 Mass. 706 (1963), this court held that, in the absence of any other indication in the statute, the conditions set out in § 3 for direct adoptions were still to be met; specifically, the court held that a finding of parental “unsuitability,” without a finding of *638wilful desertion or neglect for a year, was not an adequate basis for a decree dispensing with the parental consent. The department had evidently not intended the § 3 conditions to be read into the independent § 3A proceeding. Therefore the department immediately sponsored St. 1964, c. 425, which provided that consent could be dispensed with “if the court finds that the best interests of the child will be served by placement for adoption”; the court was not to be restricted by the § 3 conditions, but was to give “due regard to the ability, capacity and fitness of the child’s parents . . . and to the plans proposed by the department or other agency initiating such petition.” This statute thus broadened the factors the court could consider in deciding whether to proceed over the parent’s objections; unsuitability besides desertion or neglect was now clearly an available ground. In fact this was not a sharp or precipitate departure from the past, for our court had already begun a gradual process of developing a “best interests” approach to § 3 itself.4 The last step in the evolution of the adoption laws took *639place in 1972 with the passage of St. 1972, c. 800.5 The same basic standard was made to apply to direct proceedings for adoption as to the independent proceeding, and the two proceedings were both brought within § 3. To the factors “ability, capacity and fitness” was added “readiness ... to assume parental responsibility,” and a “presumption” was established that “the best interests of the child” would be served by dispensing with the need for parental consent when the child has been in the custody of the department or agency for more than one year (irrespective of incidental parental visits).6 The revised § 3 in its entirety was made to apply only to petitions by those already having custody of the child. It will be observed from this brief history that the explicit introduction of the “best interests” standard into the adoption statutes was occasioned by a judicial decision disallowing parental “unsuitability” as the ground for dispensing with consent to adoption. In writing the statute the department and the Legislature were concerned primarily with cases where unfit parents (although not within the categories of old § 3) were blocking the adoption of their children; we do not think they meant to allow fit parents to be deprived of their children, even if they had temporarily given up custody, unless some factor such as lengthy separation and a corresponding growth in the ties between the child and the prospective adoptive parents indicated that the child would be hurt by being returned to the natural parents. *640Nor have we found any cases where fit parents who have voluntarily given up temporary custody for appropriate reasons lost their children to adoption by reference to the “best interests” standard simply because another set of parents was found better qualified. We pass to the second part of our inquiry, a consideration of the law governing the transfer of custody of children under the guardianship law. By G. L. c. 201, § 1, the Probate Court may, “if it appears necessary or convenient” appoint guardians of minors; by § 5 (deriving from St. 1873, c. 367), the guardian may have custody of the child, though the parents are alive and do not consent, if the court finds the parents “unfit” to have custody.7 In Richards v. Forrest, 278 Mass. 547, 553 (1932), our court held that “the first and paramount duty of courts” in passing on custody cases under that law “is to consult the welfare of the child.” Further, it recognized that “certain parents might be fit to bring up one child but unfit to bring up another.” In Stinson v. Meegan, 318 Mass. 459, 463. (1945), we added that “the meaning of unfit’ is not confined to the moral character or personal qualities of the parent,” but “embraces other *641circumstances,” particularly those that “involve the welfare of the child himself.” The injection of considerations of the child’s welfare here thus roughly paralleled that in the adoption situation.8 Both Richards and Stinson, however, declined to find “unfitness” sufficient to deprive a parent of custody simply on the basis of a long separation of parent and child, and the growth of close ties between the child and the person seeking custody; the cases held that some negative findings with regard to the actual fitness of the natural parents to raise the child were necessary. That the language of “best interests” in the cases under the guardianship statute was not rhetoric but had real significance, however, was demonstrated by Wilkins v. Wilkins, 324 Mass. 261 (1949), which weighed heavily the fact that the child loved its guardian and distrusted and had nightmares about its parents. These circumstances, together with the emotional shock to the child were it to be uprooted, and the lack of experience or aptitude of the natural parents in dealing with the child, persuaded the court that the best interests of the child would be served by granting custody to the guardian with whom the child was residing. Thus by 1970 we could write in Kauch, petitioners, 358 Mass. 327, 329 (1970), that “ [njearly all the relevant cases have considered the best interests of the child in determining whether the parents are unfit.” Our result, therefore, is that the tests “best interests of the child” in the adoption statute and “unfitness of the parent” in the guardianship statute reflect different degrees of emphasis on the same factors, that the tests are not separate and distinct but cognate and connected. It remains to tie the teachings of the historical development to the present case. In invoking the “best interests of the child” the Legislature did not intend to disregard the ties between the child and its natural *642parent, or to threaten a satisfactory family with loss of children because by reason of temporary adversity they are placed in foster care.9 A parent cannot be deprived unless some affirmative reason is shown for doing so such as a finding of a serious problem with that parent, or of a separation so long as to permit very strong bonds to develop between the child and the prospective adoptive parents. When such a reason appears, however, it can hardly be argued that the Legislature is powerless to interfere with the parent-child relationship to promote the welfare of the child. Its power to do so — and this includes the power to act without perfect wisdom — was settled at least by the time of Prince v. Massachusetts, 321 U. S. 158 (1944) (State may prohibit parent’s use of child to sell religious pamphlets). See also Commonwealth v. Brasher, 359 Mass. 550 (1971) (State may try minors for crime of being “stubborn children”). As to the technical argument that once the mother withdrew her consent to custody there was no basis for a § 3 action, we note, first, that there is nothing in the statute to suggest that custody means anything other than physical custody, whatever the original basis for it. If it be argued that this opens the way to adoptions over the objections of parents from whom custody is being wrongfully withheld, the response is that the present is not such a case. The mother indeed now opposes the petition, but that in itself cannot amount to an effective withdrawal of consent to custody; if it were, most of the field of action of § 3 would disappear, since it would become inapplica*643ble except when the parent had already permanently lost custody by court action finding the parent unfit. Rather, if parental opposition to custody is by itself ever to constitute an effective bar to prosecution of a § 3 proceeding, a question we need not now decide, it must at least be consistently and vigorously pressed before the proceeding is brought. On the record before us, such opposition was not and cannot be found in the vacillating behavior of the mother over the ten-month period between the child’s birth and the bringing of this petition, when added to her failure and indeed her inability to take positive action toward creating an environment in which a child could be placed with any substantial hope of future stability or happiness.10 In the absence of such opposition, the “best interests” standard properly applied. As to the claim of lack of comprehension on the mother’s part of the possible legal consequences of placing her child in foster care, with possible resulting undermining of the basis of the § 3 proceeding, we of course agree that it is desirable to inform a parent of the full meaning of a decision to place a child in foster care, and, *644further, to explain the possible alternatives, including, for example, use of day care facilities. But if there was any shortcoming here, it was not critical. In our view, the basis of the decree dispensing with parental consent here was not simply the initial voluntary placement, but the failure, over a ten-month period, to take effective steps to demonstrate either a consistent desire for custody or an ability to care properly for the child if given custody. Had the mother, upon her initial change of heart in July, acted consistently in seeking to regain her child and planning effectively for it, we think she would and should have prevailed in any proceeding brought by the department to dispense with her consent to adoption, despite her signed agreement placing the child in temporary foster care, and regardless of the comparative qualifications of an alternative family.11 Our conclusion is that a § 3 proceeding was appropriate in this case, and the result correct. As we have suggested, the “best interests” standard of § 3 is a flexible one; the weight to be accorded the several considerations under it will vary with the circumstances. The decision *645in the present case was not an easy one. Here parent and child had been separated for only ten months when the proceeding was brought; this period was too short to be a decisive factor, particularly as the record does not state that the. foster parents are also to be the adoptive parents.12 We find most significant, however, the judge’s conclusion that the mother “took an unrealistic approach to her problems and never worked out a practical way to implement her plans for herself or the child.” The trial judge had the opportunity to observe the parties close up, and her findings are entitled to much respect. See Guardianship of a Minor, 1 Mass. App. Ct. 392 (1973).13 In the circumstances we do not think the result would be any different had the analysis been conducted in the language of the “unfitness” standard, as the mother urges it should have been. In reaching our conclusion to support the judge’s finding we wish to point out with emphasis that we do not lend any approval to dispensing with parental consent for other than substantial reasons. The attitude to be taken by the department, the agencies, and the courts as well, was defined by the Legislature in G. L. c. 119, § 1, which declares it “to be the policy of this commonwealth to direct its efforts, first, to the strengthening and encouragement of family life for the protection and care of children; to assist and encourage the use by any family of all available resources to this end; and to provide substitute care of children only when the family itself or the *646resources available to the family are unable to provide the necessary care and protection.” Thus parents should be given ample opportunity to demonstrate an ability to provide proper care for their children before a § 3 proceeding is brought. Precipitate attempts to force adoption over parental objection simply because foster care has occurred are not consistent with the law and must be avoided. It is a condition of dispensing with parental consent that the parents be shown to have grievous shortcomings or handicaps that would put the child’s welfare in the family milieu much at hazard. On the constitutional plane, we see no merit in the argument that the “best interests” standard is overly vague. Section 3 itself sets out factors to be taken into account in deciding if the standard is met. Moreover, as we have indicated in this opinion, the course of the legislative development of the standard and the associated case law provide further definition. Standards of mathematical precision are neither possible nor desirable in this field; much must be left to the trial judge’s experience and judgment. Underlying each case are predictions as to the possible future development of a child, and these are beyond truly accurate forecast. In similar situations statutes with unavoidable penumbras of indefiniteness have been upheld, and we think this one, too, is valid. See Commonwealth v. Brasher, 359 Mass. 550 (1974) (“stubborn child”); A Juvenile, petitioner, 364 Mass. 531 (1974) (statute allowing trial of juvenile if “the interests of the public” require it); Guardianship of a Minor, 1 Mass. App. Ct. 392 (1973) (“unfitness” in guardianship custody statute). Nor do we find a violation of the equal protection clause. If the argument be made that under § 3 State interposition in the parent-child relationship will occur more frequently in poor families than in wealthy ones, we can say no more than that the statute’s classification is not directly based on wealth, and a differential effect in practice on families with varying incomes occurs also *647with many valid laws. The overriding constitutional basis for the law is the State’s interest in protecting those children found on a reasonable basis to be in need of adoption. Decree affirmed. “Section 3. (a) Whenever a petition for adoption is filed by a person having the care or custody of a child, the consent of the . . . [parents] shall not be required if: — ... (ii) the court hearing the petition finds that the allowance of the petition is in the best interests of the child, as defined in paragraph (c). (b) The department of public welfare or any licensed child care agency may commence a proceeding, independent of a petition for adoption, in the probate court ... to dispense with the need for consent of . . . [a parent] to the adoption of a child in the care or custody of said department or agency. . . . The court shall issue a decree dispensing with the need for said consent . . . for adoption of such child subsequently sponsored by said department or agency if it finds that the best interests of the child as defined in paragraph (c) will be served by said decree. ...(c) In determining whether the best interests of the child will be served by granting a petition for adoption without requiring certain consent as permitted under paragraph (a), the court shall consider the ability, capacity, fitness and readiness of the child’s parents ... to assume parental responsibility and shall also consider the ability, capacity, fitness and readiness of the petitioners under paragraph (a) to assume such responsibilities. In determining whether the best interests of the child will be served by issuing a decree dispensing with the need of consent as permitted under paragraph (b), the court shall consider the ability, capacity, fitness and readiness of the child’s parents ... to assume parental responsibility, and shall also consider the plan proposed by the department or other agency initiating the petition. If said child has been in the care of the department or a licensed child care agency for more than one year, in each case irrespective of incidental communications or visits from his parents . . . there shall be a presumption that the best interests of the child will be served by granting a petition for *633adoption as permitted under paragraph (a) or by issuing a decree dispensing with the need for consent as permitted under paragraph (by “Section 5. .. . The probate court may, upon the written consent of the parents or surviving parent, order that the guardian shall have . . . custody; and may so order if, upon a hearing and after such notice to the parents or surviving parent as it may order, it finds such parents, jointly, or the surviving parent, unfit to have such custody; or if it finds one of them unfit to have such custody; or if it finds one of them unfit therefor and the other files in court his or her written consent to such order. ...” An investigation of the background of that family had furnished convincing evidence that they were suitable as adoptive parents. The decree itself of course did not consummate the adoption., A fresh petition in the Probate Court for adoption under G. L. c. 210, § 1, remains necessary, see also § 5A (requiring report by Department of Public Welfare or adoption agency on chüd and adoptive parents), but the § 2 requirement for parental consent was eliminated by the proceeding^ here in question, thus making the petition for adoption a simple proceeding. For example, in Adoption of a Minor, 343 Mass. 292 (1961), an aunt who had had custody of a child since a week after birth petitioned to adopt the child despite the objections of the mother. Though the mother was worthy to be a parent, we said expressly that the successive amendments of § 3 disclosed “a clear intent on the part of the Legislature to relax the requirement of parental consent to adoption when the withholding of consent by a neglectful parent would frustrate the furtherance of the best interests of the child.” Id. at 298. We accordingly took into account the bad effect on the child of breaking the bonds of affection between the aunt and the child, and approved the aunt’s adoption of the child. See Adoption of a Minor, 357 Mass. 490, 492 (1970); Adoption of a Minor, 362 Mass. 882 (1972). See also Adoption of a Minor, 338 Mass. 635 (1959) (applying “best interests” test to dispute over whether consent to adoption was necessary by unmarried father of child who later married mother); Erickson v. Raspperry, 320 Mass. 333 (1946) (applying “best interests” test to decide whether consent to adoption could be revoked). This 1972 legislation was part of a larger program of reform developed by the Governor’s Commission on Adoption and Foster Care which included the creation of an Office for Children. See the Governor’s message of February 9, 1972, House Doc. No. 5131. Also to be consulted is Professor Gruber’s influential later report to the Commission, Foster Home Care in Massachusetts (1973), as well as the Commission’s report, Governor’s Commission on Adoption and Foster Care, Report to Governor Sargent, March 14, 1973. The “presumption” was not relied on by the probate judge in her report in the present case and does not figure on this appeal. Alternatively, G. L. c. 119, § 23 (C), as appearing in St. 1970, c. 888, § 5, permits the Department of Public Welfare to “seek and . . . accept” on order of the Probate Court “responsibility” for minors “without proper guardianship due to the death, unavailability, incapacity or unfitness of the parent.” Such responsibility may, if the court orders, include the right to consent to adoption. Sections 24-26 allow a Juvenile Court (or the juvenile session of a District Court where there is no Juvenile Court) if it finds after petition by “any person” that a child is “without necessary and proper physical, educational or moral care and discipline, or is growing up under conditions or circumstances damaging to a child’s sound character development, or . . . lacks proper attention of parent . . . and whose parents . . . are unwilling, incompetent or unavailable to provide such care,” to commit the child to the custody of the department or “make any other appropriate order with reference to the care and custody of the child as may conduce to his best interests, including but not limited to” leaving the child with its parents under supervision, or transferring temporary custody to a qualified individual, agency, or the Department of Public Welfare. See n. 4 above. We are not drawn into the long standing debate among psychiatrists, psychologists, social workers, and lawyers about the precise limits of the claims of “biological” parents or about the precise values of “continuity” in the care of children. For the current phase, see Goldstein, Freud & Solnit, Beyond the Best Interests of the Child (1973), and reviews by Dembitz, 83 Yale L. J. 1304 (1974); Katkin, Bullington & Levine, 8 Law & Soc. Rev. 669 (1974); Rothman & Rothman, 1 The Civ. Lib. Rev. 110 (1974). See also Mnookin, Foster Care — In Whose Best Interest? 43 Harv. Educ. Rev. 599 (1973). In White v. Minter, 330 F. Supp. 1194 (D. Mass. 1971), a three judge Federal court held that the G. L. c. 248, §§ 35-40, action by which a parent may seek to regain custody of a child was not adequate to protect a mother’s rights. The G. L. c. 248 action amounts to a “habeas corpus" proceeding on behalf of a minor by its parent against those wrongfully hólding the child. In the White case, the Department of Public Welfare had obtained custody on a voluntary basis during a temporary illness, and the mother had sought to regain the child as soon as she was able to, within three weeks of the placement, and had continued to seek its return. The department, however, neither returned the child nor instituted an action under G. L. c. 119, § 23 (see n. 7 above), letting six months pass. In the circumstances, which are far from those of the present case, the court ruled that the mother’s rights had been violated. It held that the department must either return the child or bring suit for custody itself, finding the G. L. c. 248 action an inadequate remedy for the mother because under it, the court said, she had the “burden of proof.” Cf. Boyns v. Department of Pub. Welfare, 360 Mass. 600 (1971). In Stinson v. Meegan, 318 Mass. 459, 462 (1945), we had held that the issue in a G. L. c. 248 action was exactly that in a *644guardianship custody proceeding under G. L. c. 201, § 5: was the parent “unfit”? We think the basis of White, therefore, is less one of technical “burden of proof” than of imposition on the mother of the burden of instituting and prosecuting a lawsuit. In any event, White does not apply here. The mother here did not consistently seek the return of the child after she gave it up, and act toward that end. Moreover, it is likely here that the agency refrained from pressing any action against the mother in order to give her time to arrange her affairs and make plans to take the child back if she wished and was able to do so. It may well have felt that an earlier action would be premature because the mother had not yet demonstrated her unfitness, and because the child was still so young that the transfer back to its mother, if she were able and willing to assume responsibility, would not cause a profound shock to it. See 645-646 below. Compare the situation in Adoption of a Minor, 362 Mass. 842 (1973), in which the signed agreement was for adoption, and we held it therefore directly satisfied the G. L. c. 210, § 2, requirement of parental consent. Here no such consent was given, so a § 3 “best interests” inquiry was necessary in any event regardless of her consent to foster care. We do note, however, that in many cases foster parents are now being sponsored as adoptive parents; especially if the foster care has been extended, the putative emotional shock to the child of transfer may be an important factor in the calculus. As we have a report of material facts with the evidence not reported, “ [t]he facts found by the probate judge must be accepted as true. Richards v. Forrest, 278 Mass. 547, 551-552 [1932]. The sole question is ‘whether the findings of the judge “should in law require a decree different from that which was entered in the . . . [court below].”’ Cosgrove v. Cosgrove, 351 Mass. 64, 66 [1966].” Kauch, petitioners, 358 Mass. 327, 328 (1970). | opinion_xml_harvard | 5,884 | 2023-08-07 16:27:38.296905+00 | 020lead | f | f | 2,059,510 | Hennessey, Kaplan, Quirico, Reardon, Tauro, Wilkins | null | LU | f | Published | 65 | Petition of the New England Home for Little Wanderers | null | Petition of the New England Home for Little Wanderers to Dispense With Consent to Adoption | null | null | <parties data-order="0" data-type="parties" id="b643-4">
Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption.
</parties><br><court data-order="1" data-type="court" id="b643-5">
Suffolk.
</court><otherdate data-order="2" data-type="otherdate" id="AUF">
January 6, 1975.
</otherdate><decisiondate data-order="3" data-type="decisiondate" id="A_3">
May 5, 1975.
</decisiondate><br><p data-order="4" data-type="judges" id="b643-6">
Present: Tauro, C.J., Reardon, Quirico, Hennessey, Kaplan, & Wilkins, JJ.
</p><br><attorneys data-order="5" data-type="attorneys" id="b643-12">
<em>
Benjamin D. Lewis
</em>
for the respondent.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b643-13">
<em>
Robert C. Silver
</em>
for the petitioner.
</attorneys> | null | null | null | null | null | null | 1,903,496 | null | 0 | mass | S | t | Massachusetts Supreme Judicial Court | Massachusetts Supreme Judicial Court |
4,490,887 | This is an appeal from the determination of a deficiency in income tax for the .calendar year 1919 in the amount of $3,429.67, all of which is in controversy. The single issue involved is how much profit, if any, the taxpayer realized from the sale of the assets of T. C. Tanke, a business firm of which he was the sole proprietor, to T. C. Tanke, Inc., for stock of the par value of $160,000 and cash in the amount of $40,000. From the pleadings and evidence the Board makes the following FINDINGS OF FACT. 1. The taxpayer is an individual residing at Buffalo, N. Y. For about 21 years prior to February 20, 1919, he was associated with his father, T. C. Tanke, first as an employee and later as a partner, in a jewelry business, under the firm name of T. C. Tanke. For at least one year he owned a one-half interest in this business. Some time during the year ended February 20, 1919, T. C. Tanke retired from the partnership and made a gift of his one-half interest in the same to the taxpayer, who thereby became the sole owner of all the assets of the 'business theretofore conducted as a partnership and so continued to the date of sale of such assets to T. C. Tanke, Inc. 2. T. C. Tanke, Inc., was organized on February 20n1919, with an authorized capital of $200,000, divided into 2,000 shares of the *787par value of $100 each. At the date of such incorporation 400 shares of the capital stock were sold to Harry 0. McCormack for $40,000 and the stock certificates evidencing such sale were issued directly to the said McCormack. At the same time 1,535 shares were issued to Eugene Tanke and 65 shares to T. C. Tanke, but the 65 shares so issued to T. C. Tanke were immediately endorsed over to T. C. Tanke, Inc., and reissued to Eugene Tanke, who thereby became the owner of 1,600 shares of the stock of the corporation. 3. On February 20, 1919, T. C. Tanke sold to T. C. Tanke, Inc., all its assets, including cash, accounts receivable, merchandise, good will, trade name, lease on business premises, customers lists, and all other property owned by it, and received therefor capital stock of the par value of $160,000 and cash in the amount of $40,000. Resulting from this transaction, Eugene Tanke, at that time the sole owner of the assets and business, received the entire consideration realized from the sale. 4. At the date of incorporation, Harry C. McCormack became a stockholder of T. C. Tanke, Inc., by virtue of an agreement between himself and Eugene Tanke, in which he proposed to purchase 548 shares of stock for $50,000. This agreement was carried out by the issue of 400 shares to McCormack by the corporation in exchange for $40,000 in cash and by the transfer of 148 shares, owned by Eugene Tanke, to McCormack for $10,000. The steps by which McCormack acquired 548 shares of stock constituted a single transaction. On December 6,1920, the taxpayer sold 1,452 shares of T. C. Tanke, Inc., to Arthur J. Block and Edgar N. Block, and received cash therefor in the amount of $134,352.41. 5. The net worth of the assets sold by Eugene Tanke to T. C. Tanke, Inc., on February 20, 1919, was $159,336.32, as evidenced by the following balance sheet of T. C. Tanke as of January 1, 1919, the effective date of the transfer. The Commissioner' and the taxpayer agree that this balance sheet is correct: Assets. Gash_$23,084.76 Accounts receivable_ 9,150. 67 Inventory (at cost)_ 116,703.03 Fixtures and equipment_ 15, 793.56 Deferred assets_ 475. 00 165,206.91 Liabilities. Accounts payable_ $4,912.93 Due bills_ 42.61 Reserves- 915.05 Net worth_’_ 159,336.32 165,206.91 6.The fair market value of the 1,600 shares of stock to T. C. Tanke, Inc., at the date of issue to Eugene Tanke was $91.24 a share, or a total of $145,984; the total consideration received by Eugene Tanke for the assets of T. C. Tanke was $185,984; and the total gain resulting from the transaction was $26,647.68. *788DECISION. The deficiency should be computed in conformity with the foregoing findings of fact. Final determination will be made on consent or on 15 days’ notice, under Rule 50. Ajrundell not participating. | opinion_xml_harvard | 720 | 2020-01-17 22:02:35.36291+00 | 020lead | t | f | 4,711,312 | Lansdon, Sterniiagen, Ajrundell | null | U | f | Published | 1 | Tanke v. Commissioner | Tanke | APPEAL OF EUGENE TANKE. | null | null | null | null | null | null | null | null | null | 16,724,757 | Docket No. 2926. | 0 | bta | FS | t | Board of Tax Appeals | United States Board of Tax Appeals |
340,983 | 546 F.2d 413 U. S. v. Savino No. 76-1021 United States Court of Appeals, First Circuit 10/20/76 1 D.Mass. AFFIRMED | opinion_html_with_citations | 20 | 2011-08-23 09:01:44+00 | 010combined | f | f | 340,983 | null | null | R | f | Published | 0 | United States v. Savino | Savino | null | null | null | null | null | null | null | null | null | null | 2,399,341 | 76-1021 | 0 | ca1 | F | t | First Circuit | Court of Appeals for the First Circuit |
8,743,403 | FRANKLIN E. KENNAMER, District Judge. i On March 7, 1938, W. I. Southern, Inc., brought suit in the district court of Tulsa county, Okl., to recover the proceeds of a policy of insurance issued by the plaintiff herein upon the life of Wheaton I. Southern, who died after the policy was issued. The policy contained a clause providing for incontestability after the expiration of two years from its date, and this period would have expired shortly after the institution of the suit. Service was had upon the insurance company the same day the suit was filed. Thereafter and within the period of contestability this suit was filed to cancel the policy on the. ground that it was obtained by virtue of certain fraudulent representations by the insured. The defendant,, the beneficiary in said policy, moves the court to dismiss the action pending in this' court. Plaintiff urges that whether or not it has an adequate remedy at law must be tested by whether or not its remedy on the law side of the federal court is adequate and that whether or not it has a remedy in the state court is immaterial. Di Giovanni v. Camden Fire Ins. Ass’n, 296 U.S. 64. *335256 S.Ct. 1, 80 L.Ed. 47; Chicago & N. W. Ry. Co. v. Railroad and W. Commission, D.C., 280 F. 387; Munn v. Des Moines Natl. Bank, 8 Cir., 18 F.2d 269; American Life Ins. Co. v. Stewart, 300 U.S. 203, 57 S.Ct. 377, 81 L.Ed. 605, 111 A.L.R. 1268; Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440; Brown v. Pacific Mutual Life Ins. Co., 4 Cir., 62 F.2d 711, and similar cases. The fact that a person may have an adequate remedy at law in a state court does not necessarily preclude federal equity jurisdiction if there be no adequate remedy at law in the federal court, for federal equity jurisdiction is not dependent upon state practice or procedure. I do not conceive, however, that the principle just stated controls this case, otherwise, it-might well be said that the federal courts must rule that no adequate remedy at law is afforded in a state court suit and that every litigant has a right to have his case tried in a federal court. Such, of course, is not the law. It is therefore immaterial that the insurance company may not have the right to remove to this court the suit filed against it in the state court. When the beneficiary filed its suit in the state court, that court obtained jurisdiction of the subject matter of the action and of the parties thereto. In that court the insurance company may obtain all the relief it seeks here, fraud in obtaining the issuance of the policy being available to it as a defense in that court. This case is therefore to be distinguished from Ruhlin v. New York Life Insurance Company, 3 Cir., 93 F.2d 416, and is also to be distinguished from cases where the identity of thfc beneficiary may be uncertain. I hold that this case is ruled by Metropolitan Life Insurance Company v. Banion, 10 Cir., 86 F.2d 886, in which Judge Mc-Dermott collected the cases and stated their doctrine as follows (page 888) : “The philosophy of these cases, as we read them, is this: An insurance company which must contest a policy 'within a limited period if at all, cannot be deprived of its defenses by the inaction of plaintiff; but if an action at law is pending which affords the company an opportunity to contest the policy within the contestable period, the company cannot deny the plaintiff a jury trial by a suit in equity.” The case here is the reverse of the situation passed upon in American Life Ins. Co. v. Stewart, 300 U.S. 203, 57 S.Ct. 377, 81 L.Ed. 605, 111 A.L.R. 1268 because here the law action was first filed. And see New York Life Ins. Co. v. Marshall, D.C.La., 21 F.2d 172, affirmed 5 Cir., 23 F.2d 225, and New York Life Insurance Co. v. Panagiotopoulos, 1 Cir., 80 F.2d 136. Thus in Peake v. Lincoln Natl. Life Ins. Co., 8 Cir., 15 F.2d 303, an action to cancel a policy of insurance, it was urged that equity had no jurisdiction because the beneficiary’s claim was a legal demand and the defense of fraud was available as a legal defense and that the insurers claimed equitable right was fully set up in an answer to a suit brought by the beneficiary subsequent to the filing of the suit by the insurer to cancel the policy but the Court said (page 305): “If Mrs. Peake had brought her action before the equity Suit had been instituted, and if it were established that she and the insurer were the only parties interested in the subject, the first two propositions Contended for might be conceded' as sound.” The authorities sustain the rule that in cases where courts of concurrent jurisdiction acquire jurisdiction over the subject matter and the parties the court in which jurisdiction is first invoked should be permitted to proceed. In the case of Byrne v. Brown, 40 Fla. 109-116, 23 So. 877, the court said (page 879) : “ * * * it would be a strange and an anomalous rule of law that would permit another court, though of concurrent jurisdiction, to withdraw the case and the parties from the jurisdiction of the law court, where the latter is as competent to extend the proper relief as the former. The rule of law is that where two courts have concurrent jurisdiction the right to maintain it attaches to that court which first exercises it.” See, generally, 21 C.J. pp. 40, 41, and 42. I, therefore, conclude that the insurance company had a plain, adequate and complete remedy at law at the time of the filing of the bill of complaint herein and the motion to dismiss should be sustained. | opinion_xml_harvard | 999 | 2022-11-26 10:57:49.761928+00 | 020lead | t | f | 8,760,060 | Kennamer | null | U | f | Published | 0 | Atlas Life Ins. v. W. I. Southern, Inc. | null | ATLAS LIFE INS. CO. v. W. I. SOUTHERN, Inc. | null | null | null | null | null | null | null | null | null | 66,026,175 | No. 1272 | 0 | oknd | FD | t | N.D. Oklahoma | District Court, N.D. Oklahoma |
6,763,702 | Douglas, J. R.C. 4117.07 addresses the filing with respondent of a petition for representation election and provides, in part: “(A) When a petition is filed, in accordance with rules prescribed by the state employment relations board: “(1) By any employee or group of employees, or any individual or employee organization acting in their behalf, alleging that at least thirty per cent of the employees in an appropriate unit wish to be represented for collective bargaining by an exclusive representative, * * * the board shall investigate the petition, and if it has reasonable cause to believe that a question of representation exists, provide for an appropriate hearing upon due notice to the parties[.]” R.C. 4117.07(A)(1) clearly authorizes and, indeed, requires respondent to provide for a hearing on an election petition when there is “reasonable cause” to believe that a question of representation exists. *136For a writ of prohibition to issue, we must find (1) that the court or officer against whom the writ is sought is about to exercise judicial or quasi-judicial power, (2) that the exercise of such power is unauthorized by law, and (3) that denying the writ would cause injury for which there is no other adequate remedy in the ordinary course of law. State, ex rel. Tollis, v. Cuyahoga Cty. Court of Appeals (1988), 40 Ohio St.3d 145, 147, 532 N.E.2d 727, 729. In the case at bar, relator claims that the evidence before respondent during its investigation of the election petition shows that Mize, Hudak and Vincenti were not employees of relator following the 1988-1989 school year and were otherwise not entitled to representation. Specifically, relator claims that no question of representation exists and that, therefore, R.C. 4117.07(A)(1) does not authorize respondent to entertain the election petition. Further, relator claims that it will suffer irreparable harm if a writ of prohibition is not issued. While we believe that the second prong of the requirements for a writ of prohibition (exercise of power that is unauthorized by law) has not been satisfied by relator, clearly the third prong (injury and no other adequate remedy) has not been met by relator. Relator has failed to show that it will suffer injury if a writ of prohibition is denied. Respondent, after conducting a hearing, may ultimately dismiss the election petition, concluding that no actual question of representation exists. As respondent has yet to reach a final determination as to whether a question of representation exists, relator cannot show that it will suffer injury if a writ of prohibition is denied. In reaching this conclusion, we are persuaded by our decision in State, ex rel. Cuyahoga Cty. Bd. of Commrs., v. State Personnel Bd. of Review (1989), 42 Ohio St.3d 73, 537 N.E.2d 212, wherein we declined to issue a writ of prohibition under analogous circumstances. Accordingly, we deny the writ. Writ denied. Sweeney, H. Brown and Resnick, JJ., concur. Wright, J., concurs separately. Moyer, C.J., and Holmes, J., dissent. | opinion_xml_harvard | 491 | 2022-07-21 00:34:15.508252+00 | 020lead | t | f | 6,871,496 | Brown, Douglas, Holmes, Moyer, Resnick, Sweeney, Wright | null | U | f | Published | 0 | State ex rel. Independence Local School District Board of Education v. State Employment Relations Board | null | [The State, ex rel.] Independence Local School District Board of Education v. State Employment Relations Board | null | null | null | null | null | null | null | null | null | 63,853,428 | No. 90-1403 | 0 | ohio | S | t | Ohio Supreme Court | Ohio Supreme Court |
9,532,578 | NOURSE, P. J. Plaintiff sued on a common count for the reasonable value of legal services. The cause was tried before a jury and plaintiff had a verdict for $50,400. The defendants’ motion for a new trial was denied and they present this appeal from the judgment under the alternative method. The defendants were attorneys under a written contract for a group of land owners known as the Herminghaus heirs in litigation involving water rights in the San Joaquin Valley and terminating in the case of Herminghaus v. Southern California Edison Co., 200 Cal. 81 [252 Pac. 607]. The defendants’ contract was a contingent one dependent upon the value of the water rights involved, certain payments to be made in event of sales by the land owners based upon a percentage of the selling price. After the affirmance of the judgment negotiations were carried on by the defendants in behalf of the Herminghaus heirs for the sale of the water rights to the power company and at the same time other negotiations were conducted by the heirs independently for the same purpose. A dispute arose over the amount of defendants’ fees for their services and they commenced an action against the heirs for recovery. The plaintiff herein, a practicing attorney in the city of Fresno, was employed by the defendants to prosecute that litigation. The cause was tried before a jury, but on the motion of the plaintiff the trial court directed a verdict in their favor for the sum of $259,960 plus interest and costs and on appeal that judgment was affirmed (Preston v. Herminghaus, 211 Cal. 1 [292 Pac. 953]). Thereafter the plaintiff delivered to the defendants a check for approximately '$311,000 covering this judgment with costs and accrued interest less a loan of *315$2,500 which the heirs made to one of these defendants. A dispute immediately arose between the defendants as to the division of this fee, the defendant Preston demanding one-half of the fee while the defendant Peck insisted that he was entitled to two-thirds and Preston to one-third. Incidental to this dispute the defendants were unable to agree on a reasonable compensation to be paid to the plaintiff for his services and this action followed. A protracted and acrimonious trial was held in which the attorneys and witnesses frequently strained the patience of the trial judge who conducted the trial with commendable dignity. In presenting their appeal the parties have not relaxed in their feelings toward each other and for this reason it has become most difficult to sift the statements of fact which are based upon the record from those which are the personal opinions of counsel. We will discuss the cause as simply a case in assumpsit without regard to the parties involved or the personalities injected into the briefs. The first point raised by appellants is that their motion for a directed verdict should have been granted. The point is not tenable. The appellants concede that the evidence of an express contract is conflicting and that there was substantial evidence offered by respondent that no fee was fixed by the parties. The issue of an express contract was raised by appellants as a special defense to the action in quantum meruit. Since the evidence was in conflict the issue was properly left with the jury. The appellants then argue that, under respondent’s version of the conversation of September 12, 1928, the parties agreed that appellant Preston could fix' the fee himself and that the respondent could not therefore maintain an action in quantum meruit. Here, too, there is a direct conflict.in the evidence. The appellant Preston testified that no such agreement was made. The respondent testified that, at the time this conversation was had, the duties to be performed by him were very indefinite, that he refused to agree upon a specified fee, and that he told this appellant: “ ‘ ... when it is all over you and I will sit down and figure out a fair and reasonable fee for the work I have done’. He said ‘That is satisfactory. I will pay you and I will pay you well, ’ is exactly the words he used, and to that I replied ‘Well, in the first instance, you can fix the amount of my *316fee yourself when we are through, because all I want is a fair and reasonable compensation for the services that I rendered, and we will sit down and fix it when it is all over,’ and he said, ‘That is fine, Ted.’ And that ended the conversation in so far as the employment was concerned.” For the purpose of showing the construction of the parties evidence was offered of a conversation held on September 27, 1928, wherein the parties discussed fixing the fee upon a contingent basis, and another on December 8, 1930, when respondent delivered to appellant Preston a check for $311,000 wherein they discussed the question of a reasonable fee on the basis of the entire absence of any express contract. The appellants argue that the evidence preponderates in their favor. But we are limited by the unbroken rule of authorities holding that, when there is substantial evidence supporting respondent’s theory the question is one for the jury. This state of the evidence is a complete answer to all that appellants say in support of their motion for a directed Verdict. It answers as well their contention now made that, because of the express contract, the respondent should not be permitted to recover on a quantum meruit. With their premises lost in the conflict of evidence rule there is left no basis for their conclusion. To this extent the case.is controlled by Batcheller v. Whittier, 12 Cal. App. 262 [107 Pac. 141], and Elconin v. Yalen, 208 Cal. 546 [282 Pac. 791], holding that where there has been no meeting of the minds on the subject of compensation but merely a contract of employment the plaintiff may sue for the reasonable value of his services. For their second point the appellants assign as error the refusal of the trial court to give a proffered instruction. The first part of the proposed instruction, relating to the issue of an express contract to pay a fixed fee, was fully covered by appellants’ instruction numbered IV. The second part, relating to an agreement permitting appellant Preston to fix the fee and advising the jury that, if they found such an agreement, then plaintiff could recover but $2,500, was not supported by any evidence and would have been an incorrect statement of the law. The undisputed evidence of both parties was that no such agreement had been made and that appellants did not pretend to fix the fee in the sum of $2,500 or in any other amount. The last part *317of the proposed instruction advising the jury that they could not consider the question of the reasonable value of respondent’s services unless they found that no agreement was made between appellant Preston and respondent was fully covered by instruction number IY given at appellants’ request in so far as it related to the question of an express contract. But, in so far as it related to an agreement giving the appellant the right to fix the compensation, it was an instruction on an issue not raised and not supported by any evidence. The third point raised is that respondent’s services were not reasonably worth the sum awarded. The appellants present this point under two heads—the sufficiency of the evidence to support the verdict, and the objections to the hypothetical question put to respondent’s expert witnesses. As to the first question the evidence of the reasonableness of the fee takes a wide range. Five members of the bar called by the respondent gave values ranging from $46,000 to $62,500. Six members of the bar called by the appellants gave values ranging from $1500 to $3,500. We must assume that all these witnesses were reputable lawyers and that each testified honestly as to his opinion in the matter. We may assume also that the fee awarded is higher than we would have allowed if called upon to fix it in the first instance. But it should be borne in mind that this is not a case coming under section 4% of article VI of the Constitution and 956a of the Code of Civil Procedure where an appellate court may make findings of fact contrary to those made by the trial court. This is a case where a trial by jury was a matter of right. For this reason the question of the evidence is limited to the single inquiry whether there is substantial evidence supporting the verdict. That there is such evidence is conceded by appellants; their only argument on this branch of the case is that the appellate court should disbelieve respondent’s witnesses and disregard all their testimony. That this is not the function of the appellate court after a trial by jury is settled beyond argument. In Treadwell v. Nickel, 194 Cal. 243, 251 [228 Pac. 25], the Supreme Court, in considering the identical subject, said: “The question as to the reasonable value of the services rendered by the plaintiff was submitted to a number of able *318and competent attorneys, who testified in the case. Some of them advanced a lower figure than tliat claimed by him, but others fixed their value at amounts far in excess of that established by the verdict. Consequently the issue as to the value of the services may be considered as having been closed by the finding of the jury.” To the same effect are Libby v. Kipp, 87 Cal. App. 538, 548 [262 Pac. 68] ; Grass v. Rindge Co., 84 Cal. App. 750, 766 [258 Pac. 673] ; Donovan v. Root, 114 Cal. App. 114, 117 [299 Pac. 568], The appellants argue that they have found an exception to this rule in the language appearing on page 544 of the Libby case that the judgment of the trial court is not controlling if “the sum allowed is plainly and palpably exorbitant and such as shocks the conscience of an appellate court . . . ” The court had in mind that principle governing the appellate courts in the review of verdicts generally and which is best stated in Davis v. Renton, 113 Cal. App. 561, 563 [298 Pac. 834], as follows: ‘ ‘ The remedy for safeguarding against the danger of excessive verdicts is committed necessarily to a great extent to the judge who presides at the trial, and the reviewing court may interfere only in eases where= the excess appears as a matter of law, or where the recovery is so grossly disproportionate to any compensation reasonably warranted by the facts as to shock the sense of justice or at first blush raise a presumption that it is the result of passion, prejudice or corruption rather than honest and sober judgment.” There is no showing here that this verdict was the result of passion or prejudice. It is supported by the sworn testimony of reputable members of the bar. To hold that it is excessive (or so grossly excessive as to shock our consciences) we would have to find that all these witnesses swore falsely and that the trial judge refused to perform his duty when he denied the motion for a new trial. Since the question is presented here merely on the theory that the judgment is excessive and that we should exercise our independent judgment as lawyers and fix a reasonable fee the obvious answer is that, under the authorities cited, that cannot be done. The second phase of this question is presented on the theory that the evidence of the services performed by the respondent was insufficient to support several portions of the *319hypothetical question propounded to respondent’s witnesses. What counsel really mean is that there is a preponderance of evidence supporting their estimate of the value of these services. We will not extend the opinion by discussing these items severally. It is sufficient to say that in each instance substantial evidence was offered supporting each assumption found in the question and that respondent cannot be denied the right to assume a statement of facts which he claims the evidence justifies even though such facts are denied by his adversary. (Treadwell v. Nickel, 194 Cal. 243, 267 [228 Pac. 25].) The fourth point raised by appellants involves the rulings on the cross-examination of Justice Preston concerning his practice of the law during his occupation of the office of a justice of the Supreme Court. To understand the questions raised it is necessary to state that the answer of the Herminghaus heirs to appellants’ suit for attorney’s fees raised the special defense that while the action concerning the water rights was pending Preston became a justice of the Supreme Court; that, as such, he was disqualified from practicing law, and had thereby breached his contract. The plaintiffs in that case countered this allegation with the assertion that, notwithstanding the occupation of the judicial office, the services had been rendered in accordance with the contract. The respondent in this case assigned this situation as adding to his embarrassment and worry in his capacity as attorney for the appellants in Preston et al. v. Herminghaus. The appellants countered with the assertion that such legal services as had been rendered after Justice Preston assumed his duties on the bench were within his rights as a justice of the Supreme Court because as such officer he was barred only from appearing in a court in this state. The whole issue was emphasized before the jury by the appellants in their effort to minimize the services rendered them by the respondent. For this purpose they insisted that they were in fact chief counsel in the litigation for attorney’s fees and that respondent was merely an assistant brought in to lend local color to the trial in Fresno County. For the same purpose they took the position that a justice of the Supreme Court was not disqualified from practicing law so long as he did not appear in any of the courts of this state. The re*320spondent inquired as to their knowledge of the decision of our Supreme Court in State Bar v. Superior Court, 207 Cal. 323 [278 Pac. 432], where a contrary holding was made in relation to Judge Hardy of the superior court. The appellants also insisted that because they had a contract for legal services calling for a contingent fee they had a vested interest entitling them to proceed with the services notwithstanding the section of the Constitution prohibiting a justice from engaging in the practice of the law. The respondent attacked this position as legally and ethically unsound. Thus the examination of the witnesses resolved itself into a controversy over legal principles but the door for this cross-examination of the appellants and the subject-matter of the inquiry to which it extended was thrown wide open by them. Witnesses called by the respondent had testified that this circumstance was an item to which they gave consideration in estimating the value of respondent’s services. The appellants countered with the assertion that it was an item of no consequence because Justice Preston was legally entitled to continue the practice under the circumstances. The cross-examination which is now criticised was directed to this testimony. Hence, when the appellants objected to the line of questioning on the single ground that the questions were immaterial, these objections were properly overruled. That they should now argue that the inquiry was designed to harass the appellants and to create prejudice in the minds of the jury is of no avail because no objections of that character were made which would have enabled the trial judge to rule and no assignments of error or misconduct were made. Furthermore, on the request of the appellants, the trial judge instructed the jury on this phase of the case to the effect that a justice of the Supreme Court was not prohibited from practicing law except in a California court and was not prohibited from looking out for his own interests under the contract here involved. In appellants’ fifth point they claim error in the examination as to differences that arose between the two appellants after respondent’s employment terminated. The respondent had testified that the appellants had quarreled in Fresno before and during the trial of Preston v. Herminghaus. The appellant Preston had denied that they had ever *321quarreled at any time. This, of course, opened the cross-examination of that witness on the subject of quarrels irrespective of the time they occurred. The cross-examination of the appellant Peck on this subject was opened by his testimony on direct relating to a controversy which he had had with his co-defendant. The materiality of the examination is apparent. The respondent had tendered evidence showing that he had two warring clients and that he had to assume the responsibility of bringing them together for the trial. The appellants had insisted that they had personally conducted the litigation and that respondent was merely called in for local color. Under respondent’s theory this had a direct bearing upon the question of the value of his services and he was entitled to prove that theory. Finally, it is argued that the trial court erred in refusing to instruct the jury as to the correct answers to various legal questions involved in Preston v. Herminghaus. Generally the appellants contend that certain services rendered by the respondent in examining a witness, in amending the complaint, and in defending the interpretation of the contract before the trial court and on appeal were valueless because the Supreme Court on that appeal held that the respondent in each instance was right. Hence they say, in effect, if an attorney successfully prosecutes a cause through trial and is sustained on appeal it must be because the law was on his side and, therefore, the clients should not be required to pay much for his services. There is no authority for the proposition advanced by appellants and if the trial judge liad given the instructions proposed by them he would have committed error in taking from the jury the determination of essential questions of fact. The value of respondent’s services cannot be determined on the basis of the answers which the Supreme Court in a lengthy opinion gave to these legal questions. A reference to that opinion will disclose that the court deemed these particular questions of such importance as to merit special comment and approval. The value of respondent’s services is more properly determined on the basis of the difficulties which these matters gave to the respondent at the time—difficulties which the appellants concede were at the time deemed serious by them and which they, as able and learned attorneys, approved at *322the time with compliments to the respondent for the good judgment he then displayed. The judgment is affirmed. Sturtevant, J., and Pooling, J., pro teto., concurred. A petition for a rehearing of this cause was denied by the District Court of Appeal on December 20, 1934, and the following opinion then rendered thereon: | opinion_xml_harvard | 3,194 | 2023-08-07 04:22:44.818741+00 | 020lead | f | f | 1,124,108 | Nourse | null | LU | f | Published | 9 | Stuart v. Preston | Stuart | THEODORE M. STUART, Respondent, v. JOHN W. PRESTON Et Al., Appellants | null | null | <docketnumber id="b346-7">
[Civ. No. 9382.
</docketnumber><court id="A7E">
First Appellate District, Division Two.
</court><decisiondate id="Av7n">
November 20, 1934.]
</decisiondate><br><parties id="b346-9">
THEODORE M. STUART, Respondent, v. JOHN W. PRESTON et al., Appellants.
</parties><br><attorneys id="b350-4">
<span citation-index="1" class="star-pagination" label="314">
*314
</span>
Hatch & Mahl, C. F. Rafferty and Fitzgerald, Abbott & Beardsley for Appellants.
</attorneys><br><attorneys id="b350-5">
Casper A. Ornbaun, Everett H. Roan and Livingston & Livingston,
<em>
Amici Curiae
</em>
on Behalf of Appellants.
</attorneys><br><attorneys id="b350-6">
John Francis Neylan, Grove J. Fink and Myron Harris for Respondent.
</attorneys> | null | null | null | null | null | null | 418,535 | Civ. 9382 | 1 | calctapp | SA | t | California Court of Appeal | California Court of Appeal |
3,654,791 | The facts are fully stated in the opinion. His Honor sustained the demurrer, and plaintiff appealed. In section 1, chapter 70, of the acts of the General Assembly, passed at the session held in 1883, it was enacted: "That it shall be unlawful for any live stock (a word defined in section 10), to run at large in Lenoir and Greene counties, *Page 181 within the following boundaries, to-wit: beginning on the north bank of Neuse river, at the Lenoir and Wayne county line, thence with said line to the Greene county line, thence with the line between Greene and Wayne counties to the run of Nahunta creek, thence down said creek to Contentnea creek, thence down said creek to Neuse river, thence up said river to the beginning." The portion of this boundary formed by the last mentioned creek and the Neuse river into which it flows, as deep watercourses are declared in section 12 to be a sufficient barrier against the incursions of stock, and no fence is there required to be built. The same section requires the boards of the counties, from which is taken the territory to form the district, to erect an enclosing fence around the residue of the boundary, with gates at all the entering highways; and, to defray the expense of the required work, the act declares that it shall be lawful for the said commissioners to levy and collect an assessment upon all the realty in the aforesaid territory. Provision is made in the section next preceding, for giving notice of the completed construction of the fence, ten days after which the act goes into full operation and its prohibitions cover the district. A month later during the same session was passed another act, declared in its title to be "supplemental and amendatory," by which the remaining part of Greene county composed within designated lines, of which Contentnea creek (here distinguished from another stream of the same name as "Big Contentnea,") constitutes a part and separates the two sections in that county, is erected into a district and subjected to the same general conditions, chapter 214. The other sections appropriate to the district thus established are the provisions of the former enactment relating to the construction of its enclosing fence and the raising of means to meet the expenses thereof, as well as the method of putting the act in operation. The barrier intervening between the separate districts, consisting in part of a fence and in part of a natural water course, *Page 182 is not removed so as to open egress from one into the other, and thus render needful to Lenoir the boundary fence required to enclose the additional territory in Greene; but the original fencing and streams remain and are a full protection to all the territory in Lenoir. The value of the taxable real estate in the part of Greene which enters into the formation of the first district is $562,969.61, and the cost of constructing the fence therein is $1,554 19/100, while the value of the real estate in the part taken from Lenoir is $1,090,112, and the cost of the fence in that county is $1,725. In like manner it is ascertained that the value of the taxable real estate in the remaining part of Greene, constituting the second district, is $564,945, and the cost of erecting the necessary fence therein is $3,679 68/100. The commissioners of Lenoir refused to act in co-operation with the commissioners of Greene in providing for a uniform assessment upon all the lands lying in their respective counties to meet the expenses of enclosing the first district, or to recognize any obligation resting on Lenoir to contribute at all to the erection of the additional fencing required under the second act; insisting that they were required to build the part of the line of fence in their county only. In consequence and in order to secure to Greene the benefits of this legislation, the commissioners of Greene have been compelled to provide the means of paying for the entire structure in their county. The present action looks to a re-adjustment of the expenses incurred, and a coercing judgment against the defendants, compelling them to make such a re-assessment upon the real estate in the portion of the district taken from Lenoir as shall be uniform with that rightfully falling upon the real estate in the part taken from Greene, and upon this basis refund the excess paid by the latter. These are the allegations of the complaint, and for the purpose of passing upon the issue made by the demurrer must be assumed to be true. The demurrer assigns, as the grounds thereof, (1) That the lands in Lenoir are only bound to pay for so much of the structure as lies within the county limits. *Page 183 (2) That the excess in the payments made under the assessment in Greene was unnecessary and officious, and furnishes no just ground for a claim against them. (3) That the right of action, if residing in any one, is in the persons interested in having the act carried out and the district properly protected from the inroads of outside stock, and not in the plaintiffs. Upon the hearing, the Court gave judgment sustaining the demurrer and dismissing the action, from which the plaintiffs appeal. The validity of this form of legislation, and its consistency with constitutional requirements, have been upheld in the several adjudications to which attention is called, and which are all reported in the 86th volume, Cain v. Commissioners , page 8; Newsom v. Earnheart , page 391; Shuford v. Commissioners , page 552. In the first of these it is said by the Court, "It creates a community of interest in upholding one barrier in place of separate and distinct barriers for each plantation, and thus in the common burden, lessens the weight that each cultivator of the soil must otherwise individually bear. "As the greater burden is thus removed from the land-owner he, as such, ought to bear the expense by which this result is brought about. The special interest benefited by the law is charged with the payment of the sum necessary in securing the benefit. This and no more is what the statute proposes to do, and in this respect is obnoxious to no just objection from the taxed land-proprietor, as it is free from any constitutional impediments." An assessment for local improvements is not considered so much a burden as it is an equivalent or compensation for the enhanced value which the taxed property is supposed to derive from the work. It is an instance of the application of the general maxim qui sentit commodum debet sentire et onus , the consideration paid for the special local benefit conferred. This is the underlying principle of the system of local assessment for local advantages, and in its development and application to the present case most manifestly requires that the lands in *Page 184 Lenoir and Greene constituting the district under the first act, without any reference to county lines, should be assessed and charged according to value and at a uniform rate. The common fence dispenses with separate fences throughout the circumscribed territory for separate farms, and thus the relief is diffused generally among tax-paying owners. The result is not affected by the fact that parts of two counties are united in creating the district, and that separate yet concurring action of the commissioners in each is necessary to the execution of the law. For the purpose of local assessment it is a single district, as much so as if constituted of part of one county, and as the levy of taxes is confined to county officers, their agency in enforcing them must of course be independently exercised. It was their duty after ascertaining the expense of the required work to inquire what per centum of tax upon the aggregate value of all the real estate subject to assessment in the entire district would suffice to meet it, and then levy such to raise the needed amount. The plaintiffs have cause of complaint against the defendants for refusing their co-operation. But the other territory in Greene is erected into a separate district, with a separate enclosure and must bear its own expenses. It has the benefits of the fence constructed at the cost of the first district, so far as it forms a dividing line between them. It cannot rightfully demand a construction from the tax-payers in Lenoir whose property derives no advantage whatever from the additional fencing. Its full protection is secured by that in whose building they have to participate. Nor do we find any difficulty in construing the sections of chapter 214 which refer to chapter 70. They are obviously intended to introduce the mode of procedure prescribed in the former for carrying into effect the provisions, having a similar object in view, contained in the latter. No concert of action was necessary with the authorities of other counties, and hence they were to assess the lands in the separate district so as to raise a sufficient sum to meet the expense of the required fence around it. *Page 185 We think, too, the mandatory authority of the court may be invoked to compel the performance of the denied obligation imposed upon the defendants. They have failed hitherto to levy the full assessment upon the real estate in their county liable under the statute, and this has compelled an excessive levy upon the owners of real estate in Greene in order to secure the beneficial objects of the law. The adjustment must be among those respective tax-payers, but it can only be attained through a new assessment collected and paid over to the county authorities of Greene to replace the moneys wrongfully collected in that county, and to be held in trust for those who have over-paid, as should have been that wrongfully used in payment for the fence. The representative county agencies are the appropriate parties to an action to correct the wrong and bring about the preexisting state of things, as if it had not been done. The very fact that said boards must unite in accomplishing what ought to have been done in the beginning shows the propriety of the present action. The trust fund when received belongs to the overcharged tax-payers and may be retained as a special credit to each in a general collection of county taxes, and thus the wrong redressed. There is error, and the judgment must be reversed. Let this be certified. Reversed. | opinion_html_columbia | 1,767 | 2016-07-06 06:08:18.243619+00 | 020lead | f | f | 3,908,597 | Smith | null | ZU | f | Published | 5 | Commissioners of Greene v. . Commissioners of Lenoir | null | Commissioners of Greene County v. Commissioners of Lenoir County. | <p>Civil ACTION tried before Shepherd, Judge, upon a demurrer to the complaint, at Spring Term, 1884, of LeNOIR county.</p> <p>The facts arc fully stated in the opinion.</p> <p>His Honor sustained the demurrer, and plaintiff appealed.</p> | <p>(Cain v. Commissioners, 86 N. C., 8; Newsom v. Earnheart, Ibid, 391; Shuford v. Commissioners, Ibid, 552, cited and approved).</p> | <parties id="b214-3">
COMMISSIONERS OF GREENE COUNTY v. COMMISSIONERS OF LENOIR COUNTY.
</parties><br><headnotes id="b214-4">
<em>
Local Assessments
</em>
— Fence
<em>
Lem
</em>
— Parties.
</headnotes><br><headnotes id="b214-5">
1. Special burdens imposed for local improvements by the Legislature are not unconstitutional. They are considered not so much a burden, as a compensation for the enhanced value which the taxed property is supposed to derive from the work.
</headnotes><br><headnotes id="b214-7">
2. The Legislature (Laws, 1888, chaps. 70 and 214), erected adjoining territory in two counties into a no-fence district., and directed the commissioners of the two counties to erect a fence around said district and to defray the expense b3r a tax on all the realty in the district. More fencing was required in one-county than in the other ;
<em>
JEEdd,
</em>
that a uniform tax on all the realty in the-district must be imposed to pay the expense of the fence, irrespective of the amount of fencing required in each county. It is immaterial that parts of two counties are united in creating the district.
</headnotes><br><headnotes id="b214-9">
3. In such case, where the tax-payers in such district, resident in one of the counties, have paid more than their proportion of the tax to build the fence, the county commissioners of that county are the proper parties to bring an action to correct the wrong, and when the mone}’ is collected, it will be retained as a special credit to each of such tax-payers in a general collection of county taxes.
</headnotes><br><history id="b214-11">
<em>
(Cain
</em>
v.
<em>
Commissioners,
</em>
86 N. C., 8;
<em>
Newsom
</em>
v. Earnheart,
<em>
Ibid,
</em>
391;
<em>
Shuford
</em>
v. Commissioners,
<em>
Ibid,
</em>
552, cited and approved).
</history><br><summary id="b214-12">
Civil ACTION tried before
<em>
Shepherd, Judge,
</em>
upon a demurrer to the complaint, at Spring Term, 1884, of LeNOIR county.
</summary><br><summary id="b214-13">
The facts arc fully stated in the opinion.
</summary><br><summary id="b214-14">
His Honor sustained the demurrer, and plaintiff appealed.
</summary><br><attorneys id="b214-15">
<em>
Messrs. W. C. Monroe
</em>
and
<em>
E. T. Albritton,
</em>
for the plaintiffs.
</attorneys><br><attorneys id="b214-16">
<em>
Mr. G. V. Strong,
</em>
for the defendant.
</attorneys> | <p>Local Assessments — Fence Lem — Parties.</p> <p>1. Special burdens imposed for local improvements by the Legislature are not unconstitutional. They are considered not so much a burden, as a compensation for the enhanced value which the taxed property is supposed to derive from the work.</p> <p>2. The Legislature (Laws, 1888, chaps. 70 and 214), erected adjoining territory in two counties into a no-fence district., and directed the commissioners of the two counties to erect a fence around said district and to defray the expense b3r a tax on all the realty in the district. More fencing was required in one-county than in the other ; JEEdd, that a uniform tax on all the realty in the-district must be imposed to pay the expense of the fence, irrespective of the amount of fencing required in each county. It is immaterial that parts of two counties are united in creating the district.</p> <p>3. In such case, where the tax-payers in such district, resident in one of the counties, have paid more than their proportion of the tax to build the fence, the county commissioners of that county are the proper parties to bring an action to correct the wrong, and when the mone}’ is collected, it will be retained as a special credit to each of such tax-payers in a general collection of county taxes.</p> | CIVIL ACTION tried before Shepherd, Judge , upon a demurrer to the complaint, at Spring Term, 1884, of LENOIR county. | null | null | null | null | 3,780,739 | null | 0 | nc | S | t | Supreme Court of North Carolina | Supreme Court of North Carolina |
9,865,186 | On Rehearimg. Zamp received a trustee’s deed September 2, 1926, and the same day notified the mortgagor, Lamon, to quit on September 6th. September 7th Zamp brought suit in unlawful detainer before justice of the peace. Defendant *91answered that September 4th, “plaintiff agreed, in consideration of the snm of $35, to be paid to him, that he would extend the time for defendant to vacate the premises mentioned in the complaint until he (the defendant) could get loan papers made out, ’ ’ but afterwards refused to carry out the agreement. Plaintiff had judgment and defendant appealed to the county court where judgment was rendered for plaintiff on the pleadings. The question here is whether that was right. We think not. Since the $35 is not shown to have been either paid or promised no valid consideration is shown for the promise of forbearance and therefore a general demurrer would lie to the answer; but that does not necessarily furnish a case for judgment on the pleadings. The motion is not a substitute for demurrer, and should not be sustained where the defect complained of is proper to be cured by amendment, which the present one is. Kingsbury v. Vreeland, 58 Colo. 212, 215, 144 Pac. 887, and cases there cited; Wallace v. Collier, 59 Colo. 144, 148; 147 Pac. 660; Childers v. Baird, 59 Colo. 382, 387, 148 Pac. 854. The motion is apt to work injustice and should be granted only with circumspection, and not when merely no defense appears, but only when it appears that the answer is such that no amendment could make it good. The question of the statute of frauds is argued, but in the statement of a,contract such as might be within the statute it is not necessary to say that it is in writing. If it is not, that is a matter of confession and avoidance. Tucker v. Edwards, 7 Colo. 209, 211, 3 Pac. 233; Hunt v. Hayt, 10 Colo. 278, 281, 15 Pac. 410; McLure v. Koen, 25 Colo. 284, 287, 53 Pac. 1058; Pettit v. Mayhew, 43 Colo. 274, 276, 95 Pac. 939; Dennison v. Barney, 49 Colo. 442, 447, 113 Pac. 519; Expansion Co. v. Campbell, 62 Colo. 410, 417,163 Pac. 968; Tynon v. Despain, 22 Colo. 240, 43 Pac. 1039. It does not appear that the contract was not in writing, therefore the statute of frauds is out of the question. *92The former opinion is withdrawn; the judgment is reversed with directions to overrule the motion for judgment on the pleadings and proceed with the case. | opinion_xml_harvard | 429 | 2023-09-25 16:26:38.485979+00 | 070rehearing | f | f | 3,319,494 | Denison, Zamp | null | ZU | f | Published | 4 | Lamon v. Zamp | Lamon | Lamon v. Zamp. | null | null | <docketnumber id="b106-4">
No. 11,751.
</docketnumber><br><parties id="b106-5">
Lamon
<em>
v.
</em>
Zamp.
</parties><br><decisiondate id="b106-6">
Decided February 21, 1927.
</decisiondate><br><attorneys id="b106-15">
Mr. John D. Milliken, for plaintiff in error.
</attorneys><br><attorneys id="b106-16">
Mr. L. D. Hunt, for defendant in error.
</attorneys><br><court id="b106-17">
<em>
En Banc.
</em>
</court> | null | Action in unlawful detainer. Judgment for plaintiff.
Reversed.Error to the County Court of the City and County of Denver, Hon. George W. Dunn, Judge. | null | null | null | null | 3,191,615 | No. 11,751. | 0 | colo | S | t | Supreme Court of Colorado | Supreme Court of Colorado |
8,051,196 | Johnson, J. This case involves a town tax abatement program designed to reimburse persons for money spent educating students in schools outside the local school system. The defendants in these consolidated cases, the Town of Epsom and its board of selectmen (collectively referred to as “the selectmen”), appeal the Superior Court’s (Manias, J.) order declaring the selectmen’s abatement program invalid under former RSA 76:16 (hereinafter “RSA 76:16”) (amended version at RSA 76:16 (Supp. 1992)). The plaintiffs are Barbara Barksdale and thirty-five other Epsom citizens and taxpayers, suing on behalf of themselves and all other Epsom citizens and taxpayers, and the Epsom School Board and its individual members. On appeal, the selectmen argue that abatements granted pursuant to their program are granted “for good cause” and, therefore, satisfy the requirements of RSA 76:16. The selectmen also dispute the plaintiffs’ contention that the program violates part I, article 12 and part II, articles 5 and 83 of the New Hampshire Constitution, as well as the first amendment to the United States Constitution. Because we affirm the superior court’s finding of a statutory violation, we do not reach the constitutional issues, see State v. Hodgkiss, 132 N.H. 376, 379, 565 A.2d 1059, 1061 (1989), and relate only those facts relevant to the statutory question. The selectmen adopted their abatement program in December 1990 in response to an escalating education budget and a perceived need for expanded choice and competition in education. The program applies only to Epsom high school students, most of whom attend the neighboring Town of Pembroke’s high school at a cost to Epsom of almost $5,000 per student. Epsom has no high school of its own and contracts with Pembroke to educate its high school students. In its *513basic form, the program provides that if an Epsom high school student attends a school other than Pembroke’s high school, and if an Epsom taxpayer pays that student’s educational expenses, then the selectmen may abate the taxpayer’s real estate taxes by up to $1,000. Thirteen people, all of whom had children enrolled in secondary schools other than Pembroke’s during the 1990-91 school year, applied for the abatement for the 1991-92 school year. Twelve received the requested abatement; the thirteenth application was denied as untimely. The plaintiffs asked the superior court to declare the abatement program invalid under RSA 76:16, which allows selectmen to grant abatements “for good cause.” The superior court determined that this court “has limited the phrase [‘good cause’] to two specific applications: disproportionate assessment, and inability to pay.” As the situation of the abatement applicants fell into neither of these two categories, the superior court ruled the program violative of RSA 76:16. In addition, the superior court found “that the educational tax abatement program is more accurately characterized as an exemption from tax, rather than an abatement of tax.” As such, the court held the program beyond the authority of the selectmen to adopt, citing Trustees &c. Academy v. Exeter, 92 N.H. 473, 480, 33 A.2d 665, 670 (1943) (tax exemption is within the legislature’s province). On appeal, the selectmen assert that the superior court should have broadened its interpretation of the phrase “for good cause” to include the standards of justice and equity. In response, the plaintiffs urge us to adopt the superior court’s reasoning and in addition argue that the selectmen’s program violates another provision of RSA 76:16, that persons receiving an abatement be personally aggrieved by the tax. We begin with an examination of the statute. See Chambers v. Geiger, 133 N.H. 149, 152, 573 A.2d 1356, 1357 (1990). It reads: “Selectmen or assessors, for good cause shown, may abate any tax assessed by them or by their predecessors. Any person aggrieved by the assessment of a tax and who has complied with the requirements of RSA 74, may, within 60 days after notice of the tax, and not afterwards, apply in writing to the selectmen or assessors for an abatement of the tax.” RSA 76:16 (emphasis added). The statute’s current version contains amendments not material to issues raised by this appeal. See RSA 76:16 (Supp. 1992). The critical words, “good cause,” are not defined in the statute, but the plaintiffs assert that the language “[a]ny person aggrieved by *514the assessment of a tax” evinces an intent to limit the application of the statute to situations of personal inequity, not problems of public policy. Cf. Appeal of N.H. Catholic Charities, 130 N.H. 822, 828, 546 A.2d 1085, 1088-89 (1988) (meaning of statute is determined from its construction as a whole). The selectmen do not fault the plaintiff’s premise, but counter that persons seeking abatements under their program are indeed “personally aggrieved.” The program, they argue, provides relief for individual taxpayers who, by educating children outside of the Epsom school system, are relieving Epsom of a substantial tax burden and at the same time shouldering more than their fair share of that load. See Bretton Woods Co. v. Carroll, 84 N.H. 428, 431, 151 A. 705, 706 (1930) (issue is whether petitioner is unlawfully or unjustly taxed in relation to other taxpayers). We agree with the plaintiffs that a taxpayer must be “personally aggrieved” by a tax to receive an abatement, see RSA 76:16, and reject the selectmen’s argument that their abatement program meets this requirement. A citizen cannot claim tax aggrievement merely because he or she does not personally add to the public education expense. Cf. Union Transit Co. v. Kentucky, 199 U.S. 194, 203 (1905) (taxpayers cannot refuse to pay tax simply because they do not receive equal share of benefits; childless citizens are bound to pay normal share of school tax); 1 T. Cooley, The Law OF TAXATION § 89, at 214, § 261, at 564-65 (C. Nichols ed., 4th ed. 1924) (same). Accordingly, we find that persons qualifying for abatements under the selectmen’s program are not “aggrieved” for purposes of RSA 76:16, and that the program as a whole thereby violates the statute. Although our analysis could end here, we find additional support for our holding by examining the term “good cause.” We look first at its “plain and ordinary meaning.” See Catalano v. Town of Windham, 133 N.H. 504, 511, 578 A.2d 858, 862 (1990). Webster’s defines “good cause” as “a cause or reason sufficient in law: one that is based on equity or justice or that would motivate a reasonable man under all the circumstances.” Webster’s Third New International Dictionary 978 (unabridged ed. 1961). The latter part of the definition supports the selectmen’s attempt to attach a broad meaning to the words, while the former implies that “good cause” derives its sense from judicial interpretation. This inherent ambiguity necessitates an investigation beyond the statute to the relevant legislative history, see Petition of Public Serv. Co. of N.H., 130 N.H. 265, 282, 539 A.2d 263, 273 (1988), in addition to our customary examination of the statutory scheme and past judicial interpretation. *515As the selectmen point out, this court has never explicitly limited the application of the statute to situations of disproportionate assessment and inability to pay. On the other hand, during the one hundred and fifty years since RSA 76:16 was adopted, see RSA 76:16 annot.; RS 44:1 (1842), this court has never affirmed an abatement for anything other than disproportionate assessment or inability to pay. See, e.g., Ansara v. City of Nashua, 118 N.H. 879, 880, 395 A.2d 513, 515 (1978); Hodges v. Kensington, 102 N.H. 399, 400, 157 A.2d 649, 650 (1960); Bretton Woods, 84 N.H. at 431, 151 A. at 706; Edes v. Boardman, 58 N.H. 580, 587 (1879); Briggs’ Petition, 29 N.H. 547, 551-52 (1854). This consistent application of the statute supports the plaintiffs’ position. See Bretton Woods, supra, at 432, 151 A. at 707 (that a similar abatement had apparently never previously been granted bolstered court’s decision not to approve one). The selectmen cite Dewey v. Stratford for the proposition that “[t]he authority of selectmen to abate is not in any way restricted,” Dewey v. Stratford, 40 N.H. 203, 206 (1860) (taxpayers cannot be denied abatements merely because they are non-residents), but we think the balance of this court’s decisions on abatements counsel against elevating this dictum out of its context. We conclude that our court’s past interpretation of the statute supports a less than boundless view of the term “good cause.” We next turn to an examination of the relevant legislative history. The selectmen cite several instances of the legislature granting or authorizing abatements for persons who undertake responsibilities that reduce a municipality’s fiscal burden, see, e.g., Order of General Assembly (Nov. 9,1699) (abatement for Eliz. Harvey, “by reason she keeps the post office”), reprinted in 1 LAWS OF New HAMPSHIRE 668 (1904), or inure to the public benefit, see, e.g., Laws 1834, ch. CLXXXI, at 163 (abatement for persons who pay taxes early); Vote of General Assembly (May 29, 1691) (abatement for soldiers), reprinted in 1 Laws of New Hampshire 477 (1904). The selectmen assert that taxpayers who pay to educate a child outside the Epsom school system are just as deserving of tax relief. The issue here is not whether the legislature has the authority to grant relief of this nature, but whether selectmen may do so in the name of “good cause.” The selectmen have cited no cases or relevant history supporting such authority and we have found none. Again, we find this supports the plaintiffs’ position. See Bretton Woods, 84 N.H. at 432, 151 A. at 707. Finally, we examine other portions of RSA chapter 76, because “all statutes upon the same subject-matter are to be consid*516ered in interpreting any one of them.” Appeal of Town of Hampton Falls, 126 N.H. 805, 809, 498 A.2d 304, 307 (1985) (quotation omitted). In particular, we note that RSA 76:18 directs a municipality to abate a person’s tax by up to three dollars if the person maintains a watering trough for horses, provided that the trough is found by the selectmen to be “necessary for the convenience of travelers.” Similarly, RSA 76:19 grants selectmen the discretionary authority to abate a portion of the taxes of a person who plants shade trees alongside a highway adjoining the person’s land. Each of these statutes in effect compensates someone for undertaking a responsibility that benefits the municipality. While the selectmen point to these statutes to support their argument that RSA 76:16 sanctions its abatement program, we believe the statutes bolster the opposite conclusion. RSA 76:16 was enacted before either RSA 76:18 or RSA 76:19, see RS 44:1; Laws 1858, ch. 2122; G.L. 37:9, and therefore we may presume that the legislature knew of RSA 76:16 at the time it enacted the later statutes, see Appeal of Hampton Falls supra. If RSA 76:16 allows a municipality to abate taxes to compensate someone for maintaining a watering trough or planting shade trees under the rubric “good cause,” as the selectmen suggest, then it is difficult to understand why the legislature would have found it necessary to enact RSA 76:18-19. This is particularly true of RSA 76:19, which merely authorizes—not directs—selectmen to grant such abatements. As the selectmen’s interpretation of RSA 76:16 would turn RSA 76:19 into mere surplusage, see Town of Wolfeboro v. Smith, 131 N.H. 449, 453, 556 A.2d 755, 757 (1989), we reject it and instead conclude that the words “good cause” do not apply to the selectmen’s desire to compensate Epsom taxpayers who educate Epsom high school students outside the Epsom school system. Our above analyses address all of the selectmen’s relevant arguments but one, that the superior court “abused its discretion when it substituted its judgment of what ‘good cause’ is within the meaning of RSA 76:16 for that of the Board of Selectmen.” We answer simply that construction of RSA 76:16 is a question of law and, therefore, the superior court was not obliged to accord any deference to the decision of the selectmen. Affirmed. THAYER, J., did not sit; the others concurred. | opinion_xml_harvard | 1,988 | 2022-09-09 04:12:04.76145+00 | 020lead | t | f | 8,091,056 | Johnson, Others, Thayer | null | U | f | Published | 0 | Barksdale v. Town of Epsom | Barksdale | Barbara Barksdale & a. v. Town of Epsom Epsom School Board & a. v. Town of Epsom Board of Selectmen | null | null | null | null | null | null | null | null | null | 65,186,672 | No. 91-420 | 0 | nh | S | t | Supreme Court of New Hampshire | Supreme Court of New Hampshire |
8,674,489 | Dismissed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Thomas Dean, Jr., seeks to appeal the district court’s order dismissing as untimely his 28 U.S.C.A. § 2255 (West Supp. 2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2006). A certificate of ap-pealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). *514When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. . 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Dean has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED. | opinion_xml_harvard | 247 | 2022-11-25 01:21:38.553168+00 | 020lead | t | t | 8,691,406 | Davis, Motz, Wynn | null | U | f | Published | 0 | United States v. Dean | Dean | United States v. Thomas DEAN, Jr. | null | null | null | null | null | null | null | null | null | 65,956,865 | No. 12-7065 | 0 | ca4 | F | t | Fourth Circuit | Court of Appeals for the Fourth Circuit |
8,427,011 | *828 ORDER William Waters, a Tennessee state prisoner proceeding pro se, appeals a district court judgment dismissing his civil rights complaint filed under 42 U.S.C. § 1988. Waters has filed a motion for a preliminary injunction. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a). On February 14, 2000, a disciplinary panel found Waters guilty of assaulting another prisoner. For this infraction, Waters was placed in punitive segregation for 20 days, was forced to pay a five-dollar fine and was later placed in involuntary administrative segregation. The disciplinary conviction was affirmed through two levels of administrative appeal. On June 13, 2000, Waters filed a Petition for Writ of Certiorari in the state court contending that there was no evidence that he had initiated an assault, and that the disciplinary board had ignored evidence that he was actually defending himself from a potentially deadly assault by another prisoner. After noting the state’s lack of response to Water’s motion for summary judgment filed on November 26, 2001, the trial court found the disciplinary board’s action to be arbitrary, and reversed the conviction. The opinion was filed January 30, 2002. The Tennessee Court of Appeals affirmed in an opinion filed July 24, 2003. According to the complaint, Waters was “retried” for the same incident on July 10, 2002, and was once again found guilty of the charge and punished. Waters alleges in his § 1983 complaint that his conviction was completely arbitrary and was unsupported by the evidence. The complaint, dated October 6, 2003, was filed October 22, 2003. The district court dismissed the complaint because it was allegedly barred by the one-year statute of limitations imposed upon civil rights claims brought in Tennessee. The dismissal was pursuant to 28 U.S.C. § 1915(e)(2). Reconsideration was denied. This appeal followed. We review de novo a district court’s decision to dismiss a suit for failure to state a claim upon which relief may be granted under 28 U.S.C. § 1915(e)(2). Brown v. Bargery, 207 F.3d 863, 867 (6th Cir.2000). In reviewing a dismissal of a complaint for failure to state a claim, this court must accept all well-pleaded factual allegations as true. Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 405 (6th Cir. 1998). “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993) (citation omitted). For all § 1983 actions, federal courts apply the relevant state’s personal injury statute of limitations. Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). The appropriate statute of limitations for personal injury actions arising in Tennessee is one year from the date the cause of action accrues. Tenn.Code Ann. § 28-3-104(a)(3) “[T]he statute of limitations begins to run when the plaintiff knows or has reason to know of the injury which is the basis of his action.” McCune v. City of Grand Rapids, 842 F.2d 903, 905 (6th Cir.1988). The Prison Litigation Reform Act amended 42 U.S.C. § 1997e to provide: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (1999). This language unambiguously requires exhaustion as a mandatory *829threshold requirement in prison litigation. Prisoners are therefore prevented from bringing suit in federal court for the period of time required to exhaust “such administrative remedies as are available.” Brown v. Morgan, 209 F.3d 595, 596 (6th Cir.2000). For this reason, the statute of limitations which applied to Waters’s civil rights action was tolled for the period during which his available state remedies were being exhausted. See Harris v. Hegmann, 198 F.3d 153, 157-59 (5th Cir.1999). Waters exhausted his administrative remedies through the prison grievance system but he also sought judicial review by way of a petition for a writ of certiorari. The Chancery Court ordered that the writ be granted “on the grounds that the respondent acted arbitrarily, capriciously and in a manner unsupported by the evidence in light of the entire record,” and ordered the reversal of Waters’s disciplinary conviction. While the case was pending in the Tennessee Court of Appeals, Waters was apparently retried for the same incident on July 10, 2002, and was once again found guilty of the charge and punished. The Tennessee Court of Appeals ultimately affirmed the Chancery Court’s decision on July 24, 2003. The issue here focuses on whether the exhaustion of Waters’s state court remedies ended on July 10, 2002, when he was again found guilty, or whether exhaustion ended on July 24, 2003, when the Tennessee Court of Appeals affirmed the state trial court’s original decision granting Waters’s petition for a writ of certiorari. Since § 1997e precludes a state prisoner from filing suit while the administrative complaint is pending, see Brown, 209 F.3d at 596; Wendell v. Asher, 162 F.3d 887, 890 (5th Cir.1998), the statute of limitations that applied to Waters’s civil rights action was tolled for the period during which his available state remedies were being exhausted. See Brown, 209 F.3d at 596. Exhaustion, therefore, ended on July 24, 2003, when the Tennessee Court of Appeals affirmed the state trial court’s original decision granting relief to Waters. Thus, the complaint, dated October 6, 2003 and filed October 22, 2003, is timely. Therefore, the motion for a preliminary injunction is denied, the district court’s judgment is vacated, and the case is remanded to that court for such other proceedings as may be necessary. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | opinion_xml_harvard | 989 | 2022-11-04 03:15:15.132274+00 | 020lead | t | f | 8,455,322 | Clay, Gilman, Matia | null | U | f | Published | 0 | Waters v. Evans | Waters | William WATERS v. Carl EVANS, Captain, Corporal and Internal Affairs Investigator at TCIP Michael Roberts, Captain, Sergeant and Disciplinary Board Chairperson Oneida Hensin, Employee at TCIP James Flowers, Employee at TCIP Jack Morgan, Warden at TCIP Jeff Butler, Sergeant and Disciplinary Board Chairperson, Bryant Williams, Employee at TCIP Mary Stewart, Employee at TCIP Jim Rose, Assistant Commissioner, Tennessee Department of Correction | null | null | null | null | null | null | null | null | null | 65,678,265 | No. 03-6576 | 0 | ca6 | F | t | Sixth Circuit | Court of Appeals for the Sixth Circuit |
3,315,369 | DEFENDANT Buschman was convicted of the statutory crime of operating and knowingly having in his possession *Page 174 a still, used, designed and intended for the manufacture of intoxicating liquor. He brings error. The only errors assigned are that the verdict is contrary to the law and the evidence; that prejudicial, inadmissible evidence was improperly admitted over the defendant's objection; that admissible evidence offered by defendant was erroneously rejected. The only errors argued on this application are that the evidence is insufficient, which is within the written assignment; and that the jury was not correctly instructed as to the law of circumstantial evidence, which is not a part of the assignment. It would be useless and an unnecessary hardship on the defendant to grant this application for a supersedeas for we are convinced, as the result of reading the entire transcript, that the defendant had a fair trial, that no prejudicial error was committed by the trial court in its rulings, and that the evidence is amply sufficient to sustain the verdict and sentence pronounced thereon. The testimony of the sheriff of the county and his two deputies uphold the charges of the information. The testimony of the defendant, though it is contradictory, was not believed by the jury. The only question of importance is one of fact and it was resolved by the jury against the defendant and we cannot disturb its finding. The alleged error in the instruction as to the law of circumstantial evidence, which is said in argument to be erroneous, is not included in any of the errors assigned; but, if it was properly before us for consideration, the objection to a similar instruction has been decided against the defendant's contention in the case of Conferti v. People , 79 Colo. 666 , 247 P. 1065 . Aside from this, the direct and positive evidence of the witnesses for the state is sufficient to sustain the verdict. The application for supersedeas is denied and the judgment affirmed. MR. CHIEF JUSTICE ALLEN and MR. JUSTICE SHEAFOR concur. *Page 175 | opinion_html_with_citations | 343 | 2016-07-05 17:32:46.336824+00 | 020lead | f | f | 3,320,220 | Campbell | null | ZU | f | Published | 0 | Buschman v. People | Buschman | Buschman v. the People. | null | null | <docketnumber id="b189-4">
No. 11,671.
</docketnumber><br><parties id="b189-5">
Buschman
<em>
v.
</em>
The People.
</parties><br><decisiondate id="b189-6">
Decided October 4, 1926.
</decisiondate><br><attorneys id="b189-19">
Mr. George H. Lerg, for plaintiff in error.
</attorneys><br><attorneys id="b189-20">
Mr. William L. Boatright, Attorney General, Mr. Jean S. Breitenstein, Assistant, for the people.
</attorneys><br><court id="b189-21">
<em>
Department Three.
</em>
</court> | null | Plaintiff in error was convicted of having in his possession and operating a still for the manufacture of intoxicating liquor.
Affirmed.
On Application for Supersedeas.Error to the District Court of Grand County, Hon. Charles E. Herrick, Judge. | null | null | null | null | 3,192,341 | No. 11,671. | 0 | colo | S | t | Supreme Court of Colorado | Supreme Court of Colorado |
7,190,871 | Howell, J. A motion was made at the July term of 1873 to dismiss this appeal on two grounds, the first of which is because the transcript was not filed in time. The appeal was made returnable on the third Monday of July, 1872, which was the fifteenth day of said month. On the seventeenth day of the same month, on motion of counsel for the appellants, the return-day was extended to Monday, the twenty-second of July, 1872. On the *791twenty-third of July, 1872, another motion was made and granted extending the return-day to the third Monday of July, 1873. This last motion was too late, and the order made on it without effect in law, as the delay on the first extension to the twenty-second of July, .1872, had expired, and it was not in the power of the court to make a return when the delay had expired. It has been repeatedly held that an extension of the return-day does not carry with it the “ days of grace ” added to the original return-day, and that a second or subsequent application for an extension must be made on or before the day to which the extension is made. It is therefore ordered that the appeal herein be dismissed with costs. | opinion_xml_harvard | 213 | 2022-07-24 16:56:37.075701+00 | 020lead | t | f | 7,275,087 | Howell | null | U | f | Published | 0 | Cane v. Caldwell | Cane | M. D. C. Cane v. Caldwell & Kahn | <p>APPEAL from the Tenth Judicial District Court, parish of Caddo. Levisee, J.</p> | null | null | <p>An extension oí the return-day does not carry with it the “ days of grace ” added to the original return-day, and a second or subsequent application for an extension must be made on or before the day to which the extension is made. This has been repeatedly held.</p> | null | null | null | null | null | 64,263,469 | No. 475 | 0 | la | S | t | Supreme Court of Louisiana | Supreme Court of Louisiana |
5,179,262 | OPINION STOKES, J. Defendant AMEC Environmental & Infrastructure, Inc. (“AMEC”) has filed a motion to compel documents in the possession of non-party Golder Associates (“Golder”). The State of Delaware Department of Transportation (“the Department”) opposes the motion, arguing that 178 of the 181 the documents sought are exempt from discovery under what it calls the “executive/deliberative process privi*261lege.” 1 This nomenclature is clarified in a later section. Delaware Uniform Rule of Evidence (“DRE”) 508 recognizes certain governmental privileges based on both federal and state law. However, the Department, as the moving party, has not meet its burden to show that the executive/deliberative process privilege applies in this litigation. Therefore, AMEC’s motion to compel is granted as to the 178 documents for which the Department asserts the executive/deliberative process privilege. Facts The Indian River Inlet Bridge (“the Bridge”) spans the Indian River Inlet and carries State Route 1 over the Inlet. Plaintiff is responsible for ensuring that the Bridge is maintained in safe condition for transport of people and goods over the Bridge. In 2002, Plaintiff started plans to replace the Bridge. In June 2003, Plaintiff and Figg entered into a design Agreement (“the Agreement”) for the new bridge (“the Project”). The roadway approaches, as designed by Figg and another subcon-sultant, consisted of earthen embankments retained by six mechanically stabilized earth (“MSE”) walls, concrete facing and stabilized slopes. The Agreement identified the subconsultants Figg would hire for each facet of the Project. As specified, Figg engaged Defendant- AMEC as the subconsultant responsible for performing a site assessment and a Preliminary Foundation Study for both the roadway and the Bridge structure. AMEC is a geotechnical engineering firm. Its reports contained information of expected rates of settlements and time rates of consolidation for the embankments. In December 2003, AMEC submitted an expanded Final Roadway Report. In May 2005, AMEC submitted a revised Report reflecting higher rates of settlement. Construction of the embankment and roadway started in June 2005 under a contract between Plaintiff and Kuhn Construction Co. (“Kuhn”). Actual deformation of the MSE walls continued at a rate greater than that predicted by AMEC. Other project participants registered concern about settlement of the soft clay under the embankments. In 2006, Plaintiff adopted an accelerated design and construction concept in order to avoid further damage. The new structure would incorporate the earthen embankments designed by Figg based on AMEC data. Much latér, investigation established that AMEC’s 2005 report contained significant inaccuracies. Plaintiff submitted White Papers to the Federal Highway Administration (“FHWA”), which reflected the ongoing problems and recommended an independent investigation. The FHWA concurred. The independent investigation confirmed that long-term vertical settlement was greater than that, stated in the AMEC report. Construction continued, although not smoothly. In the fall of 2007, Plaintiff decided on significant replacement of the embankments designed by Figg based on AMEC’s input. Based on the latest White Papers, the FHWA agreed. ,. Deconstruction of the embankments and the MSE walls designed by Figg took place between May and December 2008. Plaintiff engaged the engineering firm of O’Connell & Lawrence, Inc. (“OCL”) to conduct an investigation into what went wrong. OCL retained Golder Associates, Inc. (“Golder”), a geotechnical consulting firm. Representatives of both firms were *262on-site during deconstruction to perform field tests and measurements. They found nothing to indicate that the building contractor, Kuhn, caused or contributed to the embankment deficiencies. According to Paragraph 70 of the Complaint, Plaintiff informed Figg and AMEC by letter dated October 23, 2008, that because of serious concerns with the engineering studies for and design of the Bridge, the parties should “begin consideration and discussion” of the error and/or omissions (“E & 0”) process, which is a dispute resolution process. However, at argument counsel for the Department stated that “In November of 2007, the Department provided formal notice of the intention to file this errors and omissions policy.”2 As part of the E & O process, the Department’s project manager transmitted to Defendants the provisional findings of errors and omissions on Defendants’ part, as well as Golder and OCL’s assessments. Golder found six instances where AMEC had failed to meet the applicable standard of care. Plaintiff adopted the Golder findings in January 2011 and alleged them in the Complaint. AMEC refused to participate in the E & O process, stating that it would serve in an advisory capacity to Figg. The Department filed suit because AMEC refused to participate in resolving the financial responsibility of Figg and AMEC for AMEC’s multiple errors and omissions. AMEC served a subpoena duces tecum on non-party Golder. The Department argues that 178 of the 181 documents are protected by the executive/deliberative process privilege. Discussion The executive/deliberative process privilege. This privilege permits the government to withhold documents that reflect opinions, recommendations and deliberations that are part of a governmental decision-making.3 As an initial matter, that agency decision must be identified. The Department in its motion asserts that the decision in question is January 20, 2011, the date of the project manager’s report concluding that AMEC did not comply with applicable professional standards. AMEC correctly asserts that the date is uncertain and that the Department has discussed various dates but has not identified the significant one. The Department, as a State agency, decided to initiate the contractual E & O process because of the failures of the project and the need for deconstruction, with which the FHWA agreed. This agency decision is the operative one that set in motion an investigatory procedure focused on identifying causation and also undertaken in anticipation of litigation. On November 18, 2007, the Department formally communicated to Figg that the E & O process would begin and that Figg should convey this information to its subcontractors. The letter stated the Departs ment’s “intentions to thoroughly investigate and review the design decisions and recommendations offered by [Figg’s] design team over the course of [the] project” pursuant to the E & O process.4 By that time, the decision to pursue E & O had been made in part in anticipation of litigation. The parties knew from experience in the field that AMEC had provided contradictory and unreliable information *263throughout the construction process and that the unreliable data could well be the cause of the degradation of the project. Under the Agreement, the E & 0 process was investigatory in nature and followed the Department’s decision to remove the bridge’s supports and embankments. The contractual E & 0 process is discussed infra. The agency decision that triggered the executive/deliberative process privilege, if one is found to exist in Delaware, is November 13, 2007. The executive/deliberative process privilege does not protect purely factual matters unless the facts are inextricably intertwined with the decision-making process.5 The Department bears the burden to establish a prima facie claim to the executive/deliberative process privilege, and does so by showing that each document sought is both predecisional and deliberative.6 If that burden is met, the burden shifts to the Defendant to show substantial need.7 Under DRE 508(a), a privilege can be claimed in Delaware that exists because of a mandatory federal Constitutional privilege. The federal Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, establishes general disclosure of public documentation for federal agencies unless the information fits one of nine exceptions. The fifth exception applies to “intra-agency memorandums,” interpreted by case law to mean public documents which a private party could not discover in civil litigation with the agency.8 The deliberative process privilege is recognized under federal common law, and FOIA was enacted by Congress under the United States Constitution.9 The federal FOIA does not govern Delaware common law nor does it affect rights reserved to the states under the federal Constitution. Thus, DRE 508(a) does not provide a basis for the assertion of the privilege. The next question is whether the claimed deliberative process privilege is applicable under DRE 508(b). The answer is no. In Guy v. Judicial Nominating Commission,10 then-President Judge Ridgely recognized an executive privilege to protect against disclosure of judicial nomination materials in a mandamus action on a Delaware freedom of information case. As to nomenclature, the Guy Court stated as follows: The phrase “executive privilege” has not been used with precision or uniformity by courts. It can apply to communications to and from the Presidents, or a governor. This privilege is sometimes also referred to as the “state secret privilege,” the “official information privilege,” or the “deliberative process privilege.” 11 The Couid discussed the executive privilege held by the President and also by various governors. Finally, the Court recognized “as' part of the constitutional and common law of the State the doctrine of executive privilege with respect to the source and substance of communications to and from the Governor in the exercise of *264his appointive power.”12 There is no reference to the deliberative process privilege with its requirements that documents be pre-decisional and deliberative. This privilege plays no part in the Guy decision. The Guy Court recognized only the Governor’s executive privilege. Discussion of the deliberative process privilege in Delaware case law is rare. For example, in Beckett v. Trice, this Court stated as an aside “that the ‘deliberative process privilege’ does not exist in Delaware.” 13 The privilege was raised substantively in Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Bd. (“Chemical”).14 Then-Vice Chancellor Jacobs found the Board’s Regulations to be void because the public was excluded from the Board’s rule-making sessions. Although the Board argued in that its deliberative comments were protected by the deliberative process privilege, it provided no support for this position. Instead, the Board asked the Chancery Court to recognize a deliberative privilege. The Court rejected this request because it had no basis in Delaware statutory law or case law. At argument in this case, the Department asserted that Chemical glossed over or misinterpreted the common law when discussing the State FOIA definition of a public record. The Department argues that the Delaware phrase “common law” should embrace federal common law, which recognizes the deliberative process privilege.15 However, the phrase clearly focuses on Delaware law, and the Court found no independent support for the privilege in the open meeting aspects of federal FOIA law. The distinction between Delaware and federal common law has been recognized in the Delaware District Court.16 Further, the Chemical Court observed that the thrust of the Delaware Freedom of Information Act is against secret government communications and cuts against the Department’s position that it is a safe haven for a deliberative process privilege.17 An instructive case is found in Republican Party of New Mexico v. New Mexico Taxation and Revenue Department, (“Republican Party ”). The New Mexico Supreme Court held that the New Mexico Constitution supported a qualified executive privilege for the Governor but that no basis existed for a deliberative process privilege applicable to state agencies.18 Under federal law, the presidential communications privilege is rooted in constitutional separation of powers, while the deliberative process privilege is based on common law.19 The states find various sources and applications of these privileges. Several states recognize a qualified executive privilege analogous to the federal executive privilege that is applicable only to governors.20 Other states apply a *265consolidation of the two privileges which is applicable both to the governor and to executive agencies.21 Some states reject a common law deliberative process privilege,22 and one state, Massachusetts, does not recognize any form of executive privilege.23 Within this range of possibilities, Delaware recognizes that the Governor enjoys a qualified executive privilege as set forth in Guy. Guy’s conclusion about the Governor is consistent with the Court’s recognition of a qualified privilege for materials related to a criminal investigation is recognized in Delaware.24 However, it is not extended to investigative reports in civil cases.25 As one court has put it, “when the government seeks affirmative relief, it is fundamentally unfair to allow it to evade discovery of materials that a private plaintiff would have to turn over,” thus forcing the defendant to show its hand while the government holds out.26 As argued by AMEC, the embankments may have been taken down for a number of reasons, and AMEC is entitled to Golder’s information and analysis that may be presented at trial.27 At argument, the Department observed that no other State agency has asserted the deliberative process privilege.28 Thus, the Department asks the Court to adopt, not the executive privilege as delineated in Guy, but a hybrid of two privileges, which would broaden the Governor’s executive privilege to include the deliberative processes of State agencies and departments. To do so would be to act without Delaware precedent, and the Court declines to do so. Under Delaware’s liberal discovery rules, “[pjarties may obtain discovery regarding any material, not privileged, which is relevant. to the subject matter involved in the pending action.” Rule 26(b)(1). The Golder documents sought by AMEC are not privileged and are within the scope of Rule 26 discovery. Balancing factors. In jurisdictions that recognize the deliberative process privilege and where the government has met its burden of showing that the documents are pre-decisional and deliberative, the burden shifts to the adverse party to show that the privilege should be waived.29 Several factors are to be considered in determining whether the sought-after documents should be produced.30 *266The first factor is the relevance of the evidence sought to be protected. Here, the Golder documents contain relevant data about the failure of the project and the reliability of AMEC’s input. This is the heart of the matter and therefore relevant. The second factor asks whether other evidence is available to serve the same purpose. The answer is a straightforward “no.” Golder gathered the data and compiled it into meaningful form. No other such data exist. The third factor asks whether the seriousness of the litigation and the issues warrant turning over the documents. The Department seeks affirmative relief between twenty and forty million dollars, and the issues and outcome affect the parties as well as the citizens of Delaware. This case is serious. The fourth factor is the state’s role in the litigation. The State filed this action, which has high stakes. The Department initiated the rebuilding of the Bridge, drafted the contract and identified the subcontractors to be retained by the general contractor. Departmental officials and staff were active in every phase of the construction, deconstruction and rebuilding. Because of the failure of the project and associated costs, the State brought the suit. The fifth factor asks whether state employees will be more timid when they realize that their communications may be discoverable. This risk is limited because the documents contain information and opinions, not intentional misinformation or disingenuous advice. Instead, they pertain to potential breaches of professional standards and to the possible contractual liabilities that are standard fare in commercial litigation and not of a sensitive character. Having considered these factors, if the deliberative process privilege was available to the Department, the five factors weigh in AMEC’s favor. Privilege log. Even if Delaware recognized an executive/deliberative process privilege, the privilege log, prepared by the Department for the Golder documents, is deficient. Such a failure can be deemed to constitute a waiver unless the Court finds that the proponent has made a good faith effort to provide meaningful descriptions of the documents.31 As explained in Klig v. Deloitte LLP,32 the purpose of a privilege log is to record sufficient information about each document to assess the propriety of the assertion of the privilege. While the De-loitte court addressed a log asserting the attorney/client privilege, an identical type of log is required for work product immunity, the executive/deliberative process privilege or other asserted privileges. The description of each document in the log must be “ ‘sufficiently detailed so that someone can actually assess whether it makes sense to challenge the document.’ ”33 The party claiming the privilege must identify (1) the date of each communication; (2) the parties to the communication, including both names and positions; (3) the attorneys involved; and the subject matter of each communique sufficient to show why the privilege is warranted, as well as whether it pertains to the decision or decisions in question, including facts to bring each document within the narrow reach of the privilege.34 AMEC seeks 178 documents which the Department asserts are protected by the *267DPP. The Department has submitted a privilege log theoretically designed to allow a judge to determine whether or not documents are protected.35 Here, the privilege log is similar in significant ways to the privilege log rejected in Deloitte in insufficiency of detail and repetitive, meaningless entries. The log provides dates for all documents; document types such as “Handwritten notes” or “Memorandum”; and authors’ and recipients’ names, but without identification of their positions or identification of attorneys. Under the key heading “Description,” 105 entries state “analysis for embankment failure report” without elaboration. The remaining entries use the phrase “embankment failure” preceded by such words as “Discussion of,” “notes and handouts,” “Analysis of,” “Needed interviews,” “Notes to telephone conference,” “Draft of’ and “outline for.” Based on this type of wording, Plaintiff argues that the facts are so entwined with opinions that the two cannot be extricated. These types of entries did not suffice in Deloitte36 and do not suffice here. Further, Plaintiffs attorneys know the purpose of a privilege log and the correct way to prepare one. The log must show that each document is both pre-decisional and deliberative in order to qualify for protection.37 A document is predecisional if it was “generated before the adoption of an agency policy” and deliberative if it “reflects the give-and-take of the consultative process.”38 To be .pre-decisional, a document must pertain to an anticipated agency decision and have'been generated before the decision was made. It cannot be a communication about the decision after the decision has been adopted.39 That is, documents may be shielded only if they were created or used in the decision-making process and disclosure would reveal the nature of the deliberations.40 The Department, which has the burden of establishing the decision date, asserts that the E & O process was triggered in 2007 (at argument) or 2008 (in the' Complaint). Taking either of these dates as the start of the E & O process, the only conclusion to be drawn is that Golder’s submissions to the Department in 2008 and 2009 were post-decisional. To be deliberative, a document must reflect “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”41 A document that discloses personal opinions or “mental processes of decision-makers” is deliberative.42 That is, an agency must include enough information for a court to determine “ ‘how each document fits into the deliberative process.’ ”43 Simply to' state that a document is advisory or deli*268berative, as the Department has done, does not suffice. The record is clear that Golder was retained to gather data during deconstruction and analyze the data to determine why the decision to • deconstruct had been necessary. Golder had no role in the Department’s deliberations but served instead an informational, analytic and investigatory role. The privilege log fails to provide a basis by which an informed decision can be made about the claimed privilege for the documents. Further, counsel for the Department conceded that cutting and pasting appeared to have been part of the process of producing the log.44 This replication does not suggest good faith, and was also rejected in Deloitte.45 The Department’s log does not provide sufficient detail or explanation to identify deliberative material for purposes of protecting the listed documents from discovery. Boilerplate and conclusory language are too vague to permit an informed decision. Contractual dispute resolution. Analysis of the dispute resolution process, here called the errors/omissions process, rests on well-established Delaware contract interpretation principles. The Court must attempt to ascertain the meaning of the contractual language and the intent of the parties, read from the perspective of a reasonable third party.46 If a contractual provision is unambiguous, the plain language governs the issue under consideration.47 The Court may not, in the guise of construing a contract, supply an omission in its provisions.48 AMEC argues that under the Agreement the Department has no basis for withholding the desired documents. The E & 0 provision provides: The DEPARTMENT Project Manager shall document the error and/or omission that was identified, collect all supporting materials, review their findings with the CONSULTANT (Figg), determine the required action to correct the error and/or omission and analyze the cost impact of the resolution (including but not limited to materials, overtime, and force account). A reasonable third person would read this provision as showing the parties’ intent to establish an open communication process between the parties as to the findings made during the investigatory process. The language is unambiguous and the Court will not read into this provision a limitation on what is or what is not to be shared between the parties. As the drafter of the Agreement, the Department could have defined or limited the materials it expected to withhold from the review process, but no such clause exists.49 Thus, under the Agreement and specifically under the errors/omissions provisions, the Department is bound to supply the 178 documents AMEC seeks. Golder does not hold the privilege. AMEC served the subpoena duces tecum on Golder, not the Department, which would hold the privilege. The Department *269asserts that the subpoena itself was in proper form and not objectionable. The point is that when the Department learned of the asserted privilege, it failed to either move to quash or otherwise take action. Conclusion The Department has not met its burden of showing that the qualified deliberative process privilege applies to any of the 178 documents for which it claims protection. Even if the privilege did apply, the result of the balancing determination weighs in favor of production, and the Department’s privilege log is inadequate. Even if Delaware recognized the deliberative privilege process, the parties’ agreed-upon E & 0 process requires open disclosure of investigatory materials. The documents for which the Department asserts the deliberative process privilege ■ are available to AMEC under Rule 26(b). AMEC’s motion to compel is GRANTED. IT IS SO ORDERED. . The Department asserts the attorney/client privilege for one document and work product immunity for two documents. These matters are resolved in a companion Judicial Order. .Transcript of Proceedings (April 25, 2013) at 14, 11. 8-10 (hereinafter referred to as "Tr. at-.”) . In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 754 A.2d 1177 (2000). .Motion to Compel at 2. . DR Partners v. Bd. of County Com’rs of Clark County, 116 Nev. 616, 6 P.3d 465 (2000). . Fuller v. City of Homer, 75 P.3d 1059 (Alaska 2003). . California Native Plant Society v. United States Environmental Protection Agency, 251 F.R.D. 408, 415 (N.D.Cal.). . Nat’l Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 148, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). . Id. at 140, 95 S.Ct. 1504. . Guy v. Judicial Nominating Commission, 659 A.2d 777, 779 (Del.Super.). . Id. at 782 (internal citations omitted). . Id. at 785. . 1994 WL 319171 (Del.Super.1994). . 1994 WL 274295 (Del.Ch.). . National Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 148, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). . Dobrich v. Walls, 2006 WL 2642218, *6 (D.Del.)(stating that while deliberative process privilege is not recognized in Delaware a qualified deliberative process privilege is recognized is under federal common law). . Chemical Industry Council of Delaware, Inc., supra. . 283 P.3d 853, 868 (N.M.2012) . Id. at 861. . Id. (citing Hamilton v. Verdow, 287 Md. 544, 414 A.2d 914 (1980); Nero v. Hyland, 76 N.J. 213, 386 A.2d 846 (1978); State ex rel. *265Dann v. Taft. 109 Ohio St.3d 364, 848 N.E.2d 472 (2006)). . Id. (citing City of Colorado Springs v. White, 967 P.2d 1042 (Colo.1998) (en banc); Commonwealth v. Vartan, 557 Pa. 390, 733 A.2d 1258 (1999); Herald Ass’n, Inc. v. Dean, 174 Vt. 350, 816 A.2d 469 (2002)). . Id. (citing Sands v. Whitnall Sch. Distr., 312 Wis.2d 1, 754 N.W.2d 439 (2008); People ex rel. Birkett v. City of Chicago, 184 Ill.2d 521, 235 Ill.Dec. 435, 705 N.E.2d 48 (1998)). . Babets v. Sec. of the Exec. Office of Human Servs., 403 Mass. 230, 526 N.E.2d 1261 (1988). . Williams v. Alexander, 1999 WL 743082 (Del.Super.). . State of Delaware ex rel. M. Jane Brady v. Ocean Farm Ltd. P'ship, 2002 WL 259955 (Del.Ch.2002). . EEOC v. Citizens Bank and Trust Co. of Maryland, 117 F.R.D. 366 (D.Md.1987). . Tr. at 40,11.13-15. . Tr. at 8, 11.6-7. . California Native Plant Society, supra at 415. . Apco Liquidating Trust v. United States, 420 B.R. 648, 654 (Bankr.M.D.La.2009) (citing Redland Soccer Club, Inc. v. Dep’t of the Army, 55 F.3d 827 (3d Cir.1995)). . 2010 WL 3489735 (Del.Ch.). . Id. . Id. (quoting prior verbal ruling in same case). . Id. at *5. . Id. (addressing attorney/client privilege). . Id. . California Native Plant Society, supra, at 408. . Electronic Frontier Foundation v. United States Dep't of Justice, 890 F.Supp.2d 35 (D.D.C.2012). . United States v. Pechiney Plastics Packaging, Inc., 2013 WL 1163514, *13 (D.N.J.) (citing National Labor Relations Board, 421 U.S. at 151-52, 95 S.Ct. 1504). . Educ. Law Center v. New Jersey Department of Education, 198 N.J. 274, 966 A.2d 1054 (2009). . Id. (quoting National Labor Relations Board, 421 U.S. at 150, 95 S.Ct. 1504). . California Native Plant Society,, supra at . 413. . Id. (quoting Parke, Davis & Co. v. Califano, 623 F.2d 1, 6 (6th Cir. 1980)). . Tr. at 24. . Klig v. Deloitte, supra, *2 (stating that privilege log’s description did not provide any "document-specific description" because a word processor had been used to copy and paste phrases). . Shiftan v. Morgan Joseph Hldgs., 57 A.3d 928, 935 (Del.Ch.2012). . Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232 (Del.1997). . Conner v. Phoenix Steel Corp., 249 A.2d 866, 868 (Del.1969). . 4 Am.Jur.2d Alternative Dispute Resolution § 44. | opinion_xml_harvard | 4,341 | 2022-01-06 02:26:34.443653+00 | 020lead | t | f | 5,346,339 | Stokes | null | U | f | Published | 1 | State, Department of Transportation v. Figg Bridge Engineers, Inc. | null | STATE of Delaware, DEPARTMENT OF TRANSPORTATION v. FIGG BRIDGE ENGINEERS, INC. and AMEC Environmental & Infrastructure, Inc., f/k/a AMEC E & I, Inc., f/k/a MACTEC Engineering and Consulting, Inc. | null | null | null | null | null | null | null | null | null | 61,694,067 | C.A. No. S11C-01-031 RFS | 0 | delsuperct | SA | t | Superior Court of Delaware | Superior Court of Delaware |
9,883,976 | OPINION PAGE, Justice. This case presents the issue of whether a landowner whose immediate access to a state highway has been limited to one direction by the closure of a median crossover is entitled to compensation from the state for the resulting reduction in value of its property. The court of appeals reversed summary judgment for the state and remanded for a determination whether the remaining access was “reasonably convenient and suitable.” We reverse, concluding that a property owner who retains direct access to traffic in one direction, although losing it in the other direction due to the closure of a median crossover, retains reasonable access as a matter of law. Dale Properties, LLC (Dale), owns roughly 29 acres of undeveloped land, which it uses for farming, in Oakdale, Minnesota. The property, located in the southeast quadrant of the intersection of Interstate 694 and Trunk Highway 5, is bounded by 1-694 on the west, Highway 5 on the north, a railroad right-of-way on the south, and another owner’s undeveloped property on the east. Dale’s access to the property is limited to a 30-foot point of access at the northeast corner of the property. In September 1997, the Minnesota Department of Transportation closed an opening in the median along Highway 5 directly across from Dale’s access point. Due to the closing, the westbound lanes of Highway 5 are no longer available for direct ingress to or egress from the property. After the median crossover was closed in 1997, Dale was left with direct access to only the eastbound lane of Highway 5. Consequently, those wishing to enter the property from the westbound lane have had to travel an additional five-eighths of a mile and make a U-turn onto the east*765bound lane to reach the property’s access point. Those exiting the Dale property wishing to travel west have had to travel an additional mile as well as make a U-turn. According to Dale, commercial trucks are unable to make U-turns at the intersections closest to the property. Due to the closure, Dale alleged difficulty in the development of the property, which is zoned industrial office in the northern portion, general industrial in the southern portion, and guided commercial generally. Dale claimed that, before the closing, the highest and best use of the property was threefold: a convenience store with gas pumps, a hotel with a restaurant, and office buildings and warehouse space. Dale claimed that, after the closing, the highest and best use was residential development. Dale asserted that the closure of the crossover caused the value of the property to drop by approximately $800,000. Dale petitioned the district court for a writ of mandamus seeking to compel the state to initiate condemnation proceedings or, in the alternative, to pay damages allegedly caused by the closure of the median crossover. Dale contended that the property no longer had reasonably convenient and suitable access to the highway, that the closure substantially impaired its ability to develop the property, that the closure significantly decreased the property’s fair market value, and that the closure constitutionally damaged the property, thereby amounting to a taking in violation of both the Minnesota and the United States Constitutions. In response, the state moved for summary judgment, asserting that Dale’s property had access in one direction, as required by this court’s decision in County of Anoka v. Blaine Building Corp., 566 N.W.2d 331 (Minn.1997), and that no taking occurred. The district court granted the state’s motion for summary judgment, finding that it was unnecessary to consider the reasonableness of Dale’s remaining access to the highway because no “compensable taking” had occurred. On appeal, the court of appeals concluded that the district court erred by failing to consider whether Dale’s remaining access was “reasonably convenient and suitable.” Dale Props., LLC v. State, 619 N.W.2d 567, 571 (Minn.App.2000). As a result, the court of appeals reversed in part and remanded. Id. at 573. I. Article I, section 13, of the Minnesota Constitution provides that “[pjrivate property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.” Minnesota Statutes § 117.025, subd. 2 (2000), defines “[tjaking and all words and phrases of like import” to include “every interference, under the right of eminent domain, with the possession, enjoyment, or value of private property.” Thus, a taking may occur both as a result of the physical appropriation of property or as the result of interference with the ownership, possession, enjoyment, or value of property. Johnson v. City of Plymouth, 263 N.W.2d 603, 605 (Minn.1978). In either case, our analysis is the same. Blaine Bldg. Corp., 566 N.W.2d at 336. Property owners who believe the state has taken their property in the constitutional sense may petition the court for a writ of mandamus to compel the state to initiate condemnation proceedings. Gibson v. Commissioner of Highways, 287 Minn. 495, 498, 178 N.W.2d 727, 729-30 (1970); see also Minn.Stat. §§ 586.01-12 (2000). II. The resolution of this case is governed by our decisions in Hendrickson v. *766State, 267 Minn. 436, 127 N.W.2d 165 (1964), State ex rel. Mondale v. Gannons Inc., 275 Minn. 14, 145 N.W.2d 321 (1966), and, most recently, Blaine Building Corp., 566 N.W.2d at 331. Hendrickson involved the state’s construction of a freeway that denied the abutting property owner direct access to the highway. 267 Minn. at 436-39, 127 N.W.2d at 167-69. The property owner’s only access to the highway was indirect and circuitous by way of a frontage road. Id. at 439, 127 N.W.2d at 169. We held that, notwithstanding the availability of a frontage road, an owner suffers compensa-ble damage if the highway to which the owner previously had immediate and unlimited access is rebuilt on an existing right-of-way in a manner that denies the owner reasonably suitable and convenient access to the main thoroughfare in at least one direction. Id. at 445-46, 127 N.W.2d at 172-73. While holding that the state’s exercise of its police power, on the facts presented, could result in a compensable loss, we set forth a number of examples of noncompensable exercises of a state’s police power. Id. at 440-41, 127 N.W.2d at 169-70. One such example was the construction of “median strips prohibiting or limiting crossovers from one lane of traffic to another.” Id. The other examples included the establishment of one-way streets and lanes of traffic; restrictions on U-turns, left and right turns, and parking; and regulations governing the weight, size, and speed of vehicles. Id. The court noted that these restrictions and regulations do not give rise to compensable damages because they “govern all motorists, including abutting property owners once they are on the traveled portion of the thoroughfare.” Id. In Gannons Inc., we held that the trial court erred when it failed to “instruct on the police power of the state to control traffic by median strips or dividers without the payment of compensation.” 275 Minn. at 21-22, 145 N.W.2d at 327-28. In doing so, the court noted that the “law is well settled in this state and other states that the dividing of a roadway by median strips or dividers cannot be made the subject of compensation in condemnation.” Id. at 23, 145 N.W.2d at 329. Recently, in Blaine Building Corp., we considered whether the loss of traffic access in one direction, due to the construction of a median, may be included when determining the market value of the remaining land after a partial taking. 566 N.W.2d at 334. In answering that question, we again stated that “ ‘the dividing of a roadway by median strips or dividers cannot be made the subject of compensation in condemnation,’ where, as a result, a property owner loses traffic access in one direction, but retains access in the other.” Id. The rationale for concluding that loss of traffic access in one direction is noncom-pensable when direct traffic access remains in the other direction can be found in our prior cases and the cases upon which we relied in Hendrickson and Gannons Inc. Collectively, the reasons may be stated as follows: First, the construction of highway medians constitutes an exercise of police power in furtherance of the state’s duty to ensure public safety on the roadways. Hendrickson, 267 Minn. at 442, 127 N.W.2d at 170; State Highway Comm’n v. Burk, 200 Or. 211, 265 P.2d 783, 792 (1954); Pennysavers Oil Co. v. State, 334 S.W.2d 546, 548-49 (Tex.Civ.App.1960). Second, the restrictions on travel that result from the use of highway medians affect all members of the traveling public and are not unique to abutting property owners. Hendrickson, 267 Minn. at 441, 127 N.W.2d at 170; Iowa State Highway Comm’n v. Smith, 248 Iowa 869, *76782 N.W.2d 755, 762 (Iowa 1957); Holman v. State, 97 Cal.App.2d 237, 217 P.2d 448, 452 (1950). Third, as long as property owners have access to the abutting highway in at least one direction, the use of highway medians that prohibit crossover from one traveled lane to another merely results in circuity of route, as opposed to substantial impairment of the right of access. Gibson, 287 Minn. at 500, 178 N.W.2d at 730; People v. Sayig, 101 Cal.App.2d 890, 226 P.2d 702, 711 (1951); Mabe v. State, 83 Idaho 222, 360 P.2d 799, 802 (1961). Additionally, it is obvious that the dividing of a highway will have a marked effect on traffic patterns and access in any situation. Gannons Inc., 275 Minn. at 22, 145 N.W.2d at 328. Although not a reason in and of itself for our conclusion today, we are wary of creating a legal environment in which the cost of regulating traffic and improving roadways becomes prohibitive. Langley Shopping Ctr. v. State Roads Comm’n, 213 Md. 230, 131 A.2d 690, 693 (1957) (noting that, if the state were required to compensate property owners for damages resulting from the construction of medians, the cost of doing so could be prohibitive); Sayig, 226 P.2d at 710 (“If a property owner is entitled to compensation because a divided highway is constructed in front of his property, then the same result would logically follow when one-way streets are created in cities to control traffic, or even where a double white line is placed in a highway which prohibits traffic from crossing that lane lawfully, and thus permits only one-way traffic in front of the property.”). In Hendrickson, Gannons Inc.., and Blaine Building Corp., our statements focused on the construction of highway medians as opposed to the closure of highway median crossovers. We see no reason, however, to distinguish between the two situations when looking at the underlying rationale for holding that the construction of a highway median cannot be made the subject of compensation. Therefore, we conclude that the closure of the median crossover opposite Dale’s access point was a noncompensable exercise of the state’s police power because Dale lost traffic access in one direction, but retained access in the other direction.1 Reversed and summary judgment reinstated. Concurring Specially, PAUL H. ANDERSON, J. and GILBERT, J. . We note that in arriving at our conclusion, we were hard-pressed to imagine a situation whereby not having access to the roadway in one direction would require one to traverse the expanse of a state just to make a U-turn. | opinion_xml_harvard | 1,873 | 2023-10-06 02:29:34.449387+00 | 020lead | f | f | 1,809,741 | Page | null | LU | f | Published | 8 | Dale Properties, LLC v. State | null | DALE PROPERTIES, LLC, Respondent, v. STATE of Minnesota, Petitioner, Appellant | null | null | <parties id="b827-12">
DALE PROPERTIES, LLC, Respondent, v. STATE of Minnesota, Petitioner, Appellant.
</parties><br><docketnumber id="b827-16">
No. C3-00-837.
</docketnumber><br><court id="b827-17">
Supreme Court of Minnesota.
</court><br><decisiondate id="b827-18">
Feb. 7, 2002.
</decisiondate><br><attorneys id="b828-11">
<span citation-index="1" class="star-pagination" label="764">
*764
</span>
Mike Hatch, Attorney General, David Michael Jann, Assistant Attorney General, St. Paul, Attorneys for Appellants.
</attorneys><br><attorneys id="b828-12">
John W. Lang, Thomas P. Klecker, Mes-serli & Kramer, P.A., Minneapolis, Attorneys for Respondent.
</attorneys> | null | null | null | null | null | null | 1,385,679 | C3-00-837 | 0 | minn | S | t | Supreme Court of Minnesota | Supreme Court of Minnesota |
409,225 | 689 F.2d 396 Unempl.Ins.Rep. CCH 21,696 William SIPE, individually and on behalf of all other persons who are similarly situated, Plaintiff-Appellant in Nos. 81-2689, 81-3005 and Cross-Appellee, v. AMERADA HESS CORPORATION, Defendant-Third Party Plaintiff-Appellant in Nos. 81-2690, 81-3006 and Cross-Appellee, v. STATE of New Jersey, DEPARTMENT OF LABOR AND INDUSTRY OF the STATE OF NEW JERSEY, John J. Horn, individually and in his capacity as Commissioner of the Department of Labor and Industry, The Division of Unemployment and Disability Insurance and Joseph S. Viviani, individually and in his capacity as Director of the Division of Unemployment and Disability Insurance, Third Party Defendants-Appellants in No. 81-2692. Ralph NOTARGIACOMO, individually and on behalf of all other persons who are similarly situated, Plaintiff-Appellant in Nos. 81-2689, 81-3005 and Cross-Appellee, v. UNITED STATES LINES, INC., Defendant-Third Party Plaintiff-Appellant in Nos. 81-2691, 81-3007 and Cross-Appellee, v. STATE of New Jersey, DEPARTMENT OF LABOR AND INDUSTRY OF the STATE OF NEW JERSEY, John J. Horn, individually and in his capacity as Commissioner of the Department of Labor and Industry, The Division of Unemployment and Disability Insurance and Joseph S. Viviani, individually and in his capacity as Director of the Division of Unemployment and Disability Insurance, Third Party Defendants-Appellants in No. 81-2692. Donald HENDERSON, Jr., individually and on behalf of all other persons who are similarly situated, Plaintiff-Appellant in Nos. 81-2689, 81-3005, v. SEA-LAND SERVICE, INC., Defendant-Appellee, and State of New Jersey, Department of Labor and Industry of the State of New Jersey, John J. Horn, individually and in his capacity as Commissioner of the Department of Labor and Industry, The Division of Unemployment and Disability Insurance and Joseph S. Viviani, individually and in his capacity as Director of the Division of Unemployment and Disability Insurance, Defendants-Appellants in No. 81-2692. Nos. 81-2689 to 81-2692 and 81-3005 to 81-3007. United States Court of Appeals, Third Circuit. Argued May 24, 1982. Decided Sept. 10, 1982. George J. Cappiello, Jr. (argued), Phillips & Cappiello, New York City, Waters, McPherson, Hudzin & McNeill, Jersey City, N.J., for William Sipe, Ralph Notargiacomo, Donald Henderson, Jr. Milton B. Conford (argued), Wilentz, Goldman & Spitzer, Woodbridge, N.J., for Amerada Hess Corp. Stephen B. Wiley (argued), Robert Goldsmith, Wiley, Malehorn & Sirota, Morristown, N.J., for United States Lines, Inc. Robert J. Attaway (argued), Princeton, N.J., Jeffrey L. Reiner, Meyner & Landis, Newark, N.J., for Sea-Land Service, Inc. Michael S. Bokar (argued), Deputy Atty. Gen., Erminie L. Conley, Asst. Atty. Gen., Irwin I. Kimmelman, Atty. Gen. of N.J., Trenton, N.J., for State of New Jersey, et al. Before SEITZ, Chief Judge, and SLOVITER and BECKER, Circuit Judges. OPINION OF THE COURT SLOVITER, Circuit Judge. 1 In these consolidated cases, plaintiff seamen allege that the withholding of a portion of their wages by their employers pursuant to New Jersey's unemployment compensation and temporary disability benefits tax laws violates 46 U.S.C. § 601 . They seek injunctive relief, a refund of monies withheld, and additional damages provided for by 46 U.S.C. § 596 . The district court held that 46 U.S.C. § 601 prohibits the state of New Jersey from requiring employers of merchant seamen to withhold portions of their wages, enjoined both the state and the employers from future withholding, but denied plaintiffs' request for refunds and for damages under 46 U.S.C. § 596 . The state of New Jersey and two of the employers appeal from the district court's order of injunctive relief, while the seamen cross-appeal from the court's denial of their claims for monetary relief. Because we conclude that the Tax Injunction Act, 28 U.S.C. § 1341 , and the principle of comity precluded the district court from entertaining these actions, we do not reach the substantive issues presented. Instead, we will vacate the district court's order and remand for dismissal of the suits. I. 2 The facts, which are not disputed, were set forth in the opinion of the district court. Sipe v. Amerada Hess Corp., 519 F.Supp. 781 (D.N.J. 1981). Plaintiff Sipe was employed by defendant Amerada Hess Corporation (a Delaware corporation with its principal place of business in New Jersey) to serve as an able-bodied seaman on the company's vessel The Hess Voyager. Sipe was paid a regular monthly wage of $874.95 plus "found" (i.e., food and lodging) and bonus. He was dismissed by Amerada Hess at the scheduled conclusion of the voyage less than four weeks later. When he received his wages, Sipe discovered that $19.68 had been withheld by Amerada Hess in compliance with New Jersey unemployment compensation and temporary disability benefits laws. 1 3 Plaintiff Henderson was employed as a third mate aboard the S.S. Baltimore, a vessel owned by defendant Sea-Land Service, Inc. (a Delaware corporation with its principal place of business in New Jersey), for a voyage of approximately 11/2 months. Henderson was paid at a rate of $1,664.18 per month plus found and bonus. When he was discharged at the conclusion of the voyage, he learned that $0.54 had been withheld from his wages by Sea-Land pursuant to New Jersey unemployment compensation law. 4 Plaintiff Notargiacomo served on the S.S. American Legion, a vessel owned and operated by defendant United States Lines, Inc. (a Delaware corporation with its principal place of business in New Jersey). At the end of a voyage of approximately 11/2 months, Notargiacomo was discharged. He was paid an ordinary seaman's wage of $798.33 per month plus found and bonus, and.$13.48 was withheld from his earnings by his employer pursuant to New Jersey unemployment compensation law. 5 On March 14, 1980, plaintiffs, purporting to sue on behalf of themselves and a class consisting of all other seamen similarly situated, filed three separate actions against their employers in the United States District Court for the District of New Jersey. Each complaint was predicated on the same legal theory and sought similar relief, and all three plaintiffs were represented by the same counsel. The complaints alleged that the employers' withholding of monies from plaintiffs' wages for payment to the state of New Jersey violated 46 U.S.C. § 601 , which provides in part: 6 That no part of the wages due or accruing to a ... seaman ... shall be withheld pursuant to the provisions of the tax laws of any State, Territory, possession, or Commonwealth, or a subdivision of any of them. 7 Plaintiffs sought to enjoin their employers from further withholding under New Jersey tax law. Plaintiffs also sought reimbursement for the deductions already made and additional monetary relief pursuant to 46 U.S.C. § 596 , which requires employers to pay seamen two days' pay for every day that full payment of wages has been delayed if the payment has been withheld "without sufficient cause." The three actions were consolidated by the district court. 8 The three employers defended on similar grounds. They claimed that they withheld seamen's wages pursuant to the requirements of the New Jersey Unemployment Compensation Law and the Temporary Disability Benefits Law, N.J. Stat. Ann. §§ 43:21-1 et seq., and as agents of the state of New Jersey, and that the Federal Unemployment Tax Act, 26 U.S.C. § 3305 (f), affirmatively authorizes the withholding of seamen's wages pursuant to state unemployment compensation laws. Section 3305(f) provides in part: 9 The Legislature of any State in which a person maintains the operating office, from which the operations of an American vessel operating on navigable waters within or within and without the United States are ordinarily and regularly supervised, managed, directed and controlled, may require such person and the officers and members of the crew of such vessel to make contributions to its unemployment fund under its State unemployment compensation law approved by the Secretary of Labor under section 3304 and otherwise to comply with its unemployment compensation law with respect to the service performed by an officer or member of the crew on or in connection with such vessel to the same extent and with the same effect as though such service was performed entirely within such State. 10 Two of the three employers, Amerada Hess and United States Lines, filed separate third-party complaints against the state of New Jersey, the New Jersey Department of Labor and Industry and its Commissioner, and the New Jersey Division of Unemployment and Disability Insurance and its Director. In these third-party complaints, Amerada Hess and United States Lines alleged that they had withheld monies from plaintiffs' wages as agents or trustees for the state of New Jersey, according to the mandates of state law, and on the advice of state officials that such withholding was proper. The employers sought indemnification by the state in the event that the withholding should be found to have been improper, and a declaration that if the withholding was prohibited by federal law, they would not be in violation of New Jersey state law by failing to withhold. The third employer, Sea-Land, moved to join the state defendants as parties defendant pursuant to Fed. R. Civ. P. 19(a). The district court granted this motion. Plaintiff Henderson then filed an amended complaint against Sea-Land and the state defendants seeking refunds, additional monetary relief under 46 U.S.C. § 596 , and permanent injunctions against both the employer and the state defendants. Sea-Land filed an answer and cross-claim against the state defendants seeking the same relief as did the other employers' third-party complaints against the state. The employers moved to dismiss the complaints for failure to state a claim or for summary judgment. New Jersey joined in defendants' motions and asserted that any monetary claims against it were barred by sovereign immunity. The plaintiff seamen filed cross-motions for summary judgment. 11 The district court granted plaintiff seamen's motions for summary judgment. The court held that 46 U.S.C. § 601 prohibited New Jersey from requiring the employers of seamen to deduct portions of their wages to satisfy the state's unemployment compensation or temporary disability benefits laws. It rejected the defendants' contention that section 601 applied only to state income taxes, as well as the argument that withholding pursuant to state unemployment tax laws was affirmatively authorized by 26 U.S.C. § 3305 (f). The court concluded that although 26 U.S.C. § 3305 (f) permitted a state to require contributions from seamen pursuant to an unemployment compensation scheme, 46 U.S.C. § 601 prohibited it from using the withholding method to do so. 12 The district court granted a permanent injunction restraining the employers from making any future deductions from the seamen's wages for the purpose of complying with the New Jersey unemployment compensation and temporary disability laws, and also enjoined the state from enforcing against merchant seamen the withholding provisions of its statute. However, the court denied plaintiffs' requests that either the employers or the state of New Jersey refund the monies withheld from their wages, stating that the Eleventh Amendment barred recovery of these funds. The court also denied plaintiffs' request for imposition of damages under 46 U.S.C. § 596 , finding that the plaintiffs had not demonstrated that the defendant-employers withheld their wages "without sufficient cause" within the meaning of section 596. In support of this conclusion, the court stated that the employers were operating under the requirements of a state law which made them fully liable for their employees' contributions if they failed to make the deductions, and that they had also relied on a 1960 U.S. Department of Labor memorandum stating the Department's view that withholdings pursuant to state unemployment compensation laws were valid under federal law. 13 On appeal to this court, New Jersey and two of the three employers (Amerada Hess and United States Lines) challenge the district court's holding that 46 U.S.C. § 601 prohibits the state and employers from withholding seamen's contributions under state unemployment and/or temporary disability benefits laws. The seamen cross-appeal from the district court's denial of the monetary relief sought. II. A. 14 Neither the parties nor the district court considered the applicability of the Tax Injunction Act in the proceedings below, nor was the issue raised in any of the briefs initially filed with this court. The possibility that this action may be barred by the Tax Injunction Act was first raised by New Jersey in a letter submitted after the filing of the appellate briefs but before oral argument. Nevertheless, because this question goes to the jurisdiction of the district court to entertain these actions, see Exxon Corp. v. Hunt, 683 F.2d 69 at 72 (3d Cir. 1982), 2 it is appropriate that we consider it at this time. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, --- U.S. ----, ----, 102 S.Ct. 2099 , 2104, 72 L.Ed.2d 492 (1982). 15 The Tax Injunction Act, 28 U.S.C. § 1341 , provides that 16 The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under state law where a plain, speedy and efficient remedy may be had in the courts of such state. The Supreme Court has said of the Act: 17 The statute "has its roots in equity practice, in principles of federalism, and in recognition of the imperative need of a State to administer its own fiscal operations." Tully v. Griffin, Inc., ( 429 U.S. 68 , 73, 97 S.Ct. 219 , 222, 50 L.Ed.2d 227 (1976) ). This last consideration was the principal motivating force behind the Act: this legislation was first and foremost a vehicle to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes. 81 Cong.Rec. 1415 (1937) (remarks of Sen. Bone).... 18 Rosewell v. LaSalle National Bank, 450 U.S. 503 , 522, 101 S.Ct. 1221 , 1233, 67 L.Ed.2d 464 (1981) (footnote omitted). The state of New Jersey and Amerada Hess (hereafter "the state") 3 argue that the Tax Injunction Act applies to these actions. The plaintiff seamen, joined on this issue by United States Lines and Sea-Land (hereafter "plaintiffs"), 4 contend that the district court properly reached the merits of the case. 19 In considering whether federal court actions may be maintained which implicate state tax law administration, there are two separate, though related, paths which can be taken, illustrated by two decisions of the Supreme Court last Term. In California v. Grace Brethren Church, --- U.S. ----, 102 S.Ct. 2498 , 73 L.Ed.2d 93 (1982), the Court held that the Tax Injunction Act prohibited maintenance of a suit filed by churches and religious schools seeking declaratory and injunctive relief against the Secretary of Labor and California taxing authorities alleging that the Federal Unemployment Tax Act and corresponding state tax provisions violate the First Amendment to the Federal Constitution. In the earlier case, Fair Assessment in Real Estate Association, Inc. v. McNary, 454 U.S. 100 , 102 S.Ct. 177 , 70 L.Ed.2d 271 (1981), plaintiff taxpayers brought an action under 42 U.S.C. § 1983 for damages to redress the allegedly unconstitutional administration of a state and county tax system. The Court, without reaching the issue of the applicability of the terms of the Tax Injunction Act, held that the principle of comity bars federal courts from granting damages relief in such a case. Both approaches, that applying the Act itself and that following the underlying principle of comity, instruct our decision in the instant case. B. 20 Initially, it cannot be seriously disputed that the unemployment compensation and disability benefits contributions mandated by New Jersey law are "taxes" within the meaning of the Tax Injunction Act. The state taxes involved in California v. Grace Brethren Church, where the Supreme Court applied the Tax Injunction Act, were state unemployment compensation taxes collected, as in this case, pursuant to the Federal Unemployment Tax Act. 21 Plaintiffs argue, however, that the district court did not enjoin the "collection" of any state tax as that term is used in the Tax Injunction Act, but rather only a specific method of collection, i.e. withholding, since the seamen's obligation ultimately to pay the taxes is conceded. They rely on Judge Friendly's opinion in Wells v. Malloy, 510 F.2d 74 (2d Cir. 1975). In Wells, the plaintiff had attempted to enjoin the enforcement of a state motor vehicle purchase and use tax scheme which directed state officials to suspend the driver's license of anyone failing to pay the required tax. The plaintiff in Wells did not dispute that the tax was due, but alleged that he was unable to pay and that the statutory provision requiring the suspension of his license violated the Equal Protection Clause. The district court held the suit barred by the Tax Injunction Act. The Second Circuit reversed, holding that the plaintiff was not seeking to restrain the "collection" of a state tax under the Act, which Congress intended to encompass "methods similar to assessment and levy, ... that would produce money or other property directly, rather than indirectly through a more general use of coercive power." 510 F.2d at 77 . The court distinguished the case before it on the ground that the taxpayer was not challenging the validity of the particular taxes imposed but only the unusual sanction of license suspension for non-payment of a tax admittedly due. 22 Even if Wells survives the reasoning in more recent Supreme Court cases, an issue we do not reach, we fail to see how Wells provides any support for plaintiffs' position. New Jersey employs the withholding system challenged here as a means of enforcing its unemployment compensation tax scheme through payroll deductions transmitted directly to the state. The withholding system at issue here is therefore patently an "assessment (or) levy" used to "produce money or other property directly," which the Second Circuit in Wells indicated was within the ambit of the Tax Injunction Act. The policy of non-interference with state revenue collection served by the Tax Injunction Act applies fully to attempts to enjoin withholding, which often comprises an essential administrative mechanism for the orderly collection of taxes. In the only case we have found which expressly considered the interplay between 46 U.S.C. § 601 and the Tax Injunction Act, the court held that the Tax Injunction Act barred a declaratory judgment action brought by shipowners against the state tax commissioner alleging that section 601 prohibited the withholding of state income taxes from their employees' wages. Zenith Dredge Co. v. Corning, 231 F.Supp. 584 (W.D. Wis. 1964). C. 23 Plaintiffs next contend that at most only a part of their claims falls within the ambit of the Tax Injunction Act. They assert that the Tax Injunction Act is inapplicable to their claims for damages and to their claims which are directed against their private employers rather than the state. 24 In arguing that the Tax Injunction Act cannot be construed to bar their damage claims, plaintiffs refer to the literal language of the Tax Injunction Act, which divests the district courts only of jurisdiction to "enjoin, suspend or restrain the ... collection of any tax under state law" (emphasis added). The Supreme Court has expressly reserved the question whether the Tax Injunction Act, standing alone, would bar suits for damages in state tax cases. Fair Assessment in Real Estate Association, Inc. v. McNary, 102 S.Ct. at 181 . There is some language in the later Grace Brethren opinion, however, which suggests such a statutory construction. The Court, in concluding that Congress did not intend to distinguish between declaratory and injunctive relief, stated, "(T) he legislative history of the Tax Injunction Act demonstrates that Congress worried not so much about the form of relief available in the federal courts, as about divesting the federal courts of jurisdiction to interfere with state tax administration." 102 S.Ct. at 2508 n.22. This broad policy may apply to damages actions at least where, as here, the damages claim could not succeed without a determination as to the underlying validity of the state tax scheme. 25 However, we need not decide whether the Tax Injunction Act alone would bar plaintiffs' claims for damages in this case since in Fair Assessment the Court held that related principles of comity prohibit a federal court from granting damages relief in state tax cases. In Fair Assessment, a non-profit taxpayers' association brought suit under 42 U.S.C. § 1983 against county and state tax officials seeking actual and punitive damages for the allegedly unconstitutional administration of the local property tax system. The Court rejected the contention "that damages actions are inherently less disruptive of state tax systems than injunctions or declaratory judgments." 102 S.Ct. at 184. The Court reasoned: 26 Petitioners will not recover damages under § 1983 unless a district court first determines that respondents' administration of the County tax system violated petitioners' constitutional rights. In effect, the district court must first enter a declaratory judgment like that barred in Great Lakes (Dredge & Dock Co. v. Huffman, 319 U.S. 293 , 63 S.Ct. 1070 , 87 L.Ed. 1407 (1943) ). We are convinced that such a determination would be fully as intrusive as the equitable actions that are barred by principles of comity.... 27 .... 28 ... In short, petitioners action would "in every practical sense operate to suspend collection of the state taxes ...," Great Lakes, 319 U.S., at 299 , ( 63 S.Ct., at 1073 ), a form of federal court interference previously rejected by this Court on principles of federalism. 29 Id. at 184-85 (footnote omitted). Fair Assessment compels the conclusion that the principle of comity relied on there is equally applicable to the claims for monetary damages in this case. 30 Plaintiffs' argument that this action is one between private parties which does not implicate the comity concerns of the Tax Injunction Act is unpersuasive. Although the original complaints named only the shipowners as defendants, the amended complaint by Henderson named New Jersey as a defendant, and the state has been joined as a third party defendant to the other two actions. The district court's order enjoined the state as well as the employers from future withholding. More importantly, even those claims directed solely to the employers turn on the underlying question of the validity of the state withholding tax system. Since it is impossible to adjudicate the claims against the employers without first determining the validity of the state tax system, the policy concerns of the Tax Injunction Act are fully implicated. Similarly, the damage claims against the employers cannot succeed without the district court in effect rendering a declaratory judgment as to the validity of the state tax system challenged. In Grace Brethren, suit was brought against the United States Secretary of Labor, who was characterized in the dissenting opinion as "the principal defendant." California v. Grace Brethren Church, 102 S.Ct. at 2514 n. 2. His presence did not render the Act inapplicable, nor did the Court accept the suggestion that it should bifurcate the claims and restrict its decision to the validity of the Federal Unemployment Tax Act. See id. at 2513 n. 38. The Court looked to the lawsuit's practical effect on the actions of state officials. Id. A similar effect would follow were we to accept plaintiffs' argument that the district court had jurisdiction over some, if not all, of the claims asserted. Thus, applying either the Tax Injunction Act or the principle of comity, we are unable to distinguish between the claims against the state and those against the employers, or between the claims for injunctive relief and those for monetary relief. D. 31 Plaintiffs' principal contention is that they do not have a "plain, speedy and efficient" remedy at state law. Admittedly, neither the Tax Injunction Act nor the principle of comity would bar this suit in the absence of such a state remedy. 28 U.S.C. § 1341 ; Fair Assessment, 102 S.Ct. at 186 & n. 8. The Supreme Court has stated that the "plain, speedy, and efficient remedy" language requires that the state provide plaintiff a forum for the full assertion of his federal rights that meets certain minimal procedural criteria. See Rosewell v. LaSalle National Bank, 450 U.S. at 512-13 , 101 S.Ct. at 1228-1229 . The Court has counselled, however, that "(i)n order to accommodate these concerns (the historical reluctance of the federal courts to interfere with the operation of state tax systems) and be faithful to the congressional intent 'to limit drastically' federal court interference with state tax systems, we must construe narrowly the 'plain, speedy and efficient' exception to the Tax Injunction Act." Grace Brethren, 102 S.Ct. at 2510. 32 The state asserts that the New Jersey courts provide plaintiffs with an adequate forum in which to raise their claims asserted here. It refers to the New Jersey Supreme Court's opinion in Peper v. Princeton University Board of Trustees, 77 N.J. 55 , 74, 389 A.2d 465 , 474-75 (1978), as authority demonstrating that the New Jersey courts have the jurisdiction to interpret federal statutes and decide federal claims. Further, New Jersey has a statute providing for declaratory judgment actions, N.J. Stat. Ann. 2A:16-53, which the New Jersey Supreme Court has stated may be used to challenge the validity of a state statute. Abelson's Inc. v. New Jersey State Board of Optometrists, 5 N.J. 412 , 416-18, 75 A.2d 867 , 869 (1950). State courts have concurrent jurisdiction with federal district courts over cases arising under the Constitution, laws or treaties of the United States, unless exclusive jurisdiction has been granted to the federal courts. See Exxon Corp. v. Hunt, 683 F.2d 69 (3d Cir. 1982). Plaintiffs do not seem to dispute that the New Jersey courts could interpret the relevant federal statutes, but argue that there is exclusive jurisdiction in federal court over at least a portion of their claims. They rely on two federal statutes. 33 The first statute referred to by plaintiffs, 28 U.S.C. § 1333 , provides for exclusive jurisdiction in admiralty or maritime cases. Its relevant language provides: 34 The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. 35 Despite the general language of section 1333, the Supreme Court has made clear that: 36 Admiralty's jurisdiction is "exclusive" only as to those maritime causes of action begun and carried on as proceedings in rem.... It is this kind of in rem proceeding which state courts cannot entertain. But (§ 1333) does leave state courts "competent" to adjudicate maritime causes of action in proceedings "in personam," that is, where the defendant is a person, not a ship or some other instrument of navigation.... (A) state, "having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents, as it sees fit" so long as it does not attempt to make changes in the "substantive maritime law." 37 Madruga v. Superior Court, 346 U.S. 556 , 560-61, 74 S.Ct. 298 , 300-301, 98 L.Ed. 290 (1954). It is undisputed that this action was not brought in rem, and it is therefore clear that the exclusive jurisdiction provision of section 1333 is not applicable, and that the New Jersey courts are not precluded by section 1333 from asserting concurrent jurisdiction over the present in personam claims. 38 Plaintiffs assert, however, that dismissing these actions would be futile, since they could simply reintroduce them in the district court as in rem proceedings to which the strictures of section 1333 would apply. We need not consider whether plaintiffs are correct that they could simply recharacterize these claims as actions in rem within the meaning of Madruga, since we are not free to ignore jurisdictional bars based on speculation as to what plaintiffs may or may not subsequently do. Moreover, even if plaintiffs were to attempt to reintroduce their claims as in rem proceedings, their assumption that this would put them outside the ambit of the Tax Injunction Act is incorrect. The Tax Injunction Act applies if a "plain, speedy and efficient" state remedy exists. Whether or not these actions could be brought in rem, and hence arguably within the exclusive federal jurisdiction provision of section 1333, it is indisputable that they can also be brought in personam, and as such could be maintained in state court. Plaintiffs' attempt to recast their claims as proceedings in rem to avoid the Tax Injunction Act would be unavailing. 39 The second statute upon which plaintiffs rely for their claim of exclusive federal jurisdiction is 28 U.S.C. § 1355 , which provides, in relevant part: 40 The district courts shall have original jurisdiction, exclusive of the courts of the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress. 41 Plaintiffs assert that the damages which they seek under 46 U.S.C. § 596 constitute a penalty under 28 U.S.C. § 1355 which divests the New Jersey courts of jurisdiction to entertain that portion of their claim. 46 U.S.C. § 596 provides, in relevant part: 42 Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days' pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim made before the court.... 43 The state replies that the double-wage damages recoverable under 46 U.S.C. § 596 are not a "penalty" within the meaning of section 1355 and that section 1355 only applies to suits brought by the government. 44 The authorities are divided on the question of whether section 1355 reaches private actions for damages. Compare 13 Wright & Miller, Federal Practice and Procedure § 3578, at 514 (1975) ("more usual modern view is that (§ 1355) extends only to suits by a public officer to recover a sum of money that will be paid into the public treasury") with 1 Moore's Federal Practice P 0.62(14), at 700.45 (2d ed. 1982) ("(§ 1355) also confers jurisdiction of actions to recover penalties collectable by private parties under the laws of the United States"). However, the law in this circuit is governed by the decision in Fields v. Washington, 173 F.2d 701 (3d Cir. 1949). In Fields, the plaintiff tenant filed suit in federal court against his landlord under the Housing and Rent Control Act of 1947 for treble damages for alleged overcharges of rent. Because that Act had no provision expressly granting federal jurisdiction and the amount in controversy did not meet the minimum then required for jurisdiction under 28 U.S.C. § 1331 , plaintiff asserted jurisdiction under the penalty provision of section 1355. This court, in an opinion by Judge Maris, affirmed the district court's dismissal for want of jurisdiction, stating: 45 (§ 1355) relates only to suits for a penalty. Here, however, the suit is not by a public officer to recover a sum of money which will be paid into the public treasury. If so it would doubtless be a suit for a penalty and, therefore, cognizable under that section.... On the contrary, it is an action for damages brought to compensate the individual who has been injured. It is, therefore, not in any true sense of the term an action for a penalty. 46 Id. at 703. Under the construction given to "penalty" in Fields, private suits, such as that before us, to recover statutory damages, even if double or treble damages, are not actions to recover a penalty within the meaning of section 1355. See also Hales v. Winn-Dixie Stores, Inc., 500 F.2d 836 , 839-40 (4th Cir. 1974). But see, e.g., Brown v. First National City Bank, 503 F.2d 114 (2d Cir. 1974) (section 1355 invoked as basis for federal jurisdiction in suit brought by private plaintiff without discussion of the issue.) For this reason, we reject plaintiffs' contention that seamen's claims for double wages under 46 U.S.C. § 596 cannot be brought in the state courts because of the exclusive federal jurisdiction over "penalty" actions provided in section 1355. 47 Furthermore, in the leading case in which section 596 was considered in the context of the exclusive jurisdiction provision of section 1355, the court also decided against the applicability of section 1355, albeit on other reasoning. In Cox v. Lykes Brothers, 237 N.Y. 376 , 143 N.E. 226 (1924), the New York Court of Appeals, in an opinion by then-Judge Cardozo, held that an action for double wages under section 596 was not an action for a "penalty" within the scope of the predecessor of section 1355 and could therefore be entertained by the state courts. The court stated: 48 The jurisdiction of the state courts is the first question to be determined.... The Appellate Division found the present suit to be one for a penalty or forfeiture within the meaning of (the predecessor of section 1355). We do not so regard it. Congress has expressly said that the extra compensation, when due, "shall be recoverable as wages." This would seem decisive, without more, that in determining the bounds of jurisdiction it is not to be classified as a penalty. There was no thought that the state courts, which have undoubted jurisdiction to give judgment for wages in the strict sense, should be shorn of jurisdiction to give judgment for the statutory incidents. This conclusion is fortified when we search for the purpose of the statute. The purpose, or at least the predominant one, was, not punishment of the master or owner, but compensation to the seaman. 49 Id. at 378-79, 143 N.E. at 227 . Accord Calvin v. Huntley, 178 Mass. 29 , 59 N.E. 435 (1901) (under predecessor to § 596). 50 It is true, as plaintiffs stress, that subsequent cases have referred to the damages recoverable under section 596 as penalties and have emphasized the punitive rather than the compensatory purpose of section 596. See, e.g., Griffin v. Oceanic Contractors, Inc., --- U.S. ----, 102 S.Ct. 3245 , 73 L.Ed.2d 973 (1982) (referring to section 596 damages as "penalty wages" and to section 596 as "the wage penalty statute"); U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351 , 354, 91 S.Ct. 409 , 411, 27 L.Ed.2d 456 (1971); Collie v. Fergusson, 281 U.S. 52 , 55-56, 50 S.Ct. 189 , 191, 74 L.Ed. 696 (1930); Swain v. Isthmian Lines, Inc., 360 F.2d 81 (3d Cir. 1966). See also 1 M. Norris, The Law of Seamen § 383, at 459-60 (3d ed. 1970) (essential purpose of section 596 is punitive). However, none of these cases involved the jurisdiction provision of section 1355. What is labeled a "penalty" for one purpose is not necessarily a "penalty" for purposes of section 1355. See Hales v. Winn-Dixie Stores, Inc., 500 F.2d at 839 n. 3A. Moreover, even in Griffin, the Supreme Court has continued to emphasize that the primary purpose of the double wages provision of section 596 is compensatory, stating "the sure purpose of the statute is remedial." --- U.S. at ----, 102 S.Ct. at 3251. This is so notwithstanding the possibility or even the likelihood in this case of a great disparity between the amount withheld and the amount recoverable under section 596. See also 1 Moore's Federal Practice P 0.62(14), at 700.44 n. 6 ("Penalty wages under 46 USC § 596 are not 'penalties' within (§ 1355)," citing Cox ). 51 We need not rest our decision on the construction of "penalty" adopted in Cox because we believe our decision in Fields limiting "penalty" in section 1355 to suits brought by a public officer on behalf of the public treasury is compelling. We therefore conclude that neither 28 U.S.C. § 1333 nor 28 U.S.C. § 1355 operates to confer exclusive jurisdiction on the federal courts in this case. They consequently present no bar to the availability of a "plain, speedy and efficient remedy" in the courts of New Jersey. E. 52 Even if a portion of plaintiffs' claims were to fall within exclusive federal jurisdiction, we reject plaintiffs' suggestion that the district court would therefore have had jurisdiction to decide all of their claims, or at least those portions within exclusive federal jurisdiction. All that is required to invoke the Tax Injunction Act is that the taxpayer have "available an adequate remedy" in state court. See Grace Brethren, 102 S.Ct. at 2510 . The remedy provided by the state need not be coextensive with that available in the federal courts in order for it to be considered "plain, speedy and efficient." See, e.g., Miller v. Bauer, 517 F.2d 27 , 32 (7th Cir. 1975) (state remedy need not be best remedy available or equal to that available in federal court). In Rosewell, although the taxpayer was required to pay her county property tax first and then seek a refund through state administrative and judicial procedures, the Court held that she had available a "plain, speedy and efficient" remedy in state court. 450 U.S. at 512 , 101 S.Ct. at 1228 . In Grace Brethren, although injunctive relief was unavailable in the California courts to restrain the collection of state taxes, the taxpayer could sue for a refund where it could make its constitutional challenge; the state remedy was therefore considered "plain, speedy and efficient." In Grace Brethren, it had been argued that the Tax Injunction Act was inapplicable because the Federal Government was an indispensable party to the action which could not be compelled to submit to state court jurisdiction, 102 S.Ct. at 2513 n. 38. The Court rejected that argument, stating that the Federal Government need not be a party for the litigation of the statutory and constitutional claims asserted. 53 We believe these authorities suggest the answer to plaintiffs' contention that if section 596 could be enforced exclusively in the federal courts, they would not have a "plain, speedy and efficient" remedy in state court. If a plaintiff could circumvent the Tax Injunction Act by appending to a claim cognizable in state court one cognizable only in federal court, the underlying policy of the Tax Injunction Act would be defeated. In this case, plaintiff seamen asserted distinct claims, including a distinct claim seeking declaratory and injunctive relief, alleging the invalidity of the New Jersey statute compelling withholding of the New Jersey state taxes from their wages. We consider that claim to be the principal contention underlying the plaintiffs' lawsuits and view their appendage of the claim asserted under 46 U.S.C. § 596 as going to the remedy to which they might have been entitled if their underlying claim were successful. The claim as to the invalidity of the New Jersey statute could readily have been determined without the addition of the claim under 46 U.S.C. § 596 . We believe the strong policy reflected in the Tax Injunction Act would require that the section 596 claim, even if it were exclusive to the federal courts, could not be decided until there was final state court resolution of the tax issue. 54 We leave open the situation where the essence of the taxpayer's claim is one which can be filed only in federal court. This is not such a case. Where, as here, the withholding which plaintiffs allege violates 46 U.S.C. § 596 was done pursuant to a New Jersey tax statute, the decision on plaintiffs' monetary claims and the decision on the validity of that statute are intertwined. 5 III. 55 For the foregoing reasons, we hold that the Tax Injunction Act and the related principle of comity precluded the district court from entertaining these actions. We will therefore vacate the judgment of the district court, and remand with instructions to dismiss the actions for lack of jurisdiction. 1 Plaintiffs' original complaints alleged that the monies withheld by all three employers were pursuant to New Jersey temporary disability benefits law. In fact, although all three employers have admitted withholding under New Jersey unemployment compensation law, only Amerada Hess also withheld for temporary disability benefits. The Henderson complaint was amended to reflect this fact, and the other complaints were apparently treated as amended in this regard as well 2 The predecessor of section 1341 expressly provided that Notwithstanding the foregoing provisions of this paragraph (setting out the original jurisdiction of the district courts), no district court shall have jurisdiction of any suit to enjoin, suspend, or restrain the assessment, levy, or collection of any tax imposed by or pursuant to the laws of any State where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such State. Act of Aug. 21, 1937, ch. 726, 50 Stat. 738 . There is no indication that the change in language which accompanied the 1948 statutory codification was designed to alter the substance of the statute in any way. Indeed, in California v. Grace Brethren Church, --- U.S. ----, ----, ---- & n. 22, ----, 102 S.Ct. 2498 , 2502, 2508 & n. 22, 2513, 73 L.Ed.2d 93 (1982), the Court on numerous occasions referred to the Tax Injunction Act in jurisdictional terms. Further, courts of appeals have considered the Tax Injunction Act notwithstanding the failure to raise the issue in the district court. See Illinois Central Railroad v. Howlett, 525 F.2d 178 , 180 (7th Cir. 1975), cert. denied, 424 U.S. 976 , 96 S.Ct. 1482 , 47 L.Ed.2d 746 (1976); City of Houston v. Standard-Triumph Motor Co., 347 F.2d 194 , 197 (5th Cir. 1965), cert. denied, 382 U.S. 974 , 86 S.Ct. 539 , 15 L.Ed.2d 466 (1966). See also Kimmey v. H.A. Berkheimer, Inc., 376 F.Supp. 49 (E.D. Pa. 1974) (Higginbotham, J.), aff'd mem., 511 F.2d 1394 , 1397 (3d Cir. 1975). 3 Because the parties are realigned on the issue of jurisdiction, we will refer to those challenging the district court's jurisdiction as "the state", although Amerada Hess joins with New Jersey in these arguments 4 For convenience, we will refer to those parties who argue that the district court properly exercised jurisdiction as "plaintiffs", although two defendant employers join in some of these arguments 5 Although the district court rejected plaintiffs' monetary claims on grounds independent of its decision as to the validity of the state taxes, the suggestion of United States Lines and Sea-Land that we affirm that portion of the district court's judgment fails to recognize that the court lacked jurisdiction to consider the claims in the first place. Similarly, we find no merit to the plaintiffs' suggestion that the solicitude which Congress and the federal courts have historically shown towards merchant seamen renders application of the Tax Injunction Act less appropriate in this case. The special status enjoyed by merchant seamen as "wards of admiralty", see, e.g., U.S. Bulk Carriers, Inc. v. Arquelles, 400 U.S. 351 , 355, 91 S.Ct. 409 , 411, 27 L.Ed.2d 456 (1971), cannot be used to ignore express jurisdictional bars | opinion_html_with_citations | 7,148 | 2011-08-23 09:26:06+00 | 010combined | f | f | 409,225 | null | null | R | f | Published | 29 | null | null | unempl.ins.rep. Cch 21,696 William Sipe, Individually and on Behalf of All Other Persons Who Are Similarly Situated, in Nos. 81-2689, 81-3005 and Cross-Appellee v. Amerada Hess Corporation, Defendant-Third Party in Nos. 81-2690, 81-3006 and Cross-Appellee v. State of New Jersey, Department of Labor and Industry of the State of New Jersey, John J. Horn, Individually and in His Capacity as Commissioner of the Department of Labor and Industry, the Division of Unemployment and Disability Insurance and Joseph S. Viviani, Individually and in His Capacity as Director of the Division of Unemployment and Disability Insurance, Third Party in No. 81-2692. Ralph Notargiacomo, Individually and on Behalf of All Other Persons Who Are Similarly Situated, in Nos. 81-2689, 81-3005 and Cross-Appellee v. United States Lines, Inc., Defendant-Third Party in Nos. 81-2691, 81-3007 and Cross-Appellee v. State of New Jersey, Department of Labor and Industry of the State of New Jersey, John J. Horn, Individually and in His Capacity as Commissioner of the Department of Labor and Industry, the Division of Unemployment and Disability Insurance and Joseph S. Viviani, Individually and in His Capacity as Director of the Division of Unemployment and Disability Insurance, Third Party in No. 81-2692. Donald Henderson, Jr., Individually and on Behalf of All Other Persons Who Are Similarly Situated, in Nos. 81-2689, 81-3005 v. Sea-Land Service, Inc., and State of New Jersey, Department of Labor and Industry of the State of New Jersey, John J. Horn, Individually and in His Capacity as Commissioner of the Department of Labor and Industry, the Division of Unemployment and Disability Insurance and Joseph S. Viviani, Individually and in His Capacity as Director of the Division of Unemployment and Disability Insurance, in No. 81-2692 | null | null | null | null | null | null | null | null | null | 293,268 | 81-2689 | 1 | ca3 | F | t | Third Circuit | Court of Appeals for the Third Circuit |
1,494,869 | 391 F. Supp. 186 (1975) Brian Mark BURKE et al. v. Edward H. LEVI et al. Civ. A. No. 629-72-R. United States District Court, E. D. Virginia, Richmond Division. March 14, 1975. *187 Brian Mark Burke and others, pro se. Raymond A. Carpenter, Asst. U. S. Atty., Richmond, Va., for defendants. MEMORANDUM MERHIGE, District Judge. Plaintiffs, appearing pro se, are federal prisoners incarcerated at the Petersburg Federal Reformatory, Petersburg, Virginia. They bring this class action against the Attorney General of the United States and the Director of the Bureau of Prisons, challenging certain Bureau regulations and regulations of the Petersburg Reformatory which allegedly violate their rights under the First, Fifth and Ninth Amendments to the Constitution of the United States. Plaintiffs seek declaratory and injunctive relief as well as relief in the nature of a writ of mandamus. Jurisdiction of the Court is attained pursuant to 28 U. S.C. §§ 1361, 2201 and 2202. The matter is presently before the Court on defendants' motion to dismiss and motion for summary judgment. Plaintiffs, given an opportunity to respond, have failed to do so. The Court, therefore, deems this matter ready for disposition upon the pleadings before it. The gravamen of plaintiffs' complaint is that the defendants, their officers, agents and employees, arbitrarily and capriciously regulate inmate correspondence, incoming publications, inmate visits and the inmate newspaper and that such regulation denies plaintiffs of their liberty without due process of law and is part of a consistent pattern and practice to do so on the part of the defendants. Plaintiffs further ask the Court to promulgate fair rules and policies which *188 will be consistent with the constitutional guarantees to which they are entitled. Plaintiffs' allegations are, for the most part, an attack on the prison regulations as written rather than as applied. With respect to the regulation of inmate correspondence, [1] plaintiffs contend that the inspection, review and censorship of outgoing and incoming mail has a "chilling effect" on the exercise of their First Amendment rights. Moreover, they question the stated underlying purpose of this regulation to the extent it is designed to maintain prison security and to learn about problems confronting the inmates in order to alert the staff to any manner in which they may help in evaluating the inmate's progress. As to the control of incoming publications, [2] plaintiffs complain that the existing policy is not coherent and that, by allegedly limiting access to certain educational materials, it frustrates the inmates' efforts to attend school upon release. They suggest that such a policy violates the spirit, if not the letter, of the First Amendment and contravenes their rights to due process of law. In terms of visitation privileges, [3] plaintiffs allege that they are subject to *189 the whim or caprice of the caseworkers and that the current procedure of close surveillance of inmates and visitors in a closed environment and subsequent strip searches of inmates after visits are sufficient to satisfy the need to maintain order and security within the institution. The only factual allegations presented in this regard are contained in a motion to intervene as party plaintiffs filed by Robert Schoonover and Thomas Clay. Schoonover contends that, after being placed in isolation on January 5, 1973, his visits with his fiancee and another friend were restricted in duration to one hour on January 6, 1973, and to forty minutes on January 7, 1973, whereas, ordinarily, inmates in isolation are permitted full visiting privileges. Clay, on the other hand, bases his complaint on the fact that his request that a "young lady friend" be placed on his list of approved visitors was denied without his being given a reason for the denial by his Caseworker. Plaintiffs allege that the regulations and their administration unduly interfere with their First Amendment rights to freedom of association. Finally, plaintiffs question the procedures pursuant to which the inmate newspaper is subject to review by a prison official prior to publication. [4] They suggest that the screening of material by the newspaper staff itself is sufficient to satisfy the need to maintain security and that the policy complained of chills the inmates' exercise of their rights to "free speech." Defendants, in support of their motion for summary judgment, contend that the procedures and regulations to which the plaintiffs object are reasonable and necessary to control and maintain discipline and authority at the Petersburg Federal Reformatory. Defendants have also submitted the affidavit of Mr. Bruce Grant, Acting Warden of the Petersburg Reformatory, to which are attached copies of the Bureau of Prisons and Petersburg Reformatory policy statements about which plaintiffs complain. As this Court has previously recognized, the right of federal prison authorities to promulgate regulations necessary and proper to foster orderly prison administration is broad. Howard v. Warden, Petersburg Reformatory, 348 F. Supp. 1204 (E.D.Va.1972). Though federal courts clearly may inquire into a prison administrator's restriction of constitutional rights other than that of liberty itself, see e. g. Landman v. Royster, 333 F. Supp. 621 (E.D.Va.1971), the judgments of prison officials, while not binding on the Court, are entitled to considerable weight. Brown v. Peyton, 437 F.2d 1228 (4th Cir. 1971). Moreover, under the guise of protecting constitutional rights, federal courts do not have the power to, and must be careful not to, usurp the responsibility that rests with the executive branch for the management of prisons. It is only when the deprivations of prison confinement impose conditions of such onerous burdens as to be of constitutional dimensions that courts may intervene in prison management. Breeden v. Jackson, 457 F.2d 578 , 580 (4th Cir. 1972). *190 Recent Supreme Court opinions have gone far in clarifying the extent to which the First Amendment rights of inmates in penal institutions may be limited. In terms of censorship of prisoner mail, the Court has recognized that the proper standard of review for any prison regulations restricting freedom of speech rests not upon certain assumptions about the legal status of prisoners but rather concerns but one aspect of the general problem of incidental restrictions on First Amendment liberties imposed in furtherance of legitimate governmental activities. Procunier v. Martinez, 416 U.S. 396 , 409, 94 S. Ct. 1800 , 40 L. Ed. 2d 224 (1974). Applying the teachings of its prior decisions, such as Tinker v. Des Moines School District, 393 U.S. 503 , 89 S. Ct. 733 , 21 L. Ed. 2d 731 (1969), and United States v. O'Brien, 391 U.S. 367 , 88 S. Ct. 1673 , 20 L. Ed. 2d 672 (1968), to the context of prisons, the Court held in Procunier that the censorship of prisoner mail is justified if the following criteria are met: First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitations of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad. . . . 416 U.S. at 413-414 , 94 S.Ct. at 1811. With regard to the reformatory regulation on inmate correspondence under attack in the instant matterInstitution Policy Statement No. LEE-7300.14Bthe Court finds that the criteria enumerated in Procunier v. Martinez, supra, 416 U.S. 396 , 94 S. Ct. 1800 (1974), are met with the exception of that part of paragraph 5(e) of the Statement which permits the screening of incoming and outgoing mail for "(c)ontents which suggest . . . false, malicious, libelous or confidential information about individual inmates, government officials, and others." To the extent that this portion of the reformatory regulation exceeds the guidelines set down in paragraph 6(c)(1)-(5) of Policy Statement No. 7300.1A of the Federal Bureau of Prisons, [5] it, in the words of Mr. Justice Powell, "fairly invite(s) prison officials and employees to apply their own personal prejudices and opinions as standards for prisoner mail censorship." Procunier v. Martinez, supra, 416 U.S. at 415, 94 S. Ct. at 1812 . Moreover, defendants have failed to allege or prove that these broad restrictions on prisoner correspondence are necessary to further any governmental interest unrelated to the suppression of expression. Accordingly, as to plaintiffs' initial claim, the Court will grant defendants' motion for summary judgment in part. At the same time, the Court, finding no genuine issue of material fact, will, on its own motion, grant summary judgment for plaintiffs to the extent heretofore noted. Turning to plaintiffs' second claim concerning the regulation of incoming publications, the Court finds the law is clear that "(t)he Constitution protects the right to receive information *191 and ideas" and that "(t)his right to receive information and ideas, regardless of their social worth, . . . is fundamental to our free society." Stanley v. Georgia, 394 U.S. 557 , 564, 89 S. Ct. 1243 , 1247, 22 L. Ed. 2d 542 (1969). Moreover, in recent years numerous courts have recognized that an inmate of a penal institution retains the right to read what he pleases and that "(o)nly a compelling state interest centering around prison security, or a clear and present danger of a breach of prison discipline, or some substantial interference with orderly institutional administration can justify curtailment" of this right. Fortune Society v. McGinnis, 319 F. Supp. 901 , 904 (S.D.N.Y.1970). See also Brown v. Peyton, 437 F.2d 1228 , 1231 (4th Cir. 1971); Rhem v. Malcolm, 371 F. Supp. 594 , 634 (S.D.N.Y.1974); Collins v. Schoonfield, 344 F. Supp. 257 , 281 (D.Md.1972); Seale v. Manson, 326 F. Supp. 1375 , 1381 (D.Conn.1971). With regard to Petersburg Reformatory Policy Statement No. LEE-7300.39B, the Court finds unacceptable those portions of the Statement which require that "(p)ublications shall come directly from the publisher and not by way of friends or families" and that "(m)aterials coming to the inmate . . from any source other than the publisher will be returned to the place of origin by the Mail Room." Since the defendants apparently rely upon their general allegation that this procedure is necessary to maintain prison security, the Court finds this particular procedure to be constitutionally invalid. For, as Judge Lasker recently noted in striking down a similar policy maintained by the Manhattan, New York, House of Detention for Men: Although it is true that contraband may be smuggled within the pages of a magazine, or in hollowed books, the risk is absolutely controllable by inspection of incoming mail. Thus the true reason for the rule is to promote economy and administrative convenience. Aside from the fact that the policy imposes a significant hardship on inmates, most of whom are poor, by requiring them to buy books and magazines which they could otherwise receive without cost from friends or relatives, the rationale of economy and administrative convenience is unsupportable, particularly where the "preferred" rights secured by the First Amendment are at stake. Rhem v. Malcolm, 371 F. Supp. at 634 As to plaintiffs' broadly framed contention that educational materials, college catalogues, bulletins and applications for admission are not deliverable to them, the Court finds nothing in the challenged regulation to support this allegation. Therefore, on the basis of the pleadings before it, the Court will grant defendants' motion for summary judgment as to plaintiffs' second claim with the exception of that portion of Policy Statement No. LEE-7300.39B previously held to be unconstitutional. Plaintiffs' third claim concerns Petersburg Reformatory Policy Statement No. LEE-7300.24C, which establishes regulations and procedures for the operation of the inmate visiting program. The Court notes that the Supreme Court has recently spoken to this issue as well. Although in Pell v. Procunier, 417 U.S. 817 , 94 S. Ct. 2800 , 41 L. Ed. 2d 495 (1974), the issue before the Court was the constitutionality of a California Department of Corrections regulation prohibiting press and other media interviews with specific individual inmates, the Court's opinion dealt extensively with prisoners' rights of visitation as one manner of communication between prison inmates and members of the general public. In Pell, Mr Justice Stewart noted first that challenges to prison regulations based on asserted constitutional rights of prisoners must be assessed in light of the legitimate penal objectives of the deterrence of crime, the protection of the general public, the rehabilitation of those committed to custody and the institutional consideration of internal security *192 within the corrections facility itself. He then went on to state that the regulation in question could not be considered in isolation but must be viewed in the light of the alternative means of communication permitted with persons outside the prison, such as the open and substantially unimpeded medium of written communication previously recognized by the Court in Procunier v. Martinez, supra, 416 U.S. 396 , 94 S. Ct. 1800 , 40 L. Ed. 2d 224 (1974). Mr. Justice Stewart went on to further recognize that institutional considerations, such as security and related administrative problems, require that some limitations be placed on face-to-face communication with inmates and that, so long as reasonable and effective means of communication remain open and no discrimination in terms of content is involved, prison officials must be accorded latitude in drawing such lines. Finding that the Court had previously upheld reasonable time, place and manner regulations of communicative activity where necessary to further significant governmental interests, Mr. Justice Stewart stated: The "normal activity" to which a prison is committedthe involuntary confinement and isolation of large numbers of people, some of whom have demonstrated a capacity for violencenecessarily requires that considerable attention be devoted to the maintenance of security. Although they would not permit prison officials to prohibit all expression or communication by prison inmates, security considerations are sufficiently paramount in the administration of the prison to justify the imposition of some restrictions on the entry of outsiders into the prison for face-to-face contact with inmates. 417 U.S. at 826-827 , 94 S.Ct. at 2806. Evaluating plaintiffs' third claim in light of the Supreme Court's remarks in Pell, the Court finds nothing within Petersburg Reformatory Policy Statement No. LEE-7300.24C to suggest that the defendants have "exaggerated their response to the institutional considerations heretofore noted. Accordingly, the Court will grant defendants' motion for summary judgment in this regard. Finally, plaintiffs contend that defendants' policy of reviewing the inmate newspaper prior to printing has a "chilling effect" on the exercise of their First Amendment rights. In light of the sworn statement of the Acting Warden of the Petersburg Reformatory, which plaintiffs neither dispute nor rebut, that the only material censored is that "which might lead to violence between racial or other groups," it appears to the Court that this claim is without merit. Even were the Court to assume that plaintiffs should be permitted to publish their own newspaper within the institution for the rehabilitative value such an activity would provide, see Sostre v. McGinnis, 442 F.2d 178 , 190-191 (2d Cir. 1971), it is the Court's view that prison officials may limit this program to the extent it would conflict with the institutional need to maintain security and order. Moreover, after reviewing various issues of the inmate newspaper tendered by the defendants, the Court is constrained to note that plaintiffs are apparently and properly permitted to comment on nearly every facet of institutional life as well as all members of the prison administration. Accordingly, on the basis of the pleadings and evidence before it, the Court will grant the defendants' motion for summary judgment as to plaintiffs' fourth claim. An appropriate order will issue. NOTES [1] Plaintiffs specifically point to portions of Institution Policy Statement No. LEE-7300.14B, dated September 20, 1972, which read as follows: 5. PROCEDURE. a. The inmate, upon admission, will be asked to sign Record Form 61. This is an authorization for staff to open, read, and inspect all regular mail. Failure to sign this form will result in withholding of correspondence privileges. * * * * * d. Outgoing Mail. * * * * * (3) All outgoing regular mail will be examined for enclosures and spotchecked for verbal content by designated officers . . . . It should be done frequently enough to maintain security, learn about a particular problem confronting the inmate or alert the staff to any matter that may help in evaluating the inmate's progress. [2] Plaintiffs cite to the Court Institution Policy Statement No. LEE-7300.39B, dated March 3, 1971, which reads in pertinent part: 1. POLICY. * * * * * b. An approved list of publications will not be maintained at the institution. * * * * * 3. PROCEDURE. a. Publications shall come directly from the publisher and not by way of friends or families. * * * * * d. All publications, with the exception of religious and legal publications shall be referred to the Education Department for receiving and delivery to the inmates. * * * * * k. The methods of purchase and subscribing shall be as follows: * * * * * (3) . . . (P)rior approval shall be obtained from the Education Department who will fill out the necessary forms. . . . (C)opies of the approval for materials will be sent to the Mail Room, which will be authorization for an inmate to receive materials. (4) Materials coming to the inmate without prior approval or from any source other than the publisher will be returned to the place of origin by the Mail Room. * * * * * [3] Plaintiffs challenge those portions of Institution Policy Statement No. LEE-7300.24C, dated September 21, 1972, which read: * * * * * 5. PROCEDURE. a. Upon admission to the institution, a visiting list will be prepared for all inmates desiring visits. Each person on this list must be approved by the inmate's Caseworker. Any additions to or deletions from this list must also be approved by the Caseworker. b. Any "Special Visits" from persons not already on the approved visiting list must be approved in advance by the inmate's Caseworker . . . . In the absence of the Caseworker, the Watch Supervisor has the prerogative of approving or disapproving any visit which is not authorized in advance. * * * * * d. Visiting Room Operation. * * * * * (2) The amount of visiting time permitted each inmate is limited to five (5) visits per month. On Saturdays, Sundays and Holidays visits will be limited to three (3) hours each. These limitations are necessary to avoid overcrowding of the visiting area and excessive loss of time from the inmate's treatment program. Requests for additional visiting time beyond these limits must be approved in advance by the inmate's Caseworker. * * * * * [4] The parties agree that there are no written regulations concerning the review of the inmate newspaper prior to publication. Defendants allege, in the form of a sworn affidavit by the Acting Warden of the Petersburg Reformatory, that all publications are reviewed by the Associate Warden prior to printing and that inflammatory material which might lead to violence between racial or other groups is not allowed. They further contend that criticism of the Bureau of Prisons or institutional policy is not restricted. [5] This section of the Bureau Policy Statement was cited by the Court in Martinez as an example of a policy followed at well-run institutions which would be relevant to a determination of the need for a particular type of restriction. 416 U.S. at 414 n. 14, 94 S. Ct. 1800 . | opinion_html_with_citations | 3,302 | 2013-10-30 06:28:50.231085+00 | 010combined | f | f | 1,494,869 | Merhige | null | LU | f | Published | 9 | Burke v. Levi | Burke | Brian Mark BURKE Et Al. v. Edward H. LEVI Et Al. | null | null | <parties id="b244-3">
Brian Mark BURKE et al. v. Edward H. LEVI et al.
</parties><docketnumber id="AiK">
Civ. A. No. 629-72-R.
</docketnumber><br><court id="b244-5">
United States District Court, E. D. Virginia, Richmond Division.
</court><decisiondate id="AaLp">
March 14, 1975.
</decisiondate><br><attorneys id="b245-14">
<span citation-index="1" class="star-pagination" label="187">
*187
</span>
Brian Mark Burke and others, pro se.
</attorneys><br><attorneys id="b245-15">
Raymond A. Carpenter, Asst. U. S. Atty., Richmond, Va., for defendants.
</attorneys> | null | null | null | null | null | null | 982,363 | Civ. A. 629-72-R | 0 | vaed | FD | t | E.D. Virginia | District Court, E.D. Virginia |
8,228,083 | Unpublished Decision. Citation to unpublished opinion of the Superior Court of Pennsylvania is governed by Section 65.37 of the Operating Procedure of the Superior Court, 210 Pa. Code § 65.37.Affirmed. | opinion_xml_harvard | 30 | 2022-10-15 15:43:28.518181+00 | 020lead | t | f | 8,262,770 | null | null | U | f | Published | 0 | In re J.S. | In re J.S. | IN the INTEREST OF: J.S., a Minor | null | null | null | null | null | null | null | null | null | 65,440,765 | 2004 EDA 2017 | 0 | pasuperct | SA | t | Superior Court of Pennsylvania | Superior Court of Pennsylvania |
7,190,227 | Moe&an, J. The public administrator published an account of his, administiation. The aecouut was opposed by Perry, administrator of the succession of Bradley. Among other grounds of opposition, it was urged that the public administrator had not been legally appointed. To this opposition the administrator excepted on the ground that it was an attempt to remove him from office, which, he says, can only be done by direct action. His exception was maintained and the opposition dismissed. The judge erred. Admitting that in such a proceeding as is now before us, the administrator’s capacity could not be questioned, still his exception should only have been maintained in so far as it related to the denial of his capacity. The exception maintained in this regard, still left the merits of the opposition intact, and the opponent had a right to have them passed upon. It is therefore ordered adjudged and decreed that the judgment of the parish court be avoided, annulled and reversed, and that the case be remanded to be proceeded with according to law, the costs of appeal to be borne by the administrator. | opinion_xml_harvard | 185 | 2022-07-24 16:56:06.557509+00 | 020lead | t | f | 7,274,556 | Moe | null | U | f | Published | 0 | Succession of Epperson | Succession of Epperson | Succession of R. P. Epperson | <p>APPEAL from the Parish Court, parish of Yermilion. Guegnon, J.</p> | null | null | <p>Among the several grounds of opposition to a public administrator’s account it was urged,, that said public administrator bad not been legally appointed. To this tbe Administrator excepted on tbe ground that it was an attempt to remove bim from office, wbicb be maintained, could only be done by direct action. Tbe judge a quo erred in dismissing tbe opposition. Admitting that in sucb a proceeding as was before tbe court, tbe administrator’s capacity could not be questioned, still bis exception should only bave been maintained in so far as it related to tbe denial of bis capacity: Tbe merits of tbe opposition on other points remained intact, and tbe opponent bad a right to bave them passed upon.</p> | null | null | null | null | null | 64,262,938 | No. 834 | 0 | la | S | t | Supreme Court of Louisiana | Supreme Court of Louisiana |
9,703,729 | MR. JUSTICE MURPHY delivered the opinion of the court. This is an administrative review action in which the Circuit Court affirmed the revocation of plaintiff’s City of Chicago retail liquor license for premises at J/-721 N. Clifton Avenue, Chicago. On appeal, plaintiff contends that the judgment of the trial court is not substantially supported by the evidence or by the law. The order of revocation for 4721 N. Clifton was entered by the Local Liquor Control Commissioner of the City of Chicago on December 9, 1966, and made the following findings: 1. That on September 3, 1966, during an altercation on the licensed premises, George Semhrong, a patron on the licensed premises, was assaulted by another patron on said premises, one Alma Howe, with a deadly weapon, to-wit: a broken bottle, in violation of the Ordinances of the City of Chicago and the Statutes of the State of Illinois. 2. That the licensee and his agents failed to protect said patron, failed to render aid to said victim and failed to notify the police department of said altercation. 3. That on September 3, 1966, Oliver Montgomery, bartender on the licensed premises obstructed justice by directing one George Semhrong, not to report the above altercation to the police department. 4. That Marco Legones, the licensee of the licensed premises is not a proper person to possess a City of Chicago retail liquor license by reason of the revocation of the liquor license for the premises located at 4804% North Sheridan Road, on November 1,1966. The License Appeal Commission of the City of Chicago, in sustaining the order of revocation, found that findings (1) and (4) “are supported by substantial evidence in the light of the whole record,” and that findings (2) and (3) were not supported by the record. On February 14, 1967, a judgment order was entered in the Circuit Court, which affirmed the order of the License Appeal Commission. This is the judgment from which plaintiff has appealed. Plaintiff asserts there is nothing in this record that in any way reflects on the licensee as not being a proper person to possess a City of Chicago retail liquor license. Plaintiff notes the record shows no participation by the licensee or his employees in the altercation set forth in finding (1). As to finding (4), which was based on the revocation of plaintiff’s retail liquor license for 4804% North Sheridan Road, Chicago, plaintiff contends that the acts there charged were allegedly committed by employees, and the licensee himself in no way participated in any of the acts. Plaintiff argues, “It seems incredible that where a licensee has more than one license at different locations that an act committed by an employee at any other location which might constitute a violation of the law resulting in a revocation should deprive the licensee at one or more other locations of his right to do business at these other locations.” The litigants here are the same as in a companion appeal (No. 52,192, Legones v. License Appeal Commission of City of Chicago, 100 Ill App2d 394, 241 NE2d 499), in which this Division is filing an opinion simultaneously with the instant opinion. The opinion in No. 52,192 affirms the November 1, 1966, revocation by the local commissioner of plaintiff’s retail liquor license for 4804% North Sheridan Road. There the order of revocation was based on findings (1) that a patron was assaulted by an employee of the licensee; (2) that alcoholic liquor was sold on the premises to a person under the age of 21 years; and (3) alcoholic beverages were sold to an intoxicated person on the premises, all in violation of the ordinances of the City of Chicago and the statutes of the State of Illinois. Initially we note that when a person employs an agent to transact business for him, he is responsible for any act of the agent performed in the course of his duty or within the scope of his employment. Lipscomb v. Coppage, 44 Ill App2d 430, 430p, 197 NE2d 48 (1963). The statutory authority for the Local Liquor Commissioner, here the Mayor of Chicago, to revoke a local liquor license, is found in paragraphs 112 and 149 of the Liquor Control Act (Ill Rev Stats 1967, c 43). Paragraph 112, § 3, provides: “. . . (1) To grant and or suspend for not more than thirty days or revoke for cause all local licenses issued to persons for premises within his jurisdiction; . . . .” And paragraph 149 provides: “The local liquor control commissioner may revoke . . . any license issued by him if he determines that the licensee has violated any of the provisions . . . of any valid ordinance . . . enacted by the particular city council . . . .” What constitutes “cause” for revocation is not set forth or limited by the Act. Illinois authorities have stated that the language of the statute is clear that the local commissioner, in the revocation of a local license, is vested with discretionary power to be exercised reasonably. (Daley v. Kilbourn Club, Inc., 64 Ill App2d 235, 237-238, 211 NE2d 778 (1965); Daley v. License Appeal Commission, 11 Ill App2d 421, 425-426, 138 NE2d 73 (1956).) In Weinstein v. Daly, 85 Ill App2d 470, 229 NE2d 357 (1967), the power of revocation of the local commissioner is considered at length. There it is said (p 481) : “A license is purely a personal privilege to do what would otherwise be unlawful and hence carries with it no vested property right. . . . The provisions of the Dram Shop Act are to be liberally construed to the end that the health, safety, and welfare of the people of the state shall be protected. . . . The privilege of license, accordingly, must subordinate itself to the reasonable exercise of the discretionary powers of the local governing body. “. . . The widespread retail sale of alcoholic beverages is a business which is said to be fraught with danger, an enterprise which if allowed to proceed unchecked, would place in imminent peril the public health, safety, and very moral fiber of the community. The rather dramatic provisions of the Dram Shop Act, itself, manifest such legislative concern. The question of revocation of a retail liquor license presents a peculiarly local problem which can be best solved by the respective Local Commissioners who, because of their proximity to and familiarity with the situation, have greater access to information from which an intelligent determination can be made. That determination should not be disturbed in absence of a clear abuse of discretion.” The foregoing pronouncements in Weinstein apply here. We hold that the findings and revocation of plaintiff’s retail liquor license for 4804% North Sheridan Road, set forth in detail in appeal No. 52,192, Legones v. License Appeal Commission of City of Chicago, 100 Ill App2d 394, 241 NE2d 499, provided ample “cause” for the decision of the local commissioner to revoke plaintiff’s retail liquor license for premises located at 4721 N. Clifton. We find that this revocation was neither arbitrary nor a clear abuse of discretion. For the reasons given, the judgment of the Circuit Court is affirmed. Affirmed. ADESKO, J., concurs. | opinion_xml_harvard | 1,209 | 2023-08-26 00:06:10.035085+00 | 020lead | f | f | 1,976,127 | Burman, Murphy | null | LU | f | Published | 3 | Legones v. License Appeal Commission | Legones | Marco Legones, Plaintiff-Appellant, v. License Appeal Commission of the City of Chicago, A. L. Cronin, Chairman, and Richard J. Daley, Local Liquor Control Commissioner of the City of Chicago, Defendants-Appellees | null | null | <parties data-order="0" data-type="parties" id="b410-5" pgmap="410">
Marco Legones, Plaintiff-Appellant, v. License Appeal Commission of the City of Chicago, A. L. Cronin, Chairman, and Richard J. Daley, Local Liquor Control Commissioner of the City of Chicago, Defendants-Appellees.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b410-6" pgmap="410">
Gen. No. 52,193.
</docketnumber><br><court data-order="2" data-type="court" id="b410-7" pgmap="410">
First District, First Division.
</court><br><decisiondate data-order="3" data-type="decisiondate" id="b410-8" pgmap="410">
October 21, 1968.
</decisiondate><br><p data-order="4" data-type="judges" id="b410-16" pgmap="410">
BURMAN, P. J., dissenting.
</p><br><attorneys data-order="5" data-type="attorneys" id="b411-3" pgmap="411">
Wexler & Wexler, and Samuel C. Cohon, of Chicago, for appellant.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b411-4" pgmap="411">
Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen and Henry N. JSTovoselsky, Assistant Corporation Counsel), for appellee.
</attorneys> | null | null | null | null | null | null | 1,804,461 | Gen. 52,193 | 0 | illappct | SA | t | Appellate Court of Illinois | Appellate Court of Illinois |
4,443,545 | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT PARKER WAICHMAN LLP, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY and LINDA PURDO, individually and as Personal Representative of the Estate of THOMAS PURDO, Appellees. No. 4D18-3239 [October 2, 2019] Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Cymonie S. Rowe, Judge; L.T. Case No. 502007CA024173. Alan J. Kluger and Michael T. Landen of Kluger, Kaplan, Silverman, Katzen & Levine, P.L., Miami and Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Ft. Lauderdale, for appellant. J. Chris Bristow of Critton, Luttier & Coleman, LLP, West Palm Beach, for appellee Linda Purdo. KLINGENSMITH, J. Parker Waichman LLP, a New York-based law firm organized as a limited liability partnership, appeals a final order discharging its charging lien in a tobacco litigation case. Rather than awarding the full amount of the contingency fee sought by the firm at the end of the case, the trial court ordered the firm receive attorneys’ fees based on quantum meruit. For the reasons set forth below, we affirm the trial court’s order. In November 2007, Parker Waichman hired Jordan Chaikin, a lawyer licensed and based in Florida, as an associate attorney to assist in screening Florida Engle 1 cases. At the time, Chaikin was the firm’s only Florida attorney. Shortly after joining Parker Waichman, Chaikin filed suit on behalf of the estate of Thomas Purdo along with other Engle lawsuits. These cases remained mostly inactive until 2010, upon agreement of the 1 Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006). attorneys, due to pending rulings from the appellate courts on various Engle-related issues. In 2010, the firm’s managing partner Jerrold Parker received a letter from the Florida Bar concluding that Parker Waichman was engaging in the unlicensed practice of law by operating a Florida office without having a licensed partner in the state. The Florida Bar determined that Mr. Parker was holding himself out as a licensed attorney in marketing materials disseminated in Florida without the required limiting jurisdictional language indicating he was not a member of the Florida Bar. Subsequently, both Mr. Parker and the firm agreed that they would change their business operations to comply with the Bar’s requirements. Parker Waichman subsequently named Chaikin as a partner in its Florida office. In fact, Chaikin remained the only lawyer in the firm’s Florida office. Although Chaikin’s agreement with the firm described him as both a “profit partner” and “supervisory partner,” Chaikin was not allowed access to the financial information or capital of the partnership, and could not vote in partnership matters. Despite being described as a “profit partner,” his salary was determined by the managing partners, he did not share in the firm’s profits, and continued to receive compensation as a salaried W-2 employee entitled only to discretionary bonuses. Chaikin stipulated that he was a partner and referred to himself as such, but the evidence showed that Chaikin was never an equity partner of Parker Waichman and his role within the firm did not materially change with the new designation. In 2011, Chaikin invited attorney Alex Alvarez to his office to review Parker Waichman’s pending tobacco cases. Alvarez agreed to serve as co- counsel with Parker Waichman on a few of these cases, including Purdo’s case. Accordingly, Linda Purdo executed a new contingency fee agreement on behalf of the estate with the Alvarez Law Firm, Parker Waichman, and an appellate lawyer using Alvarez’s form agreement. Towards the end of 2015, Chaikin resigned from Parker Waichman to start his own firm. Parker Waichman sent Ms. Purdo a client departure letter advising her that she had the right to do one of three things: 1) have Parker Waichman and The Alvarez Law Firm continue to represent her; 2) have Chaikin represent her; or 3) elect to retain new counsel. Unhappy with the letter’s limited and rigid options, Ms. Purdo indicated she wished to retain Chaikin but added “and the Alex Alvarez Law Firm,” clearly choosing Chaikin and Alvarez and terminating her relationship with Parker Waichman. The trial court then issued an order substituting Chaikin as counsel for Ms. Purdo and relieving Parker Waichman. In 2 March 2016, once Parker Waichman was terminated, the firm filed the charging lien at issue in this case. The Purdo case went to trial in April 2016. According to evidence provided to the court, most of the trial preparation took place from January 2016 up until the day of trial with Chaikin involved in many aspects of it. Chaikin was also significantly involved in several matters during trial even though Alvarez admittedly handled the bulk of the trial work. The trial, which lasted almost a month, resulted in a verdict in favor of the Purdo estate for $33.5 million. As a result, Chaikin was entitled to a contingency fee of $4,223,700. After the verdict was upheld on appeal, Parker Waichman began litigating its charging lien and asked the trial court to award it the full contingency fee to be paid to Chaikin. At the three-day evidentiary hearing, Parker Waichman submitted that the firm worked a total of 116 hours on the Purdo case with cost disbursements totaling $17,803.88. Consistent with Parker Waichman’s time records, Chaikin agreed that he spent between 100 and 120 hours on the Purdo case while employed by Parker Waichman, and that his hourly rate while employed at the firm was between $500 and $650 per hour. After the hearing, the trial court awarded Parker Waichman attorney’s fees of $75,400.00 based on quantum meruit (116 hours at a rate of $650 per hour) and costs of $17,803.88 for a total of $93,203.88 which the parties agreed would be paid from Chaikin’s fee. The trial court also dismissed Parker Waichman’s charging lien with prejudice. This appeal follows. When fashioning an attorney’s fee award for a discharged firm “[t]he determination as to which factors are relevant in a given case, the weight to be given each factor and the ultimate determination as to the amount to be awarded are matters within the sound discretion of the trial court.” Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz, 652 So. 2d 366 , 369 (Fla. 1995). However, when dealing with a claim that the trial court used an incorrect legal standard or failed to properly apply the correct legal standard, the standard of review is de novo. See Wiener v. The Country Club at Woodfield, Inc., 254 So. 3d 488 , 491 (Fla. 4th DCA 2018). Here, Parker Waichman argues the trial court failed to apply the correct standard for the fee award as provided in Buckley Towers Condo., Inc. v. Katzman Garfinkel Rosenbaum, LLP, 519 Fed. Appx. 657 , 661 (11th Cir. 2013) and Frates v. Nichols, 167 So. 2d 77 , 82 (Fla. 3d DCA 1964). We disagree. 3 In Buckley, the court summarized the law regarding fee awards for firms who have been discharged by a client prior to completing their representation: The law in Florida relating to a firm’s right to contingency fees earned after the attorney-client contract is terminated varies depending on the relationship between the initial firm and the subsequent firm representing the client. When there is no connection between the two firms, the initial firm is entitled to a quantum meruit award, limited by any agreement to a maximum fee award. When an associate attorney at the initial firm exits the firm and the client follows the associate to a new firm, the initial firm is also entitled to this limited quantum meruit award. However, when a partner exits the initial firm and the client follows, the initial firm is entitled to the entire contingency fee, less the former partner’s partnership share. Id. (Emphases added and citations omitted). Buckley cited to Frates for the proposition that “the initial firm is entitled to the entire contingent fee, less the former partner’s partnership share” when a partner exits the firm. See Buckley, 519 Fed. Appx. at 661. In Frates, the Third District referred to the common law of partnerships to hold that “a law partner in dissolution owes a duty to his old firm to wind up the old firm’s pending business, and that he is not entitled to any extra compensation therefor.” 167 So. 2d at 80 . Because the clients already had retainer agreements with Frates’ old firm, the appeals court opined that the cases were assets of the old firm which Frates had a duty to wind up once he joined his new firm—without receiving any extra compensation for doing so. Id. at 81 . As such, the Third District held that the old firm was entitled to keep the entire fee award minus Frates’ partnership share under the old partnership agreement. Id. at 82 . After Frates was decided, Florida made significant changes to its partnership law. See Buckley, 519 Fed. Appx. at 662. In 2005, Florida adopted the Revised Uniform Limited Partnership Act. See § 620.1101, Fla. Stat. (2018), et seq. The Act states that limited liability partnerships are composed of members who are either general partners or limited partners. See §§ 620.1402, 620.1305, Fla. Stat. (2018). General partners manage the operations and activities of a limited liability partnership. See §§ 620.1402, 620.1406, Fla. Stat. (2018). General partners can also bind the partnership by any actions that they take on behalf and in furtherance of the partnership. See § 620.1402. Because their actions can cause the 4 partnership great potential liability, general partners must abide by stringent standards of conduct. See § 620.1408, Fla. Stat. (2018). For instance, a general partner has a duty of loyalty to the partnership which it must follow even during the process of winding up the partnership’s activities. See § 620.1408(3). Though a partnership agreement may specify the duties and responsibilities of a general partner, no agreement may eliminate a general partner’s duty of loyalty, obligation of good faith and fair dealing, or duty of care. See § 620.1110, Fla. Stat. (2018). In contrast, “[a] limited partner does not have any fiduciary duty to the limited [liability] partnership” but must discharge its duties “consistently with the obligation of good faith and fair dealing.” § 620.1305, Fla. Stat. (2018). A limited partner is not prohibited from taking an action merely because that action “furthers the limited partner’s own interest.” § 620.1305(3). Additionally, to withdraw from a limited partnership, a limited partner need only give notice of its “express will to withdraw as a limited partner.” § 620.1601(1)(a), Fla. Stat. (2018). In Buckley, the court considered whether an equity-holding attorney was entitled to fees after leaving his firm—a professional corporation—to join another, taking several clients with him. Id. at 659-60. Although the Eleventh Circuit acknowledged that Frates dealt with partnership law and not the law of corporations, it did not “believe Florida courts would allow attorneys to shirk fiduciary duties simply by choosing an alternate business entity for their law firm.” Id. at 662-63. The court further noted that “Florida law generally does not distinguish between lawyers in partnerships and those in professional corporations.” Id. at 663. As such, the court in Buckley applied Frates and held that the corporation was entitled to the fees obtained by the equity attorney because he owed his professional corporation the duty to wind up its affairs without receiving extra compensation for doing so. Id. at 665. Here, the evidence shows Parker Waichman LLP was created and organized in New York, thus it is a foreign limited liability partnership under Florida law. See § 620.1901, Fla. Stat. (2018). There was no evidence that Chaikin was ever a general partner or had equity ownership in the firm. The evidence before the trial court was that Parker Waichman initially hired Chaikin as an associate attorney, but in the wake of the Florida Bar investigation, later named him a partner. 2 While Chaikin’s 2 We rely on Chaikin’s stipulation that he was a partner and not Parker Waichman’s joinder agreement, which details the addition of Chaikin as a “new profit partner.” While this joinder agreement, which also states that New York law controls, is in the record, the trial court declined to consider it. Further, the 5 title may have changed, his duties, responsibilities, and compensation did not. Chaikin did not enjoy the benefits of general partnership status, namely access to the firm’s financial information, the ability to withdraw from capital accounts, or a right to vote on the firm’s affairs. See §§ 620.1402, 620.1406(1), Fla. Stat. Parker Waichman crafted this arrangement to obtain the benefit of getting clients in Florida without the obligations commensurate with making Chaikin a general partner or providing him equity ownership. Calling Chaikin a “partner” may have satisfied the firm’s obligations under Florida Bar rules, but mere labels do not control the outcome here. Although Buckley did not expressly define what a partner is for the purposes of fee sharing, we find that the relationship requires more than simply a change of title. For all practical purposes, Chaikin’s position never changed vis-à-vis the firm. Assuming Chaikin was a partner of Parker Waichman, he would be more aptly characterized as a limited partner and not a general partner. See § 620.1305. As a limited partner, Chaikin would have had no duty to wind up Parker Waichman’s affairs relating to the Purdo case after he left the firm and breached no duties to Parker Waichman by signing her as a client with his new firm. See id. Since Chaikin owed no fiduciary duty to the firm, Parker Waichman was not entitled to the full proceeds of Chaikin’s share of the Purdo contingency fee. Cf. Buckley, 519 Fed. Appx. at 663; Frates, 167 So. 2d at 80 . As such, the division of fees resulting from Chaikin’s disassociation from the firm should be treated like that involving the departure of an associate. See Buckley, 519 Fed. Appx. at 661; Frates, 167 So. 2d at 80 . In sum, for the purposes of dividing the contingency fee in a case involving the departure of a limited partner from a firm, the framework should mirror the one used when an associate attorney leaves a firm rather than when a general partner, equity holding attorney, or shareholder departs. See Buckley, 519 Fed. Appx. at 661; Poletz, 652 So. 2d at 369 . Therefore, Parker Waichman was only entitled to a quantum meruit award for work completed on the Purdo case when Chaikin was with the firm. See Poletz, 652 So. 2d at 369 . The court’s $93,203.88 award of fees and costs to Parker Waichman was supported by the evidence and within the proper exercise of the trial court’s discretion. See id. Affirmed. CONNER and KUNTZ, JJ., concur. parties expressly relied on Florida law to support their positions before the trial court and on appeal. 6 * * * Not final until disposition of timely filed motion for rehearing. 7 | opinion_html_with_citations | 2,484 | 2019-10-02 15:03:23.610222+00 | 010combined | f | f | 4,666,292 | null | null | C | f | Published | 0 | PARKER WAICHMAN LLP v. R.J. REYNOLDS TOBACCO COMPANY | null | null | null | null | null | null | null | null | null | null | null | 16,280,853 | 18-3239 | 0 | fladistctapp | SA | t | District Court of Appeal of Florida | District Court of Appeal of Florida |
6,673,247 | The opinion of the Court was delivered by Willard, A. J. The relators allege that the ordinance of the city of Columbia imposing upon them, as bankers, payment of a sum of money by way of a license is invalid, and they ask that the respondents be restrained from enforcing such ordinance by a writ of prohibition issued out of this Court. The propositions advanced by the relators in support of this position resolve themselves into the following: 1. That, as an incorporated company, transacting banking business under a charter from the Legislature, they are not liable to pay any corporate tax for carrying on such business. 2. That they have paid the tax imposed by the Act entitled “An Act to provide for a general license law,” approved March 13, 1872. 3. That the ordinance, considered as a means of raising revenue, is not “taxation” in the sense of the enactment conferring power to tax on the city corporation. 4. That, considered as a means of imposing a tax, such tax is not equal and uniform in respect to persons and property. 5. That the charge imposed is not a reasonable charge or tax. In order to determine the force of these various propositions, it is requisite to inquire: First. Whether the enactment of the ordinance in question is to be regarded as the exercise of the power of imposing taxes; and, Second. Whether the charges imposed on the relato:s by the ordinance is equal and uniform in respect of persons and property. *5The authority under which the respondents acted in the passage of the ordinance in question is contained in Section 8, Article IX, of the Constitution, which is as follows: “The corporate authorities of Counties, townships, school districts, cities, towns and villages may be vested with power to assess and collect taxes for corporate purposes, such tax to be uniform in respect to persons and property within the jurisdiction of the body imposing the same;” and in Section 8 of an Act amending the charter of Columbia, approved March 2,1871, (14 Stat., 572,) as follows: “That the said Mayor and Aldermen are hereby empowered to require all persons, companies and corporations now engaged, or who hereafter may be engaged, in business or avocations of any kind whatever, within the limits of the city of Columbia, to take out a license from the Mayor and Aldermen of the said city, who are hereby authorized to impose a reasonable charge or tax for the conduct of the same.” It is evident that the ordinance in question imposing a tax by way of license upon the relators on account of their business as bankers is in pursuance of the authority conferred' by the statute just quoted, unless the relators establish their proposition that it is not reasonable. This proposition will be hereafter examined; and, in the meantime, the reasonableness of the charge will be assumed for the purpose of examining the other branches of the argument. The question before us, then, is one of conflict between the grant of authority by the Act and the provisions of the Constitution already quoted. We come now to the question whether the enactment of the ordinance is to be regarded as the exercise of the power of imposing taxes. The constitutional authority extends, in terms, to power “to assess and collect taxes for corporate purposes.” If the charge imposed cannot be regarded as a tax in the sense in which that term is employed in the Constitution, then the respondents would have to look to some other source of authority for their action than this Section of the Constitution. The relators allege that the charge imposed upon them cannot be considered a tax in the sense of the Constitution. They contend that power to enact a license and impose a license fee necessarily implies a right to control the business in respect of which the license fee is demanded, either by prohibiting its exercise or permitting such exercise only upon conditions imposed according to the discretion of the city authorities. *6• Their proposition that the authority under which they conduct their business is derived directly from the Legislature through their charter of incorporation depends for its force upon the idea just presented of the nature of licenses and.license fees. Strictly speaking, a license of a trade or calling by a municipal corporation is referable to the police power possessed by such bodies, and implies authority to prohibit the exercise of such business, except upon conditions having reference to some end of police regulation. In its simplest form -of exercise, as where employed solely for the purpose of regulating avocations of a class tending to disturb public order, health or morality, it is a power totally distinct from that of imposing taxes for the purpose of raising revenue. It has, however, been long employed for the purpose of imposing, on a class of avocations to which the exercise of that power particularly relates, embracing places of public entertainment and amusement, taxation for rhe purpose of revenue of an extraordinary character, based upon the idea that avocations of that class should contribute specially to the support of the government in excess of the burdens borne by the productive industries. In this way it became one of the customary modes of raising revenue. The extension of this mode of raising revenue beyond the sphere of avocations to which the power of police regulation properly related, where circumstances of a peculiar nature rendered it requisite that each particular avocation should have its own rate of taxation, was natural where taxation had divided itself into two methods, the one embracing those subjects of taxation that are capable of being reached by means of an uniform rate, and the other such as could be treated in no other way than by subdivision into distinct classes and imposing a separate rate on each of such classes. Avocations of the class to which the power of public regulation properly relates naturally fall within the class of subjects of taxation last named, and the license, as a form of collecting special taxes, has been frequently extended to embrace all subjects of taxation calling for special rates of taxation. The law, always looking rather to substance than to names in fixing the nature of an imposition by way of license, looks directly to the end in view. If it finds that end to be a regulation tending to preserve public qrder, health or morality, it adjudges accordingly, applying the rules governing the exercise of the police power of the community; if, on the other hand, it finds that the object in view is *7the requisition of revenue exclusively, it applies the rules intended to regulate the taxing power. Under this view, we must look into the ordinance and the statute on which it is founded in order to ascertain whether the end and object was the imposition of taxation, or of some different character. The views just presented will be found fully carried out in United States vs. Vassar, (5 Wallace, 462,) Purvear vs. Massachusetts, (5 Wallace, 475,) and New York vs. Railroad, (32 N. Y., 261.) The statute under which the ordinance in question was passed uses the words “charge” or “tax” as descriptive of the nature of the imposition which the city government was authorized to make on the various trades and avocations carried on within its corporate limits. This expression, coupled with the fact that no other end than that of raising revenue for the support of the city government is disclosed in the statute, leads to the conclusion that the power intended to be conferred on the corporation was' that of taxation. The ordinance is equally clear on the subject. It does not subject the persons engaged in the various avocations to the performance of any other duty than that of paying the license fee fixed by the ordinance, nor does it impose any penalty or restriction whatever in respect of such avocation other than such as relates to the*' collection of such license fee. This view makes it clear that the -ordinance intended exclusively the exercise of the taxing power. It appears that the ordinance is to be regarded as an exercise of the taxing power, and as such its validity is to be determined by the rules and regulations governing the exercise of the power of imposing taxes. In the case of State vs. Hayne, (4 S. C., 403,) this Court held that a tax upon business and avocations was a legitimate mode of exercising the taxing power, and that in the absence of constitutional limitations the Legislature could properly fix a separate rate for each description of avocation embraced. We also held that the Constitution of this State permitted taxation of that class. It must be held, therefore, that the Legislature had power to authorize the imposition of a tax on avocations and business by a municipal corporation, and to confer on such bodies power to fix a separate rate for each distinct class of the subjects of taxation embraced within it, unless the language of the Constitution, quoted above, is to be construed as rendering it imperative, that a single rate should be applied to all such subjects of taxation equally. *8We come, at this point, to the examination of the second question suggested above, namely: Whether the charge imposed on the relators, by the ordinance, is “ uniform in respect of persons and property.” This question arises under the clause of the Constitution already quoted, and is specially applied to local and municipal taxation. The provisions of the Constitution that such taxes shall be “ uniform in respect to persons and propérty within the jurisdiction of the body imposing the same” is clearly a limitation on all kinds and modes of taxation that may be resorted to by local and municipal bodies, and as such is the test of the validity of the tax under consideration. It may be observed that the contrary would be the conclusion if the provision was to be so construed as to apply only to taxes strictly personal and taxes upon property. That such was not the intention is deducible from the fact that a strictly personal tax is identical with a poll tax, which municipal bodies are excluded from imposing. — .Const., Art. 9, § 2. The direct sense of the provision is that all taxes shall have an uniform operation as affecting the persons and property "to which they relate. In this sense, taxes upon avocations and business would be equally included and would be compelled to conform to the general rule. There is no sound reason to be derived either from the language of the Constitution or from the nature of the subject matter of which it treats for departing from this direct interpretation of the terms used. If equality and uniformity as the rule of taxation are desirable in the case of a poll tax, or a tax on property as such, it is equally desirable that it should apply to taxation on avocations and business. The true operation and effect, therefore, of the provision under examination is to prevent discrimination among individuals liable to taxation on personal grounds, or as it regards the right to have all visible and tangible property taxed according to its value. Every tax imposed under our tax laws involves a person by whom the burden is to be borne, a subject of taxation, and a sum or rate to be paid by such person in respect of such subject of taxation. It is, therefore, to be considered whether the tax in question makes an improper discrimination as it regards the different individuals or classes of individuals affected by it, or whether it in *9effect taxes property without regard to the principle of applying an uniform rate according to value. An improper discrimination as it regards the persons upon whom the tax is imposed, is one that does not arise from the nature of the subject matter in respect of which he is taxed, but from something that characterizes the individual as such, apart from all consideration of the nature and situation of the thing in respect of which the taxation is imposed. Where such a discrimination exists, it would be possible that two persons taxed in respect of the same subject matter might be subjected to the payment of unequal sums. Where, however, the law is so framed that the amount of taxation imposed on account of a particular subject of taxation cannot vary by whomsoever it is to be paid, the law cannot be said to be unequal and without uniformity as it respects persons. The ordinance in question does not make any personal distinctions. It divides the various avocations and business into separate classes and descriptions and affixes a rate to each; but all persons within the territorial jurisdiction following such avocations or business are subjected to like taxation. Nor does the ordinance violate the principle of taxing property according to value according to an uniform rate. Had it increased or decreased the amount of taxation due from any person on account of his avocation or business according to the quantity or value of property held by such person or employed in his business ■when the amount of property was not the proper standard for the measure of the value of such business, it might be proper to inquire whether such taxation did not cover a kind of taxation on property not permitted by our Constitution. But such does not appear to be the case. The tax imposed upon the relators is not of that character, nor does it appear that they are subjected to any increased sum or rate of taxation by reason of any improper discrimination allowed by the ordinance to any person or corporation other than the relators. The foregoing views are abundantly sustained by numerous well-considered and harmonious authorities. In Mirriam vs. New Orleans, (14 La. Ann., 318,) it was held that a requirement that all taxes should be equal and uniform was not violated by an ordinance taxing keepers of billiard saloons according to the number of tables employed in such business. *10A similar feature exists in the ordinance in question. The number of billiard tables employed is not an improper measure of the amount and value of the business done, and it cannot be regarded as virtually a tax on the tables considered as property. So in Hodgson vs. New Orleans, (21 La. Ann., 301,) the number of warehouses employed by a warehouseman being the measure of the tax imposed, it was held to be uniform and equal. This, too, was a legitimate mode of measuring the extent and value of the business as such. Fletcher vs. Oliver (25 Ark., 289,) affords an instance of the violation of the rule of equality and uniformity, where a discrimination was made between resident and non-resident property holders. Mason vs. Trustees (4 Bush Ky., 406,) and Nashville vs. Althorpe (5 Cold. Tenn., 354,) also illustrate the nature of personal discriminations in accordance with the view just advanced. In Attorney General vs. Plank Road, (11 Wis., 35,) Judge Paine discussed with great clearness the sense of the terms “equal”.and “uniform” as applied to taxation and throws much light upon the subject. In Bank vs. Hines, (3 Ohio, 1,) Chief Justice Bartley gives a full and clear definition of the terms “equal” and “uniform,” as applied to property taxation. An examination of the principles upon which the foregoing cases rest will show that the conclusions stated above are in harmony with the views that have been elicited in the various States where questions involving these principles have arisen for adjudication. We must therefore conclude that the tax imposed by the ordinance in question Í3 not obnoxious to the clause of the Constitution imposing limits upon municipal taxation. The points of objection made to the ordinance will next be separately considered. The objection that because the relators are a chartered corporation they aré not subject to this form of taxation depends on the idea that the license intended by the ordinance is an attempt to control their general right of transacting banking business, and therefore in conflict with their charter conferring that right. This, as we have seen, is not the correct view of the ordinance. As a measure of taxation, the relators are equally subject to its provisions with all other persons, natural or artificial. Nor does the payment of the license tax imposed by the government of the State relieve them from the necessity of paying local taxes. *11The only objection not already disposed of is that the tax in question is unreasonable. No ground appears for holding either that the ordinance as a whole is an unreasonable exercise of the taxing power conferred upon the city corporation or that the particular sum imposed in respect of the business carried on by the relators is unreasonable. The mode of taxation adopted in this case, including the fixing of a separate rate for each distinct avocation and kind of business, is not in itself unreasonable, as we have already seen. Nor can we say, from anything disclosed by the ordinance or pleadings, either that the aggregate sum or rate imposed by the ordinance is in excess of what is reasonably needed for the support of the city government or that it is in excess of what should be borne by the class of subjects of taxation to which the ordinance applies; nor can we say, from anything that appears, that any rule or principle of uniformity has been violated in fixing the proportionate part of the whole sum or rate that should be borne by the relators as bankers. It is not therefore necessary to define what was intended by limiting the corporation to a reasonable exercise of the powers conferred, there being nothing in the case putting the question of reasonableness at issue. The remaining ground advanced by the relators for the granting of the prohibition is an alleged want of power on the part of the respondents to issue process for the collection of taxes. The power conferred on the respondents, as we have seen, is to assess and collect taxes. This implies more than the power to sue for such taxes, and includes the right to use and employ whatever remedies have been usually employed for that purpose. The practice of issuing tax executions for the collection of taxes existed at the adoption of the Constitution, and had long existed prior to that time, (State vs. Hodges, 14 Rich., 256,) and must be deemed embraced by the authority to “collect” conferred by that instrument. The motion of the relators should be denied. Moses, C. J., and Wright, A. J., concurred. | opinion_xml_harvard | 3,137 | 2022-07-20 21:13:59.442071+00 | 020lead | t | f | 6,788,920 | Moses, Willard, Wright | null | U | f | Published | 0 | State v. Columbia | Columbia | State v. Columbia | <p>Beeoke COOKE, J., at Columbia, August, 1873.</p> <p>This was a suggestion by the Citizens’ Savings Bank and the South Carolina Bank and Trust Company, as relators, against the city of Columbia and Jesse E. Dent, Sheriff of Richland County, praying for a writ-of prohibition to restrain the enforcement of certain executions issued by the city against the relators for the collection of license fees.</p> <p>The ease was this: By an Act of the Legislature, approved March 2, 1871, (14 Stat., 572,) the Mayor and Aldermen of the city of Columbia are “ empowered to require all persons, companies and corporations now engaged, or who may hereafter become engaged, in business or avocations of any kind whatever, within the limits of the city of Columbia, to take out a license from the Mayor and Aldermen of the said city, who are hereby authorized to impose a reasonable' charge or tax for the conduct of the same.” And under the power thus conferred, the city of Columbia, on the 23d December, 1872, passed an ordinance entitled “An ordinance to regulate licenses for the year 1873,” whereby it was declared “that every person, firm, company or corporation engaged in, or intending to be engaged in, any trade, business or profession hereinafter mentioned shall obtain a license therefor in manner provided;” and then, after declaring that every such person, firm, &c., shall register his or her name or style, imposing a penalty of $40 for failure to register, and prescribing the manner of obtaining licenses, it-proceeded to fix the rates to be paid for the different classes of licenses1' in manner following: “Astrologers and clairvoyants, $100; apothecaries, retail, $25; architects or surveyors, $25; auctioneers, $100; ****** attorneys at law, $25; banks and bankers, $200; billiard) bagatelle or other gaming tables, for the first table, $50, and for every additional table in the same establishment, $25,” and so on, naming some eighty or ninety trades, professions and avocations, and fixing the sum to be paid for each distinct class, — “dealers, retail, in goods, wares and merchandise” being classified according to the amounts of their annual sales, and “boarding houses” and “hotels” according to the number of boarders or guests they could accommodate.</p> <p>The relators are banks chartered by the State and doing business within the limits of the city of Columbia. -They alleged that they had not paid the license fees of $200 prescribed by the ordinance for “banks and bankers;” that executions therefor had been issued and placed in the hands of the Sheriff, who threatens to levy the amounts thereof by distress and sale of relators’ goods and chattels. The grounds of the application for a writ of prohibition are stated in the judgment of this Court. ■</p> <p>The case was heard by His Honor Judge Cooke, (the Judge of the Circuit being absent from the State,) who made an order that a writ of prohibition do issue in accordance with the prayer of the suggestion.</p> <p>The city of Columbia appealed.</p> <p>cited Fletcher vs. Peck, 6 Cr., 87; Fx Parte McOullom, 1 Co wen, 564; Morris vs. People, 3 Denis, 381; Cohen vs. Hoff, 1 Tr., 637; License Cases, 5 Wall, 471; Hodgson vs. Neu< Orleans, 21 La. Ann., 301; Meriam vs. New Orleans, 14 La. Ann., 318; Fletcher vs. Oliver, 25 Ark., 289; Bruce vs. Hodges, 14 Rich., 256; State vs. Hayne, 4 S. C., 403; Dillon on Mun. Corp., §§ 291, 587, 594, 651, 653, 656; Cooley on Con. Lira., 479, 390 ; Mason vs. Trustees, 4 Bush, Ky., 406; Gilkeson vs. Justices, 13 Grat, 577; Gilman vs. Sheboygan, 2 Black., 510; Nashville vs. Althorp, 5 Cold., 554;. Slaughter vs. Commonwealth, 13 Grat., 767; Knowlton vs. Supervisors, 9 Wis., 410; Con., Art. IX, § 8, and other parts of the Constitution.</p> <p>cited 3 Kent, 360; Pope vs. Commissioners, 12 Rich., 410; Dillon on Mun. Corp., §§ 610, 284, 302, 605, 291, 609; Cooley on Con. Lim., 198, 200, 203, 211, 514, 518, 502; 9 Pick., 414; 4 Mass., 145, 473; 3 Story, 69; Savannah vs. Hartridge, 8 Ga., 23; Kyle vs. Malin, 8 Ind., 34, 37; Richmond vs. Daniel, 14 Grat., 387; Railroad vs. Alexander, 17 Grat., 176; Abb. Dig.Law of Corp., 492; Thorpe vs. Railroad, 27 Vt., 149; Bank vs. Hines, 3 Ohio, 1; Weeks vs. Milwaukie, 10 Wis., 282; Sanderson vs. Gross, 10 Wis., 282; Ang. & A. on Corp., §§ 377, 378; Savannah vs. Charleton, 36 Ga., 460; Ex Parte Garland, 4 Wall, 379 ; Paxon vs. Sweet, 1 Green., 196 ; Commissioners vs. Gas Company, 12 Penn., 318; Kip vs. Patterson, 2 Dutch, 298; Broom’s Leg. Max., 278; 23 N. H., 430; Ashville vs. Means, 7 Ired., 406; Mays vs. Cincinnati, 10 Ohio, 273; Covington vs. Southgate, 15 B. Mon., 498; Baker vs. Cincinnati, 11 Ohio, 504; McCullough vs. Daniel, Harp. Eq., 255 ; Walker vs. Pinson, 12 Rich. Eq.,452, and other cases, and the Articles and Sections of the Constitution and Acts of Assembly relating to the case.</p> | null | null | <p>An ordinanco of the city of Columbia imposing by way of license fees a tax on business and avocations, and discriminating as to the amounts to be paid for licenses by the different classes of persons subject to the tax: Held to be conformable to an Act of the Legislature authorizing the city to require all persons, companies and corporations engaged in business or avocations to take out licenses, and to impose a reasonable charge or tax for the same; and: Held, further, that neither the Act nor the ordinance was inhibited by any provision of the Constitution of the State.</p> <p>A license fee for carrying on a lawful business or avocation — as, for instance, that of an incorporated bank — imposed by an ordinance of a city, is a tax, within the sense of Section 8, Article IX, of the Constitution of the State, providing' that “ the corporate authorities of * * * !i* * cities, towns and villages may be vested with power to assess and collect taxes for corporate purposes, such taxes to be uniform in respect to persons and property."</p> <p>Though, strictly speaking, license of a trade or calling is referable to the police power of municipal bodies, yet the granting of licenses has long been used for the purpose, and has become one of the customary modes of raising revenue.</p> <p>The Legislature is not forbidden by the Constitution from empowering municipal corporations to impose taxes on business and avocations, and to fix a different rate for each distinct class of persons subject to the tax.</p> <p>A tax on business and avocations fixing a different rate of taxation for each distinct business or avocation is not in conflict with the provision of the Constitution requiring all taxes to be “ uniform with respect to persons and property."</p> <p>The sense of the term “uniform with respect to persons or property,” as used in Section 8, Articlo IX, of the Constitution, stated and explained.</p> <p>The business of a bank incorporated by the State is not exempt from municipal taxation.</p> <p>That the bank has paid a license fee imposed as a tax by the State for its own purposes does not exempt it from liability for municipal taxation imposed in the same way.</p> <p>A tax of $200 on the business of banks imposed by the city of Columbia: Held not to be unreasonable within the sense of an Act of the Legislature authorizing the city to impose a “ reasonable charge or tax.” 0</p> <p>A power to “ assess and collect taxes ” implies, in this State, the power to enforce collection by execution.</p> | null | null | null | null | null | 63,770,244 | null | 0 | sc | S | t | Supreme Court of South Carolina | Supreme Court of South Carolina |
5,047,382 | STERNBERG, Justice. Ruth Harlow, widow of Carl Harlow, in her individual capacity and in her administrative capacity, attacks the validity of Carl’s last will and testament and also seeks to set aside a settlement of claim that she made with Clarence Harlow, her brother-in-law, on the grounds that it was induced by duress, fraud and deceit. Carl Harlow died testate on July 22,1968, a resident of Letcher County, Kentucky. Carl and Clarence were partners in the “Harlow Motor Company.” In 1955 each of them executed a will which contained a reciprocal provision relating to the disposition of the business upon the death of either of them. It was provided thereby that the survivor shall have all of the interest of the other upon the payment of $85,000 to the estate of the deceased brother. On August 7, 1968, Ruth filed an application in the Letcher County Court to be appointed as the administratrix of her deceased husband’s estate. On the same date she was duly appointed and duly qualified. Thereafter, but on the same date, Carl’s will was discovered, and on the same date it was presented to the Letcher County Court for probate. It was duly probated and Ruth was appointed executrix thereof. She duly qualified and her bond in the sum of $120,000 was approved. Appraisers of the estate were duly appointed. To their report, Ruth, as executrix, filed exceptions, which were later overruled. On September 23, 1968, Ruth, acting in her individual capacity and in her capacity as executrix of Carl’s will, executed a receipt and release of all claims, demands and rights of action against Clarence Harlow and the property of every character owned by the Harlow Motor Company. In consideration therefor Clarence paid Ruth the sum of $87,000 and surrendered to her certain other personal items owned by Carl at the time of his demise, which were kept by Carl at the Harlow Motor Company. On September 14, 1971, Ruth, acting in her individual capacity and as administra-trix of Carl’s estate, filed motions to set aside the order of the Letcher County Court dated August 7, 1968, probating Carl’s will or, in the alternative, to allow her to file a renunciation as authorized by KRS 392.080. On February 23, 1972, the motions were heard by a special judge of the Letcher County Court. A transcript of the evidence is duly filed in the record. On April 30, 1973, the special judge entered an order overruling both motions. On May 1, 1973, a statement of appeal from the April 30, 1973, order of the Letch-er County Court was filed by Ruth, as wid*232ow of Carl, in the Letcher Circuit Court (Civil Action Number 4771). On the same date, as Carl’s widow and administratrix of his estate, Ruth filed an original action in the Letcher Circuit Court against Clarence Harlow and others, in which she attacked the September 23, 1968, settlement (Civil Action Number 4772). She charged, among other allegations, that the “receipt and release of claim” dated September 23, 1968, was procured from her under duress, fraud and deceit. The allegations of the complaint were generally traversed and by affirmative pleading it is charged that the substance of the action is, in effect, to renounce the will of Carl Harlow and that Ruth had not complied with the provisions of KRS 392.080 in doing so. These two actions were consolidated on the trial court’s own motion. In Action Number 4771 the trial judge sustained a motion to dismiss and in Action Number 4772 he sustained a motion for a summary judgment. Thereupon, both cases were dismissed. Action Number 4771 is the attack on the probate of Carl’s will. In considering the propriety of the court’s action in sustaining the motion to dismiss, we must bear in mind that such motion will not be granted unless it appears that the plaintiff will not be entitled to relief under any state of facts which would be proven in support of the claim. Ingram v. Ingram, Ky., 283 S.W.2d 210 (1955). “Since the dominion of an owner over his property ends at his death, the law must provide for the devolution of that property. If the owner has chosen to dispose of it by will, the property must pass according to the terms of the will; if there is no will, the law alone, through the rules of descent and distribution, accomplishes the transfer and designates the persons who are to take.” 23 Am.Jur.2d, Descent and Distribution, § 1, p. 749. In Kentucky, upon a person’s death, we have provided for the devolution of property either by testate succession (KRS Ch. 394) or by intestate succession (KRS Chs. 391, 392). In Eckert v. Givan, 298 Ky. 621, 183 S.W.2d 809 (1944), this court said: “Ella Hiller qualified as the executrix under the will of her deceased husband. She had the right of electing either to take under the will or of renouncing the will and taking under the law of descent and distribution.” In the case at bar the facts pertaining to this aspect of the case are not in dispute. The will was probated August 7, 1968. The record reflects that actually two renunciations were filed. One renunciation was certified by the Clerk of the Letcher County Court (erroneously designated as Clerk of the Letcher Circuit Court) to have been acknowledged by Ruth and filed on the_day of August, 1972 (sic). A notation at the top of the document indicates that it may have been filed September 13, 1972. The other renunciation was certified by the Clerk of the Letcher County Court to have been acknowledged by Ruth on October 2,1972, and filed on September 29,1972, which was three days prior to its acknowledgment. Regardless of whether the renunciation was executed or filed in August, September or October, 1972, the filing was more than twelve months after the probate of the will. As a matter of fact, the filing of the renunciation in any event was at least four years after the probate of Carl’s will. KRS 392.080 deals with the renunciation of a will by a surviving spouse. To paraphrase the statute, we find that Ruth would have had to file her renunciation by August 7, 1969. This, she did not do. This court has held that if a widow fails to renounce the will of her husband making provision for her, she must take the estate given by the will. Moise v. Moise’s Ex’r, 302 Ky. 843, 196 S.W.2d 607 (1946); Huhlien v. Huhlien, 87 Ky. 247, 8 S.W. 260 (1888); Smith et ux. v. Bone etc., 70 Ky. 367, 7 Bush 367 (1870); Chenault v. Scott, 23 Ky.Law Rep. 1974, 66 S.W. 759 (1902). Furthermore, in Mercer v. Smith, 32 Ky. 1003, 107 S.W. 1196 (1908), we held that a widow may not appeal from the order probating her husband’s will. If she does not approve of its provisions, under the express terms of Ky.St.1903, § 1404 (now KRS 392.-*233080), she may renounce them and take under the law; that being an exclusive remedy by which she can obtain her legal rights as her husband’s widow. If Ruth were permitted., to proceed with her will contest (No. 4771) and succeed in having the will set aside and held for naught, she would then share in Carl’s estate as if he had died intestate. To accomplish the same result, all she had to do was to file a renunciation of his will and she would have received her share as if he had made no will. The difficulty in which Ruth finds herself in the instant case is that she waited over four years to file a renunciation. This is of her own doing, and she will have to make the best of it. The trial judge properly dismissed the action. We next turn our attention to the action in which Ruth challenges the September 23, 1968, settlement with Clarence Harlow (No. 4772). The trial judge sustained a motion for summary judgment. The complaint was filed by Ruth as widow of Carl and as administratrix of his estate. The defendants therein are Clarence Harlow, Harlow Motor Company, Harlow Motor Company, Inc., Universal C.I.T. Corporation, Ford Motor Company, First Security Bank, Bank of Neon, Bill Harlow and Kenneth Harlow. The complaint charged that the “receipt and release of claim” was procured from her under duress, fraud and deceit. The allegations of the complaint are duly put in issue by Clarence’s answer. The ten-page complaint sets out with particularity the circumstances constituting fraud and the relationship of each of the codefendants to the subject matter of the action. None of the code-fendants are charged with the commission of the fraud, duress or deceit. This charge is directed at Clarence Harlow alone. Bill Harlow and Kenneth Harlow are the sons of Ruth and Carl, and they are made parties so that the action could be fully and finally disposed of. All of the other defendants are made parties by reason of the fact that they may have certain information and records which Ruth contends she may need in the establishment of her claim. The mere fact that a party may possess information which is pertinent to the action does not justify inclusion as a party to the action. No right to any relief has been sought against any person other than Clarence Harlow, Harlow Motor Company and Harlow Motor Company, Inc. All information and records legally pertinent to the issue can be properly secured by the taking of depositions. A record may reflect grave doubt that a claimant may prosecute his action to a successful conclusion, but he should be permitted at least to try. He should not be compelled to try his action on a motion for summary judgment. The true purpose of a summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at trial warranting a judgment in his favor against the movant. Roberson v. Lampton, Ky., 516 S.W.2d 838 (1974). Such is not the case here. The trial judge erroneously sustained defendant’s motion for a summary judgment insofar as it dismissed Ruth’s action against Clarence Harlow, Harlow Motor Company, Harlow Motor Company, Inc., and her two sons, Bill and Kenneth Harlow. Insofar as the court dismissed the action against Universal C.I.T. Corporation, Ford Motor Company, First Security Bank and Bank of Neon, it acted properly. The judgment is affirmed insofar as it dismissed the attempted appeal from the order probating the will of Carl Harlow (No. 4771) and reversed insofar as it dismissed Ruth’s attack upon the September 23, 1968, settlement (No. 4772). All concur. | opinion_xml_harvard | 1,785 | 2021-10-01 07:30:00.64117+00 | 020lead | t | f | 5,223,030 | Sternberg | null | U | f | Published | 0 | Harlow v. Harlow | Harlow | Ruth HARLOW, widow of Carl Harlow v. Clarence HARLOW, Appellees Ruth HARLOW, widow of Carl Harlow v. Clarence HARLOW | null | null | null | null | null | null | null | null | null | 60,553,346 | null | 0 | ky | S | t | Kentucky Supreme Court | Kentucky Supreme Court |
5,665,858 | *644Opinion BANKE, J. I. Introduction Real party in interest Timothy H. Joyce has sued petitioner Life Technologies Corporation (LTC) for wrongful termination, claiming, among other things, that he was discriminated against on the basis of his age and retaliated against because he complained about such discrimination. Joyce successfully moved to compel further answers to special interrogatories seeking detailed information about other employees/former employees. LTC seeks writ relief, contending the information ordered disclosed is irrelevant, unlikely to lead to admissible evidence and implicates significant privacy rights of the third party employees/former employees. It also contends the trial court failed to provide adequate procedural protections to the third parties before their private information is disclosed and failed to provide adequate protections for any such information once it is disclosed. We conclude the trial court did not adequately consider, or provide procedural protections for, the substantial privacy interests of the third party employees/former employees. Accordingly, we will issue a peremptory writ directing the court to vacate its order compelling further answers to the challenged interrogatories and reconsider Joyce’s motion in light of our opinion. II. Background Given the procedural posture of the case, our background recitation is largely derived from the allegations of Joyce’s operative (first amended) complaint. We recognize LTC disputes all of Joyce’s allegations of discrimination and retaliation. Joyce is a patent attorney. In May 2007, he was hired by Applied Biosystems, Inc., then a wholly owned subsidiary of Applera Corporation, to manage the chemistry patent group within the intellectual property legal department. He drafted and filed patent applications and also managed the group. In February 2008, he was promoted to director of the molecular biology and chemistry group, and received an increase in compensation. In May 2008, a planned merger between Applera and Invitrogen Corporation was announced. After the merger there would be an “ ‘excess capacity’ of employees.” Therefore, a “certain amount of employees” of Applied Biosystems would be let go over a two-year period. *645In June 2008, Applera and Invitrogen entered into a “Merger Agreement,” part of which included a “Special Severance Plan,” which would apply to employees laid off because of and within two years of the merger. Employees who voluntarily resigned, died or became disabled, or were terminated for cause or as a result of a sale or transfer of a business group, would be ineligible for a severance package. Around this time, Joyce consulted recruiters about future job opportunities. He was told Invitrogen had a pattern of acquiring companies, and then ridding itself of older employees and replacing them with younger new hires. Thereafter (Joyce does not allege when), he was told by his supervisor, Jeff Frazier, to “manage out” two over-40 female employees by “documenting them,” i.e., by composing negative performance reviews. Joyce refused to do so, “preferring instead to manage in a positive fashion.” In September and October 2008, the Special Severance Plan was formally announced and publicized. Employees “were promised that if they stayed focused and working in their jobs and did not look for another job, take another job, or take the time to job hunt in lieu of performing their job duties, the company would provide the benefits of the ‘Special Severance Plan’ . . . in order to ease the ‘financial impact on those who would be involuntarily terminated following the [merger/integration]’ while ‘[helping] to alleviate both the negative effects [of the merger] on productivity due to the uncertainty during this 2 year transition period and the potential for economic hardship of affected employees.’ ” Joyce “accepted this offer and did not seek out new employment at this time, instead staying focused on his job as requested.” During this period of time, Joyce “noticed that he was being excluded from various opportunities that could have an impact on his selection for a position with the new company while younger employees were allowed these opportunities.” He was also told by another employee that Frazier told her to warn Joyce “he should ‘get ready to be documented.’ ” This same employee later told him she heard he was on a “ ‘hit list’ for termination where performance issues would be fabricated and his work life made generally miserable in the hopes [he] would either voluntarily quit or ‘documented cause’ would be established for his termination, thereby justifying the denial of a severance package.” He also heard the same thing from other directors and staff, and that the same strategy would be taken with two other over-40 employees, including one of the two women Frazier had asked him to “manage out.” Joyce then went online to the United States Patent and Trademark Office Web site and observed almost all of the lawyers in the Invitrogen legal department had high registration numbers, “indicating that most were newly-minted attorneys, much younger than [he].” *646At the end of September, Joyce met with Frazier and stated his concern about his potential termination “due to his age and being cheated out of his severance.” Frazier “never denied what was occurring,” and indicated he did not agree with decisions being made by Invitrogen’s general counsel, but “there was nothing he could do.” In early October 2008, Joyce saw a copy of the new company’s “IP legal department organization chart,” and also saw his name on the layoff list on the chart. The list “appeared to confirm that many of those being laid off were over 40.” Joyce spoke with Frazier about the chart and the “three people being ‘managed out,’ all of whom were over 40.” Frazier did not deny there was such a document and told Joyce his concerns about age discrimination and being let go “were not going to help [him].” In late October, Joyce met with Frazier and the human resources senior manager, Wendy Van Bronkhorst, and expressed his concern about being let go. Frazier and Van Bronkhorst “fraudulently” told him there would be a position for him with the new company. As the preparation for the merger continued, Joyce was “systematically stripped of duties and assigned menial tasks.” He became the object of ridicule, and was eventually “demoted to a non-management position, in contrast to similarly situated younger employees.” He also was subject to a litany of unreasonable demands by Frazier and, in turn, increasing “documentation,” again in contrast to “other similarly situated younger employees.” In addition, he was “forced” to dig up information about another of the over-40 employees on the layoff list to support a termination for cause “to avoid paying her a severance package.” The merger of Invitrogen and Applera took place on November 21, 2008, resulting in the creation of LTC. On November 26, 2008, Joyce complained in writing to Van Bronkhorst that he was being subjected to age discrimination and also retaliation for his earlier informal complaints. Two days later, Joyce met with Van Bronkhorst, who denied any discrimination and said no investigation would be done. She also said there would be several rounds of layoffs, and “confirmed her understanding of Invitrogen’s tendency to hire younger workers.” The first round of layoffs occurred on or about December 10, 2008. Two of the three employees laid off were over the age of 40.1 *647In January 2009, the new organizational chart was made public, and Joyce did not have a position on it. His prior duties were reassigned to younger employees, and he was “effectively . . . demoted.” The following month, Joyce was put on a “performance improvement plan,” the “last step in the plan to ‘manage [him] out’ ” and “ostensibly provide grounds” to terminate him for cause and deny him a severance package. The asserted shortcomings in his performance were “petty, false and pretextual.” Joyce wrote to the director of employee relations, Rosine Lawson, and asked for a full-fledged investigation into his age discrimination complaint. On February 12, 2009, Joyce filed a complaint of age discrimination and retaliation with the Equal Employment Opportunity Commission (EEOC). On February 13, he met with Lawson about his internal complaint, and then began gathering information for her. On March 9, 2009, Joyce was “let go” for “poor performance.” He did not receive a severance package. Eleven of the 14 former employees of Applied Biosystems “laid off” as a result of the merger were over the age of 40.* 2 On March 16, he filed an additional complaint with the EEOC. His administrative complaints were consolidated, and the Department of Fair Employment and Housing issued a right-to-sue letter on April 2, 2009. The EEOC issued a right-to-sue letter on April 15, 2010. Joyce filed the underlying action on May 3, 2010, and a first amended complaint on June 18, asserting causes of action for age discrimination (Gov. Code, § 12940, subd. (a) [disparate treatment]), a pattern and practice of age discrimination that included him (Gov. Code, § 12940, subd. (b) [disparate impact]), retaliation for his complaints of FEHA (California Fair Employment and Housing Act—Gov. Code, § 12900 et seq.) violations, as well as for breach of contract. He sues only on his own behalf. The instant petition for writ of mandate arises from a discovery dispute, culminating in an order compelling answers to special interrogatories asking that LTC provide the following information: (a) The names of all employees terminated during a two-year period, November 1, 2008, to June 28, 2010. *648(b) The department each worked for when terminated. (c) The date of termination. (d) The age of each at termination. (e) The reason for termination. (f) Whether severance benefits were offered. (g) Whether offered severance benefits were accepted. (h) A description of any offered severance benefits. (i) A detailed explanation of reasons for any failure to offer severance benefits. (j) The identity (including name, address and telephone number) of all former Applied Biosystems employees still employed by LTC after the RIF. (k) Whether the terminated employees were former employees of Applera or Applied Biosystems. LTC objected to the interrogatories on the grounds the information sought was irrelevant, not likely to lead to admissible evidence (Code Civ. Proc., § 2017.010; Evid. Code, § 210), and implicated the privacy rights of third parties.3 (Cal. Const., art. I, § 1.) The order compelling answers requires counsel for Joyce and LTC to “meet and confer, and to draft a notice letter to relevant California-based current employees/former employees to briefly inform them of the general nature of this lawsuit. The employees/former employees should be informed of the nature of the information that will be disclosed to the Plaintiff unless they file a motion for a protective order.” The order places no restraint on the time and manner by which current and former employees may be contacted, nor does it contain safeguards maintaining the confidentiality of any information ultimately disclosed.4 *649III. Discussion Standard of Review We review the trial court’s discovery order under the abuse of discretion standard. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 371-372 [53 Cal.Rptr.3d 513, 150 P.3d 198] (Pioneer Electronics); Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [101 Cal.Rptr.3d 758, 219 P.3d 736].) Accordingly, we may not substitute our view for that of the trial court unless there is no legal justification for the court’s order. (Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1421 [82 Cal.Rptr.3d 470] (Alch).) Relevance Nature of Claims LTC contends none of the information sought by the special interrogatories is relevant to Joyce’s discrimination and retaliation claims, nor likely to lead to admissible evidence. (Code Civ. Proc., § 2017.010; Evid. Code, § 210.) LTC points out Joyce’s suit is not a class action. It also points out the record does not indicate the third party employees/former employees about whom information is sought are percipient witnesses to the discrimination and retaliation Joyce claims to have experienced. Joyce counters the information is necessary for him to develop a statistical analysis in support of his disparate treatment and disparate impact claims, emphasizing the latter claim. In addition, he “expects” the information may lead to evidence to prove his retaliation claim, as well as his claim for punitive damages. Although LTC acknowledges Joyce has pled both disparate treatment and disparate impact claims, it contends Joyce has not demonstrated, and cannot demonstrate, the elements of a disparate impact claim. “ ‘Disparate treatment’ is intentional discrimination against one or more persons on prohibited grounds. [Citations.] Prohibited discrimination may also be found on a theory of ‘disparate impact,’ i.e., that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, fn. 20 [100 Cal.Rptr.2d 352, 8 P.3d 1089].) LTC asserts Joyce has not identified “a specific, facially neutral employment practice or policy.” The record shows otherwise. Joyce is clearly challenging an RIF he claims was discriminatorily applied. This suffices as the predicate for a *650disparate impact claim. (See Pottenger v. Potlatch Corp. (9th Cir. 2003) 329 F.3d 740, 749 [RIF “would constitute” a specific, outwardly neutral business practice]; Schechner v. KPIX-TV (N.D.Cal., Jan. 13, 2011, No. C 08-05049 MHP) 2011 WL 109144, p. *1 [disparate impact case based on RIF].) Furthermore, as we next discuss and contrary to LTC’s apparent assumption, statistical evidence may be introduced in a disparate treatment, as well as a disparate impact, case. Statistical Evidence “Statistical proof is indispensable in a disparate impact case: ‘ “The plaintiff must begin by identifying the specific employment practice that is challenged.” ’ 1 “Once the employment practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.” ’ ” (Alch, supra, 165 Cal.App.4th at p. 1428, quoting Carter v. CB Richard Ellis, Inc. (2004) 122 Cal.App.4th 1313, 1323-1324 [19 Cal.Rptr.3d 519], quoting Watson v. Fort Worth Bank & Trust (1988) 487 U.S. 977, 994 [101 L.Ed.2d 827, 108 S.Ct. 2777]; see also Paige v. California (9th Cir. 2002) 291 F.3d 1141, 1145 (Paige) [statistical analysis “must show a disparity that is ‘sufficiently substantial’ as to ‘raise such an inference of causation’ ”]; Schechner v. KPIX-TV, supra, 2011 WL 109144 at p. *2; Stagi v. AMTRAK (3d Cir. 2010) 391 Fed.Appx. 133, 137-140 [“a plaintiff will typically have to demonstrate that the disparity in impact is sufficiently large that it is highly unlikely to have occurred at random, and to do so by using one of several tests of statistical significance”].) Thus, the critical comparison in a disparate impact case is “the group that ‘enters’ the [employment] process with the group that emerges from it.” (Paige, supra, 291 F.3d at p. 1145.) “ ‘[T]he best evidence of discriminatory impact is proof that an employment practice selects members of a protected class ... in a proportion smaller than in the actual pool of eligible employees.’ ” (Ibid., quoting Moore v. Hughes Helicopters, Inc. (9th Cir. 1983) 708 F.2d 475, 482.) Statistical evidence may also be utilized in a disparate treatment case. However, because discriminatory intent must be shown in such a case, statistical evidence must meet a more exacting standard. “[T]o create an inference of intentional discrimination, statistics must demonstrate a significant disparity and must eliminate nondiscriminatory reasons for the apparent disparity. Aragon[ v. Republic Silver State Disposal Inc. (9th Cir. 2002) 292 F.3d 654, 663] (finding that statistics unsupported by other probative *651evidence of discrimination was insufficient to show pretext and demonstrate discrimination); see also Coleman[ v. Quaker Oats Co. (9th Cir. 2000) 232 F.3d 1271, 1283] (holding that to raise a triable issue of fact regarding pretext based solely on statistical evidence, the statistics ‘must show a stark pattern of discrimination unexplainable on grounds other than age’); United States v. Ironworkers Local 86[ (9th Cir. 1971) 443 F.2d 544, 551, footnote omitted] (holding that use of statistical evidence ‘is conditioned by the existence of proper supportive facts and the absence of variables which would undermine the reasonableness of the inference of discrimination which is drawn.’).” (Gratch v. Nicholson (N.D.Cal., Sept. 20, 2005, No. C 04-03028 JSW) 2005 WL 2290315, p. *4.) Thus, “[although use of statistics is permissible [(in a disparate treatment case)], statistical evidence ‘rarely suffices to rebut an employer’s legitimate, nondiscriminatory rationale for its decision to dismiss an individual employee.’ Aragon v. Republic Silver State Disposal Inc.[, supra, at p. 663, fn. 6.] . . . [T]his is so because ‘in disparate treatment cases, the central focus is less on whether a pattern of discrimination existed [at the company] and more how a particular individual was treated and why. As such, statistical evidence of a company’s general hiring patterns, although relevant, carries less probative weight than it does in a disparate impact case.’ [Ibid., citing LeBlanc v. Great Amer. Ins. Co. (1st Cir. 1993) 6 F.3d 836, 848-49.]” (Gratch v. Nicholson, supra, 2005 WL 2290315 at p. *4, fn. 4.) To some extent, then, the special interrogatories seek information arguably likely to lead to admissible evidence, although some of the information sought (e.g., descriptions of severance benefits) does not appear to be pertinent to any relevant statistical analysis. In any case, our inquiry does not end here because the information sought by the interrogatories implicates significant privacy rights of the third party employees/former employees. Privacy Rights Pioneer Electronics sets forth the legal principles governing our review of the privacy concerns implicated by the special interrogatories. “[T]he right of privacy protects the individual’s reasonable expectation of privacy against a serious invasion. [Citation.] . . . [W]hether a legally recognized privacy interest exists is a question of law, and whether the circumstances give rise to a reasonable expectation of privacy and a serious invasion thereof are mixed questions of law and fact.” (Pioneer Electronics, supra, 40 Cal.4th at pp. 370-371.) The “analytical framework” for assessing privacy claims should proceed as follows; “First, the claimant must possess a ‘legally protected *652privacy interest.’ [Citation.] An apt example from Hill [v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 [26 Cal.Rptr.2d 834, 865 P.2d 633]] is an interest ‘in precluding the dissemination or misuse of sensitive and confidential information (“informational privacy”) . . . .’ [Citation.] Under Hill, this class of information is deemed private ‘when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.’ [Citation.] . . . [f] Second, Hill teaches that the privacy claimant must possess a reasonable expectation of privacy under the particular circumstances, including ‘customs, practices, and physical settings surrounding particular activities . . . .’ [Citation.] As Hill explains, ‘A “reasonable” expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.’ [Citation.] ‘[Opportunities to consent voluntarily to activities impacting privacy interests obviously affect[] the expectations of the participant.’ [Citation.] [][] Third, Hill explains that the invasion of privacy complained of must be ‘serious’ in nature, scope, and actual or potential impact to constitute an ‘egregious’ breach of social norms . . . . [f] Assuming that a claimant has met the foregoing Hill criteria for invasion of a privacy interest, that interest must be measured against other competing or countervailing interests in a ‘ “balancing test.” ’ [Citations.] . ‘Conduct alleged to be an invasion of privacy is to be evaluated based on the extent to which it furthers legitimate and important competing interests.’ [Citation.] Protective measures, safeguards and other alternatives may minimize the privacy intrusion. ‘For example, if intrusion is limited and confidential information is carefully shielded from disclosure except to those who have a legitimate need to know, privacy concerns are assuaged.’ ” (Pioneer Electronics, supra, 40 Cal.4th at pp. 370-371.) Joyce asserts no serious invasion of privacy interests is implicated by his interrogatories. We disagree. The interrogatories effectively seek the disclosure of confidential personnel records of nonwitness third parties. The public interest in preserving confidential, personnel information generally outweighs a private litigant’s interest in obtaining that information. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 530 [174 Cal.Rptr. 160].) “A showing of relevancy may be enough to cause the court to balance the compelling public need for discovery against the fundamental right of privacy. (Mendez v. Superior Court (1988) 206 Cal.App.3d 557, 567 [253 Cal.Rptr. 731].) However, the balance will favor privacy for confidential information in third party personnel files unless the litigant can show a compelling need for the particular documents and that the information cannot reasonably be obtained through depositions or from nonconfidential sources. (See El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 346 [235 Cal.Rptr. 303].) Even when the balance does weigh in favor of disclosure, the scope of disclosure must be narrowly *653circumscribed.” (Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10 [12 Cal.Rptr.2d 538], italics added; see also Alch, supra, 165 Cal.App.4th at p. 1433 [plaintiffs abandoned their request for “sensitive information ordinarily found in personnel files, such as evaluation of the person’s work ..., income information, employment contracts and the like”]; cf. Britt v. Superior Court (1978) 20 Cal.3d 844, 855-864 [143 Cal.Rptr. 695, 574 P.2d 766] (Britt) [even party plaintiffs could not be compelled to provide information about all their political activities or their entire medical histories; party seeking discovery must show both compelling need for the information and that discovery request is narrowly and specifically drawn to minimize intrusion into private matters].) As Joyce points out, the importance of “eradicating discrimination and retaliation in the workplace and providing a remedy to employees when such occurs” is a compelling public policy, codified in the FEHA statutes. But, as noted, that public policy must be weighed against the privacy interests involved. Here, the trial court failed to separately analyze the several categories of information sought by the interrogatories, and “to consider whether a more nuanced approach to the different categories of data would satisfy the balance that must be taken between privacy interests and a litigant’s need for discovery.” (Alch, supra, 165 Cal.App.4th at p. 1422.) This, alone, is reason to issue a writ and return the matter to the trial court. We further observe that, while Joyce points out he must make a statistical showing in connection with his disparate impact claim, there is no apparent reason on this record why he cannot obtain the necessary raw data from LTC in a form that would not disclose individual-specific confidential information. Although Joyce will be required to demonstrate the reliability of any statistical evidence he presents (Ortega v. Safeway Stores, Inc. (10th Cir. 1991) 943 F.2d 1230, 1243), nothing in the record at this stage of the case supports his speculation LTC will not supply accurate data. There also is nothing in the record that explains why Joyce needs data of the breadth he seeks, particularly given the focus of a statistical analysis for disparate impact purposes. The interrogatories also seek employee/former employee residential addresses and telephone numbers. “Courts have frequently recognized that individuals have a substantial interest in the privacy of their home.” (Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 359 [99 Cal.Rptr.2d 627] (Planned Parenthood).) Joyce asserts “there is no other way to obtain percipient witnesses contact information.” But, again, nothing in the record suggests all of the employees/former employees as to whom contact information is sought were witnesses to the discriminatory and retaliatory acts he allegedly suffered. (Cf. Puerto v. Superior Court (2008) 158 *654Cal.App.4th 1242 [70 Cal.Rptr.3d 701] [names and contact information authorized for individuals identified by defendant as percipient witnesses].)5 Nor are these employees/former employees potential class members who previously self-identified. (Cf. Pioneer Electronics, supra, 40 Cal.4th 360.) Indeed, the Supreme Court framed the issue in Pioneer Electronics as: “Does a complaining purchaser possess a right to privacy protecting him or her from unsolicited contact by a class action plaintiff seeking relief from the vendor to whom the purchaser’s complaint was sent?” (Pioneer Electronics, supra, 40 Cal.4th at pp. 365-366.) The third party employees/former employees whose personnel information is sought by Joyce have not placed themselves in a comparable situation. Other recent class action cases are also on a distinctly different footing and do not support the sweeping disclosure of individual-specific confidential information sought here. (E.g., Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 965-975 [87 Cal.Rptr.3d 400]; Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325, 1336-1338 [83 Cal.Rptr.3d 241] [observing contact information regarding the identity of “potential class members” is “generally discoverable”; putative class members are also, by definition, witnesses to the allegedly wrongful conduct].) As for the interrogatories seeking severance package information, the features of the Special Severance Plan were publicized throughout the company, including the criteria by which an employee would or would not receive a severance package. Accordingly, the record indicates Joyce does not need private information from individual personnel files to support his claim that he was denied such benefits in retaliation for his complaints of age discrimination. In sum, the interrogatories are in some respects overbroad and in other respects seek private and personal information without a sufficient showing of compelling need for it. In addition, the trial court failed to provide sufficient procedural safeguards in connection with the ordered disclosure. In Pioneer Electronics, for example, the company, not the plaintiffs’ attorney, was the party directed to give notice to putative class members (a status not shared by the third party employees/former employees here) of “important limitations, requiring written notice of the proposed disclosure to all complaining Pioneer customers, giving them the opportunity to object to the release of their own personal identifying information.” (Pioneer Electronics, supra, 40 Cal.4th at p. 373.) In Alch, notice to putative class members included a simple objection form *655“on which recipients could object to the disclosure of all or specific categories of information, and a list of frequently asked questions and corresponding answers. The notice advised recipients that a motion could be filed to overrule any objection. It also advised that a court order would restrict use of and access to the requested records, which would be made available only in connection with the litigation.” (Alch, supra, 165 Cal.App.4th at p. 1418.) Thereafter, objectors were sent a second notice notifying them that the party requesting the information “intended to move to overrule their objections, and advising them of their rights to respond to the . . . motion in writing and at a hearing.” (Ibid.) Had Joyce sought the information at issue here by way of a deposition subpoena, instead of through interrogatories, he would have been required to cause a copy of the subpoena duces tecum to be served on the employees/former employees, as well as the declaration in support of the subpoena, along with a detailed privacy notice. (Code Civ. Proc., § 1985.6, subds. (b)-(e).) A nonparty employee/former employee could thereafter “serve on the subpoenaing party, the deposition officer, and the witness a written objection that cites the specific grounds on which production of the employment records should be prohibited.” (Code Civ. Proc., § 1985.6, subd. (f)(2).) “No witness or deposition officer shall be required to produce employment records . . . after receipt of a written objection from a nonparty employee, except upon order of the court in which the action is pending . . . .” (Code Civ. Proc., § 1985.6, subd. (f)(3).) We do not believe a nonparty employee/former employee should be deprived of such protections simply because the discovery vehicle used is a set of special interrogatories, rather than a subpoena duces tecum. The trial court also failed to make any provision for maintaining the confidentiality of any disclosed information, by sealing it and/or limiting its use and dissemination. (See Pioneer Electronics, supra, 40 Cal.4th at p. 371 [“[protective measures, safeguards and other alternatives may minimize the privacy intrusion”]; Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652 [125 Cal.Rptr. 553, 542 P.2d 977] [appropriate confidentiality and sealing orders].) We therefore conclude the trial court abused its discretion in ordering further answers to the challenged special interrogatories. The court failed to evaluate, with regard to each category of information requested by Joyce, whether a compelling need for the information outweighs the third parties’ privacy interests, taking into consideration whether less intrusive means exist for Joyce to obtain the information he seeks. (See Britt, supra, 20 Cal.3d at pp. 855-864; Harding Lawson Associates v. Superior Court, supra, 10 Cal.App.4th at p. 10; El Dorado Savings & Loan Assn. v. Superior Court, *656supra, 190 Cal.App.3d at p. 346.) The court also failed to provide sufficient notice to the third party employees/former employees affording them a simple, reasonable means of objecting to the disclosure of their personal information, and failed to provide for the protection of any such information ultimately ordered disclosed. (See Alch, supra, 165 Cal.App.4th at p. 1418; cf. Code Civ. Proc., § 1985.6, subds. (b)-(f).) IV. Disposition Let a peremptory writ of mandate issue commanding respondent Superior Court of San Mateo County to set aside that portion of its order filed February 2, 2011, in Joyce v. Life Technologies Corp. (Super. Ct. San Mateo County, No. CIV494692) granting Joyce’s motion to compel responses to special interrogatories Nos. 2-10, 59 and 62 and to, instead, reconsider the motion in light of our opinion. The stay previously imposed shall remain in effect until the remittitur issues. Petitioner, LTC, shall recover its costs. Marchiano, P. J., and Margulies, J., concurred. The record is not clear, but suggests these individuals were former employees of the Applied Biosystems’s legal department and, specifically, the molecular biology and chemistry group. The record is also unclear or wholly silent in a number of other respects, including as to *647the total number of employees subject to the two-year reduction in force (RIF) company-wide, in California only, in the company’s (or prior companies’ legal departments), and in groups within the legal department(s). As noted, the record is unclear as to whether these 14 individuals were employed in Applied Biosystems’s legal department, or a group within the legal department, or throughout the company. LTC also asserted the interrogatories potentially impacted hundreds of employees/former employees. Joyce then stated he would be satisfied with information for “California” employees/former employees, and the order compelling further answers was narrowed accordingly. The record is silent as to how many individuals are or were employed in-state. Although Joyce makes reference to protective order provisions, none are part of the record. Even as witnesses, they would be entitled to privacy protections. (Pioneer Electronics, supra, 40 Cal.4th at p. 373; Planned Parenthood, supra, 83 Cal.App.4th 347.) | opinion_xml_harvard | 5,107 | 2022-01-12 03:54:37.662758+00 | 020lead | t | f | 5,810,420 | Banke | null | U | f | Published | 0 | Life Technologies Corp. v. Superior Court | null | LIFE TECHNOLOGIES CORPORATION v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent TIMOTHY H. JOYCE, Real Party in Interest | null | null | null | null | null | null | null | null | null | 62,167,855 | No. A131120 | 0 | calctapp | SA | t | California Court of Appeal | California Court of Appeal |
2,046,057 | 394 N.E.2d 935 (1979) William W. BUCK, Defendant-Appellant, v. P.J.T., Plaintiff-Appellee. No. 3-978A243. Court of Appeals of Indiana. September 10, 1979. Rehearing Denied January 14, 1980. *936 Anthony V. Luber, South Bend, for defendant-appellant. Bruce H. Stewart, Leibowitz & Stewart, South Bend, for plaintiff-appellee. GARRARD, Presiding Judge. On February 14, 1974 P.J.T. commenced this action against Buck to have him declared the father of her child. A warrant was issued but was cancelled at her request on February 20th. Summons was then issued and served upon Buck by certified mail at a residence address in Illinois. The return receipt signed "Janis Buck" was dated February 22, 1974. When no appearance was entered by March 18th a new warrant was ordered issued. Subsequently, on December 13, 1974, judgment by default was entered against Buck. Nearly three years later, on October 28, 1977, Buck filed a motion to set aside the judgment. He brings this appeal from the denial of that motion asserting that the court lacked personal jurisdiction. It is not disputed that there was a sufficient contact basis for the Indiana courts to exercise jurisdiction in this case. See Neill v. Ridner (1972), 153 Ind. App. 149 , 286 N.E.2d 427 . Instead Buck's attack is premised upon the notice requirements necessary to due process. See Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306 , 70 S.Ct. 652 , 94 L.Ed. 865 . In examining his assertion we must bear in mind a distinction ignored in his argument. There is a difference between a form of service that is not reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to be heard and a form that, while reasonably calculated to give actual notice, fails to do so in a specific case. In the former, personal jurisdiction is not acquired because the proceeding fails to accord due process. In *937 the latter, personal jurisdiction is present. However, the result of its exercise may be set aside as a matter of fairness and good conscience. See, e.g., Indiana Rules of Procedure, Trial Rule 60(B). The form of service on non-residents here employed under TR 4.4(B) is precisely the same as that for service upon residents. TR 4.1(A)(1). Service delivered by United States mail, postage prepaid, as certified mail with a return receipt satisfies the method requirement of due process. No contention is made that the information contained was inadequate or that inadequate time to respond was provided. Since actual delivery to the party is not jurisdictionally necessary, Buck's argument that the court failed to acquire personal jurisdiction fails. Moreover, it does not appear the court erred in refusing to grant relief under TR 60(B). At no point does Buck assert that he did not receive timely actual notice. Nor, for that matter, does he assert any reasons explaining the long delay in filing his TR 60 motion. No abuse of discretion appears. Finally, Buck argues that in accord with Neill v. Ridner, supra , he is entitled to reversal because of the existence of the warrant for his arrest. We disagree. The statute governing paternity actions authorizes the use of civil process or a warrant. IC XX-X-X-XX. However, in Neill the court found upon the facts present that the pendency of the warrant during and following the use of civil process created such an obstacle to Neill's participation in his defense as to constitute a denial of due process. Neill had been represented by counsel who appeared specially shortly after the action was commenced and who "contested jurisdiction at virtually every stage of the proceedings." Despite this representation "on two occasions [during the pendency of the action] the court specifically refused or failed to recall the outstanding warrants after a ruling that service had been made on the defendant." 286 N.E.2d at 431. The court concluded that continuance of the warrants after the determination that service had been successful could only serve the purpose of vindictiveness or harassment and that they substantially interfered with Neill's right to be heard. The case before us is totally different in the significant particulars. Here, while a warrant was issued, it was recalled when service by summons was attempted. During the twenty-three days following delivery of the summons no warrant was outstanding. That period, of course, equals the time permitted by TR 6(C) and (E). Although a warrant was again issued on March 18th, there had been no judicial determination of the adequacy of service. Not at any point did Buck seek to have the warrant withdrawn. In short, upon the facts now before us it does not appear that his ability to appear and defend himself was in any manner actually impinged upon by the existence of the warrant. Accordingly, there was no denial of due process. Affirmed. HOFFMAN, J., concurs. STATON, J., dissents and files separate opinion. STATON, Judge, dissenting. I dissent. The majority opinion attempts to demonstrate the inapplicability of Neill v. Ridner (1972), 153 Ind. App. 149 , 286 N.E.2d 427 to the facts in the present appeal by making these distinctions: (1) that twenty-three days followed delivery of the summons while no warrant was outstanding; (2) "there had been no judicial determination of the adequacy of service" and, (3) Buck did not "at any point ... seek to have the warrant withdrawn." These distinctions are specious and do not represent the touchstones of the Neill rationale which concluded that Neill had been denied due process of law. The needless, concurrent existence of a warrant and summons is error. Here, the warrant was permitted to exist for nine months after good service of summons had been obtained. The lurking threat of incarceration had a chilling and stultifying effect upon Buck's *938 opportunity to be heard and to defend himself before judgment; therefore, Buck was denied due process of law. The default judgment should be set aside, and Buck should be given the opportunity to be heard without the threat of incarceration. The rationale of Neill is that summons and warrants are exclusive means of service under IC 1971, XX-X-X-XX, [1] Ind. Ann. Stat. § 3-635 (Burns 1968), and that their concurrent existence as a means of service is error. This rationale concludes that reversible error exists when the concurrent existence of the warrant extends past any legal purpose. When the warrant lacks legal purpose, its existence serves only as an impermissible barrier to due process. Judge Robertson, writing the opinion in Neill, stated: "[W]e are of the opinion that the outstanding warrants, after service of summons was accomplished, served to deny the defendant the right to be fully heard in court, and was, therefore, a denial of due process of law. "There was obvious error in that both summons and warrants existed concurrently. IC 1971 XX-X-X-XX, Ind. Ann. Stat. § 3-635 (Burns 1968) does not contemplate such a situation, for it specifically relates that a warrant be issued in lieu of a summons, but more importantly the plaintiff effectively erected barriers of sufficient strength to keep the defendant from fully presenting his case, i.e., participation in blood testing, assisting counsel in cross-examination, and testifying in his own behalf, unless he subjected himself to the possibility of the now needless sanctions of incarceration and all that is entailed therein." 286 N.E.2d at 430. The majority opinion's first attempted distinction is not related to the Neill rationale the impermissible effect of a warrant without legal purpose. Any failure of a party to respond to a paternity petition within twenty-three days after service of summons under TR. 6(C)(E) should not result, as suggested by the majority opinion, in the issuance of a warrant for the arrest of the party failing to respond; rather, a motion for a default judgment seems more appropriate. In Neill, an attorney had made a special appearance for Neill to contest jurisdiction on September 11, 1969. Later, "[o]n November 19th, and December 19th, 1969, bench warrants were issued for the arrest of the defendant... ." Neill, supra, 286 N.E.2d at 428. Personal service on Neill was not achieved until a year later, November 25, 1970. It is the existence of the warrant after no legal purpose for its existence can be justified that relates to the Neill rationale. The foreclosure of an opportunity to respond without sanctions and not the mere opportunity to respond without a warrant is the touchstone of the Neill rationale. The second attempted distinction by the majority opinion, judicial determination of the adequacy of service, is equally specious, since it is the existence of a legal purpose for the warrant and not a judicial determination or ruling on the adequacy of service that triggers the denial of due process. The discussion of the trial court's ruling of adequacy of service in Neill was merely to illustrate and underscore the obvious vindictiveness and harassment purposes of the outstanding warrants. Judge Robertson stated in his opinion that "[t]he ruling that service had been successful destroyed any legal efficacy of the warrants and the only remaining value they could have would be that of vindictiveness or harassment." Neill, supra, 286 N.E.2d at 431. A default judgment was rendered against Buck. This entry of judgment would seem to be a decisive ruling on the adequacy of service; indeed, a very difficult ruling to overcome. To avoid the attempted distinction placed by the majority opinion upon the Neill opinion, Judge Robertson further stated: "Lest this holding be misconstrued, the issuance of either a summons or a warrant *939 is proper as provided by law. It is where, as under the facts of this case, the warrant serves no further legal purpose that its continued existence amounts to a denial of due process." Neill, supra, 286 N.E.2d at 431. The majority opinion's third distinction is even more untenable than its first or second distinctions: Buck did not "at any point... seek to have the warrant withdrawn." A summons was issued and served upon Buck by certified mail. The return receipt signed by Buck was dated February 22, 1974. This service of summons as the majority opinion points out was supportive of a default judgment against Buck. There was no need for a warrant. However, a warrant was issued on March 18, 1974, and it existed concurrently with a valid service of summons until December 23, 1974 nine months later when the trial court rendered a default judgment against Buck. Under the Neill rationale, no legal purpose existed for the warrant since good service with a summons had already been obtained; therefore, the only remaining value of the warrant would have been that of "vindictiveness or harassment." Under the Neill rationale, the result of the concurrent existence of a warrant without legal purpose with a summons properly served is a denial to "the defendant the right to be fully heard in court * * * unless he subjected himself to the possibility of the now needless sanctions of incarceration and all that is entailed therein." Neill, supra, 286 N.E.2d at 430. To suggest that Buck should seek to have the warrant withdrawn by submitting himself to incarceration is unrealistic and unnecessary. Under the Neill rationale the mere threat of incarceration by warrant after any legal purpose for the warrant no longer exists is a denial of due process of law. The majority opinion has not distinguished Neill v. Ridner, supra , from the facts in Buck's appeal. The warrant for Buck's arrest existed concurrently with a good service of summons for nine months before judgment without a legal purpose. This long, unnecessary, and concurrent existence of a warrant without legal purpose with good service of summons denied Buck due process of law. The default judgment of the trial court should be set aside and a new trial granted. NOTES [1] Repealed effective October 1, 1979 by Acts 1978, P.L. 136 § 57. For present law see IC 31-6-7-4 and 5 (Burns Code Ed., Supp. 1978). | opinion_html_with_citations | 2,000 | 2013-10-30 08:10:02.001586+00 | 010combined | f | f | 2,046,057 | Garrard, Hoffman, Staton | null | LU | f | Published | 8 | Buck v. P. J. T. | Buck | William W. BUCK, Defendant-Appellant, v. P. J. T., Plaintiff-Appellee | null | null | <parties id="b973-9">
William W. BUCK, Defendant-Appellant, v. P. J. T., Plaintiff-Appellee.
</parties><br><docketnumber id="b973-11">
No. 3-978A243.
</docketnumber><br><court id="b973-12">
Court of Appeals of Indiana.
</court><br><decisiondate id="b973-13">
Sept. 10, 1979.
</decisiondate><br><otherdate id="b973-14">
Rehearing Denied Jan. 14, 1980.
</otherdate><br><attorneys id="b974-12">
<span citation-index="1" class="star-pagination" label="936">
*936
</span>
Anthony V. Luber, South Bend, for defendant-appellant.
</attorneys><br><attorneys id="b974-13">
Bruce H. Stewart, Leibowitz & Stewart, South Bend, for plaintiff-appellee.
</attorneys> | null | null | null | null | null | null | 1,880,507 | 3-978A243 | 0 | indctapp | SA | t | Indiana Court of Appeals | Indiana Court of Appeals |
8,661,795 | By JUDGE H. CALVIN SPAIN On December 22, 1989, a suppression hearing was held in the above-captioned matter. The Commonwealth presented the evidence of Officer Layton, an auxiliary Police Officer, with respect to the facts expected to be presented at trial. Thorough examination and cross-examination of the witness set forth the factual issues to be resolved. Additionally, counsel referred the Court to various legal citations. The Court advised that it would render a letter opinion after it had an opportunity to read the various citations. After carefully considering Simmons v. Commonwealth, 217 Va. 552 (1977), Terry v. Ohio, 392 U.S. 1 (1968), and Lansdown v. Commonwealth, 226 Va. 204 (1983), the Court concludes that under the specific set -of circumstances articulated by Officer Lincoln in this particular case, there was not any basis for the officer to be reasonably suspicious of the defendant within the meaning of Virginia Code Section 19.2-83. The mere fact that an individual chooses to sit for an "inordinate amount of time" in front of a Hop-in retail facility, in a parking lot otherwise open to the public, and thereafter displays no act to arouse the reasonable suspicions of the officer, simply does not warrant the actions of the officer. Even if it *255is presumed that the officer had the right to stop the defendant while he was in the rear parking lot of the overall shopping center and to request his driver’s license, registration, and other identification, once those documents were confirmed to be in order, any right to proceed further ceased. While the defendant’s acts may have been bizarre from the perspective of the average person, the Constitution protects the privacy of an individual, and there is no reason for the intrusion of "big brother" interrogation. Absent some legal justification for the officer’s conduct, the Court cannot now retroactively find justification for the stop, question, and search procedure. Accordingly, the defendant’s motion to suppress is sustained. | opinion_xml_harvard | 322 | 2022-11-24 21:46:21.143988+00 | 020lead | t | f | 8,678,761 | Spain | null | U | f | Published | 0 | Commonwealth v. West | Commonwealth | Commonwealth of Virginia v. Roosevelt West, Jr. | null | null | null | null | null | null | null | null | null | 65,944,208 | Case No. CR88-2789 | 0 | vaccvabeach | ST | f | Virginia Beach County Circuit Court | Virginia Beach County Circuit Court |
6,614,180 | Re, Chief Judge: The question presented in this case pertains to the proper classification, for customs duty purposes, of certain dried, unground chili peppers imported from Mexico. The merchandise was described on the invoices as “Chili Seco Chilaca” peppers. The chili peppers were classified by the customs officials as unground anaheim and ancho peppers pursuant to item 161. 80 of the Tariff Schedules of the United States. Consequently, they were assessed with duty at the rate of 5 cents per pound. Plaintiff protests the classification and claims that the merchandise should have been properly classified as other capsicum or cayenne or red peppers, not ground, under item A161. 83 of the tariff schedules. If the imported chili peppers are properly classifiable under the claimed provision, they are entitled to be admitted free of duty by virtue of the Generalized System of Preferences. The pertinent items of the tariff schedules provide as follows: Schedule 1, Part 11, Subpart B, TSUS: Pepper: ******* Capsicum or cayenne or red: Not ground: 161.80 Anaheim and ancho_ 5ji per lb. * * * * * * * A161.83 Other_ [Free] The record consists of the testimony of three witnesses, one called by plaintiff and two by defendant. It also contains twelve exhibits, seven introduced by plaintiff and five by defendant. At the trial, the parties stipulated that the subject merchandise was not ancho peppers; that the requirements of the Generalized System of Preferences have been met; and that, in order to prevail, plaintiff need only prove that the merchandise is not anaheim peppers, ft It was further stipulated that plaintiff’s exhibit 6 is a correct translation of the first full paragraph of page 11 of plaintiff’s exhibit 5, and that California and California Wonders are two different kinds of peppers. Plaintiff contends that it has made a prima facie showing that the imported chili peppers do not fall within the common meaning, or commercial designation, of the term “anaheim” peppers, but are chilaca peppers, and, further, that defendant has failed to controvert plaintiff’s evidence. Defendant maintains that the chili peppers were properly classified as anaheim peppers, and that plaintiff has failed to establish any commercial designation for them. As in all customs cases, plaintiff has the burden of overcoming the statutory presumption of correctness which attaches to the govern*228ment’s classification pursuant to 28 U.S.C. § 2635 (1976). Thus, the question presented is whether plaintiff has borne its burden of proving that the imported chili peppers are other than “anaheim” peppers, as that term is used in item 161.80 of the tariff schedules. Based upon a careful study of the record, and its assessment of the competency and credibility of the witnesses, the court has concluded that the presumption of correctness attaching to Customs’ classification of the imported merchandise has not been rebutted. Plaintiff has not sustained its burden of proving that the classification by Customs was erroneous and that its claimed classification is correct. It is apparent that the resolution of the issue requires a determination of the common meaning of “anaheim” peppers, as that term is used in item 161.80 of the tariff schedules. It is fundamental that, in the absence of a special commercial designation, the language of a tariff statute is to be construed in accordance with its common meaning. Further, the common meaning of a word is a matter of law to be determined by the court, and, in making that determination, the court may rely upon its own understanding of the word or term used, and may consult standard lexicographic and scientific authorities. The testimony of witnesses respecting common meaning is advisory only and has no binding effect on the court. Mattel, Inc. v. United States, 65 Cust. Ct. 616, 619, C.D. 4147 (1970). See also, e.g., United States v. O. Brager-Larsen, 36 CCPA 1, 3, C.A.D. 388 (1948); West Coast Cycle Supply Co. v. United States, 66 Cust. Ct. 500, 503, C.D. 4242 (1971). The evidence of record has been considered by the court in light of the foregoing legal principles. The witnesses differ as to their respective backgrounds and experience. Plaintiff’s witness, Mr. Thomas P. Gonzalez, since 1954, was president of the Thomas P. Gonzalez Corp., the ultimate consignee.. The firm imports and exports agricultural products, including twentyi to thirty varieties of chili peppers. As president of the corporation, Mr. Gonzalez is responsible for all of its buying and selling. He has been buying chili peppers such as those at bar for almost fifty years. Mr. Gonzalez is frequently required to travel to Mexico where the various chili pepper varieties are grown. He has become familiar with the varieties of chili peppers by observing them being planted, grown, cultivated, harvested, dried and packed, selected, and cleaned and packed. Defendant’s witness, Dr. Roy M. Nakayama, is professor of horticulture at New Mexico State University. From that university he has a bachelor of science degree in agricultural botany, and a master’s degree from Iowa State University in plant pathology. *229lie also holds a Ph. D. degree in plant breeding, horticulture, and plant pathology from Iowa State University. Dr. Nakayama has authored a number of research reports on the culture and identity of chili peppers, and is a member of the National Pepper Research Workers Group and the American Society for Horticultural Science. Dr. Nakayama was employed by the California State Department of Agriculture for a period of two years where his primary responsibility was the observation of the planting of crops, including chili peppers, for disease investigations. Plis specialty encompasses chili pepper research, agricultural practices, chili variety development and identification, and consultation with industry and growers. His grower consultation relates to the culture and identity of different chili varieties. Dr. Nakayama also works with the New Mexico Crop Improvement Association to certify chili varieties as to true name. In the performance of his duties, he has traveled in the United States, some Central and South American countries, and various parts of Mexico. While in Mexico, he has oberved the planting of chili pepper seeds, and has consulted with farmers and others involved in the growing of chili peppers. The conflicting testimony of the witnesses follows: Mr. Gonzalez identified plaintiff’s exhibits 1 and 2 as chili pepper samples taken from particular entries before the court. He was of the opinion that these samples are chilaca chili peppers. On the other hand, Dr. Nakayama pointed out that it is difficult to determine a chili variety without regional information because of the effect that this circumstance has on the size and' shape of a particular variety. However, he stated that, based on texture and color, an identification could be made. Using this criteria, Dr. Nakayama testified that the chili pepper samples in plaintiff’s exhibits 1 and 2 belong to the “Anaheim (California)” group of peppers. In order to identify the particular variety of chili peppers, Mr. Gonzalez testified that one must consider shape, color, pungency, size and price. He stated, however, that the level of maturity of a chili pepper when it is picked will affect its color and size. He added that pungency encompasses both taste and odor, and that price is determined by the amount of color content and heat units which a given chili possesses, i.e., more color content and less heat units usually lead to a higher price. Dr. Nakayama testified that the factors to be considered in identifying chili peppers include: shape; configuration; length; width;' texture of the fresh pod, i.e., rough or indented; dried pod texture, i.e., smooth or wrinkled; and color of the dehydrated pod. Color may be affected by maturity and manner of storage, and storage is capable *230of causing color deterioration. A very high dehydration temperature results in a darker than normal color for a given variety of chili peppers. With respect to anaheim chili peppers, Mr, Gonzalez testified that their seed originated in Anaheim, California, and that most of them are grown in California, and a few in Mexico. He stated that the size of anaheim chili peppers, though variable, is generally the same; they do not vary considerably in shape; and their color ranges from bright red to dark, light, or medium, including reddish brown. Pungency in chili peppers is expressed in scovel heat units of which anaheim peppers have very few. The witness indicated, however, that pungency in itself is not a sufficient criterion for distinguishing between kinds of chili peppers. In contrast, Dr. Nakayama testified that anaheim chilies are grown commercially in the United States, and in Mexico in the central part of Baj a California, in Sonora State and in the northern part of Chihuahua State. He reaffirmed that anaheim chilies vary considerably in size, shape, and pungency depending upon the area where, they are grown. He further testified that the terms “anaheim” and “California” are synonymous in the chili pepper industry; that he has grown anaheim chili peppers, and also what his seed supplier refers to as “Anaheim (California).” The witness stated that in the United States, the term “Anaheim (California)” chili encompasses a pepper which upon drying has a smooth surface with a red to reddish brown color range. Plaintiff’s exhibit 4 was identified as the frontispiece and pages 38 and 39 of a catalogue published by P.S. Petoseed, a commercial seed source, illustrating the anaheim and the college 64L chili peppers. In the opinion of Mr. Gonzalez, the college 64L pepper is the same as the chilaca, except that it is grown in the State of California rather than in Mexico. When asked on cross-examination whether or not he knew that the Petoseed company developed the college 64L pepper, he replied that he did not know who developed it. Also, when asked whether the college 64L pepper was derived from the anaheim pepper, the witness responded that “it could have, in criss-crossing.” He added, however, that that circumstance alone would not make it a form of anaheim pepper. According to Dr. Nakayama, the college 64L pepper was developed by the Petoseed company, and is a strain of the college 64 pepper. He was involved in the development of the college 64 pepper, and had observed the college 64L in its various plantings. He testified that both of these peppers belong to the “Anaheim, California” group of chili peppers. He did not know whether the college 64L and chilaca chilies were the same since he never heard the term “chilaca” used in *231the United States or Mexico when referring to chili peppers. In Dr. Nakayama’s opinion, if the chilaca pepper were known in the United States as a college 64L pepper, as testified by Mr. Gonzalez, then the chilaca pepper would fall into the anaheim group of chili peppers. He further stated that crossbreeding results in a new variety of chili, different from either parent in physical appearance. As to the differences between anaheim and chilaca chilies, Mr. Gonzalez testified that they are similar in appearance but different in pungency, size, color, texture and price. He stated that the anaheim chili was larger in length, less pungent, smoother in texture, brighter red in color, and usually more expensive. He emphasized, however, that size, color, and pungency were the most significant differences between the two kinds of chilies. Defendant’s exhibit A was identified by Mr. Gonzalez as the contract of purchase for the merchandise at bar, together with the bank guarantee to the growers for the value of the chili peppers they were to ship. The merchandise is described in the purchase agreement as “Chile Seco Calidad F.R.., Pasilla y California,” and in the bank guarantee as “Chile Seco Variedades Pasilla y California de Calidad F.E..” When asked what varieties of chili peppers are indicated in those documents, Mr. Gonzalez testified that they were pasilla and California chili peppers. In explaining the reference to California chilies in those documents, he stated that the Mexican farmer calls the chilaca chili by that name. However, Dr. Nakayama testified that he has worked with California chili peppers, and that in the United States the anaheim chili pepper is referred to as a California type pepper. He added that, in regard to chili peppers, the terms “California” and “anaheim” are synonymous. In an effort to support the testimony of its witness, plaintiff introduced into evidence certain publications. Plaintiff’s exhibit 5 is a photocopy of publication No. 15 from the National Institute of Agricultural Investigations in Mexico, dated December 1966, and exhibit 6 is an authenticated translation of the first full paragraph of page 11 of that exhibit. According to this writing, chilaca is one of the principal types and varieties of chili cultivated in Mexico, and anaheim chili is one of the varieties introduced from the United States and now cultivated in Mexico. Plaintiff maintains that this affirms the testimony of Mr. Gonzalez with respect to the differences between anaheim and chilaca chili peppers in the United States market, and, further, that it coincides with the common usage of the term “anaheim” in this country. Consequently, plaintiff argues that the witness’ identification of the imported merchandise as “chilaca,” and not “anaheim,” *232shows prima facie that the importations do not fall within the common meaning of the term “anaheim,” but are “chilaca.” Plaintiff adds that Mr. Gonzalez’ testimony as to the common meaning of “anaheim” versus “chilaca” chilies is further bolstered by exhibit 7, the New Mexico State University booklet entitled Green Chili Recipe Fiesta, which states that the anaheim variety of chili from California is mild. Plaintiff asserts that this statement confirms the testimony of its witness to that effect. In its brief, plaintiff suggests that the testimony of Mr. Gonzalez as to anaheim pungency and growth in Mexico is supported by the Sunset Mexican Cook Book (13th printing, December 1973, Lane Books, Menlo Park, Calif.). As to pungency, it states that “the larger the chili the milder the flavor usually is,” and “the flavor of California chilies ranges from mild and sweet like a bell pepper, to mildly hot.” As to the area of cultivation of California (anaheim) peppers, it states: “These peppers are a variety cultivated principally in the United States and not often seen in Mexico, although very similar types called by several names are grown there.” Hence, plaintiff argues that “those chilies which are merely similar do not fall within the common usage of the term Anaheim.” Plaintiff insists that, because of Mr. Gonzalez’ long commercial experience in the buying and selling of chili peppers, his testimony should be accorded greater probative value than that of defendant’s witness which is based upon scientific meaning which differs from common meaning. Finally, plaintiff submits that the record establishes that the merchandise at bar was invoiced as “Chili Seco Chilaca,” and that it was personally sampled and identified by Mr. Gonzalez as being chilaca chili peppers. In this setting, plaintiff contends that it has made a prima facie showing that the common meaning of the term “anaheim” chilies does not embrace the imported merchandise. Defendant emphasizes that inasmuch as Mr. Gonzalez is president of the plaintiff corporation he is an interested witness. Therefore, his testimony is not free from bias, and should be accorded considerably less weight than the testimony of Dr. Nakayama, who is an independent expert. Additionally, the defendant insists that the testimony of Mr. Gonzalez concerning several essential areas in controversy has damaged his entire credibility. In support of this contention, defendant points to the testimony of Mr. Gonzalez in connection with the Petoseed exhibit. It submits that, while it was introduced by plaintiff for the purpose of illustrating that the college 64L and the chilaca chili peppers aie the same, as testified by its witness, an examination of the exhibit shows no reference at all to chilaca chilies. Furthermore, on cross-examination, Mr. Gonzalez *233admitted that there is no reference in the exhibit that the college 64L pepper is called a chilaca. It is noteworthy that Dr. Nakayama testified that he developed the college 64 pepper, that the college 64L pepper is a strain of the college 64 pepper, and that the college 64L peppei was developed by the Petoseed company. Moreover, Dr. Nakayama testified that the college 64L pepper belongs to the “Anaheim, California” group of chili peppers. An additional factor undermining the testimony of Mr. Gonzalez, asserts the defendant, is his unsatisfatory attempt to explain the conflict in the description of the imported merchandise on the invoices with that in the contract of purchase and the bank guarantee to the growers. As to this, defendant points to his testimony on cross-examination as follows: “Q. Referring back to Exhibit A, Mr. Gonzalez, you testified this covers Pasillas and California. Would you tell the Court what the California is, in that exhibit? — A. Which exhibit? Q. Exhibit A, your contract of purchase. — A. Well, California, in the State of Northern Lower California, the farmer calls the Chilaca chili, California, and he made the contract and then he invoiced on the base of California, or Chilaca.” Plaintiff failed to produce any evidence to support the explanation of its witness that the chilaca chili pepper is called “California” by the farmer. Moreover, this explanation was categorically refuted by Dr. Nakayama who testified that the terms “California” and “Anaheim” chili peppers are synonymous. Hence, the use of the words “chili * * * California” in the contract of purchase is clearly an admission against plaintiff’s interest. Defendant’s exhibits B and C are bags of chili peppers consisting of official samples taken from entry Nos. 127253 and 127361 by Import Specialist Thomas T. Gallagher. These samples were bagged and marked by Mr. Gallagher, and kept in dry storage in Customs’ sample locker in San Ysidro for almost a year. The pepper samples were not withdrawn from shipments that are before the court, nor are they representative of the imported merchandise in this action. Mr. Gallagher, called by the defendant as a witness, testified that at Customs he worked with the team that handled plaintiff’s line of chili importations. He was familiar with the classification of peppers, and particularly those in defendant’s exhibits B and C. He identified the merchandise in these exhibits as coming from shipments for the account of Thomas P. Gonzalez Corp., and testified that on the invoices they were described as “Chilaca,” or Chilaca, field run.” Although these chili peppers were invoiced as “Chilaca,” or “Chilaca, field run,” they were identified by Mr. Gonzalez as anaheim chili peppers. In view of the above, defendant maintains it is apparent that plain*234tiff’s witness was unable to discern any distinctions in the peppers in exhibits B and C which would enable him to identify them as chilaca chilies. Moreover, his testimony establishes that even if the imported chili peppers were known as- chilaca chilies in Mexico, they would, nevertheless, be embraced by the term “anaheim,” as set forth in item 161.80 of the tariff schedules. Careful research reveals that the question presented appears to be of novel impression. It also discloses that there is a paucity of the usual tools or material which aid the court in understanding the nature and characteristics of the merchandise in issue, such as dictionaries, scientific authorities, and other reliable sources, including legislative history and background. Turning to judicial enlightenment on the classification of dried, unground chili peppers, the court has found one prior judicial determination. While neither of the parties has relied upon the case in support of its position, several aspects, may, nevertheless, provide some guidance here. The case is Rudolph Miles & Sons, Inc., a/c Thomas P. Gonzalez Corp. v. United States, 79 Cust. Ct. 45, C.D. 4711 (1977), in which the testimony bearing on the issue in question was supplied by the same expert witnesses as in the present case, Mr. Gonzalez on behalf of the plaintiff, and Dr. Nakayama on behalf of the defendant. In the Rudolph Miles case, the dried, unground chili peppers, exported from Mexico, were classified under TSUS item 161.80, the provision for “anaheim and ancho” peppers. The importer claimed that the imported merchandise was properly classifiable as “other” than anaheim and ancho peppers, under TSUS item 161.83. It was conceded by the parties that the merchandise in that case was not anaheim peppers. The question presented therefore was whether the imported peppers were “anchos,” as contended by the government, or “pasillas,” as claimed by the importer. The court observed that shape and size were admittedly dominant factors in the identification of varieties of chili peppers; that although the evidence in the record was conflicting for the most part, the parties did agree that the ancho variety of chili peppers is characterized by a wideness in body. Indeed, it is called “ancho” because of its shape, the term meaning “wide” in Spanish. The court found that the official samples from the imported peppers revealed a wideness in shape and size that was in conformity with the standard description for ancho peppers, whereas, samples presented by the importer and allegedly taken from the importations before the court revealed a narrowness in shape and size, in conformity with the standard description for pasilla peppers. Relying on the official samples, and the standard description as to size and configuration of the chili peppers contained in the evidentiary exhibits, the court held that the classification of the imported chilies as ancho peppers was *235supported by the evidence, and that plaintiff failed to rebut the correctness of the classification. It is clear from the foregoing that, in determining the correct identification of the variety of the controverted chili peppers, the physical examination of the samples by the court served not only to corroborate tbe testimony of the witnesses as to their size and configuration, but found support in the standard description of the ancho pepper as supplied by the evidentiary exhibits. In the case at bar, the parties are not in agreement that the anaheim or chilaca chili pepper is characterized by a particular “wideness,” or “narrowness,” in body. Nor is it contended by either party that size and shape configuration are the dominant characteristics in the identification of the variety of chili peppers. Furthermore, the testimonial evidence reveals that Mr. Gonzalez testified that the level of maturity of a pepper when it is picked will affect its size. It was also stated by Dr. Nakayama that anaheim peppers vary considerably in size and shape depending upon the area in which they are grown, and that the variety of chili peppers is difficult to determine without regional information. Under these circumstances, it is apparent that without evidence of relationship with the foregoing factors, and none has been adduced by the parties, the samples contained in exhibits 1 and 2 are of little probative value in determining the asserted differences in size, color and pungency between the anaheim and chilaca chili peppers. Worthy of particular note is the following dictum in Rudolph Miles: “Moreover, in case of the peppers covered by entry 110939 dated January 29, 1974 of protest 74-11-03241, plaintiff has introduced through Mr. Gonzalez samples which are likewise said to be taken from this entry and designated as exhibit 4. However, these samples, characterized by the witness chilaca chilies, exhibit even a starker contrast in terms of size and shape whem compared with exhibit C. A typical specimen from exhibit 4 measures ){ inch at its widest point, and 2% inches in length, is flat and, is colored dark red.” 79 Oust. Ct. at 49. Emphasis in original.) This court has examined the samples in exhibits 1 and 2, characterized by Mr. Gonzalez as chilaca chilies, and has noted the physical differences between them and those characterized by Mr. Gonzalez as chilaca chilies in the Rudolph Miles case. The examination by the court in Rudolph Miles disclosed that a typical specimen from the samples characterized by Mr. Gonzalez as chilaca chilies measured }í inch in diameter at its widest point, whereas a typical specimen of the chili peppers characterized by him as chilaca in exhibits 1 and 2, measures / inches or more in diameter at its widest point. These measurements show substantial differences in the size of imported chili peppers characterized by Mr. Gonzalez as chilaca. It is obvious that the weight *236to be accorded to the testimony of plaintiff’s witness, that the imported merchandise is chilaca and not anaheim chili peppers, has been seriously impaired. Plaintiff maintains that in addition to the identification of the imported merchandise as chilaca chili peppers by Mr. Gonzalez, it- was designated on the invoices as “Chili Seco Chilaca. It is well settled that while the invoice description of imported goods may have evidentiary value, it does not finally fix the status, nature or character of an importation. United States v. Rotberg Krieger, 24 CCPA 441, 445-46, T.D. 48902 (1937); Hawley & Letzerich et al. v. United States, 19 CCPA 47, 54, T.D. 44893 (1931); Prosser v. United States, 1 Cust. Ct. Appls. 29, 31, T.D. 30850 (1910); The Mundo Corp. et al. v. United States, 56 Cust. Ct. 303, 310, C.D. 2640 (1966). Furthermore, the record shows that the nomenclature on the invoices is at variance with that in the contract of purchase and the bank guarantee to the growers. Additionally, the record discloses that Mr. Gonzalez’ explanation of this discrepancy is in direct conflict with that of Dr. Nakayama. Even apart from the question of credibility, it is evident that regional confusion exists with respect to the terminology employed in the chili pepper industry. Under these circumstances it is clear that the invoice description or designation is devoid of any probative value. Plaintiff’s reliance on the literature in evidence, to support the testimony of its witness as to the essential differences between the anaheim and chilaca chili peppers based upon pungency and country of origin, is misplaced. These factors, per se, are not germane to the determination of the issue presented, and, even if true, would not preclude the imported merchandise from inclusion within the common meaning of the term “anaheim.” The court does not agree with plaintiff’s argument, in its brief, that exhibit 4, the Petoseed catalogue, illustrates the high degree of physical similarity between the anaheim and the college 64L chili peppers, and, therefore, corroborates Mr. Gonzalez’ testimony that “the latter variety is synonymous with the chilaca chili grown in Mexico.” Plaintiff suggests that implicit in this contention is the premise that, since it appears from the illustration that their differences are subtle, an accurate identification of the varieties of peppers requires the intimate familiarity uniquely possessed by Mr. Gonzalez. The fallacy with this agrument is that an examination of pages 38 and 39 of the Petoseed catalogue, entitled Standard-Peppers-Ilot, reveals that there is no-reference in those pages to the chilaca chili pepper, either by illustration, description, or otherwise. Beyond this, Dr. Nakayama testified that he is familiar with the college 64L chili pepper; that he has observed it in various field plant*237ings; that lie has worked with it and knows it ivas developed by the Petoseed company. Furthermore, Dr. Nakayama stated that the college 64L pepper is considered a strain of the college 64 pepper which he developed, and that it belongs in the same category as the “Anaheim, California” chili. The court does not agree with plaintiff’s contentions on the classification of the imported merchandise, and gives credence to the testimony of Dr. Nakayama, the defendant’s witness. Dr. Nakayama has demonstrated that he is well qualified to testify on the classification question presented, and that his testimony is authoritative, reliable, and credible. To overcome the presumption of correctness which attaches to the classification of the imported merchandise, and the opposing testimony and evidence of record, plaintiff has submitted the personal and self-serving opinion of its president, Mr. Gonzalez. Other than the unsupported personal opinion of Mr. Gonzalez, plaintiff has offered no testimony to establish that the imported merchandise is not embraced within the common meaning of the term “anaheim” as used in item 161.80 of the tariff schedules. The defendant, on the other hand, did not merely rely upon the statutory presumption of correctness, but submitted competent, reliable and credible affirmative evidence, which the court has found persuasive, to support the presumption that the imported merchandise is within the common meaning of the term “anaheim” within item 161.80 of the tariff schedules. Based upon a physical examination of the chili pepper samples exemplified in plaintiff’s exhibits 1 and 2, Dr. Nakayama testified clearly that the imported merchandise belonged to the anaheim or California type or group of chili peppers. He also stated that the size, shape, pungency and color of chili peppers are peculiar to the area in which they are grown, and that they can vary considerably from area to area depending upon climatic and environmental conditions. Furthermore, although he has traveled in both Mexico and the United States, he has never heard the term “chilaca” applied to a variety of chili peppers. Plaintiff, in its brief, urges that “should the court conclude that the common meaning of anaheim chilies encompasses the merchandise * * * it has presented evidence sufficient to establish a commercial meaning and such designation must take precedence.” Plaintiff submits t-hat the subject merchandise does not fall within the purview of the commercial designation for anaheim chili peppers. Insofar as plaintiff claims a commercial designation for the term “anaheim” chilies, plaintiff has the burden of establishing that, as used in the trade at the time of the enactment of the tariff schedules, that term had a meaning which was general (extending over the entire *238country), definite (certain of understanding), and uniform (the same everywhere in the country). Moscahlades Bros., Inc. v. United States, 42 CCPA 78, C.A.D. 575 (1954); United States v. M. & D. Miller, Inc., 41 CCPA 226, C.A.D. 556 (1954); Nylos Trading Co. v. United States, 37 CCPA 71, C.A.D. 422 (1949). Thus, the rule of commercial designation “was intended to apply to cases where the trade designation is so universal and well understood that the Congress, and all the trade, are supposed to have been fully acquainted with the practice at the time the law was enacted.” Jas. Akeroyd & Co. et al. v. United States, 15 Ct. Cust. Appls. 440, 443, T.D. 42641 (1928). See also United States v. Fung Chong Co., 34 CCPA 40, 42, C.A.D. 342 (1946). In support of its position, plaintiff points to the nationwide experience of Mr. Gonzalez in the buying and selling of chili peppers. It argues, therefore, that when he describes the distinctions between the anaheim and chilaca chili peppers, such description can be said to be general because of its wide circulation in commerce. Plaintiff also contends that the term “anaheim” has definite application as demonstrated by the specific illustrations and descriptive data in plaintiff’s exhibit 4 and defendant’s exhibit E, published by commercial seed companies. Finally, the plaintiff urges that the nationwide scope of the literature, and the testimony of its witness, “highlights a uniform understanding throughout the country.” Implicit in the rule of “commercial designation” is the premise that the trade understanding of the tariff term differs from the common meaning. Stated otherwise, the doctrine has no application where the commercial and common meanings are the same. Stephen Rug Mills v. United States, 32 CCPA 110, C.A.D. 293 (1944); Draeger Shipping Co. v. United States, 15 Ct. Cust. Appls. 190, T.D. 42234 (1927). It is to be noted that plaintiff’s posture concerning the issue of commercial meaning has been equivocal. Thus, in its complaint, and at the trial, plaintiff presented no claim or evidence of a commercial designation that differed from the common meaning of the term anaheim” chili peppers. However, in its post trial brief, plaintiff for the first time suggests the possibility that the commercial meaning of the term in issue is basically different from its common meaning. Nevertheless, based on the present record, the plaintiff has failed to sustain its burden of establishing a commercial meaning different from the common meaning of the term “anaheim.” With respect to proof of the fundamental elements of commercial designation, the record is almost entirely limited to the experience of Mr. Gonzalez in the buying and selling of chili peppers. Indeed, the pronounced differences, among other things, in the nomenclature, distinctions, *239and characteristics of anaheim chili peppers, offered by both of the expert witnesses, demonstrate that there was no definite, general, and uniform trade understanding of that term. The record falls far short of establishing, by competent evidence, that the merchandise at bar is generally, uniformly and definitely recognized throughout the trade in this country by a commercial designation which would preclude its classification as anaheim peppers under item 161.80 of the tariff schedules. For all the foregoing reasons, it is the determination of the court that the presumption of correctness attaching to the classification by Customs has not been overcome, and the action is dismissed. Judgment will enter accordingly. | opinion_xml_harvard | 5,481 | 2022-07-20 20:20:13.337223+00 | 020lead | t | f | 6,732,513 | Re | null | U | f | Published | 0 | Hutchinson Brokers, Inc. v. United States | null | Hutchinson Brokers, Inc., A/C Thos. P. Gonzalez Corp. v. United States | null | null | null | null | null | null | null | null | null | 63,713,485 | Court No. 79-8-01298 | 0 | cit | FS | t | Court of International Trade | United States Court of International Trade |
9,126,946 | Ct. Crim. App. Okla. Certiorari denied. | opinion_xml_harvard | 6 | 2022-11-28 00:14:57.795503+00 | 020lead | t | f | 9,132,347 | null | null | U | f | Published | 0 | Ables v. Oklahoma | Ables | Ables v. Oklahoma | null | null | null | null | null | null | null | null | null | 66,398,637 | No. 92-7274 | 0 | scotus | F | t | Supreme Court | Supreme Court of the United States |
8,113,391 | Rao, Judge: The appeals for reappraisement listed in schedule A, annexed to this decision and made a part hereof, were submitted for decision upon the following stipulation: *497IT IS HEREBY STIPULATED AND AGREED that the items on the invoices covered by the reappraisement appeals listed in Schedule “A”, attached hereto and made a part hereof, which are marked “A” and initialed AYD, NWS, JJC, WEG, by Examiner Aume V. Demers, Norman W. Soni, John J. Ozechowiez, W. E. Goff consist of vat-lined pulpboard similar in all material respects to the merchandise the subject of A. N. Dermger, Inc. v. United States, Reap. Dec. 9927, and therein held to be dutiable on the basis of export value under Sec. 402(b), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956; that the record in said Reap. Dec. 9927 may be incorporated herein; that at the time of exportation said export value was the invoice price; and that the instant appeals may be submitted upon this stipulation. Upon the agreed facts and following the cited authority, I find export value, as that value is defined in section 402(b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, to be the proper basis for the determination of the value of the merchandise, covered by said appeals for reappraisement, which is marked “A,” and initialed AVD, NWS, JJC, or WEG, by Examiner Aume V. Demers, Norman W. Soni, John J. Czechowicz, or W. E. Goff, on the invoices to which said appeals relate, and that such values were the invoice prices. Judgment will be entered accordingly. | opinion_xml_harvard | 271 | 2022-09-09 14:42:39.551155+00 | 020lead | t | f | 8,151,899 | Rao | null | U | f | Published | 0 | F. W. Myers & Co. v. United States | null | F. W. Myers & Co., Inc. v. United States | null | null | null | null | null | null | null | null | null | 65,247,914 | Reap. Dec. 10642; Entry No. F-5636, etc. | 0 | cusc | FS | t | U.S. Customs Court | United States Customs Court |
4,683,493 | UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-7792 DERRICK MICHAEL ALLEN, SR., Plaintiff - Appellant, v. BROOKS, PIERCE, MCLENDON, HUMPHREY AND LEONARD LLP; KEARNS DAVIS, Attorney, Defendants - Appellees. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, Chief District Judge. (1:20-cv-00978-TDS-LPA) Submitted: April 27, 2021 Decided: May 3, 2021 Before KEENAN, WYNN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Derrick Michael Allen, Sr., Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Derrick Michael Allen, Sr., appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing under 28 U.S.C. § 1915 (e)(2)(B) Allen’s complaint filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). We have reviewed the record and find no reversible error. Accordingly, we deny Allen’s motion for a transcript at government expense and affirm for the reasons stated by the district court. Allen v. Brooks, Pierce, McLendon, Humphrey & Leonard LLP, No. 1:20-cv-00978-TDS-LPA (M.D.N.C. Nov. 20, 2020). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 2 | opinion_html_with_citations | 215 | 2021-05-03 19:00:56.163768+00 | 010combined | f | f | 4,879,714 | null | null | C | f | Unpublished | 0 | Derrick Allen, Sr. v. Brooks Pierce | null | null | null | null | null | null | null | null | null | null | null | 59,876,626 | 20-7792 | 0 | ca4 | F | t | Fourth Circuit | Court of Appeals for the Fourth Circuit |
5,004,522 | JACKSON, Justice. The record discloses that in August, 1926, the appellant conveyed to appellee a certain' iot in the Lindsey addition to Amarillo, Tex., for a consideration of $5,000 paid, $750 in ■cash and the assumption of the sum of $1,900 owing to the Standard Savings & Loan Association and a note in the sum of $2,350 executed by appellee and payable to appellant in monthly installments, secured by a vendor’s lien against the lot. The improvements on the lot were unfinished at the time of the conveyance and appellant agreed to complete such improvements in a good and workmanlike manner. Appellee paid six monthly installments on the $2,350 note as each payment became due, but appellant failed and refused to complete the improvements, a controversy arose between the parties, and appellee, in April, 1927, refused to make further payments. During this controversy appellee deeded the premises to Frank Tolliver for a certain consideration paid her qnd subject to the liens securing the indebtedness to the Standard Savings & Loan Association and the note, but appellant continued to insist on the payment by appellee of the installments on said • note. While these conditions existed, the appellant approached appellee saying that they had both suffered considerable loss on thei property and he desired to recover title and resell the lot and save each of them further loss; that suit would have to be brought in appellee’s name, and if she would sign a waiver of citation he would employ attorneys to file suit and she need not incur the expenses of employing a lawyer to represent her, as all he wanted was to recover title. Thereafter, on August 8, 1927, appellant instituted cause No. 1112 in the distinct court of Randall county on the note executed to him by appellee and for the foreclosure of his lien on said lot, requested appellee to go to the office of his attorneys and sign a waiver of citation, which she did, thereby entering her appearance in said suit to the August term of said court, 1927. Neither the appellant nor his attorneys explained the nature of the suit to appellee or furnished her with a copy of the petition filed therein. She is about sixty years of age, and since the death of her husband earned her livelihood by operating a farm and doing housework and was not fitted to perform any other kind of work. She never had any experience in court and did not know the character’ of suit appellant would institute to recover title to the premises. She was not present when judgment was rendered in said suit and paid no- attention to the proceedings therein, because of said representations of appellant. On August 10, 1927, a hearing was had in said cause, and on August 18th the judgment was rendered and entered of record and said term of court ended August 21st thereafter. On August 11, 1927, the attorneys representing appellant wrote appellee as follows: “As we told you when you were in our office Monday evening, we went to Canyon yester*301day and took judgment against you on Mr. Lindsey’s note with foreclosure of our Yen-dor’s lien on the property.” On August l2th the appellee talked with one of appellant’s attorneys and advised him to the effect that he should not have taken judgment against her because appellant had promised her that he would not do it. The attorney informed her that he knew nothing of any promise appellant had made hut that he had taken judgment against her in the suit. The court finds that at this time the appel-lee was still relying on the representations and promises made to her by appellant, paid no attention to the proceedings in the suit and took no steps to assert or protect the rights she claimed against appellant, did not file a motion for a new trial before the end of the term of court and made no effort to do so, as she was depending on the agreement with appellant relative to filing the waiver of citation and his representations that he only desired to recover title, would have to file suit in her name, that she need not incur the expense of employing a lawyer, and but for such representations she would not have signed the waiver but would have employed a lawyer to represent her. That she did not attend the sale had on October 4, 1027, under the order of sale issued on the judgment and did not bid or procure any bidders at the sale for the property. That in a conversation prior to the sale under execution the appellant refused to inform ap-pellee whether he intended to bid the full amount of his judgment against the property or not, but that she informed him that she did not intend to bid on the property. At the sale under execution on October 4, 1927, the appellant, bidding less than the amount of his judgment, became the purchaser and acquired the property. In February, 1928, he instituted suit against appellee in Beaver county, Okl., to collect the balance of the unsatisfied judgment obtained in Randall county in cause No. 1112. That until that time appellee had confidence in appellant and believed and relied upon said above representations. Upon learning that appellant had instituted the suit in Beaver county against her on the deficiency on said judgment, she, on March 10, 1928, filed in the district court of Randall county a bill of review, cause No. 1129, to have the personal judgment held against her for the deficiency set aside and cancelled, alleging it was procured by the above representations which were false and fraudulent. That this suit, No. 1129, was passed from term to term and finally dismissed for want of prosecution, which was due to the fault of appellee’s attorney. That, immediately thereafter, on August 17, 1931, this suit was instituted in thie nature of a bill of review to set aside the personal judgment obtained by appellant for the deficiency after the purchase by him of the lot and improvement's under execution. In the instant case she based her right for relief on the above-alleged false and fraudulent representations and pleaded her defenses to the suit in cause No. 1112. On a hearing before the court in the instant case a decree was rendered in effect canceling the judgment in cause No. 1112 in so far as it adjudged a personal recovery against appellee in favor of appellant and releasing appellee from all liability thereon. Appellant contends that the judgment of the court in the ease at bar is unwarranted because, if it be admitted that appellee’s defenses to. appellant’s original suit were valid and the personal judgment against her-in said suit was secured by fraud, nevertheless, as the undisputed record shows that she learned of such fraud before court adjourned and in ample time to have protected her rights by filing a motion for a new trial in cause No. 1112, such negligent failure to exercise her legal rights bars the equitable remedy urged in her bill of review. The undisputed facts show that cause No. 1112 was heard on August 10, 1927; that on August 11th the appellant’s attorneys, by letter, informed appellee that judgment had been taken against her on appellant’s note, with a foreclosure of the vendor’s lien; that on the 12th she told said attorneys they should not have taken judgment against her as appellant had promised not to do so. The attorneys disclaimed any knowledge of such promise, but again informed appellee that judgment had been taken against her in the suit. The decree was entered on August 18th and court adjourned on August 21st. No motion for new trial was filed and nothing done by appellee until March'10, 1928,' at which time she filed her first bill of review, which, on account of the fault of her attorney, was dismissed for' want of prosecution, and immediately thereafter her present attorneys, on August 17, 1931, instituted the instant suit. There is no escape from the conclusion that appellee learned when she received the letter from appellant’s attorneys that judgment had been taken against her. This is manifest from the fact that she immediately protested to the attorneys. They again gave her the same information, and hence at that time she knew that appellant had wholly disregarded all the promises and representations theretofore made which induced her to. enter her appearance in cause No. 1112 and refrain from presenting her defenses therein. There is no contention that such promises were repeated or that other misrepresentations were ever made. She made no other or further investigation and court continued in session nine days. *302We copy from Carver v. Moore, 288 S. W. 156, 158, by the Commission of Appeals, the following: “Actual knowledge of the fraud is not required ; reasonable prudence must be exercised to discover the fraud, and knowledge of acts sufficient to put one upon inquiry will operate as notice of the fraud. Kuhlman v. Baker, 50 Tex. 630; Bass v. James, 83 Tex. 110, 18 S. W. 336; Powell v. March (Tex. Civ. App.) 169 S. W. 936. * * * “The presumption is that, if the party affected by any fraudulent transaction or management might, with ordinary care and attention, have seasonably detected, it, then he seasonably had knowledge of it. Wood v. Carpenter, 101 U. S. 135-143 (25 L. Ed. 807); Bass v. James, 83 Tex. 110,18 S. W. 336. “Whatever is notice enough to excite attention and put the party on his guard and call for inquiry is notice of everything to which such inquiry might have led.” “The fact that one has placed confidence in another is not sufficient to excuse lack of diligence in investigating. Nor may a person wantonly close his eyes after discovery of facts sufficient to put him on inquiry.”. 20 Tex. Jur. 115. It is said that, if “the means were at hand to readily discover the fraud complained of, and such .means of information would have; been used by a person of ordinary care and prudence in the transaction of his' own business, then he will be held to have had notice of everything which a proper use of such .means'-.would have disclosed; and, a failure to-avail himself of such means or avenues of information- appearing, the issue presented is’one .of law for the decision of the court, and not a question of fact for the determination of the Jury.” Boren v. Boren, 38 Tex. Civ. App. 139, 85 S. W. 48, 51. • See, also, 20 Tex. Jur. 179. We think the information given ap-pellee charged her with knowledge of the fraud perpetrated upon her. If it did not, it is obvious that in the exercise; of the care required of a reasonably prudent person, she would have learned thereof in ample time to have protected her legal rights by filing a motion for k new trial before the adjournment of the term of court at which the judgment which she seeks to set aside was rendered. “It is a familiar rule that in order to set aside a judgment against a person over whom jurisdiction of the court had attached and which is regular on its face, when that relief is sought by a separate and independent suit after the term of court during which the judgment was rendered has expired, and which is therefore a proceeding in equity, the plaintiff has the 'burden of proof to show: First, that he has a meritorious defense to the cause of action which resulted in the judgment; and, second, that he was not guilty of negligence in failing to move for a new trial of the case after the judgment was rendered and during the term of court at which it was rendered, or in failing to prosecute an appeal therefrom if by such an appeal he could have urged the same facts as grounds for a reversal of the judgment.” Hollis v. Seibold (Tex. Civ. App.) 23 S.W. (2d) 811, 813. “The rule is well settled that, if it appears that the matters complained of in the equitable suit to vacate the original judgment could have been presented to the trial court in the original proceedings, and brought up by appeal for review, a suit in equity to vacate the judgment would not lie.” Winters Mutual Aid Ass’n Circle No. Two v. Reddin (Tex. Com. App.) 49 S.W.(2d) 1095, 1096. To the same effect are the holdings in Hermann Hospital Estate v. Naehant et al. (Tex. Com. App.) 55 S.W.(2d) 505; Humphrey et al. v. Harrell et al. (Tex. Com. App.) 29 S. W.(2d) 963; Wichita County Humber Co. v. Maer (Tex. Civ. App.) 235 S. W. 990. The case was apparently thoroughly , developed on the trial and the facts on which we base our holdings were conceded; hence the judgment is reversed and here rendered in favor of appellant. | opinion_xml_harvard | 2,167 | 2021-10-01 01:48:55.218437+00 | 020lead | t | f | 5,182,584 | Jackson | null | U | f | Published | 1 | Lindsey v. Dougherty | Lindsey | LINDSEY v. DOUGHERTY | null | null | null | null | null | null | null | null | null | 60,512,586 | No. 4001 | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
3,836,669 | The parties herein are in the same relation as in the trial court, and will be referred to as plaintiff and defendant, respectively. Plaintiff commenced this action against defendant to recover upon two promissory notes. The petition was in the usual form, and defendant answered and alleged, in substance, that, on November 22, 1927, he was indebted to the plaintiff and the Sapulpa State Bank in the sum of $8,150, the indebtedness due plaintiff being approximately $4,000, the balance being due the Sapulpa State Bank; that the plaintiff was acting as the agent of the Sapulpa State Bank in the collection of defendant's indebtedness to it; that on said date defendant was a shareholder in the plaintiff bank in the sum of $750 and on that date he entered into an agreement and settlement with plaintiff under the terms of which plaintiff agreed to accept his stock in the sum of $750, and his check drawn on the First National Bank of Vian in payment in full of all indebtedness owing plaintiff by him, and that pursuant to said agreement he executed his check to plaintiff on the First National Bank of Vian, which was paid, but that plaintiff, after said check had been paid, refused to accept the stock in plaintiff's bank, as was agreed, although defendant offered to deliver same to plaintiff. He also tendered the stock to plaintiff in his answer. This action, together with another by plaintiff and against defendant and one Dan Sharp, were by agreement tried together to a jury, resulting in a verdict and judgment in this action for defendant, and for plaintiff in the other action. From the verdict and judgment against it, plaintiff appeals. There are nine assignments of error. The first, second, third, seventh, eighth, and ninth are presented together under one proposition, namely, that the court erred in overruling plaintiff's demurrer to defendant's evidence and overruling plaintiff's request for a directed verdict at the conclusion of defendant's evidence in chief. At the close of defendant's evidence, plaintiff demurred thereto, and moved for an instructed verdict, both of which were overruled. This would have been a sufficient basis upon which to raise a question of the sufficiency of defendant's evidence to establish a defense to the notes sued upon had plaintiff seen fit to stand upon the demurrer and motion. Instead of so doing plaintiff put in the testimony of three witnesses in rebuttal, and defendant put in the testimony of two witnesses. The case was then closed, and plaintiff did not renew his demurrer, nor did he at the close of all the evidence move for a directed verdict. Although defendant in his brief does raise the question, we must hold that the question of the sufficiency of the evidence is not properly here for review. In Dryfoos v. Davison, 146 Okla. 160 , 293 P. 1099 , it was held: "Where a defendant pleads an affirmative defense to a cause of action and offers evidence in support thereof, and at the conclusion of the evidence in chief in support of the affirmative defense, the plaintiff's general *Page 206 demurrer thereto is overruled and thereafter the plaintiff introduces evidence in answer to the evidence offered by the defendant in support of his affirmative defense, but does not renew his demurrer at the conclusion of all the evidence or request an instructed verdict, and permits the issues joined to be submitted to the jury upon all of the evidence without objection and exception, the verdict, on review in this court, is conclusive so far as such evidence is concerned, except as to excessive damages, appearing to have been given under the influence of passion or prejudice." The same rule was applied in Abraham v. Gelwick, 123 Okla. 248 , 253 P. 84 . Other assignments are made going to the instructions given, but it appears that no exceptions were taken to the instructions, and as plaintiff does not present this question in his brief, it will be treated as abandoned. The assignment going to the alleged failure of the court to instruct upon the issue raised by the pleadings, and the two assignments based upon alleged error in the admission of the testimony of the witness Alvin Scott are likewise not presented in the brief of plaintiff, and must also be treated as abandoned. There being no question properly presented for review, the judgment of the trial court is affirmed. LESTER, C. J. and HEFNER, CULLISON, McNEILL, and SWINDALL, JJ., concur. CLARK, V. C. J., and ANDREWS and KORNEGAY, JJ., absent. Note. — See under (1) 2 R. C. L. 75; R. C. L. Perm. Supp. p. 320; R. C. L. Pocket Part, title Appeal, § 53. | opinion_html_with_citations | 787 | 2016-07-06 08:05:39.042088+00 | 020lead | f | f | 4,078,455 | Andrews, Clark, Cullison, Keener, Lester, McNEILL, Riley, Swindall | null | ZU | f | Published | 4 | First State Bank v. Sharp | Sharp | First State Bank of Vian v. Sharp | null | null | <parties id="b221-6">
FIRST STATE BANK of VIAN v. SHARP.
</parties><br><docketnumber id="b221-7">
No. 20245.
</docketnumber><decisiondate id="AJ7">
Opinion Filed Sept. 22, 1931.
</decisiondate><br><attorneys id="b221-15">
Frye & Frye and Hughes & Ellinghausen, for plaintiff in error.
</attorneys><br><attorneys id="b221-16">
W. A. Carlile, for defendant in error.
</attorneys> | null | Appeal from District Court, Sequoyah County; J.T. Parks. Judge.
Action by the First State Bank of Vian against W.L. Sharp. Judgment for defendant, and plaintiff appeals. Affirmed. | null | null | null | null | 3,950,597 | 20245 | 0 | okla | S | t | Supreme Court of Oklahoma | Supreme Court of Oklahoma |
8,641,995 | DECISION ABRAMS, Chief Judge: Tried by special court-martial with members, the accused was convicted, contrary to his pleas, of disrespect toward his superior officer, failing to obey a lawful order, and drunk and disorderly in station, in violation of Articles 89, 92 and 134, respectively, Uniform Code of Military Justice, 10 U.S.C. §§ 889, 892, 934. The convening authority approved the findings with the exception of the charge of disrespect, which he reduced to wrongful use of reproachful words, in violation of Article 117 of the Code. The approved sentence provides for a bad conduct discharge and reduction to airman basic. *983Of the three errors brought to our attention by appellate defense counsel, our disposition of the first assigned error moots the efficacy of the others. We agree with the contention that the accused was substantially prejudiced by the admission into evidence by the Government of uncharged misconduct prior to findings. The most serious charge of which the accused stands convicted is failing to obey the order of Sergeant Clark, a security policeman, to halt. Sergeant Clark was called to the NCO Club to evict the accused. The night manager had called the security police because the accused refused to remove his hat inside the club as the rules required. When Sergeant Clark first confronted the accused in the club, the latter was bareheaded. At first, he resisted Clark’s suggestion that he accompany him to the lobby. However, a few minutes later the accused left the club voluntarily. Clark followed him out and requested his I.D. card. The accused demurred until Clark changed the request to a direct order. As he then became loud and profane, Sergeant Clark decided to place him under apprehension. He so advised the accused and began to read him his rights in accordance with Article 31, Code, supra. The accused threw up his hands, stated he did not want to hear it, and proceeded to walk away from Clark, heading toward the parking lot. Clark first told him to come back when they were approximately five feet apart. He made no response, but continued walking. Clark repeated his order twice more with no result. Instead of giving chase, Clark went to seek the aid of other security policemen. Shortly thereafter, the accused was apprehended some distance away, apparently still walking at a normal pace. The defense presented evidence that earlier in the evening the accused consumed more than his share of a formidable quantity of vodka and beer. The accused testified that he was intoxicated at the time of his confrontation with Clark. He felt his treatment in the NCO Club was unfair, and he saw no reason for the “hassling” he was getting from Sergeant Clark as he had left the club voluntarily. When Clark started to advise him of his rights, he turned around and walked away in disgust. He insisted that he never heard Clark tell him to halt or stop. Cross-examination began with the following questions and answers: TC: Airman Daniels, have you ever received an Article 15? WIT: Yes sir. TC: What was it for? WIT: Shop lifting in 75. TC: What did you steal? WIT: A cassette tape. TC: Where did you steal it? WIT: The BX. TC: Would you tell this court why they should believe a thief? The prosecutor called several witnesses for the announced purpose of attacking the accused’s truth and veracity. He asked both accused’s first sergeant and his former commander whether they had conversations with him concerning letters of reprimand as well as nonjudicial punishment. Neither counsel for the accused objected to the interjection of uncharged misconduct by trial counsel. The military judge took no action, sua sponte, to strike this mention of uncharged misconduct, nor did he subsequently instruct the court on the limited purpose of such evidence.1 The trial counsel used this evidence of non judicial punishment tellingly in both opening and closing argument: Finally, in the defense case, we had the testimony of the accused. Gentlemen, if you don’t have any trouble with anything else in this case, you ought to have some trouble with that. You ought to wonder about that testimony. First of all because it is the testimony of a thief. Airman Daniels admitted that he has re*984eeived an Article 15 for shoplifting and the reason that evidence was admissible is because it directly relates to his truth and veracity. That is why it was admitted. $ s(: * sfc sfc Gentlemen, this is a classic case of who do you believe? Sergeant Clark or Airman Daniels? Who is the person that is worthy of belief? . . . The security policeman, Sergeant Clark, or the accused, who has admitted that he has received an Article 15 for shoplifting? [Emphasis supplied.] The staff judge advocate, in his review, conceded that the admission of this evidence was error, as military law forbids the impeachment of the accused by introducing specific acts of misconduct not resulting in a conviction of a felony or crime of moral turpitude. United States v. Domenech, 18 U.S.C.M.A. 314, 40 C.M.R. 26 (1969); United States v. Miller, 14 U.S.C.M.A. 412, 34 C.M.R. 192 (1964); United States v. Kindler, 14 U.S.C.M.A. 394, 34 C.M.R. 174 (1964); United States v. Robertson, 14 U.S.C.M.A. 328, 34 C.M.R. 108 (1963); Manual for Courts-Martial, 1969 (Rev.) paragraph 153b (2)(b). Nonjudicial punishment, of course, does not equate to a conviction. United States v. Crawford, 44 C.M.R. 541 (A.F.C.M.R.1971). Because of this error, the convening authority reduced the charge of disrespect to one of using reproachful words, on the theory that no prejudice to the accused resulted as to either this lesser offense or the charge of drunk and disorderly. We agree, but we cannot accept the further contention that the improper admission of evidence of uncharged misconduct clearly resulted in no fair risk of prejudice to the accused with respect to the charge of failing to obey Sergeant Clark’s order. It is true that compelling evidence of guilt may preclude prejudice from improper cross-examination of an accused concerning specific acts of misconduct not resulting in a conviction of a felony or a crime of moral turpitude. United States v. Miller, supra; United States v. Hayes, 48 C.M.R. 67 (A.F.C.M. R.1973); United States v. Poinsett, No. 22179, 3 M.J. 697 (A.F.C.M.R.1977); United States v. Hinote, 51 C.M.R. 704, 1 M.J. 776 (A.F.C.M.R.1976). However, we are not persuaded that the evidence of guilt regarding this charge is of a compelling nature. Although disputed by several Government witnesses, there is ample evidence to corroborate the accused’s insistence that he was intoxicated at the time of his confrontation with Sergeant Clark. His assertion that he did not hear the order to stop was not shaken upon cross-examination. The evidence that he walked away from Clark at a normal pace and was still so walking when found lends substance to his story. If the court harbored a reasonable doubt as to whether accused had knowledge of the order, it was bound to acquit him of that charge. It is sheer speculation to conclude that the court’s rejection of his testimony was in no way influenced by trial counsel’s argument that the testimony of a thief is not worthy of belief. Although a rehearing could be ordered as to this charge, we do not deem it appropriate to do so. Accordingly, for the reasons set forth above, the findings of guilty of Additional Charge II and its specification are incorrect in law and are set aside and ordered dismissed. The findings of guilty of Additional Charge I and its specification and Additional Charge III and its specification are correct in law and fact and are affirmed.2 In reassessing the sentence, we note that a punitive discharge is not authorized for the remaining charges except by virtue of the application of Manual for Courts-Martial, supra, paragraph 127c, Section B. Our past experience convinces us that a punitive discharge is not appropriate for an airman whose sole criminal conduct consisted of using reproachful words to a security police officer while being held in the police station for drunk and disorderly. In the *985exercise of our responsibility to determine an appropriate sentence, we have the authority to change the form of penalty so long as the severity of the sentence is not increased by our action. United States v. Prow, 13 U.S.C.M.A. 63, 32 C.M.R. 63 (1962); United States v. Johnson, 12 U.S.C.M.A. 640, 31 C.M.R. 226 (1962). We therefore find appropriate and affirm only so much of the sentence as provides through commutation for forfeiture of $100.00 per month for two months and reduction to airman basic. The forfeitures will take effect as of 26 May 1977, the date the sentence was approved by the general court-martial convening authority. EARLY, Senior Judge, and FORAY, Judge, concur. . Admittedly, such instructions would not have cured the error as this evidence was not admissible for any purpose. . The accused was acquitted of the original charge of going from his appointed place of duty without proper authority, in violation of Article 86, Uniform Code of Military Justice. | opinion_xml_harvard | 1,516 | 2022-11-24 20:15:35.783193+00 | 020lead | t | f | 8,661,857 | Abrams, Early, Foray, Military | null | U | f | Published | 1 | United States v. Daniels | Daniels | UNITED STATES v. Airman First Class Nathan E. DANIELS, FR 156-46-0858 Headquarters, 2d Combat Support Group Eighth Air Force (SAC) | null | null | null | null | null | null | null | null | null | 65,927,301 | ACM S24509 | 0 | usafctmilrev | MA | f | U S Air Force Court of Military Review | U S Air Force Court of Military Review |
3,037,507 | FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AMALGAMATED TRANSIT UNION LOCAL 1309, AFL-CIO; SELMA No. 05-56567 SHACKLEFORD; GREGORY PASSMORE; RONALD G. DUNCAN; TIMOTHY D.C. No. THURMANN; SAMUEL J. FRANK; CV 05-1199 IEG ALEXANDER BRADLEY; MICHELE L. SD Cal. BOSWELL; JOHN A. TAYLOR; ORDER TERRENCE SANDIDGE; KUNIYUKI KASHIUAGI; GWENAIDA COLE; LELA AMENDING DISSENT FROM SHIPMAN; SHARON K. HARRIS; FABIS THE DENIAL OF HORTON III; PHILIP BINGHAM, REHEARING Plaintiffs-Appellants, EN BANC AND v. ORDER AND AMENDED LAIDLAW TRANSIT SERVICES, INC.; DISSENT FIRST TRANSIT, INC., Defendants-Appellees. Filed May 22, 2006 Amended May 31, 2006 Before: Alfred T. Goodwin, A. Wallace Tashima, and Raymond C. Fisher, Circuit Judges. Order; Dissent by Judge Bybee ORDER The dissent from the denial of rehearing en banc, filed on May 22, 2006, is amended as follows: 5893 5894 AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT 1. In the dissent from the denial of rehearing en banc, slip opinion page 5584, lines 2-3: replace “the very same day that” with “ten days after”. 2. In the dissent from the denial of rehearing en banc, slip opinion page 5584, lines 9-12: replace “151 CONG. REC. H5598 (daily ed. June 30, 2005) (stating that the President notified the Clerk of the House that he signed the CAFA into law on February 28, 2005)” with “http://www.whitehouse. gov/news/releases/2005/02/20050218-12.html (stating that the President signed CAFA into law on February 18, 2005)”. ORDER A judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a majority of the non- recused active judges failed to vote in favor of en banc rehear- ing.1 But a small minority of active judges has dissented from the majority’s denial of en banc rehearing. As we stated in our initial Order (the “Order”), when we interpret a statute, “our purpose is always to discern the intent of Congress.” Amalgamated Transit Union Local 1309 v. Laidlaw Transit Serv., Inc., 435 F.3d 1140 , 1146 (9th Cir. 2006) (citation omitted). And in pursuing that end, we recog- nized the Supreme Court’s teaching that there is a “strong pre- sumption that Congress has expressed its intent in the language it chose.” Id. (citing INS v. Cardoza-Fonseca, 480 U.S. 421 , 432 n.12 (1987). The dissent from the denial of rehearing en banc (the “dissent”), however, would turn that presumption into an irrebuttable one. It would do so by ignor- ing the substantial body of both Supreme Court and Circuit case law on which the Order’s interpretation of 28 U.S.C. 1 When an en banc call is rejected, as it was in this case, “the panel shall resume control of the case and no further en banc action is required.” Ninth Cir. Gen. Order 5.5c. AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT 5895 § 1453(c) is grounded. The dissent pretends that the entire office of statutory interpretation is comprehended within the plain meaning rule.2 But the law, plainly, is not as the dissent would have it. A quarter century ago, we recognized that the plain mean- ing rule: does not require a court to operate under an artifi- cially induced sense of amnesia about the purpose of legislation, or to turn a blind eye towards significant evidence of Congressional intent in the legislative history. . . . [I]t is no talismanic invocation of an exclusively privileged status for apparently unam- biguous statutory language. Rather, it is a recogni- tion of the practical principle that evidence is sometimes so good in the first place to which one turns that it is unnecessary to look further. Heppner v. Alyeska Pipeline Serv. Co., 665 F.2d 868 , 871 (9th Cir. 1981). This rule is consistent with the general principle of statutory construction recently restated by the Supreme Court: Th[e] canons [of statutory construction] are tools designed to help courts better determine what Con- gress intended, not to lead courts to interpret the law contrary to that intent. Chickasaw Nation v. United States, 534 U.S. 84 , 94 (2001) (noting that “canons are not mandatory rules” but guides “designed to help judges determine the Legislature’s intent,” and that “other circumstances evidencing congressional intent can overcome their force”). 2 It admits of only three narrow “exceptions” to the plain meaning rule. Dissent at 5902-5903. It then spends the next five pages knocking down these straw men. See id. at 5902-5907. 5896 AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT Scheidler v. Nat’l Org. of Women, Inc., 126 S. Ct. 1264 , 1273-74 (2006). Even in Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir. 2001) (en banc), a case relied on by the dis- sent to support its position, see dissent at 5899, we plainly stated the controlling proposition here, which the dissent strives mightily to ignore: “We will resort to legislative his- tory, even where the plain language is unambiguous, ‘where the legislative history clearly indicates that Congress meant something other than what it said.’ ” Id. at 877 (quoting Perl- man v. Catapult Entm’t, Inc. (In re Catapult Entm’t, Inc.), 165 F.3d 747 , 753 (9th Cir. 1999)).3 Finally, the dissent asserts that we “justified [our] decision by claiming that the statute was ‘illogical’.” Dissent at 5901. This is a misreading of our Order. We did not point out the illogic of the statute to justify our decision, but as further evi- dence in our search for Congress’ intent. The dissent does not even acknowledge the primary purpose of statutory interpreta- tion — to ascertain and to effectuate the intent of Congress — other than to scoff at it. Dissent at 5906 (“If Congress intended something different, let Congress fix it.”). The dis- sent would woodenly apply the plain meaning rule to the exclusion of all other rules of statutory interpretation. But the dissent’s unduly narrow view of the office of statutory inter- pretation comports with neither the teaching of the Supreme Court nor the law of our Circuit. The sua sponte call for en banc rehearing is denied. 3 The dissent does quote a sentence to the same effect from Am. Tobacco Co. v. Patterson, 456 U.S. 63 , 75 (1982) (“Going behind the plain lan- guage of a statute in search of a possibly contrary congressional intent is a step to be taken cautiously even under the best of circumstances.”), dis- sent at 5900, but ignores its teaching in its ensuing discussion. AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT 5897 BYBEE, Circuit Judge, with whom Judges KOZINSKI, O’SCANNLAIN, RYMER, CALLAHAN, and BEA join, dis- senting from the denial of rehearing en banc: Is less more? To lawyers, unlike philosophers, the question may appear facetious, but the answer has real-life implica- tions. Section 5(a) of the Class Action Fairness Act of 2005 (“CAFA”), Pub. L. No. 109-2, § 5(a), 119 Stat. 4, 12-13, creates 28 U.S.C. § 1453(c)(1), which provides for a permis- sive appeal when the district court refuses to accept a class action removed from state court. See Bush v. Cheaptickets, Inc., 425 F.3d 683 , 685 (9th Cir. 2005). Specifically, section 1453(c)(1) provides: [A] court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not less than 7 days after entry of the order. 28 U.S.C. § 1453(c)(1) (emphasis added). Despite the clarity of this language, the panel announced that it would read the phrase “not less than 7 days” to mean “not more than 7 days.” Amalgamated Transit Union Local 1309 v. Laidlaw Transit Servs., Inc., 435 F.3d 1140 , 1145-46 (9th Cir. 2006). As a result, the appellants’ application, filed 43 days after the dis- trict court’s order, was untimely. The court now follows the misguided approach of the Tenth Circuit, which has announced that it too will read the phrase “not less than 7 days” as if it had been written “not more than 7 days.” See Pritchett v. Office Depot, Inc., 420 F.3d 1090 , 1093 n.2 (10th Cir. 2005). I dissent from our refusal to rehear this case en banc because “I am convinced the parade is marching in the wrong direction.” United States v. Smith, 440 F.2d 521 , 527 (7th Cir. 1971) (Stevens, J., dis- senting). The Republic will certainly survive this modest, but 5898 AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT dramatic, emendation of the United States Code; I am not so sanguine that in the long term it can stand this kind of abuse of our judicial power. I Plaintiffs-appellants, Amalgamated Transit Union Local 1309 and 15 individuals, filed suit against defendants- appellees Laidlaw Transit Services, Inc. and First Transit, Inc. in the San Diego County Superior Court. The appellants are current and former employees of the appellees and allege that the appellees violated California’s meal and rest period laws. On June 9, 2005, appellees removed the action to the United States District Court for the Southern District of California, pursuant to 28 U.S.C. § 1446. Appellants moved to remand the action to state court. On October 5, 2005, the district court entered an order holding that it had subject matter jurisdiction over the suit as a class action under 28 U.S.C. §§ 1332(d) (1)(B) and (d)(2)(A) and denying the motion to remand. The appellants filed a petition for permission to appeal to this court 43 days after the district court’s order denying remand, a period that was, plainly, “not less than 7 days after entry of the [district court’s] order.” 28 U.S.C. § 1453(c)(1). Nevertheless, the panel found appellants’ petition untimely. The panel declared section 1453(c)(1) “entirely illogical” because “[section 1453(c)(1)] as written creates a waiting period of seven days before which an appeal is too early.” Amalgamated, 435 F.3d at 1145 . Though “troubled that, in contrast to most statutory construction cases where we are usually asked to construe the meaning of an ambiguous phrase or word, we are here faced with the task of striking a word passed on by both Houses of Congress and approved by the President, and replacing it with a word of the exact oppo- site meaning,” the panel did just that. Id. at 1146. The panel’s confession was forthright: We have construed the statute to require a procedural framework that is not readily apparent from the stat- AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT 5899 utory text or its legislative history, and have changed the statutory deadline for seeking to appeal to the opposite of what the plain language of the statute says. Under our interpretation, plaintiffs’ timely notice of appeal is ineffectual and their subsequent petition for permission to appeal was filed too late. Id.1 Thus, the panel declared, a statute that reads “not less than 7 days” must henceforth be read to mean “not more than 7 days.” Id.; accord Pritchett, 420 F.3d at 1093 n.2. II The text of 28 U.S.C. § 1453(c)(1) is unmistakably clear, and the panel should have applied the statute as written. In its decision, the panel conceded that the language of section 1453(c)(1) is unambiguous. Amalgamated, 435 F.3d at 1145 - 46. Once it recognized that the statute is unambiguous, the panel should have stopped, for it is a paramount principle of statutory construction that “ ‘[w]here [a statute’s] language is plain and admits of no more than one meaning the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.’ ” Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863 , 878 (9th Cir. 2001) (en banc) (quoting Caminetti v. United States, 242 U.S. 470 , 485 (1917)); accord Lamie v. U.S. Tr., 540 U.S. 526 , 534 (2004) (noting that “the statute is awkward, and even ungram- matical; but that does not make it ambiguous”). 1 Although the panel declared the appellants’ petition untimely under section 1453(c)(1), the panel nevertheless denied the defendants’ motion to dismiss the petition in order “[t]o avoid the serious unfairness and potential due process violation that applying our holdings to this case might raise.” After having determined that Federal Rule of Appellate Pro- cedure 5 governs petitions filed under section 1453(c)(1), the panel “exer- cise[d] [its] authority under FRAP 2 to suspend for good cause the requirements of FRAP 5(a)(1), (b)(1) and (c) in this case, and construe[d] plaintiffs’ timely notice of appeal and untimely petition for permission to appeal as together constituting one timely and proper petition for permis- sion to appeal.” Amalgamated, 435 F.3d at 1146-47 . 5900 AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT Despite the fact that section 1453(c)(1) is clear and, there- fore, the duty of interpretation did not arise, the panel never- theless relied on legislative history to trump the statutory language. See Amalgamated, 435 F.3d at 1145 -46. After find- ing that the statute itself was not good evidence of Congress’s intent, the panel simply substituted the legislative history for the statute itself. But “[g]oing behind the plain language of a statute in search of a possibly contrary congressional intent is a step to be taken cautiously even under the best of circum- stances.” Am. Tobacco Co. v. Patterson, 456 U.S. 63 , 75 (1982) (internal quotations omitted); see also Lamie, 540 U.S. at 539 (declaring resort to the legislative history of a facially clear statute “unnecessary”). This is troubling enough “under the best of circumstances,” but even more disturbing is the fact that the report upon which the panel relied, Senate Report 109-14, was not submitted until eighteen days after the Senate had passed the bill, eleven days after the House had passed the bill, and ten days after that the President signed the bill into law. See S. REP. NO. 109-14, at 49 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 46 (dated February 28, 2005); 151 CONG. REC. H755 (daily ed. Feb. 17, 2005) (establishing that the House passed the CAFA on February 17, 2005); 151 CONG. REC. S1249 (daily ed. Feb. 10, 2005) (establishing that the Senate passed the CAFA on February 10, 2005); http://www.whitehouse.gov/news/ releases/2005/02/20050218-12.html (stating that the President signed CAFA into law on February 18, 2005). Accordingly, the panel read a statute to mean the exact opposite of what it says based on a Senate report that no senator—much less members of the House or the President—ever saw.2 2 See Heppner v. Alyeska Pipeline Serv. Co., 665 F.2d 868 , 871 n.1 (9th Cir. 1981) (“There is even the possibility that some legislative history is manufactured for the purpose of misleading the courts as to what most members of Congress intended to enact.”); United States v. Anderson, 895 F.2d 641 , 647 (9th Cir. 1990) (Kozinski, J., dissenting) (“[Legislative] his- tory is rarely written by the same people who wrote the legislation; it is AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT 5901 The panel justified its decision by claiming that the statute was “illogical.” Amalgamated, 435 F.3d at 1146 . However, the courts’ role is to give effect to statutes as Congress enacts them; it is not the courts’ role to assess whether a statute is wise or logical. See United States v. Locke, 471 U.S. 84 , 93- 96 (1985). Had I been a member of Congress, or an attorney reviewing the statute prior to recommending that the President sign the CAFA, I might have agreed with the panel’s observa- tion that the statute is “illogical.” We might also think it was “dumb” and “stupid.” Those labels have no legal meaning here. We are a court—charged with interpretation, not legislation—and I know of no “illogicality” doctrine that per- mits us to change the words in a statute when we think there is a more logical way that Congress could have written it. There are, of course, doctrines by which we may deal with various interpretive dilemmas but, as I discuss in the next sec- tion, none of our existing exceptions to the plain meaning rule justifies the panel’s decision. III No recognized exception to the plain language rule allows the panel to redraft 28 U.S.C. § 1453(c)(1) to its liking. There are three doctrines, of which I am aware, that might justify a creative interpretation of problematic literal language: the doctrine of constitutional avoidance, the scrivener’s error exception, and the absurdity doctrine. seldom, if ever, even seen by most of the legislators at the time they cast their votes.”) (citing Hirschey v. FERC, 777 F.2d 1 , 7-8 & n.1 (D.C. Cir. 1985) (Scalia, J., concurring)); see also Dan Eggen, Record Shows Sena- tors’ “Debate” That Wasn’t, WASH. POST, Mar. 29, 2006, at A6 (discuss- ing 15 pages of “debate” between two senators over the Detainee Treatment Act that never actually occurred, but was inserted into the Con- gressional Record minutes before the Senate approved the legislation, and was subsequently cited to the Supreme Court in the Hamdan case). 5902 AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT A The constitutional avoidance doctrine fails to justify the panel’s interpretation of section 1453(c)(1). This doctrine allows a court to deviate from the language of a statute when giving effect to the statute’s apparent meaning would likely render the statute unconstitutional. See Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440 , 465-66 (1989) (construing the Federal Advisory Committee Act narrowly to avoid “formida- ble constitutional difficulties”); Green v. Bock Laundry Mach. Co., 490 U.S. 504 , 510-11 (1989) (deviating from the plain language of Federal Rule of Evidence 609 because a plain reading of the rule would violate the Due Process Clause). In the instant case, however, no constitutional infirmity stems from giving effect to the plain language of section 1453(c)(1) and, thus, the constitutional avoidance doctrine cannot justify the panel’s decision. Indeed, the principle of constitutional avoidance cuts in the entirely opposite direction, as the panel implicitly recognizes when it refuses to apply its own holding to the case at hand. See n.1 supra . B Congress’s use of the term “less,” as opposed to a word that means the exact opposite, is not a scrivener’s error that this court may casually correct. The scrivener’s error exception to the plain meaning rule allows a court to “correct” Congress’s mistakes only when a statute contains obvious clerical or typographical errors. See, e.g., U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439 , 462 (1993) (cor- recting a scrivener’s error of misplaced punctuation marks); United States v. Coatoam, 245 F.3d 553 , 557 (6th Cir. 2001) (correcting a scrivener’s error that cross-referenced the wrong subsection of an act); United States v. Scheer, 729 F.2d 164 , 169 (2d Cir. 1984) (correcting a scrivener’s error that required a certificate to be furnished “upon request of the . . . request,” instead of “upon receipt of the . . . request”); King v. Hous. Auth., 670 F.2d 952 , 954 n.4 (11th Cir. 1982) (correcting a AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT 5903 scrivener’s error that cross-referenced the wrong subsection of the statute). We cannot declare Congress’s choice of the statutory lan- guage in 28 U.S.C. § 1453(c)(1) a clerical error simply because we disagree with the logic of the terms that Congress used. Although the Tenth Circuit has declared section 1453(c)(1)’s use of the term “less” a “typographical error,” Pritchett, 420 F.3d at 1093 n.2, it is not at all clear that this is the case. Section 1453(c)(1) makes perfect sense; it is fully grammatical and can be understood by people of ordinary intelligence. That we think Congress might choose a different word if it decides to redraft the statute hardly means that someone made a “typographical error” that the court may blithely correct. “ ‘It is beyond [the Court’s] province to res- cue Congress from its drafting errors, and to provide for what we might think . . . is the preferred result.’ ” Lamie, 540 U.S. at 542 (ellipsis in original) (quoting United States v. Grander- son, 511 U.S. 39 , 68 (1994) (Kennedy, J., concurring)). C Finally, section 1453(c)(1), as written, does not produce any absurdity in the Act. Under the absurdity doctrine, courts may refuse to give effect to Congress’s chosen words when applying the plain language of the statute would lead to patently absurd results. See United States v. Brown, 333 U.S. 18 , 27 (1948). For example, if a reading of a statute would render another section within the statute or within the act inoperative or contradictory, then the court will try to read the statute as a whole to make sense. See, e.g., Yates v. Hendon, 541 U.S. 1 , 17-18 (2004) (avoiding “absurd results” by refus- ing to adopt a reading of ERISA that would result in “intoler- able conflict” between separate titles of the Act) (citation omitted); Barnhart v. Sigmon Coal Co., 534 U.S. 438 , 461-62 (2002) (declining to invoke an exception to the plain language rule because the plain language of the statute did not contain “conflicting provisions”); Brown, 333 U.S. at 25-27 (refusing 5904 AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT to give effect to the plain language of the statute when doing so would render the statute unenforceable as to many poten- tial offenders). Quite plainly, the absurdity doctrine does not apply here. Nothing in section 1453(c)(1) renders any part of the Act con- tradictory or unenforceable. Although the apparent seven-day waiting period and no-outside-limit-on-when-the-appeal-can- be-filed provision may seem inconsistent with the tight dead- lines in the CAFA, the provision does not actually contradict any other provision in the Act. Furthermore, the section is capable of enforcement and does not render any provision of the CAFA superfluous. Congressionally-imposed deadlines are “inherently arbi- trary” and are not absurd, even when they may seem irratio- nal. Locke, 471 U.S. at 94 (quoting United States v. Boyle, 469 U.S. 241 , 249 (1984)). The arbitrary deadline at issue in Locke required mining claimants to file certain applications “prior to December 31 of each year.” Id. at 87 n.2 (emphasis added). Although the Court recognized that the wording of the statue understandably led claimants to believe they could file the requisite applications on December 31, the Court refused to second guess the wisdom of the filing deadline that Con- gress had imposed. Id. at 95. The Court declared that, while use of the “phrase ‘prior to’ may be clumsy, . . . its meaning is clear.” Id. at 96. Accordingly, the Court enforced the statute as written, so that anything filed after December 30 was late. Id. at 95. Despite confusion that may arise from a filing dead- line, Congress’s failure to act with foresight regarding the consequences of the terms it imposes does not justify a court’s redrafting of the statute. Id. The panel cannot declare with any certainty that Congress would never have intended to impose a waiting period before which filing a petition for permission to appeal is too early. Although Congress frequently uses the phrase “not more than AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT 5905 days,”3 it has also used the phrase “not less than days” in other statutes to create mandatory waiting periods that may seem “illogical.” See, e.g., 22 U.S.C. § 276c-4 (2000) (requir- ing the Secretary of State to report to Congress “not less than 180 days after October 28, 1991,” but giving no deadline before which the Secretary must report); 42 U.S.C. § 610(b)(2) (2000) (requiring the Department of Health and Human Services to wait “not less than 60 days” before issuing a determination of an appeal but creating no upper limit before which the Department must render a decision); 42 U.S.C. § 12705(c)(3) (2000) (requiring the Secretary of Hous- ing and Urban Development to wait “not less than 30 days” after receiving a submission to render a decision, but creating no deadline before which the Secretary must render his or her decision); 49 U.S.C. § 47509(d) (2000) (requiring the Admin- istrator of the Federal Aviation Administration to report to Congress “not less than 280 days after August 23, 1994,” but giving no deadline before which the Administrator must report to Congress). In light of Congress’s practice of creating mandatory waiting periods without imposing deadlines before which filings must be made, we cannot say that Congress’s decision to do so in section 1453(c)(1) leads to results so absurd that Congress could not possibly have intended them. IV There are real consequences to a court’s well-intentioned decision to fix Congress’s mistakes. First, if courts are going to correct whatever they perceive to be Congress’s mistakes, Congress should lose all confidence that courts will enforce 3 See, e.g., 15 U.S.C. § 6758(e)(2)(B) (declaring that disciplinary action against an insurance agent or broker is subject to review by NAIC if filed “not more than 30 days after” notice of action is filed or received); 20 U.S.C. § 7705(d)(2) (stating that the Secretary of Education shall approve an application filed “not more than 60 days” after deadline, less ten per- cent reduction in payment); 28 U.S.C. § 2243 (requiring the court to set a date for hearing on a petition for habeas corpus “not more than five days” after the writ or order is returned). 5906 AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT statutes as written. The panel has construed Congress’s admit- tedly clear language to mean the precise opposite of what it says. In so doing, the panel has ignored the deference we must give to the supremacy of the legislature. See Lamie, 540 U.S. at 538 ; Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531 , 548 (1987); Locke, 471 U.S. at 95-96 . Section 1453(c)(1) is a validly enacted statute: Congress complied with Article I, Section 7, and the President signed the bill. Congress should be able to rely on the courts to give effect to the statute as enacted, even if Congress thought it would be convenient for us to correct its apparent mistakes.4 Furthermore, “rescuing” Congress from what the panel assumes was a mistake forces both the legislative and judicial branches to deviate from their respective constitutional roles. See Lamie, 540 U.S. at 542 . When courts turn the meaning of statutes up-side-down, Congress must legislate defensively, not by enacting statutes in the plainest possible language, but by enacting statutes in the language that it predicts the courts will interpret to effectuate its intentions. How can we know Congress’s intentions except by looking to its public acts? What if the legislative history is inaccurate? What if some member of Congress made the change deliberately at the last moment? What if, as is the case here, the legislative history did not exist until well after the legislature passed the bill? What other language could Congress have used to effect that no interlocutory appeal could be filed under CAFA until seven days after entry of an order? If Congress intended to do something different, let Congress fix it. 4 If Congress had added a provision to the CAFA that said, “If any pro- vision of this Act appears illogical, the courts may correct it,” the provi- sion would surely violate (and thus revive) the nondelegation doctrine. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). Even if Congress invited us to correct its “illogical” acts, we would have to decline the invitation because we cannot amend acts by our judgments. AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT 5907 Second, the panel’s decision strips citizens of the ability to rely on the laws as written. This case is a prime example: The appellants relied on section 1453(c)(1) and filed in this court a timely petition for permission to appeal. Yet, despite the appellants’ well-founded reliance on the statute, the panel declared the petition untimely. Such a ruling, in light of an unquestionably clear statute, prevents even the most prudent citizen from ever being confident that his conduct comports with the legislature’s laws as the court might choose to enforce them. The panel’s decision is a trap for citizens (and their lawyers) who can no longer trust the statute as written to mean what it plainly says, but must look to our decisions in every instance for a contrary construction. The United States Code has traps enough without creating new grounds for malpractice claims. Third, and perhaps most importantly, the panel’s decision undermines our own credibility. If we insist on reading “not less than 7 days” to mean “not more than 7 days,” why should anyone reading our opinions trust that he understands them correctly? If words are so malleable, might we routinely read our own precedents as saying the opposite of what they clearly say? May one panel simply rewrite another panel’s opinion when it thinks the prior opinion is “illogical?” And where might our creativity lead us with provisions of the Con- stitution that don’t make as much sense as we would like?5 May we amend even the Constitution at will? If we think that when Congress says “less” it actually means “more,” we should not fault anyone who might, as a result, discount other things that we have written. 5 See, e.g., Michael Stokes Paulsen, Someone Should Have Told Spiro Agnew, 14 CONST. COMMENT. 245, 245 (1997) (pointing out that Vice Pres- ident Agnew, as president of the Senate, would have presided at his own impeachment trial); see also CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES (William N. Eskridge, Jr. & Sanford Levinson eds., 1998). 5908 AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT ***** We command no army; we hold no purse. The only thing we have to enforce our judgments is the power of our words. When those words lose their ordinary meaning—when they become so elastic that they may mean the opposite of what they appear to mean—we cede our right to be taken seriously. Neither Congress, nor the parties, nor the judiciary benefits from the panel’s decision. I respectfully dissent from the Court’s failure to rehear this case en banc and to correct our well-intentioned, but obvious, error. PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON/WEST—SAN FRANCISCO The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2006 Thomson/West. | opinion_html_with_citations | 5,035 | 2015-10-13 22:56:34.83656+00 | 010combined | f | f | 3,037,507 | null | Civil | C | f | Published | 0 | Amalgamated Transit Union v. Laidlaw Transit Services, Inc. | null | null | null | null | null | null | null | null | null | null | null | 2,894,933 | 05-56567 | 0 | ca9 | F | t | Ninth Circuit | Court of Appeals for the Ninth Circuit |
3,845,868 | Plaintiff claims it had an exclusive contract with defendant for the sale in Fayette County of the articles which the latter distributes. The contract was terminable by either party on written notice. Plaintiff asserts that, while the contract was in force, defendant entered into an arrangement with West Penn Appliance Company, under which it was given the right to sell the articles in the territory reserved to plaintiff. This action in assumpsit is brought under Section 11 of the Practice Act of May 14, 1915, P. L. 483, 12 PS Sec. 393, to compel defendant to account for the sales made by the West Penn Company, and to pay to plaintiff the amounts which would be due to it under the contract had it made the sales. At the trial the court entered a compulsory nonsuit which, on motion, it refused to take off. Plaintiff appeals from this action. If an exclusive agency in the territory covered was to be created, the thing which strikes one most forcibly after reading the contract is that, although it is a business agency agreement, entered into by business men, nothing is mentioned about the exclusiveness of the agency. The words "exclusive" or "sole," in defining the agency, are not used, and yet plaintiff's representatives who negotiated the contract, would, it appears to us, be keen to see that one or the other of these words was used in the agreement, if the parties' intent was to create an exclusive agency for the territory, and would not have left this most important feature of their understanding to implication and, to say the least, in doubt. While it is now argued that the writing by its terms imports an exclusive agency, that was not the view taken by plaintiff when outlining its case in the statement of claim. In that pleading the right of action is based, not upon the terms of the agreement, but upon the allegation *Page 131 that the representatives of defendant, who negotiated the contract in its behalf, one of them being its president, orally represented to plaintiff that the agency agreement was an exclusive one, and that no other person or dealer would be permitted by defendant to sell its products in Fayette County, and these oral representations induced plaintiff to enter into the contract. Now the argument is presented to us that within the folds of the agreement itself are to be found provisions which show, at least impliedly, that the agency was to be an exclusive one. It is said that because plaintiff is referred to as "the dealer" and in certain instances the territory allotted is described as "his territory" or "the dealer's territory" the implication arises that the agency was to be an exclusive one. This by no means follows; the same language could be used if there were other agents in the territory. It is contended that, because defendant reserved the right to increase or decrease plaintiff's territory upon written notice, this imports a sole agency. To us this has no bearing on the question of the exclusiveness or nonexclusiveness of the agency; it would apply in either event. The provision is a limitation on the dealer (plaintiff) and not an increase of its rights. It is urged that, because plaintiff is required to send defendant copies of installation reports and of agreements with members of its sales organization and a list of prospective purchasers, this gives rise to the inference of exclusiveness of the contract, that such a provision would not appear in the contract unless it were exclusive, because it would contain the possibility of information to competitors if there were other agents in the field, or to defendant itself, if it decided to compete with plaintiff. We are unable to give it this meaning, because obviously its purpose was to insure to defendant a record of the products sold, the installations made and the prospects for further business. It is argued that because there is a provision in the contract that, when a sale is made in one territory and *Page 132 installation in another, the dealer in the territory where the sale is made shall be entitled to 30% of the dealer's gross profit, and the dealer in whose territory installation is made shall be entitled to 70% of such profit, that this contemplates but one dealer in a territory. Not so at all as we view it. This same provision could appropriately be in a contract where there are several dealers in a given territory; however many dealers there were, the division of the profits would only be between the dealer who made the sale and the dealer who made the installation. A paragraph in the contract, cited as aiding plaintiff's contention, provides that it shall maintain a satisfactory installation and maintenance service and take care of repairs and replacements in the territory. The paragraph goes on, however, to state that this shall apply to all of the products sold by it or other representatives. We do not see how this could be construed as creating an exclusive agency, rather the opposite conclusion seems to arise. We do not attach any significance in this controversy to the provisions requiring the putting on of a service man or providing that automobiles equipped with one of the appliances shall be supplied by the salesmen. These requirements might very well be stipulated for where there would be more than one agency. We, therefore, conclude that in the contract as written an exclusive agency is not created. On the other ground of plaintiff's appeal, that the contract is ambiguous (which we think it is not) and that the court should have permitted the introduction of evidence to establish the interpretation put upon the agreement by the parties, when we come to consider the offers of testimony upon which the argument is based, we find that in their essence the offers are of parol evidence to alter and add to the terms of the writing, without any claim that the contended for additions were omitted from the finally written agreement by fraud, accident or mistake. One offer was to prove that during *Page 133 the negotiations officers of defendant assured those of plaintiff that the form of the contract which they were to sign would give them the exclusive agency in Fayette County and that the contract was executed relying upon these assurances. Another offer was made to the effect that a bank was assured by one authorized by defendant that the form of the contract was to be an exclusive agency contract so that it might make loans to plaintiff. The purpose of all the offers made was to show that the contract was to be an exclusive one, although it does not so state. In addition to the rulings which we have made in many cases, that written contracts cannot be varied by parol in the absence of a showing that what is sought to be read into the writing was omitted by fraud, accident or mistake, we have in this contract the specific provision: "All previous agreements between the parties are superseded and cancelled by this agreement. This agreement is not to be varied in any manner except in writing." With this stipulation agreed to by plaintiff, we could not assent to the receipt of testimony which would wipe it out: Gross v. Exeter Machine Works, Inc. , 277 Pa. 363 , 121 A. 195 ; Hauer v. Martin , 284 Pa. 407 , 131 A. 187 . What appellant is seeking to do here is to create an ambiguity in the contract by parol testimony when no ambiguity exists in the writing. In principle the case, in the aspect we are now considering, is ruled by Speier v. Michelson , 303 Pa. 66 , 154 A. 127 , and the cases which have followed it, one of the latest being Germantown Trust Co. v. Emhardt (No. 1) , 321 Pa. 561 , 184 A. 457 . Other offers, made by plaintiff, we regard as immaterial and insufficient to affect the writing. As heretofore stated, parties to this contract, competent business men, had they contemplated an exclusive agency, would we think have so provided in their written agreement. It could not be properly or justly concluded that they left this most important feature of the agreement out to be read into it by inference. As was said in American Dressler Tunnel Kilns, Inc., v. Holt , 269 Pa. 293 , *Page 134 297, 112 A. 43 , "Considering the entire contract, its meaning is not doubtful, and, therefore, we cannot consider the evidence, pro and con, as to the parties' own construction thereof. It is only in case of doubt or ambiguity that the parties' own construction can be resorted to." This is particularly true here, where the parties in their written agreement have stated that everything preceding it is superseded and cancelled by it and that the agreement as written is not to be varied in any manner except in writing. Judgment affirmed. | opinion_html_with_citations | 1,512 | 2016-07-06 08:19:27.148318+00 | 020lead | f | f | 4,086,760 | Barnes, Drew, Kephart, Linn, Maxey, Schaefer, Schaffer | null | ZU | f | Published | 29 | Dahath Electric Co. v. Suburban Electric Development Co. | null | Dahath Electric Company, Appellant, v. Suburban Electric Development Company | null | null | <parties id="b263-2">
Dahath Electric Company, Appellant,
<em>
v.
</em>
Suburban Electric Development Company.
</parties><br><otherdate id="b263-8">
Argued October 5, 1938.
</otherdate><judges id="A6m">
Before Kephart, C. J., Schaffer, Maxey, Drew, Linn and Barnes, JJ.
</judges><br><attorneys id="b263-14">
<em>
Clyde A. Armstrong,
</em>
of
<em>
Thorp, Bostwich, Reed & Armstrong,
</em>
with him
<em>
John E. Laughlin, Jr.,
</em>
and
<em>
J. Roland Johnston,
</em>
for appellant.
</attorneys><br><attorneys id="b264-3">
<span citation-index="1" class="star-pagination" label="130">
*130
</span>
<em>
J. Roy DioJoie,
</em>
with him
<em>
II. A. Robinson,
</em>
of
<em>
DioJoie, Robinson & McCamey,
</em>
for appellee.
</attorneys><decisiondate id="Ach">
December 5, 1938:
</decisiondate> | null | Appeal, No. 53, March T., 1938, from judgment of Allegheny Co., Oct. T., 1932, No. 1527, in case of Dahath Electric Company v. Suburban Electric Development Company. Judgment affirmed.
Assumpsit. Before T. M. MARSHALL, J.
The opinion of the Supreme Court states the facts.
Compulsory nonsuit entered. Motion to take it off refused. Plaintiff appealed.
Error assigned , among others, was refusal to take off nonsuit. | null | null | null | null | 3,958,902 | Appeal, 53 | 0 | pa | S | t | Supreme Court of Pennsylvania | Supreme Court of Pennsylvania |
1,854,151 | 191 B.R. 365 (1996) In re ABEPP ACQUISITION CORP., dba Abbott & Company, Debtor. Bankruptcy No. 95-32313. United States Bankruptcy Court, N.D. Ohio, Western Division. January 11, 1996. William Schoenberg, Cleveland, Ohio, for Debtor. Mary Ann Whipple, Toledo, Ohio, for Unsecured Creditors' Committee. Yvonne Tertel, Toledo, Ohio, for Ohio Bureau of Workers' Compensation. Mark Froehlich, Newark, DE, for Allied Wire and Cable, Inc. Susan Bruder, Office of Marion County Treasurer, Marion, Ohio. Derrick Rippy, Office of the U.S. Trustee, Cleveland, Ohio. *366 Michael Jones, Joan Torzewski, Toledo, Ohio, for United Auto Workers. Jeffrey Schwartz, Stacey Ballen-Stier, New York City, for IBJ Schroder. Charles Paull, Marion, Ohio. OPINION AND ORDER CONVERTING CHAPTER 11 CASE TO CASE UNDER CHAPTER 7 WALTER J. KRASNIEWSKI, Bankruptcy Judge. This matter came on for hearing on the Court's own motion as to why the chapter 11 case of ABEPP Acquisition Corp., dba Abbott & Company (the "DIP") should not be converted to a case under chapter 7 or dismissed pursuant to § 1112(b). Upon consideration of the evidence adduced at the January 10, 1996 hearing on this matter, this Court converted the DIP's case to a case under chapter 7 pursuant to § 1112(b), based primarily on the continuing loss to or diminution of the estate and the absence of a reasonable likelihood of rehabilitation of the DIP. This opinion sets forth the Court's findings of fact and conclusions of law. FACTS The DIP filed a petition under chapter 11 of title 11 on September 15, 1995 (the "Petition Date"). Prior to the Petition Date, the DIP manufactured electrical wiring harnesses. The DIP presently owns three facilities located in Marion, Ohio (the "Marion Site"), Prospect, Ohio (the "Prospect Site") and Lafayette, Georgia (the "Georgia Site"). The DIP ceased operations at the Prospect Site and the Marion Site at the end of September, 1995. The DIP discontinued operations at the Georgia Site at the end of October, 1995. The DIP presently has five employees, including Charles Paull ("Paull"), the DIP's president. The DIP's present employees include an accountant, a personnel manager and two maintenance workers. The DIP's Assets The DIP has estimated the values of the real estate for the Marion Site, the Prospect Site and the Georgia Site at $1,135,000.00, $130,000.00, and $150,000.00, respectively. The DIP scheduled personal property of $2,587,931.81 as of the Petition Date. This amount was principally comprised of accounts receivable in the amount of $1,059,971.11, inventory in the amount of $1,196,025.00, and "perishable" tooling in the amount of $233,115.00. Paull estimated the DIP's current accounts receivable at $120,000.00 $140,000.00, including a note receivable from Flexible Corporation. Paull testified that the DIP's "specialty assets" had been sold for approximately $345,000.00. Paull testified that the DIP also possessed a cause of action for breach of contract against Whirlpool on the Petition Date (the "Whirlpool Suit"). Paull testified that the DIP had obtained two separate legal opinions which indicated that the Whirlpool Suit had a value of at least $475,000.00. Paull testified that the DIP communicated a settlement offer to Whirlpool on or about the time of the Petition Date. The DIP failed to schedule this cause of action in its bankruptcy schedules. The DIP's Liabilities IBJ Schroder Bank & Trust ("IBJ") held a secured claim on the Petition Date in the amount of $1,682,137.00. Paull testified that the DIP presently owes IBJ $1,100,000.00. The DIP and IBJ have agreed that IBJ's claim is secured by substantially all of the DIP's real and personal property. The DIP had $298,990.56 in unsecured priority claims on the Petition Date, composed primarily of tax claims in the amount of $237,662.39. The DIP also had $6,122,072.36 in unsecured nonpriority claims on the Petition Date. Paull testified that the DIP was a defendant in pending litigation on the Petition Date. Specifically, the DIP's application to employ Frericks and Howard as special counsel for the estate indicates pending litigation *367 against the DIP in actions including Trimble v. Abbott & Co., and Rouse v. Abbott & Co. These matters were not scheduled in the DIP's statement of affairs. The DIP's Postpetition Operations The DIP's most recent operating statements indicate that the DIP suffered losses for October, 1995 and November, 1995 of $74,830.00 and $62,705.00, respectively. The DIP's officers received postpetition payments from the DIP for September 16, 1995 through November 30, 1995 in the following amounts: Officer Amount Eric Dardinger ("Dardinger") $ 41,209.73 John Mitchell ("Mitchell") $ 57,428.42 Charles Paull $ 25,732.21 Total $124,370.36 Notably, the annual gross salaries for Dardinger, Mitchell, and Paull for the year ended prior to the Petition Date approximated $76,126.07, $83,851.88 and $129,886.77, respectively. See DIP's Statement of Financial Affairs, Question 3. Paull testified that these amounts included severance payments to Dardinger, the DIP's former chief financial officer, and to Mitchell, the DIP's former vice president of customer services. The DIP's severance payments to Dardinger and Mitchell approximated $25,362.50 and $46,889.51, respectively. See October Financial Reports, Form 6, Statements of Compensation. Paull testified that the DIP made a "severance" payment to him in the amount of $26,800.00 during the week prior to the hearing on this matter, despite the fact that he is still employed by the DIP. According to Paull, the DIP presently owes him an additional $80,000.00 in accrued severance pay. Paull was unaware of any written documents which memorialize the DIP's severance policy. Paull testified that the severance payments to Dardinger, Mitchell and Paull were based on the officers' prior years of service with the DIP. Paull testified that, on the Petition Date, the officers were entitled to the severance payments which they received from the DIP. Paull testified that the DIP's monthly salary expenses subsequent to the date of this hearing should approximate $17,000.00, including Paull's monthly salary of $9,585.70. DISCUSSION The Court finds that the continuing diminution of the estate and the absence of a reasonable likelihood of rehabilitation of the DIP represents "cause" for conversion or dismissal under § 1112(b). The DIP's conduct of its chapter 11 case further supports a finding of "cause". Applicable Statute Section 1112(b) provides, in pertinent part, that: on request of a party in interest or the United States trustee, . . . and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title or may dismiss a case under this chapter, whichever is in the best interest of creditors and the estate, for cause, including (1) continuing loss to or diminution of the estate and absence of a reasonable likelihood of rehabilitation[.] Whether "Cause" Exists to Convert or Dismiss the DIP's Chapter 11 Case There has been a "continuing loss to or diminution of" the estate. 11 U.S.C. § 1112(b)(1). "All that need be found is that the estate is suffering some diminution in value". In re Kanterman, 88 B.R. 26 , 29 (S.D.N.Y.1988). The DIP's operating statements for October and November indicate that the DIP has suffered continuing losses. In addition, the DIP's postpetition severance payments to Mitchell, Dardinger and Paull have drained the estate of cash in the amounts of $46,889.51, $25,362.50 and $26,800.00, respectively. Cf. In re Citi-Toledo Partners, 170 B.R. 602 , 606 (Bankr.N.D.Ohio 1994) (wherein this court found that the accumulation of real estate taxes and payments to security guard constituted continuing diminution of estate in circumstances where debtor did not have any cash flow); In re Greene, 57 B.R. 272 , 276-77 (Bankr.S.D.N.Y.1986) (finding that estate, which was comprised of real *368 estate, was suffering continuing diminution in value based on accruing real estate taxes and insurance premiums on real property). Further, the Court finds that the DIP does not have a "reasonable likelihood of rehabilitation". As the court stated in In re Wright Air Lines, Inc., "[r]ehabilitation as used in 11 U.S.C. Section 1112(b)(1) means `to put back in good condition; re-establish on a firm, sound basis'". In re Wright Air Lines, Inc., 51 B.R. 96 , 100 (Bankr.N.D.Ohio 1985) (citation omitted). First, the DIP has ceased operations and intends to liquidate. See In re Kanterman, 88 B.R. at 29 (finding that debtor's conceded intention to liquidate evidenced lack of reasonable likelihood of rehabilitation); see also In re Great American Pyramid Joint Venture, 144 B.R. 780 (Bankr.W.D.Tenn.1992) (finding that debtor's cessation of operations supported finding of "cause" under § 1112(b)(1)). Second, the DIP does not have any operating income which could be utilized to pay its expenses. Third, the DIP has retained only 5 employees who are engaged in liquidating the DIP's business. Cf. Trident Associates Ltd. Partnership v. Metropolitan Life Ins. Co. (In re Trident Associates Ltd. Partnership), 52 F.3d 127 (6th Cir. 1995), cert. denied, U.S. , 116 S. Ct. 188 , 133 L. Ed. 2d 125 (1995) (finding that "cause" existed for dismissal in circumstances where debtor had no employees, debtor was not engaged in an ongoing business, debtor was a newly created entity, and property of the estate was a single asset); In re Winshall Settlor's Trust, 758 F.2d 1136 (6th Cir.1985) (finding dismissal warranted in circumstances where debtor was a corporate shell). Moreover, as in In re Citi-Toledo Partners, "the Court cannot equate the determination of whether [a debtor-in-possession] possesses a reasonable likelihood of rehabilitation with [a debtor-in-possession's] ability to effectuate a liquidating plan." In re Citi-Toledo Partners, 170 B.R. 602 , 607 (Bankr. N.D.Ohio 1994) (citing § 1141(d)(3)(A)); see also In re Kanterman, 88 B.R. at 29 (noting the distinction between a debtor's ability to effectuate a liquidating plan of reorganization and a debtor's rehabilitation). The DIP's conduct of its chapter 11 case further supports a finding of "cause" under § 1112(b). Cf. Michigan Nat'l Bank v. Charfoos (In re Charfoos), 979 F.2d 390 , 394-95 (6th Cir.1992) (finding dismissal for "cause" warranted under § 1112(b) based on debtor's prepetition misconduct in state court proceedings and misstatements of fact in bankruptcy proceeding). Most significantly, creditors were entitled to notice and a hearing prior to the DIP's severance payments to Dardinger, Mitchell and Paull in the respective amounts of $25,362.50, $46,889.51 and $26,800.00. In re Forster, 162 B.R. 478 , 482 (Bankr.N.D.Ohio 1993) (citing 11 U.S.C. 363(b)(1) and Fed. R.Bankr.P. 6004) (other citation omitted). The severance payments to Dardinger and Mitchell were the type of transactions of which a reasonable creditor would expect to receive notice in a chapter 11 case, particularly in a case where a debtor is liquidating its business. The DIP's "severance" payment to Paull, who has not been terminated by the DIP, is even more surprising. The Court further notes that, in light of Paull's testimony that the DIP's "severance" payments to Dardinger, Mitchell and Paull were based on the officers' length of service, the severance payments were likely not entitled to administrative expense treatment. See In re Health Maintenance Foundation, 680 F.2d 619 , 621-22 (9th Cir.1982) (finding that severance pay at termination based on length of service was not entitled to administrative expense treatment under the Bankruptcy Act); see also In re Rawson Food Services, Inc., 67 B.R. 351 (M.D.Fla.1986). At the hearing on this matter, the DIP argued that the severance payments to Dardinger, Mitchell and Paull were approved by this Court's execution on November 8, 1995 of the "Order Authorizing Payment Of Prepetition Employee Wages, Salaries And Related Items, Reimbursement Of Prepetition Employee Business Expenses, And Payments For Which Payroll Deductions Were Made" (the "Emergency Pay Order"). Suffice it to say that even a generous reading of the Emergency Pay Order does not support the DIP's argument. True, this Court's November Emergency Pay Order approved the payment of $40,892.99 in wages for salaried *369 employees and $33,964.20 for hourly employees, including payments to Dardinger, Mitchell and Paull in the respective amounts of $3,125.32, $3,250.13 and $4,792.85. However, this Court's November Emergency Pay Order can in no way be construed as placing the Court's imprimatur on the DIP's October, 1995 severance payments to Dardinger and Mitchell or the DIP's January, 1996 "severance" payment to Paull. Likewise, the Court rejects the DIP's argument that the Court's execution of a cash collateral order between the DIP and IBJ, to which the DIP had appended a proposed operating budget listing an aggregate line item for "Severance", approved the DIP's payment of the severance payments to Dardinger, Mitchell and Paull. The Court finds the DIP's assertion that its postpetition payment of the officers' severance pay was proper is particularly troubling in light of the fact that Paull, who remains in control of the DIP, testified that the DIP still owes him $80,000.00 in severance payments. The DIP failed to schedule the Whirlpool Suit, which lawsuit apparently represents a significant asset of the estate. Likewise, the DIP did not schedule the two state court lawsuits in which the DIP appears as a defendant and has apparently allowed these lawsuits to proceed against the estate. Cf. Ostano Commerzanstalt v. Telewide Systems, Inc., 790 F.2d 206 , 207 (2nd Cir.1986) (per curiam) (holding that debtor may not waive automatic stay of § 362(a) as the purpose of stay is to protect creditors as well as debtor) (citing Association of St. Croix Condominium Owners v. St. Croix Hotel Corp., 682 F.2d 446 , 448 (3rd Cir.1982)). Whether to Convert or Dismiss the DIP's Chapter 11 Case The Court finds that conversion of the DIP's bankruptcy case is warranted. The DIP's operations ceased in October, 1995. Therefore, the estate cannot obtain a benefit from selling the DIP's assets as a "going concern". Moreover, "[a]s the trustee's powers to recover property are generally greater than would be available outside of bankruptcy, this factor tends to favor conversion where there is not continuing revenue-generating activity." In re Staff Inv. Co., 146 B.R. 256 , 261 (Bankr.E.D.Cal.1993) (footnote omitted). Conversion, rather than dismissal, will preserve the benefit of the DIP's cause of action against Whirlpool for the benefit of the estate. Conversion will also permit a trustee to pursue preferential payments to creditors, including a potential preferential transfer to Getzler & Co., the DIP's former management consultants, on September 11, 1995 in the amount of $73,840.11. In light of the foregoing, it is therefore ORDERED that the DIP's chapter 11 case be, and it hereby is, converted to a case under chapter 7. It is further ORDERED that, pursuant to 11 U.S.C. § 348(a), the conversion of this case to a case under chapter 7 constitutes an Order for Relief under Chapter 7. It is further, ORDERED that pursuant to 11 U.S.C. sections 348(c) and 342, the Clerk of this Court shall give "such notice as is appropriate of an Order for Relief in a case under this Title." It is further ORDERED that, pursuant to Bankruptcy Rules 1019(2) and 2002(f)(4), the Clerk of this Court shall give notice of the entry of this Order of conversion. It is further, ORDERED that, pursuant to Bankruptcy Rule 1019(4), the DIP shall forthwith turn over to the Interim Chapter 7 Trustee, all records and property of the estate in its possession or control. It is further, ORDERED that the DIP, by its president Charles Paull, prepare and file in this Court, within 30 days of the date of this Order, a separate schedule listing unpaid obligations incurred after the filing of the petition under Chapter 11, including the amounts owing, the creditors' names and their addresses or places of business, including matrix, and a statement of all contracts, executory in whole or in part, assumed or entered into after the filing of the petition. It is further, ORDERED that the DIP, by its president Charles Paull, prepare and file its financial reports for the period from December 1, 1995 through January 10, 1996 within 30 days from the date of this Order, in accordance with the guidelines promulgated by the Office *370 of the United States Trustee. It is further ORDERED that this Court's oral injunction effective as of 1:00 o'clock P.M. on January 10, 1996, which injunction prohibits the DIP, its officers, its employees, or IBJ Schroder from disbursing any of the DIP's funds in their possession, be, and it hereby is, continued pending further Order of this Court. | opinion_html_with_citations | 2,686 | 2013-10-30 07:37:47.122747+00 | 010combined | f | f | 1,854,151 | Walter J. Krasniewski | null | LU | f | Published | 1 | In Re ABEPP Acquisition Corp. | In Re ABEPP Acquisition Corp. | In Re ABEPP ACQUISITION CORP., Dba Abbott & Company, Debtor | null | null | <parties id="b421-10">
In re ABEPP ACQUISITION CORP., dba Abbott & Company, Debtor.
</parties><docketnumber id="AI1">
Bankruptcy No. 95-32313.
</docketnumber><br><court id="b421-11">
United States Bankruptcy Court, N.D. Ohio, Western Division.
</court><br><decisiondate id="b421-14">
Jan. 11, 1996.
</decisiondate><br><attorneys id="b421-23">
William Schoenberg, Cleveland, Ohio, for Debtor.
</attorneys><br><attorneys id="b421-24">
Mary Ann Whipple, Toledo, Ohio, for Unsecured Creditors’ Committee.
</attorneys><br><attorneys id="b421-25">
Yvonne Tertel, Toledo, Ohio, for Ohio Bureau of Workers’ Compensation.
</attorneys><br><attorneys id="b421-26">
Mark Froehlich, Newark, DE, for Allied Wire and Cable, Inc.
</attorneys><br><attorneys id="b421-27">
Susan Bruder, Office of Marion County Treasurer, Marion, Ohio.
</attorneys><br><attorneys id="b421-28">
Derrick Rippy, Office of the U.S. Trustee, Cleveland, Ohio.
</attorneys><br><attorneys id="b422-3">
<span citation-index="1" class="star-pagination" label="366">
*366
</span>
Michael Jones, Joan Torzewski, Toledo, Ohio, for United Auto Workers.
</attorneys><br><attorneys id="b422-4">
Jeffrey Schwartz, Stacey Ballen-Stier, New York City, for IBJ Schroder.
</attorneys><br><attorneys id="b422-5">
Charles Pauli, Marion, Ohio.
</attorneys> | null | null | null | null | null | null | 1,735,986 | 19-10426 | 0 | ohnb | FB | t | N.D. Ohio | United States Bankruptcy Court, N.D. Ohio |
9,079,900 | C. A. 5th Cir. Certiorari denied. | opinion_xml_harvard | 6 | 2022-11-27 21:20:48.360396+00 | 020lead | t | f | 9,085,816 | null | null | U | f | Published | 0 | Valdez v. United States | Valdez | Valdez v. United States | null | null | null | null | null | null | null | null | null | 66,352,073 | No. 88-1375 | 0 | scotus | F | t | Supreme Court | Supreme Court of the United States |
9,560,674 | Judge COZORT concurring by separate opinion. I concur with both ultimate conclusions reached by the majority: (1) that the case must be remanded to set support consistent with the applicable statutes; and (2) that the pendente lite alimony award is not immediately appealable. On the first issue, however, I cannot agree with all of the issues discussed and opinions expressed by the majority. I note initially that neither party raised at trial or on appeal the issue of whether a timely request was made for hearing evidence *627and making findings pursuant to N.C. Gen. Stat. § 50-13.4(c) (1987 & Cum. Supp. 1990). Any discussion of that issue is thus unnecessary to the resolution of this case, especially in light of the majority’s holding that the notice requirement was waived. Furthermore, I am compelled to comment on the majority’s interpretation of N.C. Gen. Stat. § 5043.4(c) that “upon request of any party” means ten days’ advance notice. I must disagree. The statute clearly states only “upon request” and makes no provision for advance notice of any duration. If the General Assembly had intended the statute to require advance notice, it could have specified such notice and the length thereof. Thus, on the first issue, I vote simply to reverse the trial court’s order which sets support at a level which varied from the guidelines and to remand the case to the trial court for entry of a new order. | opinion_xml_harvard | 238 | 2023-08-21 17:53:30.687592+00 | 030concurrence | f | f | 1,202,425 | Cozort, Greene, Parker | null | LU | t | Published | 19 | Browne v. Browne | Browne | Jo Perry Browne v. Joseph M. Browne, Jr. | null | null | <parties id="b645-5">
JO PERRY BROWNE v. JOSEPH M. BROWNE, JR.
</parties><br><docketnumber id="b645-6">
No. 906DC750
</docketnumber><decisiondate id="AWH">
(Filed 19 February 1991)
</decisiondate><br><attorneys id="b646-14">
<span citation-index="1" class="star-pagination" label="618">
*618
</span>
<em>
Smith, Daly & Skinner, P.A., by Lloyd C. Smith, Jr. and Roswald B. Daly, Jr., for plaintiff-appellee.
</em>
</attorneys><br><attorneys id="b646-15">
<em>
Josey, Josey & Hanudel, by C. Kitchin Josey, for defendant-appellant.
</em>
</attorneys> | null | null | null | null | null | null | 261,077 | 906DC750 | 1 | ncctapp | SA | t | Court of Appeals of North Carolina | Court of Appeals of North Carolina |
7,597,152 | PER CURIAM. We affirm appellant’s conviction but remand for sentencing correction. The written sentence must be corrected to reflect the trial court’s oral pronouncement that *1138appellant should be sentenced as a youthful offender. See Kelly v. State, 414 So.2d 1117 (Fla. 4th DCA 1982). GLICKSTEIN, C.J., and STONE and FARMER, JJ., concur. | opinion_xml_harvard | 52 | 2022-07-29 06:54:41.546728+00 | 020lead | t | f | 7,662,951 | Farmer, Glickstein, Stone | null | U | f | Published | 0 | Schlee v. State | Schlee | Jeremy SCHLEE v. STATE of Florida | null | null | null | null | null | null | null | null | null | 64,664,023 | No. 91-0230 | 0 | fladistctapp | SA | t | District Court of Appeal of Florida | District Court of Appeal of Florida |
7,275,037 | Petition for writ of certiorari to the United States Court of Appeals for the Federal Circuit denied. | opinion_xml_harvard | 17 | 2022-07-25 08:01:22.754553+00 | 020lead | t | f | 7,356,428 | null | null | U | f | Published | 0 | Parsons v. United States | Parsons | Norman PARSONS v. UNITED STATES | null | null | null | null | null | null | null | null | null | 64,344,926 | No. 06-256 | 0 | scotus | F | t | Supreme Court | Supreme Court of the United States |
4,662,434 | **************************************************************** The ‘‘officially released’’ date that appears near the beginning of this opinion is the date the opinion was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. This opinion is subject to revisions and editorial changes, not of a substantive nature, and corrections of a technical nature prior to publication in the Connecticut Law Journal. **************************************************************** IN RE MIYUKI M.* (AC 44186) Bright, C. J., and Moll and DiPentima, Js. Syllabus The respondent mother appealed to this court from the judgment of the trial court terminating her parental rights as to her minor child, M, and denying her motion to transfer guardianship of M to M’s maternal grandmother. The court conducted a consolidated trial on the termina- tion of parental rights petition and motion to transfer guardianship, and properly canvassed the respondent pursuant to In re Yasiel R. ( 317 Conn. 773 ), advising her of the purpose and consequences of the termination of parental rights. The petitioner, the Commissioner of Children and Families, submitted a stipulation of facts, signed by the respondent. The respondent’s attorney agreed that there was no need for the court to conduct a canvass of the respondent before accepting the stipulation of facts. The court accepted the stipulation. The court subsequently declared a mistrial after the respondent’s attorney withdrew from the case. Following the mistrial, the case proceeded to a new trial, where the court again canvassed the respondent at the start of trial pursuant to In re Yasiel R. The court then accepted into evidence exhibit P, which consisted of the stipulation of facts from the first trial. The respondent’s attorney did not object to the exhibit. After considering all the evidence, the court determined that, pursuant to statute (§ 17a- 112 (j) (3) (B) (i)), the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time she could assume a responsible position in M’s life. The court also found that it was not in M’s best interest to transfer guardianship to her maternal grandmother, as there was insufficient evidence that she was a suitable guardian. On appeal, the mother claimed, inter alia, that the trial court violated her right to due process when it failed to canvass her separately regarding the stipulation of facts, which she contends was essentially the equivalent of a consent to termination of her parental rights, that this failure constituted plain error, and required the exercise of this court’s supervisory authority. Held: 1. The respondent mother could not prevail on her unpreserved claim that her right to due process was violated when the trial court failed to canvass her before accepting into evidence exhibit P: although the record of her claim was adequate for review under State v. Golding ( 213 Conn. 233 ), the claim was not of constitutional magnitude, it was an evidentiary claim that involved the court’s discretion, and the fact that the case involved the termination of parental rights did not transform an eviden- tiary matter into a constitutional matter; moreover, even if the claim were of constitutional magnitude, the claim would still fail because the respondent could not establish that a constitutional violation existed and deprived her of a fair trial, as the court thoroughly canvassed the respondent at the start of the trial in accordance with the requirements set forth in In re Yasiel R., and it was not required to conduct a separate canvass because her attorney made a tactical decision not to contest the exhibits offered at trial by the petitioner, and the respondent had the opportunity to dispute the facts contained in exhibit P and to explain why she entered into the stipulation; furthermore, this court declined to employ the plain error doctrine or to exercise its supervisory authority because neither action was warranted under the facts of this case. 2. The trial court did not abuse its discretion in concluding that M’s maternal grandmother was not a suitable and worthy guardian for M: the court found that there was little record evidence to enable it to conclude that the grandmother was a suitable and worthy guardian for M and that transfer of guardianship was in M’s best interest; a review of the evidence revealed that the grandmother had moved several times, she lacked insight into the respondent’s mental health and substance abuse prob- lems, she was inconsistent in her desire to be a resource for M, she refused the Department of Children and Families access to her home on at least one occasion, and M was bonded to her foster family; accord- ingly, on the basis of the record before this court, it would not second- guess the trial court’s determinations. Argued January 4—officially released February 23, 2021** Procedural History Petition by the Commissioner of Children and Fami- lies to terminate the respondents’ parental rights with respect to their minor child, brought to the Superior Court in the judicial district of Litchfield, Juvenile Mat- ters, where the matter was tried to the court, Hon. Joseph W. Doherty, judge trial referee; thereafter, the court denied the respondent mother’s motion to trans- fer guardianship; judgment terminating the respon- dents’ parental rights, from which the respondent mother appealed to this court. Affirmed. Benjamin M. Wattenmaker, assigned counsel for the appellant (respondent mother). Sara Nadim, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Evan O’Roark, assistant attorney general, for the appel- lee (petitioner). Rebecca Mayo Goodrich, for the minor child. Opinion BRIGHT, C. J. The respondent mother, Shayna C., appeals from the judgment of the trial court terminating her parental rights as to her child, Miyuki M.1 On appeal, the respondent claims that (1) the court’s failure to canvass her regarding her written stipulation of facts violates her right to due process under the fourteenth amendment to the United States constitution, consti- tutes plain error, and requires the exercise of our super- visory authority, and (2) the court erred in denying her motion to transfer guardianship of her child to the child’s maternal grandmother. We affirm the judgment of the trial court. Initially, we set forth the following procedural his- tory. Following the birth of the child, the Department of Children and Families (department) became involved with the respondent and the child’s father, which resulted in the removal of the child from the family home. Approximately one year later, the child was reunified with the respondent. Less than two years later, on March 10, 2017, the petitioner, the Commissioner of Children and Families, invoked a ninety-six hour hold on the child due to concerns about the mental health and substance abuse issues of the respondent and the child’s father. On March 13, 2017, the petitioner filed a neglect petition, and the court granted the petitioner’s ex parte motion for an order of temporary custody. On July 19, 2017, the court adjudicated the child neglected following the respondent’s plea of nolo contendere to allegations in the neglect petition. On July 26, 2017, the court committed the child to the care and custody of the petitioner. On December 29, 2017, the petitioner filed a motion to review permanency plan, and, on Feb- ruary 23, 2018, the court held a hearing, after which it approved the permanency plan of termination of paren- tal rights and adoption, and it added a concurrent plan of transfer of guardianship to either the paternal grand- parents or the maternal grandmother. The court also made a finding of no further reasonable efforts. On April 11, 2018, the petitioner filed a termination of parental rights petition, and, on August 21, 2018, the respondent filed a motion to transfer guardianship to the child’s maternal grandmother. On December 17, 2018, the petitioner filed a permanency plan of termina- tion of parental rights and adoption. On January 4, 2019, the respondent objected to the permanency plan, but she agreed that reunification was not an appropriate plan for the child and that the department should not be obligated to make any reasonable efforts to achieve reunification. On February 25, 2019, the court con- ducted a consolidated trial on the termination of paren- tal rights petition and the respondent’s motion to trans- fer guardianship to the child’s maternal grandmother, at the start of which the court properly canvassed the respondent pursuant to In re Yasiel R., 317 Conn. 773 , 794, 120 A.3d 1188 (2015) (Yasiel R.). On February 26, 2019, the petitioner presented the court with a stipula- tion of facts, signed by the respondent, and the respon- dent’s attorney agreed that there was no need for the court to conduct a canvass of the respondent before accepting the stipulation of facts. The court then accepted the stipulation as a ‘‘filing.’’ On April 4, 2019, the respondent’s attorney filed a motion to withdraw from the case. On April 15, 2019, the court granted that motion, and, on April 22, 2019, the court declared a mistrial. Following the mistrial, the case proceeded to a new consolidated trial, which was held over the course of eight days between July 29 and November 12, 2019. The following facts, as found by the trial court, and additional procedural history inform our review of the respondent’s claims on appeal. At the start of the new trial, the court, pursuant to Yasiel R., again canvassed the respondent, who was represented by new counsel, provided her with the advisement required by Practice Book § 32a-1, and inquired as to whether she under- stood her rights as described in the canvass and the advisement, to which she responded in the affirmative.2 Court was recessed shortly thereafter at the request of one of the attorneys. The next day, the respondent and the petitioner indicated that they had ‘‘an agreement on exhibits’’ and that ‘‘there [was] no objection’’ to the exhibits being entered into evidence. The court stated that exhibits ‘‘A through Q are going to be recognized as full exhibits, as each of them are presented during trial.’’ Exhibit P was the stipulation that the respondent had signed in February, 2019, which had been accepted as a ‘‘filing’’ in the previous trial. On October 15, 2019, during the respondent’s testi- mony before the trial court, she agreed with many of the stipulated facts set forth in exhibit P, but she dis- agreed with others. She also explained why she signed the stipulation even though she thought some of the facts contained therein were incorrect. The court also heard testimony from department social workers, aides, the child’s maternal grandmother, the maternal grand- mother’s therapist, and a friend of the maternal grand- mother. After considering all of the evidence presented at trial, the court issued a memorandum of decision on March 9, 2020, in which it found that the respondent had ‘‘made a number of attempts to overcome her substance abuse and to acquire the necessary parenting skills, but [that she] has not been successful with either.’’ The court further found that ‘‘there [was] insufficient evi- dence concerning [the] maternal grandmother to permit the court to find that she is ‘suitable and worthy’ . . . .’’ Additionally, the court found that the child was bonded with her foster family, having lived with them for much of her life, and that a transfer of guardianship to the maternal grandmother would not be in the child’s best interests. Accordingly, the court granted the petitioner’s termination of parental rights petition, and it denied the respondent’s motion to transfer guardianship to the child’s maternal grandmother. This appeal followed. Additional facts will be set forth as necessary to address the respondent’s claims. I The respondent first claims that the court’s failure to canvass her before accepting into evidence exhibit P, which was the written stipulation of facts that had been filed during the previous trial, violated her right to due process of law.3 The respondent acknowledges that this issue was not preserved because she did not object to exhibit P during her trial, and, therefore, she requests review pursuant to State v. Golding, 213 Conn. 233 , 239–40, 567 A.2d 823 (1989). The respondent further argues that the court’s acceptance of exhibit P without canvassing her separately constitutes plain error and requires the exercise of our supervisory authority. We conclude that this claim is not of constitutional magni- tude and that, even if we were to assume that it meets that threshold, the court, nonetheless, acted properly in admitting into evidence exhibit P without, sua sponte, conducting another canvass of the respondent. Further- more, we decline to employ the plain error doctrine4 or our supervisory authority5 because neither is warranted under the facts of this case. See State v. Lavigne, 307 Conn. 592 , 598 n.5, 57 A.3d 332 (2012) (declining to review defendant’s claims under ‘‘inherent supervisory authority and the plain error doctrine . . . because our supervisory powers and the plain error doctrine are reserved for extraordinary circumstances that are not implicated by the present case’’). ‘‘Under Golding, a [respondent] can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the viola- tion of a fundamental right; (3) the alleged constitu- tional violation . . . exists and . . . deprived the [respondent] of a fair trial; and (4) if subject to harmless error analysis, the [petitioner] has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the [respondent’s] claim will fail. . . . State v. Golding, supra, 213 Conn. 239 –40; see [Yasiel R., supra, 317 Conn. 781 ] (modifying third prong of Golding by eliminating word clearly).’’ (Internal quo- tation marks omitted.) In re Zoey H., 183 Conn. App. 327 , 335, 192 A.3d 522 , cert. denied, 330 Conn. 906 , 192 A.3d 425 (2018). The respondent argues that her claim is reviewable under Golding because the record is adequate and the claim involves her fundamental right to raise her child. The petitioner concedes that the respondent’s claim satisfies both the first and second Golding prongs but, argues, nonetheless, that the trial court’s acceptance of ‘‘factual stipulations . . . does not implicate an indi- vidual’s right to due process . . . .’’ We conclude that the record is adequate for review, but we are not per- suaded that the respondent’s claim is of constitutional magnitude. See In re Devon W., 124 Conn. App. 631 , 647, 6 A.3d 100 (2010) (‘‘[p]utting a constitutional tag on a nonconstitutional claim will [not] change its essential nature’’ (internal quotation marks omitted)). In the first trial, the respondent agreed to a stipulation of facts, which then was filed in the case. After the court declared a mistrial and a new trial was underway, the petitioner, without objection from the respondent, offered into evidence a series of exhibits, one of which was exhibit P, the stipulation of facts. The respondent’s attorney specifically stated that there was no objection to the exhibits offered. The respondent’s claim on appeal, that the court, sua sponte, had to conduct a separate canvass of her before it could admit into evi- dence a trial exhibit to which the respondent offered no objection, appears to be nothing more than an unpre- served evidentiary claim involving the court’s discretion to accept evidence. See id.; see also In re Antonio M., 56 Conn. App. 534 , 544–45, 744 A.2d 915 (2000) (although right to raise one’s children is fundamental, claim concerning improper admission of hearsay evi- dence is not constitutional in nature but, rather, is evi- dentiary). The fact that this is a termination of parental rights case does not transform an evidentiary matter into a constitutional matter. See In re Antonio M., supra, 544–45. Nevertheless, even if we assume, as does the peti- tioner, that the respondent has met the second prong of Golding, she cannot sustain her burden under Golding’s third prong, i.e., that a constitutional violation exists and deprived her of a fair trial. See In re Shane P., 58 Conn. App. 244 , 253–54, 754 A.2d 169 (2000) (even assuming record is adequate and claim is of constitu- tional magnitude, respondent’s claim fails under Gold- ing’s third prong). In this case, the court thoroughly canvassed the respondent in accordance with the requirements set forth in Yasiel R., supra, 317 Conn. 773 , and she does not contend otherwise. Rather, she argues that the court violated her right to due process by failing, sua sponte, to conduct a separate canvass before it admitted exhibit P into evidence, despite the fact that her attorney stated that there was no objection to the admission of any of the exhibits. She contends that exhibit P essentially is the equivalent of a consent to termination of her paren- tal rights and that it should be treated as such, and that a separate canvass should be required. Guided by Yasiel R., we disagree. In Yasiel R., our Supreme Court, after considering the factors set forth in Mathews v. Eldridge, 424 U.S. 319 , 335, 96 S. Ct. 893 , 47 L. Ed. 2d 18 (1976) (‘‘[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute proce- dural safeguards; and finally, the [g]overnment’s inter- est, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail’’); Yasiel R., supra, 317 Conn. 782 –87; held that ‘‘due process does not require that a trial court canvass a respondent who is represented by counsel when the respondent does not testify or present witnesses and the respondent’s attor- ney does not object to exhibits or cross-examine wit- nesses.’’ (Emphasis added.) Id., 787–88. Somewhat similar to the present case, the respondent in Yasiel R. had decided not to contest, inter alia, the exhibits presented to the court by the petitioner. Id., 778 . Our Supreme Court, in the exercise of its supervi- sory authority, although concluding that the due pro- cess clause does not require a canvass of the respondent in a termination proceeding, instructed that ‘‘public con- fidence in the integrity of the judicial system would be enhanced by a rule requiring a brief canvass of all par- ents immediately before a parental rights termination trial so as to ensure that the parents understand the trial process, their rights during the trial and the potential consequences.’’ Id., 794 . The court also explained that ‘‘[t]he canvass we require . . . [must] be given to all parents involved in a termination trial, not just those whose attorneys choose not to contest evidence. Indeed, we require that the canvass be performed at the very start of the termination trial, before a decision as to whether to challenge evidence has been communicated to the court. In so doing, the canvass we require does not single out those parents whose attorneys have made a tactical decision not to contest the evidence pre- sented. As a result, the canvass we require does not interfere with the attorney-client relationship but serves to inform and protect all parents.’’ (Emphasis altered.) Id. In the present case, the trial court properly canvassed the respondent at the start of the termination trial in accordance with Yasiel R., including explaining to the respondent that ‘‘[i]f you do not present any witnesses on your own behalf . . . do not object to the testimony or exhibits, or do not cross-examine witness[es] at this trial, the trial judge will decide the case based on the evidence that was presented at trial.’’ As in Yasiel R., the court in the present case was not required to give a separate canvass before the respondent’s attorney made a tactical decision not to contest the exhibits offered by the petitioner.6 II The respondent next claims that the court erred in denying her motion to transfer guardianship of her child to the child’s maternal grandmother (grandmother). She argues that the court’s finding that the grandmother was not ‘‘suitable and worthy’’ constitutes ‘‘an abuse of discretion.’’ We are not persuaded. ‘‘The adjudication of a motion to transfer guardian- ship pursuant to General Statutes § 46b-129 (j) (2) requires a two step analysis. [T]he court must first deter- mine whether it would be in the best interest[s] of the child for guardianship to be transferred from the petitioner to the proposed guardian. . . . [Second] [t]he court must then find that the third party is a suit- able and worthy guardian. . . . This principle is echoed in Practice Book § 35a-12A (d), which provides that the moving party has the burden of proof that the proposed guardian is suitable and worthy and that transfer of guardianship is in the best interests of the child.’’ (Footnote omitted; internal quotation marks omitted.) In re Leo L., 191 Conn. App. 134 , 139–40, 214 A.3d 430 (2019). ‘‘To determine whether a custodial placement is in the best interest[s] of the child, the court uses its broad discretion to choose a place that will foster the child’s interest in sustained growth, development, well-being, and in the continuity and stability of its environment. . . . We have stated that when making the determina- tion of what is in the best interest[s] of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and . . . we are not privileged to usurp that authority or to substitute ourselves for the trial court. . . . A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . [G]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . [Appellate courts] are not in a position to second- guess the opinions of witnesses, professional or other- wise, nor the observations and conclusions of the [trial court] when they are based on reliable evidence.’’ (Inter- nal quotation marks omitted.) Id., 140–41. The respondent argues that there was substantial evidence in the record to allow the court to find that the grandmother was suitable and worthy. She argues that she ‘‘introduced [twenty-three] exhibits into evi- dence . . . the majority [of which] constituted evi- dence of [the grandmother’s] suitability for guardian- ship of [the child].’’7 She further argues that several witnesses testified to the grandmother’s suitability, and that the grandmother, herself, provided testimony.8 She contends that the court ‘‘simply failed to consider any of the evidence in its memorandum of decision.’’ Finally, the respondent contends that the court’s conclusion that transfer of guardianship to the grandmother was not in the child’s best interests was an abuse of discre- tion. We are not persuaded. In the present case, the court found that there was little record evidence to enable it to conclude that the grandmother was a suitable and worthy guardian for the child. A review of the evidence in the record reveals that the grandmother had moved four times in the previ- ous six years, that her current apartment was the first one for which she had been financially responsible, that she lacked insight into the respondent’s mental health and substance abuse problems, that she was inconsis- tent in her desire to be a resource for the child, that she had refused the department access to her home on at least one occasion, and that the department had concerns about her coaching the child and trying to make the child feel sad because she misses her. Although there was testimony from witnesses who indi- cated that the grandmother was suitable and worthy, it is the function of the trial court to determine the reliability and weight of the evidence presented. See In re Leo L., supra, 191 Conn. App. 142 (‘‘[t]his court does not make credibility determinations, and it is the trial court’s role to weigh the evidence presented and deter- mine relative credibility when it sits as a fact finder’’). The court, in this case, heard and viewed the evidence presented, assessed its credibility and reliability, weighed it, and determined that it was insufficient to prove that the grandmother was suitable and worthy. The court also found that the child was bonded to her foster family, including her foster parents and her three foster siblings, that she had ‘‘adjusted very well in her . . . foster placement, and [that] the foster parents [were] providing the day-to-day physical, emotional, moral and education[al] support that she needs.’’ See In re Leo L., supra, 191 Conn. App. 142 (‘‘a trial court may rely on the relationship between a child and the child’s foster parents to determine whether a different placement would be in the child’s best interest[s]’’ (internal quotation marks omitted)), quoting In re Athena C., 181 Conn. App. 803 , 821, 186 A.3d 1198 , cert. denied, 329 Conn. 911 , 186 A.3d 14 (2018). The court concluded that the evidence was insufficient to prove that the grandmother was a suitable and worthy guard- ian for the child. It also concluded that a transfer of guardianship to the grandmother was not in the child’s best interests. On the basis of the record before us, we will not second-guess the court’s determinations. The judgment is affirmed. In this opinion the other judges concurred. * In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court. ** February 23, 2021, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. 1 The child’s father consented to the termination of his parental rights. Any reference to the respondent herein is to the mother. 2 Specifically, the court explained to the respondent in relevant part: ‘‘Now, in cases concerning termination of parental rights, after a recent decision in a case of . . . Yasiel R., our Supreme Court directed the trial court to read into the record and advise mother and father, on the record, of the purpose and the consequences of a termination of parental rights. So I’m not reading this to you personally, this is done in every case in which a termination trial is about to begin before the evidence and testimony commences. And it’s an advisement that is only used infrequently, so I’m [going to] read it to you . . . so I don’t leave anything out. ‘‘At this time the court advises the parents that the petitioner . . . has previously filed with this court, a legal document called a termination of parental rights petition in which [the petitioner] seeks to have this court permanently end the legal parent/child relationship between you and your child, in this case, Miyuki. ‘‘Because [the petitioner] is the one who filed the petition and the one asking the court to permanently sever your legal relationship with your child it’s up to [the petitioner] to prove their case, at a termination trial, by clear and convincing evidence. If [the petitioner] prevailed or won at trial and the court grants the termination of parental rights you will have no legal rights, no authority and no responsibility for this child. You [will] no longer have any right to make any decisions, of any kind, regarding this child, you [will] not be entitled to any state or federal benefits or entitlements on behalf of this child. ‘‘A child is free to be adopted only upon the termination of any and all parental rights. ‘‘A termination of parental rights trial gives you, as the parent, an opportu- nity to defend against this petition. At a . . . trial anything you say or have said could be used against you. You’ve got the right to remain silent and say nothing and do nothing that helps [the petitioner] to prove its case. You also have the right, if you so choose, to tell the judge your side of the story, that is, testifying on your own behalf. You have the right to confront and cross-examine witnesses and/or evidence and you’ve got the right to attempt to have admitted, for the trial judge to consider, testimony and evidence that you think is important in this case. ‘‘If any or all of the other parties to the case object to your proposed witnesses or evidence the trial judge will, as the judge does in all cases, decide whether something should be admitted and what weight to give that admitted evidence. ‘‘As is your right, you have an attorney representing you throughout this termination of parental rights proceeding. As part of your rights it’s up to your lawyer to inform the court when an objectionable question is asked and to tell the court when . . . at an appropriate time your position regarding the evidence, procedure and legal rights and rulings throughout the trial. ‘‘As I just stated, your decision to testify or not testify, at this trial, is yours to make. I must tell you, if you decide not to testify and whether a fully contested, partially contested or uncontested termination of parental rights trial the judge may draw an adverse inference, meaning that the trial judge could conclude that you did not testify because what you would have said would not have been helpful to your side of the case. Such an adverse ruling may help the petition, that is, [the petitioner] prevail at trial. ‘‘If you do not present any witnesses on your own behalf or do not object to the testimony or exhibits or do not cross-examine the witness, at this trial, the trial judge will decide the case based on the evidence that was presented at trial.’’ The court then asked the respondent and the child’s father if they had any questions, to which they each responded ‘‘No.’’ The court then followed up with, ‘‘[a]nd you understand your rights and everything that I’ve just said?’’ The respondent and the child’s father each said ‘‘I do.’’ 3 In her argument, the respondent focuses primarily on the court’s action in accepting the filing of the stipulation in the first trial. That trial, however, ended in a mistrial and is not before us in this appeal. 4 ‘‘The plain error doctrine is a rule of reversibility reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . [Thus, an appellant] can- not prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.’’ (Citation omitted; internal quotation marks omitted.) Richardson v. Commissioner of Correc- tion, 298 Conn. 690 , 700 n.9, 6 A.3d 52 (2010). 5 ‘‘[O]ur supervisory authority . . . is not a form of free-floating justice, untethered to legal principle . . . [and] [o]ur supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . .’’ (Internal quotation marks omitted.) Richardson v. Commissioner of Correction, 298 Conn. 690 , 701 n.11, 6 A.3d 52 (2010). Under the facts of the present case, we decline to invoke this extraordinary power. See id. 6 The respondent’s due process claim is further undermined by the fact that she had the opportunity to dispute the facts contained in exhibit P and to explain why she entered into the stipulation at the first trial. The petitioner did not object to such testimony on the basis that the stipulation constituted a judicial admission and the court, in its memorandum of decision, gave no indication that it treated it as such. Consequently, the respondent was able to challenge her statements in exhibit P in the same way as she was able to challenge any other evidence presented by the petitioner. We fail to see how this does not comport with due process. 7 Although the respondent’s attorney argues that many or most of the respondent’s exhibits established that the maternal grandmother was suit- able and worthy, she neither included copies in her appendix of the relevant portions of any specific exhibits, nor cited to the relevant portions of any specific exhibits in support of her claim. See Practice Book § 67-8 (b) (2). 8 Despite her argument that several witnesses testified to the suitability of the grandmother, the respondent’s attorney neither included in her appen- dix the relevant portions of any particular testimony concerning the suitabil- ity of the grandmother, nor cited to the relevant portions of any specific witness’ testimony. See Practice Book § 67-8 (b) (2). | opinion_html_with_citations | 5,659 | 2021-02-24 13:02:23.343672+00 | 010combined | f | f | 4,858,655 | null | null | C | t | Published | 0 | In re Miyuki M. | null | null | null | null | null | null | null | null | null | null | null | 59,677,769 | AC44186 | 0 | connappct | SA | t | Connecticut Appellate Court | Connecticut Appellate Court |
6,629,101 | Opinion by Sullivan, J. It was stipulated that the merchandise consists of wooden beads similar to those the subject of Abstract 38617. The claim at 35 percent under paragraph 1503 was therefore sustained. | opinion_xml_harvard | 33 | 2022-07-20 20:36:10.483927+00 | 020lead | t | f | 6,747,009 | Sullivan | null | U | f | Published | 0 | Protests 835152-G of Hollander Bead & Novelty Corp. | null | Protests 835152-G, etc., of Hollander Bead & Novelty Corp. (New York) | null | null | null | null | null | null | null | null | null | 63,728,164 | No. 40341 | 0 | cusc | FS | t | U.S. Customs Court | United States Customs Court |
2,279,347 | 21 Cal. App. 4th 203 (1993) 25 Cal. Rptr. 2d 804 AERO-CRETE, INC., et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; DALE VILLAGE APARTMENT COMPANY et al., Real Parties in Interest. Docket No. D019450. Court of Appeals of California, Fourth District, Division One. December 21, 1993. *205 COUNSEL Gibbs, Eppsteiner & Stagg, Barry M. Vrevich, Greco & Traficante, Paul A. Traficante, Stephen A. Shapiro, Luna, Brownwood & Rice, James L. Clark, Cooksey, Howard, Martin & Toolen and Jon A. Hammerbeck for Petitioners. No appearance for Respondent. Bonar, Incorvaia, Glancy & Liuzzi, Joel L. Incorvaia, Anna M. Mueller, Thorsnes, Bartolotta, McGuire & Padilla, John F. McGuire, Jr., and Jeffrey F. LaFave for Real Parties in Interest. *206 OPINION WIENER, Acting P.J. This is a complex construction defect case brought by plaintiffs Dale Village Apartment Company and related entities (Dale Village) against Pieri-Debbas Enterprises, the developer and general contractor on an apartment building project owned by Dale Village. Various subcontractors on the project have also been sued as defendants. Petitioners are certain of those subcontractors who seek writ relief after the trial court determined that a settlement between Dale Village and Pieri-Debbas was in good faith. They raise several issues related both to the court's good faith determination and to statements it made regarding the effect of the settlement on future proceedings. We conclude the trial court acted properly in finding the settlement to be in good faith. While the trial court is normally best served by valuing any assigned rights for the purpose of later setoffs at the time of the good faith determination, we have determined there was no mandate that it do so under the unique circumstances of this case. Finally, we explain why a prove-up hearing as to damages following Pieri-Debbas's stipulation to liability will not bind parties later determined to be indemnitors of Pieri-Debbas. Accordingly, we deny the petition. FACTUAL AND PROCEDURAL BACKGROUND Pieri-Debbas is a partnership with two corporate general partners, T-Bear, Inc. (solely owned by defendant James Pieri) and Debbas Construction (solely owned by defendant Nicholas Debbas). On the filing of the lawsuit by Dale Village, Pieri-Debbas tendered its defense to both its insurers and various subcontractors on the project with whom it allegedly had contractual indemnity agreements. Both the insurers and subcontractors denied responsibility and refused to defend Pieri-Debbas. Dale Village and Pieri-Debbas later agreed to settle their lawsuit on the following terms: Pieri-Debbas stipulated to liability; a prove-up hearing would be held to establish the amount of damages; in exchange for a covenant not to execute Pieri-Debbas assigned its indemnification rights as against its insurers and the subcontractors to Dale Village. The settling parties stipulated that the value of the settlement was $50,000 representing the defense costs Pieri-Debbas had incurred but would not now recover. The assigned rights were not valued, but an obligation was imposed on Dale Village to exercise due diligence in the prosecution of the assigned rights. As is typical, the settlement was contingent on the trial court finding the agreement to be in good faith. Within two days of signing the settlement *207 agreement, Dale Village dismissed James Pieri and Nicholas Debbas as individual defendants without prejudice, allegedly because there was no basis for any alter ego claims. In petitioning the court to confirm the settlement as being in good faith, Dale Village and Pieri-Debbas relied on declarations indicating that Pieri-Debbas had a negative net worth and would be unable to satisfy any judgment against it. Petitioners presented no significant contrary evidence. [1] The trial court confirmed the settlement, relying largely, if not exclusively, on the financial condition of Pieri-Debbas. In the course of the hearing, counsel for Dale Village explained his understanding that the separate prove-up hearing would set the damages as to each individual subcontractor to the extent liability was based on their obligation to indemnify Pieri-Debbas. The trial court agreed that the subcontractors would be "stuck with the number ... that's going to be the subject of a default prove-up case." It summarily denied the subcontractors' request to participate in the prove-up hearing. DISCUSSION Petitioning subcontractors argue the trial court erred in determining that the settlement between Dale Village and Pieri-Debbas was in good faith. They also assert the court should have valued the assignment of rights received by Dale Village for the purpose of later setoff. Finally, they claim they cannot be bound by the apportionment of damages arrived at in a prove-up hearing in which they were not able to participate. The trial court's conclusion on the good faith issue is fully supported by the record. The remaining contentions, while they raise interesting legal questions, are not ripe for review because no subcontractor has been found liable as an indemnitor or is subject to a judgment as to which a setoff would be applicable. Good Faith Determination (1) Petitioners point to a series of factors they say demonstrate the settlement was not in good faith. Some factors are simply not relevant to the *208 good faith determination. Others, while certainly relevant, do not overcome the trial court's pragmatic conclusion that Pieri-Debbas has no assets with which to respond to a judgment for damages. Petitioners argue and Dale Village readily concedes that defendants' potential exposure in the case exceeds $10 million. Although they may disagree as to amount, both sides agree that the proportionate liability of Pieri-Debbas exceeds the value of the settlement. Under other circumstances this might suggest the settlement was not entered into in good faith. (See, e.g., City of Grand Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251 , 1262 [ 238 Cal. Rptr. 119 ].) As the Supreme Court explained in the seminal case of Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal. 3d 488 [ 213 Cal. Rptr. 256 , 698 P.2d 159 ], however, strict proportionate liability is not the sine qua non of a good faith settlement. Other relevant considerations identified by the Supreme Court include "the financial conditions... of settling defendants...." ( Id. at p. 499.) The court quoted from an earlier Court of Appeal decision which noted, "`[A] disproportionately low settlement figure is often reasonable in the case of a relatively insolvent, and uninsured, or underinsured, joint tortfeasor.'" ( Ibid., citing Stambaugh v. Superior Court (1976) 62 Cal. App. 3d 231 , 238 [ 132 Cal. Rptr. 843 ].) Here, the controlling shareholders of Pieri-Debbas's two corporate general partners submitted declarations indicating that the joint venture's only asset had encumbrances exceeding its value. The only contrary suggestion by petitioners relied on documentation which was out of date and, in any event, de minimus. Petitioners do not assert that they sought and were denied adequate discovery on the issue of Pieri-Debbas's financial condition. (See, e.g., Rankin v. Curtis (1986) 183 Cal. App. 3d 939 , 947-948 [ 228 Cal. Rptr. 753 ].) Petitioners also contend the settlement was not in good faith because Dale Village failed to show that James Pieri and Nicholas Debbas were without personal assets which could be tapped to satisfy an adverse judgment. Petitioners' argument is crafted as though Pieri and Debbas are general partners. As we have explained, however, they are merely the shareholders of two corporate general partners, T-Bear and Debbas Construction. The declarations by Pieri and Debbas indicate that their corporations' only assets are their respective interests in Pieri-Debbas. Petitioners presented no evidence which might justify "piercing the corporate veil" to reach the personal assets of Pieri or Debbas. Accordingly, the personal wealth of Pieri or Debbas is simply irrelevant to the good faith issue. The evidence before the trial court showed that Pieri-Debbas was the proverbial turnip from which little if any blood was forthcoming in the event *209 of an adverse judgment. Under the Tech-Bilt standards, a settlement which recouped anything of value could be properly found to be in good faith. Value of the Assigned Rights (2) Petitioners argue the trial court erred in failing to value the contractual indemnity rights which Pieri-Debbas assigned to Dale Village as against its insurers and the subcontractors as part of the good faith determination. Valuation is necessary, they claim, in order to determine the amount of a setoff to which petitioners will be entitled in the event of an adverse judgment. In the typical case, valuation of any assigned rights is necessary to determine "whether the amount of the settlement is within the reasonable range of the settling tortfeasor's proportional share of comparative liability for the plaintiff's injuries." ( Tech-Bilt, supra , 38 Cal.3d at p. 499.) Here, however, as we have explained, the financial condition of Pieri-Debbas means that virtually any settlement would be in good faith, regardless of value. An exact calculation of the value of the assigned rights is simply unnecessary to the good faith determination. It is true that the court in Arbuthnot v. Relocation Realty Service Corp. (1991) 227 Cal. App. 3d 682 [ 278 Cal. Rptr. 135 ] suggested that the better practice would be to value all assigned rights at the time of the good faith hearing because establishing the amount of the setoffs would facilitate later full settlement of the case. ( Id. at p. 690.) While we cannot disagree with this suggestion, we also cannot ignore the fact that the amount of a potential setoff is technically irrelevant until the nonsettling defendant's liability has been established. The fact that a known setoff figure might facilitate a settlement under certain circumstances (because it reduces uncertainty) does not mean that valuation of assigned rights becomes a mandatory duty for the trial court under all circumstances. As this court explained recently in Erreca's v. Superior Court (1993) 19 Cal. App. 4th 1475 [ 24 Cal. Rptr. 2d 156 ], "[V]aluation of an assignment of rights should normally take place at the settlement stage so that the good faith of the overall settlement may be fully evaluated." ( Id. at p. 1499, italics added.) In the unique circumstances of this case, however, where valuation is unnecessary to assess good faith, we see no reason why the value of the assigned rights cannot be adequately determined once a finding of liability makes such a determination necessary. [2] *210 Binding Effect of the Damage Findings (3) From its comments at the good faith hearing we understand the trial court proposes to hold a prove-up hearing at which the gross amount of damages assessed against Pieri-Debbas will be shown. The method for arriving at this gross number is expected to be an aggregation of smaller subtotal damage figures for which individual subcontractors are alleged to be liable. We infer the trial court expects that to the extent individual subcontractors are found to be liable as contractual indemnitors, they will be bound pursuant to Civil Code section 2778, subdivision 5, by the applicable subtotal determined at the prove-up hearing. Relying on recent case law, petitioners assert they cannot be bound by the results of a prove-up hearing in which they were unable to participate. Respondents correctly argue that the trial court has made no ruling on the binding effect of any damage determination on potential indemnitors. Indeed, it could not make such a ruling until a defendant has been found liable as an indemnitor. All the court has done at this point is to rule that the subcontractors may not participate in the prove-up hearing. We do not understand anyone to argue that this decision, in and of itself, is erroneous. Nonetheless, the large number of potential indemnitors makes it highly likely that this issue will arise during the course of trial court proceedings in this case. At oral argument all counsel candidly admitted that appellate guidance in this area would be most welcome. Indeed, following oral argument the parties took the unusual step of attempting to file a stipulation that the issue is ripe for review. When resolving appeals on a single dispositive issue we routinely advise the trial court on legal questions which will likely arise on retrial. By analogy here in this unusual writ proceeding, while we need not grant a petition for writ of mandate, we think it appropriate to offer the following comments. The parties here are most concerned about the binding effect that an item-by-item damage calculation will have on parties later determined to be indemnitors, i.e., insurers of Pieri-Debbas and various subcontractors whose contracts included indemnity agreements. This question turns on the interpretation of Civil Code section 2778, subdivision 5, which provides: "If, after request, the person indemnifying neglects to defend the person indemnified, a recovery against the latter suffered by him in good faith, is conclusive in his favor against the former." *211 Dale Village argues that the legislative purpose in enacting subdivision 5 of section 2778 was to penalize the indemnitor who wrongfully refuses to honor its contractual obligation. We agree to a point. As long as the indemnitee presents a defense, certainly the balking indemnitor should not be heard to complain that a better defense lawyer with greater resources using different tactics the sorts of thing the indemnitor could have controlled had it accepted the defense would have achieved a better result. (See Xebec Development Partners, Ltd. v. National Union Fire Ins. Co. (1993) 12 Cal. App. 4th 501 , 539 [ 15 Cal. Rptr. 2d 726 ].) More, however, (or perhaps less) is involved here. In effect, Pieri-Debbas has provided no defense. Because Dale Village gave Pieri-Debbas a covenant not to execute, Pieri-Debbas had little incentive to contest liability and no incentive to challenge the amount of damages. The prove-up hearing contemplated by the trial court means there is some ceiling on the amount of damages, but the lack of an adversary to parry Dale Village's thrusts means the ceiling is palatial. Moreover, to the extent there is any discretion in allocating the items of damage among the various subcontractors, Dale Village will have every incentive to shift damages toward those subcontractors with a greater ability to pay and Pieri-Debbas will have little if any incentive to object. (See Peter Culley & Associates v. Superior Court (1992) 10 Cal. App. 4th 1484 , 1498 [ 13 Cal. Rptr. 2d 624 ].) We read Civil Code section 2778, subdivision 5 as being more than an undifferentiated penalty statute. Certainly, an indemnitor should not be permitted to relitigate a fair number fairly arrived at. In defining a "fair" result, however, the statute contemplates something more than a plaintiff's unbridled wish list. Only a "recovery against the [indemnitee] suffered by him in good faith" will suffice. Whatever the meaning of "good faith" in this context, it seems clear to us that an indemnitee does not "suffer" a "recovery" where it stipulates to liability in exchange for a convenant not to execute. As the court explained in Smith v. State Farm Mut. Auto. Ins. Co. (1992) 5 Cal. App. 4th 1104 [ 7 Cal. Rptr. 2d 131 ], "[T]he statute plainly refers to the sort of recovery that will trigger a duty to indemnify, that is, a recovery imposing liability. The covenant not to execute shields the insured from such liability." ( Id. at p. 1114; see also Xebec Development, supra , 12 Cal. App.4th at p. 537-538.) Another court has recently concluded that no "recovery" is "suffered" unless it is obtained by a judgment "after trial." (See Peter Culley & Associates v. Superior Court, supra , 10 Cal. App.4th at pp. 1495-1496.) Applying either of these principles here, the stipulation to liability by Pieri-Debbas with a prove-up of damages and a covenant not to execute does not constitute a "recovery ... suffered" by Pieri-Debbas within the meaning of section 2778, subdivision 5. Dale Village argues that a line of earlier cases, including cases from the California Supreme Court, adopts a much broader view of the circumstances *212 in which a determination of damages will be binding on an indemnitor. (See Samson v. Transamerica Ins. Co. (1981) 30 Cal. 3d 220 , 239 [ 178 Cal. Rptr. 343 , 636 P.2d 32 ]; Clemmer v. Hartford Insurance Co. (1978) 22 Cal. 3d 865 , 884-886 [ 151 Cal. Rptr. 285 , 587 P.2d 1098 ]; Bonfils v. Pacific Auto. Ins. Co. (1958) 165 Cal. App. 2d 152 , 160-163 [ 331 P.2d 766 ].) Although both Samson and Clemmer held that an insurer which failed to defend an insured was bound by the damage determination in the action it failed to defend, neither case mentions Civil Code section 2778 or purports to interpret subdivision 5 of that statute. It is fundamental that a case is not authority for a proposition not considered and decided. (See, e.g., In re Tartar (1959) 52 Cal. 2d 250 , 258 [ 339 P.2d 553 ].) Although Bonfils does cite Civil Code section 2778, subdivision 5 (see 165 Cal. App.2d at p. 160), it discusses the statute only generally and does not attempt to interpret the "recovery ... suffered ... in good faith" language which forms the basis for the courts' conclusions in Smith and Peter Culley. In any event, Bonfils involved a default judgment and not a stipulation to liability with a covenant not to execute. Frankly we are sympathetic to Dale Village's claim that some sort of "hammer" is needed to encourage indemnitors to honor their contractual responsibilities. It must be remembered, however, that even if the indemnitor is not bound by the amount of damages arrived at as part of a settlement, that amount is presumptively valid and the burden shifts to the indemnitor to show that a lesser amount should be awarded. [3] (See Isaacson v. California Ins. Guarantee Assn. (1988) 44 Cal. 3d 775 , 791 [ 244 Cal. Rptr. 655 , 750 P.2d 297 ].) In addition, because of the special duties owed by insurers to insureds, an insurer which acts unreasonably in failing to defend its insured may be liable for enhanced tort damages in a bad faith cause of action. (See generally, California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal. App. 3d 1 , 54-55 [ 221 Cal. Rptr. 171 ]; see also, e.g., Brandt v. Superior Court (1985) 37 Cal. 3d 813 , 817 [ 210 Cal. Rptr. 211 , 693 P.2d 796 ] [attorney fees incurred in obtaining benefits due under the policy]; State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co. (1970) 9 Cal. App. 3d 508 , 527-528 [ 88 Cal. Rptr. 246 ] [emotional distress damages]; [4] Tibbs v. Great American Ins. Co. (9th Cir.1985) 755 F.2d 1370 , 1375 [punitive damages].) While "mere" contractual indemnitors do not assume the tort damages risk, they would be liable for the indemnitee's attorney fees if it were shown that they breached their contractual obligations. (See Arenson v. National Auto. & Cas. Ins. Co. (1957) 48 Cal. 2d 528 , 537 [ 310 P.2d 961 ].) Thus the issue is not the *213 existence of the "hammer" but rather its size. Consequently, notwithstanding our empathy with the trial court on this issue, we must defer to the Legislature for appropriate statutory amendment if it should conclude that the existing disincentives are inadequate. For the reasons we have set forth, we conclude in the circumstances of this case there is no basis for interpreting Civil Code section 2778, subdivision 5 as requiring that indemnitors be bound. DISPOSITION Petition denied. Work, J., and Froehlich, J., concurred. NOTES [1] Declarations submitted by Pieri and Debbas in support of the motion to confirm the settlement admit to the partnership's ownership of a single commercial building but assert it is encumbered well beyond its current market value. The only evidence offered by petitioners on the financial condition of Pieri-Debbas was a two-year-old investigative memo indicating that the partnership owned two parcels of undeveloped commercial property in addition to a commercial building. The total value of the two parcels was something less than $250,000 and the memo obviously cannot demonstrate that the two parcels were not sold or otherwise disposed of in the intervening two years. [2] Even where the actual valuation of the assignment may be made after the settlement, the value of the assignment must be determined as of the time of the settlement. ( Erreca's v. Superior Court, supra , 19 Cal. App.4th at p. 1498; cf. Tech-Bilt, supra , 38 Cal.3d at p. 499; but see Southern Cal. Gas Co. v. Superior Court (1986) 187 Cal. App. 3d 1030 , 1036 [ 232 Cal. Rptr. 320 ].) [3] We offer no view on whether the covenant not to execute in this case precludes even presumptive effect of the judgment. [4] State Farm holds that emotional distress damages are recoverable against an insurance company which wrongfully refuses to defend regardless of whether the action sounds in tort or contract. | opinion_html_with_citations | 3,462 | 2013-10-30 08:58:00.843444+00 | 010combined | f | f | 2,279,347 | Wiener | null | LU | f | Published | 9 | Aero-Crete, Inc. v. Superior Court | null | AERO-CRETE, INC., Et Al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; DALE VILLAGE APARTMENT COMPANY Et Al., Real Parties in Interest | null | null | <docketnumber id="b123-5">
[No. D019450.
</docketnumber><court id="A7u">
Fourth Dist., Div. One.
</court><decisiondate id="AeW">
Dec. 21, 1993.]
</decisiondate><br><parties id="b123-6">
AERO-CRETE, INC., et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; DALE VILLAGE APARTMENT COMPANY et al., Real Parties in Interest.
</parties><br><attorneys id="b125-5">
<span citation-index="1" class="star-pagination" label="205">
*205
</span>
Counsel
</attorneys><br><attorneys id="b125-6">
Gibbs, Eppsteiner & Stagg, Barry M. Vrevich, Greco & Traficante, Paul A. Traficante, Stephen A. Shapiro, Luna, Brownwood & Rice, James L. Clark, Cooksey, Howard, Martin & Toolen and Jon A. Hammerbeck for Petitioners.
</attorneys><br><attorneys id="b125-7">
No appearance for Respondent.
</attorneys><br><attorneys id="b125-8">
Bonar, Incorvaia, Glancy & Liuzzi, Joel L. Incorvaia, Anna M. Mueller, Thorsnes, Bartolotta, McGuire & Padilla, John F. McGuire, Jr., and Jeffrey F. LaFave for Real Parties in Interest.
</attorneys> | null | null | null | null | null | null | 2,166,154 | D019450 | 0 | calctapp | SA | t | California Court of Appeal | California Court of Appeal |
5,759,944 | In an action to declare the validity of a lease and for other relief, in which defendant interposed a counterclaim to declare the lease terminated, plaintiff appeals from an order of the Supreme Court, Nassau County, entered October 6, 1965, which denied its motion for findings inter alia that plaintiff and its president were not in contempt of court for failure to comply with the terms of a judgment in defendant’s favor and a subsequent contempt order of said court entered September 14, 1964 and April 6, 1965, respectively. Order affirmed, without costs. No opinion. (The judgment was affirmed [South Bay Center v. York Assoc., 22 A D 2d 1016, mot. for lv. to app. den. 15 N Y 2d 488] ; see, also, South Bay Center v. York Assoc., 25 A D 2d 759.) Beldock, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur. | opinion_xml_harvard | 145 | 2022-01-12 17:12:48.60366+00 | 020lead | t | f | 5,902,680 | null | null | U | f | Published | 0 | South Bay Center, Inc. v. York Associates Inc. | null | South Bay Center, Inc. v. York Associates, Inc. | null | null | null | null | null | null | null | null | null | 62,260,780 | null | 0 | nyappdiv | SA | t | Appellate Division of the Supreme Court of New York | Appellate Division of the Supreme Court of the State of New York |
7,534,199 | Writ denied. On the showing made, the exercise of this court’s supervisory jurisdiction is not warranted. The state’s application seeks review and reversal of a trial court ruling overruling the state’s objection to certain testimony being elicited from a defense witness in this criminal trial which is in progress. It is not ordinarily the function of an appellate court to review and pass on questions of the admissibility of evidence in an ongoing trial. This is a function of the trial court. The appellate court is seldom in as good a position as the trial court, which has monitored the entire flow of evidence in a case, to make isolated eviden-tiary rulings during a trial in progress. The appellate court will exercise its supervisory jurisdiction in such matters only in extraordinary cases where there is a clear and positive showing of manifest error and *783prejudice. Such a showing has not been made in this case. | opinion_xml_harvard | 155 | 2022-07-29 05:15:44.149582+00 | 020lead | t | f | 7,604,014 | Hall, Price, Sexton | null | U | f | Published | 0 | State v. Hardey | Hardey | STATE of Louisiana v. Janet C. HARDEY | null | null | null | null | null | null | null | null | null | 64,605,081 | No. 16,565-KW | 0 | lactapp | SA | t | Louisiana Court of Appeal | Louisiana Court of Appeal |
37,964 | United States Court of Appeals Fifth Circuit F I L E D In the April 7, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk m 04-30676 UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS BARRY C. GRIER, ALSO KNOWN AS BARRY CORNELIUS GRIER, Defendant-Appellant. Appeal from the United States District Court for the Western District of Louisiana m 3:03-CR-30031-02-RGJ Before SMITH, DENNIS, and session with intent to distribute cocaine and PRADO, Circuit Judges. marihuana in violation of 21 U.S.C. §§ 841- (a)(1) and 846. Finding no error, we affirm. JERRY E. SMITH, Circuit Judge:* I. Barry Grier appeals his conviction of pos- Grier was the passenger in a vehicle driven by Tommy Howard, heading east on Interstate 20 toward Atlanta, Georgia. Right before the * Pursuant to 5TH CIR. R. 47.5, the court has Camp Road exit in Ouachita Parish, Louisiana, determined that this opinion should not be publis- a sign warns motorists of a “narcotics check- hed and is not precedent except under the limited point” ahead, although no such checkpoint circumstances set forth in 5TH CIR. R. 47.5.4. actually existed. Howard passed the sign and promptly took the Camp Road exit. Deputy tioning of Grier and asked Howard whether Sheriff David Crane was parked at the bottom any weapons were in the vehicle. Howard of the exit and witnessed the vehicle driving immediately laughed and said no. Crane then eastbound in the westbound lane. Crane asked Grier whether there were any illegal immediately pulled over the vehicle for im- narcotics. Howard looked at the vehicle, and proper lane usage. then back at Crane with a nervous look, then laughed and said no. When Howard opened his window, Crane detected an overwhelming scent of fabric soft- Crane asked Howard whether he could ener. He asked Howard for his driver’s li- search the vehicle, and Howard consented. cense; Howard complied but avoided eye con- During the search, he discovered several bricks tact. Crane initiated a driver’s license check of cocaine hidden under the seats of the vehi- during which he questioned Howard about his cle and several bricks of marihuana in the trun- itinerary. Howard stated that he was taking k, wrapped in fabric softener sheets and plastic Grier to see Grier’s father in Atlanta and that wrap. Camp Road was a shortcut. He explained that he was Grier’s cousin, and he named their Grier moved to suppress the discovered mothers. Howard acknowledged that he was drugs on the ground that they are fruit of an driving on the wrong side of the road because illegal seizure under the Fourth Amendment. he was distracted by watching Crane in his During the hearing on the motion to suppress, rearview mirror. Crane testified that he had reasonable suspi- cion that Grier and Howard were involved in Crane proceeded to ask Grier similar ques- illegal narcotics activity based on (1) the stro- tions about their itinerary. Grier confirmed ng odor of fabric softener, which he knew to that they were headed to Atlanta to visit his be frequently used as a masking agent by drug father and that he was Howard’s cousin. He smugglers; (2) the fact that they were both gave a name for his own mother that was dif- very nervous as he approached the vehicle and ferent from the name Howard had stated, and asked him questions; (3) the inconsistent an- he could not give the name of Howard’s moth- swers about their relationship to each other; er, his claimed aunt. Crane then asked Grier and (4) the differences in their reactions when whether there were any weapons in the vehi- asked about having either weapons or drugs. cle. Grier immediately laughed and said no. The district court denied the motion to sup- Crane then asked whether any there were any press. illegal drugs. Grier glanced around the inside of the vehicle, then laughed and responded in After the hearing, but before the ruling, the negative. Grier filed a motion to supplement the hearing record with other evidence, including tran- The government concedes that although the scripts of the local police department’s radio computer check took four to five minutes, it is transmissions for the evening of the stop, and uncertain when in the course of events the dis- Crane’s testimony at his bond hearing. Al- patcher replied, and it could have been as early though he did not proffer any of these items as immediately before or during the question- for the court’s review, he argued that they ing of Grier. After determining that Howard’s would prove that the stop was pretextual. The license was valid, Crane concluded his ques- district court denied the motion. 2 II. no longer than is necessary to effect the pur- Grier argues that the evidence was the fruit pose of the stop, unless further reasonable of an illegal stop under the Fourth Amend- suspicion, supported by articulable facts, ment.1 Grier does not object to the validity of emerges.” Id. The essence of Grier’s argu- the initial traffic stop for driving in the wrong ment is that the seizure was unconstitutionally lane, but rather challenges the scope of the extended beyond the amount of time the of- valid stop. ficer needed to investigate the traffic offense without sufficient reasonable suspicion of drug As a threshold matter, we analyze vehicle trafficking. stops in accordance with of Terry v. Ohio, 392 U.S. 1 (1968),2 under which police investiga- According to the factual findings made by tory stops are reviewed in two steps: We in- the district court, the officer detected the stro- quire (1) whether the officer’s actions were ng odor of fabric softener “immediately” after justified at the inception of the stop; and Howard opened his window. The court noted (2) then whether the officer’s subsequent ac- that Howard acted nervous during his initial tions were reasonably related in scope to the questioning, avoided eye contact when asked circumstances that justified the stop. See questions, and stuttered when answering, and Brigham, 382 F.3d at 506 (citing Terry, 392 his hands were visibly shaking when he was U.S. at 19-20). Because Grier does not object asked to step out of the vehicle. Grier does to the justification for the initial stop, we focus not point to anything in the record to show on the second stage of the Terry inquiry. that these factual findings were clearly errone- ous. Although nervousness alone may not Under the second prong of the Terry in- support reasonable suspicion of drug traffick- quiry, we must determine whether the officer’s ing,3 the nervous and erratic behavior of the actions after he legitimately stopped Grier driver, combined with the overwhelming scent were “reasonably related to the circumstances of a known masking agent, did establish rea- that justified the stop, or to dispelling his reasonable suspicion developed during the stop.” Brigham, 382 F.3d at 507 . “This is be- 3 A stopped individual may be nervous for many cause a detention must be temporary and last reasons, and although it might be because the individual is trafficking drugs, the nervousness could equally be caused by the fact that the defen- 1 dant is nervous about ha ving committed a wide In reviewing a ruling on a motion to suppress, we review factual findings for clear error and ques- variety of other crimes, including the very traffic tions of law de novo. See United States v. offense for which he was pulled over for. In Unit- Brigham, 382 F.3d 500 , 506 n.2 (5th Cir. 2004). ed States v. Dortch, 199 F.3d 193 , 199 (5th Cir. The evidence is considered in the light most fa- 1999), we concluded that suspicious and incon- vorable to the prevailing party. See id. (citing sistent answers, nervousness, confusion as to the United States v. Orozco, 191 F.3d 578 , 581 (5th relationship of the defendant to the vehicle’s owner Cir. 1999)). and the defendant’s absence as an authorized driver on the renal contract “gave rise only to a reason- 2 See United States v. Brigham, 382 F.3d 500 , able suspicion that the car might have been stolen” 506 (5th Cir. 2004) (citing Berkemer v. McCarty, and none of these factors established “reasonable 468 U.S. 420 , 439 (1984); Pennsylvania v. or articulable suspicion that [the defendant] was Mimms, 434 U.S. 106 , 109 (1977)). trafficking in drugs.” 3 sonable suspicion for drug trafficking, so cause to believe that he has committed a traffic Crane had the authority to continue the inves- violation, irrespective of the officer’s subjec- tigation even after the initial investigation for tive motivation for the stop.6 the traffic offense had concluded.4 AFFIRMED. III. Grier contends that the district court erred in denying his motion to supplement the sup- pression hearing record. We review this ruling for abuse of discretion.5 Grier argues that the court erred in refusing to supplement the rec- ord with evidence that would indicate that the initial traffic stop was pretextual. The court did not abuse its discretion in refusing to supplement the record for this purpose, be- cause it is well established that an officer may permissibly stop a driver if there is probable 4 The government argues that other facts in the record support the district court’s conclusion that reasonable suspicion existed for drug trafficking, including the inconsistent answers given by both men about their common relatives, and the differ- ences in their reactions between Crane’s questions about whether they had any firearms or narcotics. Although these might support the district court’s finding that reasonable suspicion existed in this case, we do not consider them, because the gov- ernment concedes that these questions might have been asked after the computer check came back clean. Because the strong odor of fabric softener, combined with the nervousness, gave rise to a rea- sonable suspicion of drug trafficking, and because the district court did not commit clear error in its determination that these facts were available to Crane before the conclusion of his investigation of 6 the initial reason for the traffic stop, we do not See Whren v. United States, 517 U.S. 806 need to determine whether the inconsistent and (1996) (holding that an initial stop is valid if there suspicious answers were given before or after the is an objective reason for the stop regardless of permissible length of the initial stop. subjective motivations); United States v. Castro, 166 F.3d 728 , 734 (5th Cir. 1999) (en banc) (“It is 5 Cf. United States v. George, 201 F.3d 370 , well settled that the reasonableness inquiry under 372 (5th Cir. 2000) (stating that the standard of re- the Fourth Amendment is an objective one, wholly view for a district court’s ruling on admissibility of divorced from the subjective beliefs of police of- evidence at trial is for abuse of discretion). ficers.”) 4 | opinion_html_with_citations | 1,807 | 2010-04-25 20:01:09+00 | 010combined | f | f | 37,964 | Dennis, Prado, Smith | null | CU | t | Unpublished | 0 | United States v. Grier | Grier | UNITED STATES of America, Plaintiff-Appellee, v. Barry C. GRIER, Also Known as Barry Cornelius Grier, Defendant-Appellant | null | null | <parties id="b744-7">
UNITED STATES of America, Plaintiff-Appellee, v. Barry C. GRIER, Also Known as Barry Cornelius Grier, Defendant-Appellant.
</parties><br><docketnumber id="b744-9">
No. 04-30676.
</docketnumber><br><court id="b744-10">
United States Court of Appeals, Fifth Circuit.
</court><br><decisiondate id="b744-12">
Decided April 7, 2005.
</decisiondate><br><attorneys id="b744-20">
Josette Louise Cassiere, Donald E. Hathaway, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office Western District of Louisiana, Shreveport, LA for Plaintiff-Appellee.
</attorneys><br><attorneys id="b744-21">
Walter M. Caldwell, IV, West Monroe, LA for Defendant-Appellant.
</attorneys><br><judges id="b744-23">
Before SMITH, DENNIS, and PRADO, Circuit Judges.
</judges> | null | null | null | null | null | null | 1,316,544 | 04-30676 | 0 | ca5 | F | t | Fifth Circuit | Court of Appeals for the Fifth Circuit |
Subsets and Splits