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2,631,526 | 249 P.3d 623 (2010) 170 Wash.2d 1024 STATE v. McENROE. No. 84693-6. Supreme Court of Washington, Department II. October 6, 2010. Disposition of Petition for Review Denied. | opinion_html_with_citations | 27 | 2013-11-01 21:01:06.160848+00 | 010combined | f | f | 2,631,526 | null | null | L | f | Published | 0 | State v. McENROE | McENROE | null | null | null | null | null | null | null | null | null | null | 2,504,163 | 84693-6 | 0 | wash | S | t | Washington Supreme Court | Washington Supreme Court |
3,246,702 | On Rehearing. It has been pointed out in several cases that the term sometimes employed in connection with an incontestable clause, that it is a short statute of limitations, is not intended in the sense in which such a statute fixes the time after which a suit is barred. But as said in one case, the sole question in respect to such a clause is, "Does the stipulation of the policy in question preclude appellant from making the defense set up in the answer? * * * It is incontestability of the policy, and not the limitation, that bars the defense. The parties * * * did not substitute a shorter period of limitation for that provided by the statute. The stipulation has no reference to limitation, but to a waiver by the insurer of the right of defense on the ground of fraud that may have been practiced by the insured in obtaining the policy, in consideration of the latter's making payment of premiums as required by the policy; the time for the policy to become incontestable being fixed * * * to give the insurer time to satisfy itself that no fraud was committed by the insured." Citizens' Life Ins. Co. v. McClure, 138 Ky. 147 , 127 S.W. 749 , 27 L.R.A. (N.S.) 1026, quoted in Metropolitan Life Ins. Co. v. Peeler, 71 Okl. 238 , 176 P. 939 , 943 , 6 A.L.R. 441 , 447, 448. Other cases hold that an incontestable clause after a certain date is not of the character of a limitation by agreement upon the time in which a suit may be begun contrary to statute prohibiting agreements shortening the statute of limitations. Priest v. Kansas City Life Ins. Co., 119 Kan. 23 , 237 P. 938 , 941 , 41 A.L.R. 1100 ; Humpston v. State Mut. Life Assur. Co., 148 Tenn. 439 , 256 S.W. 438 , 445 , 31 A.L.R. 78 . Quoting from Priest v. Kansas City Life Ins. Co., supra , "It is competent for the insurance company to agree that its liability on the policy shall be absolute from the beginning, notwithstanding any intentionally false statements that may have been made in the application. An agreement that the policy shall be incontestable after a certain time is substantially the same thing, with a condition or qualification incorporated allowing time for fuller investigation and inquiry." Our cases treat such a clause as "not an assurance against crime but an assurance against the hazard of litigation." United Order of G. Cross v. Overton, 203 Ala. 335 , 83 So. 59 , 13 A.L.R. 672 ; Supreme Lodge, etc., v. Overton, 203 Ala. 193 , 82 So. 443 , 16 A.L.R. 649 ; Mutual Life Ins. Co. v. Lovejoy, 201 Ala. 337 , 87 So. 299 , L.R.A. 1918D, 860; Independent Life Ins. Co. v. Carroll, 222 Ala. 34 , 130 So. 402 . We cannot agree with the contention that an incontestable clause, such as we are considering, violates section 8951, Code, which prohibits an agreement to shorten the statute of limitations. Our attention is called to paragraph four of the bill, which alleges that the application for insurance was attached to, and made a part of, the policy, and contained the statement and agreement that if the answers to inquiries set out in it were false, with the intent to deceive and materially affect the risk, it *Page 229 would bar the right to recover under the contract of insurance. The original bill and the amendment allege that a copy of the policy is attached, but this is not in fact done, nor does it otherwise appear. The amendment alleges that the policy contains a clause which is copied in the original opinion. It therefore appears that there is confusion or inconsistency in the allegation as to whether the policy reserves the right to contest or cancel for fraud. The original bill alleges that the policy contains a clause whereby it is incontestable and noncancellable after a year from date of issuance, except for nonpayment of premiums. The amendment strikes out that allegation and avers that the policy makes it noncancellable from date of issuance, etc. We must construe the bill most strongly against the complainant on demurrer. So construed, and without an allegation that the noncancellable clause is modified by the terms of the application, or otherwise, so as to reserve fraud as a cause for cancellation, we think that we correctly construed the policy as pleaded in the bill. But on account of the apparent confusion and the absence of a copy of the policy as a part of the bill, which might clear this confusion, our judgment now is that complainant should not be entirely cut off from presenting its case in its true aspect; that is, to plead the contract of insurance in its entire effect, including the application, if it is a part of the contract, so as to make clear its terms. For that purpose we think that feature of the decree of the circuit court which dismisses the bill should be reversed, but affirmed to the extent that the demurrers were sustained for the reasons assigned in our opinion. The application for rehearing is therefore granted, and the decree of the circuit court is affirmed to the extent that the demurrers were sustained, and reversed to the extent that the bill was dismissed, and remanded for further proceedings. Affirmed in part, reversed in part, and remanded. ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur. | opinion_html_with_citations | 926 | 2016-07-05 16:18:43.339689+00 | 050addendum | f | f | 3,245,101 | Anderson, Botjldin, Bouldin, Foster, Gardner | null | ZU | f | Published | 16 | Pacific Mut. Life Ins. Co. v. Strange | Strange | Pacific Mut. Life Ins. Co. v. Strange. | null | null | <citation id="b240-7">
(135 So. 477)
</citation><br><parties id="b240-8">
PACIFIC MUT. LIFE INS. CO. v. STRANGE.
</parties><docketnumber id="Ag8">
6 Div. 813.
</docketnumber><br><court id="b240-9">
Supreme Court of Alabama.
</court><br><decisiondate id="b240-10">
May 21, 1931.
</decisiondate><br><otherdate id="b240-11">
Rehearing Granted June 18, 1931.
</otherdate><br><attorneys id="b240-30">
London, Yancey & Brower and Jim C. Smith, all of Birmingham, for appellant.
</attorneys><br><attorneys id="b241-5">
<span citation-index="1" class="star-pagination" label="227">
*227
</span>
Harsh
<em>
&
</em>
Harsh, of Birmingham, for appellee.
</attorneys> | null | Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge. | null | null | null | null | 3,117,222 | 6 Div. 813. | 0 | ala | S | t | Supreme Court of Alabama | Supreme Court of Alabama |
8,928,102 | *828C. A. 2d Cir. Certiorari denied. | opinion_xml_harvard | 6 | 2022-11-27 06:53:49.606158+00 | 020lead | t | f | 8,937,725 | null | null | U | f | Published | 0 | Irving Trust Co. v. United States | null | Irving Trust Co., Executors v. United States | null | null | null | null | null | null | null | null | null | 66,203,938 | No. 138 | 0 | scotus | F | t | Supreme Court | Supreme Court of the United States |
3,800,220 | STATEMENT OF FACTS. The plaintiffs in error are non-residents of the Territory of Oklahoma and owners of large herds of cattle that were kept and grazed, during a portion of the year 1895, in parts of the Osage Indian reservation in this territory. The defendants in error are the board of county commissioners, treasurer and sheriff of Kay county, Oklahoma Territory. *Page 4 On the third Monday in February, 1894, the supreme court of the Territory of Oklahoma, by an order entered on the journals of said court, attached to said county of Kay, for judicial purposes, all the Kaw or Kansas Indian reservation and all of the Osage Indian reservation, north of the township line dividing townships 25 and 26, north. All of said reservations, so attached to said Kay county, for judicial purposes, by such order, are without the boundaries of said Kay county, as established by the secretary of the interior, and are not within the boundaries of any organized county of this territory. Said territory, so attached to said county of Kay, for judicial purposes, is comprised wholly of lands owned and occupied by Indian tribes and consists, principally, of wild, unimproved and unallotted lands, used for grazing purposes; that plaintiffs in error, during the year 1895, and during the month of April of said year, drove, transported and shipped to the ranges and pastures in that part of said Osage Indian reservation, attached to said Kay county, for judicial purposes, as aforesaid, large herds and numbers of cattle, which were taken on to said reservation in pursuance of and by virtue and authority of certain leases to plaintiffs in error, for grazing purposes, made by the Osage tribal government under the supervision of the agent in charge of said tribe, and upon the ratification and approval of the commissioner of Indian affairs and of the secretary of the interior. And said cattle of said plaintiffs in error were, on the first day of May, kept and grazed on that part of said Indian reservation attached to said Kay county, for judicial purposes, as aforesaid. By an act approved March 5, 1895 the legislative assembly of the Territory of Oklahoma amended § 13, art. 2, ch. 7 of the Oklahoma Statutes, relating to revenue, *Page 5 so that the same reads as follows: "That when any cattle are kept or grazed or any other personal property is situated in any unorganized country, district or reservation of this territory, such property shall be subject to taxation in the organized county to which said country, district or reservation is attached for judicial purposes," and authorized the board of county commissioners of the organized county or counties to which such unorganized country, district or reservation is attached, to appoint a special assessor each year, whose duty it should be to assess such property, and conferred upon such special assessor all the powers and required him to perform all the duties of a township assessor. The assessor so provided for was required to begin and perform his duties between the first day of April and the twenty-fifth day of May of each year, and to complete his duties and return his tax lists on or before June 1, and the property therein authorized to be assessed, it was provided, should be valued as of May 1, each year. In pursuance of the provisions of said act the county commissioners of said Kay county did duly appoint a special assessor for the year 1895, to assess such cattle as were kept and grazed, and any other personal property situated in the unorganized country and parts of Indian reservations attached to said Kay county for judicial purposes, and said special assessor did, by virtue of said appointment, assess all the personal property in the territory so attached to the county of Kay for judicial purposes, including all of the cattle of the said plaintiffs in error kept and grazed in said reservation on the first day of May, 1895. The said special assessor assessed the property of these plaintiffs in error so located on said territory attached to said county of Kay for judicial purposes *Page 6 as aforesaid, and returned the same upon an assessment roll at the total valuation of $760,469; that thereafter the said sum was, by the clerk of said county, carried into the aggregate assessment for said county, and by him certified to the auditor of the territory; that the territorial board of equalization, in acting upon the various assessments of the various counties, as certified to said board, raised the aggregate valuation of the property returned for taxation upon the tax rolls of said county of Kay, 35 per cent, and the county clerk for said county carried out the raised valuation so certified to him by said territorial board of equalization against the property of these plaintiffs in error, and made the aggregate valuation of such property $1,026,634. Thereafter the territorial board of equalization levied and duly certified to the county clerk of the county of Kay tax levies, for territorial purposes for the year 1895, as follows: General revenue, three mills on the dollar. University fund, one-half mill on the dollar. Normal school fund, one-half mill on the dollar. Bond interest fund, one-half mill on the dollar. Board of education fund, one-half mill on the dollar. That the board of county commissioners for the county of Kay made the following levies for the year 1895: For salaries, five mills on the dollar. For contingent expenses, three mills on the dollar. For sinking fund, one and one-half mills on the dollar. For court expenses, two and one-half mills on the dollar. For county supplies, three mills on the dollar. For road and bridge fund, two mills on the dollar. For poor fund of said county, one mill on the dollar. For county school fund of said county, one mill on the dollar. *Page 7 The county clerk of said county of Kay carried the valuation of the property of these plaintiffs in error upon the tax rolls of said county and against the same extended the levies as aforesaid and charged against the property of these plaintiffs in error in the aggregate the sum of $26,174.16. Before these taxes became delinquent, plaintiffs in error began to remove or attempted to remove their respective property from the territory attached to Kay county for judicial purposes, and beyond the limits of Oklahoma Territory. The treasurer of said Kay county issued tax warrants for the several amounts of taxes levied against the property of each of said plaintiffs in error and delivered the same to the sheriff of said county for execution. Said sheriff seized certain property of each of plaintiffs in error by virtue of such tax warrants. The plaintiffs in error filed their several petitions in the district court of Kay county and on application obtained injunctions, restraining the defendants in error from making any further attempt to collect such taxes. Afterwards, on motion, the several actions were consolidated into one. To the petition, filed in such consolidated action, the defendants in error filed a general demurrer. At the hearing the district court sustained the demurrer in part and overruled it in part, holding that all of the levies made for territorial purposes and the county levy for court expenses, were valid; and as to those levies, the injunction was dissolved, and as to all of the other county levies, such injunctions were made perpetual. From that part of the order and judgment of the court dissolving the injunction as to the territorial taxes and the one county fund levy, plaintiffs appealed. From that part perpetuating the injunction as to all of the county levies, *Page 8 except that for court expenses, the defendants appealed, and filed their cross-petition in error, and the case is thus here for review. The opinion of the court was delivered by The questions involved are of great public and private interest and have received from us that very careful consideration and attention which their importance demands. By § 6 of the Organic Act of the territory, it is provided: "That the legislative power of the territory shall extend to all rightful subjects of legislation, not inconsistent with the constitution and laws of the United States, but no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed on the property of the United States nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents, nor shall any law be passed impairing the right to private property, nor shall any unequal discrimination be made in taxing different kinds of property, but all property subject to taxation shall be taxed in proportion to its value." * * A broader grant of legislative power than that contained in this section could hardly be conceived of. This Organic Act of the territory defined its boundaries, created a government which comprised a legislative department, vested with power of legislating upon all rightful subjects of legislation and co-extensive with the exterior boundaries of the territory. The taxing power *Page 9 is a part of the legislative power of government and taxation is a rightful subject of legislation. Taxes are the enforced contributions upon persons or property levied by the government by virtue of its sovereignty for the support of government and for public needs. The citizen pays from his property the portion demanded in order that by means thereof he may be secured in the enjoyment of the benefits of organized society. The power is unlimited in its reach as to subjects; in its very nature, it acknowledges no limit; it is sometimes said that in its exercise it may become a power to confiscate or destroy, but this must be thus qualified, that under our system of constitutional governments it differs from the forced contributions, loans and benevolences of arbitrary and tyrannical governments. It is not an arbitrary power, nor can it be exercised capriciously. It is hedged about and restricted by wise constitutional limitations and fixed general rules. These constitutional limitations and general rules are designed to secure a just apportionment of the burdens of government by requiring uniformity of contributions, levied by fixed general rule, and apportioned by the law according to some uniform measure of equality. Within these rules and limitations the authority and power of the legislative department is absolute and conclusive. The ends sought to be reached by these general and fundamental rules and constitutional restrictions upon upon the powers of taxation are equality, uniformity and justice in apportioning the burdens of government; but as the idea of exact equality, uniformity and justice under any system of human laws being attainable is Utopian, it is not expected that such exactness can be attained in the *Page 10 exercise of the powers of taxation. Notwithstanding such fixed general rules and limitations, the discretion of the legislature is very broad and its exercise may work injustice and oppression. If such discretionary power be threatened with abuse, security must be found in the responsibility of the legislature that imposes the tax to the constituency that elected them. The judicial cannot prescribe to the legislative department of the government limitations upon the exercise of its acknowledged powers. The power to tax may be exercised oppressively upon persons or with regard to property, but if it do not clearly violate some established rule of limitation, the responsibility of the legislature is not to the courts but to the people by whom its members are elected. The courts can only interfere when the conclusion is unavoidable, that the legislature has transcended its powers or clearly violated some constitutional or other fixed general ruling defining or limiting such power. ( Veazie Bank v. Fenno, 8 Wall. 548 ; Weston v. Charleston, 2 Peters, 449 -466; Lane County v. Oregon, 7 Wall. 71 ; Tallman v. Butler, 12 Iowa, 531 .) Our inquiry then is, did the legislature, by the act of 1895, under authority of which the taxes in controversy were assessed and levied, transcend its powers, and is such act a violation of any constitutional or other fixed general rule controlling the discretion of the legislature? The only limitation or restriction upon the taxing power of the legislature, which I find in the Organic Act for the territory is that contained in § 6 of said act, which is as follows: "No tax shall be imposed on the property of the United States, nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents, nor shall any law be passed impairing *Page 11 the right to private property, nor shall any unequal discrimination be made in taxing different kinds of property, but all property subject to taxation shall be taxed in proportion to its value." And the following provision in § 1 of said act. "Provided, that nothing in this act shall be construed to impair any right now pertaining to any Indians or Indian tribe in said territory under the laws, agreements and treaties of the United States, or to impair the rights of person or property pertaining to said Indians, or to affect the authority of the government of the United States to make any regulation or to make any law respecting said Indians, their lands, property or other rights which it would have been competent to make or enact if this act had not been passed." If, therefore, there be any restriction or limitation upon the power of the legislature to tax the property of plaintiffs or which makes such taxation invalid, it must be found in these provisions of the Organic Act or in the constitution, treaties or legislation of the United States, or some general rule inherent in our system of government. It is not contended that the act under which these taxes are sought to be imposed is obnoxious to any provision of the Federal constitution, but it is contended by plaintiffs that the legislature has no jurisdiction to enact laws, especially tax laws, and put the same in force in these Indian reservations. The argument being that although these reservations are within the exterior boundaries of Oklahoma Territory, yet they comprise no part of the territory for territorial governmental purposes, but are exclusively under the jurisdiction of the United States, and that the legislative power of the territory does not extend over them. It is conceded by counsel for plaintiffs that the treaty under which the Osage Indians were settled on these lands contained no *Page 12 provision or stipulation by which said Indian tribe or the lands occupied by them were not, without their consent, to be included within the limits or jurisdiction of any state or territory that might thereafter be created and which should include such reservation within its exterior boundaries. That there was at the time the Organic Act, creating the Territory of Oklahoma, was passed, and at the time the act of 1895, authorizing the taxation in controversy was enacted, and at the time these taxes were assessed and levied, no treaty with the Osage Indian tribe that the lands or any part thereof, within this reservation, should be thus excluded from the limits and jurisdiction of any state or territory. I think there is no proposition better settled by authorities than that, in the absence of such treaty stipulation, the authority of the territory may rightfully extend over such reservation in all matters of rightful legislation, not interfering with the persons and property of the Indians within such reservation, under the protection of the laws and authority of the United States; and that as to all matters and subjects of rightful legislation, not interfering with that protection, and not otherwise repugnant to the constitution and laws of the United States, the legislative power of the territory is absolute. ( Utah Northern Railway v. Fisher, 116 U.S. 28 ; Langford v. Monteith, 102 U.S. 145 ; Ph œnix and Maricopa R. R. Co., v. Arizona Territory, Sup. Court of Ariz. 26 Pac. Rep. 310, Maricopa Ph œnix R. R. Co., v. Ariz. Ter . 156 U.S. 347 ; Torrey v. Baldwin, 26 Pac. Rep. 908; Gon-Shay-ee petitioner 130 U.S. 343 ; Ex parte Crow Dog 109 U.S. 556 -560; United States v. Kagama, 118 U.S. 375 ; United States v. Pridgeon, 153 U.S. 48 .) This doctrine was distinctly held by this court in Keokuk v. Ulam, 4 Okla. Rep. 5 , 38 Pac. Rep. 1083. *Page 13 The contention of plaintiffs upon this proposition would seem to be based upon reasonings and authorities which are not applicable. Their contention seems to be that these reservations are to be considered as exclusively under the jurisdiction of the United States, the same as lands purchased by the United States within the boundaries of states, and with the consent of said states for the purposes of forts, arsenals, magazines, navy yards, dock yards, etc. If this contention were correct, then it would be supported by all the authorities and would prevail, for I concede it to be uncontroverted that property situated wholly within boundaries exclusively within the jurisdiction of the United States, cannot be taxed by the state or territory within which it may be situated; but these reservations are not within boundaries exclusively within the jurisdiction of the United States, for the reason that congress in § 6 of the Organic Act of this territory delegated to the government of the territory legislative power extending to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States within the exterior boundaries of the territory created by that act, which includes the reservation which is the locus of this controversy; that the jurisdiction conferred upon the territory is not exclusive; that congress has reserved to itself jurisdiction over the persons and lands of the Indians occupying the reservation, does not diminish or restrict the authority of the territory to legislate concerning the persons and property of citizens of the United States therein. It was the duty of the territorial legislature to apportion the burdens of government upon all property within the territory not withdrawn from its jurisdiction by the Organic Act or other laws of the United States or not otherwise exempted from such *Page 14 burden by law. The property of the plaintiff comprised a part of the mass of property within the territory which was receiving the protection of its laws and which might lawfully be and should justly be subjected to taxation. And the right to subject such property to taxation, under the conditions and the situation in which plaintiff's property was, has not been denied by any court, but has been upheld in numerous instances. ( Utah Northern Ry. v. Fisher, 116 U.S. 28 ; Torrey v. Baldwin, 26 Pac. Rep. 908; Ph œnix Maricopa R. R. Co. v. Ter. Ariz . 26 Pac. Rep. 310; Ferris v. Vennier, 6 Dak. — 42 N.W. Rep. 34 ; Marico Ph œnix R. R. Co. v. Ariz. Ter . 156 U.S. 347 .) In Torrey v. Baldwin, 26 Pac. Rep. 908, supra, the supreme court of Wyoming held that the treaty of July 3, 1868, with the Shoshones, pursuant to which their reservation was established, contained no reservation or exception whereby it should be excluded and excepted out of the territory within which it was situated, and that the reservation was included within the territory, and that cattle thereon belonging to a white person, in no wise connected with the Indians, were subject to taxation in the county within which the reservation lay. In Phoenix and Maricopa Railroad company v. Arizona Territory, supra, the supreme court of Arizona held that in the absence of treaty or other express exclusions the different Indian reservations became a part of the territory where situate, and subject to territorial legislative jurisdiction, subject, however, to the powers of the general government to make regulations respecting the Indians, their property, etc., and that a railroad built across an Indian reservation in the territory is subject to taxation by the territory where there *Page 15 are no treaty stipulations or express exclusions against the jurisdiction of the territory; and this decision was, on appeal, affirmed by the supreme court of the United States in 156 U.S. 347 , supra . In Utah Northern Railway v. Fisher, 116 U.S. 31 , Mr. Justice Field says: "The authority of the territory may rightfully extend to all matters not interfering with that protection. (Protection of Indians and their property). It has therefore been held that process of its courts may run into an Indian reservation of this kind where the subject matter or controversy is otherwise within their cognizance. If the plaintiff lawfully constructed and now operates a railroad through the reservation, it is not perceived that any just rights of the Indians under the treaty can be impaired by taxing the road and property used in operating it." A further contention of the plaintiffs is: That this reservation, under the statutes of the United States, has been leased by the Osage Nation or tribe for grazing purposes and that the taxation of cattle kept and grazed upon said reservation is a direct tax upon the right of the Indians to lease the same, and decreases to the extent of the tax the value of the Indian lands; that the act authorizing such taxation is in direct derogation of the property rights of the Indians upon such reservation and is therefore void. This proposition is without merit and certainly is unsupported by authority. The authority upon which plaintiffs rely to support this contention is the case of Pollock v. the Farmers' Loan and Trust company, 157 U.S. 429 , known as the "Income Tax" case. Counsel in their brief quote from Mr. Chief Justice Fuller, on page 555 in the report of that case, as follows: "The contention of the plaintiff is, first, that the law in qustion in imposing a tax upon the income of rents *Page 16 of real estate imposes a tax upon the real estate itself; and in imposing a tax upon the interest or income of bonds or other personal property held for the purpose of income, or ordinarily yielding income, imposes a tax upon the personal estate itself; that such tax is a direct tax and void because imposed without regard to the rule of apportionment, and that by reason thereof the whole law is invalid." It is true that that contention was sustained by a majority of a divided court in that case, but I am unable to perceive its application to the principles of the case at bar. The contention was sustained in that case, because it was held that a tax upon the income or rents of real estate imposed a tax upon the real estate itself; that it was therefore a direct tax, and that being such it was obnoxious to the provision of the constitution prohibiting the levy of direct taxes except by apportionment among the several states. It would not be seriously contended that that provision of the Federal constitution prescribed a rule operative upon any other legislative authority than the congress of the United States, or in the raising of revenue for the support of any government, other than the Federal government; but even if such contention should be made, the principle of the case cited is not broad enough to cover the proposition submitted by counsel for plaintiffs. The taxation we are considering was not assessed or levied upon the real estate or other property of the Indians occupying this reservation nor upon the income or rents of such Indians derived from such real estate or other property; this tax is not levied upon the rents which are paid to these Indians under their leases to the plaintiffs, but it is levied upon the property of the plaintiffs in which the Indians have no interest. The argument that taxation upon *Page 17 property brought into this reservation for the purpose of grazing upon Indian lands is an additional servitude that decreases the salable value of the land, and that it operates in fixing the rental value of these lands to the same extent it would, if made a tax upon the land itself, is scarcely less remote than to say that the tariffs which these cattle owners have to pay to railroad corporations for transporting their cattle out of these reservations to market is an additional servitude, that decreases the rental value of the lands of the Indians; or, that the taxation of the personal property of a tenant is an added servitude on the freehold of the landlord. I do not think the act of the legislature providing for this taxation, in any manner, impairs the property rights of the Indians occupying this reservation. Another contention of the plaintiffs is that this taxation is unconstitutional and void because it rests upon the attempt of the supreme court of the territory to fix taxing districts, which is a legislative function. The answer to this proposition is that the supreme court of the territory has not attempted to fix any taxing districts; that that court, under the powers expressly vested in it by the Organic Act of the territory, in 1894, attached this reservation and unorganized country to Kay county for judicial purposes, and not for the purposes of taxation; that the taxing districts in which these taxes were imposed and levied were created and fixed, not by the supreme court, but by the legislature, in the act of 1895; the language of the act being: "That when any cattle are kept or grazed or any other personal property is situated in any unorganized country, district or reservation of this territory, that such property shall be subject to taxation in the organized *Page 18 county to which said country, district or reservation is attached for judicial purposes." It was by this act that a taxing district was created and not by the order of the court. Another objection which plaintiffs make against the legality of this tax is, that the act attempting to authorize it only applies to personal property; that no provision is made for the taxing of real estate in such reservation; that it is a discrimination in taxing different kinds of property, and therefore in conflict with the Organic Act. This court will take judicial knowledge of the public treaties of the United States; and from such treaties the court has judicial knowledge that the title to all the lands within this Indian reservation is in the Indian tribe, or in the United States for the use of said Indian tribe. The power of taxation possessed by the territorial government not extending to the taxing of the property of the United States, or of the Indian wards of the United States, there is no taxable real estate in said reservation, and consequently the act does not discriminate as between different kinds of property subject to taxation, there not being different kinds of property subject to taxation in such reservation. The most serious contention of the plaintiffs that confronts us in this matter is, that the act under which these taxes were assessed and levied is void for the reason that it attempts to tax property situated in these Indian reservations for the benefit of the counties to which they are attached for judicial purposes, the owners and holders of property on these Indian reservations, it being claimed, having no interest in the taxes gathered by said counties, no voice in their expenditure nor benefit *Page 19 therefrom, said Indian reservations not being within the geographical boundaries of said counties; that the taxing of the owners of said property by such counties is taking the property of the persons holding said property on said reservation for the benefit of the residents of said county and is, therefore, taking private property for private uses. It is argued that plaintiffs have no interest in the purposes for which these taxes are to be expended and will derive no benefit from their expenditure; that the moneys derived from this taxation under the county levy will all be expended within the organized county of Kay; that plaintiffs are non-residents of the territory, and that neither they or their property are within said county of Kay, and therefore cannot be benefitted by the expenditure of moneys apportioned and used for the salary fund, contingent expense fund, sinking fund, court expense fund, county supplies fund, road and bridge fund, poor fund or county school fund of said county. We have been cited to or been able to find but one authority directly in point upon the proposition as presented in this case. In the case of Ferris v. Vennier, 42 N.W. Rep. 34 , the supreme court of Dakota Territory, in a case similar to this in all particulars, save that the attached territory was not an Indian reservation but was an unorganized territory, held the levy for territorial purposes to be valid and those for county purposes to be invalid. There are a number of authorities upon analogous cases, but such authorities are conflicting. The greater number of authorities presented by counsel for plaintiffs in their brief upon this proposition relate to cases of special assessments for local improvement, such as the construction of highways, streets, pavements, *Page 20 sewers, etc., where the benefits are peculiar to a limited district or locality, and this class of cases have always been held distinct in principle from that which we are considering and the right to impose such taxes has always been held to be founded upon and to be governed by different principles from those embraced in public taxation for ordinary public or governmental purposes. Bearing upon the case at bar, is the case of Wells v. The City of Weston, 22 Mo. 384 , in which the court held that, "The legislature cannot authorize a municipal corporation to tax for its own local purposes land lying beyond the corporate limits." In Cheaney v. Hooser, 9 Ben Monroe, 341, the court held that the extension of the limits of one town so as to include the adjacent lands of another town against or without the consent of the owners and subject the property and people within the added territory to the jurisdiction and taxing powers of the extended municipal government without the consent of the added population, is, in effect, taking private property for public use. In Sharpless v. Mayor of Philadelphia, 21 Penn. State, 172, the court said: "By taxation, is meant a certain mode of raising revenue for a public purpose in which the community that pays it has an interest; but to make a tax law unconstitutional on this ground, it must be apparent at the first blush that the community taxed can have no possible interest in the purpose to which their money is to be applied. And this is more especially true if it be a local tax, and if the local authorities have themselves laid the tax in pursuance of an act of the assembly." In a case in Tennessee, Taylor, McBean Co., v. William R. Chandler et al, 9 Heiskall, 349, the court *Page 21 said: "A state burden cannot be placed upon any territory less than the entire state, nor a county burden upon territory greater or smaller than the county." In the case of Washington Avenue, 69 Penn. State, 361, the learned judge delivering the opinion says: "I admit that the powers to tax is unbounded by any express limit in the constitution; that it may be exercised to the full extent of the public exigency. I concede that it differs from the power of eminent domain and has no thought of compensation by way of a return for that which is taken and applied to the public good, further than all derive benefit from the purpose to which it is applied." In Morford v. Unger, 8 Iowa, 82 , the court said: "The extension of the limits of a city or town so as to include its actual enlargement as manifested by houses and population, is to be deemed a legitimate exercise of legislative power. An indefinite or unreasonable extension, so as to embrace lands and farms that are distant from the local government, does not rest upon the same authority. And although it may be a delicate, as well as a difficult duty for the judiciary to interpose, we have no doubt but that there are limits beyond which the legislative discretion cannot go." Kelley v. The City of Pittsburg, 104 U.S. 658 , was a case wherein the city of Pittsburg, under an act of the legislature, extended the city limits so as to include the plaintiff's farm, and assessed the same as other property in the city was assessed for street tax, school tax, etc. The court, in sustaining the validity of the extension, said: "We cannot say, judicially, that Mr. Kelley received no benefit from the city organization. These streets, if they do not penetrate his farm, lead to it. The waterworks will probably reach him some day and may be near enough him now to serve on some occasions. The schools may receive his children and in this regard he *Page 22 can be in no worse condition than those living in the city having no children and who pay for the support of the schools. Every man in a county, a town, a city, a state, is deeply interested in the education of the children of the community, because his peace and quiet, his happiness and prosperity, are largely dependent upon the intelligence and moral training which it is the object of the public schools to supply to the children of his neighbors and associates, if he has none himself. The police government, the officers whose duty it is to punish and prevent crime, are paid out of the taxes. Has he no interest in their protection, because he lives farther from the court house and the police station than the others? Clearly, these are matters of detail within the legislative discretion and, therefore, of power in the lawmaking body within whose jurisdiction the parties live. This court cannot say in such cases, however great the hardships or unequal the burden, that the tax collected for such purposes, is taking the property of the taxpayers, without due process of law." I might multiply citations from conflicting authorities like these, without finding any rule to guide or definitely determine where the line can be drawn which determines, in cases like this, the limit of legislative discretion. Nearly, if not all, these cases arose to test the extent and limit of authority in subordinate agencies of the state, like municipal corporations, and not the discretion vested in the legislature of the state. No court has yet attempted to define, specifically, the benefits that a taxpayer must receive from government, in order to make valid the public taxes taken from him. True, in theory, taxation should be equal, not only in its burdens, but in its benefits, but this equality is never attained. No one questions the right of a commonwealth to tax the property of non-residents within its borders; yet, such non-residents do not stand upon a basis of equality in the benefits *Page 23 of the government that imposes the tax. They may, or may not, receive particular benefits from its courts, its schools, the improvement of its public highways, or from any of the other purposes to which its revenues are appropriated. But such benefits are never a test of the liability of their property to taxation. The plaintiffs in this case might have their herds of cattle within the limits of Kay county and receive no greater benefit in the protection of the law than they do now; yet, they would not be heard to assert that such property should not be taxed for the various county purposes to which taxation is appropriated. The counties, cities and towns of this territory are not independent or distinct governments from that of the territory. They are a part of that government; they are the instrumentalities and agencies through which the territorial government promotes the welfare of its inhabitants and through which the territory is better enabled to protect the lives and liberties of its inhabitants and the property that is within its borders, whether that of its own citizens or that of non-residents. The nearer these purposes are attained, the greater are the benefits to these plaintiffs, as well as to all others having property subject to the protection of its laws. Laws similar to this, attaching unorganized remote territory to municipal townships in the state of Michigan, were for years maintained and enforced; and though the taxes gathered from the attached territory was appropriated and expended for the purposes of the township to which it was attached, I do not find that their validity was ever directly called into question. ( Roscommon v. Midland, 39 Mich. 424 ; Township of Comins v. Township of Harrisville, 45 Mich. 442 .) *Page 24 In this last case the facts found by the court were that from the year 1869 until March, 1877, the county of Oscoda was attached to the county of Alcona for judicial and municipal purposes, and up to the last named date, the township of Harrisville, in said Alcona county, exercised municipal jurisdiction over the territory comprising the unorganized county of Oscoda. That, in 1877, the legislature organized the county of Oscoda into a township called by the act creating it, "The Township of Comins." In that year, and after the passage of said act, but before said township of Comins had been fully organized by the election of township officers, the township of Harrisville made an assessment roll embracing, with other territory, all the territory in the county of Oscoda, and the taxes thus assessed were collected by the officers of the township of Harrisville. In 1879, the township of Comins made a demand on the township board of the township of Harrisville for the payment to the township of Comins for the taxes thus collected in 1877 and suit was brought therefor. On that case, Marston, chief justice, says: "The laws of this state relating to the assessment, levy and collection of taxes, does not regard certain designated territory as a township until the proper officers necessary to conduct its affairs have been elected. The officers of the new township, not having been elected until July, there was no such perfected organization as would enable that township to assess the township and school taxes for that year. Under such circumstances, in my opinion, the township of Harrisville had a right to levy and collect the taxes in question; but whether they did or not, the present action will not lie to recover the money so collected." I can perceive no distinction, in principle, between that case and the case at bar; and, although the legality of *Page 25 the assessment and collection of the taxes imposed was not directly involved in the case, both the circuit judge, trying the case, and the chief justice express no doubt as to their legality. Not being able to point out the provision in the constitution, the Organic Act, in any statute, or general rule limiting the powers and discretion of the legislature, in imposing these taxes, from which I can say that they are unquestionably void, I am not disposed to arbitrarily invade the province of the legislative department to sit in review without other evidence than that which they possessed, and say that in this case they have abused the discretion vested in them to such a degree as to call for our interference. Under the general rules stated herein, we have no right to do this. This taxation may not be levied upon the basis of absolute equality. It may in a measure be unjust. It may impose upon the plaintiffs in this case a burden without equal compensation in benefits with others; but this, alone, will not warrant our interference. Unquestionably the plaintiffs are benefitted in some degree by the expenditure of these taxes in Kay county. The proximity to their property of a well ordered community with courts and schools open to the plaintiffs if they wish to avail themselves of them, with good roads and bridges, with provision made for the care and maintenance of the poor and indigent, with these and the other elements of civilization, order and observance of law for which money obtained by taxation is expended, it is beyond dispute that plaintiffs have a greater security in their property rights than they would have without them. These are the benefits upon which the right of taxation is based, and gives to the legislature the *Page 26 acknowledged authority to impose taxation. The authority being acknowledged, the reasonableness of or necessity for its exercise cannot be inquired into by the courts. Of such reasonableness or necessity the legislature and not the courts are to judge. The validity of these taxes is further assailed on the ground that the act of the legislature authorizing them is obnoxious to the act of congress of July 30, 1886, 24 U.S. Stat. at Large, page 170, which provides as follows: "That the legislature of the territories of the United States now or hereafter to be organized, shall not pass, local or special laws in any of the following enumerated cases, that is to say, for the assessment and collection of taxes, for territorial, county, township or road purposes." It is insisted that the act in question is local and special. I cannot perceive how this contention can be sustained. The act has none of the elements of a local or special law. It does not operate upon an individual or a number of designated individuals, or upon particularly designated property. It operates upon any individual and upon any property that may come within its general provisions. Mr. Cooley, in his work on Constitutional Limitations, page 480, says: "The authority that legislates for the state at large, must determine whether particular rules shall extend to the whole state and all its citizens or, on the other hand, to a subdivision of the state or a single class of its citizens only." Again he says, page 481: "If the laws be otherwise unobjectionable, all that can be required in these cases is that they be general in their application to the class or locality to which they apply; and they are then public in character and of their propriety and policy, the legislature must judge." *Page 27 The constitutional requirement of equal protection of the laws does not make necessary the same local regulations, municipal powers, or judicial organization or jurisdiction. ( Missouri v. Lewis, 101 U.S. 32 ; Virginia v. Rives, 100 U.S. 313 ; Ex Parte Virginia, 100 U.S. 339 ). The prohibition of special legislation for the benefit of individuals does not preclude laws for the benefit of particular classes. As for example, mechanics and other laborers. ( Davis v. State, 3 Lea, 376 ). We think the case of Daily Leader v. Cameron, 3 Okla. 677 , is decisive on this point. In that case this court says: "A statute relating to persons or things as a class, is a general law. One relating to particular persons or things of a class is special. The number of persons upon whom the law shall have any direct effect may be very few by reason of the subject to which it relates, but it must operate equally and uniformly upon all brought within the relations and circumstances for which it provides. A statute, in order to avoid a conflict with the prohibition against such special legislation, must be general in its application to the class, and all of the class within like circumstances must come within its operation." The statute in question in this case does not operate upon persons or things within a general class, but upon persons and things as a class. It operates upon all the unorganized counties, districts and reservations within the territory, and upon property generally, within such unorganized county, district or reservation, and operates uniformly upon such several counties, districts and reservations and upon the persons and things that may be brought therein, and is therefore in no sense local or special in its character. *Page 28 It is further claimed that the act of 1895 violates the principle of uniformity in providing for an assessment of cattle kept and grazed upon these Indian reservations and unorganized territory at a different time from that provided for the assessment of personal property in the organized counties. That for this reason, it unjustly discriminates against the owner of such cattle and is therefore void. I have already shown it to be a fundamental principle that the rules of taxation shall be uniform. It is of the very nature of a tax that it should be assessed according to some uniform rules, otherwise, it would be confiscation and not taxation. But this does not mean that the time and method of assessment shall be identical, but only that after the legislature has declared what classes of property shall be subject to taxation, the tax itself shall be levied upon such, or the owner thereof, according to a uniform rate of valuation. ( Nelson Lumber Co. v. Town of Loraine, Sup. Ct. Wis. 22 Fed. Rep. 54). Statutory provisions authorizing the assessment of different classes of property, at different dates, or of the same classes of property in different localities at different dates, are so common that their validity for this reason is scarcely ever called in question. The revenue law of this territory provides that real estate shall be valued for taxation on the first day of January, and that personal property in the counties shall be assessed on the first day of February of each year. Counsel for plaintiffs, in their brief, ask: "What valid reason can be suggested why the property situated on these Indian reservations should be assessed and valued on one day and the property situated in the organized counties should be assessed and valued on another day?" *Page 29 I think the answer to this question is found in the language of the supreme court of Wisconsin in Nelson Lumber Company v. Town of Loraine, supra, wherein it says: "The purpose of the law would seem to be to bring about that substantial equality in taxation which the common law, as well the constitution, requires. The legislature was aware that the logs of non-residents, as well as resident owners, were liable to be floated out of the state in the month of April, or if not run out of the state, might become mixed with the logs of other persons in the different streams in such a manner as to render it quite impracticable to take any separate account of them in the month of May when the logs of resident owners are assessed. Very often they would be beyond the jurisdiction of the taxing officer of the town, and as the owner could not be reached and had no local agent in the state, they escape taxation entirely. The law, by providing that the situation, amount and value of the logs be taken in April at the place where piled or banked, seeks to put non-resident and resident owners on the same footing." The legislature of this territory, when they enacted the law of 1895, undoubtedly took into consideration the peculiar conditions and situation of the property to be taxed in these reservations; that nearly all of the cattle that were kept on these reservations, were brought into the territory after the first of February, and would be removed before another listing of property for taxation; and unless a different date from that existing in the general law should be fixed for its assessment, such property would entirely escape taxation. The very principle of uniformity required that this distinction in dates of assessment should be made. It was not an injustice against the owners of the property, but it was to prevent injustice to the territory and to all its tax-paying citizens, by prohibiting this property from escaping its just share *Page 30 of the burdens of taxation. I think this was a very proper exercise of the discretion of the legislature and that no discrimination exists such as is inhibited by the Organic Act of the territory and the act of congress of July 30, 1886. The final proposition contained in plaintiff's brief, that relating to the action of the territorial board of equalization, in raising the aggregate valuations of property returned from the county of Kay for the year 1895, having been fully considered and determined by this court, at this term, in the case of Wallace v. Bullen, and held adversely to the contention of the plaintiff herein, fully disposes of this point. For the reasons stated, upon the various points submitted herein, I am of the opinion that the legislature was vested with full authority to extend the revenue laws of the territory over the Indian reservations and other unorganized territory within this territory; that the act of 1895 was a proper exercise of such authority; that said act does not contravene any constitutional or other established rule of taxation; that I can find nothing in this record, showing such abuse of the discretionary power of the legislature as warrants our interference; that the assessment and taxation of plaintiffs' property under said act and in the manner shown was valid. I think that it follows, therefore, that the action of the court below in overruling defendants' demurrer to plaintiffs' petition, in so far as it related to the assessment and levy of said taxes for county purposes and perpetuating the injunction against the collection of such taxes, was erroneous; and the judgment of said court enjoining the collection of said taxes should be reversed, and this cause be dismissed. *Page 31 Scott, J., and McAtee, J., concurring to the extent of holding that the tax levied for territorial and court expense funds are valid, but also hold that the balance of the levies are unauthorized, for the reason that the people on these reservations are not interested in such levies and receive no benefit from the expenditure of the moneys derived from such levies. The judgment of the district court is affirmed. Bierer, J., having presided in the court below, not sitting; Dale, C. J., dissents. | opinion_html_with_citations | 8,475 | 2016-07-06 07:43:02.97577+00 | 020lead | f | f | 4,043,266 | Bierer, Dale, Scott, Tarsney | null | ZU | f | Published | 18 | Gay v. Thomas | Gay | D. P. Gay Et Al. v. A. M. Thomas Et Al. | <p>
Error from the District Court of Kay County.
</p> <p>STATEMENT OE EACTS.</p> <p>The plaintiffs in error are non-residents of the Territory of Oklahoma and owners of large herds of cattle that were kept and grazed, during a portion of the year 1895, in parts of the Osage Indian reservation in this territory.</p> <p>The defendants in error are the board of county commissioners, treasurer and sheriff of Kay county, Oklahoma Territory.</p> <p>On the third Monday in February, 1894, the supreme court of the Territory of Oklahoma, by an order entered on the journals of said court, attached to said county of Kay, for judicial purposes, all the Kaw or Kansas Indian reservation and all of the Osage Indian reservation, north of the township line dividing townships 25 and 26, north. All of said reservations, so attached to said Kay county, for judicial purposes, by such order, are without the boundaries of said Kay county, as established by the secretary of the interior, and are not within the boundaries of any organized county of this territory. Said territory, so attached to said county of Kay, for judicial purposes, is comprised wholly of lands owned and occupied by Indian tribes and consists, principally, of wild, unimproved and unallotted lands, used for grazing purposes ; that plaintiffs in error, during the year 1895, and during the month of April of said year, drove, transported and shipped to the ranges and pastures in that part of said Osage Indian reservation, attached to said Kay county, for judicial purposes, as aforesaid, large herds and numbers of cattle, which were taken on to said reservation in pursuance of and by virtue and authority of certain leases to plaintiffs in error, for grazing purposes, made by the Osage tribal government under the supervision of the agent in charge of said tribe, and upon the ratification and approval of the commissioner of Indian affairs and of the secretary of the interior. And said cattle of said plaintiffs in error were, on the first day of May, kept and grazed on that part of said Indian reservation attached to said Kay county, for judicial purposes, as aforesaid.</p> <p>By an act approved March 5, 1895 the legislative .assembly of the Territory of Oklahoma amended § 13, art. 2, ch. 7 of the Oklahoma Statutes, relating to revenue, so that the same reads as follows: “That when any cattle are kept or grazed or any other personal property is situated in any unorganized country, district or reservation of this territory, such property shall be subject to taxation in the organized county to which said country, district or reservation is attached for judicial purposes,” and authorized the board of county commissioners of the organized county or counties to which such unorganized country, district or reservation is attached, to appoint a special assessor each year, whose duty it should be to assess such property, and conferred upon such special assessor all the powers and required him to perform all the duties of a township assessor. The assessor so provided for was required to begin and perform his duties between the first day of April and the twenty-fifth day of May of each year, and to complete his duties and return his tax lists on or before June 1, and the property therein authorized to be assessed, it was provided, should be valued as of May 1, each year.</p> <p>In pursuance of the provisions of said act the county commissioners of said Kay county did duly appoint a special assessor for the year 1895, to assess such cattle as were kept and grazed, and any other personal property situated in the unorganized country and parts of Indian reservations attached to said Kay county for judicial purposes, and said special assessor did, by virtue of said appointment, assess all the personal property in the territory so attached to the county of Kay for judicial purposes,, including all of the cattle of the said plaintiffs in error kept and grazed in said reservation on the first day of May, 1895. The said special assessor assessed the property of these plaintiffs in error so located on said territory attached to said county of Kay for judicial purposes as aforesaid, and returned the same upon an assess" ment roll at the total valuation of $760,469; that thereafter the said sum was, by the clerk of said county, carried into the aggregate assessment for said county, and by him certified to the auditor of the territory; that the territorial board of equalization, in acting upon the various assessments of the various counties, as certified to said board, raised the aggregate valuation of the property returned for taxation upon the tax rolls of said .county of Kay, 35 per cent, and ■ the county clerk for said county carried out the raised valuation so certified to him by said territorial board of equalization against the property of these plaintiffs -in error, and made the aggregate valuation of such property $1,026,634.</p> <p>Thereafter the territorial board of equalization levied and duly certified to the county clerk of the county of Kay tax levies, for territorial purposes for the year 1895, as follows:</p> <p>General revenue, three mills on the dollar.</p> <p>University fund, one-half mill on the dollar.</p> <p>Normal school fund, one-half mill on the dollar.</p> <p>Bond interest fund, one-half mill on the dollar.</p> <p>Board of education fund, one-half mill on the dollar.</p> <p>That the board of county commissioners for the county of Kay made the following levies for the year 1895:</p> <p>For salaries, five mills on the dollar.</p> <p>For contingent expenses, three mills on the dollar.</p> <p>For sinking fund, one and one-half mills on the dollar.</p> <p>For court expenses, two and one-half mills on the dollar.</p> <p>For county supplies, three mills on the dollar.</p> <p>For road and bridge fund, two mills on the dollar.</p> <p>For poor fund of said county, one mill on the dollar.</p> <p>For county school fund of said county, one mill on the dolía!.</p> <p>The county clerk of said county of Kay carried the valuation of the property of these plaintiffs in error upon the tax rolls of said county and against the same extended the levies as aforesaid and charged against the property of these plaintiffs in error in the aggregate the sum of $26,171.16.</p> <p>Before these taxes became delinquent, plaintiffs in error began to remove or attempted to remove their respective property from the territory attached to Kay county for judicial purposes, and beyond the limits of Oklahoma Territory. • The treasurer of said Kay county issued tax warrants for the several amounts of taxes levied against the property of each of said plaintiffs in error and delivered the same to the sheriff of said county for execution. Said sheriff seized certain property of each of plaintiffs in error by virtue of such tax warrants. The plaintiffs in error filed their several petitions in the district court of Kay county and on application obtained injunctions, restraining the defendants in error from making any further attempt to collect such taxes. After-wards, on motion, the several actions were consolidated into one. To the petition, filed in such consolidated action, the defendants in error filed a general demurrer. At the hearing the district court sustained the demurrer in part and overruled it in part, holding that all of the levies made for territorial purposes and the county levy for court expenses, were valid; and as to those levies, the injunction was dissolved, and as to all of the other county levies, such injunctions were made perpetual. From that part of the order and judgment of the court dissolving the injunction as to the territorial taxes and the one county fund levy, plaintiffs appealed. From that part perpetuating the injunction as to all of the county levies? except that for court expenses, the defendants appealed, and filed their cross-petition in error, and the case is thus here for review.</p> | null | <parties id="b21-15">
D. P. Gay
<em>
et al.
</em>
v. A. M. Thomas
<em>
et al.
</em>
</parties><br><headnotes id="b21-16">
1.
<em>
Taxation
</em>
— Power
<em>
of Legislature in Imposing
</em>
— Extent
<em>
of
</em>
The power of taxation is not an arbitrary power, nor can it be exercised capriciously. It i& h dged about and restricted by wise constitutional limitations and fixed general rules. These constitutional limitations and general rules are designed to secure a just apportionment of the burdens of government by requiring uniformity of contributions, levied by fixed and general rules andapportioned by the law, according to some uniform measure of equality. Within these rules and limitations the authority and power of the legislative department is absolute and conclusive.
</headnotes><br><headnotes id="b21-17">
2.
<em>
Same
</em>
— Legislative
<em>
Discretion in.
</em>
The discretion of the legislature in matters of taxation, is very broad and its exercise may work injustice and oppression. The judicial cannot prescribe to the legislative department of the government limitations upon the exercise of its acknowledged powers. The power to tax may be exercised oppressively, but if it does not clearly violate some estab
<span citation-index="1" class="star-pagination" label="2">
*2
</span>
lished rule or limitation, the responsibility of the legislature is not to the courts but to the people by whom its members are elected. The courts can only interfere when the conclusion is unavoidable that the legislature has transcended its powers or clearly violated some constitutional or other fixed general rule, defining or limiting such powers.
</headnotes><br><headnotes id="b22-4">
3.INDIAN
<em>
Reservations
</em>
— Taxahon
<em>
of Property Therein.
</em>
In the absence of any provisions or stipulations in the the treaties by which the Indians were settled on the reservations in this territory, that the lands in such reservations should not, without consent of the Indians occupying them, be included within the limits or jurisdiction of any state or territory that might, thereafter, be created and which should include such reservation within its exterior boundaries, the authority of the territory may extend over such reservation in all matters of rightful legislation, not interfering with the persons or property of the Indians underthe protection of the United States. As to all matters and subjects of rightful legislation, not interfering with that protection and not otherwise repugnant to the constitution and laws of the United States, the legislative power of the territory is as absolute in and upon these reservations, as in any other part of this territory.
</headnotes><br><headnotes id="b22-5">
<em>
4.SAME
</em>
— Taxation
<em>
of Property on.
</em>
Taxation is a rightful subject of legislation* It is the duty of the territorial legislature to apportion the burdens of government upon all property within the territory, not withdrawn from its jurisdiction by the Organic Act or otherwise exempted. The property of United States citizens, not connected with the Indians kept upon these reservations, is a part of the mass of property within the territory receiving the protection of its laws and subject to taxation. It was, therefore, the right and duty of the legislature, to subject such property to taxation.
</headnotes><br><headnotes id="b22-6">
<em>
S.SAME
</em>
— Taxationof
<em>
Cattle of Citizens on Inchan Reservations not an Impairment of the Rights of the Indians.
</em>
Taxation of cattle of white men kept and grazed upon Indian reservations under leases from the Indians, is not a taxation of any right of property of the Indians. The taxation in controversy in this case was not assessed or levied upon the real estate or upon the rents of real estate belonging to the Indians and was therefore not invalid as interfering with the property rights of the Indians under the protection of the United States and withdrawn from the jurisdiction of the territory nor obnoxious to the principle of
<em>
Pollock v. Parmers ’ Loan and Trust
</em>
Company, 157 U. S. 429, even if the constitutional provision governing that case was operative upon any other legislative body than the congress of the United States or in the raising of revenue for any other government than the Federal government, which it was not.
</headnotes><br><headnotes id="b22-7">
6.Taxing
<em>
Districts
</em>
— Established
<em>
by
</em>
Legislature,
<em>
not by Courts.
</em>
The establishing of taxing districts is a legislative, not a judicial function. The taxing district comprising the county of Kay and the attached Indian reservations and unorganized country, was not created by the order of the supreme court, attaching such Indian reservations and unorganized country to Kay county for judicial purposes, but by the act of March 5,1895. The supreme court attached such territory to Kay county for judicial purposes and the legislature adopted and made the district thus created a taxing district.
</headnotes><br><headnotes id="b23-3">
<span citation-index="1" class="star-pagination" label="3">
*3
</span>
7.
<em>
Taxation
</em>
— Discrimination
<em>
Between Classes of Property, What is Not.
</em>
An act providing for the taxation of personal property alone in a district where there is no real estate subject to taxation is not invalid as discriminating in taxing different kinds of property. Courts will take judicial knowledge of the treaties of the United States with Indian tribes and from those treaties that the title to the lands in the Indian reservations in this territory is in the Indian tribes, or in the United States for the benefit of the Indians, and that there is no real estate therein subject to taxation.
</headnotes><br><headnotes id="b23-4">
S.
<em>
Same
</em>
— Purposes
<em>
of Validity.
</em>
Taxation must be for purposes in which the people taxed have a legal interest. Property which is located upon an Indian reservation and which is attached to a county of the territory for judicial purposes but is not within the geographical boundaries of the county and is not a part of the county for municipal purposes and in which the people thereof have no voice in the selection of the county and other officers and no part of the fund derived from the taxes levied can be expended for the purposes for which they were levied within such Indian reservation, and which taxes when collected are to be appropriated entirely to the expenses of the county roads, and schools within the organized county, cannot be taxed for the various county, school, and road purposes of such county. Thé property on such reservation can only be taxed for territorial and judicial purposes.
</headnotes><br><headnotes id="b23-5">
O.
<em>
Laws
</em>
— Special,
<em>
What Are.
</em>
See
<em>
Daily Leader v. Cameron,
</em>
3 Okla. G77.
</headnotes><br><headnotes id="b23-6">
10.
<em>
TAXATION
</em>
— Assessment,
<em>
Uniformity as to Time of.
</em>
An act providing for listing and assessing personal property in Indian reservations and unorganized territory, at a different time from that fixed for listing and assessing such property in organized counties, is not invalid for want of uniformity. Taxes must be assessed according to some uniform rule; but this does not mean that the time and method of assessment shall be identical, but only that after the legislature has declared what classes of property shall be subject to taxation, the tax itself shall be levied upon such property or the owner thereof according to a uniform rate of valuation.
</headnotes><br><summary id="b23-7">
<em>
Error from the District Court of Kay County.
</em>
</summary><br><summary id="b23-8">
STATEMENT OE EACTS.
</summary><br><summary id="b23-9">
The plaintiffs in error are non-residents of the Territory of Oklahoma and owners of large herds of cattle that were kept and grazed, during a portion of the year 1895, in parts of the Osage Indian reservation in this territory.
</summary><br><summary id="b23-10">
The defendants in error are the board of county commissioners, treasurer and sheriff of Kay county, Oklahoma Territory.
</summary><br><summary id="b24-3">
<span citation-index="1" class="star-pagination" label="4">
*4
</span>
On the third Monday in February, 1894, the supreme court of the Territory of Oklahoma, by an order entered on the journals of said court, attached to said county of Kay, for judicial purposes, all the Kaw or Kansas Indian reservation and all of the Osage Indian reservation, north of the township line dividing townships 25 and 26, north. All of said reservations, so attached to said Kay county, for judicial purposes, by such order, are without the boundaries of said Kay county, as established by the secretary of the interior, and are not within the boundaries of any organized county of this territory. Said territory, so attached to said county of Kay, for judicial purposes, is comprised wholly of lands owned and occupied by Indian tribes and consists, principally, of wild, unimproved and unallotted lands, used for grazing purposes ; that plaintiffs in error, during the year 1895, and during the month of April of said year, drove, transported and shipped to the ranges and pastures in that part of said Osage Indian reservation, attached to said Kay county, for judicial purposes, as aforesaid, large herds and numbers of cattle, which were taken on to said reservation in pursuance of and by virtue and authority of certain leases to plaintiffs in error, for grazing purposes, made by the Osage tribal government under the supervision of the agent in charge of said tribe, and upon the ratification and approval of the commissioner of Indian affairs and of the secretary of the interior. And said cattle of said plaintiffs in error were, on the first day of May, kept and grazed on that part of said Indian reservation attached to said Kay county, for judicial purposes, as aforesaid.
</summary><br><summary id="b24-4">
By an act approved March 5, 1895 the legislative .assembly of the Territory of Oklahoma amended § 13, art. 2, ch. 7 of the Oklahoma Statutes, relating to revenue,
<span citation-index="1" class="star-pagination" label="5">
*5
</span>
so that the same reads as follows: “That when any cattle are kept or grazed or any other personal property is situated in any unorganized country, district or reservation of this territory, such property shall be subject to taxation in the organized county to which said country, district or reservation is attached for judicial purposes,” and authorized the board of county commissioners of the organized county or counties to which such unorganized country, district or reservation is attached, to appoint a special assessor each year, whose duty it should be to assess such property, and conferred upon such special assessor all the powers and required him to perform all the duties of a township assessor. The assessor so provided for was required to begin and perform his duties between the first day of April and the twenty-fifth day of May of each year, and to complete his duties and return his tax lists on or before June 1, and the property therein authorized to be assessed, it was provided, should be valued as of May 1, each year.
</summary><br><summary id="b25-4">
In pursuance of the provisions of said act the county commissioners of said Kay county did duly appoint a special assessor for the year 1895, to assess such cattle as were kept and grazed, and any other personal property situated in the unorganized country and parts of Indian reservations attached to said Kay county for judicial purposes, and said special assessor did, by virtue of said appointment, assess all the personal property in the territory so attached to the county of Kay for judicial purposes,, including all of the cattle of the said plaintiffs in error kept and grazed in said reservation on the first day of May, 1895. The said special assessor assessed the property of these plaintiffs in error so located on said territory attached to said county of Kay for judicial purposes
<span citation-index="1" class="star-pagination" label="6">
*6
</span>
as aforesaid, and returned the same upon an assess" ment roll at the total valuation of $760,469; that thereafter the said sum was, by the clerk of said county, carried into the aggregate assessment for said county, and by him certified to the auditor of the territory; that the territorial board of equalization, in acting upon the various assessments of the various counties, as certified to said board, raised the aggregate valuation of the property returned for taxation upon the tax rolls of said .county of Kay, 35 per cent, and ■ the county clerk for said county carried out the raised valuation so certified to him by said territorial board of equalization against the property of these plaintiffs -in error, and made the aggregate valuation of such property $1,026,634.
</summary><br><summary id="b26-4">
Thereafter the territorial board of equalization levied and duly certified to the county clerk of the county of Kay tax levies, for territorial purposes for the year 1895, as follows:
</summary><br><summary id="b26-5">
General revenue, three mills on the dollar.
</summary><br><summary id="b26-6">
University fund, one-half mill on the dollar.
</summary><br><summary id="b26-7">
Normal school fund, one-half mill on the dollar.
</summary><br><summary id="b26-8">
Bond interest fund, one-half mill on the dollar.
</summary><br><summary id="b26-9">
Board of education fund, one-half mill on the dollar.
</summary><br><summary id="b26-10">
That the board of county commissioners for the county of Kay made the following levies for the year 1895:
</summary><br><summary id="b26-11">
For salaries, five mills on the dollar.
</summary><br><summary id="b26-12">
For contingent expenses, three mills on the dollar.
</summary><br><summary id="b26-13">
For sinking fund, one and one-half mills on the dollar.
</summary><br><summary id="b26-14">
For court expenses, two and one-half mills on the dollar.
</summary><br><summary id="b26-15">
For county supplies, three mills on the dollar.
</summary><br><summary id="b26-16">
For road and bridge fund, two mills on the dollar.
</summary><br><summary id="b26-17">
For poor fund of said county, one mill on the dollar.
</summary><br><summary id="b26-18">
For county school fund of said county, one mill on the dolía!.
</summary><br><summary id="b27-4">
<span citation-index="1" class="star-pagination" label="7">
*7
</span>
The county clerk of said county of Kay carried the valuation of the property of these plaintiffs in error upon the tax rolls of said county and against the same extended the levies as aforesaid and charged against the property of these plaintiffs in error in the aggregate the sum of $26,171.16.
</summary><br><summary id="b27-5">
Before these taxes became delinquent, plaintiffs in error began to remove or attempted to remove their respective property from the territory attached to Kay county for judicial purposes, and beyond the limits of Oklahoma Territory. • The treasurer of said Kay county issued tax warrants for the several amounts of taxes levied against the property of each of said plaintiffs in error and delivered the same to the sheriff of said county for execution. Said sheriff seized certain property of each of plaintiffs in error by virtue of such tax warrants. The plaintiffs in error filed their several petitions in the district court of Kay county and on application obtained injunctions, restraining the defendants in error from making any further attempt to collect such taxes. After-wards, on motion, the several actions were consolidated into one. To the petition, filed in such consolidated action, the defendants in error filed a general demurrer. At the hearing the district court sustained the demurrer in part and overruled it in part, holding that all of the levies made for territorial purposes and the county levy for court expenses, were valid; and as to those levies, the injunction was dissolved, and as to all of the other county levies, such injunctions were made perpetual. From that part of the order and judgment of the court dissolving the injunction as to the territorial taxes and the one county fund levy, plaintiffs appealed. From that part perpetuating the injunction as to all of the county levies?
<span citation-index="1" class="star-pagination" label="8">
*8
</span>
except that for court expenses, the defendants appealed, and filed their cross-petition in error, and the case is thus here for review.
</summary><br><attorneys id="b28-4">
<em>
Henry E. Asp, John W. SJiartel
</em>
and
<em>
J. JR. Cotting-ham,
</em>
for plaintiffs in error.
</attorneys><br><attorneys id="b28-5">
<em>
C. A. Galbraith, Attorney General,
</em>
and
<em>
D. L. Weir,
</em>
for defendants in error.
</attorneys> | <p>1. Taxation — Power of Legislature in Imposing — Extent of The power of taxation is not an arbitrary power, nor can it be exercised capriciously. It i& h dged about and restricted by wise constitutional limitations and fixed general rules. These constitutional limitations and general rules are designed to secure a just apportionment of the burdens of government by requiring uniformity of contributions, levied by fixed and general rules andapportioned by the law, according to some uniform measure of equality. Within these rules and limitations the authority and power of the legislative department is absolute and conclusive.</p> <p>2. Same — Legislative Discretion in. The discretion of the legislature in matters of taxation, is very broad and its exercise may work injustice and oppression. The judicial cannot prescribe to the legislative department of the government limitations upon the exercise of its acknowledged powers. The power to tax may be exercised oppressively, but if it does not clearly violate some established rule or limitation, the responsibility of the legislature is not to the courts but to the people by whom its members are elected. The courts can only interfere when the conclusion is unavoidable that the legislature has transcended its powers or clearly violated some constitutional or other fixed general rule, defining or limiting such powers.</p> <p>3.INDIAN Reservations — Taxahon of Property Therein. In the absence of any provisions or stipulations in the the treaties by which the Indians were settled on the reservations in this territory, that the lands in such reservations should not, without consent of the Indians occupying them, be included within the limits or jurisdiction of any state or territory that might, thereafter, be created and which should include such reservation within its exterior boundaries, the authority of the territory may extend over such reservation in all matters of rightful legislation, not interfering with the persons or property of the Indians underthe protection of the United States. As to all matters and subjects of rightful legislation, not interfering with that protection and not otherwise repugnant to the constitution and laws of the United States, the legislative power of the territory is as absolute in and upon these reservations, as in any other part of this territory.</p> <p>4.SAME — Taxation of Property on. Taxation is a rightful subject of legislation* It is the duty of the territorial legislature to apportion the burdens of government upon all property within the territory, not withdrawn from its jurisdiction by the Organic Act or otherwise exempted. The property of United States citizens, not connected with the Indians kept upon these reservations, is a part of the mass of property within the territory receiving the protection of its laws and subject to taxation. It was, therefore, the right and duty of the legislature, to subject such property to taxation.</p> <p>S.SAME — Taxationof Cattle of Citizens on Inchan Reservations not an Impairment of the Rights of the Indians. Taxation of cattle of white men kept and grazed upon Indian reservations under leases from the Indians, is not a taxation of any right of property of the Indians. The taxation in controversy in this case was not assessed or levied upon the real estate or upon the rents of real estate belonging to the Indians and was therefore not invalid as interfering with the property rights of the Indians under the protection of the United States and withdrawn from the jurisdiction of the territory nor obnoxious to the principle of Pollock v. Parmers ’ Loan and Trust Company, 157 U. S. 429, even if the constitutional provision governing that case was operative upon any other legislative body than the congress of the United States or in the raising of revenue for any other government than the Federal government, which it was not.</p> <p>6.Taxing Districts — Established by Legislature, not by Courts. The establishing of taxing districts is a legislative, not a judicial function. The taxing district comprising the county of Kay and the attached Indian reservations and unorganized country, was not created by the order of the supreme court, attaching such Indian reservations and unorganized country to Kay county for judicial purposes, but by the act of March 5,1895. The supreme court attached such territory to Kay county for judicial purposes and the legislature adopted and made the district thus created a taxing district.</p> <p>7. Taxation — Discrimination Between Classes of Property, What is Not. An act providing for the taxation of personal property alone in a district where there is no real estate subject to taxation is not invalid as discriminating in taxing different kinds of property. Courts will take judicial knowledge of the treaties of the United States with Indian tribes and from those treaties that the title to the lands in the Indian reservations in this territory is in the Indian tribes, or in the United States for the benefit of the Indians, and that there is no real estate therein subject to taxation.</p> <p>S. Same — Purposes of Validity. Taxation must be for purposes in which the people taxed have a legal interest. Property which is located upon an Indian reservation and which is attached to a county of the territory for judicial purposes but is not within the geographical boundaries of the county and is not a part of the county for municipal purposes and in which the people thereof have no voice in the selection of the county and other officers and no part of the fund derived from the taxes levied can be expended for the purposes for which they were levied within such Indian reservation, and which taxes when collected are to be appropriated entirely to the expenses of the county roads, and schools within the organized county, cannot be taxed for the various county, school, and road purposes of such county. Thé property on such reservation can only be taxed for territorial and judicial purposes.</p> <p>O. Laws — Special, What Are. See Daily Leader v. Cameron, 3 Okla. G77.</p> <p>10. TAXATION — Assessment, Uniformity as to Time of. An act providing for listing and assessing personal property in Indian reservations and unorganized territory, at a different time from that fixed for listing and assessing such property in organized counties, is not invalid for want of uniformity. Taxes must be assessed according to some uniform rule; but this does not mean that the time and method of assessment shall be identical, but only that after the legislature has declared what classes of property shall be subject to taxation, the tax itself shall be levied upon such property or the owner thereof according to a uniform rate of valuation.</p> | Error from the District Court of Kay County . | null | null | null | null | 3,915,408 | null | 0 | okla | S | t | Supreme Court of Oklahoma | Supreme Court of Oklahoma |
829,249 | Order Michigan Supreme Court Lansing, Michigan February 7, 2011 Robert P. Young, Jr., Chief Justice 141833 Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway PEOPLE OF THE STATE OF MICHIGAN, Mary Beth Kelly Plaintiff-Appellee, Brian K. Zahra, Justices v SC: 141833 COA: 298207 Oakland CC: 2009-228127-FH MATTHEW FREDRICK HAYWARD, Defendant-Appellant. / On order of the Court, the application for leave to appeal the August 6, 2010 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. February 7, 2011 p0131 Clerk | opinion_plain_text | 131 | 2013-03-01 20:12:56.389799+00 | 010combined | f | f | 829,249 | null | null | C | f | Published | 0 | People of Michigan v. Matthew Fredrick Hayward | null | null | null | null | null | null | null | null | null | null | null | 1,224,372 | 141833 | 0 | mich | S | t | Michigan Supreme Court | Michigan Supreme Court |
4,675,517 | Supreme Court of Florida No. SC20-155 DONTAE R. MORRIS, Appellant, vs. STATE OF FLORIDA, Appellee. April 8, 2021 PER CURIAM. Dontae Morris appeals the denial of his initial postconviction motion filed under Florida Rule of Criminal Procedure 3.851. 1 For the reasons explained below, we affirm the postconviction court’s denial of Morris’ claims. I. BACKGROUND Morris was convicted of two counts of first-degree premeditated murder for the murders of Officer David Curtis and 1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Officer Jeffrey Kocab and one count of escape while being transported. Morris v. State, 219 So. 3d 33 , 36 (Fla. 2017). On direct appeal, this Court described the facts as follows: Morris was convicted and sentenced to death on two counts for the first-degree premeditated murders of Officer David Curtis and Officer Jeffrey Kocab. The evidence at trial established that on June 29, 2010, at about 2:13 a.m., Officer Curtis pulled over a red Toyota Camry in Hillsborough County for not displaying an automobile tag. Cortnee Brantley was the driver, and Dontae Morris was in the passenger’s seat. The dashcam video from Officer Curtis’ patrol car was played for the jury at trial. The transcript of that video includes a discussion in which Morris identifies himself to Officer Curtis, disclosing his name, age, and birthdate. The transcript continues with a discussion between Officer Curtis and Ms. Brantley about the missing tag on the vehicle, and Ms. Brantley states that the tag was stolen. Officer Curtis returned to his patrol car, entered Morris’ name in his in-car computer, and discovered that there was a warrant out for Morris. He called for backup, and Officer Kocab pulled up and parked behind Officer Curtis’ parked patrol car. Then both officers approached the passenger side of the parked Camry. Officer Curtis, with Officer Kocab standing right behind him at the passenger side of the vehicle, asked Morris to exit the vehicle. Morris exited the vehicle as if he was surrendering but instead grabbed a gun and shot both officers in the head. The approximate time for the homicides of Officers Curtis and Kocab was 2:18 a.m. This interaction is captured in the dashcam video in the following way: [Officer Curtis]: —you know anything about it? [The Defendant]: The warrant? -2- [Officer Curtis]: Yeah. [The Defendant]: I ain’t got no warrant. [Officer Curtis]: Okay. Step over here. Turn around and step and put your hands behind your back. (Shots fired.) [Brantley]: Baby—Babe. The remaining portion of the video captures panicking individuals tending to the injured officers and performing CPR. Both officers were transported to Tampa General Hospital where they were later pronounced dead. The officers’ autopsies confirmed that both officers died of fatal gunshot wounds to the head. Furthermore, an expert in the field of firearms analysis and identification concluded that both of the projectiles removed from the bodies of Officer Curtis and Officer Kocab were fired from the same firearm. Immediately following the shooting, Morris fled the scene, running on foot northbound. Four days after the homicides, Morris turned himself in. On the front seat of Officer Curtis’ patrol vehicle, detectives found Officer Curtis’ notepad and Cortnee Brantley’s driver’s license. On the notepad, Officer Curtis had noted the name and birthdate of the passenger as it was provided to him when he asked the passenger to identify himself. Additionally, in Officer Curtis’ car, the mobile dispatch terminal, or in-car computer, indicated Dontae Morris’ name, his identifying information, and a photograph of him. Morris’ birth certificate was entered into evidence and matched the name and birthdate that the passenger of the Camry in the dashcam video provided to Officer Curtis. Temika Jones testified that she saw Morris, whom she knew as “Quelo,” on the day of the murders in the morning. She remembered that he was wearing a dark blue vest with a white shirt underneath, dark khaki -3- shorts, and white sneakers or tennis shoes. Ms. Jones also testified that Morris called her around 2 a.m. Later that day, detectives interviewed Ms. Jones. When the detectives showed her a photograph, which was a still photo from the dashcam video, she identified the individual in the photo as Morris. She testified that it looked like Morris because of the head shape and outfit and because he had on the same clothing that he had on that morning when she saw him. Additionally, two witnesses testified that they saw a black male running northbound from the scene of the incident. Ynalia Keen lived in a bottom floor apartment near where the traffic stop took place. She testified that on the night of the incident, she had stepped out of her apartment to get snacks from a gas station, and, when she heard the gunshots, she rushed back inside. From inside her apartment, looking through a front window that looks out onto the street, she saw a black male running on the sidewalk towards her apartment building, then into the apartment complex, cutting through the middle of the parking lot, and jumping a small fence. When she could not see him through the front window, Ms. Keen went to the kitchen to look through the window at the back of the apartment, where she saw him jump another, taller, chain-link fence. The next day, on June 30th, Detective Charles Massucci interviewed Ms. Keen. Ms. Keen identified Morris’ photograph from a photographic lineup. Ms. Keen also wrote the following statement: “Seen him on the back road with a group of people. He had ran by my house when the people was shot. Seen him at the Shell store.” The other witness, Alfred Thompson, was walking northbound on the street where the traffic stop took place. As he walked past the Camry, he noticed that the car had two occupants sitting in the front seat, a black female in the driver’s side and a black male in the passenger’s side. He also saw the officer in his vehicle at that time. After Mr. Thompson passed the cars, he heard -4- two gunshots coming from behind him from the direction of the police car and the other vehicle, and he hid behind another car; he did not see the individual who fired the shots. Thereafter, Mr. Thompson saw a black male run northbound (on the same sidewalk he was walking on), go through an apartment complex, and jump a chain-link fence. Just north of the crime scene, detectives found footprints on the bottom part of the large fence at the perimeter at the back of the apartment complex and also found a piece of a zipper that was torn off from an article of clothing attached to the top of that fence. On the night of the murders, Morris called Ashley Price and confided in her regarding the murders. Ms. Price went to the Tampa Police Department on June 30, the next day, and spoke with Officer Kevin Durkin. She testified that she knew Morris as “Quelo” and that Morris called her more than once in the early morning hours of June 29. When she answered a call from Morris around 3:30 a.m., he asked for a ride, but she did not give him one. She spoke with him on the phone again at around noon that day, and Morris told Ms. Price “that he did it,” telling her to watch the news about the police officers. Ms. Price also testified that Morris told her the following: that he shot the officers to get away from them, that he was out of the car when he shot the officers, that there were two officers, that he shot them in the head, that he referred to them as “crackers,” that he got the gun from under the seat, that he gave the officer his name, that the officer had gone back to run his name, that he was afraid that he had a warrant, that he was the passenger in the car, and that he was going to try to go to Jacksonville. Detective Charles Massucci confirmed that between the time of the murders and the afternoon of June 30, there were no releases from the Tampa Police Department about the facts of the case to the press or to the media concerning this subject matter that Ms. Price discussed. -5- The red Toyota Camry was located at an apartment complex on the morning of June 29, the same day as the crime, roughly nine-and-a-half hours after the crime itself. This apartment complex was located about 2.8 miles from the crime scene. The building in which Ms. Brantley, the driver, was located was about 500 yards from where the Camry was parked. Pursuant to a search warrant, the red Camry was seized and searched. DNA analysis showed the blood found on the exterior passenger side rear door matched that of Officer Curtis. Ms. Brantley was escorted to Tampa Police Department headquarters and was interviewed. During the approximately six-and-a-half hour interview, detectives asked Ms. Brantley more than once to identify the front seat passenger in the Camry during the stop, but she never identified him. Additionally, cell phone records were presented at trial for cell phones associated with Morris and Ms. Brantley. Based on testimony regarding the cell records, cell towers, mapping, and diagrams, the cell phone use placed Morris and Ms. Brantley at or near the scene of the crime at the time of the incident. And the testimony revealed phone calls made in the minutes before and after the murders of the two officers from the cell phone associated with Morris. Following the State’s case, the defense rested without presenting any evidence or witnesses. Thereafter, the jury returned guilty verdicts for two counts of first-degree premeditated murder and one count of escape while being transported. At the penalty phase, the State presented evidence that, on March 13, 2013, Morris was convicted of the first-degree murder and attempted robbery with a firearm of Rodney Jones and that Morris had been sentenced to life in prison without the possibility of parole for that conviction. The State also presented four victim impact statements from family members of Officers Curtis and Kocab. In mitigation, Morris presented the testimony of his mother, two cousins, and his aunt. On November 19, -6- 2013, the jury recommended the death penalty by a vote of twelve to zero on both counts. At the subsequent Spencer [v. State, 615 So. 2d 688 (Fla. 1993)] hearing, the defense presented mental health mitigation with expert testimony from Dr. Valerie McClain, an expert in forensic psychology and neuropsychology. Dr. McClain reviewed Morris’ prior mental health records from Dr. Lamar Ingulli, which included memory testing and IQ testing. Dr. McClain diagnosed Morris with major depression with psychotic features and borderline intellectual functioning but not intellectually disabled. She testified that Morris had deficiencies in verbal comprehension, such as word knowledge and processing speed. Then the State presented rebuttal mental health expert testimony and additional victim impact testimony. Dr. Emily E. Lazarou, an expert in the area of forensic psychiatry, testified that she reviewed Dr. McClain’s depositions, Dr. Ingulli’s medical records, and Morris’ school records, and opined that Morris was in the average range of intellectual functioning with an IQ of at least 100 to 110. Morris, 219 So. 3d at 36-40 (footnote omitted). After the presentation of mitigating and aggravating factors, the trial court sentenced Morris to death in accordance with the jury’s unanimous recommendations on both counts. 2 On direct 2. The trial court found the following aggravators were proven beyond a reasonable doubt and accorded them respective weight: (1) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of use of violence to a person (great weight); (2) the capital felony was committed for the purpose of avoiding or -7- preventing a lawful arrest or effecting an escape from custody (did not weigh or consider because merged with law enforcement officer aggravator); and (3) the victim of the capital felony was a law enforcement officer engaged in the performance of his official duties (great weight). Morris, 219 So. 3d at 39-40. The trial court also found the following mitigators: (1) Morris was prematurely born to a sixteen-year-old, unwed mother (minimal weight); (2) Morris’ father was murdered when he was two years old (no weight); (3) Morris was raised by his maternal grandmother during his early years, but her health was fragile and she could not and did not adequately care for him (minimal weight); (4) Morris’ mother did not bond with her child because she suffered severe postpartum depression and was a child herself (moderate weight); (5) Morris started to bond with his step-grandfather, but he became a crack addict and left the family (minimal weight); (6) Morris was raised without a father or any other male role model (moderate weight); (7) Morris’ mother subsequently gave birth to two more children, and she eventually married their father (minimal weight); (8) Morris’ mother attempted to make a home with a supportive family (minimal weight); (9) Morris’ mother grew tired of the limited success of her efforts to integrate Morris into her new family, and Morris felt more and more isolated, alone, rejected, and left out (minimal weight); (10) Morris had to watch his siblings receive support and affection of a father, support he never had (minimal weight); (11) 14- year-old Morris assumed the role of man of the house and source of support for his siblings when his mother left her husband, and Morris suffered with his mother through a long and bitter divorce (minimal weight); (12) after the divorce, the family moved in with another man, and he and Morris competed for the role of man of the house and father to his siblings, and Morris was asked to -8- leave the home (moderate weight); (13) the family conflict was encouraged by Morris’ former stepfather, who undermined and sabotaged the discipline of Morris and his siblings (moderate weight); (14) Morris lived for a period of time with his paternal grandparents, but they failed to control or discipline him, and he showed signs of deteriorating school work and social and behavioral turmoil (minimal weight); (15) Morris was close to his aunt and his cousins, who were positive influences and a healthy support system for him, but they moved during the time of his family’s turmoil (minimal weight); (16) Morris’ early teen years were unstable, and he was uprooted multiple times, attending five different schools and living in various relatives’ homes over a two-year period (minimal weight); (17) when Morris became involved in the juvenile justice system, his mother obtained counseling for him, and she also petitioned juvenile authorities and the court system to get more stringent treatment programs for him (moderate weight); (18) his mother’s requests were refused, and she was told Morris’ offenses were not serious enough, and he got no meaningful help or guidance during this critical juncture in his development (moderate weight); (19) Morris has maintained a supportive relationship with his child (moderate weight); (20) Morris has maintained a caring and supportive relationship with his cousins and other family members even while in jail (minimal weight); (21) Morris has expressed remorse for killing (minimal weight); and (22) the above circumstances cumulatively established general mitigating evidence that provides reasons the death penalty is not appropriate (moderate weight). Id. at 40. -9- appeal, we affirmed Morris’ convictions and sentences of death. Id. at 46. The United States Supreme Court denied certiorari on November 13, 2017. Morris v. Florida, 138 S. Ct. 452 (2017). On November 6, 2018, Morris filed a postconviction motion pursuant to Florida Rule of Criminal Procedure 3.851. He raised 7 claims, and the circuit court granted an evidentiary hearing on most of Morris’ claims on June 10, 2019, but reserved ruling on Morris’ cumulative error claim and Brady 3 claim. During the evidentiary hearing, the postconviction court heard testimony from Morris’ trial counsel, Karen Meeks and Christopher Boldt; mental health experts who had testified at trial as well as new mental health experts; Ashley Price and James Baird (Price’s former partner); and Marcus Oglesby, a friend of Morris’ who claimed to have seen him the night of the murders. On December 30, 2019, the postconviction court entered an order denying Morris’ postconviction motion as to all claims. This appeal followed. 3. Brady v. Maryland, 373 U.S. 83 (1963). - 10 - II. ANALYSIS Morris now appeals the denial of relief, arguing that the postconviction court erred in denying his initial postconviction motion claims, including claims of (A) newly discovered evidence, (B) ineffective assistance of counsel during the guilt phase of the trial, (C) ineffective assistance of counsel during the penalty phase of the trial, (D) cumulative error, and (E) a Brady violation. We address each claim in turn. A. Newly Discovered Evidence Morris first argues that the postconviction court erred in denying his claim of newly discovered evidence showing Ashley Price lied when testifying against Morris at trial. Specifically, Morris submits the testimony of James Baird, an inmate who was in a relationship with Price around the time of Morris’ arrest and trial, that Price testified against Morris because she was pressured by the State and law enforcement and that Morris never confessed to her. We affirm the denial of this claim. To successfully claim newly discovered evidence, a defendant must meet the two requirements set forth by this Court in Jones v. State, 709 So. 2d 512 , 521-22 (Fla. 1998). “First, in order to be - 11 - considered newly discovered the evidence ‘must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence.’ ” Id. at 521 (alteration in original) (quoting Torres-Arboleda v. Dugger, 636 So. 2d 1321 , 1324- 25 (Fla. 1994)). “Second, the newly discovered evidence must be of such nature that it would probably produce acquittal on retrial.” Id. Under the second prong, the reviewing court 4 must “evaluate the ‘weight of both the newly discovered evidence and the evidence which was introduced at trial.’ ” Id. (quoting Jones v. State, 591 So. 2d 911 , 916 (Fla. 1991)). This determination includes whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether the evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence. 4. This Court “review[s] the trial court’s findings on questions of fact, the credibility of witnesses, and the weight of the evidence for competent, substantial evidence” and reviews the application of the law to the facts de novo. Green v. State, 975 So. 2d 1090 , 1100 (Fla. 2008). - 12 - Id. (citations omitted). Morris’ claim fails the first prong of Jones because he has not demonstrated that the evidence was unavailable at trial and could not have been discovered with due diligence. See Dailey v. State, 279 So. 3d 1208 , 1215 (Fla. 2019) (holding that evidence related to impeachment of a key witness could have been discovered by due diligence where the defendant proffered documents that were created around the time of trial and no other explanation for why they were not discovered was given). Morris does not allege that the defense team was unable to obtain Baird’s testimony prior to trial and offers no explanation as to why Baird, who was in a relationship with Price at the time of trial and was the father of her unborn child, was not contacted by trial counsel. His only contention is that Baird “made it clear during his evidentiary hearing that he did not view it possible to reveal any of this information prior to these postconviction proceedings,” but Baird only testified that he did not come forward with this information because he did not know Morris or his attorneys. This does not establish that Baird was unavailable or that trial counsel was unable to discover his evidence. See Kormondy v. State, 154 So. 3d - 13 - 341, 350-53 (Fla. 2015) (rejecting a claim that trial counsel discovered new evidence of witnesses who purported to incriminate a suspect based on conversations they had prior to trial when the fact of communication between witnesses and the suspect was established on record prior to the postconviction proceedings). Moreover, this is not a situation where a witness later recants testimony, meaning that the recantation is newly available. See Davis v. State, 26 So. 3d 519 , 528 (Fla. 2009) (“Regardless of the time span from the time of trial to the discovery of the new testimony, recanted testimony cannot be ‘discovered’ until the witness chooses to recant.”). The first prong of Jones has not been met. Additionally, even if the testimony of Baird did meet the first prong of Jones, it is not likely to produce an acquittal upon retrial and fails the second prong. As the State correctly notes, Baird’s testimony regarding Price’s alleged prior statements constitute hearsay and could only be admissible to impeach Price. See § 90.801, Fla. Stat. (2020) (defining hearsay); § 90.608, Fla. Stat. (2020) (providing for impeachment of a witness by introduction of prior inconsistent statements). To the extent Baird’s testimony - 14 - casts doubt on Price’s motives for testifying or presents evidence of State influence, the impeachment value of this testimony is overcome by the rehabilitation of Price at the evidentiary hearing, namely Price’s testimony that the police did not pressure her and her insistence that she did not discuss her involvement in the case with Baird. See Merck v. State, 260 So. 3d 184 , 198-99 (Fla. 2018) (holding that the evidentiary value of a testimony related to a key witness’ bias or motive would be overcome by potential rehabilitation, so the proffered evidence probably would not produce acquittal upon retrial). Further, when considered cumulatively, Baird’s testimony about Price’s prior statements does not overcome the weight of evidence presented against Morris at trial. In addition to the testimony given by Price, the following evidence was presented at trial: (1) dashcam footage of the shooting; (2) Officer Curtis’ notepad with Morris’ name and identifying information found in the passenger seat of the patrol car; (3) testimony of Temika Jones identifying Morris in a photograph taken from the dashcam; (4) testimony of Ynalia Keen identifying Morris in a photographic lineup as the black man she saw running northbound from the scene of the incident; (5) testimony of Alfred Thompson - 15 - that he saw a black female and black male sitting in the Camry before he heard gunshots and saw a black male run northbound and jump a chain-link fence; (6) footprints and a portion of a torn zipper at a nearby chain-link fence; and (7) cell phone records placing Brantley and Morris at or near the scene of the crime at the time of the incident. Morris, 219 So. 3d at 37-39. And the postconviction court found Baird’s testimony to not be credible in light of Price’s testimony refuting Baird’s claims. See Hurst v. State, 18 So. 3d 975 , 993 (Fla. 2009) (“[W]e will not substitute our judgment for that of the trial court on questions of fact, credibility of witnesses, or the weight to be given to the evidence by the trial court.”). Therefore, Morris has failed to establish that this testimony from Baird would probably produce acquittal on retrial, and we affirm the postconviction court’s denial of this claim. B. Ineffective Assistance of Counsel During the Guilt Phase Morris next argues that the postconviction court erred in denying his claim that trial counsel was ineffective during the guilt phase of the trial for (1) failing to conduct a reasonable investigation and present evidence that could have meaningfully challenged the State’s case; (2) failing to prevent the jury from seeing inflammatory - 16 - evidence, specifically the dashcam footage of officers attempting to revive their colleagues; (3) failing to object to the use of racial slurs at trial; and (4) failing to obtain a working video of a November 10, 2011, jail visit. Because Morris has not established both deficiency and prejudice with regard to any of these claims, we affirm the denial of relief. To succeed in a claim of ineffective assistance of counsel, the defendant must prove two things: “[f]irst, the defendant must show that counsel’s performance was deficient,” and “[s]econd, the defendant must show that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668 , 687 (1984). Regarding the performance prong, “[j]udicial scrutiny of counsel’s performance must be highly deferential,” and the appropriate standard is “reasonableness under prevailing professional norms.” Id. at 688-89 . “A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at 690 . Moreover, counsel’s “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was - 17 - reasonable under the norms of professional conduct.” Occhicone v. State, 768 So. 2d 1037 , 1048 (Fla. 2000). Further, to prevail under the prejudice prong, “[t]he defendant must show that there is 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 . Specifically, a “reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. 1. Failure to Investigate and Present Evidence that Would Have Meaningfully Challenged the State’s Case Morris argues that the postconviction court erred in denying his claim that trial counsel was ineffective for failing to challenge the State’s case in the following ways: (1) failing to present evidence of checks cashed in 2008 by someone impersonating Dontae Morris, (2) failing to challenge Price’s testimony by presenting evidence of her continuing child custody issues, relationship with the Tampa Police Department (TPD), financial struggles, and violation of probation charges; (3) failing to call Marcus Oglesby as a witness to contradict the identification of Morris based on his clothes the day of the shooting; and (4) failure to present text messages that showed Cortnee Brantley and Morris had broken up - 18 - the day of the shooting and Morris was pursuing other women. These pieces of evidence, Morris contends, would have cast doubt on the identification of the passenger of the vehicle as himself. Because the decision not to present these pieces of evidence was a reasonable choice by trial counsel, we agree with the postconviction court and affirm the denial of relief. First, Morris has not established that trial counsel was ineffective for failing to present the evidence of worthless checks cashed in his name while he was in prison in 2008. Trial counsel testified that they considered an imposter defense to which the checks would have been valuable, but Morris “did not want this type of issue explored at trial.” Because trial counsel considered this course of action and ultimately deferred to the defendant’s wishes, Morris has not established that counsel was ineffective. See Occhicone, 768 So. 2d at 1048 (affirming the postconviction court’s denial of ineffective counsel claim where trial counsel testified that they considered presenting the evidence in question and decided against it because they felt they had presented enough evidence to the jury through cross-examination and that closing arguments were more important); see also Derrick v. State, 983 - 19 - So. 2d 443, 460 (Fla. 2008) (“[A] defendant’s wishes can be a valid consideration in deciding on an appropriate trial strategy.”). Morris also has not shown that counsel was deficient or that prejudice resulted from trial counsel’s cross-examination of Ashley Price, specifically by failing to challenge Price by bringing up her pending child dependency proceedings, financial problems, or violation of probation charge. Morris contends that these pieces of evidence show that Price was predisposed to give in to pressure by TPD to falsely testify against Morris. Various details of these circumstances were already presented to the jury including: (1) the existence of a pending dependency case, (2) Price’s financial motive to cooperate with the police, and (3) that Price had been convicted of a felony three times and had an open case. See Gregory v. State, 224 So. 3d 719 , 733-34 (Fla. 2017) (holding that trial counsel was not deficient for failing to further impeach the defendant’s fellow inmates where trial counsel had impeached inmates with prior convictions and reduction of prison exposure based on testimony). Any further impeachment of Price would have been largely cumulative and failing to present cumulative evidence is not ineffective assistance of counsel. See Card v. State, 497 So. 2d - 20 - 1169, 1176 (Fla. 1986) (concluding that counsel was not ineffective for failing to present further evidence of impeachment where counsel had thoroughly cross-examined and attempted to discredit the witness). While trial counsel did testify that she was not aware of some specific details of Price’s situation, namely that Price’s children were not living with her and the eviction notice on her apartment, trial counsel also testified that her strategy was to discredit Price as a person with whom Morris would have shared a confession, and she attempted to do so. Morris has not demonstrated counsel was ineffective. As to trial counsel’s decision not to call Marcus Oglesby as a witness to rebut testimony as to what Morris was wearing at the time of the murder, Morris has similarly not established deficiency or prejudice. “This Court has . . . consistently held that a trial counsel’s decision to not call certain witnesses to testify at trial can be reasonable trial strategy.” Everett v. State, 54 So. 3d 464 , 474 (Fla. 2010) (concluding that a decision to not call a witness based on concern over the witness’ credibility was not deficient). As discussed above, trial counsel testified that they considered pursuing an imposter defense, but it was discouraged by Morris. - 21 - Further, trial counsel testified that they had concerns over Oglesby’s credibility and that his testimony could have been used to corroborate that of Temika Jones, precisely the opposite goal of calling him to testify in the first place. Accordingly, the decision to not call Oglesby was an alternative course chosen for strategic reasons, and Morris has not established deficiency. Finally, Morris has not proven that counsel was ineffective for failing to present text messages to the jury that allegedly showed that Morris and Cortnee Brantley had broken up so Morris would not have been with Brantley the evening of the murder. The postconviction court determined that trial counsel’s testimony that the text messages reflected that Brantley and Morris were just having a “spat” was credible, and there is competent evidence to support that finding. Other text messages from that evening showed Morris and Brantley expressing loyalty to one another. Further, given these other text messages, it seems reasonable for trial counsel not to pursue this argument, and almost certain that the outcome would not have been different were these text messages introduced at trial. - 22 - 2. Inflammatory Dashcam Footage Morris next claims that trial counsel was ineffective during the guilt phase of the trial because they allowed the presentation of the roughly two minutes of dashcam footage that showed other officers attempting to revive the victims but has not established that this decision was deficient performance under Strickland. Trial counsel did object to the admission of the entire dashcam video prior to trial. See Carroll v. State, 815 So. 2d 601 , 613-14 (Fla. 2002) (concluding that trial counsel was not deficient for acquiescing to admission of autopsy photos where trial counsel had objected to most of the autopsy photos). Once part of the dashcam video was shown, trial counsel had strategic reasons for wanting the two minutes in question to be shown to the jury, namely record preservation and to show that the crime scene’s integrity was in question. Cf. Wade v. State, 156 So. 3d 1004 , 1019-20 (Fla. 2014) (holding that trial counsel was not deficient for failing to object to the use of photographs of a codefendant using the victims’ bank card because trial counsel made a strategic decision not to object based on the theory that the codefendant alone was responsible for the murder). Because trial counsel made a strategic decision to - 23 - allow the full dashcam video to be played for the jury once it was submitted to evidence, we conclude counsel was not deficient. 3. Use of Racial Slurs Morris also claims that trial counsel was ineffective during the guilt phase for failing to object to the use of the racial slur “cracker” 3 times during the trial but has not established prejudice resulting from trial counsel’s action. It is not clear that even if trial counsel had filed a motion in limine to exclude the use of the term that it would have been granted. Price’s testimony was that Morris used the term “cracker” to describe the men he shot, so the term itself was probative of identifying a victim. The term was further probative of Price’s credibility as the race of the officers was not yet released to the public. This Court has previously upheld the admission of testimony including racial slurs attributed to a defendant where the racial slur itself had probative value. Phillips v. State, 476 So. 2d 194 , 196 (Fla. 1985) (concluding that it would not be error to admit testimony from a fellow inmate where testimony included racial slurs attributed to defendant where testimony discredited defendant’s alibi and provided context to an incriminating admission). Moreover, 3 instances of the term - 24 - “cracker” used as a descriptor do not inject the kind of racial animus into a trial that would call into question the soundness of the verdict like a trial counsel directly appealing to racial dynamics in the case. Cf. State v. Davis, 872 So. 2d 250 , 253-54 (Fla. 2004) (finding the soundness of the verdict was in question when trial counsel admitted to his own racial bias in discussing racial prejudice with potential jurors during voir dire). Accordingly, Morris has failed to establish that prejudice resulted from his trial counsel’s failure to object to the use of the term “cracker.” 4. November 10, 2011, Jail Visit Video Morris next argues that trial counsel was deficient for failing to obtain a working video of a November 10, 2011, jail visit from Morris’ mother in which Morris exhibited paranoid behavior and stated he was hearing voices. Shortly after this visit, Morris was put under direct observation. Morris contends failure to submit this video to Dr. McClain resulted in a misdiagnosis of manic depression with temporary psychosis instead of schizophrenia and that failure to present the video to the jury prevented the jury from understanding the context of Morris’ statement, “I repent for killing,” made under direct observation. However, Morris has not - 25 - established that deficiency or prejudice resulted from trial counsel’s failure to obtain a copy of this video. First, Morris has not demonstrated that trial counsel’s failure to show a working video to Dr. McClain resulted in prejudice. As the postconviction court noted, Dr. McClain did not testify that the video would have changed her diagnosis or her testimony at trial; she only testified that her “interactions with defense counsel with regard to the issue of competency specifically would have been different” and “further exploration of the potential psychotic disorder and the onset of that would be very important.” Further, if Dr. McClain had changed her testimony, it could have been rebutted by additional expert testimony just as it was in the trial and postconviction evidentiary hearing by Dr. Lazarou’s testimony. See Turner v. State, 143 So. 3d 408 , 418 (Fla. 2014) (finding that the second prong of Strickland was not satisfied where new mental health expert testimony was undermined by more convincing rebuttal evidence from another mental health expert). Therefore, and especially in light of the evidence shown at trial, Morris has not demonstrated that the outcome of the proceedings would have been different if Dr. McClain had access to this video. - 26 - Second, Morris has not demonstrated that trial counsel was deficient for not obtaining a working copy of the jail visit video and showing it to the jury to challenge Morris’ statement, “I repent for killing.” The trial court had precluded trial counsel from submitting lay or expert testimony of Morris’ mental state of mind at the time of this statement, so counsel reasonably concluded that his mental state could not be addressed by providing more evidence from the direct observation records. Morris, 219 So. 3d at 42. Further, trial counsel believed that further evidence of the direct observation records would open the door to other prejudicial evidence, for example, Morris describing himself as a “young buck child molester,” while under observation. Trial counsel is not deficient for failing to present evidence where he reasonably concludes that evidence may ultimately be more prejudicial. See Hall v. State, 212 So. 3d 1001 , 1018 (Fla. 2017) (concluding that counsel was not deficient for choosing not to present evidence that could be interpreted by the jury as an attempt to blame the victim because it would be prejudicial). Thus, trial counsel’s conclusion that offering this video to the jury would open the door to further bad acts - 27 - without actually impeaching the deputy who testified as to Morris’ statements was a reasonable strategic decision and not deficient. 5. Cumulative Effect Morris also claims that the cumulative result of the deficiency of his trial counsel and resulting prejudice warrants relief. Because we conclude that counsel’s performance during the guilt phase was not deficient, we also reject this claim. Accordingly, because Morris has not demonstrated his counsel acted deficiently during the guilt phase of his trial and prejudice resulted, we affirm the postconviction court’s denial of relief with respect to the preceding claims. C. Ineffective Assistance of Counsel During the Penalty Phase Morris next argues that the postconviction court erred by denying his claim that his trial counsel was ineffective for failing to adequately investigate and present mitigation evidence at the penalty phase of his trial, specifically that trial counsel failed to order a full psychosocial evaluation and obtain key mental health evidence, failed to present all available mental health evidence to the jury, and failed to present evidence of a neurocognitive dysfunction entirely. Because Morris has not established deficiency - 28 - or prejudice as required under Strickland, we affirm the postconviction court’s denial of relief. “For a defendant to establish that he was prejudiced by trial counsel’s failure to investigate and present mitigation, the defendant ‘must show that but for his counsel’s deficiency, there is a reasonable probability he would have received a different sentence. To assess that probability we consider “the totality of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the [postconviction] proceeding”—and “reweig[h] it against the evidence in aggravation.” ’ ” England v. State, 151 So. 3d 1132 , 1138 (Fla. 2014) (alterations in original) (quoting Dennis v. State, 109 So. 3d 680 , 695 (Fla. 2012)). As to the penalty phase in this case, we need not address prejudice, because Morris has not established that trial counsel’s performance was deficient. First, Morris has not shown that trial counsel was deficient for failing to order a full psychosocial evaluation and present evidence related to Morris’ family background. Morris relies on the fact that Dr. Richard Cunningham, an expert retained during postconviction proceedings, was able to interview many family members and - 29 - present evidence of familial dysfunction that impacted Morris’ development during the postconviction proceedings because it shows that evidence could have been obtained by defense counsel. This claim, however, minimizes the fact that Morris was uncooperative during the preparation for the penalty phase and discouraged his family from cooperating as well. Trial counsel, while under a duty to investigate mitigation evidence, is limited by how much evidence a defendant wishes to present and his cooperation with the investigation. See Simmons v. State, 105 So. 3d 475 , 516-17 (Fla. 2012) (Polston, C.J., concurring in part and dissenting in part) (“Essentially, as the trial court ably explained, we are considering an ineffectiveness of counsel claim ‘raised by a Defendant who repeatedly chose to ignore the advice of his qualified lead-counsel and chose—with his family’s support—to limit mitigation evidence because it would cast him and/or his family in a negative light.’ However, capital defendants have the right to limit the mitigation evidence presented during the penalty phase. See [Boyd v. State, 910 So. 2d 167 , 189-90 (Fla. 2005)].”). Further, this case is not similar to cases in which this Court found a counsel deficient for failing to present mitigation evidence due to - 30 - counsel’s own neglect or choice not to act because Morris’ counsel did attempt to obtain mitigation evidence to present. See, e.g., Williams v. State, 987 So. 2d 1 , 12-14 (Fla. 2008) (holding that trial counsel was ineffective for failing to present evidence of a mental health expert’s report where trial counsel testified that he deemed it unnecessary to present the report to the judge at a Spencer hearing because the jury recommended a life sentence, but the judge had a history of overriding jury recommendations). Morris’ trial counsel testified that many family members were contacted about testifying or providing statements, but that with few exceptions, none cooperated, and Morris himself was uncooperative in providing information. Despite this, the jury was able to find the existence of 22 mitigating circumstances, most of which related to Morris’ upbringing and family. Accordingly, Morris has not demonstrated that trial counsel was deficient for failing to obtain more evidence. Next, Morris has not demonstrated that trial counsel was deficient for failing to present mental health evidence to the jury. The postconviction court found credible the testimony of trial counsel that both Dr. McClain and Dr. Ingulli had advised that there was a strong likelihood of an antisocial personality disorder - 31 - diagnosis and that their opinions might be more harmful than helpful if presented to the jury. This Court has repeatedly held that “defense counsel is entitled to rely on the evaluations conducted by qualified mental health experts.” Hernandez v. State, 180 So. 3d 978 , 1013 (Fla. 2015) (quoting Stewart v. State, 37 So. 3d 243 , 251- 52 (Fla. 2010)). Further, trial counsel did consider presenting mental health evidence to the jury but testified that they were concerned that the evidence would open the door to more negative evidence so decided against it. “Strategic decisions do not constitute ineffective assistance if alternative courses of action have been considered and rejected.” Rutherford v. State, 727 So. 2d 216 , 223 (Fla. 1998) (quoting State v. Bolender, 503 So. 2d 1247 , 1250 (Fla. 1987)) (holding that trial counsel did not err in deciding not to present mental health mitigation and choosing instead to focus on “humanization” of the defendant); see also Lebron v. State, 135 So. 3d 1040 , 1065-66 (Fla. 2014) (concluding counsel’s decision not to present mental health evidence because it would open the door to unfavorable testimony about defendant’s antisocial personality disorder was a reasonable, strategic decision). Accordingly, Morris has not demonstrated deficiency. - 32 - Finally, Morris has not demonstrated that trial counsel was deficient for failing to retain an expert to order further neurological tests. Contrary to Morris’ statement of events, the postconviction court found credible the testimony of trial counsel that Dr. Ingulli did not express any concerns about Morris’ testing results and indicated that there were no signs of brain damage or abnormalities. Trial counsel further had Dr. McClain review Dr. Ingulli’s data, and she also concluded that there was no significant mitigation signs of significant brain damage. As discussed above, this Court has repeatedly held that defense counsel is entitled to rely on the reasonable opinions of its experts. Hernandez, 180 So. 3d at 1013-14. In Hernandez, we rejected a claim that counsel was ineffective for failing to obtain further testing to confirm suspected brain damage where one expert suspected possible brain damage, but another expert was unable to make conclusive findings. Id. Here, trial counsel similarly relied on the opinions of two experts who told counsel they saw no signs of significant brain damage. “[T]his Court has repeatedly held that a completely reasonable investigation into mental health mitigation is not rendered unreasonable simply because the defendant has now - 33 - obtained the testimony of a more favorable mental health expert.” Turner, 143 So. 3d at 417. Thus, Morris has not demonstrated deficiency as to this claim. Accordingly, we conclude that Morris has not shown that his trial counsel was ineffective at the penalty phase of his trial and affirm the postconviction court’s denial of relief. D. Cumulative Error Morris also claims he was denied a fundamentally fair trial based on the cumulative effect of the errors that occurred. We disagree. This Court has previously explained that where there is deficient performance but we reject the individual claim for failure to show prejudice, we conduct a cumulative review of postconviction claims. See Craft v. State, 45 Fla. L. Weekly S293, S297, 2020 WL 6788794 , at *8 (Fla. Nov. 19, 2020). However, where there is no deficient performance, there is no need to consider cumulative prejudice. Brown v. State, 304 So. 3d 243 , 271 (Fla. 2020) (affirming the circuit court’s denial of relief where the defendant “has failed to show that trial counsel’s deficiencies, individually or cumulatively, establish the prejudice required by Strickland”). Accordingly, because we conclude that trial counsel’s - 34 - performance was not deficient, we reject Morris’ cumulative error claim and affirm the postconviction court’s denial of relief. E. Brady Finally, Morris claims that the postconviction court erred by summarily denying as procedurally barred his claim that the prosecution withheld a working video of the November 10, 2011, jail visit in violation of Brady v. Maryland, 373 U.S. 83 (1963). We disagree and affirm the trial court’s denial of relief. “An evidentiary hearing must be held on an initial 3.851 motion whenever the movant makes a facially sufficient claim that requires a factual determination.” Matthews v. State, 288 So. 3d 1050 , 1060 (Fla. 2019). “A court may summarily deny a postconviction claim when the claim is legally insufficient, procedurally barred, or refuted by the record.” Id. First, as the postconviction court accurately noted, the existence of the November 10 video was known to the defense team prior to trial, so the claim is procedurally barred. A Brady claim is procedurally barred if the defense knew of the evidence prior to trial and could have addressed the discovery issue then. See Jimenez v. State, 265 So. 3d 462 , 481-82 (Fla. 2018) (rejecting a Brady claim - 35 - as procedurally barred where defendant had knowledge of a predeposition interview because it was mentioned in discovery materials and because defense counsel acknowledged the interview during trial). Both parties acknowledge that the State provided Morris with notice of six jail visitation videos in an amended notice of discovery filed in April 2012 but that these videos were unable to be downloaded or viewed due to a technical issue. The defense should have addressed these issues before trial or during trial through a Richardson 5 hearing for discovery violations. And in fact, as alleged by Morris in his original motion, trial counsel appears to have acknowledged the nonworking videos during trial preparation. Accordingly, Morris’ Brady claim is now procedurally barred. Further, even if Morris’ claim was not procedurally barred, it is facially insufficient under Brady. “To establish a Brady violation, the defendant has the burden to show that: (1) the evidence was either exculpatory or impeaching; (2) the evidence was willfully or inadvertently suppressed by the State; and (3) because the evidence was material, the defendant was prejudiced.” Davis v. State, 136 5. Richardson v. State, 246 So. 2d 771 (Fla. 1971). - 36 - So. 3d 1169, 1184 (Fla. 2014). However, “[t]here is no Brady violation where the information is equally accessible to the defense and the prosecution, or where the defense either had the information or could have obtained it through the exercise of reasonable diligence.” Peede v. State, 955 So. 2d 480 , 497 (Fla. 2007) (quoting Provenzano v. State, 616 So. 2d 428 , 430 (Fla. 1993)). Morris’ motion alleges that defense counsel had notice of the existence of the jail visit videos and knew that they were unable to view the videos. Reasonable diligence would seem to require that defense counsel seek to obtain a working copy of the video after learning that they were unable to download the video. Accordingly, this claim is without merit, and we affirm the postconviction court’s summary denial of relief. III. CONCLUSION For the reasons stated above, we affirm the postconviction court’s denial of Morris’ claims. It is so ordered. CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED. - 37 - An Appeal from the Circuit Court in and for Hillsborough County, Michelle Sisco, Judge – Case No. 292010CF010203000AHC Eric C. Pinkard, Capital Collateral Regional Counsel, Adriana Cristina Corso, Ann Marie Mirialakis, and Nicole Engebretsen, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant Ashley B. Moody, Attorney General, Tallahassee, Florida, and Marilyn Muir Beccue, Senior Assistant Attorney General, Tampa, Florida, for Appellee - 38 - | opinion_html_with_citations | 8,310 | 2021-04-08 15:03:21.326183+00 | 010combined | f | f | 4,871,738 | null | null | C | f | Published | 0 | Dontae R. Morris v. State of Florida | null | null | null | null | null | null | null | null | null | null | null | 59,804,372 | SC20-155 | 0 | fla | S | t | Supreme Court of Florida | Supreme Court of Florida |
6,310,436 | Per Curiam: Admitting that the obligation sued upon in this case was technically a guaranty, yet as the affidavit of claim shows reasonable diligence in the way of collecting the plaintiffs’ bill, and also sets forth that the principal debtor was insolvent, we regard the judgment of the court below as well entered. Nor are we convinced by the argument of the learned counsel for the defendants, that the case was not one falling within the law allowing the taking of judgment for the want of a sufficient affidavit of defensa The judgment is affirmed. | opinion_xml_harvard | 95 | 2022-02-18 20:10:04.820936+00 | 020lead | t | t | 6,438,378 | null | null | U | f | Published | 0 | Stewart v. Jaffray | Stewart | William C. Stewart, Late Partners as D. Stewart & Sons, Plffs. in Err. v. Edward S. Jaffray, Partners as E. S. Jaffray & Company | <p>October Term, 1886, No. 250, W. D., before Gobdon, Paxson, Turnkey, Sterkett, Green, and Clark, JJ. Error to the Common Pleas No. 1 of Allegheny County to review a judgment for plaintiffs for want of a sufficient affidavit of defense in an action on a contract.</p> <p>The affidavit of claim set forth that defendants, D. Stewart & Sons, for value received, made, executed, and delivered to the plaintiffs, E. S. Jaffray & Company, a paper partly in writing and partly in printing as follows:</p> <p>“For and in consideration of the sale and delivery of merchandise made and which may he made hy E. S. Jaffray & Co. to Miss M. G. Stewart, hereinafter described, and of the sum of one dollar to us in hand paid hy the said E. S. Jaffray & Go. (the receipt whereof is hereby acknowledged), we hereby guarantee unto the said E. S. Ja.ffray'& Co., unconditionally, at and all times after maturity, any indebtedness (not exceeding the sum of-dollars) of Miss M. G. Stewart, now doing business in Pittsburgh, county of Allegheny, and state of Pennsylvania, for any purchase made prior to, at, or to he made after, this date, by the said Miss M. G. Stewart of the said E. S. Jaffray & Co. upon a credit of-or such other time or at any extension of time after maturity as may he given hy said E. S. Jaffray & Co. to the said Miss M. G. Stewart; and we hereby waive all the demands of payment and notice of protest as the respective bills, notes, acceptances, or other indebtedness of the said Miss M. G. Stewart, fall due. This guarantee is to he an open and continuo'us one at all times to the amount of-dollars above named until revoked hy ns in writing.</p> <p>Dated at New Tork, this 15th day of January, in the year of our Lord, one thousand eight hundred and eighty-four.</p> <p>D. Stewart & Sons.”</p> <p>That, in pursuance of such writing, plaintiffs delivered to Miss M. G. Stewart between January 17 and April 23, 1884, goods, as set forth in a hill annexed, to the amount of $1,865.45, upon which account has been paid the sum of $1,041.18, between February 23 and April 16, 1884, and no more.</p> <p>“That for months back the plaintiffs have made diligent inquiry for the whereabouts of Miss M. G. Stewart, and have been unable to find her; that on or about the 19th day of February, a. d. 1886, the plaintiffs caused suit to be instituted against her at Pittsburgh, her last known place of residence, to wit, at No. 569, March term, a. t>., 1886, in the court of common pleas No. 1, of Allegheny county, in the state of Pennsylvania, for the collection of said claim; whereupon summons were issued to the sheriff of said Allegheny county, returnable to the first Monday of March, 1886, who (the said sheriff) after due search and inquiry was unable to find her, and in due time so made return to said writ. That said Miss M. G. Stewart has no goods or chattels, rights or credits, lands or tenements anywhere but those which are exempt by law, and that she is insolvent.</p> <p>“That — by reason of said guaranty paper above recited and signed by William O. Stewart, one of the members of said firm (brother of said Miss M. G. Stewart), and afterwards admitted by him, and the facts above stated — the said firm of D. Stewart & Sons became and is indebted on said writing to them in the full amount of said claim of $824.27, with interest so as aforementioned.”</p> <p>The affidavit of defense filed by W. C.' Stewart, of the firm of D. Stewart & Sons, admitted the signing of the guaranty and alleged that at the time thereof the said M. G. Stewart was perfectly solvent; that it was distinctly understood and agreed upon between plaintiffs and defendants, at the time of signing the guaranty, that all goods sold said M. G. Stewart were to be paid for in ten days; and on payment within ten days a discount of 7 per cent was to be allowed from the face of the account; that E. S. Jaffray & Company negligently allowed their account to run for more than one year before suing or making any active effort to collect it; that at tbe time said goods were sold M. G. Stewart was solvent and so continued for several months. After said goods were sold the firm of D. Stewart & Sons became insolvent, which fact was known to plaintiffs; and at that time plaintiffs could have (by the exercise of ordinary diligence) collected their claim in full from M. G. Stewart; that no suit was brought by plaintiffs upon their claim until after M. G. Stewart had removed from Pittsburgh to the state of Kansas; that the plaintiffs, by their unreasonable delay, as aforesaid, have taken it out of defendant W. C. Stewart’s power to protect himself from loss by paying said claim and recovering, the amount thereof from the principal debtor; that reasonable care and diligence on plaintiffs’ part in pressing their claim against the original debtor would have resulted in its payment; and that the necessary legal steps to render D. Stewart & Sons liable for said debt as guarantors were not taken.</p> <p>Plaintiffs took a rule for judgment for want of a sufficient affidavit of defense, and filed, inter alia, as reasons:</p> <p>2. That the allegation in the affidavit of defense: that it was understood and agreed upon by the parties, at the time of the signing of the guaranty, that all goods sold said M. G. Stewart were to be paid for in ten days, as see terms set forth on bill, and on payment within ten days a discount of 7 per cent was to be allowed on face of claim, is no defense, and not contradictory of the affidavit of claim. There are no such set terms set forth on the bill as filed by plaintiffs; and if such an agreement was made, it does not disagree with the agreement claimed on by plaintiffs; and there is no allegation in the affidavit of defense that there was any offer to pay any of the bills claimed on by the defendants, within ten days of the time of purchase.</p> <p>3. That under the terms of the agreement claimed on, and which is not denied by the affidavit of defense, plaintiffs had a right at any time within six years to compel the payment of the money by the defendants, if the same had not been paid by said hi. G. Stewart, the purchaser.</p> <p>The court, in an opinion delivered after hearing, held that mere delay in bringing suit against the principal debtor would not release the guarantor; that the affidavit of defense was insufficient, and that the rule for judgment must be made absolute.</p> <p>The assignments of error specified such holding of the court as error.</p> <p>Until all the facts and circumstances are made known, the court cannot say whether there was unreasonable delay or a want of due diligence. National Loan & Bldg. Asso. v. Lichtenwalner, 100 Pa. 103, 45 Am. Kep. 359.</p> <p>A guarantor may be discharged by mere indulgence of the creditor to the principal. Brandt, Suretyship & Guaranty, p. 3.</p> <p>The undertaking of a guarantor is merely collateral and secondary. The creditor must resort in the first instance to the debtor; and the guarantor is liable only after the debtor has proved insolvent and the creditor has unsuccessfully used due diligence to obtain payment- from Mm. Hoffman v. Bechtel, 52 Pa. 193. See also Johnston v. Chapman, 3 Penr. & W. 18; Isett v. Hoge, 2 Watts, 128; Woods v. Sherman, 11 Pa. 100; National Loan & Bldg’. Asso. v. Lichtenwalner, 100 Pa. 103, 45 Am. Rep. 359.</p> <p>In Rudy v. Wolf, 16 Serg. & R. 82, this court has said: “It is sufficient if it be laid down that due diligence to recover the money from the obligor must be used; and what is due diligence must always be a part of the determination of a jury upon the whole evidence submitted to them.”</p> <p>This doctrine is reaffirmed in Hoffman v. Bechtel, 52 Pa. 193; Woods v. Sherman, 11 Pa. 100, and National Loan & Bldg. Asso. v. Lichtenwalner, 100 Pa. 103, 45 Am. Rep. 359.</p> <p>There being no dispute between the parties, as to the contract in suit being one of guaranty, we submit that the court below clearly erred when it made the rule for judgment absolute. Reigartv. White, 52 Pa. 438.</p> <p>The allegation on the one hand and denial on the other puts the plaintiffs upon proof of matters dehors the copy filed; and this is sufficient to prevent judgment Endlich, Affidavits of Defense, p. 250.</p> <p>The affidavit of defense law, as it is called, takes away the right of trial by jury; and hence affidavits of defense should receive a liberal construction. “If the affidavit sets forth substantially a good defense it should be supported.” Thompson v. Clark, 56 Pa. 33; McPherson v. Allegheny Nat. Bank, 96 Pa. 135.</p> <p>Otherwise the rule will be converted into a snare to entrap justice. Kountz v. Citizens Oil Ref. Co. 12 Pa. 396.</p> <p>Defendant should not be held to a rigor of statement so severe as to catch him in a mere net of forms. Lawrance v. Smedley, 6 W. N. C. 42.</p> <p>error. — An agreement, in writing, to be responsible for the debt of another has been held to be within the affidavit of defense law. Korn v. Hohl, 80 Pa. 333.</p> <p>The contract in this case is what is known in the law as a contract of indemnity, or contract of suretyship as treated of in the text books. See Addison, Contr. § 1111.</p> <p>A general and technical contract of suretyship is a direct liability to the creditor for the act to be performed by the debtor, and a general and technical guaranty is a liability only for his ability to perform the act. But it would be difficult to define the commercial contract of guaranty so clearly as to reconcile all the adjudged cases lying upon the confines between guaranty and suretyship. Beigart v. White, 52 Pa. 440.</p> <p>The creditor, in order to recover against a technical guarantor, must prove due diligence against the principal. Woods v. Sherman, 71 Pa. 104.</p> <p>In Woods v. Sherman, Justice Sharswood says: “In Sherman v. Roberts, 1 Grant Cas. 261, however, the word guarantee was held to have been used in its popular and not its technical sense — a sense, it may be remarked, which very few laymen know or consider in making contracts of this kind. The leaning of this court of late years has therefore very properly been against construing such contracts to be general guarantees.”</p> <p>In this case of Woods v. Sherman the contract was in these words: “I do hereby guarantee to Sherman & Company the payment of contract made by them with Davis & Woods to the amount of ten thousand dollars.”</p> | null | null | <p>Mere delay in bringing a suit against the principal debtor will not release the guarantor.</p> <p>An affidavit of defense setting up such delay held not sufficient in an action on a guaranty, where the affidavit of claim showed reasonable diligence in attempting to collect of the principal debtor, and that the latter was insolvent.</p> <p>Note. — A mere delay will not relieve the guarantor, there being no binding contract for extension of time (Shaffstall v. McDaniel, 152 Pa. 598, 25 Atl. 576) ; provided reasonable diligence is exercised, which is a question for the jury (Tissue v. Hanna, 158 Pa. 384, 27 Atl. 1104). And a binding contract to extend tbe time of payment will not release tlie guarantor, where tbe latter had agreed that this could be done. Koenigsberg v. Lennig, 161 Pa. 171. 28 Atl. 1016.</p> | null | null | null | Affirmed. | null | 63,095,913 | null | 0 | pa | S | t | Supreme Court of Pennsylvania | Supreme Court of Pennsylvania |
9,436,705 | E. GRADY JOLLY, Circuit Judge, dissenting: I respectfully dissent because deference is not due the Medicare Appeals Council’s unreasonable and inequitable interpretation of the regulations at issue. I. While acknowledging the risk of redundancy, the key facts bear repeating. This protracted litigation has spanned an incredible twenty-two years, beginning in 1988 when the plaintiffs first challenged their Medicare reimbursement before a Regional Administrator for the Health Care Finance Administration. They challenged two aspects of their reimbursement: the rate paid per collected specimen, and the rate paid for travel to collect samples. After two abortive attempts to bring suit, the plaintiffs began their journey through the labyrinth of agency review. In 1992, an administrative law judge (ALJ) agreed with the plaintiffs that there was no evidence to support the travel rate or the specimen rate and calculated an amount owed to the plaintiffs. The Medicare Appeals Council vacated and remanded. Again, in 1993, the ALJ found for the plaintiffs; again, this ruling was vacated and remanded. In 1995, a different ALJ again found in favor of the plaintiffs; yet, this ruling was reversed by the Appeals Council. This last reversal was appealed to the Northern District of Texas, which found against the plaintiffs. We reversed and the same case was remanded to another ALJ. In 2003, the ALJ also found for the plaintiffs, still again; the Appeals Council finally let stand the aged relief granted the plaintiffs. In 2003, the Department of Health and Human Services paid the plaintiffs’ judgment plus two months’ interest for some fifteen years’ use of the plaintiffs’ money. The plaintiffs obviously disagreed with the interest calculation and challenged it before the ALJ. The ALJ rejected the challenge; on appeal, the Appeals Council found no additional interest was due. The plaintiffs appealed to the district court, which dismissed for lack of standing; this dismissal was reversed on appeal to our court; we again remanded to the district court for adjudication on the merits. The district court granted HHS summary judgment, holding it did not owe further interest. That is the decision before our court. The plaintiffs contend interest should run from 1992 when the first ALJ issued a written opinion in their favor; the government contends that it owes only two months’ interest from 1988 through 2003. The majority, operating on automatic, nods to the Appeals Council’s discriminatory and self-serving new interpretation of the regulations. II. Under the regulations issued by the Health Care Finance Administration (now called the Centers for Medicare and Medicaid Services [CMS]), interest accrues from the date of “[a] written determina*780tion of an underpayment” “[e]xeept as required by any subsequent administrative or judicial reversal.” 42 C.F.R. § 405.378(c) (emphasis added). A -written determination issued in 1992; no subsequent administrative or judicial reversal required a different interest date for the award, as upheld. Thus plaintiffs’ proffered reading of this regulation — that interest began running in 1992, when they were first awarded a written determination of underpayment by the ALJ — is undoubtedly correct. In contrast, the Appeals Council’s interpretation' — that interest only began running some 15 years later in 2003, when the plaintiffs obtained their last administrative determination of underpayment — is not only erroneous but makes a regrettable policy choice that serves to reward agency delay and abuse. This arbitrary position cannot be considered consistent with the regulation nor with Congress’ intent in allowing interest. As HCFA explained in its response to notice-and-comment for § 405.378, One area of concern in developing these regulations involved the point at which a final determination occurs and interest begins to accrue. One approach in defining a final determination is the point after which all administrative and judicial avenues of appeal have been exhausted. We believe this approach is inconsistent with congressional intent to impose interest since it would encourage appeals simply to avoid or delay the payment of interest. Medicare Program; Interest Charges on Overpayments and Underpayments to Providers and Suppliers of Services, 47 Fed.Reg. 54811-01, 54812 (December 6, 1982) (emphasis added). Here, although the Appeals Council’s interpretation avoids exhaustion, it nonetheless defies congressional intent by encouraging appeals “simply to avoid or delay the payment of interest.” This case only too well proves that point: had it not been for the agency’s three administrative appeals, each of which arose from the agency’s groundless claim that evidence existed to support its travel-allowance-calculation methodology, there would be no question that interest began to accrue in 1992. Plainly said in street language that all such victims understand, the bureaucracy has been “jerking the plaintiffs around” — and we should not sanction an unreasonable, self-serving, and tendentious interpretation of the regulations that enables such abusive behavior.1 The majority accepts the Appeals Council’s shallow explanation that the mixed nature of the 1992 administrative judgment somehow justifies interest not accruing from that date. But there is no logic to this argument. There is no reason established in the regulations as to why interest should not run on the favorable portion of the award; the majority, lacking any recognized basis for its arbitrary position, must retreat to a reference that is merely the agency’s comment during the rulemaking process.2 Although the major*781ity argues that the debt must be established, let me remind the majority that the obligation of the government was established in 1992; the ALJ judgment was only modified when upheld on appeal. The majority’s interpretation frustrates the purpose of interest accrual: to make sure plaintiffs are compensated for the time value of money owed to them. Furthermore, the Appeals Council’s interpretation is not only unreasonable but it is discriminatory and inequitable. Under 42 C.F.R. § 405.378(e)(1), interest on an overpayment runs against a provider “during periods of administrative and judicial appeal and until final disposition of the claim.” This provision, of course, means that if the ALJ had ruled in favor of HHS in 1992 (and if HHS had ultimately prevailed), the plaintiffs would owe over 20 years’ interest. But rather than read 42 C.F.R. § 405.378(c)(ii)(B) in pari materia with this section, the Appeals Council reads it to exempt the agency from such an obligation that it imposes on others.3 It is fundamentally inexcusable to treat providers and the agency so differently with so little justification and for the reasons I have indicated herein, we owe no deference to this arbitrary and capricious interpretation. For these reasons, I respectfully dissent. . As the Supreme Court has made plain, an administrative rule or regulation is arbitrary and capricious when "the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). . Even then, the majority does not treat all such comments equally. The majority cites with favor the agency’s statement that "[t]he amount of [a] debt must be established before it becomes due and payable and thus subject to interest,” 56 Fed.Reg. 31332, 31335 (July 10, 1991), but conveniently ignores the agency’s statement "that [starting interest accrual after exhaustion of all avenues of appeal] is *781inconsistent with congressional intent ... since it would encourage appeals simply to avoid or delay the payment of interest,” 47 Fed.Reg. 54811-01, 54812 (Dec. 6, 1982). . Although the majority attempts to find refuge in sovereign immunity, the government only argued that sovereign immunity requires that we read the entire regulation narrowly; the government never argued what the majority asserts today; that sovereign immunity entitles the agency to interpret the phrase "final determination” at its pleasure, thus entitling CMS to collect interest on the one hand and deny it on the other. There is certainly no statutory basis for this rank discrimination. | opinion_xml_harvard | 1,329 | 2023-08-03 02:58:49.650773+00 | 040dissent | f | f | 151,324 | Jolly, King, Stewart | null | CU | f | Published | 0 | Texas Clinical Labs, Inc. v. Kathleen Sebel | null | TEXAS CLINICAL LABS, INC.; Texas Clinical Labs-Gulf Division, Inc.; Estate of Daniel P. Campbell; Texas Clinical Labs, LLC; Texas Clinical Labs-Gulf Division, LLC, Plaintiffs-Appellants, v. Kathleen SEBELIUS, Defendant-Appellee | null | null | <parties id="b787-4">
TEXAS CLINICAL LABS, INC.; Texas Clinical Labs-Gulf Division, Inc.; Estate of Daniel P. Campbell; Texas Clinical Labs, LLC; Texas Clinical Labs-Gulf Division, LLC, Plaintiffs-Appellants, v. Kathleen SEBELIUS, Defendant-Appellee.
</parties><br><docketnumber id="b787-7">
No. 09-10658.
</docketnumber><br><court id="b787-8">
United States Court of Appeals, Fifth Circuit.
</court><br><decisiondate id="b787-10">
July 22, 2010.
</decisiondate><br><attorneys id="b789-12">
<span citation-index="1" class="star-pagination" label="773">
*773
</span>
Richard O. Campbell (argued), William C. Brittan, Campbell Killin Brittan & Ray, L.L.C., Denver, CO, for Plaintiffs-Appellants.
</attorneys><br><attorneys id="b789-13">
Edmond Dante Anderson, III, Asst. Regional Counsel (argued), Dept, of Health and Human Services, Tami C. Parker, Asst. U.S. Atty., Dallas, TX, for Defendant-Appellee.
</attorneys><br><judges id="b789-15">
Before KING, JOLLY and STEWART, Circuit Judges.
</judges> | null | null | null | null | null | null | 965,932 | 09-10658 | 0 | ca5 | F | t | Fifth Circuit | Court of Appeals for the Fifth Circuit |
3,473,934 | On or about December 16, 1931, Mrs. George Shushan, plaintiff, purchased from the Union Title Guarantee Company, Inc., a Louisiana corporation, then domiciled and doing business in the city of New Orleans, five mortgage notes for the sum of $3,750 cash, all dated December 1, 1931, and payable five years after date. These notes bear 6 per cent. per annum interest from date until maturity, payable semiannually, and 8 per cent. per annum interest from maturity until paid. Each note is payable to bearer. The notes are numbered 1 to 5. Notes Nos. 1, 2, and 3 are in the sum of $1,000 each, note No. 4 is in the sum of $500, and note No. 5 is in the sum of $250. All of the notes are made to mature on December 1, 1936. Plaintiff has sued defendants in solido on three of these mortgage notes: Note No. 2 for $1,000, note No. 3 for $1,000, and note No. 5 for $250, or a total of $2,250, with interest at 6 per cent. per annum from December 1, 1934, to June 1, 1935, until *Page 1014 paid, together with interest at 8 per cent. per annum from June 1, 1935, until paid, and for attorney's fees, and prays for foreclosure of mortgage given as security for the payment of these notes. This suit was filed June 13, 1935. In their joint answer, defendants aver that the notes sued on are not due until December 1, 1936, and that no interest was due at the time of the institution of the suit, inasmuch as any and all payments on account of principal were made in accordance with the terms of the mortgage, and all interest was paid up to and including interest due as of December 30, 1934, and inasmuch as defendants have tendered the sum of $54.23, which they believe to be the amount due as of June 30, 1935. Defendants allege that the entire amount in dispute is as to the payments of $600 which were duly made by them to the Union Title Guarantee Company, Inc., in accordance with the schedules set forth in their answer. Defendants pray in reconvention for a full and complete accounting of any and all indebtedness which may be due by them, in accordance with the schedules set up in their answer and, after the correctness of the accounting has been determined, that defendants be permitted to pay the correct amount of interest computed on all payments; and that plaintiff's suit be dismissed and the mortgage be allowed to continue in force and effect in accordance with its terms and conditions. Defendants allege that the balance of indebtedness which is due plaintiff is the *Page 1015 sum of $1,807.93, with interest on that sum up to June 30, 1935, of $54.23; the tender by defendants of this amount to plaintiff having been rejected. Judgment was rendered by the court below in favor of plaintiff in the full amount of $2,250 sued for, with interest at 6 per cent. per annum from December 1, 1934, to June 1, 1935, together with interest at 8 per cent. per annum thereon from June 1, 1935, until paid, with the additional amount of 10 per cent. on the principal and interest as attorney's fees. The judgment also decrees the foreclosure of the mortgage, and provides for a deficiency judgment, if sufficient funds are not realized from the sale of the property to pay demands of plaintiff. From this judgment defendants have taken a suspensive appeal to this court. 1. All of the notes sued upon by plaintiff are drawn up as follows, except as to amount: "Union Title Guarantee Company, Inc. "New Orleans "$1,000.00 First Mortgage Note Due December 1, 1936 "New Orleans, Louisiana, December 1, 1931 "For value received, I, we, or all of us in solido promise to pay to the order of bearer Five Years after date the sum of $1,000.00 Dollars, with interest thereon at the rate of six per cent. per annum from date until maturity, payable semiannually, and with interest at the rate of eight per cent per annum from maturity until paid. "Principal and interest of this note are payable solely at the office of Union Title *Page 1016 Guarantee Company, Inc., New Orleans, La. "This note is secured by a First Mortgage on real estate duly recorded on the records of Orleans Parish, Louisiana, to which records, and the notarial act identified herewith, reference is hereby made for a complete statement of the nature and extent of the security and the terms upon which this note is issued and held . "No. 2 [Signed] Mrs. H.L. Trepagnier "H.L. Trepagnier" (Italics ours) Reference is made in the note to the records and the notarial act identified with the note, not merely for a complete statement of the nature and extent of the security, but also as to "the terms" upon which the note "is issued and held," i.e., so that the holder might know and comply with the terms stated in the recorded notarial act. In other words, the terms in the recorded act of mortgage, identified with the note, have been read into the note itself, and are binding upon the holder, as well as upon the maker. The notes sued upon are clearly nonnegotiable, and are subject to the same defenses in the hands of the bona fide purchaser for value (plaintiff) as are available against her transferor (the Union Title Guarantee Company). It is provided in the act of mortgage as to "the terms upon which the note is issued and held" that: "The principal and interest of the above notes, shall be payable solely at the office of said Union Title Guarantee Company, Inc., in the City of New Orleans, Louisiana. The deposit by the mortgagor with said Company in cash of the amount *Page 1017 necessary to pay the principal and interest (and such other amounts, if any, as may be due to the holder or holders of said mortgage notes in accordance herewith) shall constitute full payment as between the mortgagor and the holder or holders of said notes. The holder or holders of said notes shall not be entitled to receive interest on the moneys deposited with said Company. Upon such deposit being made, the holder or holders of said notes shall be excluded from the lien of this mortgage and shall look for payment of principal and interest and any other amounts that may be due only to the funds so deposited with said Company and in no event to the mortgagor; but said moneys so deposited with said Company shall be paid by said Company to the holder or holders of said notes, respectively, upon presentation of said notes, either for cancellation or for notation of partial payment thereon as the case may be. And, upon the demand of the mortgagor, said Company shall be and it is hereby authorized to execute a partial release of the mortgage to the extent of the payment so made by said mortgagor to said Company as herein authorized." In commenting upon the same provisions in a similar act of mortgage in Tropical Printing Company, Inc., v. Union Title Guarantee Co., Inc., 180 La. 702 , at pages 721 and 722, 157 So. 534 , 540, Chief Justice O'Niell said: "It is contended by the receivers that the stipulations which we have quoted from the promissory notes and the acts of mortgage did not oblige the Union Title Guarantee Company to keep a separate bank account or deposit of the funds deposited by note makers, with the *Page 1018 corporation, as agent for the note holders. But our opinion is that the stipulations which we have quoted did impose that obligation upon the Union Title Guarantee Company. In the first place, the stipulation in the notes themselves, as well as in the acts of mortgage, that the principal and the interest were both payable solely at the office of the Union Title Guarantee Company, was the same as to stipulate that there should be no payment or tender of payment to the holders of the notes, and was therefore an unusual stipulation. It is not unusual to stipulate in a promissory note that it is payable at a specified bank or office, leaving it optional with the holder of the note to present it for payment either at the place stipulated or to the maker in person. But a stipulation in a note that it is payable `solely' at the office of a designated third party is very unusual and significant. The additional stipulations in these acts of mortgage leave no doubt that the money deposited by note makers with the corporation, as agent for the note holders, should have been kept separate and apart from the company's funds, and identified as belonging to the note holders, viz.: (1) That a deposit of the amount due on a mortgage note, by the mortgagor, with the corporation, should discharge the mortgagor from liability; (2) that the holder of a mortgage note should not be entitled to interest on the money so deposited, after the making of the deposit; (3) that the deposit should have the effect of releasing the mortgage or lien; (4) that the holder of the mortgage note should look only to the funds so deposited with the company, `and in no event to the mortgagor'; and (5) that the company had *Page 1019 authority to release the mortgage to the extent of a payment so made. As the corporation — and no one else — could receive a payment due on the mortgage note, and could release the mortgage to the extent of the amount received, the holder of the mortgage note or notes had no security whatever, except the financial responsibility of the Union Title Guarantee Company, if the company was not obliged to keep the note holders' money separate and apart from its own funds." (Italics partly ours.) The payments made by the defendants to the Union Title Guarantee Company were made to the proper person, as "no one else — could receive a payment due on the mortgage note, and could release the mortgage to the extent of the amount received." Defendants are therefore entitled to credits on the notes sued upon for these payments. It would be almost impossible to conceive an instrument so unusual in its stipulations and so diametrically opposed to the provisions of the Negotiable Instrument Law of the State (Act No. 64 of 1904) as is the act of mortgage in this case. The notes sued upon being subject to the terms of the act of mortgage, another contract, are clearly not negotiable. This is "Hornbook Law," and too well settled for discussion. 2. In article 9 of their joint answer, defendants quote and rely upon these provisions in the act of mortgage for credits for partial payments made to the Union Title Guarantee Company, Inc., on the notes purchased by plaintiff from that company. It is specifically stated in these provisions that: "Upon such deposit being made, the *Page 1020 holder or holders of said notes shall be excluded from the lien of this mortgage and shall look for the payment of principal and interest and any other amounts which may be due only to the funds so deposited with said Company and in no event to the mortgagor; but said moneys so deposited with said Company shall be paid by said Company to the holder or holders of said notes, respectively, upon the presentation of said notes, either for cancellation, or for notation of partial payment thereon as the case may be." (Italics ours.) No previous written notice of the intention of the maker of mortgagor to make a partial payment on a note is required in the provisions of the act of mortgage. It is only when the maker or mortgagor exercises "the privilege of prepaying all or any of said notes" that previous written notice is required, as shown by the following clause in the act of mortgage: "The Mortgagor shall have the privilege of prepaying all or any of said notes on any interest payment date, provided that said mortgagor shall give written notice of his intention so to do to said Union Title Guarantee Company, Inc., at least thirty (30) days prior to such interest payment date, and shall, on such interest payment date, pay the principal of the note to be prepaid, and all accrued interest thereon, and a premium of one per cent. of such principal." (Italics ours.) In other words, when the maker or mortgagor makes a payment to the company, in accordance with the provisions of the act of mortgage, that ends the matter as far as the responsibility of the maker or mortgagor *Page 1021 is concerned, and the holder of the note must look "for payment only to the funds so deposited with said Company and in no event to the mortgagor." The company alone must pay the money deposited by the maker or mortgagor to the holder of the note or notes, and no one else is liable. For these reasons, our conclusion is that defendants are entitled to all partial payments made by them to the Union Title Guarantee Company, Inc., in this case. When these payments were made, it became the duty of plaintiff, the holder, to present these notes to the Union Title Guarantee Company, Inc., "for notation of partial payments," as expressly provided in the act of mortgage, which is the law between the parties. The holder is referred, upon the face of the note, to the notarial act of mortgage for "the terms" upon which these notes are "issued and held." Under the provisions of the act of mortgage, defendants, the makers, were under no obligation whatever, either to make direct payment to plaintiff, the holder, or to give notice of partial payment to the holder. These obligations rested solely upon the shoulders of the Union Title Guarantee Company, Inc., the receiver and sole disburser of the trust funds received from defendants. 3. This case was tried on an "Agreed Statement of Facts," found at pages 12 to 15 in the transcript. These notes are dated, for convenience, December 1, 1931, and are due December 1, *Page 1022 1936, while the act of mortgage is dated December 16, 1931. In the "Agreed Statement of Facts" it is admitted that the following partial payments were made to the Union Title Guarantee Company, Inc., by defendants: January 12, 1932 ...................................... $ 50.00 February 15, 1932 ..................................... 50.00 March 31, 1932 ........................................ 50.00 April 30, 1932 ........................................ 50.00 June 1, 1932 .......................................... 50.00 July 1, 1932 .......................................... 50.00 August 3, 1932 ........................................ 50.00 September 1, 1932 ..................................... 50.00 October 3, 1932 ....................................... 50.00 October 29, 1932 ...................................... 50.00 December 2, 1932 ...................................... 50.00 January 4, 1933 ....................................... 50.00 ------- Total partial payments ......................... $600.00 On June 1, 1932, plaintiff, the holder, presented all of the five notes purchased from the Union Title Guarantee Company, Inc., at its office in the city of New Orleans, and received $103.13, which represented the semiannual interest on these notes from December 16, 1931, to June 1, 1932. On December 1, 1932, plaintiff, the holder, presented all of the notes at the office of this company and received $112.50, which represented the semiannual interest upon these notes from June 1, 1932, to December 1, 1932. On January 4, 1933, defendants made their last payment of $50, and at that time had in the hands of the Union Title Guarantee Company, Inc., a balance of $384.37 to their credit. On January 6, 1933, the Union Title Guarantee Company, Inc., filed receivership *Page 1023 proceedings in the civil district court for the parish of Orleans, and receivers were appointed on the same day. Defendants were placed on the receivers' account as a privileged creditor in the amount of $50, which was the $50 delivered by defendants to the Union Title Guarantee Company, Inc., on January 4, 1933, the last payment made, but the civil district court decreed that this account should be amended by eliminating defendants. No appeal was taken from this decree and the time for appeal has elapsed. On June 2, 1933, defendants delivered to plaintiff $112.50, which was the amount necessary to pay semiannual interest for the period commencing December 1, 1932, and ending June 1, 1933, and was so applied by the plaintiff, the holder of the notes. On December 6, 1933, defendants delivered to plaintiff, holder of the notes, $1,012.50. The sum of $112.50 was applied toward the payment of the semiannual interest from June 1, 1933, to December 1, 1933. By agreement between the plaintiff and defendants, the balance of $900 was applied to the principal of note No. 1 for $1,000, although it was not then due. The payment of $900 on note No. 1 for $1,000 reduced the balance due on the five notes purchased by plaintiff, aggregating the sum of $3,750, to $2,850. On June 1, 1934, defendants paid plaintiff the sum of $85.50, the semiannual interest on $2,850 from December 1, 1933, to June 1, 1934. At the time of the payment of the above-stated sums, June 2, 1933, December 6, 1933, and June 1, 1934, an agreement was entered into to the effect that these payments should *Page 1024 not prejudice either plaintiff's or the defendants' rights insofar as the sums delivered by defendant to the Union Title Guarantee Company, Inc.; were concerned. On December 6, 1934, defendants paid plaintiff $685.50, under an agreement in a letter of same date written by plaintiff's attorneys to defendants, stating that $500 should be applied in full payment of note No. 4 for $500, and $100 applied toward payment of balance of note No. 1, and $85.50 applied toward payment of semiannual interest from June 1, 1934, to December 1, 1934. An act of partial release of mortgage covering notes Nos. 1 and 4 was executed and duly filed in the mortgage office for the parish of Orleans. These payments were applied to note No. 4 and the balance due on note No. 1, on December 6, 1934, as shown by letter of plaintiff's attorneys to defendants. At that date all interest due by defendants had been paid, and plaintiff's notes Nos. 2, 3, and 5, aggregating $2,250, did not fall due until December 1, 1936. As already stated, defendants have invoked the provisions contained in the act of mortgage. At the time of the receivership proceedings of the Union Title Guarantee Company, Inc., there remained in its possession $384.37, consisting of sums delivered to it by defendants. Neither that company nor its receivers have paid that amount, or any part of it, to either plaintiff or defendants. Defendants have repeatedly protested, and do now protest in this suit, against the payment of the principal and interest of *Page 1025 the notes, without credit being allowed on the notes for payments made by defendants to the Union Title Guarantee Company, Inc. Plaintiff made amicable demand upon defendants on June 1, 1935, for the sum of $67.50, which was the amount claimed as semiannual interest on $2,250 covering the period from December 1, 1934, to June 1, 1935, and without allowing the credit of $384.37 on the notes. But defendants refused to pay same on the ground that they owed only $54.23 in interest, after the credit of $384.37 was allowed. Plaintiff thereupon made demand upon defendants for the sum of $2,250, the full face value of the notes, together with $67.50 interest on the full amount, or 6 per cent. per annum interest from December 1, 1934, to June 1, 1935, together with 10 per cent. attorney's fees on the principal and interest. In addition to the $600 paid to the Union Title Guarantee Company in accordance with the provisions of the act of mortgage, defendants paid to Mrs. Shushan, plaintiff, after they were advised that she was the holder of the notes, the following amounts, all of which in so far as interest is concerned were paid under protest: June 1, 1933 ....................................... $ 125.00 December 1, 1933 ................................... 1,012.50 June 1, 1934 ....................................... 85.50 December 1, 1934 ................................... 685.50 --------- Total payments .............................. $1,908.50 The above is one of the schedules in defendants' answer, and the other schedule in the answer is as follows: *Page 1026 Original Loan 1932 $3,750.00 Paid to June 30, 1932 $300.00 6 mos. interest $3,750.00 @ 6% $ 112.50 187.50 --------- -------- $3,562.50 Paid to December 31, 1932 $300.00 6 mos. interest $3,562.50 @ 6% $ 106.88 193.12 --------- --------- $3,369.38 1933 Paid June, 1933 $125.00 6 mos. interest $3,369.38 @ 6% $ 101.08 23.92 ---------- --------- $3,345.46 Paid December, 1933 $ 1,012.50 6 mos. interest $3,345.46 @ 6% $ 100.36 912.14 ---------- --------- $2,433.32 1934 Paid June, 1934 $85.50 6 mos. interest $2,433.32 @ 6% $ 72.99 12.51 ---------- --------- $2,420.81 Paid December, 1934 $685.50 6 mos. interest $2,420.81 @ 6% $ 72.62 612.88 --------- --------- $1,807.93 6 mos. interest $1,807.93 @ 6% $ 54.23 The balance of indebtedness due plaintiff, after allowing credits for the $600 paid by defendants to Union Title Guarantee Company, is the sum of $1,807.93 with semiannual interest up to June 1, 1935, of $54.23. It is stated in the "Agreed Statement of Facts": "That amicable demand was made by plaintiff upon defendants on June 1, 1935 for the sum of $67.50, which was the amount plaintiff claimed as the semi-annual interest covering the period from December 1, 1934 to June 1, 1935, but defendants refused to pay same on the grounds that they only owed $54.23 in interest, and that defendants *Page 1027 thereupon tendered to plaintiff the sum of $54.23 in full payment of said interest, which was refused by plaintiff on the grounds that plaintiff contended that she was entitled to $67.50." Tr., pp. 14 and 15. (Italics ours.) As this contention is based upon the full amount of $2,250, the face value of the notes, without any credits being allowed on the notes for the $384.37 claimed by defendants, it is not well founded, since we find the schedule shown above allows proper credits on the notes sued upon. It is true that it is provided in the act of mortgage, in case of nonpayment of any of the mortgage notes or of any interest thereon when due, that all said mortgage notes, in principal and interest, shall at the option of the holder or holders of said mortgage notes immediately become due and payable. But, as legal tender of the semiannual interest of $54.23, due on June 1, 1935, was made to plaintiff on that day by defendants, when demand was made for the payment of interest, and as the amount tendered by defendants was the correct amount then due, plaintiff should have accepted that amount, and is without just or legal grounds to resort to the foreclosure of the mortgage in this case. For the reasons assigned, it is ordered that the judgment appealed from be annulled and reversed. It is now ordered that plaintiff's suit be dismissed at plaintiff's costs, with reservation to defendants of the right to pay to plaintiff the sum of $54.23, due plaintiff as *Page 1028 semiannual interest on June 1, 1935; said amount having been duly tendered by defendants, when due, and refused by plaintiff. | opinion_html_with_citations | 3,912 | 2016-07-05 20:44:45.366536+00 | 020lead | f | f | 3,474,710 | Land | null | ZU | f | Published | 0 | Shushan v. Trepagnier | Shushan | SHUSHAN v. TREPAGNIER Et Al. | null | null | <citation id="b546-5">
175 So. 651
</citation><br><parties id="b546-6">
SHUSHAN v. TREPAGNIER et al.
</parties><br><docketnumber id="b546-7">
No. 33963.
</docketnumber><br><decisiondate id="b546-8">
May 24, 1937.
</decisiondate><br><otherdate id="b546-9">
Rehearing Denied June 21, 1937.
</otherdate><br><attorneys id="b547-7">
<span citation-index="1" class="star-pagination" label="1013">
*1013
</span>
Felix Wilfred Gaudin and Hilary J. Gau■din, both of New Orleans, for appellants.
</attorneys><br><attorneys id="b547-8">
Rittenberg & Rittenberg, of New Orleans, for appellee.
</attorneys> | null | Appeal from Civil District Court, Parish of Orleans; Michel Provosty, Judge.
Suit by Mrs. George Shushan against Mr. and Mrs. Henry Louis Trepagnier, in solido. From a judgment for plaintiff, defendants appeal suspensively.
Reversed, and suit dismissed, with reservation. | null | null | null | null | 3,346,835 | No. 33963. | 0 | la | S | t | Supreme Court of Louisiana | Supreme Court of Louisiana |
2,898,711 | NO. 07-08-0356-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C SEPTEMBER 25, 2009 JOHNNY SANCHEZ, APPELLANT V. THE STATE OF TEXAS, APPELLEE FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY; NO. 07-03-6387; HONORABLE PAT PHELAN, JUDGE Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. ABATEMENT AND REMAND Following a plea of not guilty, Appellant, Johnny Sanchez, was convicted by a jury of possession of a controlled substance. On August 20, 2008, he was sentenced by the trial court to seven years confinement and a fine of $10,000. On September 5, 2008, Appellant’s retained trial counsel, Anna J. Ricker, filed a motion for new trial. On September 8, 2008, Ms. Ricker filed a notice of appeal with the Hockley County District Clerk.1 Because a motion for new trial was filed, the appellate record was originally due on December 18, 2008. In November 2008, the Official Court Reporter requested an extension of time in which to prepare and file the reporter’s record. The court reporter indicated that Appellant had not submitted a written designation nor made arrangements to pay for the record. In response to the aforementioned request for extension of time, by letter dated November 25, 2008, this Court directed Ms. Ricker, as attorney of record for Appellant on appeal, to certify in writing whether she had complied with the Texas Rules of Appellate Procedure regarding requesting and paying for the appellate record. A deadline of December 15, 2008, was set for her response. Because the reporter’s record was not past due, no formal action was taken on the reporter’s request for an extension. On January 8, 2009, Ms. Ricker responded by letter to the Clerk of this Court as follows: [t]his letter is to inform you that we do not represent Mr. Johnny Sanchez on his appeal. He is represented by Mr. Dan Hurley. Please forward any other correspondence to him. Let me know if you require anything further from me. In the meantime, in December 2008, the Hockley County District Clerk also requested an extension of time in which to prepare and file the clerk’s record. The district clerk noted that a written designation had not been filed and that, although an affidavit of 1 Both the Motion for New Trial and the Notice of Appeal were signed by Anna T . M cSpadden (a licensed attorney) over a signature line for the Ricker Law Firm , Anna J. Ricker and Anna T. McSpadden. Because M s. R icker was Appellant’s trial counsel, and because Ms. Ricker’s nam e appeared first on the Notice of Appeal, this Court considered her to be lead counsel. 2 indigency had been filed, no order allowing Appellant to proceed without payment of costs had been entered. The Clerk of this Court was notified that a hearing on affidavit of indigency was scheduled for December 22, 2008. The clerk’s request for an extension was granted and the deadline for filing the appellate record was extended to January 19, 2009. By letter of January 23, 2009, this Court notified Ms. Ricker that pursuant to Rule 6.1(a) of the Texas Rules of Appellate Procedure, she remained Appellant’s lead counsel and, pending her withdrawal pursuant to Rule 6.5, she bore the responsibility for requesting preparation and payment of the appellate record. Ms. Ricker was directed to certify, in writing, compliance with the Texas Rules of Appellate Procedure on or before February 6, 2009, noting that failure to do so might result in the appeal being abated and the cause remanded for further proceedings. The February 6th deadline lapsed without a response, and on February 10, 2009, the Clerk of this Court made inquiry with the Hockley County District Clerk regarding Appellant’s representation. The Clerk of this Court was notified that no order appointing counsel to represent Appellant on appeal had been entered and that Ms. Ricker remained the attorney of record. To protect Appellant’s rights and determine his representation, the appeal was abated and the cause was remanded to the trial court on February 11, 2009. Per this Court’s order, the trial court conducted a hearing and entered Findings of Fact and Conclusions of Law. On February 23, 2009, the trial court granted Daniel Hurley’s Motion to Substitute Counsel. 3 Upon reinstatement after abatement, on March 17, 2009, this Court notified all parties that the appellate record would be due on April 16, 2009. On April 17, 2009, the Hockley County District Clerk filed a second request for an extension of time in which to prepare and file the clerk’s record. Again the clerk noted that Appellant had not filed a written designation, nor paid or made arrangements for the payment of the clerk’s fee for preparation of the clerk’s record. The request for extension was granted and the deadline for filing the record was extended to June 4, 2009. The reporter’s record was filed April 21, 2009, and the clerk’s record was filed May 19, 2009. Appellant’s brief was originally due on June 18, 2009, but was not filed. On June 29, 2009, Appellant was notified by letter of the deficiency and also admonished that failure to file the brief on or before July 9, 2009, would result in abatement of the appeal and a remand to the trial court for further proceedings. On July 9, 2009, Mr. Hurley filed a motion for extension of time in which to file Appellant’s brief citing as his reason that despite “diligent efforts to obtain the record . . . the trial court clerk has repeatedly declined to make a copy of the record available . . . .” Counsel suggested that assistance from this Court might be necessary. That motion was granted and the deadline to file Appellant’s brief was extended to August 10, 2009. As Rule 35.3(c) of the Texas Rules of Appellate Procedure imposes a responsibility on this Court to ensure the timely filing of the appellate record, the Clerk of this Court made an inquiry with the Hockley County District Clerk regarding Mr. Hurley’s assertion that the 4 clerk’s record was not being provided to him in order to prepare Appellant’s brief. By letter dated July 10, 2009, to Mr. Hurley and copied to this Court, the Hockley County District Clerk informed Mr. Hurley that no request for the clerk’s record had been received from his office. The letter continued that the trial court was informed of the contents of Mr. Hurley’s motion for extension of time and concluded, “if you need a reason to ask for an extension of time [do] not use this office, unless it is actually warranted.” The August 10 deadline lapsed without Appellant’s brief being filed. On August 14, 2009, this Court received Appellant’s second motion for extension of time to file Appellant’s brief. The motion was signed by Aaron R. Clements, who recited that he had been assigned responsibility for preparation of the brief and explained he had undergone medical treatment due to a vehicular collision in May 2009 and medical procedures related to LASIK surgery in July 2009. Mr. Clements requested an extension to August 20, 2009. The motion was granted and the deadline to file Appellant’s brief was extended to August 20, 2009. The August 20 deadline also lapsed without Appellant’s brief being filed. On September 8, 2009, Mr. Clements filed yet another motion for extension of time explaining he had undergone medical treatment for severe back problems, but indicating he would be “capable of completing the brief” in the next two weeks. The motion was granted and the deadline to file Appellant’s brief was extended to September 14, 2009. 5 Now the September 14 deadline (the fifth deadline for filing Appellant’s brief) has come and gone and still no brief has been filed. Our patience is exhausted. This case has been on appeal for over a year, and the Court has generously granted numerous extensions in which to file both the appellate record and Appellant’s brief. Although Mr. Clements may have been “assigned” the responsibility for filing the brief, Mr. Hurley continues to be the attorney of record on appeal. We find that counsel has been dilatory in fulfilling his responsibility to timely file the brief. Consequently, we again abate the appeal and remand the cause to the trial court for further proceedings. Upon remand, the trial court shall use whatever means necessary to determine why Mr. Hurley has failed to timely file Appellant’s brief and take such action as is necessary to ensure that the brief is filed with the Clerk of this Court on or before October 9, 2009. If counsel does not file Appellant’s brief on or before October 9, 2009, (i.e., even if a brief is filed after that date), pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure, the trial court is directed to immediately conduct a hearing to determine the following: 1. whether Appellant still desires to prosecute this appeal; 2. whether Appellant is indigent, 3. why Appellant’s counsel has failed to file a brief and whether counsel has effectively abandoned this appeal given his failure to timely file Appellant’s brief; and 4. whether Appellant has been denied effective assistance of counsel. 6 On or before October 30, 2009, the trial court shall enter an order containing findings of fact and conclusions of law addressing each of these issues. In addition to filing that order, a copy of the same shall be forthwith delivered to the Clerk of this Court. Finally, the trial court shall cause a supplemental clerk’s record containing that order to be filed with the Clerk of this Court as soon as practicable. It is so ordered. Per Curiam Do not publish. 7 | opinion_plain_text | 1,617 | 2015-09-08 23:45:21.213928+00 | 010combined | f | f | 2,898,711 | null | null | C | f | Published | 0 | Johnny Sanchez v. State | null | null | null | null | null | null | null | null | null | null | null | 2,755,742 | 07-08-00356-CR | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
6,553,443 | JOHN B. ROBBINS, Judge. Appellant Paul Towery brought a workers’ compensation claim against appellee Hi-Speed Electrical Company, alleging that he sustained a compensable injury on November 7, 1997, which ultimately resulted in surgery to repair a herniated disc at C6-7 on June 10, 1999. Mr. Towery sought medical expenses, temporary total disability benefits from May 24, 1999, through October 25, 1999, and benefits for a seven-percent permanent partial impairment. After a hearing, the Workers’ Compensation Commission found that Mr. Towery failed to prove that his neck problems were causally related to his work, and denied his claim. Mr. Towery appeals from the decision of the Commission, arguing that it is not supported by substantial evidence. On cross-appeal, Hi-Speed Electrical argues that the Commission lacked jurisdiction1 because Mr. Towery elected a remedy by filing his workers’ compensation claim in Tennessee. We affirm on direct appeal and on cross-appeal. We first address the appellee’s cross-appeal challenging the propriety of the Commission’s exercise of jurisdiction over Mr. Tow-ery’s claim. The record shows that appellee is a Tennessee corporation, but Mr. Towery’s residence and the site of the alleged compensable injury are in Arkansas. In a correspondence dated November 18, 1999, the Tennessee Department of Labor acknowledged receipt of a “First Report of Injury” form. However, this form is not in the record and testimony showed that it was apparently filed by Hi-Speed Electrical on June 24, 1999. The only other document in the Tennessee file is a notice indicating that the appellee was denying the compensation claim as of June 29, 1999. Nothing in the Tennessee file bore Mr. Towery’s signature. Mr. Towery filed his claim with the Arkansas Workers’ Compensation Commission on August 18, 1999. Len Atkins, an employee of appellee’s insurance carrier, testified that he had a telephone conversation with Mr. Towery on June 29, 1999, and that he explained to Mr. Towery that he could elect to bring a workers’ compensation claim in either Arkansas or Tennessee. According to Mr. Atkins, Mr. Towery inquired about the difference in potential benefits, and Mr. Atkins told him that he could recover a higher amount if he filed in Tennessee. Mr. Atkins testified that he informed Mr. Towery that the limitations periods differed in that his claim was barred one year after the date of injury in Tennessee, as opposed to two years in Arkansas.2 Mr. Atkins testified that Mr. Towery told him that he preferred to file his claim in Tennessee, and stated that “I could only assume he was under the assumption that we were going to deny his claim” because the statute of limitations had already expired in that State. For its argument that Mr. Towery’s claim in Arkansas was barred because he elected a remedy in Tennessee, appellee cites Biddle v. Smith & Campbell, Inc., 28 Ark. App. 46, 773 S.W.2d 840 (1989), where we held that the determination as to whether an election of remedies was made depends on whether the claimant actively initiated proceedings or knowingly received benefits pursuant to the laws of another state. We disagree with appellee and hold that the Commission correctly ruled that Mr. Towery’s claim was not barred by the election-of-remedies doctrine. It is undisputed that, unlike the situation in Biddle, supra, the appellant in the instant case received no benefits from another state. Nor are we persuaded that Mr. Towery “actively initiated” the Tennessee proceedings. After Mr. Towery informed the appellee that he was bringing a workers’ compensation claim, the appellee elected to file a “First Report of Injury” in Tennessee. Shordy thereafter, a representative of appellee’s insurer advised Mr. Towery that benefits might be slightly higher if he filed his claim in Tennessee, knowing full well that any action in that state was completely barred by the applicable statute of limitations. Although the insurer’s agent testified that he explained the. statute of limitations provisions to Mr. Towery, Mr. Towery denied this and it is evident that he did not understand them or he would not have agreed to file the claim in Tennessee. At any rate, the only document filed in response to Mr. Towery’s verbal representation that he preferred to proceed in Tennessee was the appellee’s notice that it was denying the claim. Mr. Towery filed nothing in Tennessee, and his verbal preference made in response to the advice of the insurance representative falls well short of actively initiating Tennessee proceedings and electing a remedy in that state, and for these reasons the Commission committed no error in ruling that his claim in Arkansas was not barred by the election-of-remedies doctrine. We now turn to the merits of Mr. Towery’s point on direct appeal that the Commission’s decision denying compensability was not supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. American Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998). The Commission’s decision will be affirmed unless fair-minded persons with the same facts before them could not have arrived at the same conclusion. Gansky v. Hi-Tech Eng’g, 325 Ark. 163, 924 S.W.2d 790 (1996). In cases where a claim is denied because a claimant failed to show entidement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires that we affirm if a substantial basis for the denial of relief is displayed by the Commission’s opinion. Hooks v. Gaylord Container Corp., 67 Ark. App. 159, 992 S.W.2d 844 (1999). At the hearing, Mr. Towery testified that he has worked for the appellee from August 1997 through the present. He was attempting to load a 500 or 600-pound “jenny lift” onto a truck when it flipped. At that time, a pull bar at the bottom of the heavy equipment struck him in the chin, busted his lip, and almost knocked him out. Mr. Towery continued to work that day, but he reported the accident to his supervisor and an investigative report was filed. Mr. Towery testified that, two or three days after the accident, he had a swollen and irritated place on the back of his neck, although “it didn’t really hurt that bad at the time.” He stated that four or five months later he began experiencing numbness in his left shoulder. He first sought medical treatment when he visited Dr. Grady Collum in September 1998, about ten months after the accident. When he visited Dr. Collum, Mr. Towery did not know what was causing his problems, and he was diagnosed with bursitis. He was eventually referred to Dr. Guy L’Heureux, who continued conservative treatment without success. An MRI was conducted on May 28, 1999, which revealed a disc herniation at C6-7. Drs. John Lindermuth and Rommel Childress performed fusion surgery to repair the herniation on June 10, 1999, and Dr. Lindermuth subsequently assigned a seven-percent permanent impairment rating. On direct examination, Mr. Towery testified that he suffered no other accidents that could have caused his neck injury, and he also asserted that he had no medical or physical problems when he began working for the appellee. However, on cross examination Mr. Towery acknowledged that he experienced back pain while working for a former employer and also experienced neck pain. He also acknowledged that he had been seeking treatment for back pain and pain in his right shoulder since as early as July 1996. The medical evidence in this case documents a history of back and neck problems that predates the November 7, 1997, accident. A July 11, 1996, medical report by Dr. James Merritt references radiating shoulder pain and back and neck discomfort. A medical report from Dr. Shakeb Hashni, dated March 17, 1997, indicates that Mr. Towery was complaining of lower and upper back pain. Dr. Thrash, a chiropractor, reported on March 31, 1997, that Mr. Towery was complaining of back and neck pain. As a result of his diagnosis on that day, Dr. Thrash took Mr. Towery off of work from that date through May 1, 1997. The only medical report directly addressing the compensability of Mr. Towery’s injury was filed by Dr. Childress on June 18, 1999. In that report, Dr. Childress stated, “I have advised him that with the history that he has given, that [the accident] is the likely source of the disc rupture [.]” For reversal of the Commission’s decision, Mr. Towery argues that the Commission erred in failing to credit the opinion of Dr. Childress and that there was no medical evidence or testimony suggesting any cause for the herniation other than the work-related accident. While acknowledging that he had some medical problems that pre-existed the accident, Mr. Towery submits that these problems were different than his subsequent problems in that they generally affected his back and not his neck. Mr. Towery notes that he passed a pre-employment physical examination, and asserts, “There is simply no evidence that the disc herniation was caused in any manner other than the November 7, 1997, blow to the face.” We hold that the Commission’s opinion displays a substantial basis for its finding that Mr. Towery failed to prove a causal connection between his disc herniation and the November 7, 1997, accident. Contrary to Mr. Towery’s argument, the medical evidence showed that he was suffering from both back and neck problems prior to the accident. Indeed, when Dr. Thrash took Towery off work for the month of April 1997, his report indicated both back and neck complaints, and his primary diagnosis on a disability claim form was cervicalgia. The Commission gave little weight to Dr. Childress’s opinion that the neck condition was likely compensable, noting that his opinion was in part based on an inaccurate history given by Mr. Towery, who told Dr. Childress that he experienced no pain or difficulty prior to the incident at work. It is well settled that the weight to be given medical testimony is for the Commission to determine. See Wal-Mart Stores, Inc. v. VanWagner, 63 Ark. App. 235, 977 S.W.2d 487 (1998). Moreover, the evidence showed that Mr. Towery continued to work after the accident and experienced no symptoms of numbness for four or five months, and that he failed to seek medical treatment until more than ten months later. Under these facts, fair-minded persons could have come to the Commission’s conclusion that Mr. Towery failed to establish a compensable injury. Affirmed on direct appeal and on cross-appeal. Baker and roaf, JJ., agree. Although appellee sometimes refers to a lack of jurisdiction of the Arkansas Workers’ Compensation Commission to entertain Mr. Towery’s claim, appellee does not actually argue that the presumption ofjurisdiction created in Ark. Code Ann. § 11-9-707(1) was rebutted. Appellee’s argument is based upon the election of forum or remedies doctrine. In his testimony, Mr. Towery denied that the statutes of limitations were discussed in their conversation. | opinion_xml_harvard | 1,802 | 2022-07-19 22:31:47.104606+00 | 020lead | t | f | 6,674,592 | Agree, Baker, Roaf, Robbins | null | U | f | Published | 0 | Towery v. Hi-Speed Electrical Co. | Towery | Paul TOWERY v. HI-SPEED ELECTRICAL COMPANY | null | null | null | null | null | null | null | null | null | 63,653,237 | CA 01-195 | 0 | arkctapp | SA | t | Court of Appeals of Arkansas | Court of Appeals of Arkansas |
7,935,432 | Grant, J. It is conceded in -this case that tbe court properly instructed the jury upon the measure of damages, but it is claimed that the court erroneously instructed them on the questions of negligence involved. Upon all these questions the jury found for the plaintiff, and I deem it unnecessary to discuss them. *512It is insisted that the jury- were probably prejudiced upon the measure of damages by improper instructions upon the law of negligence. I cannot accede to this proposition. The law casts no such reflection upon honest and intelligent jurors. The law does not presume that a jury, which found the defendant liable notwithstanding erroneous instructions by the court, has been prejudiced thereby in their assessment of damages, especially in a case like the" present one. The verdict was for $150. What should have been the amount of damages so that the Court would say that they were not probably prejudiced? The result of this rule would be that a court must correctly instruct the jury upon all branches of every case, in order to avoid prejudicing the jury in their assessment of damages. But, in determining the question as applied to the present case, it is proper to consider the allegations in the declaration as to the injury and the consequent damages, and the proofs. The only allegation of special damages is— “That plaintiff had been put to great expense in procuring medicine, medical attendance, and care, in which he had expended the sum of $500 for physicians5 services, nurses, and help.55 It contains the general allegation that he was— “G-reatly and permanently injured, suffered great physical and mental pain, and became sore, sick, lame, and languishing.55 No claim, is made of injury to his horses or wagon. He called no physician, and expended no money for nursing, medicine, or help. There is no evidence that Dr. Champlin attended plaintiff, at any time, in consequence of sickness claimed to have been the result of this accident. There was no evidence that plaintiff was unable to attend to his work for more than two weeks, *513and this testimony does not come from the plaintiff himself, but from his. son, who thought he was in bed four or five days, and that it was some two weeks before he got out. The declaration was not sufficiently specific to admit testimony of any permanent injury. No physician was called for the plaintiff, and the testimony of any permanent injury was of too 'indefinite a character' to form any reasonable basis for an award of damages. Plaintiff’s testimony on this point is as follows: “I am hardly a day without headache ever since. My off side is kind of not exactly right. I cannot remember as well as I use to before I got hurt.” The evidence in regard to the headache.s was stricken out by the court. Certainly no one would contend that the statement, “my off side is kind of not exactly right,” would furnish any basis for the jury to award damages. How was it not right? and why was it not right? were questions the jury must answer; and there was nothing to connect this trouble, whatever it was, with the injury. How much should the jury have awarded because he could not remember as well as he did before? It would be absurd to base damages upon such evidence. The testimony of his son John is no more satisfactory. It is as follows: “Since the injury I have noticed that father was sickly like a great many times, and seemed to be almost out of his head, and would refuse to eat his meals, and the like of that; and, furthermore, he has had one or two sick spells since that, and he always gets them when he does something that he stoops over.” The other son testified: “Since that time his mind does not seem to be as it was before, and his health has not been as it was before.” This loose and indefinite testimony constitutes all the *514evidence of any peiunanent injury there is in the case. The jury evidently ignored it as of no value, as, indeed, they should have done. I think the court would have been justified in instructing the jury that there was no evidence of any permanent injury for them to consider. If there was no permanent injury, the damages assessed were ample under the proofs. There was evidence from the plaintiff’s own witnesses that plaintiff had a runaway team at the time, and that this same team had run away with him and with others before. If he took such a team into this place, it was a proper question for the jury to determine whether he was guilty of negligence which contributed to the accident. Under this record, I see no reason for holding that the jury were prejudiced by the alleged erroneous instructions. The errors, if any, were certainly not glaring ones. Judgment should be affirmed. Chamjplin, O. J., and Morse, J., concurred with CrRANT, J. | opinion_xml_harvard | 842 | 2022-09-08 23:09:01.086713+00 | 020lead | t | f | 7,982,577 | Chamjplin, Crrant, Grant, Long, McG, McGrath, Morse, Rath | null | U | f | Published | 0 | Kalembach v. Michigan Central Railroad | Kalembach | John A. Kalembach v. The Michigan Central Railroad Company | <p>Error to Washtenaw. (Kinne, J.)</p> <p>Negligence case. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p> | null | null | <p>Trial — Erroneous instructions to jury — Measure of damages — Error without prejudice — Pleading—Contributory negligence.</p> <p>1. The law does not presume that a jury in a negligence case, which found a verdict for the plaintiff notwithstanding erro- . neous instructions by the court upon the law of negligence, were prejudiced thereby in their assessment of damages.</p> <p>2. A declaration in a negligence case in which the only allegations of special damages were “ that plaintiff had been put to great expense in procuring medicine, medical attendance, and care, in' which he had expended the sum of $500 for physicians’ services, nurses, and help,” and that he was “greatly and permanently injured, suffered great physical and mental pain, and became sore, sick, lame, and languishing,” is not sufficiently specific to admit testimony of any permanent injury.</p> <p>3. The question of the contributory negligence of the owner of a runaway team, who takes it into a railroad freight-yard, and in close proximity to tracks over which cars are liable to pass at any time, is to be determined by the jury.</p> | null | null | null | Affirmed. | null | 65,077,931 | null | 0 | mich | S | t | Michigan Supreme Court | Michigan Supreme Court |
8,533,079 | Mr. Chief Justice Del Toro delivered the opinion of the Court.. This is an appeal taken from a judgment of conviction of contempt of court entered by a district court against the defendants in a suit for injunction, for a violation of a writ of preliminary injunction issued therein. *241The record shows-that the Compañía Popular de Transporte, Inc. and the Línea Férrea del Oeste, Inc., brought an action in the District Court, of Bayamón, against Luis Suárez, Domingo Antonio Romero, and Antonio Romero, who were doing business under'the name of “Línea Romero”, praying the court for a preliminary injunction forbidding them from collecting from the persons traveling in the motor vehicles which they operate between Bayamón and San Juan, a five cent fare or any other than the fifteen cent fare established by the Public Service Commissiog, and piaying also for a permanent injuction once the cases were decided on its merits. Two certificates are attached to the complaint, which is verified. The court considered that sufficient facts were alleged and issued the preliminary injunction prayed for upon the giving of a bond. After it was given, the writ was issued and the defendants were notified. At this stage, the plaintiffs filed a motion alleging that the defendants were still doing the acts forbidden by the writ, and asking that in virtue thereof they be punished for contempt of court. The defendants were summoned and they answered as follows: “1.—That the above entitled ease was originated by virtue of an ordinary complaint of injunction still pending before this court tbe defendants having appeared in the record by filing a demurrer. ‘'2.—That the writ of preliminary injunction issued by this court, with the violation of which the defendants are.charged, was issued without justification and without probable cause, having failed to comply with the provisions of Section 5 for the issuance thereof, inasmuch as no separate petition was filed with it, in accordance with the law and the decisions. “3.—That this court lacks jurisdiction to take cognizance of this case because the plaintiffs have an adequate remedy before the Public Service Commision, which is the body empowered to take cognizance of any complaint regarding the grant of franchises and other similar privileges of public character. “4.—That at present there is an action pending before the said Public Service Commision regarding the violation of rates, between *242the same parties and for the same purposes of the above entitled case filed in this district court.” The facts alleged in the motion were admitted. The court started from that premise, dismissed the defenses set up, and rendered a judgment of conviction of contempt-of court against the defendants sentencing them to pay a fine of fifty dollars and in default thereof to be confined in jail one day for each dollar left unpaid. Feeling aggrieved by this judgment, the defendants took an appeal. ; They maintain in their brief that as -the writ, of preliminary- injunction was issued without jurisdiction, noncompliance therewith does not constitute contempt. The plaintiffs objected in their brief and raised a question that must be studied, and decided in the first place: that a judgment of conviction of contempt is not. appealable. In support of their contention they cite 3 Estee’s Pleading and Practice, 723, sect. 5298, and the cases of Aram v. Shallenberger, 42 Cal. 275; Cosby v. Superior Court, 110 Cal. 45, and Hutton v. Superior Court, 147 Cal. 156; as deciding that “an order of court adjudging a party guilty of contempt is not appealable”. That is true, but, as maintained by the appellants in another'brief filed on the same question, it is due to the fact that there is a statutory provision in California which expressly forbids the appeal in cases of contempt, namely, Section 1222 of the Code of Civil Procedure. There is no such provision in Puerto Rico. The láw does not provide therefor, and following the authorities which we consider more sound we do not see why the rule established by Section 295 of the Code of Civil'Procedure which authorizes an appeal from a final judgment in “an action or special proceeding”,.should not be applied to a prosecution for. civil contempt such as the one under consideration (In re González, 22 P.R.R. 26). See 13 C.J. 100 et seq. Was the district court empowered to issue the preliminary injunction which was disobeyed? *243In the first place, the appellants maintain that even though it seems that the intention of the plaintiffs was to bring an ordinary suit for injunction, their complaint is insufficient because it failed to set forth a prayer for a permanent injunction, and in the second place, that even if the complaint were considered as sufficient, a preliminary injunction could not be issued, as plaintiffs had failed to file a separate petition therefor. We do not agree with that view. One single document, if complete, is sufficient. It is evident that the plaintiffs brought an ordinary suit for injunction. We know that they prayed for a final judgment once the case were decided on its merits. And it is also evident that the same complaint could be used to request the issuance of a preliminary injunction. A separate petition may be filed, but why should that be done if the facts alleged are the same? The case of Municipality of Gurabo v. Juncos Central Company, 18 P.R.R. 398, which the appellants cited, does not support their contention. The fact that this Court said there that “within a suit for injunction the issuance'of a preliminary injunction may be requested” cannot be construed as meaning that the petition must necessarily be filed separately. The other ground urged by the appellants in support of their contention that the trial court lacks jurisdiction, is the existence of another adequate remedy to. enforce the order of the commission, a fact which rendered improper the injunction. They first cite Section 23 of the Public Service Act of Puerto Rico, (Act No. 70 of 1917, Laws, (II), p. 480), where it is provided that: “The commission shall have the power and it shall be its duty to fix and determine the maximum, just, due, equal and reasonable rates, fares of charges to be established, demanded, exacted, charged or collected by public-service companies for any service' rendered or furnished, and the just, due, equal, reasonable and proper regulations and practices, as affecting such rates, to be observed by any of the said companies. The commission may classified such rates.” *244Then they invoke Section 24 (Laws of 1917, (II) p. 482), which, in enumerating the powers of the commission provides that it shall have “general administrative power” which includes “the power to inquire into, hear, determine and regulate the service, fares, rates, tolls or charges of any and all public service companies, including* individual and joint rates”, and finally they rest on Section 49 of the same act (Laws of 1917, (II), p. 510) which provides: “In addition to the foregoing expressly enumerated powers, the commission shall have authority and it shall be its duty, to enforce, execute and carry out, by its orders, rulings, regulations or otherwise all and singular, the provisions of articles two and three of this Act, relating, respectively, to the duties and limitations, and to the creation and powers and limitation of powers of public-service companies; and, all and singular, the other provisions of this Act, and the full intent thereof; and shall have the power to rescind or modify any such orders, rulings or regulations.” They conclude their reasoning thus: “It is clear that in accordance with the transcribed Section, the case of the petitioners' falls within the jurisdiction of the Public Service Commission, as shown by the fact that the plaintiffs in this action filed a complaint before said administrative body, which complaint should have been prosecuted up to the obtention of a final order of the commission providing, if necessary, for the cancellation of the certificate of public convenience under which the defendants operate their lines. And then it would be the duty of the commission to appear in the record and prosecute in the name of The People of Puerto Eico, through the Attorney General, the proper action to make the defendants comply with the final roder which, in the exercise of its exclusive powers, the commission considered just and reasonable to issue. We do not agree, either, with the above reasoning, for even though the commission has all the powers which have been enumerated, it lacks coercive powers to directly enforce compliance with its orders, as may be inferred from the act itself cited, Sections 93 and 94 of which (Laws, (2), p. 536) provide for the action to be brought in order to en*245force compliance with tho orders of the commission, and for that which must be initiated to prevent violations to said orders. I : , I In both cases the commission itself acts through the Attorney General, but that does not mean that an aggrieved party may not sue for its rights on its own behalf, in proper cases. We feel that the appellees are right in maintaining in their brief that: “Where an order of the commission is violated, two parties are aggrieved: the sovereign, represented by the Public Service Commission, whose authority is ignored; and the other, the complainant, upon the complaint of which the order was issued. In the first-case, the Attorney General is the one called upon to act on behalf of the commission, and the District Court of San Juan shall have exclusive jurisdiction to take cognizance of these cases. It is not necessary then to allege special injury. In the other case, the individual or particular entity is the one called upon to act if he or it can allege special injury, as in our case, and the jurisdiction of the court is determined the same as in ordinary cases. “ ‘When a corporation is acting or threatening to act in excess of its corporate powers, or is misusing the franchise it possesses, to the injury of others, ail injunction to restrain it is the proper remedy; . . . Injunction may be obtained by the public if the acts are such as may result in injury to the public; . . . An injunction may be obtained by another corporation or an individual when special injury from the acts of the corporation is shown, but not otherwise. 32 Corpus Juris, pp. 234, 235 sec. 370; Chicago Gen. R. Co. v. Chicago, etc. Co., 181 Ill. 605; 54 N. E. 1026.’ “ ‘If a public service corporation fails to carry out duties imposed upon it by its charter or franchise 'it may be compelled to perform them by mandatory injunction, at the suit of .the state. . . Also an injunction may issue at the suit of an individual or other corporation where the invasion of his or its rights would work a serious injury for which there is no adequate remedy at law. 32 Corpus Juris, p. 236, sec. 373.’' “. . . . The Public Service Act did not alter in any way the right of an individual or entity aggrieved by the acts of another, to seek protection by means of an injunction in the cases specified by the Act of 1906 authorizing injunctions. *246“Of what use would it be to the appellees that the commission issue orders which are to be disobeyed by the appellants, unless it can compel the latter to comply therewith by means of an injunction? Section 93 of the Public Service Act empowers the commission to sue for an injunction through the Attorney General, but it is not compulsory for it to do that, unless the general interests of The People of Puerto Rico are involved. In the case of particular interests, it will leave the party to seek by itself its own remedy. ‘ ‘ ‘ Except as changed by statute, the rule is that an injunction will not be granted where there is an adequate remedy at law. To defeat the equitable jurisdiction, however, it is not sufficient that the law should merely afford some remedy; that remedy must be as practical and efficient as is the equitable remedy in rendering justice and as prompt in its administration.’ 22 Cyc. 729 F-1. “We maintain that the remedy, to be adequate, must be obtainable, not as a discretionary matter of a court or administrative body capable of granting it, but as an absolute right of the plaintiff, once he has proven the facts which will support the granting of the remedy sought. If the court or body in question may or may not grant said remedy, then, it is not adequate, and there is nothing left to the complainant but to sue for an injunction to enjoin the violation of the order or right.” As the issues of law raised have been decided against the defendants, and the latter have admitted that they disobeyed the order of the court, that is, that they continued to carry passengers at a lower rate than the one fixed by the commission notwithstanding the fact that they had been forbidden to do so, the contempt is clear (Subdiv. 2, Sec. 1, Act of March 8, 1906, amending Act of March 1, 1902, defining the offense of contempt of court and providing’ for the punishment thereof, p. 84 of the Penal Code, 1937 ed.) and the judgment of conviction must be affirmed. Mr. Justice Córdova Dávila took no part in the decision of this case. | opinion_xml_harvard | 2,256 | 2022-11-23 11:03:30.993209+00 | 020lead | t | f | 8,560,053 | Took, Toro | null | U | f | Published | 0 | Compañía Popular de Transporte, Inc. v. Suárez | Suárez | Compañía Popular de Transporte, Inc., and v. Luis Suárez, and | null | null | null | null | null | null | null | null | null | 65,822,508 | No. 7298 | 0 | prsupreme | TS | f | Supreme Court of Puerto Rico | Supreme Court of Puerto Rico |
4,986,073 | CP-51-DP-0001451-2016, . .FID: 51-FN-001660-2016 (Philadelphia) Affirmed | opinion_xml_harvard | 6 | 2021-09-25 20:26:31.95393+00 | 020lead | t | f | 5,164,859 | null | null | U | f | Published | 0 | In the Interest of H.U. | null | IN the INTEREST OF: H.U., a Minor | null | null | null | null | null | null | null | null | null | 60,481,295 | 3390 EDA 2016 | 0 | pasuperct | SA | t | Superior Court of Pennsylvania | Superior Court of Pennsylvania |
3,678,575 | This was a civil action to recover on a contract of insurance issued by the defendant on the life of Lee Roy Hart for the benefit of his mother, plaintiff herein. The defendant's constitution and by-laws contain the following stipulations: (1) "If a member engage in any of the (hazardous) occupations *Page 489 mentioned in this section he shall within thirty days notify the clerk of his camp of such change of occupation, and while so engaged in such occupation shall pay on each assessment thirty cents for each one thousand dollars of his beneficiary certificate in addition to the regular rate. Any such member failing to notify the clerk and to make such payments as above provided shall stand suspended, and his beneficiary certificate be null and void." (2) "No officer, employee, or agent . . . . shall have the power, right, or authority to waive any of the conditions upon which beneficiary certificates are issued, or to change, vary, or waive any of the provisions of the constitution and by-laws," etc. It was admitted that after the insured had received his beneficiary certificate he changed his occupation and became a brakeman on a freight train, which is denominated in the defendant's by-laws as hazardous. The insured continued in this work for a period of more than a year, and until his death, during which time he paid the regular premiums on his certificate, but did not pay the additional 30 cents due by reason of the change in his employment. Upon issues joined, the jury returned the following verdict: "1. Did the plaintiff's intestate fail to give notice to the defendant within thirty days of the change of his occupation? Answer: `No.' "2. Was the plaintiff's intestate able and willing to pay the increased premium required for such changed occupation? Answer: `Yes.'" Judgment on the verdict in favor of the plaintiff for the amount of the certificate, less 30 cents per month for the time plaintiff's intestate was employed in the said hazardous work. Defendant excepted and appealed. The following reasons are assigned by his Honor in support of the judgment entered in the Superior Court: "It further appearing to the court that after the plaintiff's intestate changed his occupation he made to the defendant as many as twelve or more monthly payments of dues and assessments, and that the same was transmitted to the defendant by the clerk of the local camp, as required by the bylaws, and that after the death of the plaintiff's intestate, proofs of death and loss were duly made out and transmitted to the defendant, as required by the said policy of insurance, constitution and by-laws, and after the receipt of the same the defendant denied liability and refused to pay to the plaintiff, the beneficiary in the policy, the amount thereof, and that the defendant has failed and refused to return to the plaintiff's intestate or his personal representative the premiums, dues and assessments *Page 490 levied on account of said policy, and in filing its answer herein made no offer to return the same, but has kept the said premiums, dies, and assessments which were paid to it for the purpose of keeping in force the insurance contract sued on, and the court being of the opinion, on such facts, that the plaintiff is entitled to recover of the defendant: It is therefore ordered," etc. The defendant takes the position that none of the provisions of its constitution and by-laws could be waived by any officer or agent, and that the failure of the insured to pay the additional thirty cents per month while engaged in the hazardous work rendered his certificate null and void. We do not think this position open to the defendant on the record. The insured was required to notify the clerk of his camp within thirty days of his change of occupation, which was done, according to the verdict of the jury. With knowledge of the changed and hazardous employment of the insured, the defendant continued to accept the dues and assessments at the old rate. This was not an unauthorized act of an officer or an agent, but the defendant's own election, deliberately made. Such was a waiver of its right to insist upon a forfeiture of the policy. Bergeron v. Ins. Co. , 111 N.C. 45 . It has been held with us, in a number of cases, that where an applicant knowingly misrepresents a material fact, and the company, with full knowledge of the circumstances and falsity of the statement, issues a policy, receives the premiums, and recognizes and continues to recognize the applicant as holding a contract of insurance, it ordinarily will be estopped from insisting on a forfeiture of the policy that otherwise might ensue. Robinson v. Brotherhood , 170 N.C. 545 ; Grabbs v. Ins. Co. , 125 N.C. 389 . It is not necessary to discuss the principle, announced in numerous decisions, that notice to the agent is notice to the company, for, in the instant case, the insured, when he changed his occupation, was only required to notify the clerk of his camp, which he did, and this was notice to the defendant. Fishblate v. Fidelity Co. , 140 N.C. 589 . See, also, Carden v. Sons and Daughters of Liberty , 179 N.C. 399 . After a careful examination of the defendant's exceptions and assignments of error, we are convinced that the case was tried according to law and precedent. No error. *Page 491 | opinion_html_with_citations | 919 | 2016-07-06 06:24:36.80885+00 | 020lead | f | t | 3,931,872 | PER CURIAM. | null | ZU | f | Published | 1 | Hart v. Woodmen of the World | Hart | Catherine H. Hart v. Woodmen of the World. | <p>Appeal by defendant from Daniels, J., at October Term, 1920, of New HaNover.</p> <p>Tbis was a civil action to recover on a contract of insurance issued by tbe defendant on tbe life of Lee Roy Hart for tbe benefit of bis mother, plaintiff herein.</p> <p>Tbe defendant’s constitution and by-laws contain tbe following stipulations: (1) “If a member engage in any of tbe (hazardous) occupations mentioned in this section he shall within thirty days notify the clerk of his camp of such change of occupation, and while so engaged in such occupation shall pay on each assessment thirty cents for each one thousand dollars of his beneficiary certificate in addition to the regular rate. Any such member failing to notify the clerk and to make'such payments as above provided shall stand suspended, and his beneficiary certificate be null and void.” (2) “No officer, employee, or agent . . . shall have the power, right, or authority to waive any of the conditions upon which beneficiary certificates are issued, or to change, vary, or waive any of the provisions of the constitution and by-laws,” etc.</p> <p>It was admitted that after the insured had received his beneficiary certificate he changed his occupation and became a brakeman on a freight train, which is denominated in the defendant’s by-laws as hazardous. The insured continued in this work for a period of more than a year, and until his death, during which time he paid the regular premiums on his certificate, but did not pay the additional 30 cents due by reason of the change in his employment.</p> <p>Upon issues joined, the jury returned the following verdict:</p> <p>“1. Did the plaintiffs intestate fail to give notice to the defendant within thirty days of the change of his occupation? Answer: No.’</p> <p>“2. Was the plaintiff’s intestate able and willing to pay the increased premium required for such changed occupation? Answer: ‘Yes.’”</p> <p>Judgment on the verdict in favor of the plaintiff for the amount of the certificate, less 30 cents per month for the time plaintiff’s intestate was employed in the said hazardous work. Defendant excepted and appealed.</p> | null | <parties id="b540-11">
CATHERINE H. HART v. WOODMEN OF THE WORLD.
</parties><br><decisiondate id="b540-12">
(Filed 30 March, 1921.)
</decisiondate><br><headnotes id="b540-13">
<em>
1.
</em>
Insurance, Life — Conditions—Acceptance of Premiums — Waiver.
</headnotes><br><headnotes id="b540-14">
Where the insured afterwards engaged in a hazardous occupation forbidden by the policy unless upon notification given to a certain of its ■agents and the payment of an additional premium, and it appears that the agent had been notified of such change and the insured continued the policy in force upon the continued payment of the same premiums, the company itself waives the condition imposed by accepting the premiums, with notice, and may not declare the policy invalid and refuse to pay it upon the death of the insured.
</headnotes><br><headnotes id="b540-15">
2. Same — Principal and Agent.
</headnotes><br><headnotes id="b540-16">
It is not an alteration of the conditions expressed in a policy of life insurance by an officer or agent thereof when the company itself knowingly receives the premiums until the death of the insured, without objection until then, and thus waives the condition.
</headnotes><br><headnotes id="b540-17">
3. Same — Notice.
</headnotes><br><headnotes id="b540-18">
Where the insured has notified the agent of the insurer designated by its constitution and by-laws of a change to more hazardous occupation, it is sufficient. ' .
</headnotes><br><summary id="b540-19">
Appeal by defendant from
<em>
Daniels, J.,
</em>
at October Term, 1920, of New HaNover.
</summary><br><summary id="b540-20">
Tbis was a civil action to recover on a contract of insurance issued by tbe defendant on tbe life of Lee Roy Hart for tbe benefit of bis mother, plaintiff herein.
</summary><br><summary id="b540-21">
Tbe defendant’s constitution and by-laws contain tbe following stipulations: (1) “If a member engage in any of tbe (hazardous) occupa
<span citation-index="1" class="star-pagination" label="489">
*489
</span>
tions mentioned in this section he shall within thirty days notify the clerk of his camp of such change of occupation, and while so engaged in such occupation shall pay on each assessment thirty cents for each one thousand dollars of his beneficiary certificate in addition to the regular rate. Any such member failing to notify the clerk and to make'such payments as above provided shall stand suspended, and his beneficiary certificate be null and void.” (2) “No officer, employee, or agent . . . shall have the power, right, or authority to waive any of the conditions upon which beneficiary certificates are issued, or to change, vary, or waive any of the provisions of the constitution and by-laws,” etc.
</summary><br><summary id="b541-6">
It was admitted that after the insured had received his beneficiary certificate he changed his occupation and became a brakeman on a freight train, which is denominated in the defendant’s by-laws as hazardous. The insured continued in this work for a period of more than a year, and until his death, during which time he paid the regular premiums on his certificate, but did not pay the additional 30 cents due by reason of the change in his employment.
</summary><br><summary id="b541-7">
Upon issues joined, the jury returned the following verdict:
</summary><br><summary id="b541-8">
“1. Did the plaintiffs intestate fail to give notice to the defendant within thirty days of the change of his occupation? Answer: No.’
</summary><br><summary id="b541-9">
<em>
“2.
</em>
Was the plaintiff’s intestate able and willing to pay the increased premium required for such changed occupation? Answer: ‘Yes.’”
</summary><br><summary id="b541-10">
Judgment on the verdict in favor of the plaintiff for the amount of the certificate, less 30 cents per month for the time plaintiff’s intestate was employed in the said hazardous work. Defendant excepted and appealed.
</summary><br><attorneys id="b541-11">
<em>
E. K. Bryan for 'plaintiff.
</em>
</attorneys><br><attorneys id="b541-12">
<em>
Joseph W. Little and George H. Howell for defendant.
</em>
</attorneys> | <p>1. Insurance, Life — Conditions—Acceptance of Premiums — Waiver.</p> <p>Where the insured afterwards engaged in a hazardous occupation forbidden by the policy unless upon notification given to a certain of its ■agents and the payment of an additional premium, and it appears that the agent had been notified of such change and the insured continued the policy in force upon the continued payment of the same premiums, the company itself waives the condition imposed by accepting the premiums, with notice, and may not declare the policy invalid and refuse to pay it upon the death of the insured.</p> <p>2. Same — Principal and Agent.</p> <p>It is not an alteration of the conditions expressed in a policy of life insurance by an officer or agent thereof when the company itself knowingly receives the premiums until the death of the insured, without objection until then, and thus waives the condition.</p> <p>3. Same — Notice.</p> <p>Where the insured has notified the agent of the insurer designated by its constitution and by-laws of a change to more hazardous occupation, it is sufficient. ' .</p> | APPEAL by defendant from Daniels, J. , at October Term, 1920, of NEW HANOVER. | null | null | null | null | 3,804,014 | null | 0 | nc | S | t | Supreme Court of North Carolina | Supreme Court of North Carolina |
1,421,070 | 408 P.2d 517 (1965) James S. ELIAS, Plaintiff in Error, v. CITY OF TULSA, a Municipal Corporation, Defendant in Error. No. 40723. Supreme Court of Oklahoma. October 26, 1965. Rehearing Denied December 7, 1965. Pat Malloy, N. E. McNeill, Jr., Tulsa, for plaintiff in error. Charles E. Norman, City Atty., Louis Levy, Asst. City Atty., Tulsa, for defendant in error. *518 DAVISON, Justice. James S. Elias appeals from a judgment rendered in two consolidated cases in favor of the City of Tulsa. One of the cases called for a determination of the issues presented in an appeal by Elias to the District Court of Tulsa County from an order of the Board of Commissioners of the City of Tulsa, denying his application for rezoning of his property from residential (U-1B) to a commercial (U-3D) classification. In the other case the City of Tulsa filed an action to enjoin Elias from using his property as a public eating place in violation of the City's zoning ordinance. In the judgment the court refused to rezone the property for commercial use and granted the injunction. Our disposition of this matter is based upon a determination of the power and authority of the City to impose a zoning classification on the property, under the facts, circumstances and law involved in the case. Elias acquired the property in March, 1958, and began operating a restaurant in the residential type structure. The address of the property was 2905 East 51 Street and it was then located a short distance outside the city limits and within a five mile strip adjoining the southern boundary of the City of Tulsa. The City's brief reflects the property is presently within the city limits. In December, 1956 (prior to Elias acquiring the property) the City had enacted a zoning ordinance whereby the property was zoned for residential (U-1B) use. The zoning ordinance was enacted by the City pursuant to powers granted by an Act of the 1955 Legislature, 19 O.S.Supp. 1955, Secs. 863.1-863.43. Section 863.2 of the 1955 Act, supra , provided in pertinent part that any county having an assessed valuation of not less than $200,000,000 and having within its boundaries, a city of not less than 180,000 and not more than 240,000, according to the last or any future Federal Decennial Census, was *519 authorized to form a cooperative planning commission with such city, and that: "* * * Such city is hereby empowered to adopt, amend, extend, add to or carry out a city plan for such city and such surrounding territory as lies within five (5) miles of the boundaries of such city, excluding, however, any other incorporated area as hereinafter provided, or any portion of an adjoining county having a population of not less than 43,143, and not more than 43,243 according to the last Federal Decennial Census or any future Federal Decennial Census * * *". The issue as to the constitutionality of the above legislative Act and of the ordinance was raised by the pleadings and was presented by a stipulation of the parties as being an issue of law to be determined by the trial court. A determination by this court that the 1955 Act is unconstitutional would eliminate the statutory authority for the zoning ordinance restricting the property to a residential use. In this connection we recognize, as did the lower court, that the 1959 Legislature (H.B. 528, Session Laws 1959, p. 105, Sec. 2; 19 Ohio St. 1961 , Sec. 863.2) amended the above narrated and quoted portion of the 1955 Act, by providing a revised classification or description of the county entitled to make use of the authority and powers therein granted. Elias' use of the property for restaurant purposes began prior to the 1959 amendment and would be an existing non-conforming use from the standpoint of contrary zoning effective after the 1959 amendment and therefore give rise to an entirely new controversy as to his rights in that status. A determination as to the constitutionality of the 1955 Act is all that is required in this present controversy in order to determine whether Elias' use of the property was in violation of a valid ordinance. For this reason we will not pass on the question of the constitutionality of the law after the 1959 amendment. Elias contends that the 1955 Act, supra , is in violation of Sec. 46, Art. 5, of the Oklahoma Constitution, prohibiting local or special laws regulating the affairs of counties and cities; and of Sec. 59, Art. 5, providing that laws of a general nature shall have uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted; and was invalid as a special or local law because of failure to comply with Sec. 32, Art. 5, requiring publication notice prior to legislative consideration of such a law. The City bases its argument on the validity of the 1955 Act as amended in 1959, supra . As stated above, the determination of the present controversy revolves around the validity of the 1955 Act and the zoning ordinance based thereon. We will treat the City's argument as being addressed to the validity of the 1955 Act. The City contends that the 1955 Act was a general law and valid in all respects and was not a local or special law, and that it was not necessary to publish notice as required by said Sec. 32, Art. 5, of the State Constitution. The City does not deny that the descriptive language in Sec. 863.2 of the 1955 Act is applicable only to Tulsa County, and excludes the one county in the State having a city with a greater population (Oklahoma County) and excludes all other counties. In fact, the City admits that "the act when adopted in 1955 was a suit that fit only one party, and that was the Tulsa metropolitan area." The determinative question presented to this court is whether the 1955 Act was a general law. In deciding whether an act is a general law as distinguished from a local or special law the answer to the problem depends fundamentally on whether there is a proper and legitimate classification, and each case must be decided on its own merits. Sheldon v. Grand River Dam Authority, 182 Okl. 24, 76 P.2d 355 . Classification by reference to population must be a legitimate one, and bear some reasonable relation to the subject matter, and must not be an arbitrary or *520 capricious classification and used as a subterfuge for the purpose of passing a special law under the form of a general law. Key v. Donnell, 107 Okl. 157, 231 P. 546 . In Roberts v. Ledgerwood, 134 Okl. 152, 272 P. 448 , we stated the factors to be considered in determining whether a legislative act was in fact general in its nature, as follows: "In order for a law to be general in its nature and to have a uniform operation, it is not necessary that it shall operate upon every person and every locality in the state. A law may be general and have a local application or apply to a designated class if it operates equally upon all the subjects within the class for which it was adopted. * * * But, where a statute operates upon a class, the classification must not be capricious or arbitrary and must be reasonable and pertain to some peculiarity in the subject-matter calling for the legislation. As between the persons and places included within the operation of the law and those omitted, there must be some distinctive characteristic upon which a different treatment may be reasonably founded and that furnishes a practical and real basis for discrimination." Decisions to the same or similar effect are Wilkinson v. Hale, 184 Okl. 165, 86 P.2d 305 ; Barrett v. Board of Comr's of Tulsa County, 185 Okl. 111, 90 P.2d 442 ; Williams v. Hutchens, 187 Okl. 268, 102 P.2d 841 ; and Haas v. Holloman, Okl., 327 P.2d 655 . As stated above the 1955 Act was "tailored" to apply to Tulsa County, even to the extent of excluding from the 5 mile perimeter strip that portion of an adjoining county having a population between 43,143 and 43,243, which could only refer to adjoining Creek County. Disregarding this exclusionary provision that was applicable only where there existed the combination of Tulsa and Creek Counties, the only other county in the State that in any way came close to falling within the statutory classification was Oklahoma County, which had Oklahoma City with a 1950 population of 243,504. It is very pertinent that the grant (19 O.S.Supp. 1955, Sec. 863.13) to the City of Tulsa of zoning power within the 5 mile perimeter area was: "For the purposes of promoting the public health, safety, peace, morals, comfort, convenience, prosperity, order and general welfare, and to lessen danger and congestion of public transportation and travel, and to secure safety from fire and other dangers, and to prevent overcrowding of land, and to avoid undue concentration of population, and to provide adequate police protection, transportation, water, sewerage, schools, parks, forests, recreational facilities, military and naval facilities, and other public requirements, and to prevent undue encroachment thereon, * * *" The 1955 Act does not reveal why the classification set forth therein made this zoning power available to the City of Tulsa, as the second largest city in the State with a population of 182,740, and failed to extend the same to the largest city with a population of only 3,504 inhabitants in excess of the statutory classification. The above "purposes" set forth certain general and specific conditions that are considered or deemed to be in need of improvement in cities falling within the classification, and specifically the City of Tulsa. These conditions relate generally to the welfare of the public and specifically to conditions that are a problem and in need of improvement in all large metropolitan cities. In fact it is recognized that problems of this nature tend to increase, rather than decrease, as a city becomes larger and the population becomes more concentrated. These conditions exist in Oklahoma City and in this respect it is not dissimilar to the City of Tulsa. *521 In Wilkinson v. Hale, supra , it is stated: "Local or special laws are all those that rest on a false or deficient classification. Their vice is that they do not embrace all the class that they should naturally embrace. They create preference and establish inequality. They apply to persons, things, and places possessed of certain qualities or situations and exclude from their effect other persons, things, or places which are not dissimilar in this respect." For the reasons stated it is our conclusion that the population classification in the Act was arbitrary and a subterfuge, and did not embrace all of the class that it should have naturally embraced. The City urges that in considering the constitutionality of the 1955 Act this court should presume that the Legislature did not intend to violate the Constitution. We concede that this is the general rule of law. However, we have shown that the classification in the Act was arbitrary, capricious, and a subterfuge, designed to give the Act the appearance of a general law. In such a situation the presumption is overcome. The City makes two additional contentions in support of the judgment of the lower court. It argues the Act is a general law because the population and assessed valuation classification is an "open" classification and that as cities in Oklahoma grow in the above respects, they will reach a position where they fall within the classification. It also argues that there was justification in making the Act apply only to Tulsa County and the Tulsa metropolitan area and excluding the larger City of Oklahoma City for the reason that there were fewer incorporated areas adjacent to the City of Tulsa than there was in the area surrounding Oklahoma City, and other differences, such as, difference in per capita earnings and the shape of the two counties. It appears to us that there is an inconsistency in these two arguments that only serves to strengthen our conclusion that the classification in the 1955 Act was an arbitrary and unjustifiable classification. In the first place the classification was restrictive to the extent that it did not include Oklahoma County with a city of slightly larger population and similar enumerated statutory conditions. In the second place the classification based on alleged local conditions described as peculiar only to the City of Tulsa, negatives legislative intent to enact a general law having a uniform operation throughout the State, as required by Sec. 59, Art. 5, of the State Constitution. Under the present circumstances a holding that the classification in the 1955 Act was sufficient to render it a general law would make it permissible to adopt any arbitrary formula of population and valuation as a valid ground for a general law. For the foregoing reasons we are of the opinion and hold, that Chapter 19Aa, S.L. 1955, 19 O.S.Supp. 1955, Secs. 863.1-863.43, is unconstitutional. Our conclusion renders it unnecessary to determine whether there was error in refusing to rezone the property. The judgment of the lower court is reversed with instructions to render judgment in accordance with the views herein expressed. JACKSON, V.C.J., and WILLIAMS, BLACKBIRD, IRWIN, BERRY, HODGES and LAVENDER, JJ., concur. | opinion_html_with_citations | 2,246 | 2013-10-30 06:03:23.945904+00 | 010combined | f | f | 1,421,070 | Berry, Blackbird, Davison, Hodges, Irwin, Jackson, Lavender, Williams | null | LU | f | Published | 25 | Elias v. City of Tulsa | Elias | James S. ELIAS, Plaintiff in Error, v. CITY OF TULSA, a Municipal Corporation, Defendant in Error | null | null | <parties id="b547-4">
James S. ELIAS, Plaintiff In Error, v. CITY OF TULSA, a Municipal Corporation, Defendant in Error.
</parties><br><docketnumber id="b547-7">
No. 40723.
</docketnumber><br><court id="b547-8">
Supremo Court of Oklahoma.
</court><br><decisiondate id="b547-9">
Oct. 26, 1965.
</decisiondate><br><otherdate id="b547-10">
Rehearing Denied Dec. 7, 1965.
</otherdate><attorneys id="At4">
<span citation-index="1" class="star-pagination" label="518">
*518
</span>
Pat Malloy, N. E. McNeill, Jr., Tulsa, for plaintiff in error.
</attorneys><br><attorneys id="b548-12">
Charles E. Norman, City Atty., Louis Levy, Asst. City Atty., Tulsa, for defendant in error.
</attorneys> | null | null | null | null | null | null | 887,577 | 40723 | 0 | okla | S | t | Supreme Court of Oklahoma | Supreme Court of Oklahoma |
5,213,559 | Order affirmed, with ten dollars costs and disbursements. All concurred. | opinion_xml_harvard | 10 | 2022-01-06 16:18:05.435181+00 | 020lead | t | f | 5,377,760 | null | null | U | f | Published | 0 | Manning v. Grant | Manning | Nora Manning, as etc., of Jeremiah C. Manning, late of Keeseville, Essex County, New York v. Mary J. Grant | null | null | null | null | null | null | null | null | null | 61,725,953 | 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 |
7,646,006 | Cert. denied. | opinion_xml_harvard | 2 | 2022-07-29 22:51:02.123177+00 | 020lead | t | f | 7,710,511 | null | null | U | f | Published | 0 | Ex parte Earl | Ex parte Earl | EX PARTE Raymond Dennis EARL | null | null | null | null | null | null | null | null | null | 64,715,000 | 1170116 (CR-16-0856) | 0 | ala | S | t | Supreme Court of Alabama | Supreme Court of Alabama |
1,108,818 | 993 So.2d 534 (2008) BISSO v. STATE. No. 4D07-4755. District Court of Appeal of Florida, Fourth District. October 15, 2008. Decision without published opinion. Affirmed. | opinion_html_with_citations | 25 | 2013-10-30 04:04:22.901854+00 | 010combined | f | f | 1,108,818 | null | null | L | f | Published | 0 | Bisso v. State | Bisso | null | null | null | null | null | null | null | null | null | null | 1,516,265 | 4D07-4755 | 0 | fladistctapp | SA | t | District Court of Appeal of Florida | District Court of Appeal of Florida |
1,997,659 | 708 A.2d 192 (1998) STATE of Vermont v. Richard THOMPSON. No. 96-183. Supreme Court of Vermont. January 16, 1998. John T. Quinn, Addison County State's Attorney, Middlebury, for plaintiff-appellee. Robert Appel, Defender General, William A. Nelson, Appellate Attorney, Montpelier, and Larry S. Novins, Public Defender, Middlebury, for defendant-appellant. Before AMESTOY, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ. JOHNSON, Justice. Defendant, who received a one-year suspended sentence after entering a conditional no-contest plea to a charge of simple domestic assault, 13 V.S.A. § 1042, argues on appeal that the trial court erred in (1) finding him competent to stand trial and enter a plea, and (2) failing to engage in the colloquy required by V.R.Cr.P. 11(c). Because we agree with defendant's second argument, we vacate the plea and conviction without addressing his first argument. At arraignment, after defense counsel stated that he had substantial questions about defendant's capacity to understand the proceedings, the district court ordered an outpatient evaluation of defendant's competency. The examining psychiatrist's report to the court, which was based on a one-hour interview, indicated that defendant is a person with mild mental retardation, having an intelligence quotient below 70. The report also noted that defendant is illiterate and has a history of alcohol abuse. According to the report, defendant has a severely limited fund of information and a severely compromised ability to engage in abstract reasoning. The examining psychiatrist also addressed in his report, albeit briefly, defendant's understanding of the legal process and the specific charge against him. The psychiatrist concluded that defendant was "marginally competent" to stand trial, but acknowledged that defendant's "incomplete understanding of the events of the assault as well as his mental limitations will undoubtedly handicap his defense preparation." Both the psychiatrist and defendant testified at the competency hearing, held a few months later. The psychiatrist restated his conclusion that defendant was marginally competent. He testified that defendant had *193 "sort of an understanding" of the legal issues, and opined that if the situation "were spelled out [defendant] could have a good global understanding of what he apparently or allegedly had done." The psychiatrist also stated that he thought defendant would be able to understand different aspects of the legal system if they were explained to him carefully. Based on the psychiatrist's testimony, and notwithstanding defendant's testimony demonstrating his limited understanding of the proceedings against him, the court found defendant competent to stand trial. Seven months later, defendant appeared for a status conference before a different judge. Defense counsel informed the court that defendant did not want to have a trial, but expressed serious reservations about his client's level of understanding. Counsel requested that the court be especially careful in assuring that defendant understood the rights he was giving up. When the judge asked defendant what a trial was, defendant responded, presumably referring to one of the police officers who had questioned him on the night of the assault, "He'll come back. At the trial he'll come back here.... Same deal over. And I don't want it." The judge then asked defendant if he understood that a trial would be about whether or not he hit the victim. Defendant replied, "I did hit her. I'm guilty." The judge explained that at trial, the victim would testify and the State would have to prove that defendant hit her. Defendant responded, "I did it.... I don't need to prove it." Following a few more brief exchanges between defendant and the court, the court announced that it would accept the plea. Defense counsel then asked the court if he could question defendant. In response to further questioning from his counsel, defendant explained that the role of the jury is to "talk to me." Asked about the job of the judge, defendant replied, "I might win.... Well, she might win and I might lose." Counsel then asked: Q: Do you know in a trial who decides if you hit [the victim] or didn't hit [the victim]? A: Yeah. Q: Who? A: I hit her. Q: But in a trial who would decide that? A: Her. COUNSEL: This is my concern, Judge. THE COURT: Well, it's a valid concern. Nevertheless, the court declined to revisit the competency issue, reasoning that the first judge had held a full hearing on the issue, with the benefit of the psychiatrist's report and testimony. The court accepted defense counsel's request for a conditional plea, which reserved defendant's right to appeal the competency issue. Defense counsel did not raise any issue regarding V.R.Cr.P. 11. This appeal followed. Because we conclude that the second judge failed to satisfy Rule 11(c) before accepting defendant's plea, we need not decide either whether the first judge erred in finding defendant competent to stand trial or whether the second judge erred in refusing to reconsider the first judge's competency ruling. Even assuming that the second judge was justified in relying on the initial competency determination, the record does not support his acceptance of defendant's plea. A finding that a defendant is competent to stand trial is not all that is necessary before he may be permitted to enter a plea; the trial court must satisfy itself that the waiver of constitutional rights is knowing and voluntary. See Godinez v. Moran, 509 U.S. 389 , 401 n. 12, 113 S.Ct. 2680 , 2687 n. 12, 125 L.Ed.2d 321 (1993). The focus of a competency inquiry is on whether the defendant has the capacity to understand the proceedings, while the focus of a plea inquiry, aside from assuring that the decision is not coerced, is on whether the defendant does understand the significance and consequences of the decision to enter a plea rather than proceed to trial. Id. The required advice contained in Rule 11(c) [*] seeks to *194 assure that decisions to plead guilty or no contest are knowing and voluntary. Here, given defense counsel's continuing difficulty in communicating with his client, and the close question over whether defendant was competent to stand trial, it was imperative for the court at the status conference to assure that defendant fully understood the rights he would be waiving by entering his plea. Instead, the court accepted defendant's no-contest plea after only a brief colloquy that hardly touched on the requirements of Rule 11(c). From this brief colloquy, we may assume that defendant was aware of the nature of the charges, and even that the plea was free of coercion, but we cannot be assured that defendant was aware of the direct consequences of entering the plea, let alone the particular potential penalties involved. Considering that the court was fully aware of defendant's mental limitations, its failure to engage defendant in the required Rule 11 colloquy undermines confidence in the outcome of the proceedings and thus was plain error. See State v. Johnson, 158 Vt. 508 , 513, 615 A.2d 132 , 135 (1992) (while there are no precise criteria, in general plain error exists when examination of record in case raises doubt about outcome of proceedings); United States v. Quinones, 97 F.3d 473 , 475 (11th Cir.1996) (failure to satisfy any of Rule 11's core objectives ensuring that plea is free of coercion and that defendant understands nature of charges against him and direct consequences of guilty plea violates defendant's substantial rights and thus is plain error). Accordingly, we vacate defendant's plea and the resulting sentence. Because we find plain error in accepting the plea, we need not address defendant's request that we limit State v. Thompson, 162 Vt. 532 , 534, 650 A.2d 139 , 140 (1994) (absent plain error, claim of error under Rule 11(c) demands factual record and opportunity for trial court to grant relief before it may be reviewed in Supreme Court) to cases in which a defendant has a remedy under the motion-to-withdraw provisions of V.R.Cr.P. 32(d). If the State elects to continue its prosecution of defendant, defendant may once again ask the district court to revisit its earlier competency determination. Reversed and remanded. NOTES [*] Rule 11(c) of the Vermont Rules of Criminal Procedure provides: Advice to Defendant. The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following: (1) the nature of the charge to which the plea is offered; (2) the mandatory minimum penalty, if any, and the maximum possible penalty provided by law for the offense to which the plea is offered and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense; (3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made; (4) that if his plea of guilty or nolo contendere is accepted by the court there will not be a further trial of any kind, so that by so pleading he waives the privilege against self-incrimination, the right to a trial by jury or otherwise, and the right to be confronted with the witnesses against him; (5) if there is a plea agreement and the court has not accepted it pursuant to subdivision (e)(3) of this rule, that the court is not limited, within the maximum permissible penalty, in the sentence it may impose; and (6) if the court intends to question the defendant under oath, on the record, and in the presence of counsel about the offense to which he has pleaded, that his answers may later be used against him in a prosecution for perjury or false statement. | opinion_html_with_citations | 1,596 | 2013-10-30 08:00:29.315609+00 | 010combined | f | f | 1,997,659 | Amestoy, C.J., and Gibson, Dooley, Morse and Johnson | null | LU | f | Published | 5 | State v. Thompson | Thompson | State of Vermont v. Richard Thompson | null | null | <parties id="b403-8">
State of Vermont v. Richard Thompson
</parties><br><citation id="b403-9">
[708 A.2d 192]
</citation><br><docketnumber id="b403-10">
No. 96-183
</docketnumber><br><judges id="b403-11">
Present: Amestoy, C J., Gibson, Dooley, Morse and Johnson, JJ.
</judges><br><decisiondate id="b403-12">
Opinion Filed January 16, 1998
</decisiondate><br><attorneys id="b404-8">
<span citation-index="1" class="star-pagination" label="384">
*384
</span>
<em>
John T. Quinn,
</em>
Addison County State’s Attorney, Middlebury, for Plaintiff-Appellee.
</attorneys><br><attorneys id="b404-9">
<em>
Robert Appel,
</em>
Defender General,
<em>
William A. Nelson,
</em>
Appellate Attorney, Montpelier, and
<em>
Larry S. Novins,
</em>
Public Defender, Middlebury, for Defendant-Appellant.
</attorneys> | null | null | null | null | null | null | 1,825,309 | 96-183 | 0 | vt | S | t | Supreme Court of Vermont | Supreme Court of Vermont |
1,599,093 | 3 So.3d 961 (2007) EX PARTE A.W.P. No. 1060345 (CR-05-1579). Supreme Court of Alabama. March 9, 2007. Decision of the supreme court of alabama without opinion. Cert. denied. | opinion_html_with_citations | 28 | 2013-10-30 06:53:42.713938+00 | 010combined | f | f | 1,599,093 | null | null | L | f | Published | 0 | Ex Parte Awp | null | null | null | null | null | null | null | null | null | null | null | 185,497 | 1060345 (CR-05-1579) | 2 | ala | S | t | Supreme Court of Alabama | Supreme Court of Alabama |
760,653 | 165 F.3d 33 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Ronald SMITH, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 98-1194. United States Court of Appeals, Seventh Circuit. Submitted Oct. 29, 1998 * . Decided Nov. 2, 1998. Appeal from the United States District Court for the Southern District of Illinois. No. 90 CR 40017. James L. Foreman, Judge. Before Hon. RICHARD A. POSNER, Hon. JOHN L. COFFEY, Hon. DIANE P. WOOD, Circuit Judges. ORDER 1 A jury convicted Ronald Smith of conspiracy to distribute more than 100 kilograms of marijuana from January 1978 to June 1987, in violation of 21 U.S.C. §§ 841 (a)(1) and 846. He was sentenced to 28 years' imprisonment. This court affirmed Smith's conviction and sentence on appeal. United States v. Smith, 995 F.2d 662 (7th Cir.1993). Smith now appeals the district court's denial of his Motion to Correct Illegal Sentence Pursuant to Federal Rule of Criminal Procedure 35(a). 1 We affirm. 2 Smith claims that the 28-year sentence imposed was not within the sentencing limits Congress intended when it enacted 21 U.S.C. § 846 in 1970. Section 846, from its enactment through the commission of Smith's offense and sentence, provided that "[a]ny person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or a fine or both which may not exceed the maximum punishment prescribed for the offense." The punishment prescribed for the offenses that are the object of the attempt or conspiracy are set forth in 21 U.S.C. § 841 . Smith argues that, although the maximum sentencing limits set forth in § 841 were increased through periodic amendments prior to his sentencing, § 846 was not amended until 1988. Smith therefore concludes that the amendment of § 841, but not of § 846, created ambiguity in the statutes that must be resolved under the "rule of lenity." See Bifulco v. United States, 447 U.S. 381 , 387, 100 S.Ct. 2247 , 65 L.Ed.2d 205 (1980). Smith contends that, under this rule of construction, his sentence should not exceed the five-year maximum imprisonment term prescribed by § 841 when § 841 and § 846 first were enacted in 1970. 3 Under the applicable version of Rule 35(a), a district court "may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence." We review the imposition of an illegal sentence de novo. United States v. Celani, 898 F.2d 543 , 544 (7th Cir.1990). An "illegal sentence" is one which is unauthorized by the judgment of conviction. Id. 4 Smith's 28-year sentence, however, is well within the sentencing range prescribed by the applicable penalty provision, § 841(b)(1)(B)(vii), which was in effect during the commission of his offense and his sentencing. See United States v. Duprey, 895 F.2d 303 , 311 (7th Cir.1989) (the sentencing enhancement provisions took effect on October 27, 1986). This section provides that a person convicted of an offense involving 100 kilograms or more of a substance containing marijuana "shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years." 21 U.S.C. § 841 (b)(1)(B)(vii). Under the clear language of § 846 at the time of his offense and sentencing, Smith was punishable by imprisonment not to exceed the maximum punishment set forth in § 841. Because he was sentenced to 28 years' imprisonment, Smith's sentence is within the applicable range and is not illegal. 5 Contrary to Smith's assertion, the language of § 846 is not ambiguous. A statute must be ambiguous before a court may apply the "rule of lenity" Smith suggests. Bifulco, 447 U.S. at 387 . "The rule of lenity ... is not applicable unless there is a 'grievous ambiguity or uncertainty in the language and structure of the Act' ... such that even after a court has 'seize[d] every thing from which aid can be derived,' it is still 'left with an ambiguous statute." ' Chapman v. United States, 500 U.S. 453 , 463, 111 S.Ct. 1919 , 114 L.Ed.2d 524 (1991) (internal citations omitted). Smith relies on cases which have found the language of § 846 ambiguous in very different contexts. In Bifulco, the Supreme Court found the statute ambiguous with respect to whether a special parole term was authorized under § 846, which provided only for "imprisonment" or a "fine." The Court accordingly applied the rule of lenity and held that § 846 did not incorporate this type of punishment. Courts subsequently applied this reasoning to find that § 846 did not prescribe a mandatory minimum sentence. See United States v. McNeese, 901 F.2d 585 , 602 (7th Cir.1990) (collecting cases). In contrast, § 846 clearly provides that a person can be sentenced to an imprisonment term not exceeding that for the offense that is the object of the conspiracy. Because a straightforward reading of § 846 produces a clear and just result, the judicial inquiry into the statute's meaning is finished, and we need not resort to the rule of lenity. See Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291 , 295, 115 S.Ct. 2144 , 132 L.Ed.2d 226 (1995); Chapman, 500 U.S. at 463 . 6 We therefore AFFIRM the judgment of the district court. * After an examination of the briefs and the record, we have concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and record. See Fed. R.App. P. 34(a), Cir. R. 34(f) 1 Because Smith committed his offense before November 1, 1987, his case is governed by the 1985 version of Rule 35(a). United States v. Wolf, 90 F.3d 191 , 192 n. 1 (7th Cir.1996). All references to Rule 35(a) in this order, therefore, are to the 1985 version of the rule | opinion_html_with_citations | 1,005 | 2012-04-18 05:54:12+00 | 010combined | f | f | 760,653 | null | null | R | f | Unpublished | 0 | Ronald Smith v. United States | null | null | null | null | null | null | null | null | null | null | null | 711,094 | 98-1194 | 0 | ca7 | F | t | Seventh Circuit | Court of Appeals for the Seventh Circuit |
6,333,343 | Filed 4/20/22 Hassett v. Olson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado) ---- ROBERT J. HASSETT, C092212 Plaintiff and Respondent, (Super. Ct. No. SC20180100) v. PATRICIA G. OLSON et al., Defendants and Appellants; CODY LEE BASS et al., Defendants and Respondents. Defendants Patricia G. Olson and Jimmy Dastur (defendants) appeal from an order disqualifying Steven G. Bailey, a former El Dorado County Superior Court judge, from representing them in this lawsuit filed by plaintiff Robert J. Hassett. The trial court relied 1 on rule 1.12 of the Rules of Professional Conduct,1 which provides in relevant part that “a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge . . . unless all parties to the proceeding give informed written consent.” (Rule 1.12(a).) The court found that Bailey’s participation as a judge was personal and substantial in rendering decisions in two other cases involving the validity of options and a purchase agreement for the same real property at issue in the action brought by Hassett. Defendants contend that the order should be reversed because: (1) Hassett lacks standing; (2) the disqualification motion was a tactic designed to disrupt defense; and (3) Bailey did not personally and substantially participate as a judge in a “matter” within the meaning of rule 1.12. We will affirm the order. FACTUAL AND PROCEDURAL BACKGROUND In June 2018, Hassett filed a complaint for breach of contract for sale of certain real property, for specific performance of contract, for declaratory relief, and to quiet title. Hassett named as defendants Olson, individually and as trustee of the Patricia G. Olson revocable trust, Dastur as the trustee of the Patricia G. Olson irrevocable living trust, Cody Lee Bass, and Green Bijou Properties, LLC (Green Bijou). Hassett alleged that he is the rightful owner of two real properties in South Lake Tahoe: 949 Bal Bijou Road, a residence adjacent to the other property located at 3443 Lake Tahoe Boulevard, also referred to as the Olson Bijou Shopping Center. In September 2018, Hassett amended the complaint to allege claims for breach of a contract to sell these properties to him, specific performance of the contract, declaratory relief against Bass concerning his purported option agreements to purchase the properties, declaratory relief that transfer of 1 All undesignated rule references are to the Rules of Professional Conduct. 2 title to the properties to Green Bijou was null and void, and to quiet title to the properties, as well as other claims against Bass and Green Bijou. In February 2020, Hassett brought a motion to disqualify Bailey from representing Olson and Dastur based on rule 1.12. Hassett contended that Bailey presided over two cases in El Dorado County Superior Court—Cody Bass and Tahoe Wellness Cooperative, Inc. v. City of South Lake Tahoe, El Dorado County Superior Court case No. SC20160208 (Bass v. South Lake Tahoe), and Cody Bass v. Olson Bijou Center, L.P., Patricia G. Olson and Patrick Olson, El Dorado County Superior Court case No. SC20160080 (Bass v. Olson)—and issued orders relating to the enforceability of Bass’s options to purchase the two South Lake Tahoe properties, matters also in dispute in Hassett’s action. A supporting declaration attached a letter from Bailey to the El Dorado County Superior Court judge assigned to this case. Bailey informed the judge that he had associated into the case as co-counsel for Dastur. Bailey expressed concern regarding a hearing set for the following day, which the judge might not be able to hear based on the judge’s status as Bailey’s former colleague and their social relationship. Bailey noted that in all previous matters where he appeared in El Dorado County Superior Court the entire bench had recused itself and referred the matter to the Judicial Council for reassignment. Bailey suggested the judge inform counsel for the parties whether the hearing would go forward.2 The declaration also attached as exhibits: (1) a temporary restraining order Bailey issued in Bass v. Olson enjoining the owners from entering into any new leases or modifying any existing leases for the South Lake Tahoe properties without Bass’s 2 The judge disqualified herself that day under Code of Civil Procedure section 170.1. The matter was transferred to a Sacramento County Superior Court judge sitting in El Dorado County Superior Court. 3 consent; (2) an order Bailey signed in Bass v. South Lake Tahoe temporarily staying South Lake Tahoe from denying Bass a marijuana dispensary permit; and (3) the transcript of a hearing Bailey conducted on the request for a temporary stay.3 The discussion between counsel for the parties and Bailey at the hearing indicated that Olson as owner had objected to the city issuing a marijuana dispensary permit, a required element for the permit, to Bass and his dispensary leasing space at the shopping center. In the course of the hearing, Bailey commented that the property owner might have “unclean hands,” in that the objection was voiced while the landlord (Olson) and lessee (Bass) were in litigation “over who’s actually the rightful owner of the property and whether the Court [Bailey] should compel the property owners themselves to comply with the agreement that they allegedly had entered into.”4 Bailey referred to issuing a discovery order to the property owners in this “companion case”—evidently referring to Bass v. Olson—which was “intertwined” with the permit process. Bailey commented that it was “unconscionable” for the property owners to enter into a five- to 15-year lease with Bass and then in the middle of the lease term state that the lessee does not have permission to operate a dispensary. Olson and Dastur opposed the motion. In support of the opposition, Bruce Grego, counsel for Olson and Dastur, declared that he had been working with Bailey to prepare for trial and would not be ready for the scheduled trial setting conference, if the motion were granted and it became necessary to interview and hire new co-counsel, with the attendant burden on Olson’s limited resources. 3These exhibits are preceded by an illegible document described only as a minute order Bailey issued in Bass v. South Lake Tahoe. 4 A brief Bass filed in this case quotes Bailey as stating at the hearing that “ ‘it’s potentially probably likely possible at some point in the future that Mr. Bass ends up as the property owner nunc pro tunc back to the date when the agreement . . . was supposed to have been concluded.’ ” 4 Counsel for Bass and Green Bijou declared that these defendants had no objection to Bailey representing Dastur. Counsel further stated that Hassett was not a party to any matter before Bailey, therefore there was no concern that Hassett’s confidential information might be disclosed. Counsel suggested that Hassett brought the motion merely to disrupt the defense. Bailey declared that Bass v. South Lake Tahoe was assigned to him for all purposes and that he participated in pretrial motions in Bass v. Olson, but was not the trial or settlement judge in the latter case and did not obtain any confidential information. Bailey stated that Bass v. South Lake Tahoe involved the plaintiffs’ request for court intervention to compel the city to issue a new permit for a marijuana dispensary. In Bass v. Olson, Bass sought to enforce an option to purchase the shopping center. Olson settled with Bass and sold the shopping center to him. Bailey echoed co-counsel that disqualification would result in substantial delay in the defense’s trial preparation. The trial court granted the motion to disqualify. The court explained that the authority to disqualify counsel stems from every court’s inherent power under Code of Civil Procedure section 128, subdivision (a)(5), to control proceedings in the furtherance of justice. The court said an appearance of impropriety is sufficient for disqualification. A violation of a disciplinary rule would also justify disqualification. “Thus, if Steven Bailey’s representation of Opposing Defendants is connected with a matter in which Steven Bailey personally and substantially participated as a judge, then rule 1.12 has been violated and disqualification to avoid the appearance of impropriety is appropriate.” The trial court rejected defendants’ argument that Hassett lacked standing to bring the motion because Bailey did not obtain confidential information. The court determined that the appearance of impropriety required that the parties and the public receive an assurance that a former judge or the former judge’s law firm did not receive an unfair 5 advantage. For that reason, the court found that Hassett had standing to challenge Bailey’s representation in violation of rule 1.12. The court also rejected defendants’ argument that disqualification would be disruptive to their legal team and delay trial preparation. The court found the argument unpersuasive because defendants continued to be represented by remaining counsel, who could participate in the scheduled trial setting conference. The court found that Bailey’s representation in this case was connected with a “matter” in which Bailey participated personally and substantially as a judge, sufficient to satisfy the application of rule 1.12. Bass v. South Lake Tahoe, Bass v. Olson and Hassett’s case concerned ownership of the same real properties. In Bass v. Olson, Bailey rendered decisions related to the validity and enforceability of Bass’s option agreements to purchase the properties. As for Bass v. South Lake Tahoe, defendants maintained that case involved marijuana dispensary permits not acquisition of the properties. But defendants’ only argument that Bass v. Olson was different from Hassett’s suit was that these were two different cases in two different courts. The court rejected defendants’ argument that the term “matter” in rule 1.12 was synonymous with “case.” Citing a broad definition of “matter” in rule 1.7(e), which the court determined was applicable to rule 1.12, the court noted that Bass v. Olson involved the same specific persons, Olson and Bass, and the same controversies regarding the validity of the same options to buy the same real property as Hassett’s suit. The court further found that Bailey’s participation in a matter within the meaning of rule 1.12 was substantial, in that defendants acknowledged that Bailey participated “materially” by issuing a restraining order and ruling on discovery motions in Bass v. Olson. 6 Lastly, the trial court disqualified Bailey’s firm, Bailey & Romero, because Bailey was not timely screened from other lawyers in the firm, as required by rule 1.12(a) to avoid vicarious disqualification.5 DISCUSSION I Standard of Review “An order granting or denying a disqualification motion is an appealable order [citations] and is reviewed for abuse of discretion [citation]. The trial court’s ruling is presumed correct [citation] and reversal is permissible ‘only when there is no reasonable basis for the trial court's decision’ [citation]. We accept as correct all of the court’s express or implied findings that are supported by substantial evidence. [Citation.]” (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197 , 1203 (Kennedy).) II Standing Defendants contend that Hassett lacks standing to challenge Bailey because Hassett was not a party in Bass v. Olson or Bass v. South Lake Tahoe and Bailey never received any confidential information in presiding over these cases. Defendants, however, cite no authority that a motion to disqualify a former judge may be brought only by a party to a proceeding over which the judge presided. To the contrary, in Conservatorship of Lee C. (2017) 18 Cal.App.5th 1072 (Lee C.), on the People’s invitation, the trial court disqualified county counsel from a case involving a petition for a Murphy conservatorship for a criminal defendant found incompetent to stand trial. (Id. at pp. 1077-1078, 1081-1082.) County counsel represented the public guardian in resisting the court’s order to pursue the conservatorship petition. (Id. at 5 Defendants do not challenge on appeal the trial court’s decision to disqualify Bailey’s firm. 7 pp. 1077-1078.) County counsel argued that “the People had no attorney-client relationship with county counsel or the Public Guardian and had no role in the conservatorship proceedings and thus no standing to bring a motion to disqualify.” (Id. at p. 1083.) The appellate court quoted Kennedy that: “ ‘[W]hile federal courts generally limit standing to bring disqualification motions to clients or former clients [citation], in California, “where the ethical breach is ‘ “manifest and glaring” ’ and so ‘infects the litigation in which disqualification is sought that it impacts the moving party’s interest in a just and lawful determination of [his or] her claims’ [citation], a nonclient might meet the standing requirements to bring a motion to disqualify based upon a third party conflict of interest or other ethical violation.” [Citation].’ ” (Id. at p. 1083; Kennedy, supra, 201 Cal.App.4th at p. 1204).) “ ‘Accordingly, we conclude that where an attorney’s continued representation threatens an opposing litigant with cognizable injury or would undermine the integrity of the judicial process, the trial court may grant a motion for disqualification, regardless of whether a motion is brought by a present or former client of recused counsel.’ ” (Lee C., at p. 1083, quoting Kennedy, at p. 1205.) The trial court correctly determined that Bailey’s representation of defendants in violation of rule 1.12 would impact Hassett’s interest in a fair adjudication of his claims and “ ‘undermine the integrity of the judicial process.’ ” (Lee C., supra, 18 Cal.App.5th at p. 1083.) Paraphrasing our decision in Kennedy, “[i]t makes no sense for a court to stand idly by and permit conflicted counsel to participate in a case merely because neither a client nor former client [nor party to a former proceeding] has brought a motion.” (Kennedy, supra, 201 Cal.App.4th at pp. 1204-1205.) “ ‘[T]he court has an independent interest in ensuring trials are conducted within ethical standards of the profession and that legal proceedings appear fair to all that observe them.’ [Citation.]” (Id. at p. 1205; see also Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347 , 1355 [“ ‘The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar’ ”].) 8 Accordingly, we conclude that Hassett’s standing to bring a disqualification motion did not require him to be a party to an action before Bailey. With respect to defendants’ assertion that Hassett lacked standing because Bailey did not receive confidential information, in Higdon v. Superior Court (1991) 227 Cal.App.3d 1667 (Higdon), there was no contention that the former judicial officer disqualified in that case had obtained confidential information. In Higdon, wives in two separate marital dissolution cases moved to recuse the firm representing the husbands’ counsel when a court commissioner, who had heard and decided contested matters in each case, resigned and joined the firm. (Id. at p. 1670.) Finding that no case or statute at that time “answer[ed] the question of disqualification of a former judicial officer from personal participation as counsel,” the court looked to rule 1.12(a) of the American Bar Association Model Rules of Professional Conduct (ABA Model Rules).6 (Higdon, at p. 1673.) The court held that a violation of rule 1.12 of the ABA Model Rules provided a “sound basis” to disqualify the former commissioner “from personal participation as counsel.”7 (Higdon, at p. 1673.) Defendants quote Cho v. Superior Court (1995) 39 Cal.App.4th 113 , 121, that “ ‘[t]he protection of the confidences of litigants has been the primary focus of rules of professional conduct in California and as drafted by the American Bar Association.’ ” Cho held that a former judge and the law firm that hired him must be disqualified from representing a party in an action in which the judge had received confidences from the 6 On May 10, 2018, the California Supreme Court approved comprehensive amendments to the Rules of Professional Conduct, effective November 1, 2018, including rule 1.12, which takes language from rule 1.12 of the ABA Model Rules. (See Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. (2018) 6 Cal.5th 59 , 85, fn. 7.) 7 The court did not uphold vicarious disqualification of the firm but remanded the case to the trial court to determine whether the court commissioner had been effectively screened. (Higdon, supra, 227 Cal.App.3d at p. 1681.) 9 litigants during settlement negotiations. (Id. at p. 119.) The court in Cho acknowledged that in Higdon “[t]here was no indication that the commissioner had been party to confidences divulged by either side in the case.” (Ibid.) In Higdon, the court held that screening was sufficient to avoid disqualification of the firm in a case where no confidences have been imparted, and Cho held that, where confidences were received, screening was not sufficient. (Higdon, supra¸ 227 Cal.App.3d at p. 1680; Cho, at p. 125.) In neither case was the litigants’ sharing confidences with a former judicial officer determinative of whether disqualification of the officer, not his or her new firm, was warranted. We conclude that trial court did not abuse its discretion in finding that Hassett had standing to move to disqualify Bailey based on a violation of rule 1.12. III Disruption and Delay Defendants contend that removal of Bailey would cause disruption and delay in their preparation for trial and Hassett pursued disqualification for tactical reasons. Defendants cite, inter alia, William H. Raley Co. v. Superior Court (1983) 149 Cal.App.3d 1042 , where the appellate court said that exercise of the power to disqualify counsel “requires a cautious balancing of competing interests,” in which “[t]he court must weigh the combined effect of a party’s right to counsel of choice, an attorney’s interest in representing a client, the financial burden on a client of replacing disqualified counsel and any tactical abuse underlying a disqualification proceeding against the fundamental principle that the fair resolution of disputes within our adversary system requires vigorous representation of parties by independent counsel unencumbered by conflicts of interest.” (Id. at p. 1048.) The trial court here did consider disruption and delay caused by Bailey’s disqualification. However, the trial court pointed out that Grego continued to represent 10 defendants and could participate in the trial setting conference while new counsel was being retained. Moreover, there is nothing in the record to support defendants’ claim that Hassett pursued disqualification for tactical purposes. “This case is not one where, despite knowing the pertinent facts, a party unreasonably delayed seeking disqualification and so caused its opponent significant prejudice. [Citation.] There was no basis for concern here that one party, by belatedly moving to disqualify opposing counsel, was attempting to disrupt a case at a critical juncture. Similarly, this case was not one where a party tried to increase an opponent's litigation burdens by seeking disqualification only after the challenged counsel performed a substantial amount of work.” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135 , 1145, fn. 2.) Rather, the circumstances here are the other way around. Hassett received notice that defendants retained Bailey on the day before a hearing on Green Bijou’s and Bass’s motion to expunge lis pendens and Hassett’s motion to consolidate this case with Bass v. Olson. The tentative rulings on these motions were to deny the motion to expunge (and award attorney fees to Hassett) and grant the motion to consolidate. In the tentative ruling on the motion to expunge lis pendens, the court concluded it was more likely than not that Hassett would obtain a judgment that Bass’s option to purchase Olson’s properties was void and unenforceable and that Hassett’s agreement to purchase the properties was enforceable. The tentative ruling on the motion to consolidate included the court’s conclusion that Bass v. Olson and Hassett’s suit involved common issues of law and fact, including that Hassett had standing to assert that his purchase agreement was valid and enforceable due to the invalidity of the Bass option and purchase agreement. In the letter to the judge on the eve of the hearing on these motions, Bailey advised that his association in cases in El Dorado County Superior Court led to recusal of the full bench in every instance, which prompted the judge to recuse herself that day. We agree with Hassett that Bailey’s association and recusal request the night before the 11 hearings “were actions taken by the retired judge in this case intending to disrupt the proceedings in which tentative rulings had issued in favor of Hassett against the aligned interests of Bass and Judge Bailey’s new client Olson.” IV Personal and Substantial Participation in Case or Matter Defendants’ position is that rule 1.12(a) is “case specific” and “applies only where the lawyer participated personally and substantially as judge in the matter/case before the court.” Defendants maintain the rule “should not apply to cases just because the property is similar or because a judge heard other cases with the same plaintiff or defendant.” We disagree. The commentary to rule 1.12 explains: “Personal and substantial participation may occur when, for example, the lawyer participated through decision, recommendation, or the rendering of advice on a particular case or matter. However, a judge who was a member of a multi-member court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate, or acquire material confidential information.” (Rule 1.12, com. 1.) The term “personally and substantially” thus distinguishes between a judge who, for example, rendered a decision in a particular matter and a judge whose involvement amounts to no more than membership in a multi-member court where the matter was pending. (See also ABA Model Rules, rule 1.12, com. 1 [“The term ‘personally and substantially’ signifies that a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate”].) Moreover, the comment to rule 1.12 refers to “a case or matter,” indicating that a “case” and a “matter” are not synonymous. (Rule 1.12, com. 1, italics added.) 12 Defendants do not dispute that Bailey participated personally and substantially by issuing orders in the Bass v. Olson and Bass v. South Lake Tahoe cases. Defendants’ core contention is that these cases and the present action do not constitute a “matter” within the meaning of the rule. Rule 1.12 does not define the term “matter.” Defendants argue the trial court erred in adopting the definition found in rule 1.7(e): “For purposes of this rule ‘matter’ includes any judicial or other proceeding, application, request for a ruling or other determination, contract, transaction, claim, controversy, investigation, charge, accusation, arrest or other deliberation, decision, or action that is focused on the interests of specific persons, or a discrete and identifiable class of persons.” Rule 1.7 addresses a conflict of interest where a lawyer represents a client “directly adverse to another client in the same or a separate matter.” (Rule 1.7(a).) Defendants contend that this definition is “appropriate . . . for lawyers not judges,” because “[l]awyer [sic], not judges, obtain confidential information from their clients,” but “no party appearing in a court room is the client of judge [sic]” and the “information provide [sic] to a judge in open court, it [sic] not confidential.”8 Again, we disagree. The commentary to rule 1.12 of the ABA Model Rules, from which California’s rule 1.12 is derived, states that rule 1.12 “generally parallels” rule 1.11, governing conflicts of interest of former and current government lawyers. (ABA Model Rules, rule 1.12, com. 1; see also Rotunda & Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility (2021) § 1.12-1 [“Rule 1.12 essentially extends the principles of Rule 1.11 (conflicts involving former government lawyers) to judges and other adjudicatory officials”].)9 Commentary to California’s rule 1.11 states that “[f]or 8 As this excerpt demonstrates, defendants’ opening brief contains numerous typographical and spelling errors. 9“Especially where there is no conflict with the public policy of California, the [ABA] Model Rules serve as a collateral source for guidance on proper professional conduct in 13 what constitutes a ‘matter’ for purposes of this rule, see rule 1.7(e).” (Rule 1.11, com. 2.) Rule 1.11(e) of the ABA Model Rules provides the same definition of a “matter” as California’s rule 1.7(e). The commentary to rule 1.11(e) of the ABA Model Rules states that “[f]or purposes of paragraph (e) . . . a ‘matter’ may continue in another form. In determining whether two particular matters are the same, a lawyer should consider the extent to which the matters involve the same basic facts, the same or related parties, and the time elapsed.” (ABA Model Rules, rule 1.11, com. 10.) Defendants do not dispute—nor could they—that the present action involves the same parties (Bass, Olson) and same basic facts (the enforceability of Bass’s options to purchase Olson’s former properties in South Lake Tahoe) as Bass v. Olson. (See Monument Builders of Pennsylvania, Inc. v. Catholic Cemeteries Assn. (1999) 190 F.R.D. 164 , 166 [“the two actions should be treated as the same ‘matter’: they involve the same parties and largely the same facts and conduct”].) Even in Bass v. South Lake Tahoe, a case Bailey said was “intertwined” with Bass v. Olson, Bailey made comments at a hearing suggesting that he viewed Bass’s options as enforceable and that Bass was the rightful owner of the properties. Defendants nonetheless insist that disqualification turns on whether the former judge received confidential information from a party to litigation over which the judge had presided. However, the commentary to rule 1.12 contains another disjunctive phrase to the contrary, i.e., that a former judge is not prohibited from representing a party in a matter where the judge “did not participate, or acquire confidential information.” (Rule 1.12, com. 1, italics added.) Thus, participation or acquisition of confidential information California.” (People v. Donaldson (2001) 93 Cal.App.4th 916 , 928; accord Doe v. Yim (2020) 55 Cal.App.5th 573 , 582, fn. 3; Kennedy, supra, 201 Cal.App.4th at p. 1210; see also rule 1.0, com. 4 [“for guidance on proper professional conduct . . . rules and standards promulgated by other jurisdictions and bar associations may also be considered”].) 14 in a former action that overlaps with the present one can serve as a basis for disqualifying a former judge. We conclude the trial court did not err in disqualifying Bailey due to his personal and substantial participation as a judge in a matter within the meaning of rule 1.12 of the Rules of Professional Conduct. DISPOSITION The disqualification order is affirmed. Hassett shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).) /s/ RAYE, P. J. We concur: /s/ HULL, J. /s/ ROBIE, J. 15 | opinion_html_with_citations | 4,484 | 2022-04-20 18:02:29.420794+00 | 010combined | f | f | 6,461,232 | null | null | C | t | Unpublished | 0 | Hassett v. Olson CA3 | Hassett | null | null | null | null | null | null | null | null | null | null | 63,250,263 | C092212 | 0 | calctapp | SA | t | California Court of Appeal | California Court of Appeal |
7,286,160 | The Chancellor. John 33. Aycrigg, being indebted to Thomas Frazier in the sum of three thousand dollars, gave him his bond, in the penal sum of six thousand dollars, with the following condition, that if the said Aycrigg, his heirs, executors, or administrators, should pay to the said Frazier, his executors, administrators, or assigns, the said sum of three thousand dollars, when the dower right of Constantia, the wife of the said Frazier, should be extinguished, by death, release, or otherwise, in the lands at Acquackanonlc, conveyed by said Frazier to said Aycrigg on the day of the date of the said bond, and in the’mean time should pay the interest thereon half-yearly, so long as not disturbed by any claim of said Constantia, then the said bond should be void. This bond was given for the purchase money of the land referred to in its condition, and a mortgage was given on the land for security. The bond and mortgage were afterwards assigned to the complainant. This bill is filed on the mortgage to enforce the payment of the principal money secured thereby. It is averred, in the bill, that the dower right of the said Constantia was extinguished by deed of release, duly executed by her on the 30th day of November, 1854, to the said John 33. Aycrigg, and acknowledged by her before a competent officer; that the complainant caused the said deed of release afterwards to be tendered to the said Aycrigg, and that he refused to ao*83cept the same, alleging that the said Constantia was of unsound mind. The hill alleges that, at the time of the execution and acknowledgment of the release, she was of sound mind. The answer admits the execution and acknowledgment of the release, and the tender of it to Mr. Aycrigg, but denies that, at the time of its execution and acknowledgment, Constantia Frazier was of sound mind, and also sets up and insists that, if she were of sound mind, the release is not' such a one as extinguishes her inchoate right of dower in the premises. By the condition of the bond, the principal money secured by the mortgage is not payable until the dower right of Constantia Frazier is extinguished by death, release, or otherwise. I think the evidence shows that, at the time she executed the release in question, she was of sufficiently sound mind to execute such an instrument, and that the objection to the release on that ground is not sustained. But the other objection — that she being a feme covert the release is inoperative, and does not extinguish her right of dower because her husband did not join in the deed of release — must be sustained. The question Is not an open one. It has lately been determined by the Court of Errors and Appeals, by the unanimous vote of that court. Moore v. Rake, 2 Dutcher 574. It was thus determined that the deed must be a joint deed, and that the separate deed of the wife will not pass her title to the real estate. All the arguments which the complainant’s counsel has addressed to the court in his written brief in this case were duly considered in the case of Moore v. Rake. From what appears before me in the case, I suppose there is no difficulty in the complainant’s procuring a joint release of the husband and wife, and that it was through a misapprehension of the law that the separate release of the wife has been relied upon. Under these circumstances, I will afford the complainant an opportu*84nity of perfecting the title upon such terms as are con-sistent with the defendants’ rights in the suit. The complainant must pay the defendant, Aycrigg, his costs of defending this suit. He must procure a proper release to be executed within twenty days. The defendant must have thirty days after the execution of such release to pay the principal money and such interest as may then be due. If the defendant fail to make payment within the time limited, then the complainant may take his decree with costs of taking the decree and subsequent proceedings, but no costs to be taxed for any proceedings prior to the decree. | opinion_xml_harvard | 709 | 2022-07-25 20:27:33.53954+00 | 020lead | t | f | 7,367,343 | null | null | U | f | Published | 0 | Dodge v. Aycrigg | Dodge | Dodge v. Aycrigg and others | null | null | null | <p>The separate release of a feme covert will not extinguish her right of dower. The bill retained under the circumstances of this case, to permit the complainant to procure a formal release from husband and wife.</p> | null | null | null | null | null | 64,357,550 | null | 0 | nychanct | S | f | New York Court of Chancery | New York Court of Chancery |
2,106,130 | 608 N.E.2d 537 (1992) 240 Ill. App.3d 731 181 Ill.Dec. 464 Randall JOHNSON, Plaintiff-Appellee, v. David NOBLE and William Spight, Defendants-Appellants (First America Equities Corporation, Defendant). No. 1-91-3828. Appellate Court of Illinois, First District, Fourth Division. December 31, 1992. *538 Chris Averkiou, Chicago, for defendants-appellants. Sidney C. Kleinman, Robert S. Hirschhorn of McBride Baker & Coles, Chicago, for plaintiff-appellee. Presiding Justice JIGANTI delivered the opinion of the court: The defendants, David Noble and William Spight, filed a motion in the trial court to compel arbitration. The motion was denied. This interlocutory appeal is pursuant to Supreme Court Rule 307(a)(1), which provides for interlocutory appeals from orders "granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction." (134 Ill.2d R. 307(a)(1).) This is an appealable order under both Federal and Illinois law. ( Asset *539 Allocation and Management Co. v. Western Employers Insurance Co. (7th Cir. 1989), 892 F.2d 566 , 574; Cencula v. Keller (1987), 152 Ill.App.3d 754 , 756, 105 Ill.Dec. 712 , 504 N.E.2d 997 .) First America Equities Corporation (First America) was a party defendant in the trial court but is not a party to this appeal. The complaint alleges that there were two contracts between the parties, one oral and the other written. Counts I and II emanated from the alleged oral agreement at a date stated to be prior to April 26, 1990. Count III emanated from the written contract dated May 20, 1990, which contained an arbitration clause. In addition to those two contracts that provide the foundation for the complaint in this case, there was another contract that preceded these and affects this proceeding, a contract between the plaintiff Randall Johnson and the firm of Donaldson, Lufkin & Jenrette (DLJ). In the Johnson contract with DLJ, DLJ agreed to pay Johnson a finder's fee for services Johnson rendered to DLJ. In turn Johnson entered into the oral agreement with Noble both personally and as vice-president of First America. Under this oral agreement, First America promised to accept the payments from DLJ in trust and to forward them to Johnson. In exchange for the promise, Johnson agreed to pay First America 5% of the finder's fee Johnson had earned. The complaint alleges that both the contract between Johnson and DLJ and the oral agreement between Johnson and Noble were entered into prior to April 26, 1990. On May 20, 1990, Johnson entered into a written contract with First America entitled "Registered Representative Agreement." Under this written agreement, Johnson was authorized to offer and sell securities and solicit investment transactions on behalf of First America. It was specifically stated that Johnson was an independent contractor who was not required to attend meetings or work a set number of hours and was to pay his own expenses. He could pursue his own investment business and pursue other business opportunities. It was this contract that contained the arbitration provision which provides that "[a]ny claim or controversy arising out of or relating to this agreement * * * shall * * * be settled by arbitration in accordance with the rules of the National Association of Securities Dealers and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration shall be held in San Francisco, California." Under section 8(a) of the National Association of Securities Dealers (NASD) Code of Arbitration Procedure: "Any dispute, claim or controversy eligible for submission under Part 1 of this Code between or among members and/or associated persons, and/or certain others, arising in connection with the business of such member(s) or in connection with the activities of such associated person(s), shall be arbitrated under this Code, at the instance of: * * * * * * (2) a member against a person associated with a member or a person associated with a member against a member * * *." First America was a member of the NASD and Noble was an NASD associated person. Johnson was a person associated with an NASD member. On July 19, 1990, after all of the agreements were entered into and in response to a request by Noble, DLJ issued a check for Johnson's finder's fee payable only to First America in the amount of $18,700. First America did not pay Johnson and count I of the complaint alleged that this was a breach of contract. Count II alleged that it was also a breach of a fiduciary duty. Count III of the complaint was brought under the Illinois Wage Payment and Collection Act. (Ill.Rev.Stat.1989, ch. 48, par. 39m-1 et seq. ) This count alleged that in July and August 1990, Johnson as a security salesperson earned over $6,000 in commissions which was not paid and that these commissions were wages and salary and that because the defendants First America, Noble and Spight intended to deprive Johnson *540 of his wages, salary and commissions, they were in violation of the Act. First America failed to appear, and a default judgment was entered against it. Noble and Spight filed a motion to dismiss and in the alternative, as required under the Registered Representative Agreement, a motion to compel arbitration under the Federal Arbitration Act. ( 9 U.S.C. § 1 et seq. (1987).) The motion to compel arbitration was denied and it is from that order that this appeal proceeds. As to counts I and II, the breach of contract and fiduciary duty arising out of the oral contract prior to April 26, 1990, the Illinois Supreme Court case of Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr (1988), 124 Ill.2d 435 , 125 Ill.Dec. 281 , 530 N.E.2d 439 , states the applicable law. The court there stated that: "Where the language of the arbitration agreement is clear, and it is apparent that the dispute sought to be arbitrated falls within the scope of the arbitration clause, the court should decide the arbitrability issue and compel arbitration. [Citations omitted.] Similarly, if it is apparent that the issue sought to be arbitrated is not within the ambit of the arbitration clause, the court should decide the arbitrability issue in favor of the opposing party, because there is no agreement to arbitrate." ( Donaldson, 124 Ill.2d at 445 , 125 Ill.Dec. at 285, 530 N.E.2d at 443 .) Arbitration is a matter of contract and a party cannot be required to submit an issue to arbitration that he has not agreed to submit. ( AT & T Technologies v. Communication Workers of America (1986), 475 U.S. 643 , 648, 106 S.Ct. 1415 , 1418, 89 L.Ed.2d 648 .) It is apparent here that the issue sought to be arbitrated in counts I and II is not within the ambit of the arbitration clause, and the trial court was correct in its ruling. The arbitration clause arose in a contract entered into between the same parties subsequent to the oral agreement and independent of it. The original agreement between these parties to act as a collecting agent for a finder's fee that Johnson had earned from DLJ is distinct both in time and in subject matter from the subsequently entered into Registered Representative Agreement between these parties whereby Johnson was to offer and sell securities and solicit investment transactions. The trial court, therefore, was correct in denying the motion to refer counts I and II to an arbitrator. As to count III, Johnson makes a number of arguments as to why they are not arbitrable. Johnson first contends that the Illinois Wage Payment and Collection Act expresses Illinois policy because it is contained in a statute that also has a penal provision. In the case of Perry v. Thomas (1987), 482 U.S. 483 , 107 S.Ct. 2520 , 96 L.Ed.2d 426 , this issue was determined in favor of the position advanced by Noble and Spight. Perry specifically holds that the Federal Arbitration Act preempts State law. Johnson then contends that the Federal Arbitration Act is not applicable because he was an employee and the Act specifically states that "nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." 9 U.S.C. § 1 (1987). As Noble and Spight point out, the contract specifically states that Johnson is an independent contractor, not an employee. He has to provide his own office space and pay his own office expenses and any other costs and expenses of doing business. There is no indication of control over Johnson in the contract other than that he must conduct his business according to rules and regulations of the regulatory bodies. We find that Johnson is not an employee and is accordingly not exempt under this provision of the Federal Arbitration Act. Johnson next contends that neither Noble nor Spight are parties to the agreement because the agreement that contains the arbitration clause was between First America Equities and Johnson. Noble and Spight respond that they are third-party beneficiaries. The third-party beneficiary doctrine applies to arbitration agreements. *541 ( McKinstry Co. v. Sheet Metal Workers' International, Local Union 16 (9th Cir. 1988), 859 F.2d 1382 , 1384.) Where it is shown that the signatories to the agreement intended that the nonsignatories were to derive benefits from the agreement and where the arbitration clause itself is susceptible to this interpretation, then arbitration is proper. McKinstry, 859 F.2d at 1384-85. Howells v. Hoffman (1991), 209 Ill. App.3d 1004 , 154 Ill.Dec. 713 , 568 N.E.2d 934 , in construing the language of the arbitration agreement which purported to limit itself to "controversies which may arise between us" held that the agreement protected the defendant as a disclosed employee of Merrill Lynch. ( Howells, 209 Ill. App.3d at 1009, 154 Ill.Dec. at 716, 568 N.E.2d at 937.) Howells relied substantially on the reasoning of Nesslage v. York Securities, Inc. (8th Cir.1987), 823 F.2d 231 . In Nesslage, the agreement provided that "[a]ny controversy arising out of or relating to [the account] * * * shall be settled by arbitration * * *." ( Nesslage, 823 F.2d at 232.) The court held that the coverage of the arbitration clause benefitted Q & R Clearing Corporation, the signatory of the agreement, York Securities, the disclosed agent of Q & R Clearing Corporation, and Samson, the employee of York Securities that was handling the account. So too here, Noble and Spight as employees of First America and associated persons with a member under the NASD rules as stated in the agreement are third-party beneficiaries and parties to the agreement. Johnson next contends that arbitration rights have been waived because neither Johnson nor First America requested arbitration. According to Johnson, it follows that Noble and Spight cannot have any greater rights as agents than their principal, First America. This argument fails because the matter does not proceed on the basis of agency, but rather on the basis that the parties are third-party beneficiaries. As such, they made a written demand for arbitration in this proceeding. Johnson further argues that since First America is no longer a member of the National Association of Security Dealers, it could not avail itself of arbitration rights. Johnson provides no authority for his argument. He refers to the National Association of Security Dealers Rules which state that the Code provides for arbitration of any dispute between or among members. However, the nub of the matter is that if arbitration arises out of a contract and the contract specifically provides that it will be done under the National Association of Security Dealers Rules, the contract providing for arbitration stands whether or not First America is still a member. Finally, Johnson argues, again without authority, that because the circuit court ruled against First America on Johnson's claim without any reference to arbitration, there is a possibility of conflicting decisions. As with the preceding argument, the parties have bargained for arbitration and Johnson and Spight are entitled to have their matter arbitrated pursuant to the contract that was entered into. The trial court's denial of the motion to refer counts I and II of the complaint to an arbitrator is affirmed. The court's ruling as to count III is reversed. Affirmed in part; reversed in part. JOHNSON and LINN, [*] JJ., concur. NOTES [*] Justice Linn participated in this disposition prior to his retirement. | opinion_html_with_citations | 2,054 | 2013-10-30 08:20:03.128612+00 | 010combined | f | f | 2,106,130 | Jiganti | null | LU | f | Published | 12 | Johnson v. Noble | Noble | RANDALL JOHNSON, Plaintiff-Appellee, v. DAVID NOBLE Et Al., Defendants-Appellants (First America Equities Corporation, Defendant) | null | null | <parties id="b749-4" pgmap="749">
RANDALL JOHNSON, Plaintiff-Appellee, v. DAVID NOBLE et al., Defendants-Appellants (First America Equities Corporation, Defendant).
</parties><br><court id="b749-5" pgmap="749">
First District (4th Division)
</court><docketnumber id="AAA" pgmap="749">
No. 1 — 91—3828
</docketnumber><br><decisiondate id="b749-6" pgmap="749">
Opinion filed December 31, 1992.
</decisiondate><br><attorneys id="b750-7" pgmap="750">
Chris Averkiou, of Chicago, for appellants.
</attorneys><br><attorneys id="b750-8" pgmap="750">
Sidney C. Kleinman and Robert S. Hirschhorn, both of McBride, Baker & Coles, of Chicago, for appellee.
</attorneys> | null | null | null | null | null | null | 1,936,100 | 1-91-3828 | 0 | illappct | SA | t | Appellate Court of Illinois | Appellate Court of Illinois |
365,034 | 595 F.2d 1211 20 Fair Empl.Prac.Cas. 1691 Dorl v. Foster Wheeler Corp. No. 78-1836 United States Court of Appeals, Third Circuit 3/20/79 1 D.N.J. AFFIRMED | opinion_html_with_citations | 25 | 2011-08-23 09:09:07+00 | 010combined | f | f | 365,034 | null | null | R | f | Published | 0 | Dorl v. Foster Wheeler Corp | Dorl | null | null | null | null | null | null | null | null | null | null | 377,985 | 78-1836_1 | 1 | ca3 | F | t | Third Circuit | Court of Appeals for the Third Circuit |
3,474,339 | Alfred Lirette died on September 23, 1940, in the Parish of Terrebonne, wherein he resided. On September 27, 1940, Bagley C. Lirette, a brother, filed a petition alleging the death of the deceased, setting forth the heirs of the decedent, and praying to be appointed administrator of his estate. On October 1st, 1940, Caliste J. Duplantis filed a petition in the said succession alleging that the decedent had left a will in olographic form, dated May 23, 1940, filing the purported will, and praying that the will be admitted to probate, registered and executed. The alleged will read as follows: "I Alfred J. Lirette of the Parish of Terrebonne Louisiana do make and ordain this my last will and testament revoking all others. "I gave and bequeath to Caliste J. Duplantis and wife Lottie nee Belenger Duplantis "I name and appoint Caliste J. Duplantis executor of this my last will and testament with full seizin and without bond. This written dated and signed with my own hand at Terrebonne, Parish of Terrebonne Louisiana this month May twenty Third 1940. "Alfred J. Lirette" On the same day, Bagley C. Lirette and Alex A. Lirette, brothers of the deceased, filed a motion to have the will filed in the clerk's office for inspection and to have a day fixed for its probation and for notification of the presumptive heirs. An order pursuant to said motion was duly signed by the District Judge, fixing October 12, 1940, as the day for hearing. On October 10, 1940, Bagley C. Lirette and Alex. Lirette filed an opposition to the probate of the alleged will on the grounds that it was not a genuine will, since it was not entirely written, dated and signed by the testator and since it made no disposition of property. On the day set for the probate of the will, the opponents requested that the proponent of the will be required to produce proof of the execution of the will before they be required to produce evidence attacking the same. The court overruled this request and held that the opponents were required to produce their evidence attacking the will as they bore the burden of showing that the will was not genuine, to which ruling opponents excepted and reserved a bill of exception. Under reservation, the hearing was had. There was judgment dismissing the opposition. Opponents have appealed. Opponents contend that the lower court erred in ruling that they carried the burden of proof and ordering them to proceed in the introduction of their evidence. Relative to this question, we are of the opinion that where a will has been probated as required by law, the probating of the same makes prima facia proof of its genuineness; if the will is thereafter attacked, the burden of proof rests upon the opponent to prove its invalidity. But a different rule applies when the probate of the will is opposed ab initio, the rule then being that it is incumbent upon the proponent of the will to produce proof of its execution and its genuineness and/or its validity. The rule of evidence in such a case is governed by Civil Code, Article 2245, and Code of Practice, Article 325, rather than Civil Code, Article 1655, in the former. This distinction is made clear in the cases of Succession of Gaines, 38 La.Ann. 123 ; Succession of White, 132 La. 890 , 61 So. 860 ; Succession of Wadsworth, 152 La. 131 , 92 So. 760 . We are, therefore of the opinion that the district judge committed error in requiring the opponents to go forward with their proof attacking the will, but we are of the further opinion that this error is not of any importance in this case, due to the conclusion we have reached and which will hereafter be discussed. On the question of the genuineness of the will, the proponents of the will offered the testimony of Mr. Caliste J. Duplantis, his son and his daughter-in-law. Mr. Duplantis and his daughter-in-law testified that they were present at the time of the writing of the will, the will having been written at the home of Duplantis, from a form obtained by Duplantis and furnished decedent; that they saw, intermittently, the deceased in the writing of the will and that the will was entirely written, dated and signed by the decedent. Victor Duplantis, the son of Caliste J. Duplantis, testified that he knew the signature of the decedent, having seen him sign his name a few times and that he recognized the signature of decedent on several documents as being genuine. He identifies the will as being entirely written, dated and signed by decedent. The proponent also offered as a witness Hon. J. Louis Watkins, a practicing attorney of Houma, who testified that Mr. Caliste J. *Page 199 Duplantis, in the spring of 1940, called at his office for information as to the making of a will; that he drew up a rough form of an olographic will without containing any specific condition, advising him that the will had to be written, dated and signed by the testator, it being only a shell of a will. Pursuant to the direction of the presiding judge, this purported form or shell of a will was thereafter filed in evidence. Opponents offered four documents upon which appears the signature of the deceased and which signatures are acknowledged to be the genuine signature of the deceased. The proof offered by the opponents consists of the testimony of the two brothers of the deceased who testified that they are familiar with the handwriting of their deceased brother, and that the purported will is not in his handwriting. They point out certain differences which they claim show the will to be a forgery and not in the handwriting of the deceased. They likewise offered certain documents admittedly in the handwriting of the deceased for use in comparing the signature on them with the handwriting on the will. They also produced Hon. R.A. Bazet, the Clerk of the District Court, in the nature of an expert, who expressed an opinion, by comparing the signatures on the documents offered admittedly containing the genuine signature of the deceased with that on the will, that there were differences in the handwriting. However, he would not undertake to say positively that the will had not been written by the deceased; he also admitted that the signature and handwriting of a person often varies, depending on his physical condition, age and other circumstances. A question of fact is presented herein. The trial judge came to the conclusion that the will was entirely written, dated and signed by the deceased. He must have attached considerable weight to the testimony of Mr. Caliste Duplantis and his daughter-in-law, even though Mr. Duplantis was interested in the will as a beneficiary thereunder. We see no reason to disagree with him and hold that these two witnesses committed perjury in the giving of their testimony. While there is some slight variation in their testimony in the details concerning the pen the decedent used and the position he occupied while writing the document, yet these variations are of no great importance more than to show the natural results of the different ways that witnesses see or understand that which is being done. Duplantis might have encouraged the deceased to make the will in his favor; in fact, he obtained the form for him to use and made it convenient to write the will. That in itself is not sufficient to cast doubt on the testimony of Duplantis and his daughter-in-law to the effect that they actually saw deceased write the will in question. Furthermore, we find so much similarity in the handwriting in the will and that of the genuine signature of the testator on the documents filed in evidence that we are of the opinion that the testator wrote the will in his own handwriting. While there are certain differences in some respects, yet it is well known, as testified by Mr. Bazet, that a person does not always write exactly the same. His signature and handwriting will sometimes be slightly different over a period of time, and there will often be a difference on account of his physical condition, infirmity, feebleness, nervousness, or the kind of pen and ink which he uses, as well as the position he is in when writing. We have given due weight to all of the facts found in the record, including the testimony of the opponents which was in the nature of negative testimony as against the testimony of proponent and his daughter-in-law which, as stated before, was positive as having seen the decedent write the will in his own handwriting. We are therefore of the opinion that the trial judge made a correct finding of fact that the will was genuine, regardless of his illegal ruling, presumptions and several errors made in commenting on the testimony. We feel that these errors were made by him due to the fact that the evidence had not been transcribed, through no fault of his, when he wrote the decision. As to opponents' contention that the will makes no disposition of property, it is our opinion that the will is at least valid for the appointment of an executor of decedent's estate rather than an administrator, the decedent having died testate. The trial judge so held and dismissed the opposition but did not order the probate and execution of the will, leaving such matters for future proceedings in accordance with law. We refrain, however, to pass upon the validity of the will relative to the disposition of any property, the district judge having failed to do so. We are called upon only to pass on such questions as may have *Page 200 been determined by the lower court. If and when the will is probated and its execution ordered, the heirs then will have the right to question whether or not the testator made a disposition of his property to Mr. and Mrs. Duplantis. Judgment affirmed. | opinion_html_with_citations | 1,681 | 2016-07-05 20:45:24.015854+00 | 020lead | f | f | 3,475,082 | DORE, Judge. | null | Z | f | Published | 4 | Succession of Lirette | Succession of Lirette | Succession of Lirette. | null | null | null | null | Appeal from District Court, Parish of Terrebonne; Robt. B. Butler, Judge.
Proceeding in the matter of the succession of Alfred Lirette, deceased, wherein Caliste J. Duplantis filed a petition to have the purported will of Alfred Lirette, deceased, admitted to probate, and wherein Bagley C. Lirette and Alex A. Lirette filed an opposition to the probate. From a judgment dismissing the opposition, the opponents have appealed.
Judgment affirmed. | null | null | null | null | 3,347,207 | No. 2332. | 0 | lactapp | SA | t | Louisiana Court of Appeal | Louisiana Court of Appeal |
6,212,018 | OPINION OF THE COURT Memorandum. Appeal from decision unanimously dismissed. *342Final judgment unanimously affirmed without costs. The tenant in this nonpayment proceeding resides in a building that receives Federal funds pursuant to the Section 8 Housing Assistance Payments Program for New Construction (24 CFR part 880). Tenant’s share of the contract rent is $218 per month. The total contract rent was $1,419 from July 1994 through September 1994 and $1,445 from October 1994 through May 1995. Landlord seeks in this proceeding to recover tenant’s share of the rent for the months from July 1994 to May 1995. As a defense and counterclaim, tenant asserts that landlord breached the warranty of habitability from the inception of the tenancy in 1992. Upon a pretrial oral application, the Housing Court ruled that the diminution in the value of the apartment was to be measured based on the contract rent rather than the tenant’s share of the contract rent (164 Mise 2d 756). After trial, the court ruled that tenant’s counterclaim would be allowed only for the months for which landlord seeks to recover rent (see also, Lin v Brabham, NYLJ, Jan. 17, 1996, at 34, col 2 [Civ Ct, Kings County, Gould, J.]). Finding that the rent owed was $2,398 and that the conditions in the apartment justified an award to tenant of $2,300, the court granted landlord a judgment for possession and $98. Landlord appeals from the court’s pretrial determination as to the measure of damages to be applied and from the final judgment. The appeal from the pretrial determination is dismissed. Any right of direct appeal therefrom terminated with the entry of the final judgment (see, Matter of Aho, 39 NY2d 241). The parties have stipulated that the sole issue to be determined on appeal is "whether the monetary basis for calculating rent abatement due to the breach in the warranty of habitability is the full contract rent * * * or whether the abatement should be calculated based upon the tenant’s share, as was originally demanded in the petition for nonpayment.” Before turning to this issue, however, we comment on the court’s limitation of tenant’s counterclaim to the months for which rent was sought by landlord. In Park W. Mgt. Corp. v Mitchell (47 NY2d 316, 329) the Court of Appeals remarked that an award for breach of the warranty of habitability may be made in an independent action by tenant or as "a percentage reduction of the contracted-for rent as a setoff in summary nonpayment proceedings in which the tenant counterclaims or pleads as a defense breach by the landlord of his duty to maintain the premises in habitable condition.” The Court specifically refrained from commenting "upon the availability of other remedies” (at 329). *343In Covington v McKeiver (88 Misc 2d 1000) the Appellate Term for the Ninth and Tenth Judicial Districts permitted the maintenance of a counterclaim based upon breach of the warranty of habitability for moneys paid under the lease (see also, Edgemont Corp. v Audet, 170 Misc 2d 1040 [App Term, 9th & 10th Jud Dists]). This is the position of the Appellate Term, First Department, as well (see, Alp Realty Corp. v Huttick, 160 Misc 2d 76, and cases cited therein). For the reasons that follow, we agree with this position and cases outstanding from this court which may be to the contrary should not be followed (Fisher v Cronin, NYLJ, Feb. 1, 1990, at 29, col 5 [App Term, 2d & 11th Jud Dists]; Fisher/Knickerbocker Co. v Green, NYLJ, May 14, 1992, at 27, col 6 [App Term, 2d & 11th Jud Dists]). Although RPAPL 743 provides that "[t]he answer may contain any legal or equitable defense, or counterclaim,” the need for speedy dispositions in landlord-tenant matters ordinarily dictates that counterclaims be severed unless they are in essence a defense to landlord’s claim or so intertwined with such a defense as to become part and parcel thereof (see, Net Realty Holding Trust v Cidis, NYLJ, Dec. 7, 1990, at 29, col 2 [App Term, 9th & 10th Jud Dists]; Great Park Corp. v Goldberger, 41 Misc 2d 988). Where as here the same conditions provide the basis for the setoff against arrears and for the counterclaim for rent paid, the defense and counterclaim are part of the same extended transaction and the counterclaim should ordinarily not be severed (see, Sutton Fifty-Six Co. v Fridecky, 93 AD2d 720; 610 W. 142nd St. Owners Corp. v Braxton, 140 Misc 2d 826). This appears to be the case even where the lease contains a waiver-of-counterclaims clause (see, Sutton Fifty-Six Co. v Fridecky, supra; Net Realty Holding Trust v Ci-dis, supra). In the instant case, however, we are unable to grant tenant any relief on this basis in view of tenant’s failure to appeal and of the stipulation limiting the issues on appeal. Turning to the issue raised by the parties, it is clear to us that the diminution in the value of the apartment must be measured by reference to the contract rent. It is the contract rent and not tenant’s share thereof which reflects the fair market value of the apartment (see, 42 USC § 1437f [c] [1]; 24 CFR 880.204 [Apr. 1995], removed 61 Fed Reg 13587). The application of a measure of damages based only on tenant’s share of the rent would result in landlord’s recovery of rent in excess of the value of what he has provided tenant. To illustrate the point, let it be assumed that there had been a severe deprivation, such as that of heat and hot water, which *344reduced the value of the apartment by half. The instant landlord, having already been paid in excess of $1,200 per month by the Department of Housing and Urban Development (HUD), would, applying landlord’s proposed standard, be entitled to recover another $109 from tenant, or half of the tenant rent. Yet landlord would have provided tenant with an apartment worth only approximately $700. We find this result to be untenable. It is our view that a showing by tenant of a diminution in the value of the apartment defeats landlord’s claim for rent to the full extent of the diminution shown. As the Court of Appeals stated in Park W. Mgt. Corp. v Mitchell (47 NY2d 316, 329, supra), the obligation to pay rent is coextensive with landlord’s duty to maintain the premises. To the extent that landlord breached his duty to repair, there was no rent owed and no default in rent. In the instant case, therefore, it was properly determined that the only default in rent was in the sum of $98. Although we are affirming, we hasten to add that we do not embrace tenant’s argument that a tenant should be allowed to recover damages for breach of the warranty of habitability in excess of his share of the rent (citing Renbel Mgt. Co. v Smith, M Trial Ct, Hampden Div, index No. SP-4384-S87). The Massachusetts Housing Court reasoned that tenants were third-party beneficiaries of the contract between HUD and landlord and that to deny tenants recovery would result in a windfall to landlord. We have no quarrel with the proposition that tenant is a third-party beneficiary of the contract between HUD and landlord (see, Free v Landrieu, 666 F2d 698; Holbrook v Pitt, 643 F2d 1261). But we do not agree with tenant and with the Massachusetts court with respect to the effect of this status upon her rights, at least insofar as are involved in this case. Tenant’s claim for breach of the warranty of habitability is predicated upon Real Property Law § 235-b, which implies the warranty into tenant’s lease with landlord. Real Property Law § 235-b (1) does not imply the warranty of habitability into the contract between HUD and landlord, which is not a "lease or rental agreement.” Moreover, the latter contract, although it does obligate landlord to maintain the premises in habitable condition, does not provide that tenant shall have a right of recovery for breach of this term. Therefore, in light of the rule that recovery for breach of the statutory warranty of habitability is dependent upon the obligation to pay rent by the party asserting the right to recover (see, Westway Plaza Assocs. *345v Doe, 179 AD2d 408; cf., Park W. Mgt. Corp. v Mitchell, supra), it is our view that any recovery by tenant must be limited to the amount that tenant is obligated to pay as rent. Still further complexities would be presented as to the measure of damages to be applied had tenant appealed with respect to its counterclaim for rent previously paid but in view of the failure to appeal we leave consideration of that problem for another day. We reject landlord’s contention that tenant may not be awarded an abatement based on the full contract rent because such an award was not within the contemplation of the parties. In determining damages under Real Property Law § 235-b it is not what the parties contemplated but what the statute provides that governs. We also reject landlord’s contention that HUD is a necessary party inasmuch as we have found that it is only landlord’s claim for rent which has been defeated and there has been no affirmative recovery by tenant. Scholnick, J. P., Chetta and Patterson, JJ., concur. | opinion_xml_harvard | 1,550 | 2022-02-05 21:09:28.967881+00 | 020lead | t | f | 6,343,388 | null | null | U | f | Published | 0 | Committed Community Associates v. Croswell | Croswell | Committed Community Associates v. Regina Croswell | null | null | null | null | null | null | null | null | null | 62,974,570 | null | 0 | nyappterm | SA | t | Appellate Terms of the Supreme Court of New York | Appellate Terms of the Supreme Court of New York |
8,052,496 | NADEAU, j. The defendant, Frank J. Geis d/b/a Architectural Inspections, appeals the ruling of the Superior Court (Smukler, J.) to permit the plaintiff, Darlene Gallentine, a post-trial damages hearing to produce evidence of damages, which he claims were unsupported at trial. We affirm in part and reverse in part. The issue before us is a narrow one. The gravamen of the defendant’s appeal is his objection to the trial court’s consideration of any evidence on the question of damages that was not admitted at the initial trial. This suit began when the plaintiff filed a writ of summons alleging various forms of damage arising from the defendant’s alleged negligence and breach of contract. The parties had contracted for the defendant to inspect and report on structural and systemic deficiencies in a residential property that the plaintiff was planning to purchase. After the plaintiff purchased the property, she discovered unreported problems. The superior court held a four-day trial to determine if, and to what extent, the defendant was liable. During the trial, both parties offered, and the court received, estimates of cost to remedy the deficiencies. The plaintiff offered an *702estimate for $1,500 from Ronald J. Reppueci regarding the electrical deficiencies unreported by the defendant. The plaintiff also proffered a blanket estimate from the Bauen Corporation for at least twelve other items of recommended repair to remedy, among other things, structural problems relative to a wood stove and drainage. Finally, the plaintiff proffered a report, but no estimate of repair, from Maguire Plumbing and Heating indicating heating and duct work problems. In its decision and order, the superior court determined that the defendant had caused only some of the damages alleged by the plaintiff. Specifically, the court found damages in the following areas: (1) the cost of sitework recommended by the Bauen Corporation to improve drainage; (2) the cost of relocating the wood stove pipe; (3) the cost of improving the flow of air in the furnace room for proper combustion; (4) the cost of repairing furnace [and] the duct work in order to improve the flow of air; (5) the cost of the Maguire Plumbing & Heating installation of an air filter in the furnace’s return air duct; and (6) the cost of repair of the above-referenced electrical deficiencies caused by amateur wiring. Unable to allocate the costs from among the estimates and reports to the specific areas of proven damage, the court ordered the plaintiff to “submit estimates for the repairs noted [in its order] and a receipt for reimbursement of the air filter within 30 days.” The defendant filed a motion for reconsideration arguing that the plaintiff must not have met her burden of proving damages because the court was requesting additional evidence regarding the costs of repairs and requested a hearing to challenge the breakdown of damages. The court denied the motion to reconsider but held a hearing on November 2, 1998. At that hearing the court accepted a revised estimate from the Bauen company totaling $8,200, which addressed the damage claims for which the court had found the defendant liable. Similarly the court received into evidence an estimate from American Air Systems, Inc., which covered the duct work damages. Based upon evidence admitted at trial and evidence submitted during the hearing, the court entered judgment in the amount of $11,097. The defendant essentially appeals the court’s decision to admit evidence regarding damages at a post-trial hearing. The decision to hold a subsequent hearing on damages is within the *703sound discretion of the trial court. See Ricker v. Mathews, 94 N.H. 313, 316, 53 A.2d 196, 198 (1947). “Judicial discretion has been defined as that power of decision, exercised to the necessary end of awarding justice, and based upon reason and the law, but for which decision there is no special governing statute or rule.” State v. Comparone, 110 N.H. 398, 399, 269 A.2d 131, 132 (1970) (quotation omitted). We have held that it is within the court’s discretion to “admit such evidence as is relevant to the determination of damages and not unduly confusing to the jury.” Lebanon Housing Auth. v. National Bank, 113 N.H. 73, 76-77, 301 A.2d 337, 340 (1973). This discretion is not limited to jury trials. We conclude, that with sufficient safeguards to satisfy due process, a court may also admit additional evidence to determine an accurate measure of damages in a bench trial. The superior court acted within its discretion in holding a post-trial hearing regarding the measurement of damages for claims on which the court had already found the defendant liable. Following the trial, the court was fully satisfied with the assessment offered regarding electrical work. Concerning drainage assessments, however, the court had before it only the Bauen estimate. That report’s recommendations spanned a broader scope of repairs than those damages for which the defendant was found liable. Therefore, the court asked for a new report limiting the estimates to the specifically enumerated repairs, which were to serve as a basis for its judgment. This was a reasonable approach toward reaching an accurate verdict. Furthermore, the defendant had adequate opportunity to challenge the veracity of this subsequently offered evidence at the hearing. The superior court did not abuse its discretion. “[I]n reviewing damage awards, we will consider the evidence in the light most favorable to the prevailing party. Furthermore, we will not disturb the decision of the fact-finder unless it is clearly erroneous.” Petrie-Clemons v. Butterfield, 122 N.H. 120, 124, 441 A.2d 1167, 1170 (1982) (quotation and citations omitted). “The law does not require ‘absolute certainty’ for recovery of damages.” Id. at 125, 441 A.2d at 1171. We do, however, require an indication that the award of damages was reasonable. See Bailey v. Sommovigo, 137 N.H. 526, 531, 631 A.2d 913, 917 (1993). We conclude that, in part, the damage award in this case is not clearly erroneous and is supported by the evidence in the record. The court awarded damages in three general areas. First, item six of the damage award, for electrical work, is supported by the Reppucci report. The defendant does not dispute this award. *704Second, items one and two of the damage award, for site work to improve drainage and relocation of the wood stove pipe, are supported by the Bauen estimate. The court found that these limited areas of damage were caused by the defendant’s breach of contract amidst numerous other claims of the plaintiff. Items three and four of the damage award, for duct work and air flow repair, however, are unsupported by the record and clearly erroneous. Although the Maguire report indicates there were deficiencies in these areas, the plaintiff proffered no estimate whatsoever of the cost to repair these damages. Unlike the damages relative to the Reppucci and Bauen reports where the court only needed to allocate the extent of damages from the already proffered estimates, here, the court received estimates into evidence for the first time. Without any evidence of cost at trial, the plaintiff failed to prove these damages. We note for completeness that at the hearing, the plaintiff waived her claim to item five of the damage award, the cost of a replacement filter, because that expense was so minimal. Affirmed in part; reversed in part. BROCK, C.J., and BRODERICK and DALIANIS, JJ., concurred; HORTON, J., retired, specially assigned under RSA 490:3, concurred; NADEAU and DALIANIS, JJ., took part in the final vote by consent of the parties. | opinion_xml_harvard | 1,239 | 2022-09-09 04:13:25.480253+00 | 020lead | t | f | 8,092,242 | Brock, Broderick, Consent, Dalianis, Horton, Nadeau, Parties, Rsa, Took, Vote | null | U | f | Published | 0 | Gallentine v. Geis | Gallentine | Darlene Gallentine v. Frank J. Geis d/b/a Architectural Inspections | null | null | null | null | null | null | null | null | null | 65,187,858 | No. 98-782 | 0 | nh | S | t | Supreme Court of New Hampshire | Supreme Court of New Hampshire |
7,177,402 | In re: Noel R. Hayes et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 208 So.2d 369. Writs denied. Mandamus will not lie to enforce a discretionary act. | opinion_xml_harvard | 40 | 2022-07-24 16:42:53.866367+00 | 020lead | t | f | 7,262,790 | null | null | U | f | Published | 0 | State ex rel. Hayes v. Louisiana State Board of Barber Examiners | null | STATE of Louisiana ex rel. Noel R. HAYES v. LOUISIANA STATE BOARD OF BARBER EXAMINERS | null | null | null | null | null | null | null | null | null | 64,251,172 | No. 49254 | 0 | la | S | t | Supreme Court of Louisiana | Supreme Court of Louisiana |
326,000 | 511 F.2d 1406 L'Italien v. U. S. 73-2097 UNITED STATES COURT OF APPEALS Seventh Circuit 2/25/75 1 S.D.Ind. AFFIRMED | opinion_html_with_citations | 19 | 2011-08-23 08:57:17+00 | 010combined | f | f | 326,000 | null | null | R | f | Published | 0 | L'ItaLIen v. United States | L'ItaLIen | null | null | null | null | null | null | null | null | null | null | 2,041,882 | 73-2097 | 0 | ca7 | F | t | Seventh Circuit | Court of Appeals for the Seventh Circuit |
8,008,013 | Philips, C. This is an action of ejectment, tried by the court sitting as a jury.. Petition is in the usual form of an'action of ejectment. The answer tendered the general issue, and further pleaded matter of defence in the nature of an estoppel, and the statute of limitation. The court found the issue for the plaintiff, and rendered judgment accordingly. Prom this judgment the defendant prosecutes this appeal. On the trial the defendant made some objection to the admissibility of certain evidence, but even this objection was not preserved in the motion for a new trial. No instructions were asked by either party, nor were any declarations of law made by the court. It is, therefore, manifest that there are no errors presented in this record for this court to review. It has been repeatedly held that under the present practice act, when the circuit court tries a case like this, sitting as a jury, the Supreme Court will not weigh the evidence, and determine whether or not the finding of the trial court was correct on the .evidence. This it will only do in an action in equity, or on an agreed statement of facts. The only way in an action like this, where there are no exceptions to evidence saved at the trial, to have a review of the decision of the lower court, is to ask declarations of law applicable to the facts of the case. The giving or refusal of instructions is the only way this court can ascertain the theory on which the court tried and determined the matter at issue. As is aptly said by Wagner, J., in Weilandy v. *166Lemuel, 47Mo. 322 : “The court in trying issues of fact, sits as a jury and gives a general verdict; and the only way in which its errors can be corrected, if it decides the law wrongfully, or makes a misapplication of the law to the facts, is to ask declarations of law or instructions, in order that we may see on what theory the court proceeded. To attempt to review this case would be simply giving our opinion upon the weight of the evidence, when no point of law was raised or saved in the trial court. Tin's we cannot do.” This ruling is supported by a long line of decisions. Altum v. Arnold, 27 Mo. 264; Conran v. Sellew, 28 Mo. 320; Easley v. Elliott, 43 Mo. 289; Wilson v. Railroad Co., 46 Mo. 36; Harrison v. Bartlett, 51 Mo. 170 ; Cunningham v. Snow, 82 Mo. 587. While we are strongly impressed with the belief that on the evidence and the law properly applied, the finding of. the court should have been for the defendant; yet as there was evidence on the part of the plaintiff on which the verdict might have rested, we cannot undertake to pass on the weight of the evidence and the credibility of the witnesses. That belongs exclusively to the province of the jury, or the court when sitting as a jury. It follows that the judgment of the circuit court must be affirmed. All concur. | opinion_xml_harvard | 521 | 2022-09-09 01:55:11.677967+00 | 020lead | t | f | 8,051,233 | Philips | null | U | f | Published | 0 | Miller v. Breneke | Breneke | Miller v. Breneke | <p>Appeal from Cape Girardeau Circuit Court. — Hon. D. L. Hawkins, Judge.</p> <p>(1) Irrespective of the question as to whether the one or the other of the two lines spoken of is the correct line between lots 4 and 5, the judgment should have been for the defendant under the statute of limitations. Majors n. Rice, 57 Mo. 384; Hamilton v. West, 63 Mo. 93; Walbrunn v. Ballew, 68 Mo. 164; Cole v. Parker, 70 Mo. 372. (2) The lots were subdivisions of a survey, not section land, and were sold as lots or by number, and the only way to discover the true line was to determine where the line had been located at the original subdivision. (3) An agreement to adoq)tthe “blazed line” as the true one was inferable from the conduct of plaintiff and defendant. Acton v. Dooley, 74 Mo. 63; Turner v. Baker, 64 Mo. 218 ; Dolde v. Vodica, 49 Mo. 98. (4) The plaintiff is estopped by reason of his statement in regard to the boundary line made to defendant prior to the latter’s purchase of lot 4.</p> <p>(1) An examination of the plat hereto annexed, and the testimony, show conclusively that in the subdivision of the survey into lots the lines are determined by simply extending the section lines of the adjoining government survey through the same. (2) Then, by pursuing this .course, in fixing the lines, the land in controversy falls south of the line so established, and belongs to respondent, Amon A. Miller. (3) There can not be any adverse holding of the strip of ground by appellant, Breneke, and those under whom he claims, for they have only claimed up to the “true line.” None of them have ever claimed any part of lot No. 5. If there has been any possession of a part of lot No. 5 it has been by mistake. Tamm v. Kellogg, 49 Mo. p. 118; Kincaid v. Dormey, 51 Mo., p. 553. (4) If there has ever been a survey as claimed by appellant, a mistake was made in establishing the line between lots 4 and 5, and the possession that followed was taken by mistake, and can not create a title under the statute of limitation.</p> | null | null | null | null | null | null | Affirmed. | <p>1. Practice in Supreme Court; weighing evidence. In an action at law, although, the case is tried by the court sitting as a jury, the Supreme Court will not weigh the evidence and determine whether or'not the finding of the trial court was correct.</p> <p>a. --: declarations of law. "Where a party in such case desires the ruling of the lower court on the law to be reviewed, he should ask for declarations of law.</p> | 65,146,782 | null | 0 | mo | S | t | Supreme Court of Missouri | Supreme Court of Missouri |
2,603,768 | Case: 12-40245 Document: 00512422901 Page: 1 Date Filed: 10/29/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED October 29, 2013 No. 12-40245 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, v. FELIPE SALINAS, Defendant–Appellant. Appeals from the United States District Court for the Southern District of Texas USDC No. 2:11-CR-966-1 Before OWEN and HAYNES, Circuit Judges, and LEMELLE,* District Judge. PER CURIAM:** Felipe Salinas appeals his convictions for knowingly making a materially false statement to a deputy United States marshal in violation of 18 U.S.C. § 1001(a)(2) and for possession of more than 500 grams of a mixture or substance containing a detectable amount of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). We affirm. * District Judge of the Eastern District of Louisiana, sitting by designation. ** 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. Case: 12-40245 Document: 00512422901 Page: 2 Date Filed: 10/29/2013 No. 12-40245 I Agents of the United States Marshal Service (USMS), led by Deputy Marshal Chris Askew, tracked the cell phone of a wanted fugitive, Antonio Ortiz, to an apartment complex in Corpus Christi, Texas. The agents followed the phone signal as it moved through the complex, and Askew observed a person he did not know, Felipe Salinas, walking in the location that was indicated as the phone’s location. Wearing full tactical gear that conspicuously identified him as a USMS agent, Askew approached and confronted Salinas on the sidewalk with one other agent. Shortly after the conversation was initiated, one of the other agents in the area notified Askew through a radio earpiece that Ortiz’s cell phone was in Askew’s immediate vicinity. Askew told Salinas that the USMS was looking for a fugitive, showed him a picture of Ortiz, and asked if Salinas knew Ortiz. Initially, Salinas denied knowing Ortiz or having ever seen him. Shortly thereafter, a cell phone in Salinas’s possession began to ring. Salinas removed the phone from his pocket, which allowed Askew to see the incoming call’s phone number on the screen. Askew immediately recognized the number as one that was frequently called from Ortiz’s phone. Askew asked Salinas who was calling, and Salinas claimed the call was from his father’s work number. At Askew’s request, Salinas handed the phone to the officer for inspection, and at the same time, Salinas produced another phone from his pocket, which he also gave to Askew. When questioned, Salinas disclosed the phone number of the first phone but claimed not to know the number for the second phone. Salinas did, however, disclose the passcode for the second phone, which was locked. Once Askew had unlocked the second phone, he was able to confirm that it was the phone that USMS had been tracking. Salinas initially claimed that he had purchased the phone himself and continued to deny knowing Ortiz. After further questioning, Salinas admitted that he knew Ortiz, but asserted that he 2 Case: 12-40245 Document: 00512422901 Page: 3 Date Filed: 10/29/2013 No. 12-40245 had not seen Ortiz in months. When Askew confronted Salinas with the fact that the second phone belonged to Ortiz, Salinas feigned surprise but then confessed that he was holding the phone at Ortiz’s request because Ortiz was worried that the Government might track him through the phone. Salinas was then arrested by Officer Matt Harmon, a Corpus Christi police officer assigned to the USMS task force, on state charges for hindering apprehension of a fugitive.1 The duration of the encounter between the time Askew approached Salinas and his arrest was approximately 15 to 20 minutes.2 At some unspecified point after Salinas’s arrest, agents read him his rights pursuant to Miranda v. Arizona.3 Once arrested, Salinas further divulged that he had been in recent contact with Ortiz and offered to show the agents the location of Ortiz’s parents’ house, where he believed they could find Ortiz. The agents asked Salinas to call Ortiz, which he did, but Salinas received no answer. A federal grand jury indicted Salinas on September 28 on one count of making false statements to a deputy United States marshal. On October 11, a group of agents, including Askew and Harmon, executed an arrest warrant at Salinas’s apartment. The agents knocked for several minutes before Salinas opened the door, and Askew presented him with the warrant. Askew asked whether there was anyone else in the apartment, and Salinas replied, “No, you can search it,” and gestured inside. Both Askew and Harmon took that to mean 1 It is not clear whether the state charges were ever prosecuted. 2 There is some uncertainty about when Salinas was arrested and read his Miranda rights. Contradicting the district court’s conclusion that Salinas was arrested at the apartment complex, Harmon testified that he arrested Salinas and read him his rights after Salinas lead the agents to Ortiz’s parents’ house. Because Salinas does not challenge the introduction of any statements made after the encounter on the apartment sidewalk, the precise moment of Salinas’s arrest is immaterial. 3 384 U.S. 436 (1966). 3 Case: 12-40245 Document: 00512422901 Page: 4 Date Filed: 10/29/2013 No. 12-40245 Salinas was consenting to a full search of the apartment. The agents entered the apartment and handcuffed Salinas. Once inside, the agents saw a notebook containing names and dollar amounts that Askew recognized as a drug- transaction ledger; razor blades; white powder on a table and the floor that later field-tested positive for cocaine; and clothing and a duffel bag with the Ferrari symbol on them, which Askew knew was associated with Los Zetas—a violent gang known to deal drugs.4 Askew opened the duffel bag and found what was later confirmed to be several hundred grams of cocaine. Pursuant to protocol, the agents then stopped the search and called the Drug Enforcement Agency (DEA). Officer Charles L. Bartels, a Corpus Christi police officer assigned to the DEA task force, and a second agent responded. Bartels presented Salinas with a written search-consent form, but Salinas refused to sign it. On the basis of the evidence already collected, the agents obtained a search warrant for Salinas’s apartment. In the subsequent search, the agents discovered more cocaine in Salinas’s bathroom closet. A total of 785.5 grams of cocaine was seized from the duffel bag and the closet. The Government then secured a superseding indictment, charging Salinas with one count of making false statements and one count of possession of at least 500 grams of a mixture or substance containing a detectable amount of cocaine with the intent to distribute. Salinas filed a motion to suppress the statements he made to Askew during their first encounter at the apartment complex and a motion to suppress the evidence seized from his apartment. At the suppression hearing, the Government offered testimony from Askew, Harmon, and Bartels. Salinas also testified, contradicting the Government’s version of the events. The court found Salinas’s testimony unconvincing. Regarding the motion to suppress Salinas’s statements at the apartment complex, the court concluded: 4 This name was erroneously transcribed as “Losetas” in the suppression hearing. 4 Case: 12-40245 Document: 00512422901 Page: 5 Date Filed: 10/29/2013 No. 12-40245 On August the 2nd I find that the Marshal testified that he showed pictures of Ortiz to the Defendant who denied knowing him and then a phone call came in on Ortiz’s phone in the hand of the Defendant. The conversation ensued further where he changed his story. He was arrested within 15 minutes of the initial contact. With regard to the search, the court ruled: On October the 11th the Marshals executed an arrest warrant. They conducted a protective search incident to a lawful arrest. They may have believed they had consent to do more, but I’m not sure that that’s clear from the testimony. They exceeded that by looking in the duffel bag. However, they had enough with the cocaine in plain view, the razors, the drug log, to get the search warrant, come back and it was inevitable that they would have seen the cocaine in the bag, as they found the cocaine in the laundry. So that is all admissible. At a stipulated bench trial, the court found Salinas guilty on both counts. On appeal, Salinas argues that the district court erred in denying his motions to suppress the incriminating statements and the evidence of cocaine. II We review the factual findings supporting the denial of a motion to suppress evidence for clear error, and we review questions of law de novo.5 “The clearly erroneous standard is particularly deferential where ‘denial of the suppression motion is based on live oral testimony . . . because the judge had the opportunity to observe the demeanor of the witnesses.’”6 Furthermore, under the clear error standard we review the evidence in the light most favorable to the prevailing party (the Government).7 A factual finding is clearly erroneous only 5 United States v. Mata, 517 F.3d 279 , 284 (5th Cir. 2008). 6 United States v. Scroggins, 599 F.3d 433 , 440 (5th Cir. 2010) (quoting United States v. Gibbs, 421 F.3d 352 , 357 (5th Cir. 2005)). 7 United States v. Menchaca-Castruita, 587 F.3d 283 , 289 (5th Cir. 2009). 5 Case: 12-40245 Document: 00512422901 Page: 6 Date Filed: 10/29/2013 No. 12-40245 when it is unsupported by the evidence when considering the record as a whole.8 Furthermore, we are not limited to considering only the district court’s reasoning and “may affirm a district court’s ruling on a motion to suppress on any basis established by the record.”9 III Salinas argues that the incriminating statements he made to Askew were inadmissible evidence because he was in custody at the time and had not been apprised of his rights pursuant to Miranda v. Arizona.10 We disagree. Additionally, even if those statements should have been excluded, their admission was harmless error because the remaining evidence was sufficient to convict Salinas. Salinas is correct that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant” unless the defendant has been given the prophylactic warnings mandated by Miranda.11 Custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody.”12 Salinas argues that he was in custody for the purposes of Miranda as soon as Askew had possession of his cell phone and suspected he was lying. In the absence of a formal arrest, whether a person is “in custody” depends on how a reasonable person would perceive and respond to the situation.13 We 8 United States v. Raney, 633 F.3d 385 , 389 (5th Cir. 2011). 9 Mata, 517 F.3d at 284 . 10 384 U.S. 436 (1966). 11 Miranda, 384 U.S. at 444 . 12 United States v. Gonzales, 121 F.3d 928 , 939 (5th Cir. 1997) (quoting Illinois v. Perkins, 496 U.S. 292 , 296 (1990)) (emphasis and internal quotation marks omitted). 13 United States v. Chavira, 614 F.3d 127 , 133 (5th Cir. 2010) (“[T]he issue is whether the reasonable person in [the same] situation would have understood the situation to 6 Case: 12-40245 Document: 00512422901 Page: 7 Date Filed: 10/29/2013 No. 12-40245 focus on the objective circumstances of the questioning and not the subjective purpose or intention of the law enforcement officers.14 A brief, public stop for questioning does not generally rise to the level of a custodial interrogation, even if the questioning is intended to determine whether the defendant is complying with the law.15 The hallmark of a custodial interrogation is the coercive power of law enforcement, which the Supreme Court “has recognized . . . can be mental as well as physical.”16 “A determination of whether a defendant is ‘in custody’ for Miranda purposes depends on the ‘totality of circumstances.’”17 The basic test for what constitutes a custodial interrogation is whether “a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.”18 In general, we have held that custodial interrogation requires some combination of isolation, restriction of movement, physical restraint, and coercive technique. For example, in United States v. Cavazos,19 we held that the hour-long questioning of a defendant who was roused from his bed by fourteen officers executing a search warrant, handcuffed, and separated from his family during questioning constituted a custodial interrogation.20 constitute a restraint on freedom to the degree the law associates with formal arrest.”). 14 United States v. Bengivenga, 845 F.2d 593 , 596-97 (5th Cir. 1988) (en banc). 15 Id. 16 Miranda, 384 U.S. at 448. 17 United States v. Cavazos, 668 F.3d 190 , 193 (5th Cir. 2012) (quoting California v. Beheler, 463 U.S. 1121 , 1125 (1983)). 18 Bengivenga, 845 F.2d at 596 . 19 668 F.3d 190 (5th Cir. 2012). 20 Cavazos, 668 F.3d at 194 . 7 Case: 12-40245 Document: 00512422901 Page: 8 Date Filed: 10/29/2013 No. 12-40245 In contrast, in United States v. Bengivenga21 we held that the questioning of two women on a commercial bus at a fixed immigration checkpoint did not rise to the level of custodial interrogation.22 In that case, agents detected a strong odor of marijuana emanating from three checked bags and asked the women to step off the bus for further questioning in the checkpoint trailer.23 The questioning officer quickly determined that the bags belonged to the two women based on luggage tags in their possession, and he arrested them and advised them of their constitutional rights.24 Noting that the questioning was brief and not overbearing (lasting only a few minutes), was not in isolation, and did not involve a large number of agents, the court concluded that “a reasonable person in Bengivenga’s position would have understood that so long as the bus driver remained in the trailer the bus would not depart and if everything checked out she would shortly rejoin the other passengers on the bus.”25 More recently, in United States v. Chavira,26 we examined when questioning that is initially noncustodial becomes a custodial interrogation. In that case, immigration officers first detained Chavira at an established pedestrian border checkpoint.27 When they grew suspicious of her claims that the minor teenage girl accompanying her was her daughter, immigration officials moved Chavira to a small, windowless room in the “secondary processing area” where she was subjected to a pat-down search, seated and 21 845 F.2d 593 (5th Cir. 1988) (en banc). 22 Bengivenga, 845 F.2d at 594 . 23 Id. 24 Id. 25 Id. at 599-600. 26 614 F.3d 127 (5th Cir. 2010). 27 Chavira, 614 F.3d at 129 . 8 Case: 12-40245 Document: 00512422901 Page: 9 Date Filed: 10/29/2013 No. 12-40245 handcuffed to a chair, and questioned by several officers about her statements.28 We held that although Chavira was not free to leave, the initial checkpoint detention did not constitute a custodial interrogation.29 However, the questioning in the secondary processing area did.30 We noted that, in addition to moving Chavira to a small, enclosed space away from the public, immigration officials had confiscated Chavira’s birth certificate and driver’s license, separately detained the minor child accompanying her, physically restrained her with handcuffs, and questioned her for 30 to 40 minutes in an “increasingly accusatory” manner.31 The circumstances of Salinas’s initial encounter with law enforcement at the apartment complex do not indicate that it was a custodial interrogation. Salinas was not moved to a separate location or physically restrained. He remained subject to public scrutiny and was questioned by only two agents. Unlike Chavira and Cavazos, the agents did not restrict or control Salinas’s actions beyond asking him questions. Although, post hoc, Salinas claims that he perceived himself to be in custody, a reasonable person would not have considered himself to be under arrest in those circumstances.32 28 Id. at 129-30. 29 Id. at 133. 30 Id. 31 Id. at 134. 32 See United States v. Cavazos, 668 F.3d 190 , 193 (5th Cir. 2012) (recognizing that the “essential” inquiry is whether “a reasonable person [would] have felt he or she was at liberty to terminate the interrogation and leave” (citing J.D.B. v. North Carolina, 131 S. Ct. 2394 , 2402 (2011))); United States v. Bengivenga, 845 F.2d 593 , 596 (5th Cir. 1988) (en banc) (“The reasonable person through whom we view the situation must be neutral to the environment and to the purposes of the investigation—that is, neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.”). 9 Case: 12-40245 Document: 00512422901 Page: 10 Date Filed: 10/29/2013 No. 12-40245 Salinas concedes that the encounter did not begin as a custodial interrogation, but argues that two circumstances moved the encounter into the realm of a custodial interrogation: that Askew took possession of his cell phones and became suspicious that he was lying. Relying on Florida v. Royer,33 Salinas argues that retention of a key item of property is a “show of official authority such that ‘a reasonable person would have believed that he was not free to leave.’”34 However, at issue in Royer was whether the defendant was “seized” for the purposes of an illegal search and seizure under the Fourth Amendment.35 We have repeatedly recognized that seizure under the Fourth Amendment is distinct from custody under Miranda.36 “The critical difference between the two concepts . . . is that custody arises only if the restraint on freedom is a certain degree—the degree associated with formal arrest.”37 Although the retention of the phones, like the retention of the identifying documents in Chavira, is some evidence that the encounter was custodial, it is insufficient for us to conclude that the district court clearly erred in finding that Salinas was not in custody. The only other evidence Salinas offers is Askew’s testimony that he suspected Salinas was lying and that “at that point [Salinas] was not free to leave.” Under Bengivenga, the focus of the officer’s questioning is not probative of custody.38 Nor does temporary detention by itself automatically rise to the 33 460 U.S. 491 (1983). 34 Royer, 460 U.S. at 502 (quoting United States v. Mendenhall, 446 U.S. 544 , 554 (1980) (opinion of STEWART, J.)). 35 Id. at 499-500. 36 E.g., Cavazos, 668 F.3d at 193 (“Custody for Miranda purposes requires a greater restraint on freedom than seizure under the Fourth Amendment.” (citing Bengivenga, 845 F.2d at 598 )). 37 Bengivenga, 845 F.2d at 598 . 38 Id. at 597. 10 Case: 12-40245 Document: 00512422901 Page: 11 Date Filed: 10/29/2013 No. 12-40245 level of custodial interrogation.39 Even if Salinas were not “free to leave,” that does not mean that he was effectively under arrest for the purposes of Miranda. In the alternative, assuming that Salinas’s statements were obtained in violation of Miranda and were therefore inadmissible, admission of the incriminating statements was harmless error. To demonstrate harmless error in this context, the Government must show that the evidence, absent the improperly admitted evidence, overwhelmingly demonstrates beyond a reasonable doubt that Salinas knowingly made a materially false statement.40 We conclude that it has met this burden. Salinas sought to exclude three specific statements: that he knew Ortiz, that he had spoken with Ortiz recently, and that he was holding Ortiz’s phone to help Ortiz avoid capture. He argues that, without those three statements, the Government could not prove beyond a reasonable doubt that Salinas knowingly made a materially false statement to Askew when Salinas said he did not know Ortiz. To convict Salinas under 18 U.S.C. § 1001, the Government had the burden to prove that Salinas “(1) made a statement (2) that was false (3) and material (4) knowingly and willfully and (5) that falls within agency jurisdiction.”41 Each element of the crime is either directly proven or is an inescapable inference from the admissible evidence that Salinas possessed Ortiz’s cell phone and received a phone call on his personal phone from a number associated with Ortiz—all while denying any knowledge of or connection to Ortiz. Salinas’s statement that he did not know Ortiz was shown to be false by 39 Id. at 597-98; see also United States v. Chavira, 614 F.3d 127 , 129, 133 (5th Cir. 2010). 40 United States v. Virgen-Moreno, 265 F.3d 276 , 294 (5th Cir. 2001) (citing United States v. Paul, 142 F.3d 836 , 843 (5th Cir. 1998)). 41 United States v. Jara-Favela, 686 F.3d 289 , 301 (5th Cir. 2012). 11 Case: 12-40245 Document: 00512422901 Page: 12 Date Filed: 10/29/2013 No. 12-40245 Salinas’s possession of Ortiz’s phone and knowledge of the passcode. The sole plausible inference for Salinas’s denial that he knew Ortiz is an intent to deceive.42 Salinas made a statement that, if believed, would frustrate the apprehension of a fugitive, making it material to the USMS investigation.43 For the same reason, the statement was relevant to the jurisdiction of the USMS. The statements that Salinas asserts were obtained in violation of Miranda were cumulative and their admission, if in error, was harmless.44 42 United States v. Guzman, 781 F.2d 428 , 431 (5th Cir. 1986) (“The requirement that the false representation be made ‘knowingly and willfully’ is satisfied if the defendant acts deliberately and with the knowledge that the representation is false.”). 43 United States v. Moore, 708 F.3d 639 , 649 (5th Cir. 2013) (“A material statement is one that has ‘a natural tendency to influence, or be capable of influencing, the decision of a decisionmaking body to which it was addressed.’” (quoting United States v. Richardson, 676 F.3d 491 , 505 (5th Cir. 2012))). 44 The following exchange during the suppression hearing among the district court, Askew, and the prosecutor, Ms. Hampton, suggests that the court too considered the statements made by Salinas merely cumulative evidence: THE COURT: Well, how early in the process did you figure out that was Mr. Ortiz’s phone? THE WITNESS: Within—within a couple minutes. THE COURT: A couple minutes? THE WITNESS: Yes, ma’am. THE COURT: Okay. So nothing you found out after that—I mean, is there anything of any import to suppress after that? MS. HAMPTON: Yes, your Honor. There’s statements by the Defendant after that, when he’s not in custody, before the 15 minutes that he’s talking—they’re still trying to find out where Mr. Ortiz is at, is that correct? THE WITNESS: That’s correct. MS. HAMPTON: And they know— THE COURT: Well, he said he didn’t know who this person was. MS. HAMPTON: That’s correct, your Honor. THE COURT: And that you later found out within two minutes that he had the phone. So what more is there ever to suppress? MS. HAMPTON: After that he admits to knowing Mr. Ortiz and admits— THE COURT: Well, they knew that. He had his phone. MS. HAMPTON: And admits that he had switched phones with Mr. Ortiz. THE COURT: Of course he did. He had the phone. He said, “I didn’t know him.” MS. HAMPTON: It’s just those admissions, your Honor. THE COURT: I don’t know what difference it makes, really. 12 Case: 12-40245 Document: 00512422901 Page: 13 Date Filed: 10/29/2013 No. 12-40245 IV Salinas’s second issue concerns the district court’s denial of his motion to suppress the evidence of cocaine seized at his apartment. He argues that because the agents had no authority to search the Ferrari duffel bag, the cocaine found in the bag is inadmissible. Without the cocaine from the duffel bag, Salinas asserts that the agents did not have probable cause for a search warrant and therefore would not have discovered the quantity of cocaine in his bathroom closet. We disagree. Even assuming that the agents’ search of the duffel bag violated the Fourth Amendment, the evidence seized in plain view was sufficient to support a search warrant. As a result, all 785 grams of cocaine inevitably would have been discovered, and the exclusionary rule does not apply. The Fourth Amendment protects “against unreasonable searches and seizures,”45 and the search of a home without a warrant is presumptively unreasonable.46 The exclusionary rule prohibits the Government from introducing evidence obtained directly or indirectly as result of an illegal search.47 However, the exclusionary rule is inapplicable if the otherwise suppressible evidence would inevitably have been discovered by lawful means.48 Evidence is inevitably discoverable if “(1) there is a reasonable probability that the contested evidence would have been discovered by lawful means in the absence of police misconduct and (2) the Government was actively pursuing a 45 U.S. CONST. amend. IV. 46 United States v. Scroggins, 599 F.3d 433 , 440 (5th Cir. 2010) (quoting Brigham City v. Stuart, 547 U.S. 398 , 403 (2006)). 47 United States v. Jackson, 596 F.3d 236 , 241 (5th Cir. 2010) (quoting United States v. Grosenheider, 200 F.3d 321 , 327 (5th Cir. 2000)). 48 Id. 13 Case: 12-40245 Document: 00512422901 Page: 14 Date Filed: 10/29/2013 No. 12-40245 substantial alternate line of investigation at the time of the constitutional violation.”49 In this case, both elements are satisfied. With regard to the second element, the agents’ presence for the purpose of executing a valid arrest warrant demonstrates active pursuit of an alternate line of investigation.50 Indeed, we have suggested that the second element of the inevitable discovery rule may be superfluous.51 The first element is satisfied in the present case because the legally obtained evidence was sufficient to support probable cause for the search warrant that ultimately issued.52 In his affidavit in support of the application for a search warrant, Bartels provided the following details: (1) an account of his knowledge and experience in drug enforcement, particularly with regard to facts and circumstances that are indicative of drug dealing; (2) an account of Askew’s initial encounter with Salinas leading to the conclusion that Salinas was associated with Ortiz, a known drug dealer; (3) an attestation as to Askew’s belief, based on his own knowledge and experience, that Salinas was involved in the distribution of illegal narcotics; and (4) a description of items found in Salinas’s apartment during his arrest, including the drug ledger, pill bottles, razor blades, several cell phones, the duffel bag with the Ferrari emblem, and cocaine residue on the kitchen floor. The affidavit contained more than enough evidence to provide probable cause for a search warrant, and Salinas’s contention that the agents would not have obtained a search warrant without 49 Id. (citing United States v. Lamas, 930 F.2d 1099 , 1102 (5th Cir. 1991)). 50 Id. at 242 (“[A]n ongoing grand jury investigation that has already led to an indictment would clearly satisfy [the second element].”). 51 Id. (citing Lamas, 930 F.2d at 1104). 52 Id. (“Once seized, this evidence could not only be introduced at trial but also used as evidence of probable cause in support of a warrant.” (citing United States v. Webster, 750 F.2d 307 , 328 (5th Cir. 1984))). 14 Case: 12-40245 Document: 00512422901 Page: 15 Date Filed: 10/29/2013 No. 12-40245 evidence of the quantity of cocaine found inside the Ferrari duffel bag is unconvincing.53 Even assuming that the cocaine in the duffel bag was obtained from an illegal search, a reasonable basis for probable cause is evident.54 As a result, there is a reasonable probability that the cocaine in the duffel bag inevitably would have been discovered legally. We also reject Salinas’s suggestion that the agents had no right to be in his apartment at all and that therefore none of the supporting evidence was legally obtained. The record demonstrates that the agents’ presence was justified for at least three reasons. First, the arrest warrant alone provided a legal basis for entry into the apartment.55 Second, pursuant to an arrest, law enforcement agents are permitted to perform a “protective sweep” search of the area within immediate control of an arrestee and areas immediately adjacent to the place of arrest “from which a surprise attack could occur.”56 Finally, the record 53 See United States v. Adcock, 756 F.2d 346 , 347 (5th Cir. 1985) (per curiam) (“Probable cause [for a search warrant] is that which warrants a man of reasonable caution in believing that there is a ‘practical, non-technical’ probability that contraband is present on the premises to be searched; it does not demand a showing that the belief is more likely true than false.”). 54 See Jackson, 596 F.3d at 241 (reasoning that probable cause existed for a subsequent search warrant as soon as the police found a single bag of marijuana during their protective sweep); United States v. Monroy, 614 F.2d 61 , 63-64 (5th Cir. 1980) (holding that probable cause for a wider search existed when officers detected the odor of marijuana); see also United States v. Hill, 500 F.2d 315 , 317 (5th Cir. 1974) (“Probable cause is deemed to exist where the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed.” (quoting United States v. Melancon, 462 F.2d 82 , 89 (5th Cir. 1972)) (internal quotation marks omitted)). 55 Jackson, 596 F.3d at 241 ; see also Payton v. New York, 445 U.S. 573 , 603 (1980) (“[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.”). 56 United States v. Mata, 517 F.3d 279 , 285 (5th Cir. 2008); see also United States v. Virgil, 444 F.3d 447 , 451 (5th Cir. 2006) (“Any arrest may be accompanied by a search ‘incident to the arrest’ of the immediate vicinity, limited to areas in which weapons might be found, regardless of probable cause or reasonable suspicion.”). 15 Case: 12-40245 Document: 00512422901 Page: 16 Date Filed: 10/29/2013 No. 12-40245 demonstrates that Salinas invited the agents into his apartment. Salinas concedes that he consented to entry but argues that his consent was not voluntary.57 Salinas has waived this argument by failing to raise it in the district court.58 Furthermore, although there is some disagreement about the scope of the invitation, it is plain that at the very least Salinas consented to the officers’ entrance. Thus, the agents had ample legal grounds for being present inside the apartment, where the other evidence was in plain view. Law enforcement agents may, in certain circumstances, legally seize evidence that is out in the open without a warrant or separate justification to search.59 Under the plain view doctrine, any evidence was legally obtained if “(1) the police lawfully entered the area where the item was located; (2) the item was in plain view; (3) the incriminating nature of the item was ‘immediately apparent;’ and (4) the police had a lawful right of access to the item.”60 All four prongs are satisfied in this case. Whether the agents were inside the apartment at Salinas’s invitation, to conduct a protective sweep, or simply to execute the arrest, they were lawfully present in the room, satisfying the first prong.61 Evidence was visible without 57 See United States v. Scroggins, 599 F.3d 433 , 440 (5th Cir. 2010) (“In order to satisfy the consent exception, the government must demonstrate that there was (1) effective consent, (2) given voluntarily, (3) by a party with actual or apparent authority.”). 58 See United States v. Pope, 467 F.3d 912 , 919-20 (5th Cir. 2006). Salinas argued below that the exchange with Askew never took place and that he had not given any consent. 59 See Jackson, 596 F.3d at 241 -42 (recognizing that the plain view doctrine is an independent exception to the search warrant requirement if the police are lawfully present by virtue of an arrest warrant and that it does not require that the officers be conducting a protective sweep). 60 United States v. Virgil, 444 F.3d 447 , 451 (5th Cir. 2006) (quoting United States v. Buchanan, 70 F.3d 818 , 825-26 (5th Cir. 1995)). 61 See Moore v. Felger, 19 F.3d 1054 , 1058 (5th Cir. 1994) (“Agents who have a lawful right of access to an area do not have to look the other way if they discover evidence of criminal conduct not specified in a search warrant. That is the central principle of the plain 16 Case: 12-40245 Document: 00512422901 Page: 17 Date Filed: 10/29/2013 No. 12-40245 any intrusive search, satisfying the second prong. The third prong is satisfied as well; both Askew and Bartels indicated that the visible items, in their experience, were indicative of drug trafficking. Finally, the fourth prong collapses with the first in this case because the legal justification for the agents’ presence in Salinas’s apartment puts them in the position to have legal access to the evidence.62 In sum, assuming arguendo the cocaine seized from the duffel bag and closet during the initial search of Salinas’s apartment was seized illegally, it was admissible under the inevitable discovery doctrine, and therefore the district court did not err in denying Salinas’s second motion to suppress. * * * For the foregoing reasons, the judgment of the district court is AFFIRMED. view doctrine.”) (internal citation omitted). 62 See United States v. Paige, 136 F.3d 1012 , 1024 (5th Cir. 1998) (noting that the fourth factor “is [ordinarily] implicated in situations such as when an officer on the street sees an object through the window of a house, or when officers make observations via aerial photography or long-range surveillance. In those cases, the officers cannot use the plain view doctrine to justify a warrantless seizure, because to do so would require a warrantless entry upon private premises.” (alteration in original) (quoting United States v. Naugle, 997 F.2d 819 , 823 (10th Cir. 1993)) (internal quotation marks omitted)). 17 | opinion_html_with_citations | 5,639 | 2013-10-30 11:35:00.374844+00 | 010combined | f | f | 2,603,768 | Haynes, Lemelle, Owen, Per Curiam | null | CU | t | Unpublished | 0 | United States v. Felipe Salinas | null | UNITED STATES of America, Plaintiff-Appellee, v. Felipe SALINAS, Defendant-Appellant | null | null | <parties id="b486-12">
UNITED STATES of America, Plaintiff-Appellee, v. Felipe SALINAS, Defendant-Appellant.
</parties><docketnumber id="AmI">
No. 12-40245.
</docketnumber><court id="All">
United States Court of Appeals, Fifth Circuit.
</court><decisiondate id="AuqI">
Oct. 29, 2013.
</decisiondate><br><attorneys id="b487-14">
<span citation-index="1" class="star-pagination" label="459">
*459
</span>
Terri-Lei O’Malley, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
</attorneys><br><attorneys id="b487-15">
Marjorie A. Meyers, Federal Public Defender, Sarah Beth Landau, Assistant Federal Public Defender, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
</attorneys><br><judges id="b487-17">
Before OWEN and HAYNES, Circuit Judges, and LEMELLE,
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
District Judge.
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b487-9">
District Judge of the Eastern District of Louisiana, sitting by designation.
</p>
</div></div> | null | null | null | null | null | null | 1,958,069 | 12-40245 | 0 | ca5 | F | t | Fifth Circuit | Court of Appeals for the Fifth Circuit |
658,153 | 10 F.3d 526 63 Fair Empl.Prac.Cas. (BNA) 625 , 63 Empl. Prac. Dec. P 42,713 , 62 USLW 2362 Marcia L. SAXTON, Plaintiff-Appellant, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, successor to AT & T Bell Laboratories, Defendant-Appellee. No. 92-1545. United States Court of Appeals, Seventh Circuit. Argued Dec. 10, 1992. Decided Dec. 3, 1993. James W. Holman (argued), Cellucci, Yacobellis & Holman, Naperville, IL, for plaintiff-appellant. Charles C. Jackson, Lee P. Schafer (argued), Seyfarth, Shaw, Fairweather & Geraldson, Thomas H.W. Sawyer, James M. Staulcup, Jr., AT & T Technologies, Chicago, IL, for defendant-appellee. Before CUDAHY and ROVNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge. ILANA DIAMOND ROVNER, Circuit Judge. 1 Marcia Saxton sued American Telephone & Telegraph Co. ("AT & T") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, alleging that she was sexually harassed by her supervisor at AT & T Bell Laboratories. 1 The district court granted summary judgment in favor of AT & T, and Saxton appeals. We affirm. I. BACKGROUND A. Facts 2 The facts underlying the district court's summary judgment ruling are largely undisputed. 2 Saxton began working for AT & T's Design Engineering Staff ("DES") in Naperville, Illinois in 1986. In June 1987, she met Jerome Richardson, a supervisor in AT & T's International Division. The two had lunch together several times during the remainder of that year and discussed the possibility of Saxton transferring to Richardson's group. Richardson boasted that he could bring Saxton into his group with Member of Technical Staff ("MTS") status, although this classification typically required a Bachelor of Science degree in engineering or a related field from a reputable university; Saxton had a Bachelor of Arts degree in computer science from a lesser-known college, which ordinarily would qualify her only for the lesser classification of Senior Technical Associate ("STA"). Jan Ronchetti, Saxton's DES supervisor, told her she doubted that Saxton could be transferred as an MTS. Saxton nonetheless accepted Richardson's offer and transferred into his group in January 1988. In February or March, Richardson informed her that she had transferred as an STA rather than an MTS. Richardson explained that Saxton could still earn MTS classification if she proved her abilities, but she never received that promotion. 3 In April 1988, Saxton and Richardson met for drinks after work at Richardson's suggestion. Saxton had been trying to meet with Richardson in order to discuss her dissatisfaction with her initial lab assignment. After spending two hours at a suburban nightclub, they drove to a jazz club in Chicago, again at Richardson's suggestion. While they were at the jazz club, Richardson placed his hand on Saxton's leg above the knee several times and once he rubbed his hand along her upper thigh. Saxton removed Richardson's hand each time and told him to stop, warning him that he could get into trouble for that kind of conduct. When they left the club, Richardson pulled Saxton into a doorway and kissed her for two to three seconds until she pushed him away. After they returned to Richardson's car, Saxton told him not to do that again, and he agreed. 3 When Saxton repeated her admonition at work the following morning, Richardson apologized and assured her that it would not happen again. 4 About three weeks later, Richardson invited Saxton to lunch to discuss work-related matters. As Richardson was driving Saxton back to her car after lunch, he detoured through the Morton Arboretum, stopped the car, and got out to take a walk. Saxton decided to do the same and walked off on her own. As she did so, Richardson suddenly "lurched" at her from behind some bushes, as if to grab her. Saxton dashed several feet away in order to avoid him. She again told Richardson that his conduct was inappropriate, and he became sullen. They returned to Richardson's car and finished the drive back to her automobile without further incident. 5 This was the last time Richardson made any sexual advances toward Saxton. She discussed his conduct with a coworker and considered reporting it to AT & T, but decided against making a complaint at that time. 6 Saxton subsequently perceived a change in Richardson's attitude toward her at work. Although Richardson gave her a more rewarding work assignment, he refused to speak with her, treated her in a condescending manner, and teased her about her romantic interest in a coworker. In addition, Richardson seemed inaccessible and on several occasions canceled meetings that he had scheduled with Saxton. 4 In October 1988, Saxton approached AT & T supervisor Kamla Garg, concerned that her work environment had deteriorated. Saxton mentioned the two incidents that had occurred in April. Garg told Saxton that she could speak with AT & T ombudsperson Patricia Kitterman. Saxton considered the suggestion but did not speak with Kitterman until January 1989, at which time she asked Kitterman whether she could transfer to another department. 7 In February 1989, Saxton lodged a formal internal complaint alleging sexual harassment. In accord with AT & T procedure, Saxton's department head, Michael Holmes, investigated her complaint. Holmes interviewed Saxton, several witnesses she identified to corroborate her story, and Richardson. Holmes permitted Saxton to work at home during the investigation of her complaint. 8 Holmes found the evidence of sexual harassment to be inconclusive. In a written report, Holmes noted that Saxton and Richardson had provided conflicting accounts of the relevant events. Richardson had acknowledged that he and Saxton had kissed and held hands but also had suggested that these contacts were consensual and had ended amicably when Saxton expressed a lack of romantic interest in him. Holmes also noted that Fay Trespalacious, a coworker whom Saxton had identified as another victim of Richardson's harassment, had denied any wrongdoing on Richardson's part and had charged that Saxton was harassing her by spreading rumors of an alleged sexual relationship between Trespalacious and Richardson. Finally, the other individuals with whom Saxton had discussed the incidents had disclaimed any first-hand or detailed knowledge of what had occurred. 9 Holmes nonetheless concluded that Richardson had exercised poor judgment in attempting to initiate a personal relationship with a subordinate employee and that there was no longer adequate trust and communication between him and Saxton. Holmes therefore decided that Richardson and Saxton should be separated and that Richardson should take a refresher course on AT & T's sexual harassment policy. Holmes considered the possibility of suspending Richardson for one week without pay, but ultimately decided against that sanction. Holmes did decide that his entire department should also be given a refresher course on sexual harassment, which proceeded as planned. Richardson never took the course. 10 Holmes discussed his findings with Saxton on March 19, 1989 and asked whether she would be interested in transferring to another department. Although Saxton previously had expressed an interest in doing so to Kitterman, she declined Holmes' offer. Holmes thus decided that Richardson should be transferred. 11 On March 27, 1989, Holmes arranged for Richardson's transfer to the Domestic Division of AT & T Bell Laboratories, which was located in a separate building one-half mile away. The transfer was effective April 24, 1989, and Richardson had cleared out his office by May 1. Saxton continued to work at home during the intervening five weeks. Holmes subsequently learned that Saxton saw Richardson in her department on several occasions when she reported to the office shortly after his transfer, although the two did not speak. Holmes responded by admonishing Richardson to avoid any contact with Saxton. 12 After Richardson's transfer, Holmes attempted to integrate Saxton back into his department. At a May 15, 1989 meeting, Holmes asked Saxton to review an ongoing project and assess which portion of the work would best match her skills and experience. Holmes indicated that he would assign Saxton a particular task once she had done so. 13 Saxton was dissatisfied with the available opportunities. On May 18, she sent Holmes an electronic message indicating that she was having difficulty identifying an appropriate project assignment that had not already been claimed by someone else. She also criticized AT & T's handling of her sexual harassment complaint and outlined a series of conditions that she viewed as essential to her return to work at AT & T. 14 Holmes responded via electronic mail on the same day. He assured Saxton that there was plenty of work available on the project and reiterated his request that she identify the type of work she was interested in doing. Holmes expressed his support for Saxton and indicated that he would meet with her the following week to discuss a specific assignment. 15 Saxton wrote to Holmes again on May 23, stating that "it's pointless to try and discuss job objectives when there are still outstanding issues to be resolved." Saxton enclosed a copy of a letter from her attorney, which identified the following issues: (1) a recent merit rating that Saxton believed was unacceptable; 5 and (2) her request that she be reimbursed for the attorney's fees she had incurred in connection with the sexual harassment charge and for her medical expenses. 6 Saxton indicated that her lawyer would handle these concerns and that she would like personal time off until the situation was resolved. 16 In a June 23, 1989 letter to Saxton, Holmes noted that Saxton had been absent from work since May 12 and that efforts to contact her by telephone and electronic mail had been unsuccessful. He requested that she inform him immediately of her intentions regarding continued employment with AT & T. Holmes followed up via electronic mail on June 28, 1989. He reiterated that Saxton had not kept him apprised of the work she was doing at home and advised her that he now considered the work-at-home arrangement to be void. Again he requested an immediate response and indicated that he was available to meet with her the following morning. 17 When Saxton did not return to the office, Holmes wrote to her on July 19, once more requesting that she contact him regarding the status of her work. He also indicated that either Saxton or her physician should contact the company's medical department as soon as possible regarding possible medical restrictions noted in recent correspondence from Saxton's attorney. 7 18 Saxton apparently renewed her request for personal time off until her concerns were addressed. In an August 3, 1989 response, Holmes indicated that AT & T considered all issues to have been resolved, although perhaps not to Saxton's satisfaction. Holmes found Saxton's request for time off to be "unwarranted" and requested that she return to work immediately unless any medical problems prevented her from doing so. He warned her that if she did not report to work by August 9 or provide an acceptable reason for her absence, the company would consider her employment terminated. 19 When Holmes had not heard from Saxton by August 9, he sent her another electronic message indicating that the company was "very anxious to get you started on a new work assignment but [was] hampered by your unavailability." Holmes again admonished Saxton that her failure to reply would be construed as a decision to terminate her employment. 20 Saxton did not respond, prompting Holmes to deliver a final warning on August 10, 1989: "[I]f you do not report to work Monday, August 14, 1989 by 8:30 a.m., we will proceed with the processing of your termination of employment." 8 Saxton did not report, and on August 14 Holmes completed a "Resignation Form" indicating that Saxton's employment was terminated because of her failure to return to work. 21 Meanwhile, on August 10, 1989, Saxton filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). On May 16, 1990, at the request of her counsel, the EEOC issued Saxton a "right to sue" letter. She filed this suit on August 16, 1990. B. District Court's Ruling 22 The district court granted summary judgment in favor of AT & T on the merits of Saxton's Title VII claim. Saxton v. American Tel. & Tel. Co., 785 F.Supp. 760 (N.D.Ill.1992). The court noted at the outset that it was unclear which type of sexual harassment--quid pro quo or hostile work environment--Saxton was asserting, but it proceeded on the assumption that she was alleging both. Id. at 765 . 23 The court found insufficient evidence of quid pro quo harassment because Saxton had not demonstrated a link between Richardson's conduct (which the court agreed was inappropriate) and the denial of any economic benefit to Saxton. In the court's view, Richardson's unfulfilled promise that she would be promoted to MTS status upon transfer was insufficient evidence of a quid pro quo, because Saxton had known beforehand that she lacked the educational background to qualify for that classification. The court reasoned further that the more rewarding assignment Richardson gave Saxton even after she had rebuffed his advances negated any inference that Richardson was retaliating for her disinterest. Id. 24 The court also found the evidence insufficient to establish a hostile work environment. The court reasoned that Richardson's condescension, impatience and teasing were insufficient in and of themselves to create a hostile environment. Although the court agreed that Richardson had behaved inappropriately toward a subordinate, it did not find his misconduct so pervasive or debilitating as to be considered hostile. Accordingly, the court concluded that Saxton had failed to demonstrate actionable sexual harassment. Id. at 765-66 . 25 The district court alternatively found that AT & T had taken prompt and appropriate corrective action once it was made aware of Richardson's conduct. The court noted that Holmes had conducted a thorough investigation that had failed to corroborate Saxton's version of events. Holmes had nonetheless decided (correctly, in the district court's view) that Richardson and Saxton should be separated and promptly arranged for Richardson's transfer while Saxton worked at home. Although Saxton argued that these measures were insufficient, the court found them legally adequate because they were reasonably likely to prevent the relevant misconduct from recurring. The court noted that the offending conduct ceased altogether once Richardson was transferred. Id. at 766-67 . 9 26 Finally, the court concluded that backpay, the only Title VII remedy that Saxton sought, 10 was precluded because Saxton had "unreasonably refused" to return to work and thus had not been constructively discharged as she asserted. Saxton's belief that she was entitled to a better position than Holmes offered her did not justify resignation; in the court's view, any unresolved concerns could have been handled through less drastic measures than refusing to report for work. Id. at 767-68 . II. ANALYSIS 27 On appeal, Saxton maintains that when viewed in her favor, the evidence adequately supports claims for both quid pro quo harassment and a hostile work environment. She further contends that there are disputed issues of fact concerning the adequacy of AT & T's corrective efforts, and that factual questions also preclude a summary finding that she was not constructively discharged. We review the district court's grant of summary judgment de novo, considering the record in the light most favorable to Saxton and determining whether it presents any dispute of material fact. Colburn v. Trustees of Indiana Univ., 973 F.2d 581 , 585 (7th Cir.1992). 11 A. Quid Pro Quo Harassment 28 We do not reach the merits of Saxton's quid pro quo claim. Although, in an abundance of caution, the district court considered whether the record was sufficient to support a quid pro quo theory, it expressed doubt as to whether Saxton even meant to pursue such a claim. See 785 F.Supp. at 765 . Our own review of both the complaint and the materials Saxton submitted on summary judgment confirms that Saxton relied solely upon a hostile work environment theory. See R. 1 at 2 pp 8-11; R. 25 at 3, 4, 5. Saxton first attempted to articulate a basis for a quid pro quo claim in her appellate briefs, and that, of course, is too late. E.g., Hickey v. A.E. Staley Mfg., 995 F.2d 1385 , 1391 n. 3 (7th Cir.1993). B. Hostile Work Environment 29 Saxton's principal claim is that she was subjected to a hostile work environment. In order to create a hostile work environment, the conduct at issue must " 'ha[ve] the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.' " Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 , 65, 106 S.Ct. 2399 , 2404-05, 91 L.Ed.2d 49 (1986) (quoting 29 C.F.R. Sec. 1604.11(a)(3) (1985)). Meritor explains: 30 Of course, ... not all workplace conduct that may be described as "harassment" affects a "term, condition or privilege" of employment within the meaning of Title VII. For sexual harassment to be actionable, it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment." 31 Id. at 67 , 106 S.Ct. at 2405 (quoting Henson v. City of Dundee, 682 F.2d 897 , 904 (11th Cir.1982)) (citations omitted). Thus, "relatively isolated" instances of non-severe misconduct will not support a hostile environment claim. Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333 , 337 (7th Cir.1993). At the same time, the Supreme Court has now made clear that the plaintiff need not prove that she was psychologically injured: 32 Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII's broad rule of workplace equality. 33 Harris v. Forklift Sys., Inc., --- U.S. ----, ---- - ----, 114 S.Ct. 367 , 370-71, 126 L.Ed.2d 295 (1993). Thus, to the extent that our prior cases required proof that the harassment "cause[d] such anxiety and debilitation to the plaintiff that working conditions were poisoned," Scott v. Sears, Roebuck & Co., 798 F.2d 210 , 213 (7th Cir.1986), they have been overruled. 12 "So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it to be psychologically injurious." Harris, --- U.S. at ----, 114 S.Ct. at 371 (citation omitted); see also id., --- U.S. at ---- - ----, 114 S.Ct. at 371-72 . 34 To determine whether the plaintiff's work environment is hostile within the meaning of Title VII, we consider a variety of factors, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, --- U.S. at ----, 114 S.Ct. at 371 . Our focus is necessarily on the totality of the circumstances, id., --- U.S. ----, 114 S.Ct. at 371 ; "no single factor is required," id. at 11, --- U.S. at ----, 114 S.Ct. at 371 . 35 We evaluate these factors from both a subjective and an objective viewpoint--that is, we consider not only the effect the discriminatory conduct actually had on the plaintiff, but also the impact it likely would have had on a reasonable employee in her position. Harris, --- U.S. at ----, 114 S.Ct. at 370 . 36 Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive--is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is not a Title VII violation. 37 Id. --- U.S. at ----, 114 S.Ct. at 370 . See also Daniels v. Essex Group, Inc., 937 F.2d 1264 , 1271-72 (7th Cir.1991); King v. Board of Regents of the Univ. of Wisconsin Sys., 898 F.2d 533 , 537 (7th Cir.1990); Brooms v. Regal Tube Co., 881 F.2d 412 , 419 (7th Cir.1989). 13 Here, even if we assume that the conduct at issue had a sufficiently adverse effect on Saxton, her claim must still fail, as the objective prong of the inquiry is not satisfied. 38 Although Richardson's conduct was undoubtedly inappropriate, it was not so severe or pervasive as to create an objectively hostile work environment. Certainly any employee in Saxton's position might have experienced significant discomfort and distress as the result of her superior's uninvited and unwelcome advances. At the same time, Richardson's offensive behavior was relatively limited, presumably because Saxton was forthright and persistent in making clear that the advances were unwelcome. And although there were two instances of sexual misconduct rather than one, it simply did not rise to the level of pervasive harassment as that term has been defined by this court. See Weiss, 990 F.2d at 337 (no actionable harassment where plaintiff's supervisor asked plaintiff out on dates, called her a "dumb blond," placed his hand on her shoulder several times, placed "I love you" signs in her work area, and attempted to kiss her on one or more occasions). Indeed, after the Morton Arboretum incident, Richardson made no further advances toward Saxton. Compare Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456 , 461 (7th Cir.1990) (multiple incidents of sexual misconduct during plaintiff's first two weeks of work did not support hostile environment claim where they ceased after plaintiff reprimanded the aggressor), with King, 898 F.2d at 534-35, 538 (repeated verbal assaults and physical harassment that continued despite plaintiff's objections were sufficient to support a hostile environment claim). 39 Moreover, even if we assume that Richardson turned a particularly cold shoulder to Saxton after she rebuffed his advances, the evidence does not suggest that this behavior rendered her environment hostile. Saxton has offered no evidence that Richardson's conduct was frequent or severe, that it interfered with her work, 14 or that it otherwise created an abusive work environment. Thus, although it might be reasonable for us to assume that Richardson's inaccessibility, condescension, impatience, and teasing made Saxton's life at work subjectively unpleasant, the evidence fails to demonstrate that his behavior was not "merely offensive," Harris, --- U.S. at ----, 114 S.Ct. at 370 , but instead was "sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment." Vinson, 477 U.S. at 67 , 106 S.Ct. at 2405 . Even if, as Saxton contends, questions of fact remain as to how difficult the work environment became for her, Saxton Br. at 16, that is not enough to avoid summary judgment in the absence of evidence suggesting that a reasonable person would have found the environment to be hostile. C. AT & T's Corrective Action 40 Saxton's claim must fail in any event, because she has not demonstrated that AT & T failed to take prompt and appropriate remedial action upon discovering the harassment. In Guess v. Bethlehem Steel Corp., we set out the rule governing employer liability under Title VII: 41 It is not respondeat superior. It is a negligence standard that closely resembles the "fellow servant" rule, from the era when industrial accidents were governed by negligence rather than workers' compensation law. Under that rule, as under Title VII, the employer, provided it has used due care in hiring the offending employee in the first place, is liable for that employee's torts against a coworker only if, knowing or having reason to know of the misconduct, the employer unreasonably fails to take appropriate corrective action. The employer acts unreasonably either if it delays unduly or if the action it does take, however promptly, is not reasonably likely to prevent the misconduct from recurring. 42 913 F.2d 463 , 465 (7th Cir.1990) (citations omitted). See also Daniels, 937 F.2d at 1275; Brooms, 881 F.2d at 421. Thus, beyond showing that Richardson harassed her, Saxton must produce evidence of a significant shortcoming in AT & T's response in order to hold the company liable under Title VII. 15 43 Although AT & T's remedial efforts did not meet Saxton's expectations, they were both timely and reasonably likely to prevent the conduct underlying her complaint from recurring. It is undisputed that the company acted with sufficient dispatch: Holmes began an investigation the day after he was advised of Saxton's complaint, his detailed report was complete two weeks later, and Richardson was transferred to another department within five weeks after Holmes learned that Saxton was not interested in a transfer herself. 16 In view of the fact that nearly a year had elapsed since the principal events underlying Saxton's harassment charge had occurred, AT & T acted with considerable alacrity. 17 Moreover, the company's decision to transfer Richardson was a sufficient safeguard against any recurrence of the harassment. Richardson had long since stopped pursuing Saxton, and his removal from her department ensured that any fallout she was experiencing as a consequence of rejecting him ceased as well. Indeed, but for the few occasions on which Saxton sighted Richardson in her department following his transfer (uneventful incidents that we view as immaterial), 18 all contact between the two seems to have stopped completely. 44 No doubt, from Saxton's perspective, AT & T could have done more to remedy the adverse effects of Richardson's conduct. But Title VII requires only that the employer take steps reasonably likely to stop the harassment. Davis v. Monsanto Chem. Co., 858 F.2d 345 , 349 (6th Cir.1988), cert. denied, 490 U.S. 1110 , 109 S.Ct. 3166 , 104 L.Ed.2d 1028 (1989); DeGrace v. Rumsfeld, 614 F.2d 796 , 805 (1st Cir.1980); see also Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417 , 1422 (7th Cir.1986). 19 AT & T satisfied that obligation when it transferred Richardson. 20 Whatever reasons there might be for the company's failure to take additional steps-- e.g., following through on Holmes' directive that Richardson take a refresher course on the company's sexual harassment policy, or suspending Richardson for a week as Holmes had considered--are irrelevant absent evidence suggesting that the transfer was not reasonably likely to prevent the harassment from recurring. In another context, transfer of the wrongdoer to a different department might amount to an ineffectual slap on the wrist; but in this case, it served to terminate all contact between Richardson and Saxton and bring a definitive end to any harassment. 21 D. Constructive Discharge 45 Saxton does not dispute that because she does not seek reinstatement, her prospective relief under Title VII is limited to backpay, 22 and because AT & T did not actually discharge her, she must prove that she was constructively discharged in order to obtain that relief. See Brooms, 881 F.2d at 423. "An employer constructively discharges an employee only if it makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation." Weihaupt v. American Medical Ass'n, 874 F.2d 419 , 426 (7th Cir.1989) (emphasis in original) (internal quotation marks and citations omitted). Whether the plaintiff's work environment meets that standard is determined from the viewpoint of a reasonable employee. Brooms, 881 F.2d at 423; see also Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61 , 65 (5th Cir.1980). 46 Nothing in the record indicates that AT & T treated Saxton so poorly that a reasonable employee in her position would have felt compelled to resign. To the contrary, the evidence suggests that AT & T went out of its way to ensure that Saxton was not placed in an uncomfortable or embarrassing position while the company investigated her complaint and took remedial measures. Holmes gave the matter his prompt and thorough attention, permitting Saxton to work at home while he conducted the investigation. Once he concluded that Saxton and Richardson should no longer work together, he allowed Saxton to decide which of the two would transfer by offering that option to her first. When she decided to stay, Saxton was allowed to continue working at home with full pay until Richardson's transfer was completed. Of course, once Richardson was gone, any behavior that might arguably have rendered Saxton's work environment intolerable was terminated. Finally, after Richardson left, Holmes appears to have been sensitive and patient in trying to find a new role for Saxton. Although Saxton maintains that the opportunities Holmes offered to her were inadequate and that her prospective role was not sufficiently defined, there is no evidence that Saxton was forced into an unacceptable post. Instead, the record indicates that Holmes repeatedly attempted to solicit Saxton's input on a new assignment. Only when those efforts failed and Saxton refused to either return to work or seek medical leave, 23 did AT & T conclude that she wished to terminate her employment. Indeed, that point came only after Saxton had ignored multiple warnings. Whatever lingering dissatisfaction Saxton may have felt regarding the resolution of her complaint or her position at work, her situation cannot reasonably be described as intolerable. The evidence does not, in other words, support an inference that Saxton's decision to abandon her job was effectively coerced by AT & T's actions. Accordingly, the relief she sought in the form of backpay was precluded. III. CONCLUSION 47 The conduct of Saxton's superior was inappropriate and unprofessional. Nonetheless, the record does not reasonably support an inference that the misconduct Saxton has described was so serious or pervasive that it created a hostile work environment within the meaning of Title VII. Nor does the record reveal a material dispute as to the timeliness or efficacy of AT & T's corrective measures once it was apprised of Saxton's concerns. AT & T was therefore entitled to summary judgment on Saxton's Title VII claim. Alternatively, summary judgment in AT & T's favor was appropriate because backpay--the only remedy that Saxton sought--was unavailable in the absence of evidence that Saxton was actually or constructively discharged. For these reasons, we affirm the judgment of the district court. 48 AFFIRMED. 1 AT & T is the successor to AT & T Bell Laboratories. For convenience, we refer to Saxton's employer simply as "AT & T" 2 Throughout its statement of material facts below, AT & T described the acts of harassment underlying Saxton's complaint as "alleged," without citing evidence tending to show that these acts did not, in fact, occur. (See R. 24, "AT & T's Local Rule 12(M) Statement of Material Facts As To Which There Is No Genuine Issue," passim.) For purposes of summary judgment, AT & T has thus conceded that the conduct at issue did take place 3 Richardson did attempt to put his hand on Saxton's leg once or twice more during the ride home. By Saxton's account, however, Richardson was not as persistent as he had been at the club and stopped when she asked that he do so 4 There is some evidence in the record suggesting that Richardson treated other employees similarly. For example, Saxton admitted that Richardson was busy and often canceled meetings with other employees. She also acknowledged that Richardson pressured other employees--both male and female--to join him for drinks after work. As for the teasing, Saxton indicated that when she told Richardson that she considered her relationship with the coworker a personal matter that she did not want to discuss with him, he seems to have stopped, although the record is not clear as to whether she had to admonish him more than once. Saxton Dep. at 427-28; R. 24, AT & T Local Rule 12(M) Statement at 9 p 17; R. 26, Saxton Local Rule 12(N) Response at 2 p 17. Finally, although Saxton was never promoted to an MTS position, she did receive the more favorable work assignment from Richardson after the incident in the park. A factfinder might find these circumstances relevant to whether or not Richardson was harassing Saxton. However, granting Saxton the benefit of the reasonable inferences to which she is entitled on summary judgment, none of these circumstances rules out the possibility that Richardson singled her out for particularly harsh treatment after she rebuffed his advances 5 Holmes had reviewed this rating with Saxton during their March 19, 1989 meeting. Holmes and Saxton's other supervisors had rated her at "3 medium," indicating that she had "fully met objectives" and that her standing was "average" in relation to her peers. Saxton had signed the evaluation and declined an opportunity to respond. The subsequent letter from Saxton's counsel indicated that although Saxton did not challenge the accuracy of the evaluation insofar as it was based on her work under Richardson, she believed that the lackluster rating did not reflect her capability to perform under normal circumstances and was concerned that it might adversely affect her potential to advance 6 Saxton confirmed in her deposition that her unpaid medical bills and legal fees were two of the reasons she had been unwilling to return to work and noted the impasse regarding her job assignment as a third reason. She also cited continuing harassment at work, including Richardson's presence in her work area around the time of his transfer (see supra) and ongoing rumors and gossip among her co-workers 7 When Saxton visited AT & T's medical department to obtain a medical leave of absence request form, she learned that she needed a psychiatrist's opinion in order to secure such a leave. Saxton chose not to pursue this option 8 At Holmes' request, the medical department checked its records on August 10 and reported no medical leave request on file from Saxton nor any indication that Saxton was medically unable to return to work 9 The court considered the two or three subsequent occasions on which Saxton momentarily had seen Richardson in her department immaterial. See 785 F.Supp. at 766-67 10 Saxton had disclaimed any interest in reinstatement, although such relief is also available under Title VII. Saxton Dep. at 199 11 AT & T argues that Saxton's complaint should have been dismissed because she failed to file suit within 90 days after the EEOC issued her right-to-sue letter. See 42 U.S.C. Sec. 2000e-5(f)(1). We find this contention to be meritless. Although section 2000e-5(f)(1) requires that a plaintiff file suit "within ninety days after the giving of" notice by the EEOC of her right to sue, the ninety-day period does not begin to run until the plaintiff or her attorney receives the right-to-sue letter. Jones v. Madison Service Corp., 744 F.2d 1309 , 1312 (7th Cir.1984) (per curiam). Saxton's right-to-sue letter was dated May 16, 1990, and Saxton's complaint alleged that her counsel had received the letter "on or about" that same date. R. 1 at 3 p 17 & Ex. 1. If that allegation were accurate, Saxton's suit would be untimely, because the complaint was not filed until August 16, 1990--ninety-two days later. However, Saxton's counsel submitted an affidavit on summary judgment indicating that his firm did not actually receive the letter until May 22, 1990. R. 27, Aff. of James W. Holman at 1-2, pp 7-9. The affidavit was supported with a photocopy of the letter bearing the law firm's "received" stamp with the same date. Id., Ex. A thereto. The record contains no evidence suggesting that the letter was received before that date. See R. 31 at 9, p 7. Saxton's complaint was therefore timely filed AT & T also argues that many of the incidents that Saxton has cited as sexual harassment occurred more than 300 days before she filed an EEOC charge, rendering her claims as to these incidents time-barred. See 42 U.S.C. Sec. 2000e-5(e)(1). For example, Richardson's advances in April 1988 predated Saxton's August 1989 EEOC charge by more than a year. Yet, as we understand Saxton's claims, they rest not on Richardson's physical advances alone but also on his hostile treatment of her once he was rebuffed. R. 24, AT & T Local Rule 12(M) Statement at 20-21 p 41. See Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456 , 462 (7th Cir.1990). This could arguably be seen as a single, continuing course of harassment that extended into October 1988 and perhaps beyond (the record is somewhat murky on this timeframe). From that perspective, the entire course of Richardson's conduct could be considered despite the lapse of time since the earliest incidents of purported harassment took place. See generally Havens Realty Corp. v. Coleman, 455 U.S. 363 , 380-381, 102 S.Ct. 1114 , 1125-26, 71 L.Ed.2d 214 (1982); Davidson v. Indiana-American Water Works, 953 F.2d 1058 , 1060 (7th Cir.1992); Malhotra v. Cotter & Co., 885 F.2d 1305 , 1310 (7th Cir.1989); Young v. Will County Dept. of Public Aid, 882 F.2d 290 , 292-93 (7th Cir.1989); Haithcock v. Frank, 958 F.2d 671 , 677-78 (6th Cir.1992). See also Purrington v. University of Utah, 996 F.2d 1025 , 1028 (10th Cir.1993) (" '[a] hostile environment claim usually involves a continuing violation' ") (quoting Waltman v. International Paper Co., 875 F.2d 468 , 476 (5th Cir.1989)). Moreover, AT & T's liability for the harassment in this case hinges upon the adequacy of its response to Saxton's belated internal complaint. See Guess v. Bethlehem Steel Corp., 913 F.2d 463 , 465 (7th Cir.1990). All of the company's responsive action (including the investigation of the complaint, the reassignment of Richardson, and Holmes' efforts to bring Saxton back into his department) took place entirely within the 300 days preceding Saxton's EEOC charge. In any event, because AT & T has devoted no more than a skeletal paragraph to this issue, and because the record does not clarify the timing of the last acts of harassment, we will not undertake to parse Saxton's claims in an effort to weed out time-barred incidents. See Young, 882 F.2d at 292 ("[a]ll doubts on jurisdictional timeliness are to be resolved in favor of trial") (citing Pastrana v. Federal Mogul Corp., 683 F.2d 236 , 242 (7th Cir.1982)). 12 To the same effect as Scott, see Daniels v. Essex Group, Inc., 937 F.2d 1264 , 1271 (7th Cir.1991); Swanson v. Elmhurst Chrysler Plymouth, Inc., 882 F.2d 1235 , 1238 (7th Cir.1989), cert. denied, 493 U.S. 1036 , 110 S.Ct. 758 , 107 L.Ed.2d 774 (1990); Brooms v. Regal Tube Co., 881 F.2d 412 , 418-19 (7th Cir.1989) 13 We are not called upon to decide here whether it might be more appropriate to evaluate the plaintiff's work environment from the perspective of a reasonable woman as opposed to a genderless reasonable person. See Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959 , 962 n. 3 (8th Cir.1993); Ellison v. Brady, 924 F.2d 872 , 879-80 (9th Cir.1991). The result of our analysis would be the same under either standard 14 Title VII, as interpreted by Harris, does not require proof that the harassment interfered with the plaintiff's work performance. See --- U.S. at ----, 114 S.Ct. at 371 ("no single factor is required"); see also id. --- U.S. at ----, 114 S.Ct. at 372 (Scalia, J., concurring) ("the test is not whether work has been impaired, but whether working conditions have been discriminatorily altered"). But see id., --- U.S. at ----, 114 S.Ct. at 372 (Ginsburg, J., concurring): [T]he adjudicator's inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff's work performance. To show such interference, "the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment." Davis v. Monsanto Chemical Co., 858 F.2d 345 , 349 (CA6 1988). It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to "make it more difficult to do the job." See ibid. Justice Ginsburg's concurrence suggests that although proof of an adverse impact on the plaintiff's work performance is not required, it remains a particularly important factor in the hostile environment analysis. 15 Saxton does not contend that AT & T failed to use due care in hiring Richardson 16 Any stress that the delay in Richardson's transfer might have imposed on Saxton was alleviated by Holmes' decision to allow her to work at home in the interim 17 Saxton does not contend that despite her failure to invoke AT & T's grievance procedure, the company should have been aware of and responded to Richardson's misconduct at an earlier date. See Waltman v. International Paper Co., supra n. 11, 875 F.2d at 478 18 As the Ninth Circuit recognized in Ellison v. Brady, supra n. 13, "in some cases the mere presence of an employee who has engaged in particularly severe or pervasive harassment can create a hostile working environment." 924 F.2d at 883 (citing Paroline v. Unisys Corp., 879 F.2d 100 , 106-07 (4th Cir.1989), vacated in part, 900 F.2d 27 (4th Cir.1990) (en banc)). The record in this case, however, does not suggest that Richardson's prior misconduct was so severe or pervasive that his mere presence in Saxton's department would have created a hostile environment 19 Of course, if someone in the employer's decision-making hierarchy engages in harassment, the employer may be held liable regardless of whether it could reasonably have foreseen or prevented the misconduct, for in that instance, the acts of the managerial employee constitute the acts of the employer. Hunter, 797 F.2d at 1422. Although Richardson was Saxton's supervisor, the record does not suggest that he was so highly placed in AT & T's hierarchy as to be considered the company's agent, nor does Saxton argue that he should be treated as such 20 Because Holmes decided to transfer Richardson rather than Saxton, we are not confronted with a situation in which the employer's remedial action has left the victim of harassment economically worse off--a result we have characterized as ineffective per se. Guess, 913 F.2d at 465. Saxton does contend that her work assignment was never resolved satisfactorily, but the record contains no evidence that AT & T demoted her or treated her unreasonably in seeking out new responsibilities for her after Richardson's departure 21 Saxton noted in her affidavit that around the time of Richardson's transfer, her desk and electronic messages were looked through, her mail was lost, and someone tampered with her answering machine. R. 27, Aff. of Marcia L. Saxton at 1 p 3. Saxton seems to suggest that Richardson was the perpetrator of these misdeeds; yet, there is no evidence in the record to support that inference. See Saxton Dep. at 707. Furthermore, although these incidents might generically be described as harassment, the record does not reveal them to have been so severe or pervasive as to support Saxton's hostile environment claim 22 The Civil Rights Act of 1991, which took effect after this suit was filed but before the district court granted summary judgment in favor of AT & T, expanded the remedies available under Title VII. However, Saxton has not sought retroactive application of the Act to her suit and, in any event, we have recently held that the Act's new remedies are not available to plaintiffs who sue based on conduct that occurred before the effective date of the Act. Mojica v. Gannett Co., 7 F.3d 552 (1993) (en banc) 23 Saxton argues that Holmes' admonition to report to the company's medical department caused her concern that "management was attempting to pigeon hole her as a crazy woman." Saxton Br. at 8. Indeed, she cites it as "a provocative and mistrustful act" (id. at 19) that evidences both the inadequacy of AT & T's response to her complaint and the intolerable conditions under which the company forced her to work (id. at 19, 21). However, Holmes' July 19, 1989 letter to Saxton simply noted: "The latest correspondence from your lawyer indicated that you may have some unreported medical restrictions affecting your availability to report to your standard (office) work location. It is important that you or your medical counsel contact Dr. A.J. Munoz of our medical department as soon as possible." R. 24, Aff. of Michael G. Holmes at 10 p 24 & Ex. M thereto. In a subsequent letter rejecting Saxton's request for a personal leave, Holmes informed her that "[e]xcluding any medical reasons, it is necessary for you to report to work immediately." Id. Ex. N. A similar reference was included in Holmes' final warning letter. Id. Ex. P. We cannot reasonably infer any condescension, insensitivity, or hostility from these admonitions, and they consequently lend no support to Saxton's contention that AT & T's corrective efforts were inadequate and that she was constructively discharged | opinion_html_with_citations | 7,475 | 2012-04-16 06:58:15+00 | 010combined | f | f | 658,153 | Cudahy, Eschbach, Rovner | null | RU | f | Published | 249 | Marcia L. Saxton v. American Telephone and Telegraph Company, Successor to at & T Bell Laboratories | null | Marcia L. SAXTON, Plaintiff-Appellant, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Successor to AT & T Bell Laboratories, Defendant-Appellee | null | null | <parties id="b604-13">
Marcia L. SAXTON, Plaintiff-Appellant, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, successor to AT & T Bell Laboratories, Defendant-Appellee.
</parties><br><docketnumber id="b604-16">
No. 92-1545.
</docketnumber><br><court id="b604-17">
United States Court of Appeals, Seventh Circuit.
</court><br><otherdate id="b604-18">
Argued Dec. 10, 1992.
</otherdate><br><decisiondate id="b604-19">
Decided Dec. 3, 1993.
</decisiondate><br><attorneys id="b605-25">
<span citation-index="1" class="star-pagination" label="527">
*527
</span>
James W. Holman (argued), Cellucci, Yaco-bellis & Holman, Naperville, IL, for plaintiff-appellant.
</attorneys><br><attorneys id="b605-26">
Charles C. Jackson, Lee P. Schafer (argued), Seyfarth, Shaw, Fairweather
<em>
&
</em>
Ger-aldson, Thomas H.W. Sawyer, James M. Staulcup, Jr., AT
<em>
&
</em>
T Technologies, Chicago, IL, for defendant-appellee.
</attorneys><br><judges id="b606-3">
<span citation-index="1" class="star-pagination" label="528">
*528
</span>
Before CUDAHY and ROVNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
</judges> | null | null | null | null | null | null | 1,033,865 | 92-1545 | 0 | ca7 | F | t | Seventh Circuit | Court of Appeals for the Seventh Circuit |
4,184,227 | Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 07/07/2017 12:11 AM CDT - 440 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 Jay Bergmeier, appellant and cross-appellee, v. Nanci B. Bergmeier, appellee and cross-appellant. N.W.2d Filed April 21, 2017. No. S-15-1189. 1. Divorce: Child Custody: Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error. In actions for dissolution of marriage, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. This standard of review applies to the trial court’s determinations regarding custody, child support, division of property, alimony, and attorney fees. 2. Judges: Words and Phrases. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriv- ing a litigant of a substantial right and denying just results in matters submitted for disposition. 3. Divorce: Property Division. The ultimate test in determining the appro- priateness of the division of property is fairness and reasonableness as determined by the facts of each case. 4. : . Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the equi- table division of property is a three-step process. The first step is to clas- sify the parties’ property as marital or nonmarital, setting aside the non- marital property to the party who brought that property to the marriage. The second step is to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in accordance with the principles contained in § 42-365. 5. : . Generally, all property accumulated and acquired by either spouse during a marriage is part of the marital estate. 6. Evidence: Appeal and Error. In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions on the matters at issue. When - 441 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 evidence is in conflict, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. 7. Alimony. The purpose of alimony is to provide for the continued main- tenance or support of one party by the other when the relative economic circumstances and the other criteria enumerated in Neb. Rev. Stat. § 42-365 (Reissue 2016) make it appropriate. 8. Alimony: Appeal and Error. In reviewing an alimony award, an appel- late court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court’s award is untenable such as to deprive a party of a substantial right or just result. 9. Alimony. The primary purpose of alimony is to assist an ex-spouse for a period of time necessary for that individual to secure his or her own means of support. 10. . In an alimony award, the ultimate criterion is one of reasonableness. Appeal from the District Court for Douglas County: M arlon A. Polk, Judge. Affirmed in part as modified, and in part reversed and remanded with directions. Aaron F. Smeall, of Smith, Slusky, Pohren & Rogers, L.L.P., for appellant. Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey, Peebles, Belmont & Line, L.L.P., for appellee. Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, K elch, and Funke, JJ. Miller-Lerman, J. NATURE OF CASE Jay Bergmeier filed a complaint for dissolution of marriage, and Nanci B. Bergmeier filed a “counter-complaint.” The dis- trict court for Douglas County filed a dissolution decree in which it, inter alia, determined that Jay’s future “termination payments” and “extended termination payments” that he was expected to receive after the dissolution as a “captive agent” of State Farm Insurance Company (State Farm) were marital - 442 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 property and awarded Nanci a portion thereof. The district court also divided the parties’ liabilities and other assets, and it awarded Nanci alimony and attorney fees. Jay appeals, and Nanci cross-appeals. We affirm in part as modified and in part reverse, and remand with directions to the district court as set forth below. STATEMENT OF FACTS Jay and Nanci were married in August 1981. Jay and Nanci adopted two children during their marriage; the parties’ children were no longer minors at the time of the divorce proceedings. At the time they married, Jay and Nanci were both teachers. During the marriage, Nanci left teaching to stay home and raise the parties’ children. During this time, Nanci also obtained a master’s degree in health education. During the marriage, Jay also left teaching and started working in insurance in 1986. Jay entered into an agreement with State Farm pursuant to State Farm’s “Form AA4,” and thus, Jay became a “captive agent” of State Farm. Although a signed copy of Form AA4 is not in evidence, the record con- tains an unsigned copy of Form AA4. As a captive agent, Jay does not own the insurance policies in the way an independent agent would; instead, the policies are owned by State Farm. Furthermore, Jay does not own the clients’ accounts or renewal rights. On January 7, 2014, State Farm’s counsel sent Jay a letter in response to Jay’s “request for assistance regarding compensation payments due under [Jay’s] Agent Agreement.” The letter states: You have no proprietary interest in the business gen- erated under your State Farm Agent’s Agreement. The policies credited to your account belong to State Farm and may be reassigned by State Farm to the accounts of other State Farm agents. The physical customer records and the right to use those records to solicit renewals— commonly referred to as the “expirations”—belong to State Farm. - 443 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 The letter goes on to explain that pursuant to section II of Form AA4, agents are compensated for soliciting new business and for servicing existing business. Service compensation is paid for providing personal service to State Farm pol icyholders, assisting adjusters in reporting and handling claims, and promoting and advancing the interests of the Company. Service compensation is earned on a day to day basis. Under section III of Form AA4, an agent has the right to terminate the agreement. After termination, the agent may not act or represent himself or herself in any way as an agent or representative of State Farm, the agent must return all prop- erty belonging to State Farm within 10 days after termination of the agreement, and the agent may not compete with State Farm for a period of 12 months following termination of the agreement. Under Form AA4, an agent, upon certain contingencies being met, is entitled to two forms of termination payments: termination payments and extended termination payments. Termination payments are described in section IV of Form AA4. Section IV provides that termination payments will be made in the event the agreement is terminated 2 or more years after its effective date. The January 7, 2014, letter from coun- sel for State Farm to Jay describes these termination payments as follows: Under Section IV, you have a contract right to termina- tion payments if you comply with certain conditions at the time the Agreement is terminated. Termination pay- ments are based on the service compensation paid to the agent in the twelve month period preceding the termina- tion of the Agreement. Termination payments are paid in sixty monthly installments beginning in the month next following the termination of the Agreement. Section IV further states that an agent may qualify for ter- mination payments so long as all property belonging to State - 444 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 Farm has been returned within 10 days following the termi- nation and the agent does not compete with State Farm for a period of 12 months. Extended termination payments are described in section V of Form AA4. Section V provides that an agent qualifies for extended termination payments if the agent qualifies for ter- mination payments under section IV and if at the time of termination of the agreement the agent was 62 years of age or older, had at least 20 years of service as a State Farm agent, and had 10 years of continuous service as a State Farm agent immediately preceding the date that the agreement was terminated. With respect to extended termination payments, the January 7, 2014, letter states: “Extended termination pay- ments, like termination payments, are based on the service compensation paid in the twelve month period preceding the termination of the Agreement. Extended termination pay- ments begin in the 61st month following the termination of the Agreement and continue for the lifetime of the agent.” Section V provides that if the agent is 65 years of age or older at the time of termination of the agreement, the agent will receive the full amount of the extended termination payments. However, if the agent is 62, 63, or 64 years of age at the time of termination, the extended termination payments will be actuarially reduced. In 2005, the parties formed Bergy Properties, L.L.C. The parties were the managing members of Bergy Properties, and they each held a 50-percent interest in the business. Bergy Properties owns an office building in Omaha, Nebraska, that was appraised at $1.4 million. On May 7, 2012, Jay filed a complaint for dissolution of marriage. Nanci filed her answer and counter-complaint on May 31. Jay filed his reply to the counter-complaint on June 4. A trial was held on January 12, March 11, and April 2, 2015. Evidence was adduced at trial regarding the parties’ assets and liabilities. Jay generally testified regarding his insurance - 445 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 business. Jay operated his business under the name “Jay M. Bergmeier Agency, Inc.,” and it reported: $1,018,059 in rev- enues in 2010; $957,318 in revenues in 2011; $867,538 in rev- enues in 2012; and $864,679 in revenues in 2013. Jay testified that he was still operating his insurance business at the time of trial. Nanci testified that at the time of trial, she was working part time as a substitute teacher and part time for the National Safety Council. On August 11, 2015, the district court filed the decree of dissolution of marriage. In the decree, some awards were listed by a narrative under individually numbered paragraphs. Some assets and liabilities were covered by individually numbered paragraphs, but others were contained in a table. With respect to alimony, the court ordered Jay to pay Nanci $2,000 per month and continuing until the last day of the month in which Nanci reaches the age of 65, until she remar- ries or dies, until Jay begins receiving termination payments, or until further order of the court, whichever occurs first. With respect to real and personal property, each party was awarded insurance policies held in their respective names. As noted, the decree set forth a table in which it listed certain of the parties’ marital assets and marital liabilities. In the table, the district court designated which party would receive which assets and liabilities. The table, in summary, indicates that Jay was awarded a timeshare in Arizona, Nanci was awarded a timeshare in Missouri, and the parties were each awarded a 25-percent share of the parties’ 50-percent interest in a timeshare in Mexico. With respect to vehicles, Jay was awarded a Mitsubishi, a Suburban, two “Sea Doos,” and a “Shorelander” trailer, and he was ordered to pay the lease on a Buick. Nanci was awarded a paddle boat and trailer, and she was ordered to surrender the lease on a Subaru. With respect to bank accounts, Jay and Nanci were each awarded 50 percent of the joint account at Bank of Bennington. Jay was awarded the account at State Farm Credit Union. Nanci was awarded the account at First National Bank and the checking - 446 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 and savings accounts at US Bank. Jay and Nanci were each awarded his or her own 401K and Roth IRA accounts. Jay was awarded the two businesses formed during the marriage: the Jay M. Bergmeier Agency and Bergy Properties. Jay was assigned all of the parties’ liabilities. Regarding property not included in the table, the dis- trict court awarded Jay four season tickets to University of Nebraska-Lincoln football games and Nanci two season tick- ets. The parties were awarded household goods, furniture, and jewelry that were in their respective possession at the time of the dissolution proceedings. Each party was ordered to be responsible for any debts that party incurred since the parties’ separation on January 4, 2013. With respect to equalizing the marital estate, in a para- graph titled “Equalization of Marital Estate,” the district court stated: Having equitably divided the marital estate, exclusive of [Jay’s] Termination and Early Termination Payments, the Court finds that the resulting net value of the Parties’ marital estate, is -$52,960.00 and that each party shall be responsible for fifty percent (50%) of such defi- ciency[.] The Court further finds that [Nanci’s] portion of such deficiency shall be paid to [Jay] by reducing [Nanci’s] interest in [Jay’s] Termination Payments, as set forth hereinafter. With respect to termination payments, the district court stated in the decree: The Court finds that [Jay’s] Termination Payments are a marital asset subject to division. The Court further finds that the value of the marital portion of such assets [is] $802,040.00. This amount is determined by calculating the termination payments [Jay] would have received had [Jay] retired in January of 2014. Each party is awarded 50% thereof with [Nanci’s] portion being reduced by $26,480.00. As such, [Nanci] is awarded $374,540.00 of [Jay’s] Termination Payment. Such amount shall be - 447 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 paid to [Nanci] by [Jay] at such time as [Jay] begins receiving such payments. [Jay] shall remitting [sic] 50% of his Termination payments received each month within 15 days of receipt and shall continue to remit such percentage each month until such time as [Jay] has paid to [Nanci] the sum of $374,000.00 as required hereunder. With respect to “extended termination payments,” the dis- trict court stated in the decree: The Court finds that [Jay’s] Extended Termination Payments are a marital asset subject to division. In the event [Jay] should qualify for and then receive such Extended Termination Payments, [Jay] shall remit 50% of such Extended Termination Payments amount received each month within 15 days of receipt and shall continue to remit such payment each month until such time as [Jay] or [Nanci] shall die, subject to the joint survivor option hereinafter set forth. [Jay] shall be required to name [Nanci] as his surviving spouse beneficiary for all such Extended Termination Payments, through the joint and survivor option which [Jay] shall be required to elect. The district court also awarded Nanci attorney fees in the amount of $12,500. On August 17, 2015, Nanci filed a motion to alter or amend and/or motion for new trial. After a hearing on the motion, on November 17, the district court filed its order, in which it denied Nanci’s motion for new trial and granted in part her motion to alter or amend. The district court stated: [Nanci’s] Motion to Alter or Amend shall be granted in part to provide that to the extent that the Decree does not include all debts as set forth in [Nanci’s] Credit Report and [Nanci’s] List of Debts marked as Exhibit 95 and Exhibit 96 respectively, offered and received into evidence, it shall be amended to provide that in addi- tion to the debts set forth in the Decree that [Jay] is to - 448 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 assume, pay, hold [Nanci] harmless, and refinance said obligations to remove [Nanci] from any liability thereon, specifically on those debts set forth on Exhibit 96 . . . as well as those debts on [Nanci’s] Credit Report (Exhibit 95), except her JC Penny and Younkers card that were her individual liability. Jay appeals, and Nanci cross-appeals. ASSIGNMENTS OF ERROR Jay claims, restated, that the district court erred when it determined that the termination payments and extended ter- mination payments were marital assets and awarded Nanci a portion thereof. Nanci claims on cross-appeal that the district court erred when it (1) failed to order Jay to pay the amount of his ter- mination payments awarded to Nanci in a lump sum or, in the alternative, in payments commencing immediately upon the entry of the decree with postjudgment interest; (2) assigned 50 percent of the responsibility of the deficiency in the mari- tal value to Nanci; and (3) awarded Nanci alimony until she turned 65 years old instead of at the commencement of her receipt of termination payments. STANDARDS OF REVIEW [1,2] In actions for dissolution of marriage, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Devney v. Devney, 295 Neb. 15 , 886 N.W.2d 61 (2016). This standard of review applies to the trial court’s determina- tions regarding custody, child support, division of property, alimony, and attorney fees. Sellers v. Sellers, 294 Neb. 346 , 882 N.W.2d 705 (2016). A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and deny- ing just results in matters submitted for disposition. Devney v. Devney, supra. - 449 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 ANALYSIS Termination Payments and Extended Termination Payments. Jay claims that the district court erred when it treated the termination payments and extended termination payments as marital property. We find no merit to this assignment of error. As an initial matter, we are aware that other jurisdictions have considered the contract at issue in this case—State Farm’s Form AA4. There is a split among the other jurisdic- tions as to whether the termination payments and extended termination payments under the contract are marital or non- marital property. Some jurisdictions have determined that the termination payments are marital property. See, In re Marriage of Skaden, 19 Cal. 3d 679 , 566 P.2d 249 , 136 Cal. Rptr. 615 (1977); Ray v. Ray, 916 S.W.2d 469 (Tenn. App. 1995); Matter of Marriage of Wade, 923 S.W.2d 735 (Tex. App. 1996); In re Marriage of Garceau v. Garceau, 232 Wis. 2d 1 , 606 N.W.2d 268 (Wis. App. 1999). Other jurisdictions have determined that the termination payments are nonmarital property. See, Lawyer v. Lawyer, 288 Ark. 128 , 702 S.W.2d 790 (1986); In re Marriage of Frazier, 125 Ill. App. 3d 473 , 466 N.E.2d 290 , 80 Ill. Dec. 838 (1984); Mallett v. Mallett, 323 S.C. 141 , 473 S.E.2d 804 (S.C. App. 1996). We agree with the reasoning of those jurisdictions that have determined that termination pay- ments are marital property. Jay argues that the termination payments and the extended termination payments should be classified as nonmarital prop- erty, because at the time the decree was entered, it was uncer- tain whether Jay would actually receive the payments and, if so, what the value of the payments would be. While it is true that Jay does not have an indefeasible right to a certain benefit, namely the termination payments and the extended termination payments, he does have an accrued contractual right subject only to minimal qualifying conditions, including actual termi- nation and delivery of State Farm’s property. Jay may choose to squander this contractual right or forfeit it by violating - 450 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 a noncompete provision in the contract, but that should not affect its status as marital property. We are persuaded that the State Farm contract, which was acquired during the marriage, had a substantial value and was properly considered a part of the marital estate. As noted above, we are aware that other jurisdictions have determined that termination payments under this same con- tract have no value for division as marital property. These jurisdictions have focused on the fact that the actual value of the contract depends on the activities of the husband who is in the relationship with State Farm that occur after the marriage has been dissolved. See, e.g., Lawyer v. Lawyer, supra ; In re Marriage of Frazier, supra . We choose not to adopt the conclusion that, for that reason, the wife should be denied any interest whatsoever in a substantial asset which was acquired during the marriage. Accordingly, we determine that the district court did not err when it determined that the termination payments and extended termination payments are marital property. We reject Jay’s assignment of error urging a contrary conclusion. Although we determine that the district court correctly classified both termination payments as marital property, we determine that on this record, the district court abused its dis- cretion when it assigned the specific value to the termination payments. The district court assigned a value to the termina- tion payments based on what the value would have been if Jay had terminated his contract with State Farm in January 2014. But Jay did not terminate his relationship with State Farm in January 2014, and the record shows that he continued to work for State Farm at the time of trial in 2015. We further note that the court did not determine a present value of the asset as of the time of trial, which approach has been found else- where not to be an abuse of discretion. See Ray v. Ray, supra . Accordingly, assigning a specific value to the termination pay- ments as of January 2014 was improper because, inter alia, the value chosen was stale, it was not warranted by the facts, and - 451 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 the actual value depends on factors that have not yet occurred, such as the date of Jay’s termination and total sales for the 12 months immediately preceding his termination. Additionally, we determine that the court abused its dis- cretion when it awarded Nanci 50 percent of the termination payments and the extended termination payments if and when Jay receives them at some point after the marriage has been dissolved. Instead of 50 percent, in keeping with our jurispru- dence in this area, we believe Nanci’s percentage of termina- tion payments should reflect the duration the asset was pos- sessed during the course of the marriage. That is, payments to Nanci are dependent on the amount of time that Jay will have been in a working relationship with State Farm both during and after the parties’ marriage when Jay starts receiving termina- tion payments. As to how to calculate what percentage of the termination payments Nanci should be awarded, we look for guidance to divorce cases involving pensions. See Klimek v. Klimek, 18 Neb. Ct. App. 82 , 775 N.W.2d 444 (2009). See, also, Webster v. Webster, 271 Neb. 788 , 716 N.W.2d 47 (2006); Koziol v. Koziol, 10 Neb. Ct. App. 675 , 636 N.W.2d 890 (2001). In these cases, it has been noted that the marital estate includes only that portion of the pension which is earned during the mar- riage, and contributions to pensions before marriage or after dissolution are not assets of the marital estate. See Koziol v. Koziol, supra . The cases have used the “coverture formula” to determine the marital portion, which has been described as follows: “Simplified, the coverture formula provides that the numerator of the fraction used to determine the marital portion is essentially the number of months of credible service of the employed spouse while married and there- fore is the pension contribution while married and that the denominator is the total number of months that the spouse has [been] or will be employed which resulted in the pension the employee will receive. This denominator - 452 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 number includes and will include the time the employed spouse worked before, during, and after the marriage.” Klimek v. Klimek, 18 Neb. Ct. App. at 93-94 , 775 N.W.2d at 454, quoting Koziol v. Koziol, supra (emphasis in original). The ex-spouse is awarded a percentage of the marital portion. We determine that this formula should be applied in this case. Therefore, we reverse the portion of the district court’s decree in which it assigned a specific value to the termination payments and awarded Nanci 50 percent of all the payments. We direct the district court to amend the order of dissolution to provide that when termination payments commence, the marital portion of the termination payments and extended ter- mination payments shall be determined using the formula set forth above, and to order that Nanci receive 50 percent of the marital portion of the termination payments and extended ter- mination payments. We further direct the district court to order that Jay shall remit to Nanci her percentage of the termination payments and extended termination payments, if and when he starts to receive them, each month within 15 days of Jay’s receipt of the payment. We acknowledge that Nanci claims on cross-appeal that the district court erred when it ordered that Jay pay Nanci her por- tion of the termination payments as he receives them and that Nanci contends that the district court “abused its discretion in failing to order Jay to pay the amount of his termination pay- ments awarded to Nanci in a lump-sum, or in the alternative in payments commencing immediately upon entry of the Decree with post-judgment interest.” In view of our determinations set forth above, we reject this assignment of error, and we direct the district court to award Nanci her percentage of the termina- tion payments as set forth above. Division of Marital Property Other Than Termination Payments and Extended Termination Payments. Nanci generally claims on cross-appeal that the district court erred in its division of the marital property, exclusive - 453 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 of the termination payments and extended termination pay- ments. For the reasons set forth below, we agree with certain of Nanci’s claims. [3,4] We first review general standards relating to property division. Under Nebraska’s divorce statutes, “[t]he purpose of a property division is to distribute the marital assets equitably between the parties.” Neb. Rev. Stat. § 42-365 (Reissue 2016). The ultimate test in determining the appropriateness of the divi- sion of property is fairness and reasonableness as determined by the facts of each case. Sellers v. Sellers, 294 Neb. 346 , 882 N.W.2d 705 (2016). We have stated that under § 42-365, the equitable division of property is a three-step process. The first step is to classify the parties’ property as marital or nonmarital, setting aside the nonmarital property to the party who brought that property to the marriage. The second step is to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in accordance with the principles contained in § 42-365. Sellers v. Sellers, supra . With respect to the first step—classifying the parties’ prop- erty as marital or nonmarital and setting aside the nonmarital property to the party who brought that property to the mar- riage—Nanci argues that the district court abused its dis- cretion when it classified certain debts as marital property, including a certain Slate/Chase credit card, a certain United Mileage Plus credit card, a GE Capital Retail Bank credit card, a Younkers credit card, and a US Bank line of credit. The total balance of these debts amounts to $42,832.83. Nanci argues these debts should have been classified as nonmarital property because they were incurred by Jay after the parties separated. In support of her argument that these debts were incurred after the parties were separated, Nanci points to Jay’s answers to interrogatories provided to Nanci in September 2012, in which Jay provided a list of credit cards he believed showed the debt incurred during the marriage. Nanci asserts that these additional debts were presented to her for the first - 454 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 time at trial, and she testified that she had no prior knowledge of these additional debts. Jay, on the other hand, testified that these debts were incurred during the marriage before the par- ties separated. [5,6] We have stated that generally, all property accumu- lated and acquired by either spouse during a marriage is part of the marital estate. Brozek v. Brozek, 292 Neb. 681 , 874 N.W.2d 17 (2016). The burden of proof rests with the party claiming that property is nonmarital. Sellers v. Sellers, supra . Our standard of review in this action for dissolution of mar- riage is de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Devney v. Devney, 295 Neb. 15 , 886 N.W.2d 61 (2016). In a review de novo on the record, an appellate court reappraises the evi- dence as presented by the record and reaches its own inde- pendent conclusions on the matters at issue. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Freeman v. Groskopf, 286 Neb. 713 , 838 N.W.2d 300 (2013). With this standard of review in mind, based upon our de novo review of the record, we cannot say that the district court abused its discretion when it determined that these debts identified by Nanci were marital property and included them in the marital estate. We find no error with respect to this por- tion of the district court’s decree. Nanci additionally argues that the district court erred when it found that the marital estate was deficient in the amount of $52,960 and ordered that each party be responsible for half of the deficiency. Nanci contends that “[u]nder the rela- tive economic circumstances of the parties, the trial court’s order leads to grave economic inequities between the parties, resulting in an abuse of discretion.” Brief for appellee on cross-appeal at 31. Because the district court’s order dividing the marital estate is unclear, we cannot adequately address this argument. - 455 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 As stated above, under the second step of the three-step process of the equitable divisions of property, the district court is to value the marital assets and marital liabilities of the parties. Under the third step, the district court is to cal- culate and divide the net marital estate between the parties in accordance with the principles contained in § 42-365. See Sellers v. Sellers, 294 Neb. 346 , 882 N.W.2d 705 (2016). In its decree, the district court set forth a table which divided the assets between the parties and assigned the liabilities to Jay. However, the table set forth in the decree does not specify the value of any of these assets or liabilities. In the paragraph titled “Equalization of Marital Estate,” the district court offered this conclusory statement: Having equitably divided the marital estate, exclusive of [Jay’s] Termination and Early Termination Payments, the Court finds that the resulting net value of the Parties’ marital estate, is -$52,960.00 and that each party shall be responsible for fifty percent (50%) of such defi- ciency[.] The Court further finds that [Nanci’s] portion of such deficiency shall be paid to [Jay] by reducing [Nanci’s] interest in [Jay’s] Termination Payments, as set forth hereinafter. Because the district court did not specify the value of the assets and liabilities in the decree, it is not clear from the decree that the district court complied with the second and third steps of the three-step process. Under the circum- stances, we cannot evaluate whether the equalization provision is proper. We have treated the State Farm termination payments ear- lier in this opinion; with respect to the remainder of the marital estate, we reverse the portion of the decree dividing the marital property and remand the matter with directions to the district court to set forth the valuation of the parties’ marital assets and marital liabilities and to clarify the basis for an equalization award, if any. Furthermore, based on our determination above that the district court erred when it - 456 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 assigned a specific value to the termination payments, the value of any termination payments should not be included in the valuation of the marital estate and should not be consid- ered by the district court when ordering an equalization pay- ment, if any. Alimony. Nanci claims that the district court erred in its award of alimony to her, which provided that Nanci would receive $2,000 per month until Nanci reaches the age of 65, until she begins receiving her percentage of Jay’s termination payments, until she remarries or dies, or until further order of the court, whichever occurs first. Nanci argues that Jay might not begin receiving his termination payments until after Nanci reaches the age of 65, which would create a gap between when Nanci stops receiving alimony and when she begins receiving her percentage of the termination payments. For this reason, Nanci asserts that her award of alimony should be modified so that it continues until the termination payments begin or until she dies or remarries. Because we believe that the court did not abuse its discretion, we find no merit to this assignment of error. [7-10] The purpose of alimony is to provide for the contin- ued maintenance or support of one party by the other when the relative economic circumstances and the other criteria enumerated in § 42-365 make it appropriate. Brozek v. Brozek, 292 Neb. 681 , 874 N.W.2d 17 (2016). In reviewing an ali- mony award, an appellate court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court’s award is untenable such as to deprive a party of a substantial right or just result. Anderson v. Anderson, 290 Neb. 530 , 861 N.W.2d 113 (2015). The primary purpose of alimony is to assist an ex-spouse for a period of time necessary for that individual to secure his or her own means of support. Id. The ultimate criterion is one of reasonableness. Id. - 457 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports BERGMEIER v. BERGMEIER Cite as 296 Neb. 440 In her appellate brief, Nanci notes that she is 57 years old and has limited earning power. Jay responds that Nanci will receive alimony of $2,000 per month for 7 years, at which point she will be eligible for Social Security. Considering the circumstances of this case, we determine that the district court did not abuse its discretion. Therefore, we find no merit to this assignment of error. CONCLUSION We determine that the district court did not err when it determined that Jay’s termination payments and extended ter- mination payments under his contract with State Farm are marital property. However, we determine that the district court erred when it assigned a specific value to the termination pay- ments. We further determine that the district court erred when it awarded Nanci 50 percent of the termination payments and extended termination payments, and we direct the district court to utilize the formula set forth above to calculate Nanci’s percentage of the termination payments and extended termina- tion payments. We further remand this cause to the district court with directions to clarify its calculation of the marital estate and the equalization payment, if any. We also determine that the district court did not abuse its discretion in its award of alimony. A ffirmed in part as modified, and in part reversed and remanded with directions. | opinion_html_with_citations | 6,191 | 2017-07-07 05:11:51.631192+00 | 010combined | f | f | 4,406,974 | null | null | C | f | Published | 14 | Bergmeier v. Bergmeier | Bergmeier | null | null | null | null | null | null | null | null | null | null | 6,086,077 | S-15-1189 | 0 | neb | S | t | Nebraska Supreme Court | Nebraska Supreme Court |
4,952,065 | PER CURIAM. This matter is before the Court en Banc after remand to the Family Court for further proceedings as directed by the Court’s decision in In the Interest of Kelly Stevens, Del.Supr., 652 A.2d 18 (1995) (“Stevens I ”). The background and history of this litigation concerning efforts to terminate the parental rights of Thomas P. Dillard (“Dillard”) over his biological daughter, Kelly Stevens (“Kelly”), is extensively set forth in our prior opinion. In Stevens I we concluded that the Family Court had correctly applied the statutory standards which govern the termination of parental rights under Delaware law, 13 Del.C. §§ 1101-1115, on the limited record before it. We further concluded, however, that the Family Court should assess the good faith of Dillard’s extensive litigation efforts and his apparent failure to pursue the opportunity for visitation rights. I Pursuant to our order of remand, the Family Court received twenty-four hours of testimony, including extensive psychological evidence, concerning Dillard’s parental capability and his effort to establish a genuine parental relationship with his daughter. In a report to this Court, the Family Court made extensive factual findings and conclusions of law. It determined that: (i) following the termination of the Pennsylvania litigation in 1991 Dillard delayed making any significant effort to establish visitation privilege with his daughter and that the visitation petition instituted by him was in response to renewed efforts in Delaware to terminate his parental rights; (ii) during the period when the previous termination proceeding was pending in the Family Court, Dillard refused to communicate with the social agency designated by the Family Court to evaluate his parental fitness; (iii) following the initial denial of the termination petition, Dillard did not follow the Family Court’s direction to prepare a plan for introducing himself into Kelly’s life and, in fact, failed to appear at a October 18, 1993 hearing on visitation rights scheduled in the Family Court; (iv) Dillard has engaged in extraneous federal litigation and other activities in order to delay the progress of the State proceedings and expose Kelly to publicity inconsistent with the confidential nature of the termination/visitation process; (v) Dillard has declined opportunities to discuss his plans for contact with Kelly with Kélly’s Court Appointed Special Advocate despite repeated efforts to contact him; and (vi) Dillard’s psychological profile suggests a distorted sense of parenthood with emphasis on parental rights, to the point of excessive litigation and to the detriment of a real parent/child relationship. After determining that Dillard by his conduct after April 26, 1993 had not initiated any substantial contact with his daughter through the processes available to him, the Family Court concluded that Dillard’s “conduct and behavior unequivocally shows clearly and convincingly that [he] abandoned any interest in being the loving and caring father to Kelly Stevens.” Having determined that a statutory ground for termination had been established, the Family Court proceeded to determine the “best interests” aspect of the termination process and concluded that the overwhelming weight of evidence supports a finding that Kelly has established a supportive and loving attachment with the individuals who have cared for her since birth. The termination petition was granted to enable Kelly’s adoption “by the only persons she has ever known as parents.” II Our review of the grant or denial of a termination petition where the Family Court has conducted an evidentiary hearing is restricted to a review of factual findings to assure that they are logical and supported by the record. We must also be satisfied that the trial court has properly applied the pertinent law. Stevens I, 652 A.2d at 23. In the present appeal, Dillard asserts that in the proceedings on remand the Family Court denied him procedural fairness. First, he contends that the psychologist appointed by the Family Court to act as an independent expert was compromised in her independence by exposure to information supplied by opposing counsel. In her testimony, however, the expert made it clear that her evaluation was based on objective testing and her own *35analysis. She specifically denied that she had been influenced by material received from counsel. We also find no substance in Dillard’s claim that he was denied access to Kelly in preparing for the hearing on remand. Dillard’s request of the Family Court was for an “examination of Kelly” and production of her medical and school records. The Family Court’s decision not to require a face-to-face meeting between Dillard and an eight year old daughter he had never spoken to, and who was unaware of the termination proceeding, was a matter within the discretion of the Family Court. Given the sensitivity of the proceedings and the possible psychological harm to the child which might result from such a confrontation, we find no basis to disturb that ruling. The Family Court did grant Dillard’s request for production of medical and school records as well as Kelly’s record on file with the Division of Family Services. In our view, this ruling provided sufficient discovery into Kelly’s background and did not deny Dillard access to information needed to present his case in the Family Court. Dillard’s final claim of procedural deficiency is that the Family Court on remand, applied the “best interests” prong of the termination test before determining whether Dillard had abandoned Kelly. It is contended that the approach was contrary to this Court’s direction on remand. We do not read the Family Court’s report to this Court as contrary to our remand order. Indeed, in its report the Family Court did not discuss the best interests aspect until it had first determined that abandonment, within the meaning of 13 Del.C. § 1101(1), had occurred. The fact that the trial court may have permitted the parties to present evidence at its various hearings on the best interests question before it received all evidence tendered on the abandonment issue is not improper. The manner in which evidence is presented in a trial in which the judge is both finder of fact and definer of the law is clearly discretionary. We find no abuse of that discretion. We also reject Dillard’s claim that the Family Court’s findings are neither supported by substantial evidence nor logically consistent. On remand the Family Court was charged with re-examining Dillard’s “good faith and subjective intent” in light of his conduct in not pursuing the visitation opportunities made available to him by the Family Court. Stevens I at 28. Dillard’s motivation and any psychological basis for his unusual approach to parenthood were also subject to analysis by the Family Court on remand. The Family Court’s finding that Dillard’s efforts at genuine parental contact with his daughter were “superficial at best” and that he lacked any bona fide interest in establishing a genuine parental relationship are fully supported by the record. There is substantial evidence that Dillard, by his intensive litigation efforts, to the detriment of attempting to cultivate a genuine parental interest, demonstrated abandonment within the meaning of 13 Del.C. § 1101(1). Finally, there is little dispute that the record supports the conclusion that Kelly’s best interests are served by placement with, and adoption by, the only persons she has ever known as parents. Accordingly, we affirm the judgment of the Family Court. We would be remiss if we did not again recognize the advocacy of P. Clarkson Collins, Jr., Esquire and Barbara D. Crowell, Esquire who participated in these proceedings as court appointed Guardians ad litem for Kelly Stevens and Kevin Gross, Esquire who was appointed by this Court to represent Dillard in this Court and on remand in the Family Court. The high level of advocacy and professionalism demonstrated by them in this difficult, unusual, and demanding case, rendered pro bono publico, is in the best tradition of the Delaware Bar. | opinion_xml_harvard | 1,290 | 2021-09-24 13:13:59.857069+00 | 020lead | t | f | 5,132,735 | Berger, Hartnett, Holland, Veasey, Walsh | null | U | f | Published | 1 | Reed v. Dillard | Reed | In the Interest of Kelly STEVENS (D.O.B. 11/15/86). Robin REED, Below, Appellant-Cross/Appellee, and Charles and Mary Conner, Would be Intervenors Below v. Thomas P. DILLARD, Below, Appellee-Cross/Appellant | null | null | null | null | null | null | null | null | null | 60,445,950 | Nos. 262, 1993 and 276, 1993 | 0 | del | S | t | Supreme Court of Delaware | Supreme Court of Delaware |
4,506,486 | NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 19-1649 B.B., by and through his Parents Catherine B. and Jimmy B. of Philadelphia Pennsylvania, Appellant v. DELAWARE COLLEGE PREPARATORY ACADEMY; DELAWARE DEPARTMENT OF EDUCATION Appeal from the United States District Court for the District of Delaware (D.C. No. 1-16-cv-00806) District Judge: Hon. Colm F. Connolly Submitted pursuant to Third Circuit L.A.R. 34.1(a) February 6, 2020 Before: SHWARTZ, SCIRICA, and COWEN, Circuit Judges. (Filed: February 11, 2020) OPINION This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. SHWARTZ, Circuit Judge. B.B., by and through his parents, Catherine B. and Jimmy B., sued Delaware College Preparatory Academy (“DCPA”) and the Delaware Department of Education under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400- 1482. He seeks partial review of an administrative hearing panel’s decision dismissing his due process complaint as untimely. The District Court dismissed B.B.’s challenge to this decision, holding that his due process complaint was barred by the IDEA’s two-year statute of limitations. Because both the hearing panel and the District Court erred in determining that the due process complaint was barred by the statute of limitations, we will vacate and remand. I A1 During the 2012-2013 school year, B.B. was identified as a student eligible for and in need of special education services, and an Individual Education Plan (“IEP”) was developed for him. The IEP required, among other things, that he receive speech and language therapy. B.B. began his 2013-2014 kindergarten school year at DCPA. The school failed to implement his IEP and failed to provide him with services the IEP required. In February 2014, DCPA expelled B.B. from riding on the school bus due to “undocumented 1 “We review the allegations of the complaint and all reasonable inferences drawn therefrom in the light most favorable to [B.B.], the non-moving party.” G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 , 605 n.3 (3d Cir. 2015). 2 disciplinary infractions.” App. 66, 79. B.B.’s mother then requested that DCPA evaluate B.B., but DCPA failed to do so. On February 21, 2014, B.B. filed a due process complaint with the due process hearing board, alleging that DCPA had denied B.B. a free appropriate public education (“FAPE”) by failing to provide him speech services and failing to update his IEP. In May 2014, B.B. withdrew the complaint. Throughout spring and summer 2014, DCPA failed to evaluate B.B., provide him speech services, revise his IEP, or provide him transportation to special education services. Because of these failures, B.B.’s family withdrew him from DCPA and, in August 2014, B.B. filed a second due process complaint against DCPA, seeking only an independent education evaluations. B.B. withdrew the complaint a month later. On April 1, 2016, B.B. filed a third due process complaint against DCPA and the Delaware Department of Education seeking compensatory education for DCPA’s failure to provide B.B. a FAPE from September 2013 through September 2014.2 As relevant to this appeal, the April 2016 complaint alleged the following conduct as having occurred after April 1, 2014: • On May 29, 2014, B.B.’s parents signed a Permission to Evaluate (“PTE”) issued by DCPA for speech and language testing, but DCPA failed to issue a PTE to conduct other requested testing. 2 Although the District Court’s opinion denying the motion for reconsideration stated that the April 1, 2016 complaint was omitted from the record and that it therefore could not determine what IDEA violations formed the basis of that complaint, B.B. ex rel. Catherine B. v. Del. Coll. Preparatory Acad., Civ. A. No. 16-806-CFC, 2019 WL 949204 , at *6 (D. Del. Feb. 27, 2019), the April 2016 complaint is contained in the administrative record filed with the District Court at docket number 13. 3 • DCPA failed to provide B.B. appropriate transportation to special education services. • By the end of August 2014, DCPA had not evaluated B.B.’s educational needs, provided him speech services, or met to revise his IEP. Defendants moved to dismiss the complaint as time-barred. Following an evidentiary hearing, the hearing panel dismissed the complaint as untimely under the IDEA’s two-year statute of limitations because (1) B.B.’s parents knew of all DCPA’s omissions before February 21, 2014, more than two years before the filing of the April 1, 2016 complaint; and (2) no exceptions or equitable tolling principles applied to extend this two-year limitations period. B B.B. filed a complaint in the District Court under the IDEA asserting that the hearing panel erred to the extent it dismissed as untimely his claims for statutory violations between April 1, 2014 and September 2014. In essence, B.B. asked the District Court to reinstate the portion of his April 2016 due process complaint based on events that happened during that five-month period. Rather than focusing on that discrete time period, the Court dismissed the complaint, holding that the April 2016 complaint was untimely in its entirety because (1) the same injuries formed the basis of all three due process complaints; (2) B.B.’s parents should have known of the alleged injuries by November 30, 2013 when they were not asked to participate in any IEP meeting; (3) B.B.’s parents actually knew of the alleged injuries by February 2014 when B.B.’s mother asked DCPA to remedy the injuries; and (4) the complaint was filed on April 1, 4 2016, over two years later. B.B. ex rel. Catherine B. v. Del. Coll. Preparatory Acad., Civ. No. 16-806-SLR, 2017 WL 1862478 , at *3 (D. Del. May 8, 2017). B.B. moved for reconsideration, which the District Court denied because (1) there was no difference between the injuries alleged in the February 2014 complaint and the April 2016 complaint; (2) both complaints covered events from September 2013 to September 2014; (3) both complaints alleged that DCPA failed to provide speech and language services, to update B.B.’s IEP, and to conduct testing for B.B.; (4) B.B.’s parents knew or should have known of the alleged injuries by February 21, 2014, over two years before filing the April 2016 due process complaint; and (5) any alleged claims arising between April 1, 2014 and September 2014 were properly dismissed because the IDEA is not subject to the continuing violation doctrine and because B.B. had not argued that separate injuries arose after April 1, 2014. B.B. ex rel. Catherine B. v. Del. Coll. Preparatory Acad., Civ. A. No. 16-806-CFC, 2019 WL 949204 , at *5-7 (D. Del. Feb. 27, 2019). B.B. appeals the order dismissing the complaint and the order denying reconsideration. II3 3 The District Court had jurisdiction under 20 U.S.C. § 1415(i)(2)(A) and 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1292(b). We exercise plenary review over a district court’s order dismissing a complaint under Federal Rule of Civil Procedure 12(b)(6), S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248 , 256 (3d Cir. 2013), and apply the same standard as the District Court, N.Y. Shipping Ass’n Inc v. Waterfront Comm’n, 835 F.3d 344 , 352 (3d Cir. 2016). Thus, we must determine whether the complaint, construed “in the light most favorable to the plaintiff,” Santomenno ex rel. John Hancock Trust v. John Hancock Life Ins. Co., 768 F.3d 284 , 290 (3d Cir. 2014) (internal quotation marks and citation omitted), “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief 5 The IDEA requires participating states to provide disabled children with a FAPE, 20 U.S.C. § 1412(a)(1)(A), including “designing and implementing” an IEP “which ‘must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential,’” P.P. ex rel. Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727 , 729-30 (3d Cir. 2009) (quoting Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194 , 198 (3d Cir.2004)). If a school district does not provide a student with a FAPE, a parent may file a due process complaint on behalf of her child and have an impartial due process hearing held before an administrative officer. § 1415(b)(6), (f)(1)(A); G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 , 608 (3d Cir. 2015). that is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 570 (2007)), “but we disregard rote recitals of the elements of a cause of action, legal conclusions, and mere conclusory statements,” James v. City of Wilkes-Barre, 700 F.3d 675 , 679 (3d Cir. 2012). A claim “has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Thompson v. Real Estate Mortg. Network, 748 F.3d 142 , 147 (3d Cir. 2014) (internal quotation marks omitted). “[T]he standards of review for an underlying dismissal order and for the denial of a motion for reconsideration of the dismissal order are functionally equivalent, because we exercise plenary review of the dismissal order as well as of the legal questions in the denial of reconsideration.” Wiest v. Lynch, 710 F.3d 121 , 128 (3d Cir. 2013). The District Court’s determination on the statute of limitations is subject to plenary review as a conclusion of law. P.P. ex rel. Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727 , 735 (3d Cir. 2009). In deciding a motion to dismiss, courts may consider “the allegations contained in the complaint, exhibits attached to the complaint and matters of public record,” Schmidt v. Skolas, 770 F.3d 241 , 249 (3d Cir. 2014) (quoting Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192 , 1196 (3d Cir. 1993)), as well as “document[s] integral to or explicitly relied upon in the complaint,” id. (emphasis omitted) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 , 1426 (3d Cir. 1997)). 6 Section 1415(f)(3)(C) sets forth the statute of limitations for filing a due process complaint. Steven I. v. Cent. Bucks Sch. Dist., 618 F.3d 411 , 413 (3d Cir. 2010). Subject to two exceptions not at issue here, § 1415(f)(3)(C) requires a parent to request a “due process hearing within 2 years of the date the parent . . . knew or should have known about the alleged action that forms the basis of the complaint.”4 § 1415(f)(3)(C); D.K. v. Abington Sch. Dist., 696 F.3d 233 , 244 (3d Cir. 2012). This is sometimes referred to as the “knew or should have known” date. Thus, once the parent discovers a violation, “any claim for that violation . . . must be filed within two years of the ‘knew or should have known’ date.” G.L., 802 F.3d at 620 . If a due process complaint is not filed within two years of the date the plaintiff knew or should have known of the actions underlying the violations, then he may not base a claim on those actions. Rather, a plaintiff can seek relief only for those violations that took place within two years of the date he filed his complaint. See id. B.B. does not argue that violations that occurred before February 21, 2014 (the date the hearing panel said his parents knew or should have known of those violations) are timely, but rather seeks reversal of the hearing panel’s decision only to the extent that it dismissed as time-barred violations that occurred from April 1, 2014 to September 4 This subsection also permits parents to request a hearing “in such time as the State law allows” “if the State has an explicit time limitation for requesting such a hearing under this subchapter.” § 1415(f)(3)(C). Delaware’s statute of limitations mirrors the IDEA’s. See 14 Del. Admin. Code § 926.11.8 (“A parent or agency shall request an impartial hearing on their due process complaint within two (2) years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the due process complaint.”). 7 2014, which were within two years of the April 2016 due process complaint. During that period, B.B. alleges that (1) in May 2014, DCPA failed to issue a PTE to conduct certain testing of B.B.; (2) DCPA failed to provide B.B. transportation to access special education services; and (3) by August 2014, DCPA still had not evaluated B.B., met to revise his IEP, or provided him speech services. Although DCPA had previously failed to evaluate B.B., meet to revise his IEP, or provide him with speech therapy, subsequent failures of a like nature are distinct from prior failures and themselves support cognizable violations. Moreover, these specific violations could not have been discovered in February 2014 because they had not yet occurred. Since these events took place within two years of filing the April 2016 due process complaint, any discovery of that conduct by B.B.’s parents also occurred within the two-year period. B.B. does not seek to “sweep . . . expired claims into a single ‘continuing violation.’” G.L., 802 F.3d at 625 (citation omitted). Rather, he limited his request for relief to violations that took place from April 1, 2014 to September 2014, within “the two-year time period” before filing the April 2016 due process complaint. See D.K., 696 F.3d at 248 , 254 (holding that where claims are discovered over two years before the date the due process claim was filed, “claims are limited to” violations within “the two-year time period” before filing the due process complaint). His claim for compensatory education services based on conduct that occurred from April 1, 2014 to September 2014 is timely since it is based on conduct that took place, and thus could have only been 8 discovered, within two years of filing the April 2016 due process complaint.5 See G.L., 802 F.3d at 620 (holding that where a claim is not filed within the “knew or should have known” date, “all but the most recent two years before the filing of the complaint will be time-barred”). Accordingly, the District Court erred in dismissing B.B.’s complaint, and the hearing panel erred in concluding that claims based on events that occurred from April 1, 2014 to September 2014 were untimely. III For all these reasons, we will vacate and remand for further proceedings concerning the conduct that allegedly occurred between April 1, 2014 and September 2014. 5 While some of the events upon which relief is sought are similar to events that occurred outside the statute of limitations, “where the conduct or services at issue are ongoing to the previous two years, the claim for compensatory education services may be made on the basis of the most recent conduct or services.” G.L. 802 F.3d at 624 (emphasis omitted) (quoting S. Rep. 108-185, at 40 (2003)). 9 | opinion_html_with_citations | 2,471 | 2020-02-11 18:00:26.023123+00 | 010combined | f | f | 4,726,159 | null | null | C | f | Unpublished | 0 | B. B. v. Delaware College Preparatory A | null | null | null | null | null | null | null | null | null | null | null | 16,830,248 | 19-1649 | 0 | ca3 | F | t | Third Circuit | Court of Appeals for the Third Circuit |
3,567,110 | This is an appeal from a judgment in favor of the city of Newark, respondent here, defendant below, and *Page 324 against the appellants in an ejectment suit brought by the latter in the Essex County Circuit Court to recover possession of a tract of land with a frontage of thirty feet and a depth of sixty-two feet, located on the north side of Commerce street, in the city of Newark. The facts were stipulated and the case was, by consent, submitted to and determined by the court without a jury. The appellants claim in the right of Christian R. Wolters, Sr., who was the owner of the property in 1888 but is now dead. On April 14th, 1888, the city, having theretofore negotiated unsuccessfully with Wolters for the purchase of the premises, filed its petition for the appointment of condemnation commissioners and in due season prosecuted the proceeding to an award of $20,000 in favor of Wolters. Wolters appealed from that award and on the appeal was granted $25,466. The city thereupon paid the last mentioned sum to Wolters and, by virtue of the consummation of the condemnation proceedings, entered into and upon the premises and used the same, together with other adjoining premises, for market purposes. The proceedings to acquire the property were under an act entitled "An act to authorize the purchase and condemnation of land and the erection of buildings for market purposes in the cities of this state and other places in which market facilities are or may be required for public use, and to provide therefor," passed April 22d 1886. Pamph. L. 1886, ch. 191, p. 268. The statute provides in part: "1. That whenever in the judgment of the common council or other governing body of any city, additional market facilities are or may be required for public uses, it shall and may be lawful for such council or other governing body to appoint five commissioners, who shall serve without any compensation, to purchase such lands and erect suitable buildings thereon, to be used as a public market." * * * * * * * "3. That in case it should in any case be found that suitable property cannot be purchased by agreement with the owner or owners, or in case the price demanded by such *Page 325 owner or owners is, in the judgment of the commissioners, in any case exorbitant, and more than a fair equivalent therefor, then the said commissioners shall report the same, with a description of the said lands, to the common council or other governing body, and the said council or other governing body may order and direct the condemnation thereof." * * * * * * * "5. That the said [condemnation] commissioners appointed by the Circuit Court * * * shall forthwith proceed to estimate and determine the fair value of the lands and real estate so to be taken and condemned as aforesaid, and of the damages which the owner or owners thereof will suffer by reason of the taking thereof * * * and immediately upon the payment to said owner or owners of the amount of the said valuation, or in case he or they will not or cannot receive the same, upon deposit of the same in such bank or institution as the said court or judge may direct, the title to and the right of possession of such property shall immediately become vested in such city or place; and any owner conceiving himself or herself aggrieved by the proceedings of said commissioners, may appeal therefrom to the Supreme Court of this state at any time within sixty days after the filing of the said certificate, and the said court shall thereupon order a trial by jury to assess the value of the said property and the said damages, which trial shall be conducted in all respects as in other cases of trial by jury, and the final judgment of the said court upon the verdict rendered therein shall be conclusive upon all parties as to the said valuation and damages * * *." * * * * * * * "6. That all titles taken for the purposes mentioned in this act shall be in the name of the city or place in which the lands are purchased and the buildings erected by virtue of the provisions of this act." Section 7 provides for the payment of condemnation commisioners. Section 8 provides for the raising of funds "to pay for the land so purchased or condemned, and for the damages for *Page 326 the taking thereof, and for the cost of such buildings and other expenses connected therewith," and directs the commissioners for the improvement (to be distinguished from the condemnation commissioners) to "make a full and detailed statement of the entire cost of the lands purchased, the buildings erected, and all of the expenses incurred by them." Paragraph 9 provides "that the net revenues from all lands and buildings used for market purposes in every such city or place shall be devoted exclusively to the payment of the interest which may accrue upon the said bonds, and to a sinking fund for their redemption and payment when due * * *." For approximately thirty-five years the lands were used by the city for market purposes, and it is not contended that Wolters or his heirs had, or claimed, any possession or any right of possession during the period of that use. Then a new market place was elsewhere instituted by the city. The buildings and structures of the old market were demolished and the lands were put to new uses. The lands in question, with an adjoining lot involved in concurrent litigation, were, by ordinance adopted by the city of Newark on or about March 21st, 1924, opened as a public street, to be known as Commerce Court and to extend from Commerce street to South Canal street. The major points presented by appellants are, first, that the city of Newark took but an easement in the property, second, that if the city did acquire a fee, it was a conditional, base or determinable fee, and, finally, that in either event the use for which the property was condemned has been abandoned and, in consequence, the property has reverted to the former owner. The city responds that, by virtue of the condemnation proceedings, it acquired an estate in fee-simple absolute, the title to which is not subject to any right of reversion, and, furthermore, that even though the city be found to possess only a qualified fee, it may nevertheless devote the land to the street use. *Page 327 It may be said of a municipality, as it was said of a railroad corporation in Currie v. New York Transit Company and National Docks Railway Co., 66 N.J. Eq. 313 , that the quantity of interest in land obtained by it under the power of eminent domain is that which the statute conferring the power authorizes it to acquire and that the legislature may authorize the taking of a fee or any less estate in its discretion. The earlier cases were reviewed by our Chief Justice in the opinion written by him for this court in the Currie case and need not be here adverted to in the continued recognition of the enunciated principle. The next question is: What quantity of interest did the statute which conferred the power of eminent domain authorize the city to acquire? The statute is to be read, not under the necessity of finding fixed phraseology, but to ascertain its intent, because this intent, clearly found, will prevail. No precise words are necessary in a statute to authorize the condemnation of a fee. As was said by Mr. Justice Holmes, then a justice of the Supreme Judicial Court of Massachusetts, in City of Newton v. Perry , 163 Mass. 319 ; 39 N.E. Rep. 1032, "there are no sacramental words which must be used in a statutory power to take and hold lands in order to give a right to take the lands in fee." See, also, Driscoll v. City of New Haven (Conn.), 52 Atl. Rep. 618 . The statute, from its title throughout, anticipates the exercise of complete control over the lands by the city. The city is authorized to erect suitable buildings without limitation as to character or extent except that they shall be suitable to their purpose. The revenues from all such lands and buildings are to be devoted exclusively to the payment of accruing interest on, or toward the redemption of, the bonds issued by the city to finance the enterprise. Thus, dominion over the land and its increment is in, or for the advantage of, the city. The land is not for the indiscriminate use of all the inhabitants of the city, as for instance is a highway, or as is even a park, but is for such selective use as must be maintained when market space is to be let and revenues therefrom collected. *Page 328 The commissioners in condemnation are required by the statute to determine the fair value of the "lands and real estate" to be taken and if their award be appealed from the trial by jury shall be to assess "the value of the said property" — provisions not inconsistent with the taking of an estate of inheritance. Significance must attach to the statutory expression "the title to and the right of possession of such property shall immediately become vested in such city." It is "the title" of which the statute speaks and that is a phrase which by common acceptance, as well as in the books, means full title. Bouvier defines "title," as applied to lands, to be "the means whereby the owner of lands hath the just possession of his property." Webster's New International Dictionary gives the primary definition of the word in its law use thus: "The union of all the elements which constitute ownership, at common law divided into possession, right of possession and right of property, the last two now, however, being considered essentially the same." Likewise "vest" is a word of substantial import and is thus defined by Bouvier: "To give an immediate fixed right of present or future enjoyment. An estate is vested in possession when there exists a right of present enjoyment; and an estate is vested in interest when there is a present fixed right of future enjoyment." The provision in section eight that the city commissioners supervising the improvement shall make a "statement of the entire cost of the lands purchased , the buildings erected and of all the expenses incurred by them" uses the word "purchased" as inclusive of "condemned;" that is to say, the legislature, in this respect at least, did not distinguish between purchase and condemnation. Nothing in the statute bears the ear-mark of an easement. There are certain public uses, of which the highway is a conspicuous instance, that are and long have been regarded as easements, wherein the ownership of, and limited dominion over, the land remains in him upon whose lands the servitude is impressed. Such a servitude, viewed from the angle of the servient lands, and such an easement, viewed from the *Page 329 angle of the property or the persons in favor of which or in whom the right exists, have been, from time immemorial, ascribed to the right of passage or the right of way ( vide the iter, actus and via of the Roman law). A line of our decisions, of which the most recent is Frelinghuysen v. State Highway Commission, 107 N.J.L. 218 ; affirmed, post, p. 403, have established that when the state takes the property of its citizens for highway purposes, it takes an easement only. This easement is primarily a right of passage, and while secondary uses are sustained as related thereto, nevertheless the fact of passage remains the touchstone; and, therefore, an unrelated use may not be made of the highway against the consent of the private owner of the fee, except by condemnation under the power of eminent domain. Nicoll v. Telephone Co., 62 N.J.L. 733 . But there is an inherent cleavage between such an easement, or indeed between any easement, and the estate that comes to a municipality under acquisition of lands for a purpose that may endure forever and that, while it lasts, embraces exclusive possession and exclusive right of possession. The purview of the statute may not, we think, be cramped into an easement or a right in the nature of an easement. The city was authorized to acquire a fee. Having that authority, what did the city reach out to take, what did it in fact take and what did it pay for? It negotiated with Wolters, not for a right to use lands, but for the purchase of "the lands." That was pursuant to the appointment of city commissioners "to purchase or condemn said lands." Stipulation of fact No. 3 reads in part: "Pursuant to the provisions of said act, the common council of the city of Newark, on September 2d 1887, appointed commissioners to purchase or condemn said lands, and entered into negotiations with Christian R. Wolters, Sr., the owner of said premises, for the purchase thereof, but failed to agree with him as to the price to be paid to him for said lands." The commissioners for the improvement then proceeded to condemn that which the city had been unable to purchase, namely, "the lands" — more specifically, the lands which the *Page 330 city entered into the complete and exclusive possession of in 1888, over which the city has exercised undisputed dominion from thence hitherto, and which are described in the complaint in the instant cause. The city acted to acquire the entire quantity and extent of interest permitted by the statute. That full measure of estate was necessary for the character of improvement and use contemplated by the statute and actually put into effect by the city. It is claimed that there is no evidence that the owner received the full value of his lands. To this it may be said that there is no evidence that full value was not paid and that the amount of the award, regard being had for the size and location of the lot and the period of the transaction, does not carry intrinsic indicia of insufficiency; that on the contrary the statute required the fair value of the lands to be determined and paid; that the owner on his appeal from the original award obtained an increase of more than twenty-five per centum in the determination of value; that the last mentioned verdict was paid to and received by him; that by the statute that verdict was made "conclusive upon all the parties as to the said valuation;" and that consequently, on the theory of res adjudicata , the appellants are bound by this finding of value. There is no suggestion that the acquisition, the use or the change was mala fide. There is no taint of fraud or of concealed purpose to negative a result otherwise reached. The city took the lands in fee. It remains to consider the effect, if any, of the change in use. It is not charged that the new use is a greater burden on the lands or that it results in a greater deprivation to those who claim a reversion. The claim is merely that the use is different; and manifestly it is different; and the former use is, we find, abandoned. But the new use is a public use for which the power of condemnation is available; and inasmuch as the owner was paid the fair value of the lands, just compensation has been made. Changes, incident to the passing of the years, may cause a tract of land, originally taken for market uses, to serve a better public purpose as a *Page 331 site for a fire house and still later for a municipal court house. In the case at bar it chanced that the public was more efficiently served by changing the use to that of a street. It would, we think, be an exaggeration of the essence of private ownership and a mulcting of the public purse to hold that when an individual has had his lands taken for public use and has been fully paid for those lands he, or his heirs after him, should be entitled to payment anew whenever the character of the public use changes, simply because it does change. The Supreme Court opinion in Paterson v. Kearny , 84 N.J.L. 456 ( affirmed, 87 Id. 327 , in part on the opinion below), is cited contra. The issue was the right of the town of Kearny to proceed with the condemnation of land for a water supply. The Supreme Court found that the city was proceeding in good faith under statutory authority and held that the action was legal. Its opinion contains this sentence: "If that was not the real object, or if the water is diverted to some other use not authorized, the right acquired will be at an end, just as land reverts to the prior owner when the use for which it is condemned is abandoned." That language was predicated upon a hypothesis that did not grow out of the determined facts of the case and that therefore was not before the court for decision. It was obiter. Also, the assumed contingencies of bad faith and putting the lands to a use for which the municipality is not authorized to condemn are not present in the instant case. The Supreme Court in Strock v. East Orange , 80 N.J.L. 619 ; 77 Atl. Rep. 1051 , speaking through Mr. Justice Parker observed that: "When land has been acquired for public use, as for a park, by condemnation and payment to the owner of its full value, or by sale and purchase, it seems to be competent for the legislature to authorize the municipality so acquiring it to use it for other purposes. Brooklyn Park Commissioners v. Armstrong , 45 N.Y. 235 ; 6 Am. Rep. 70 ." The New York Court of Appeals in the cited case says: "Where the property is taken, the owner paid its true *Page 332 value, and the title vested in the public it owns the whole property, and not merely the use; and though the particular use may be abandoned, the right to the property remains. The property is still held in trust for the public by the authorities. By legislative sanction it may be sold, be changed in its character from realty to personalty, and the avails be devoted to general or special public purposes." We conclude that when a municipality has, in good faith, by condemnation, under legislative authority, taken title in fee to lands for a public use, and has paid the full value thereof, the fee is not determined by the fact that the municipality abandons the specific use for which the lands were taken and devotes the lands to another public use. We find that the city of Newark paid the full price of the lands; that it intended to, and did take the title in fee and that the fee was not determined by the fact that the city abandoned the market use and devoted the lands to street purposes. The city of Newark has attempted neither to dispose of the lands nor to apply them to other than a public use. Therefore it is not necessary to decide whether the title held by the city is a fee-simple absolute or is of the class described as fee-simple determinable. Pipe Line Co. v. Delaware, Lackawanna and Western Railroad Co., 62 N.J.L. 254 , 268 . The judgment below will be affirmed. For affirmance — THE CHIEF JUSTICE, TRENCHARD, CAMPBELL, LLOYD, CASE, BODINE, DALY, DONGES, VAN BUSKIRK, HETFIELD, DEAR, WELLS, KERNEY, JJ. 13. For reversal — PARKER, KAYS, JJ. 2. *Page 333 | opinion_html_with_citations | 3,343 | 2016-07-05 23:16:46.800015+00 | 020lead | f | f | 3,586,532 | Case | null | ZU | f | Published | 17 | Carroll v. City of Newark | Carroll | JOHN L. CARROLL AND HERMAN BORNEMANN, Jr., EXECUTORS AND TRUSTEES OF THE LAST WILL AND TESTAMENT OF CHRISTIAN R. WOLTERS, Sr., AND MARY ELIZABETH CARROLL, IRENE QUACKENBOS AND CELIA A. WOLTERS, HEIRS AT LAW OF CHRISTIAN R. WOLTERS, Sr., DECEASED, APPELLANTS, v. CITY OF NEWARK, RESPONDENT | null | null | <parties id="b379-4">
JOHN L. CARROLL AND HERMAN BORNEMANN, Jr., EXECUTORS AND TRUSTEES OF THE LAST WILL AND TESTAMENT OF CHRISTIAN R. WOLTERS, Sr., AND MARY ELIZABETH CARROLL, IRENE QUACKENBOS AND CELIA A. WOLTERS, HEIRS AT LAW OF CHRISTIAN R. WOLTERS, Sr., DECEASED, APPELLANTS, v. CITY OF NEWARK, RESPONDENT.
</parties><br><otherdate id="b379-5">
Submitted May 29, 1931
</otherdate><decisiondate id="Ajm5">
Decided February 1, 1932.
</decisiondate><br><attorneys id="b379-12">
For the appellants,
<em>
Lintott, Kahrs & Young.
</em>
</attorneys><br><attorneys id="b379-13">
For the respondent,
<em>
Frank A. Boettner
</em>
and
<em>
Frederick H. Groel.
</em>
</attorneys> | null | On appeal from the Essex County Circuit Court. | null | null | null | null | 3,458,657 | null | 0 | nj | S | t | Supreme Court of New Jersey | Supreme Court of New Jersey |
1,764,240 | 715 F. Supp. 688 (1989) TERRA NOVA INSURANCE CO., LTD. v. NORTH CAROLINA TED, INC. t/a Ted's Spot III, Themiah Waters, a/k/a Ted Waters, Individually and t/a Ted's Spot III, and Edward Bey. Civ. A. No. 87-8418. United States District Court, E.D. Pennsylvania. March 23, 1989. *689 Jonathan Dryer, Philadelphia, Pa., for plaintiff. Abe Lapowsky, Philadelphia, Pa., for North Carolina & Themiah Waters. Joseph Cardona, Philadelphia, Pa., for Edward Bey. MEMORANDUM AND ORDER VAN ANTWERPEN, District Judge. On December 28, 1987, the plaintiff, invoking the diversity jurisdiction of the federal courts, brought this action for declaratory judgment. The plaintiff seeks to have this court declare that it has no duty to defend or to indemnify its insured, Ted's Spot III, [1] in a Philadelphia County Common Pleas Court action for personal injuries brought by Edward Bey, a patron of Ted's Spot III, against another patron who allegedly shot and seriously injured him. Before the court, at present, are the parties' cross-motions for summary judgment. Oral argument on these motions was heard by the court on March 6, 1989. For the reasons expressed below, we find that the plaintiff is entitled to summary judgment in its favor. The standards governing the grant or denial of a motion for summary judgment are clear. Fed.R.Civ.P. 56(c) instructs a court to enter summary judgment when the record reveals 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." This rule provides the court with a useful tool when the critical facts are undisputed, facilitating the resolution of a pending controversy without the expense and delay of conducting a trial made unnecessary by the absence of factual dispute. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81 , 84 (3d Cir.1982); Goodman v. Mead Johnson & Co., 534 F.2d 566 , 573 (3d Cir.1976), cert. denied, 429 U.S. 1038 , 97 S. Ct. 732 , 50 L. Ed. 2d 748 (1977). Summary judgment is inappropriate, however, where the evidence before the court reveals a genuine factual disagreement requiring submission to a jury. An issue is "genuine" only if the evidence is such that a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 106 S. Ct. 2505 , 2510, 91 L. Ed. 2d 202 (1986). At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 2511. However, if the evidence is merely "colorable" or is "not significantly probative", summary judgment may be granted. Id. In a summary judgment action, the moving party bears the initial burden of identifying for the court those portions of the record which it believes demonstrate the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317 , 323-24, 106 S. Ct. 2548 , 2553, 91 L. Ed. 2d 265 (1986). In making its ruling on a summary judgment *690 motion, the court must view all inferences in a light most favorable to the non-moving party, United States v. Diebold, Inc., 369 U.S. 654 , 655, 82 S. Ct. 993 , 994, 8 L. Ed. 2d 176 (1962); Continental Ins. Co. v. Bodie, 682 F.2d 436 , 438 (3d Cir.1982), must resolve all doubts against the moving party, Gans v. Mundy, 762 F.2d 338 , 341 (3d Cir.1985), cert. denied, 474 U.S. 1010 , 106 S. Ct. 537 , 88 L. Ed. 2d 467 (1985), and must take as true all allegations of the non-moving party that conflict with those of the movant, Anderson, supra, 106 S.Ct. at 2513. With these standards in mind, we shall proceed to a consideration of the parties' cross-motions for summary judgment. At oral argument, counsel for the parties conceded that receipt of the policy by the insured was not an issue in the instant case. We are, therefore, left to contend with the issue of whether the terms of the comprehensive general liability insurance policy issued to the insured require the plaintiff to defend and to indemnify the insured. Under Pennsylvania law, which both sides have used in support of their arguments, [2] "`the obligation to defend arises whenever the complaint filed by the injured party may potentially come within the coverage of the policy.'" Seaboard Industries, Inc. v. Monaco, 258 Pa. Super. 170 , 178, 392 A.2d 738 , 742 (1978) (quoting Gedeon v. State Farm Mutual Automobile Insurance Co., 410 Pa. 55 , 58, 188 A.2d 320 , 321 (1963) (emphasis in original)). That duty to defend is determined solely by the allegations of the complaint filed against the insured. Wilson v. Maryland Casualty Co., 377 Pa. 588 , 105 A.2d 304 (1954). "The duty to defend remains with the insurer until the insurer can confine the claim to a recovery that is not within the scope of the policy. [Citations omitted]." Pacific Indemnity Co. v. Linn, 766 F.2d 754 , 760 (3d Cir.1985). The policy in the instant case contains a specific exclusion for claims based upon assault and battery. It reads as follows: ASSAULT AND BATTERY It is agreed that no coverage shall apply under this policy for any claim, demand or suit based on Assault and Battery, and Assault and Battery shall not be deemed an accident, whether or not committed by or at the direction of the Insured. The instant case is practically "on all fours" with a recent case decided by Judge Newcomer of the Eastern District of Pennsylvania. Although the alleged perpetrators of the assault in Terra Nova Insurance Co., Ltd. v. Thee Kandy Store, Inc., 679 F. Supp. 476 (E.D.Pa.1988) were employees of the insured bar and restaurant, [3] the plaintiff insurer was the same company as the plaintiff in the instant case, a patron of the insured was suing it for injuries sustained in an assault, and the same exclusion for claims based upon assault and battery was at issue. Judge Newcomer found that the exclusion applied; he wrote: 4. Although Mr. Kinsey [the injured patron] claims that the defendants in his Common Pleas action were negligent in preventing the assault and battery, this allegation is not sufficient to avoid a properly executed assault and battery exclusion. Regardless of the language of the allegations, the original cause of the harm arose from an alleged assault and battery. Terra Nova Insurance Company, Ltd. v. The Powhattan Club, Inc., C.A. No. 86-7413, slip. op. (E.D.Pa. October 16, 1987) [ 1987 WL 18590 ] (J.M. Kelly, *691 J.); St. Paul Surplus Lines Insurance Company v. 1401 Dixons, 582 F. Supp. 865 (E.D.Pa.1984) (Giles, J.); Sauter v. Ross Restaurants, Inc., C.A. No. 80-1202 (E.D.Pa. May 21, 1981) (Pollak, J.). Consequently, I find that the assault and battery claim in Mr. Kinsey's Common Pleas action would not be covered by Terra Nova's insurance due to the assault and battery exclusion. Id. at 478. The allegations against the instant insured in Edward Bey's complaint also speak of the insured's negligence in failing to take measures that might have prevented the alleged shooting. The actual source of Mr. Bey's injuries, however, was the alleged assault upon him by a fellow patron of the bar. We believe that Judge Newcomer's assessment is correct: "Regardless of the language of the allegations, the original cause of the harm arose from an alleged assault and battery." Id. We, therefore, find that Mr. Bey's claim, arising as it does from an alleged shooting incident, would not fall within the policy's coverage because of the assault and battery exclusion. The insured, in its opposition to the plaintiff's motion for summary judgment, argues that the assault and battery exclusion is ambiguous because the exclusion does not specifically refer to assaults by third parties. This ambiguity, argues the insured, should be construed against the plaintiff-insurer who drafted the provision and summary judgment on the existence of coverage for the Bey claim should be awarded in the insured's favor. We find the insured's argument to be without merit. "A provision of an insurance policy is ambiguous if reasonably intelligent men on considering it in the context of the entire policy would honestly differ as to its meaning. Northbrook Insurance Co. v. Kuljian Corp., 690 F.2d 368 , 372 (3d Cir.1982); Celley v. Mutual Benefit Health and Accident Assoc., 229 Pa.Super. 475, 481-82, 324 A.2d 430 , 434 (1974)." Rich Maid Kitchens v. Pennsylvania Lumbermens Mutual Insurance Co., 641 F. Supp. 297 , 307 (E.D. Pa.1986), aff'd mem., 833 F.2d 307 (3d Cir. 1987). Where, however, the language is clear and unambiguous, the court has a duty to respect it: In construing an insurance policy, if the words of the policy are clear and unambiguous, the court must give the words their plain and ordinary meaning. Northbrook Insurance Co. v. Kuljian Corp., 690 F.2d 368 , 372 (3d Cir. 1982).... The language of a policy may not be tortured, however, to create ambiguities where none exist. Houghton v. American Guaranty Life Insurance Co., 692 F.2d 289 , 291 (3d Cir.1982). Exclusions from coverage contained in an insurance policy will be effective against an insured if they are clearly worded and conspicuously displayed, irrespective of whether the insured read the limitations or understood their import. Standard Venetion Blind Co. v. American Empire Insurance Co., 503 Pa. 300 , 307, 469 A.2d 563 , 567 (1983).... Pacific Indemnity Co., 766 F.2d at 760-761. We believe that the language of the exclusion would plainly indicate to the average reader that, no matter who commits the assault and battery, no coverage will be provided. To interpret the language as does the insured would be to "torture" it to create ambiguities where such do not exist. We also find that the exclusion was conspicuously displayed. The insured's arguments, based upon ambiguity in the language of the exclusion for assault and battery, must, therefore, fail. In a Supplemental Memorandum of Law, filed in support of the plaintiff's motion for summary judgment, the plaintiff further argues that the Bey assault did not constitute an "occurrence" under the policy and, thus, was excluded from coverage for that reason, as well. The plaintiff based its argument on a recent Pennsylvania Supreme Court opinion, Gene's Restaurant, Inc. v. Nationwide Insurance Co., 519 Pa. 306 , 548 A.2d 246 (1988). In Gene's, "occurrence" was defined in the policy as follows: "`[O]ccurrence' means an accident, including continuous or *692 repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured...." In Gene's, a female patron of a restaurant was beaten by her husband and sustained injuries from that attack. The Pennsylvania Supreme Court held that the attack against the female patron was not an "occurrence". The court reasoned: Under this definition an "occurrence" is an accident. The willful and malicious assault alleged in the complaint is not an accident but rather is an intentional tort. As such, it is not covered by the policy and, therefore, the insurer owed no duty to defend. Wilson v. Maryland Casualty Co., 377 Pa. 588 , 105 A.2d 304 (1954).... Id. at 247 (footnotes omitted). The court in Gene's further rejected the insured's argument that because it neither "expected" nor "intended" the female patron's injuries, the insurer had a duty to defend. The court stated: "Such a reading ignores the policy requisite that the `occurrence' must be an accident which a malicious, willful assault and beating could never be." Id. n. 1. In the instant case, the policy's definition of "occurrence" is identical to that found in the policy in Gene's. In the instant case, as in Gene's, a patron was assaulted by a third party. On the authority of Gene's, then, a case recently decided by Pennsylvania's highest court, we hold that coverage in the instant case is also excluded because the Bey assault is not an "occurrence" as defined in the policy. [4] For all of the reasons expressed above, we find that the plaintiff has met its burden in moving for summary judgment. Since there is no genuine issue of material fact and since plaintiff is entitled to judgment as a matter of law, summary judgment shall be awarded the plaintiff. The plaintiff has no duty to defend or to indemnify the insured in the Bey action filed in the Philadelphia County Court of Common Pleas. We also find that the insured has not met the criteria which would entitle it to summary judgment. Accordingly, its motion shall be denied. NOTES [1] Ted's Spot III is a Philadelphia, Pennsylvania, bar operated by North Carolina Ted, Inc., whose sole officer and stockholder was Themiah Waters, a/k/a, Ted Waters. [2] We are in agreement that the law of Pennsylvania applies to the instant case, compelled as we are to make this determination by the United States Supreme Court's decision in Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487 , 61 S. Ct. 1020 , 85 L. Ed. 1477 (1941). [3] We do not believe that the fact that the alleged perpetrators in Thee Kandy Store, 679 F. Supp. 476 , were bar employees and the alleged perpetrator in the instant case was a third party constitutes any significant difference between the two cases. We believe that the language of the exclusion plainly indicates that no matter who commits the assault and battery, no coverage will be provided. See our discussion regarding the insured's ambiguity argument post. [4] The insured relies upon Sauter v. Ross Restaurants, Inc., C.A. No. 80-1202 slip. op., (E.D.Pa. May 21, 1981). In Sauter, the definition of "occurrence" was identical to that in Gene's and in the instant case. In Sauter, the plaintiffs were injured by a "bouncer" employed by the restaurant. The District Court found that, since such injuries could not be expected or intended by the insured, they were the result of an "accident" within the meaning of the definition of "occurrence" found in the policy. (The opinion, however, further went on to find that an assault and battery exclusion deprived the insured of coverage). It is important to note that the Sauter opinion is a District Court opinion issued in 1981 and it therefore, did not have the benefit of the Pennsylvania Supreme Court's guidance on this issue now found in Gene's. When a federal court is required to interpret or apply state law, it must consider and accept the decisions of the state's highest court as the ultimate authority regarding state law. Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548 , 553 (3d Cir.1985); Connecticut Mutual Life Insurance Co. v. Wyman, 718 F.2d 63 , 65 (3d Cir.1983). The Pennsylvania Supreme Court has spoken and we must accept its interpretation of the word "occurrence" as applied in the circumstances described above. | opinion_html_with_citations | 2,477 | 2013-10-30 07:20:43.608221+00 | 010combined | f | f | 1,764,240 | Van Antwerpen | null | LU | f | Published | 21 | Terra Nova Insurance v. North Carolina Ted, Inc. | null | TERRA NOVA INSURANCE CO., LTD. v. NORTH CAROLINA TED, INC. T/A Ted’s Spot III, Themiah Waters, A/K/A Ted Waters, Individually and T/A Ted’s Spot III, and Edward Bey | null | null | <parties id="b762-9">
TERRA NOVA INSURANCE CO., LTD. v. NORTH CAROLINA TED, INC. t/a Ted’s Spot III, Themiah Waters, a/k/a Ted Waters, Individually and t/a Ted’s Spot III, and Edward Bey.
</parties><br><docketnumber id="b762-11">
Civ. A. No. 87-8418.
</docketnumber><br><court id="b762-12">
United States District Court, E.D. Pennsylvania.
</court><br><decisiondate id="b762-14">
March 23, 1989.
</decisiondate><br><attorneys id="b763-10">
<span citation-index="1" class="star-pagination" label="689">
*689
</span>
Jonathan Dryer, Philadelphia, Pa., for plaintiff.
</attorneys><br><attorneys id="b763-11">
Abe Lapowsky, Philadelphia, Pa., for North Carolina & Themiah Waters.
</attorneys><br><attorneys id="b763-12">
Joseph Cardona, Philadelphia, Pa., for Edward Bey.
</attorneys> | null | null | null | null | null | null | 15,622 | Civ. A. 87-8418 | 1 | paed | FD | t | E.D. Pennsylvania | District Court, E.D. Pennsylvania |
6,370,412 | Opinion by Judge Doyle, This is an appeal by the County of Butler from the decision of the Butler County Court of Common Pleas which ordered that M. J. S. remain a patient at the Elwyn Institute, and that the County continue funding for her treatment. M. J. S. (Patient) is a severely mentally retarded adult who suffers from Down’s Syndrome. Since 1957 she has resided at the Elwyn Institute, a private residential facility for the mentally retarded in Delaware County, Pennsylvania. Funding for the Patient’s treatment was provided directly by the Commonwealth’s Department of Public Welfare (DPW) until 1981, when DPW directed the counties to administer the state funds through their Mental Health/Mental Retardation Program. At that time, Butler County, the Patient’s county of residence, assumed funding and began monitoring the Patient’s progress at Elwyn through its Base Service Unit.1 After two visits to the facility and a review of its reports, the County concluded that the Patient could reside in a less institu*282tionalized setting, and began arranging for her transfer to a community living arrangement in Butler County. When the Patient’s guardian, Robert Stock, refused to consent to the transfer, the County advised bim that, funding for’ the Patient’s continued placement at Elwyn would be terminated. In response to Robert Stock’s demand for a hearing, the County petitioned the Court of Common Pleas under .Section 406 of the Mental Health and Mental Retardation Act of 19662 (Act), and a hearing was held on the issue of whether the County could properly terminate funding. On April 27, 1983, the Court issued an opinion and order in which it concluded that a transfer to the Community Living Arrangement would not be in the best interest of the Patient, and ordered that the County continue funding of the Patient’s treatment at Elwyn Institute. On appeal to this Court, the County contends that the trial court erred in overruling its decision, arguing that it should be accorded wide discretion in determining the proper placement of patients under its supervision, and in allocating its funds accordingly. The County’s authority for this proposition is found in Section 6201.12(b) of the Mental Retardation Manual3 (Manual), which states, in pertinent part: . (b) The Base Service Unit is responsible for performing the following functions in such a way as to carry out the following objectives of ■ the county program: *283(9) Ensure that services will not be authorized for funding by the county program unless they are consistent with the life-management plan as developed by the Base Service Unit and approved by the county administrator. (10) Provide for comprehensive diagnosis and evaluation services to do all of the following: (iii) Develop a practical life-management plan for individuals and their families and provide the necessary counseling and follow-along services. The County argues that it was well within its authority under this provision when its Base Service Unit developed a Life Management Plan which provided for a transfer to a Community Living Arrangement, and then required that funding be made consistent with that plan. While it may be true that the County has the authority to develop and implement the Patient’s Life Management Plan, a further reading of the applicable law indicates that the 'County’s discretion in this matter is somewhat more limited than the County would suggest. In addition to those provisions already cited, Section 6201.12(b) of the Manual also states that in developing the Patient’s Life Management Plan, the County’s Base Service Unit must involve the participation of other individuals, such as the Patient’s family, physician, and providers of service.4 Thus, the *284County is required to seek the advice of the current provider, here the Elwyn Institute, before reaching a decision as to whether a transfer is appropriate. In the present case the officials at Elwyn Institute neither recommended nor requested that the Patient be transferred. On the contrary, the Patient’s most recent Individual Habilitation Plan, developed by an interdisciplinary team at Elwyn pursuant to the requirements of Section 6400.124 of the Manual,5 recommended continued placement at the facility. This recommendation was in agreement with the opinion of the staff psychologist, who reported that the Patient’s success was due to her overlearned routine, and that any changes in her environment would create difficulties in adjustment. Further, these recommendations were supported by evidence before the trial court which indicated that the Patient was a sensitive individual who did not make friends easily, and did not herself wish to be transferred. Additional evidence also indicated that the Patient had lived at Elwyn for over twenty-five years and had responded well to a *285secure and supportive environment, which included visits from her brother who lived nearby.6 Despite these well-supported recommendations, the County attempts to justify its unilateral decision to transfer the Patient by reference to its policy of pursuing the least restrictive setting for mentally retarded patients.7 While pursuing the less restrictive setting of a Community Living Arrangement is a laudable goal, it does not justify the County’s actions in ignoring the recommendations of the Elwyn Institute when developing the Life Management Plan, nor in failing to seek their concurrence in the proposed transfer. While nothing in the applicable law requires a county to adopt every recommendation of a provider, such law does indicate a clear intention that those most familiar with the Patient’s case have at least some voice in determining placement decisions regarding the Patient. Therefore, in situations such as this, where the record is clear that the County has completely disregarded the recommendations of those *286familiar with the ease, the County has overstepped its authority and is guilty of an abuse of discretion. In view of this abuse of discretion, the Court of Common Pleas has correctly concluded that the County erred in determining that the Patient should be transferred to the Community Living Arrangement, and properly ordered continued funding for the placement' at Elwyn Institute. Accordingly, we affirm the order of the Butler County Court of Common Pleas. Order Now, August 1, 1984, the decision and order of the Butler County Court of Common Pleas in the above referenced matter, Ms. D. 82-183, dated April 27,1983, is hereby affirmed. The Base Service Unit consists of multidisciplinary professional and nonprofessional staff provided by the county to plan, direct, and coordinate appropriate services for persons who are mentally retarded and in need of service from tbe county program. Section 6201.12(a) of tbe Mental Retardation Manual, 55 Pa. Code §6201.12 (a). 2 Act of October 20, 1966, Special Sess., No. 3, P.L. 96, as amended, 50 P.S. §4406, repealed in part by Section 502 of tbe Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, as amended, 50 P.S. §7502. Although this Section specifies procedure for court commitment of mentally retarded persons, the County -stipulated that no commitment was being sought,- and that the Petition was filed for the sole purpose of obtaining- a hearing date from the court. 55 Pa. Code §6201.12(b). Under Section 6201.12(b) (3) of the Manual, the Base Service Unit is required to [m]aintain a continuing relationship with the mentally retarded person and with any facility or provider of ser*284vice responsible for service to the mentally retarded person during any stage of his life-management process. In addition, Section 6201.12(b) (5) of the Manual, 55 Pa. Code §6201.12(:b) (5) requires that the Base 'Service Unit [i]nitiate, develop, and maintain a pattern of interaction , between the diagnostic and. evaluation team and others concerned with services to any mentally retarded person and his family. This pattern must emphasize participation in the life-management planning process of such persons as the family, physician . . . other providers of service, advocates, and the mentally retarded person, whenever possible. Section 640.124 of the Manual, 55 Pa. Code §6400.124 requires that an Individual Habilitation Plan be compiled for each Patient on an annual basis, with periodic revisions every three months. The plan is to include evaluation of the patient’s skill level, short term objectives, time frame for completion, and methods to be used in evaluation. The Patient and her brother entered Elwyn together but her brother was able to leave Elwyn aftr ten years. He lives on his own in the area and visits his sister with some frequency. Although the Patient visits remaining family members in Butler County on vacations, she is afraid of the Community Living Arrangement and referred to the group home as a “jail house” in her own interview with the trial judge. In support of its policy, the County erroneously relies upon Section 102 of the Mental Health Procedures Act (MHPA), Act of July 9, 1976, P.L. 817, as amended, 50 P.S. §7102. That section indicates that the'MHPA does not apply to a person who, like the Patient here, is mentally retarded but not mentally ill. We note, however, that a similar policy statement appears in Section 6201.1(a) of the Mental Retardation Manual, 55 Pa. Code §6201.1 (a), which states that the county program is to “ensure for every mentally retarded person and his family the right to live a life as close as possible to that which is typical for the general population.” | opinion_xml_harvard | 1,521 | 2022-06-24 23:45:26.585438+00 | 020lead | t | f | 6,497,424 | Blatt, Doyle, Williams | null | U | f | Published | 0 | In re: M. J. S. | null | In Re: M. J. S., County of Butler | null | null | null | null | null | null | null | null | null | 63,427,191 | Appeal, No. 388 C.D. 1983 | 0 | pacommwct | SA | t | Commonwealth Court of Pennsylvania | Commonwealth Court of Pennsylvania |
6,602,375 | Lyon, J. The only question presented by this appeal is, whether the justice, when he took time to consider upon the cause, adjourned the same for a longer time than the statute allows. The statute provides that “ whenever a justice shall take time to consider upon a cause submitted to him for decision, he shall continue the cause to a time to be by him named, not more than seventy-two hours from the time the same is so submitted, at which time he shall enter his judgment.” R. S., ch. 120, sec. 96. We are entirely satisfied that it was the intention of the legislature, in the enactment of this statute, to give the justice *45seventy-two hours of secular time in which to consider the cause and determine his judgment. This view is sustained by the reasoning and decision of this court in Ridgley v. The State, 7 Wis., 661, decided nearly twenty years ago. So far as we are advised, that case has never been overruled, nor its correctness questioned. "We understand the true principle to be (and so hold) that, when a statute, like that under consideration, gives hours in which to perform a given act, and does not mention an intervening Sunday, the hours of an intervening Sunday are to be excluded from the computation of time. By the Court. — Judgment affirmed. | opinion_xml_harvard | 227 | 2022-07-20 20:08:53.492908+00 | 020lead | t | f | 6,721,359 | Lyon | null | U | f | Published | 0 | Meng v. Winkleman | Meng | Meng v. Winkleman | <p>APPEAL from the Circuit Court for Dane County.</p> <p>This action was brought before a justice of the peace, and tried by him without a jury. The cause was submitted to him at 5:30 P. M., November 5th; “ whereupon the court adjourned the case for seventy-two hours, to consider upon a rendition of judgment, at which time, five and a half o’clock in the afternoon of the 9th ihst., judgment will be rendered at my office.” This quotation is from the docket of the justice. At the appointed time the justice rendered judgment for the plaintiff. The intervening 7th of November was Sunday.</p> <p>Defendant removed the case to the circuit court by certio-rari, alleging for error that, by the adjournment from the 5th to the 9th of November, the justice lost jurisdiction to render judgment. The circuit court affirmed the judgment of the justice; and defendant appealed to this court.</p> <p>contended, 1. That sec. 34, ch. 140, R. S. (which declares that “ the time within which an act is to be done as herein provided, shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded”), is a general rule applicable to all cases and courts. 4 Wait’s Pr., 621; Buckstaff v. Ban-ville, 14 Wis., 77; State v. Messmore, id., 119; Smith v. Smith, 19 id., 523; Bissell v. Bissell, 11 Barb., 96; Columbia Turnpike Road v. Haywood, 10 Wend., 422; Truax v. Clute, 7 N. T. Leg. Obs., 163; King v. Dowdall, 2 Sandf. S. C., 131. 2. That an intervening Sunday is always included in the computation. 'Eastonv. Chamberlin, ZJLow.Yr., A12\ Taylor v. Corbiere, 8 id., 385; Ex parte Dodge, 7 Cow., 147; Broome v. Wellington, 1 Sandf. S. C., 664; King v. Dowdall, supra/ Franklin v. Bolden, 7 R. I., 215; Avery v. Stewart, 2 Conn., 69; Goswiler's Estate, 3 Penn., 200; Boydv. Comm., 1 Rob. (Ya.), 691; Anderson v. Baughman, 6 Mich., 298; Corey v. Biliker, 15 id., 314; Paine v. Mason, 7-Ohio St., 206; Wo-mack v. McAlvren, 9 Ind., 6; Robinson v. Foster, 12 Iowa, 186; Taylor v. Palmer, 31 Cal., 244; 5 Burn’s Justice, 970; Harrison’s Eng. Dig., 6326, 6328; 20 Miner’s Abr., 64; ITidd’s Pr.,474, 577, 676; Anon., 1 Strange, 86; Studleyv. Sturt, 2id., 782; id., 914; Leev. Carlton, 3Durn. &E., 642; Melntoshv. Railway Go., 1 Hare, 328; Broum v. Johnson, 1 Carr. & P., 440. 3. That sec. 96, ch. 120, E. S., was taken from New York, and it has been held in that state that intervening Sundays are to be included in computing time under that statute. Bissell v. Bissell, sufra. In adopting this statute, we adopted that rule of construction. 4. That where the limitation of time is prescribed in hours, and especially where the number of hours prescribed is merely a maximum of time, and the act may be performed within a shorter period, the rule of construction should be more strict, and not more liberal; and that Sunday hours are never excluded, except in the case of very short periods of time, and then only to prevent performance on Sunday itself. Franklin v. Bolden, sufra. 5. That whenever a period of time is fixed by statute, it is fair to presume that the legislature has considered the contingency of an intervening Sunday; that our statutes have in fact made all needed provisions for the Sabbath day; that there is no reason for excluding intervening Sundays which would not equally apply to intervening holidays; and that any departure from the plain rules of the statutes would only introduce extensive and unnecessary confusion. Counsel also criticised Anon., 2 Hill, 375, as not involving in fact any Sunday question, so that the remarks of the judge on that question were obiter j and the case of Whiffle v. Williams, 4 How. Pr., 28, as having been correctly decided upon erroneous reasons (Taylor v. Gorbiere, supra); and contended that their authority was destroyed by later cases. He also contended that Lowe v. Strmgham, 14 "Wis., 222, rested on the plain terms of sec. 134, ch. 120, E. S., and is inapplicable here; and that in JRidgley v. The State, 7 Wis., 661, there was really no intervening Sunday, as clearly appears from the record, but Sunday was the last day, and was properly excluded for that reason, and whatever is said about intervening Sundays is therefore obiter.</p> <p>argued that sec. 34, ch. 140, R. S., can have no application to a statute which prescribes hours for doing an act; that sec. 96, ch. 120, R. S., was not adopted from the New York statute construed in Bissell v. Bissell, 11 Barb., 96, nor from any other New York statute, but was apparently original in this state; that such a construction should be given it as will best subserve its object, and not be likely to work injustice; and that such a construction has already been given to a similar statute in Bidgley v. The State, 7 Wis., 661, and there is no reason for now departing from it. Tie also cited Lowe v. Stringham, 14 Wis., 222; Buek-staff v. Hanville, id., 77; Thayer v. Belt, 4 Pick., 354; Ga/ro-thers v. Wheeler, 1 Oregon, 194; Lee v. Carlton, 3 Durnf. & E., 642; and the following authorities in New York: Whipple v. Williams, 4 How. Pr., 28; 1 Hoff. Ch. Pr., 513; Van-derburgh v. Van Rensselaer, 6 Paige, 147. He further contended that the cases in 6 Mich., 298, and 15 id., 314, follow a statutory rule of that state, and have no application to this case.</p> | null | null | <p>
Computation of tim e: Intervening Sunday.
</p> <p>Where a statute gives a certain number of hours to perform an act, without mention of Sunday, the hours of an intervening Sunday are to be excluded from the computation. So held in respect to sec. 96, eh. 120, R. S., which permits a J. P. to continue for seventy-two hours, for consideration, a cause submitted to him, before rendering judgment.</p> | null | null | null | null | null | 63,702,308 | null | 0 | wis | S | t | Wisconsin Supreme Court | Wisconsin Supreme Court |
5,646,724 | Pope, Chief Judge. Defendant Fonte Deron Robinson was convicted by a jury of theft by receiving stolen property. He appeals following the denial of his motion and amended motions for new trial. 1. Defendant’s first and third enumerations challenge the sufficiency of the evidence. Specifically, citing Dyer v. State, 150 Ga. App. 760 (258 SE2d 620) (1979), defendant contends there was a fatal variance between the crime charged and the proof offered at trial in that the State’s evidence established the elements of theft by taking rather *126than theft by receiving. However, our review of the record and transcript shows that unlike Dyer, in which the evidence demanded the conclusion that the offense of theft by taking had been committed, the evidence in this case was sufficient to establish defendant’s guilt of either theft by taking or theft by receiving. “[T]here was no uncontradicted evidence which demanded a finding that [defendant] was the thief. ‘The facts in the instant case are(, therefore,) distinguishable from those in Dyer v. State, . . . , supra, as the (S)tate did not produce conclusive evidence, as in Dyer, that [defendant] committed theft by taking . . . (G)uilt of either theft by taking or receiving could be inferred. “ ‘In a theft by receiving stolen property case, where the principal thief is unknown, there is no burden on the (S)tate of proving that such thief was not the defendant.’ (Cit.)” (Cit.)’ Duke v. State, 153 Ga. App. 204, 205 (264 SE2d 721) (1980). See also Poole v. State, 144 Ga. App. 228, 229 (1) (240 SE2d 775) (1977) (eyewitness testimony that defendant was the thief). ‘(T)he jury would have been authorized to find the existence of each fact necessary to sustain a conviction of (theft by receiving). . . . (Any) contention that there was a variance between the (S)tate’s allegations and proof . . . misses the point that the fatal variance doctrine merely is concerned with proof introduced in support of allegations and is not concerned with the findings the jury may make after having heard the evidence. (Cit.)’ [Cit.] Moreover, even if there were a variance, it would not be so material as to be fatal. The crimes of theft by taking and theft by receiving are mutually exclusive. Sosbee v. State, 155 Ga. App. 196, 197 (270 SE2d 367) (1980). ‘On convicting [defendant] of the charge that he knowingly received the stolen (automobile), the (jury) necessarily determined that the (taking) had been committed by someone other than [defendant].’ ” Redding v. State, 192 Ga. App. 325, 326 (384 SE2d 910) (1989). Consequently, defendant’s first and third enumerations of error are without merit. 2. Defendant also contends that the trial court erred in refusing to charge the jury, upon written request by the State which was apparently adopted by the defendant, that the “essence of [the] crime of theft by receiving stolen property is that the defendant, . . . bought or obtained property which had been stolen by some person other than the defendant.” See Thomas v. State, 261 Ga. 854, 855 (1) (413 SE2d 196) (1992). The transcript shows that the trial court charged the language contained in the Suggested Pattern Jury Instructions, which tracks the language of the Code setting forth the offense of theft by receiving. The court also charged the jury that “proof from whom a stolen article was received is not an essential element of the crime of receiving stolen property.” Although it may have been better for the court to go further and specifically instruct the jury that an essential element of the offense is that the property be stolen by an*127other, “ [t] his . . . language implies that someone other than the accused person actually committed the taking of the property.” Dyer, 150 Ga. App. at 761. See also Duke v. State, 153 Ga. App. 204 (264 SE2d 721) (1980) (“ ‘ “where the principal thief is unknown, there is no burden on the [S]tate of proving such thief was not the defendant” ’ ”). After reviewing the charge in its entirety, we find the instructions given here were sufficient to inform the jury of the elements of the offense set forth in the indictment. Consequently, defendant’s second enumeration of error is without merit. Decided November 3, 1994. 3. Defendant next contends that the trial court improperly limited his closing argument, in that his counsel was not allowed to argue inferences from the evidence. Our review of the record shows that the objection made by the State and sustained by the court was to the effect that defense counsel was “quoting law” from cases concerning the requirement that someone other than the defendant actually have stolen the property. “Simply stated, the jury should receive law from the court and not from the attorneys.” Beck v. State, 181 Ga. App. 681, 683 (3) (353 SE2d 610) (1987). Moreover, although the discussion or citation of statutory law is not precluded, and counsel has every right to refer to applicable law during closing argument, the attorneys for the parties should not be allowed to supplement the court’s charge by quoting law during closing argument which is not going to be charged by the court. Conklin v. State, 254 Ga. 558, 570 (10) (331 SE2d 532) (1985); see also Freels v. State, 195 Ga. App. 609, 611 (2) (394 SE2d 405) (1990). While counsel is permitted to argue inferences from the evidence, and obviously to urge that the State has failed to prove its case, to the extent that counsel here was attempting to urge her argument to the jury concerning the variance between the allegata and probata, the trial court properly sustained the objection. That was the type of argument which should have been, and was, properly addressed to the trial court on motion for directed verdict. Lastly, we would also point out that what could be inferred from defendant’s testimony was that he had been the victim of a “scam”; under no construction would defendant’s testimony have authorized the conclusion that he should not be convicted of the crime charged because he was the principal thief as opposed to the recipient of stolen goods. Under these facts, we do not think that defense counsel’s argument was improperly limited. 4. It follows from the foregoing that we find no error in the denial of defendant’s motion for new trial. Judgment affirmed. McMurray, P. J., and Smith, J., concur. Carla J. Friend, for appellant. Lewis R. Slaton, District Attorney, Samuel W. Lengen, Frances E. Cullen, Assistant District Attorneys, for appellee. | opinion_xml_harvard | 1,096 | 2022-01-11 06:53:41.938418+00 | 020lead | t | f | 5,791,982 | Pope | null | U | f | Published | 0 | Robinson v. State | Robinson | ROBINSON v. State | null | null | null | null | null | null | null | null | null | 62,146,939 | A94A1692 | 0 | gactapp | SA | t | Court of Appeals of Georgia | Court of Appeals of Georgia |
7,688,844 | | ]WALTZER, Judge. This is an appeal from a judgment of the Civil District Court for the Parish of Orleans on the motion of Christina Wysocki, individually and as Administratrix of the Succession of James A. Wysocki, her late husband, to fix interest, costs, attorneys fees and amounts owed by New England Insurance Company pursuant to final, executory judgment of this Court in Sanders v. Wysocki, 92-1190 (La. App. 4 Cir. 1/27/94), 631 So.2d 1330, writ den. 637 So.2d 156 (La.1994). *715Wysocki sought recovery of interest accrued between the date on which Sanders filed suit against Wysocki’s husband for legal malpractice and the date on which Wysocki filed a cross-claim against New England, as well as attorneys’ fees incurred in the prosecution of her appeal from an adverse jury verdict in Sanders v. Wysocki, Id. STATEMENT OF FACTS This case arises out of a legal malpractice claim filed on 15 May 1986 by Willie Sanders against his former attorneys, Richard J. Garrett and James A. Wysocki, claiming the attorneys allowed his personal injury claim to prescribe. Sanders sought the legal services of Mr. Garrett, who referred the case to Mr. Wysocki; co-defendants were Bonnie L. Za-kotnik and the partnership of Heisler and Wysocki, Mr. Wysocki’s law firm. After Mr. Wysocki’s death, Mrs. Wysocki was substituted as a defendant. Thereafter, on 5 March 1991, nearly five years after the original suit was filed, she filed a third-party demand against Garrett’s malpractice insurer, New England. Wysocki carried no legal malpractice insurance. Sanders’ claims were settled prior to trial, leaving for the jury only the issues of Wysocki’s third-party claim for insurance coverage, penalties and attorneys’ fees against Garrett and RNew England. The parties stipulated on the record that should the jury find New England liable to Mrs. Wysocki, the amount of damages would be $301,000.00. After trial, the jury found that Wysocki was not an insured under the policy New England issued to Garrett, and that New England’s refusal to defend Mrs. Wysocki against Sanders’ claims was not arbitrary, capricious or without probable cause. On appeal, this Court found the jury verdict denying coverage to be manifestly erroneous, and affirmed the jury’s finding that New England’s denial of Wysocki’s cross-claim was not arbitrary, capricious or without probable cause. The decree provided: IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of third-party plaintiff CRISTINA L. WYSOCKI, INDIVIDUALLY AND AS ADMINISTRA-TRIX OF THE SUCCESSION OF JAMES A. WYSOCKI and against third-party defendant NEW ENGLAND INSURANCE COMPANY [92-1190 La.App. 4 Cir. 9] in the amount of THREE HUNDRED AND ONE THOUSAND DOLLARS AND NO/100 ($301,000.00), plus legal interest from the date of judicial demand, and all costs at the trial and appellate levels. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of third-party defendant NEW ENGLAND INSURANCE COMPANY and against third-party plaintiff CRISTINA L. WYSOCKI, INDIVIDUALLY AND AS ADMINISTRA-TRIX OF THE SUCCESSION OF JAMES A. WYSOCKI dismissing with prejudice her claims for a penalty. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of third-party defendant RICHARD GARRETT and against third-party plaintiff CRISTINA L. WYSOCKI, INDIVIDUALLY AND AS ADMINIS-TRATRIX OF THE SUCCESSION OF JAMES A. WYSOCKI dismissing with prejudice her claims against him. REVERSED AND RENDERED. Wysocki did not seek review of this Court’s decree. Defendants Garrett and New England sought writs from the Louisiana Supreme Court which were denied. On 6 May 1994, ITT Hartford paid to Wysocki’s attorneys two checks totalling $383,776.16, for which Wysocki’s counsel gave a release reserving rights to pursue additional amounts that may be due per the Judgment. On 27 June 1994, ITT Hartford paid Wy-socki’s counsel an additional $11,671.20, which, according to the terms of the receipt, “represents the payment of costs in the matter entitled Willie Sanders v. James A. Wy-socki, et al.” The receipt contains the same reservation of rights to pursue additional amounts “that may be due per the Judgment in the aforementioned.” 13FIRST ASSIGNMENT OF ERROR: Legal interest should have been awarded from the date the Sanders’ suit was filed, 15 Mag 1986. Imposition of legal interest in tort suits is governed by La.R.S. 13:4203, which provides: *716Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, “ex delicto”, which may be rendered by any of the courts. Wysocki relies on that statute and on the jurisprudence thereunder, holding that where tort defendants are solidarity liable, the interest on the judgment runs from the date of plaintiffs first judicial claim against all parties responsible for a single tortious occurrence. La.C.C.P. art. 1153; Ridenour v. Wausau Ins. Co., 627 So.2d 141, 142 (La. 1993); Burton v. Foret, 498 So.2d 706 (La. 1986). This line of authority is not applicable where, as here, the claim upon which judgment was rendered, and as to which interest is to be imposed, sounds in contract, not in tort. While Mr. Sanders’ claim was ex delic-to, for Mr. Wysocki’s negligent handling of his legal claim, Wysocki’s claim against his referring counsel’s insurer is ex contractu. See, Booth v. Fireman’s Fund Insurance Co., 253 La. 521, 218 So.2d 580, 583-584 (1968). Legal interest on judgments ex contractu is set in La.C.C. ai't. 2000 (formerly art. 1938): “[Djamages for delay in performance are measured by the interest on that sum from the time it is due,_” See, Teledyne Movible Offshore, Inc. v. C & K Offshore Co., 376 So.2d 357, 359 (La.App. 3rd Cir.1979). Wysocki argues that the sum was “due” when Mr. Sanders filed suit against Wysocki. In suits by an insured against his alleged insurer, legal interest runs from the date of judicial demand. Ainsworth v. Government Employees Ins. Co., 433 So.2d 709 (La.1983), citing the consolidated cases Block v. Reliance Insurance Co. and Faria v. Smoak, 433 So.2d 1040 (La.1983). This Court’s decree awarded “judgment herein in favor of third-party plaintiff CHRISTINA L. WYSOCKI, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE SUCCESSION OF JAMES A. WYSOCKI and against third party defendant NEW J¿ENGLAND INSURANCE COMPANY in the amount of ... ($301,000.00), plus legal interest from the date of judicial demand. ...” Wysocki, as “third-party plaintiff’ made judicial demand upon New England when she filed her third party demand on 5 March 1991. Prior to that time, New England had not received a judicial demand to defend, indemnify or insure against Mr. Wysocki’s legal malpractice. Indeed, it was not until this Court on 27 January 1994 rendered its opinion that New England knew that Mr. Wysocki would be deemed to be its insured under the policy it issued to Mi’. Garrett. We cannot say that the trial court’s plain reading of the appellate decree was erroneous as a matter of law, or manifestly erroneous as a finding of fact. The trial court had before it the facts that New England’s insurance contract did not name Mr. Wysocki, and that the law of this state making an attorney to whom a case is referred for trial an insured under the referring attorney’s legal malpractice policy was in sufficient doubt that the appellate opinion was rendered over two dissents with reasons, and with one concurrence based simply on the ambiguity of the insurance contract and one concurrence without reasons. The novelty of the holding is also reflected in the Louisiana Supreme Court’s denial of writs by a four to three margin. This Court affirmed the jury’s verdict that New England was not arbitrary or capricious in refusing to undertake Wysocki’s defense. In light of this background, we cannot say that the trial court was manifestly erroneous or clearly wrong in computing legal interest from the date on which Mrs. Wysocki made her judicial demand on New England. Our review of the record in its entirety convinces us that the trial judge’s holding is reasonable in light of the record. We are instructed that before a judgment may be reversed, we must find from the record that a reasonable factual basis does not exist, and that the record establishes the judgment is manifestly wrong. Stobart v. State through Dept, of Transp. and Development, 617 So.2d 880 (La.1993). Although we accord deference to the factfinder, we are cognizant of our constitutional duty to review facts1, not merely to Rdecide if we, as a reviewing court, would have found the facts *717differently, but to determine whether the trial court’s verdict was manifestly erroneous, clearly wrong based on the evidence, or clearly without evidentiary support. Am-brose v. New Orleans Police Department Ambulance Service, 639 So.2d 216, 221 (La. 1994). Because New England paid the principal amount of the judgment, together with the legal interest from the date of judicial demand, and paid the costs in the trial and appeal courts within a reasonable time from the Supreme Court’s denial of writs, Wy-socki’s argument concerning imputation of payment to interest is moot. SECOND ASSIGNMENT OF ERROR: The trial court should have awarded Wysocki reimbursement of her attorneys’ fees for the appeal. In support of this assignment of error, Wysocki relies on the provision in the appellate judgment that “New England is liable for attorneys [sic] fees and costs incurred by the late James Wysocki, Mrs. Wy-socki, and the estate of James Wysocki incurred [sic] in defending the suit.” However, the opinion continues, holding, “It was stipulated by counsel for New England that the total amount of damages sustained by Mrs. Wysocki and the estate of James Wysocki was $301,000.00.” In its decree, which followed the opinion, this Court awarded the $301,000.00 stipulated by the parties, “plus legal interest from the date of judicial demand, and all costs at the trial and appellate levels.” Wysocki did not seek review of the appellate court’s judgment awarding only principal, interest and costs. The judgment is final between the parties, and we find no error in the trial court’s refusal to award appellate attorneys’ fees. The trial court determined that the “costs” awarded by this Court’s decree did not include attorneys’ fees. Since it is a recognized principle of law that attorneys’ fees and costs are two quite separate and distinct items of recovery, neither of which is included within the other, the trial judge correctly held that since this Court’s decree did not include an award of appellate counsel’s fees, he was without jurisdiction to modify the decree, and grant such an award by extending the interpretation of “costs” to include attorneys’ fees. | «THIRD ASSIGNMENT OF ERROR: Wy-socki is entitled to penalties under La.R.S. 22:658(B)(1) for New England’s arbitrary and capricious failure to defend and indemnify Wysocki and his estate. This issue was raised in Wysocki’s original appeal of the judgment based on the adverse jury verdict to this Court, and was resolved in New England’s favor. Even considering the ambiguity of the policy insofar as it defined an insured, we are unable to say that Mrs. Wysocki met her burden of establishing that New England’s denial of payment and/or a defense was arbitrary, capricious or without probable cause. Sanders v. Wysocki 631 So.2d at 1335. The trial jury, this Court, the Louisiana Supreme Court, and the trial judge have all agreed that New England should not be subjected to penalties for refusal to undertake Wysocki’s defense. We find no manifest error below and will not disturb those conclusions. CONCLUSION Wysocki’s assignments of error are without merit. The judgment of the trial court is affirmed. AFFIRMED. ARMSTRONG, J., concurs. . See, LSA-Const. Art. 5, section 10(B). | opinion_xml_harvard | 1,907 | 2022-07-30 03:25:04.522924+00 | 020lead | t | f | 7,751,742 | Armstrong, Schott, Waltzer | null | U | f | Published | 0 | Sanders v. Wysocki | Sanders | Willie SANDERS v. James A. WYSOCKI, Bonnie L. Zakotnik, Richard Garrett, and the Partnership of Heisler and Wysocki | null | null | null | null | null | null | null | null | null | 64,756,618 | No. 94-CA-2062 | 0 | lactapp | SA | t | Louisiana Court of Appeal | Louisiana Court of Appeal |
391,246 | 651 F.2d 436 107 L.R.R.M. (BNA) 3351 , 92 Lab.Cas. P 13,011 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, Respondent. No. 79-1439. United States Court of Appeals, Sixth Circuit. March 2, 1981. Elliott Moore, Howard E. Perlstein, Barbara A. Atkin, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D. C., Raymond A. Jacobson, Director, Region 26, N.L.R.B., Memphis, Tenn., for petitioner. J. Edward Wise, David P. Jaqua, Armstrong, Allen Braden, Goodman, McBride & Prewitt, Memphis, Tenn., for respondent. 1 Before MERRITT and KENNEDY, Circuit Judges, ANNA DIGGS TAYLOR, District Judge. * ORDER 2 The National Labor Relations Board petitions for enforcement of an order issued by the Board on June 4, 1979, finding that the defendant violated Sections 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. § 158 , by discriminatorily refusing to hire John Mitchell because he had engaged in protected union activity, and by informing O. D. Lofton, a job applicant later hired, that it would not hire John Mitchell because of Mitchell's protected union activities. The Board's decision is reported at 242 NLRB No. 119 . After a full hearing on these matters, the administrative law judge filed an opinion containing his findings of fact and conclusions of law. The Board adopted his findings and conclusions. 3 The ALJ found that while acting as president of the local, Mr. Mitchell engaged in a heated conversation with Bob Kirksey, manager of defendant's Memphis terminal, during which he threatened to break both of Kirksey's arms and legs. The ALJ further found that although Mitchell's threat was made in the context of a labor relations discussion it was not protected under the Act, that these threats were, in fact, a matter of genuine concern to Kirksey and that Kirksey's reliance on Mitchell's threats were well-founded and legitimate reasons for not hiring him. In his opinion, the ALJ commented that "Mitchell's conduct and statements (were) so flagrant, opprobrious and egregious at (sic) to have exceeded the bounds of the protection afforded by the Act. Indeed, a punch in the nose pales in comparison to Mitchell's admitted statements to Kirksey." Finally, the ALJ found that neither the company in general, nor Kirksey in particular, entertained a general union animus, and had hired former union officials. Despite these findings which were supported by substantial evidence on the record, the ALJ concluded that there was at least a mixed motive for not hiring Mitchell based upon his view of certain statements attributed to Kirksey concerning Mitchell's past handling of a particular labor dispute. 4 The proper test in determining whether the discharge or failure to hire an employee is an unfair labor practice is whether the anti-union animus was a dominant motive. Thus when both a "good and bad" reason for discharge or failing to hire exist, the burden is upon the General Counsel to establish that in the absence of protected activities, the discharge would not have taken place. Coletti's Furniture, Inc. v. N.L.R.B., 550 F.2d 1292 , 1294 (1st Cir. 1977). In Wright Line, 251 NLRB No. 150 , 105 LRRM 1169 (1980), the Board, using an analysis akin to that used by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977), set forth a test of causation for cases alleging violations of Section 8(a)(3) of the Act. Initially, the General Counsel must make a prima facie showing that an illegal purpose was a "motivating factor" in the employer's decision. Once the General Counsel has established a prima facie case, the employer then has the burden of demonstrating that the same action would have taken place even in the absence of the illegal reason. 5 In the instant case the ALJ found that Kirksey's reliance on Mitchell's threats were well-founded and legitimate reasons for not hiring him. There was no evidence that Mitchell's threats were merely a pretext used as an excuse for not hiring him because of his union activity. N.L.R.B. v. Howell Automatic Machine Company, 454 F.2d 1077 (6th Cir. 1972). The ALJ's conclusion that defendant violated 8(a)(3) and (1) of the Act cannot withstand scrutiny under Coletti and Wright Line. 6 Furthermore, there was no evidence that Kirksey's explanation to O. D. Lofton, a former union officer hired by defendant as a driver, as to why he would not hire Mitchell tended to interfere with Lofton's free exercise of his employee rights under the Act. 7 For the reasons outlined above, enforcement of the order of the National Labor Relations Board in this case is denied. * Honorable Anna Diggs Taylor, District Judge, United States District Court, Eastern District of Michigan, sitting by designation | opinion_html_with_citations | 787 | 2011-08-23 09:17:49+00 | 010combined | f | f | 391,246 | Anna, Diggs, Kennedy, Merritt, Taylor | null | RU | f | Published | 11 | National Labor Relations Board v. Consolidated Freightways Corporation of Delaware | null | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, Respondent | null | null | <parties data-order="0" data-type="parties" id="b496-7">
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, Respondent.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b496-9">
No. 79-1439.
</docketnumber><br><court data-order="2" data-type="court" id="b496-10">
United States Court of Appeals, Sixth Circuit.
</court><br><decisiondate data-order="3" data-type="decisiondate" id="b496-12">
March 2, 1981.
</decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b496-22">
Elliott Moore, Howard E. Perlstein, Barbara A. Atkin, Deputy Associate Gen. Coun
<span citation-index="1" class="star-pagination" label="437">
*437
</span>
sel, N.L.R.B., Washington, D. C., Raymond A. Jacobson, Director, Region 26, N.L.R.B., Memphis, Tenn., for petitioner.
</attorneys><br><attorneys data-order="5" data-type="attorneys" id="b497-5">
J. Edward Wise, David P. Jaqua, Armstrong, Allen Braden, Goodman, McBride & Prewitt, Memphis, Tenn., for respondent.
</attorneys><br><p data-order="6" data-type="judges" id="b497-6">
Before MERRITT and KENNEDY, Circuit Judges, ANNA DIGGS TAYLOR, District Judge.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
</p><div class="footnotes"><div class="footnote" data-order="7" data-type="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b497-10">
Honorable Anna Diggs Taylor, District Judge, United States District Court, Eastern District of Michigan, sitting by designation.
</p>
</div></div> | null | null | null | null | null | null | 764,195 | 79-1439 | 0 | ca6 | F | t | Sixth Circuit | Court of Appeals for the Sixth Circuit |
7,833,561 | Bissell, P. J., delivered the opinion of the court. In the statement of what is requisite to an apprehension of the suit and to an application of the law which we conclude *324must control its decision, we shall very closely adhere to the fkcts recited in the findings of the court. They may be occasionally supplemented by our own conclusions respecting some matters, but in no instance will there be any departure from what the trial court has stated. The force and effect of these findings are thoroughly settled. As a general proposition, parties are not entitled to attack a judgment on the claim that it is unsupported by the evidence. Wherever the controversy, in its important and essential features, rests on conflicting testimony, the appellant must be able to demonstrate error of law to maintain his appeal. Nevertheless, we have read this very voluminous record, and while we are compelled to affirm the judgment, notwithstanding our conclusion that there is enough in the case to show that, under some circumstances and with proper parties, what was done by the appellee, Chappell, would subject him to legal responsibility, we are satisfied the trial court did not err in its conclusions respecting some facts which we deem decisive of the action. In 1887, The Cincinnati-Colorado Coal, Coke and Iron Company, which is designated in the evidence and will be hereafter referred to as the Four C Company, was the owner of some lands in Las Animas county. They were coal lands, and apparently had been somewhat developed by that corporation. The company had not reached a paying basis and was without sufficient capital to proceed with the satisfactory development of the mines. At this time, the appellant, Beshoar, with some other persons, was the owner of the capital stock of the Four C Company. On behalf of his company he entered into negotiations with Chappell which looked to the organization of a new corporation on a basis which would permit funds to be raised to open up the property. The parties concluded the thing was feasible, and Chappell organized a new company called The Grey Creek Coal and Coking Company. The capital stock of this latter corporation was two thousand shares of one hundred dollars each. This new company was organized by the election of officers and a board *325of directors, and then received from Beshoar, on behalf of himself and the stockholders of the Four C Company, a written proposition which substantially was that the Four C Company would sell to the Grey Creek Coal and Coking Company their real estate, which was described in the proposition, for one thousand shares of the capital stock of the company. In the proposition nothing whatever was said in regard to the remaining thousand shares. The evidence, however, discloses that it was in the contemplation of the parties that the thousand shares of stock should be sold at sixty cents on the dollar to produce a development fund of sixty thousand dollars, which should be devoted to opening up the property. Evidently the stockholders of the Four C Company were willing to surrender one half of their holdings for this purpose, and in place of cancelling, transferring or surrendering any of the Four C Company’s stock, pursued this plan. There were some limitations of time which were to control Chappell in his scheme to float the new company, but this is not important to the dispute. This proposition was submitted at a directors’ meeting, held on the 22d of September, 1887. It was accepted, and what was done by the Grey Creek Company will be assumed to be enough to secure them in their legal rights. The project was carried out by the Four C Company, which conveyed the lands to the other corporation. The capital stock of the Grej1- Creek Company was issued, nine hundred shares of it went to Beshoar, according to the arrangement, one hundred which he had agreed to give Chappell for his services in the premises were turned over to him, and the remaining thousand shares were left for sale to raise the development fund. The trial court finds that this thousand shares of stock was sold by Chappell for sixty thousand dollars in cash, which went into the treasury of the company, and was applied by its officers and directory to the development of the lands which had been transferred. In stating this fact, we do not express our opinion concerning its just-mess. We expressly decline to yield our assent to the result respecting this matter, for we desire that the affirmance shall *326not extend so far as to conclude anjr parties in any subsequent litigation which may be instituted regarding it. The stock was deposited in the First National Bank of Trinidad, subject to sale and payment of the subscription price, and when the whole sum of sixty thousand dollars was paid in and properly applied, the stock was turned over to the purchasers. The court finds the money was actually put into the development of the property. To illustrate the animus and modus, we must now state what is really the occasion of the suits. On the 26th of September, a written agreement was entered into between The Colorado Coal and Iron Company and Chappell, which need only be stated to disclose the hidden motives. It was recited therein that Chappell had procured from Beshoar and others an option on a controlling interest in the stock of the Grey Creek Company, and he undertook to obtain from that company a lease of the estate for a term of twenty years on sundry conditions. The only one of importance is that which looked to the expenditure of money for the development of the property. The Colorado Coal and Iron Company undertook to spend sixty thousand dollars for this purpose. It will be observed there was a very strange coincidence between the amount which The C. C. & I. Co. agreed to spend and the sum for which Chappell undertook to sell the Grey Creek Company’s stock. The evidence likewise disclosed that as fast as money was disbursed by him as an officer of the Grey Creek Company in payment of the bills which were incurred in the development, these vouchers were turned over to the manager of The C. C. & I. Co., who honored them by checks of that corporation for their face value. It thus resulted that what Chappell paid out with bis right hand for the Grey Creek Company he instantly got back in his left from The C. C. & I. Co. On the 27th of September, which was the day following the execution of the agreement between Chappell and The C. C. & I. Co., the Grey Creek Company and The C. C. & I. Co. made an agreement of a lease which contained the provisions and various conditions specified in the agreement bet ween. Chappell and *327that corporation. It was executed by the lessors, through Chappell, the vice president, and by the proper officers on behalf of The C. C. & I. Co. Under the provisions of this lease, The C. C. & I. Co. spent sixty thousand dollars, opened up the property, paid royalties from time to time, but in the end suspended operations. The transaction concerning this stock is not creditable to the appellee, Chappell, and we cannot close our mental vision to what is so evident from the record that the scheme was one cunningly devised for the appropriation without cost to.him of one half of the capital stock of the Grey Creek Company. This in no wise militates against what we said at the outset concerning the force of the court’s conclusion on matters of fact, because our.opinion in no wise affects the legal result which we have reached. We have simply given expression to our doubts respecting this matter, for, if the thing be possible, we desire to so far leave the matter open that the Grey Creek Company may ultimately be able to establish and enforce its rights. We have stated enough to show the alleged basis for the suits which Beshoar afterwards brought. Beshoar claims that for a long time he was ignorant of the situation, and without knowledge of what Chappell had done with reference to the disposition of the Grey Creek Company’s stock, and was uninformed concerning this contract between The C. C. & I. Co. and Chappell. There was a change in the management of The C. C. & I. Co., and in the investigations which followed it, this agreement between Chappell and the company came to the surface, and Beshoar learned of it. How little or how much he knew before of the transaction is not easily ascertained from the testimony. The record shows the lease to The C. C. & I. Co. was made in February, 1.888, and shortly thereafter that company went into possession of the property, and engaged in its development. Beshoar knew of the lease, and had frequent conferences with Chappell concerning its terms. Whether he had any other information which should have advised him concerning the exact nature of the transaction is not apparent. *328He was not told of this contract between Chappell and The C. C. & I. Co., nor did he learn of it until about the middle of 1890, when he was fully advised concerning its existence and its terms. After the resurrection of this agreement, Beshoar and The C. C. & I. Co. made an arrangement to start a litigation to hold Chappell responsible for what he had done, and establish Beshoar’s rights as a stockholder, for the benefit both of Beshoar and The C. C. & I. Co. The arrangement which was made provided substantially for the advancement to Beshoar of six thousand dollars, or, at all events, he was in some way to receive that amount of money, and The C. C. & I. Co. undertook the prosecution of such suits as might be necessary to establish Beshoar’s rights. The C. C. & I. Co. were to pay all costs, furnish an attorney, and, in general, maintain the prosecution. Thereupon, three suits were begun. The first we will call “ 3209,” the second “ 3362,” which are cases by Beshoar against divers defendants, and the third “3218,” which is the Grey Creek Company against Beshoar and MacKenzie. We will only state enough of the purposes of these actions,to illustrate their scope and the object of the pleader. In the first, Beshoar charged that Chappell had sold one thousand shares of stock and appropriated the proceeds to his own use ; further, that he had issued other stock and disposed of it, appropriating the results of the sales. In “ 3362,” Beshoar charged that all the stock which had been issued, other than that which had come to him, had been issued without any consideration whatever, and was fraudulent and void in the holder’s hands, and he sought to have it cancelled, thereby increasing the value of his own holdings. In “ 3218,” the Grey Creek Company charged that some certificates of stock had been irregularly issued, and had illegally come into the possession of Beshoar, and his refusal to surrender them for cancellation. The company prayed a decree that Beshoar be compelled to surrender them for destruction. All these three suits were ultimately consolidated and tried as one case. There was no rule compelling the parties to replead, nor *329were the issues in the several suits in any wise changed by the order. Nothing farther need be stated concerning the object of the suits, or the general averments of the various pleadings. This much further must be stated, because it is of great gravity and importance in forcing the result. It will be observed nothing has been said concerning any statement in the pleadings as to the reason why the suit was brought by Beshoar, and why it was not brought by the Grey Creek Company against Chappell. It is very evident, as a general proposition, that if Chappell had sold the stock of the company while acting as an officer or director of it, or had appropriated the proceeds of it while acting in any such capacity, he would be liable to answer to the company for whatever he might have received. It is equally true, if he had issued the stock without consideration, and the stock had ultimately come back into his possession, the company would have had the legal right to compel its surrender and cancellation on making out a proper case. Beshoar was a stockholder, and, to the extent of his holding, interested in the affairs, management and prosperity of the new company. His rights as a stockholder need not be here discussed, but they are referred to in this manner to emphasize the omission in his pleading. There is nothing in either of the complaints which he filed showing a demand on the officers of the Grey Creek Company with reference to the enforcement of the corporate rights, nor did he, as plaintiff, allege, in either one of the suits, anything which might operate by way of excuse for the omission of this request. There is nothing to show an attempt to secure action by the officers or board of directors of the company, or concurrent action with the other Stockholders to compel those people to proceed. The twenty-first finding of fact is very specific and direct on this point. It likewise demonstrates that the directors of the Grey Creek Company, other than Chappell, were in no manner connected with the contract which Chappell had made with The C. C. & I. Co., and were perfectly free to act as they might be advised for the protection of the stockholders of the corporation *330■which they represented. We quite concur with the court in its conclusion that the evidence does not show any such condition of affairs respecting the management and directory of the Grey Creek Company as tends to excuse the stockholder from preferring a request for corporate action. What has been stated suggests the only two propositions which we deem it essential to discuss or decide. The first respects the interest in which the litigation is being prosecuted, and the second is the failure of the plaintiff to either plead or prove a cause of action on his behalf as a stockholder. If this litigation had been honestly instituted by a stockholder for the protection of his and other stockholders’ rights, and was not so evidently a suit instigated by a rival company for its own interests, we should strive to be astute to discover some remedy for a very evident wrong. The far reaching and flexible nature of equitable powers might, with proper proof and under other circumstances, enable us to do justice as between the stockholders of the Grey Creek Company and Chappell, its officer and director. But we have no inclination to struggle for this result, because it is a well settled principle that whenever it is made to appear that the suit was .not begun in good faith by a shareholder for the protection of his rights, but was in reality originated and prosecuted by another corporation for its own benefit, the court will consider what led the plaintiff to institute his suit, and, finding some other reason than a desire to protect stockholders’ rights, will refuse to entertain the bill. Forrest v. Manchester, etc., R'way Co., 4 De G., F. & J. 19 (65 Eng. Chan., 125); Filder v. London, etc., R'way Co., 1 H. & M. 489; Belmont v. Erie R'way Co. et al., 52 Barb. 637; Waterbury v. The Merchants’ Union Express Co., 50 Barb. 157; Camblos v. The P. & R. R. R. Co., 4 Brewster, 563. Naturally, the cases respecting this proposition are limited, since the question could not often arise. It seldom happens that shareholders, otherwise than for the protection of their own interests, come into courts of equity to seek redress for wrongs done the corporation of which they are *331members. But wherever it is apparent that this has been done, the courts have never hesitated to send the plaintiff out of court and refuse him relief. In enforcing the doctrine, the courts do not attempt to balance the relative advantages to the plaintiff stockholder, or to the company which has assumed the burden of the litigation, for some benefit which they expect to derive from the judgment. It is enough that another company directs the suit and pays the costs. It would be very easy to demonstrate that in this particular litigation the balance of advantage accrued to The C. C. & I. Co., which is the controlling spirit in this litigation. The agreement which they entered into with Beshoar would give them control of a majority of the stock of the Grey Creek Company, and render it possible for them to enforce the .agreement which they had made with Beshoar to secure a new lease on the Grey Creek property at a very large reduction in the rental. The property must have been of value to them, and the lease a gain, or the contract would never have been made. It may be conceded that Beshoar would likewise have been benefited, if either of his two suits had been successful. In the one case a large amount of money would go into the treasury of the Grey Creek Company, and he would be entitled to his proportionate share of it; and in the other he would become substantially the only stockholder, and would therefore reap very much greater ultimate benefit than would have come to him if the total issue of two thousand shares was adjudged valid. We are not permitted to speculate about where the preponderating interest lies. It would be a disadvantage to the Grey Creek Company, as a corporation, to reduce the rental which they were entitled to receive for the use and occupancy of their property. This benefit would have inured to The C. C. & I. Co., which controls the litigation, and these two facts forbid this stockholder to maintain his present suit. The other consideration is equally fatal. The plaintiff was without capacity to maintain the suit. It is too late now to insist that a stockholder as such is never without the right *332to file a bill for the protection of his interests, or even for the redress of what may be termed a corporate wrong. In the increasing diversity of corporate organizations, it not infrequently happens that the control and management of their affairs fall into the hands of unscrupulous persons, who do not hesitate to use the corporate powers to their personal advantage, and to the destruction of the rights of co-stockholders. This increasing danger and difficulty has often led to the institution of suits for the protection of stockholders. The powers of a court, of equity are not often vainly sought to redress a manifest injury where the corporate authorities have refused to proceed. This is no infraction of the general rule that corporations must act by properly constituted authority and organization, and by corporate methods and in corporate ways. The necessity of effort to procure such action has been settled by a series of well considered cases. The question was set at rest in this state in an exceedingly well considered and able opinion by the present chief justice of the supreme court. To the fullest extent that learned court indorsed the doctrine of the English cases, and expressed its approval of the leading case in the supreme court of the United States. Miller et al. v. Murray, 17 Colo. 408; Hawes v. Oakland, 104 U. S. 450; Foss v. Harbottle, 24 Eng. Chan. 461; MacDougal v. Gardiner, 1 L. R. Chan. D. 13; Memphis City v. Dean, 8 Wall. 65. Tested by this rale, none of the suits brought by Beshoar can be maintained. His pleadings are totally wanting in all averments, either of request or of excuse, and, being bills on behalf of a stockholder to redress a corporate injury, they do not state a cause of action. We might be inclined to disregard this defect if the case as he made it contained the elements of an excuse for his failure. None was proven and none exists. The court very properly found that none of the other directors or officers of the Grey Creek Company were concerned in the contract which Chappell made with the C. C. & I. corporation, or had anything whatever to do with reference to those acts which Beshoar charges were a *333fraud on the Grey Creek Company. It was found that Beshoar made no request of the Grey Creek officers or directors to institute a suit against Chappell to compel him either to account for the stock or the money which he had received from the sale of it. As Chappell was the onty person concerned in the diversion of the funds or in the appropriation of the stock, we cannot presume that the Grey Creek Company as a corporation, would have failed on request to institute the proper suit for the enforcement of the corporate rights. It was Beshoar’s duty to show that he had exerted all means within his power to obtain by corporate action the redress of his grievances. The court must be satisfied that all honest and reasonable efforts were resorted to to the accomplishment of that end. Failing in this, he will not be permitted to maintain his suit. There is nothing in the present case which brings the plaintiff within the rule, and there is no testimony in the record which permits us to assert for his benefit what, under other circumstances, might prove operative as an excuse. The suit was,not honestly instituted by Beshoar for his own benefit, and he was without capacity to maintain it. The judgment as to him must be affirmed. We desire, however, to state that this affirmance shall not be operative to conclude the Grey Creek Company, or any stockholder of that corporation, from instituting and maintaining such suit as they may be advised concerning this matter, providing otherwise the legal right still remains with them. Affirmed. | opinion_xml_harvard | 3,709 | 2022-09-07 23:34:33.318468+00 | 020lead | t | f | 7,886,804 | Bissell | null | U | f | Published | 0 | Beshoar v. Chappell | Beshoar | Beshoar v. Chappell | <p>
Error to the District Court of Pueblo County.
</p> | null | null | <p>1. COBPOBATIONS — STOCKHOLDEBS’ ACTIONS — ILLUSOBY SUITS.</p> <p>Whenever it is made to appear that a suit was not begun in good faith by a shareholder for the protection of his rights, but in reality originated and prosecuted by another corporation for its own benefit, the court will consider what led the plaintiff to institute his suit, and, finding some other reason than a desire to protect stockholders’ rights, will refuse to entertain the bill.</p> <p>2. Same — Stockholdebs’ Suits — Pleadings.</p> <p>The complaint of a stockholder to redress a corporate injury, which contains no averments either of request upon the corporate authorities to institute the action or of excuse for not so doing, does not state a cause of action. It should show that all honest and reasonable efforts had been resorted to by the plaintiff to obtain corporate action to the redress of the grievance.</p> | null | null | null | null | null | 64,979,090 | null | 0 | coloctapp | SA | t | Colorado Court of Appeals | Colorado Court of Appeals |
6,399,327 | LAVELLE, P.J., Before the court are defendants’ preliminary objections in the nature of demurrers to the third amended complaint. Distilled from the demurrers emerges the sole issue — whether the owner of property, who acquires title after an alleged taking, has the right to seek condemnation damages. The case has had a Byzantine procedural history as evidenced by the docket entries attached hereto. The thrust of the third amended complaint is that, in August of 1972, defendants took plaintiffs’ land for various easements without payment of just compensation and the court should compel defendants to commence eminent domain proceedings. Having carefully perused the briefs and weighed the arguments _ of counsel, we conclude that the third amended complaint must be dismissed. DISCUSSION We start with the principle that a demurrer should only be sustained where, on the face of the complaint, admitting every well-pleaded fact, as well as inferences reasonably deducible therefrom, plaintiffs’ claim cannot be sustained. Any doubt *349should be resolved in favor of overruling the demurrer. Diekman v. Wrightstown Twp., 70 Pa. Commw. 245, 453 A.2d 366 (1982). . The well-pleaded facts in the third amended complaint disclose that on or about February 18, 1977, plaintiffs purchased a tract of land located at the southeast corner of Sixth and Mahoning Streets in the Borough of Lehighton; that a survey of the tract showed that a borough alley, a Union Gas line, and a municipal sewer line installed under the alley were encroaching upon the southern portion of plaintiffs’ property; and that the encroachment began in the summer of 1972 when defendants relocated the alley, gas line and sewer line in order to accommodate the construction of an apartment building on an adjacent landowner’s property. Defendants contend that the foregoing facts .preclude plaintiffs from condemnation damages because they did not own the property in 1972, the date of the alleged taking. Defendants point us to á long line of appellate cases which hold that the right to condemnation damages belongs only to the person owning the property at the time of condemnation. Kaufmann v. Pittsburgh, 248 Pa. 41, 93 Atl. 779 (1915); Smith v. Commonwealth, 351 Pa. 68, 40 A.2d 383 (1945); Hunter v. McKlveen, 353 Pa. 357, 45 A.2d 222 (1946); Appeal of Powell, 385 Pa. 467, 123 A.2d 650 (1956); Re Petition of Governor Mifflin, 401 Pa. 387, 164 A.2d 221 (1960); Henry v. County of Allegheny, 403 Pa. 272, 169 A.2d 874 (1961); Rednor & Kline, Inc. v. Department of Highways, 413 Pa. 119, 196 A.2d 355 (1964); Braucher v. Somerset Borough, 58 Pa. Super. 130 (1914); Petition of Butler County Com’rs., 141 Pa. Super. 597, 15 A.2d 504 (1940). *350Despite this formidable array of case law, plaintiffs argue that they have a clear legal right to compel an eminent domain proceeding because of the amendments made to the Eminent Domain Code in 1964. Specifically, they cite section 402(b), which states: “The declaration of taking shall be in writing and executed by the condemnor, shall be captioned as a proceeding in rem, . . . Further, they point to the comment following section 402 which states: “This section changes existing law and represents a distinct trend away from the former concept of condemnation in Pennsylvania, which has always been concerned with the property interest of the person rather than with the property. In other words, condemnation under this provision is now a proceeding in rem.” (Emphasis supplied.) Defendants counter by arguing that the language in the 1964 Eminent Domain Code Amendment alluding to the “in rem” nature of condemnation cases refers to procedure only and it was not intended to affect the substantive rights of the condemnor or condemnee. Counsel have not cited, in brief or oral argument, any Pennsylvania appellate court case which clearly decides this issue. We are not willing to embrace the “in rem proceeding” interpretation espoused by plaintiffs. To do so would require us to repudiate a singularly unwavering body of Pennsylvania case law which requires ownership at the time of condemnation to gain access to money damages. We would also have to endow the words “in rem” with procreative power far beyond what we believe the legislature intended. The “in rem” language of 402(b) was inserted, in' our view, to bring Pennsyl*351vania condemnation procedure in line with federal eminent domain procedure. It was not intended to create a new right or enlarge the substantive rights of the parties as expressed in Pennsylvania case law from the early 1900’s. See comments under section 402 of Eminent Domain Act. In his frequently quoted treatise on eminent domain in Pennsylvania, Edward L. Snitzer reviews all aspects of the law of eminent domain and the impact of the 1964 Amendment of the law. In his comments on the definition of “Condemnee” under the 1964 Amendment (section 201(2)), Snitzer points out that “the claim for just compensation is personal; only the owner of the property interest at the time of the condemnation is entitled to receive the damages from the condemnor. Quade v. The Columbia and Post Deposit Railway Company, 233 Pa. 20 (1911). Consequently, a subsequent holder of the property will not be entitled to damages. Kaufman v. Pittsburgh, 248 Pa. 41 (1915).” The Commonwealth Court, in a case involving a post-1964 taking, said in dicta: “We accept as axiomatic the contention . . . that the right to condemnation damages under the code belongs only to the person or persons who own the land when the condemnation takes place. Hunter v. McKlveen, 353 Pa. 357, 45 A.2d 222 (1946).” In re Commonwealth Department of Transportation Right of Way, 71 Pa. Commw. 224, 455 A.2d 229 (1983). We believe that this “axiomatic” dicta correctly states current Pennsylvania law. Because plaintiffs were not the owners of the property at the time of the alleged taking, they have no clear legal right to be protected. Their complaint cannot withstand defendants’ demurrer. Therefore, we issue the following *352ORDER And now, this May 30, 1985, upon consideration of defendants’ preliminary objections in the nature of a demurrer, it is hereby ordered and decreed that said preliminary objections be and are hereby sustained. The third amended complaint is hereby dismissed. | opinion_xml_harvard | 1,030 | 2022-06-25 00:28:32.209757+00 | 020lead | t | f | 6,525,646 | Lavelle | null | U | f | Published | 0 | Hauser v. Borough of Lehighton | Hauser | Hauser v. Borough of Lehighton | null | null | null | null | null | null | null | null | null | 63,455,494 | no. 82 E 26 | 0 | pactcomplcarbon | ST | f | Carbon County Court of Common Pleas | Pennsylvania Court of Common Pleas, Carbon County |
3,094,758 | NO. 07-12-0333-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C JANUARY 3, 2013 SKYLER DANE FERGUSON, APPELLANT V. THE STATE OF TEXAS, APPELLEE FROM THE 242[ND] DISTRICT COURT OF HALE COUNTY; NO. B 18004-0904; HONORABLE ED SELF, JUDGE Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION In July 2011, Appellant, Skyler Dane Ferguson, was placed on deferred adjudication community supervision for eight years for possession of methamphetamine in an amount of four grams or more but less than 200. The State moved to proceed with an adjudication of guilt in early 2012 and following a hearing, notwithstanding the trial court's finding that Appellant had violated the terms and conditions of community supervision, she was continued on community supervision with modified terms. Later in 2012, the State again moved to proceed with an adjudication of guilt for violations of her new terms and conditions of community supervision. Following a hearing at which Appellant entered a plea of true to the allegations, the trial court heard evidence and adjudicated her guilty of the original offense and assessed punishment at ten years confinement and a fine of $10,000. In presenting this appeal, counsel has filed an Anders brief in support of a motion to withdraw. We grant counsels motion and affirm. In support of his motion to withdraw, counsel certifies he has conducted a conscientious examination of the record and, in his opinion, the record reflects no potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738 , 744-45, 87 S. Ct. 1396 , 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403 , 406 (Tex.Crim.App. 2008). Counsel candidly discusses why, under the controlling authorities, the appeal is frivolous. See High v. State, 573 S.W.2d 807 , 813 (Tex.Crim.App. 1978). Counsel has demonstrated that he has complied with the requirements of Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying her of her right to file a pro se response if she desired to do so, and (3) informing her of her right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408 . By letter, this Court granted Appellant an opportunity to exercise her right to file a response to counsels brief, should she be so inclined. Id. at 409 n.23. Appellant did not file a response. Neither did the State favor us with a brief. By the Anders brief, counsel candidly concedes there are no arguable issues to present to this Court. We review an appeal from a trial court's order adjudicating guilt in the same manner as a revocation hearing. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2012). When reviewing an order revoking community supervision imposed under an order of deferred adjudication, the sole question before this Court is whether the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759 , 763 (Tex.Crim.App. 2006); Cardona v. State, 665 S.W.2d 492 , 493 (Tex.Crim.App. 1984); Jackson v. State, 645 S.W.2d 303 , 305 (Tex.Crim.App. 1983). In a revocation proceeding, the State must prove by a preponderance of the evidence that the probationer violated a condition of community supervision as alleged in the motion. Cobb v. State, 851 S.W.2d 871 , 874 (Tex.Crim.App. 1993). If the State fails to meet its burden of proof, the trial court abuses its discretion in revoking community supervision. Cardona, 665 S.W.2d at 494 . In determining the sufficiency of the evidence to sustain a revocation, we view the evidence in the light most favorable to the trial court's ruling. Jones v. State, 589 S.W.2d 419 , 421 (Tex.Crim.App. 1979). Additionally, a plea of true standing alone is sufficient to support a trial courts revocation order. Moses v. State, 590 S.W.2d 469 , 470 (Tex.Crim.App. 1979). We have independently examined the entire record to determine whether there are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488 U.S. 75 , 109 S. Ct. 346 , 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409 ; Stafford v. State, 813 S.W.2d 503 , 511 (Tex.Crim.App. 1991). We have found no such issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing the record and counsels brief, we agree with counsel that there are no plausible grounds for appeal. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). Accordingly, counsel's motion to withdraw is granted and the trial court's judgment is affirmed. Patrick A. Pirtle Justice Do not publish. | opinion_html_with_citations | 766 | 2015-10-16 04:24:01.686672+00 | 010combined | f | f | 3,094,758 | null | null | C | f | Published | 0 | Skyler Dane Ferguson v. State | null | null | null | null | null | null | null | null | null | null | null | 2,952,233 | 07-12-00333-CR | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
6,623,955 | Opinion by Evans, J. There was nothing in the records to warrant disturbing the decisions of the collectors. The protests were therefore dismissed. | opinion_xml_harvard | 23 | 2022-07-20 20:33:32.11413+00 | 020lead | t | f | 6,741,950 | Evans | null | U | f | Published | 0 | Protests 830446-G of Taylor | null | Protests 830446-G, etc., of W. A. Taylor & Co. (San Francisco and New York) | null | null | null | null | null | null | null | null | null | 63,723,065 | No. 38897 | 0 | cusc | FS | t | U.S. Customs Court | United States Customs Court |
1,554,420 | 26 So.3d 517 (2008) ROBERT WESLEY CROSHON v. STATE. No. CR-07-1440. Court of Criminal Appeals of Alabama. June 10, 2008. Decision of the Alabama Court of Criminal Appeals Without Published Opinion Dismissed. | opinion_html_with_citations | 32 | 2013-10-30 06:44:26.72379+00 | 010combined | f | f | 1,554,420 | null | null | L | f | Published | 0 | CROSHON v. State | CROSHON | null | null | null | null | null | null | null | null | null | null | 2,535,422 | CR-07-1440 | 0 | alacrimapp | SA | t | Court of Criminal Appeals of Alabama | Court of Criminal Appeals of Alabama |
5,082,818 | DODSON, Justice. Appellee Teresa Davis instituted the instant action against Thomas Anthony Des-pain for damages resulting from a vehicular accident. The trial court rendered judgment for Davis in the amount of $5,987.10 plus interest and court costs. In his fourth point of error, Despain contends the trial court erred in sustaining Davis’ objection to his testimony as a fact witness, arguing that the trial court abused its discretion because there was good cause to permit his testimony on the face of the record. We agree, will reverse the judgment, and remand the cause for a new trial.1 Despain personally answered interrogatories propounded to him by Davis but failed to include his own name in response to answers seeking disclosure of potential witnesses. When Despain later attempted to testify, Davis objected on the ground that he was not listed among those specified in response to the interrogatory asking the identity of persons with knowledge of relevant facts. The trial court sustained the objection and denied Despain the opportunity to testify. Despain also called David Clark to testify. However, Davis objected on the ground that although Clark was listed as a fact witness, Despain failed to give his address in supplementation as promised. The trial court also sustained the objection to Clark’s testimony. Accordingly, the trial court rendered judgment solely on the basis of Davis' testimony. In initiating the instant action, Davis alleged that her vehicle was damaged in a collision with a vehicle “negligently operated by” Despain. Davis alleged that Des-pain’s negligence proximately caused the collision and her damages. The record shows the following in response to several interrogatories answered by Despain about fifty days before trial: 5. If you braked before the collision, what was the distance traveled by your vehicle from the point of application of your brakes to the collision? ANSWER: Approximately 5 feet 6. State in detail how the collision occurred, including, but no[t] limited to the directions of travel by involved vehicles, the speed and conditions of the vehicles involved and any infraction of traffic laws upon the part of any driver involved in the collision. ANSWER: I was traveling North bound on Greenville and there was a green arrow indicating that I could turn left onto Yale Blvd. I was hit broadside by the South bound car driven by TERESA DAVIS as I was making the left turn. In answer to interrogatory eight, Despain also identified himself as the owner and driver of the vehicle involved in the accident. Texas Rule of Civil Procedure 215(5) provides that a witness who is not identified in a response to a discovery request may not testify at trial “unless the trial court finds that good cause sufficient to require admission exists.” Alvardo v. Farah Manuf. Co., Inc., 830 S.W.2d 911, 913-14 (Tex.1992). The only exception to the automatic sanctions of Rule 215(5) is good cause. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394 (1989). Consequently, a party must be named in a response to a suitable interrogatory seeking the identity of persons with relevant knowledge unless good cause is shown. Smith v. Southwest Feedyards, 835 S.W.2d 89, 90 (1992). In Smith v. Southwest Feedyards, the Supreme Court determined that good cause exists to permit the testimony of a party *314witness where “identity is certain and when his or her personal knowledge of relevant facts has been communicated to all other parties, through pleadings by name and response to other discovery at least thirty (30) days in advance of trial.” Id. at 91. Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 162 (1992). Here, Davis’ original petition alleged that Despain was the driver who caused the accident. The answers to interrogatories five and six show that Despain had personal knowledge of relevant facts. In answer eight, Despain averred that he was the driver. The answers to interrogatories were filed more than thirty days before trial. Davis could not have been surprised by Despain’s testimony. Hence, the trial court abused its discretion by failing to find “good cause” to permit Des-pain’s testimony. Smith v. Southwest Feedyards, supra. Point of error four is sustained. Accordingly, the judgment is reversed and the cause is remanded to the trial court. . Appellee has failed to grace us with a brief. Tex.R.App.P. 74(m). | opinion_xml_harvard | 712 | 2021-10-01 13:02:09.547543+00 | 020lead | t | f | 5,256,045 | Boyd, Dodson, Poff | null | U | f | Published | 0 | Despain v. Davis | Despain | Thomas Anthony DESPAIN v. Teresa DAVIS | null | null | null | null | null | null | null | null | null | 60,586,424 | No. 07-92-0210-CV | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
9,885,877 | TJOFLAT, Circuit Judge, dissenting: I agree that the District Court's vacatur of the jury's punitive-damages award was correct under controlling precedent, but I see no need to reach that issue: on the record presented, no reasonable juror could find that sex discrimination motivated, in whole or in part, Exel's decision to deny Travis the promotion she sought. In its analysis, the Majority relies heavily on the evidence of Dave Harris's generalized bias toward women in the workplace. This reliance is misplaced. Well-established precedent says there must be sufficient evidence tying generalized discriminatory behavior to the specific employment decision at issue. Here, the evidence presented by Travis and the EEOC failed to do that, at least in the mind of any reasonable juror. Therefore, I would grant Exel's motion for judgment as a matter of law. I. A. 1. The Company Exel was an Ohio corporation headquartered in Westerville, Ohio. It provided supply chain management-such as shipping, receiving, and warehousing-to corporate customers across a variety of industries. Exel was a subsidiary within the Supply Chain Division of Deutsche Post DHL, a multi-national corporation headquartered in Bonn, Germany.1 In 2008, Exel employed 25,000 individuals, including 329 general managers who oversaw individual work sites in 450 locations in the United States and Canada. In Fairburn, Georgia, Exel owned a sprawling "campus," wherein it operated ten distribution sites, each approximately one mile apart. Each site serviced one Exel customer. All told, the Fairburn campus employed around 1,300 individuals in 2008. One of the ten sites on the Fairburn campus served Pittsburgh Paint & Glass ("PPG"). Employees at the PPG facility received, stored, and shipped PPG's paint and painting-related products.2 Exel maintained and widely disseminated written anti-discrimination and anti-harassment policies at all of its sites. Exel included those policies in its Employee Handbook and posted and maintained them on its internal company intranet. At the PPG site, a bulletin board adjacent to the breakroom entrance displayed the policies as well. Exel trained all employees, including hourly employees and managerial staff, on its anti-discrimination and anti-harassment policies and reporting procedures. Exel also maintained the "NEAR" line, a confidential hotline through which employees could anonymously raise grievances or report instances of discrimination, harassment, or other employment issues. 2. The Chain of Command The General Manager, a salaried position, was the highest-ranking manager at each of Exel's customer sites. The General Manager oversaw all of the site's operations.3 Next in the chain of command was the Operations Manager. The Operations Manager, also a salaried position, reported directly to the General Manager and oversaw the site's supervisors. Supervisors, the final salaried positions, reported to the Operations Manager and oversaw the hourly workers on each shift.4 Two or three employees served as supervisors at Exel's PPG site, which operated three work shifts during the period at issue. Supervisors oversaw shifts of "leads" and other hourly workers. Leads were responsible for coordinating work among groups of hourly shift workers. For example, an inventory lead at the PPG site delegated tasks among inventory control clerks and other workers with inventory responsibilities. Aside from leads, Exel employed approximately twenty to twenty-five hourly shift workers on its PPG site. Shift workers included taskers, who functioned similarly to shipping clerks, inventory control clerks, packagers, quality controllers, and pickers, who pulled orders for outbound shipments. Exel's main corporate headquarters in Ohio housed Exel's primary human resources department ("Corporate HR"). The Fairburn campus also contained a local human resources department ("On-site HR"). HR managers at the Fairburn campus handled personnel issues arising there. This included investigating discrimination claims and serving as a liaison between the Exel sites on the Fairburn campus and Corporate HR. The HR staff at the Fairburn campus included one HR manager and several HR representatives responsible for the Exel sites on the campus.5 3. How Exel Filled Open Jobs The Hiring Manager at each site was responsible for interviewing and selecting candidates to fill vacancies. Typically, there was one Hiring Manager at each Exel site. On many sites, including the PPG site, the General Manager served as the Hiring Manager. Rather than soliciting applications or resumes for job openings himself, the Hiring Manager interviewed and made a final selection from among the list of candidates provided by HR. When a job came open at an Exel site, the Hiring Manager submitted an online job requisition for the vacancy in Exel's Oracle database.6 The job requisition included the job opening, date, position title, reasons why the position needed filling, and a description of the duties the job entailed. After submitting the requisition, the ball left the Hiring Manager's court: Submittal of a job requisition notified Corporate HR of a vacancy and the onus fell on it to post the job and locate interested candidates.7 After Corporate HR got the job requisition from a site's Hiring Manager, it reviewed and approved or rejected the vacancy. After Corporate HR processed and approved a requisition, Oracle automatically posted a job listing on a database on Exel.com. This database contained all of the current job openings at Exel. All candidates could view the database of job openings on Exel.com. Once Oracle posted the open position on Exel.com, Corporate HR received both internal applications (from current Exel employees) and external applications (from the general public) through the database. Only Corporate HR received those applications.8 Once Corporate HR approved and posted a job requisition, candidates were identified through three different protocols. The reason HR identified the candidate for the job dictated the next steps in the process and governed how, if at all, that candidate's qualifications were weighed against those of other candidates. The first protocol involved external candidates. External candidates applied on Exel.com. Corporate HR received, processed, and vetted all external applications. Corporate HR then presented the best candidates to the site's Hiring Manager. From there, the Hiring Manager interviewed them and made the final choice. Internal applicants could also apply through Exel.com and have their applications processed in the same fashion, in lieu of the internal process described below. The second protocol involved internal candidates who did not apply through Exel.com. Internal candidates could complete an internal application for the open position. The internal application was a short, one-page form completed by a current employee to express interest in another position at the company. The form, which could be handwritten, included the employee's name, the position desired, and the employee's current supervisor. The current employee gave the internal application to his or her supervisor, who forwarded it along until it reached on-site HR. On-site HR would then send the internal application to Corporate HR. Corporate HR would place the internal application with all other applications received, both internal and external, and consider them together before forwarding the best candidates on to the Hiring Manager. The third protocol involved Exel employees who either worked at sites that were due to close or were set to be affected by downsizing. To prevent terminating those employees from the company entirely, Exel maintained a company-wide priority transfer practice ("PTP").9 When a customer site at the Fairburn campus was about to close or undergo a workforce reduction, On-site HR tried to match the site's employees with job openings at other customer sites on the campus for which they were qualified. In the case of PTP transfers, On-site HR, rather than Corporate HR, handled the process entirely. The HR employees familiar with the impending closure or workforce reduction viewed the list of vacancies at other sites on Oracle and attempted to match employees subject to layoff to those vacancies for which they were qualified. Additionally, On-site HR provided the general manager of the closing site a list of campus-wide vacancies to relay to employees subject to layoff. The employees only needed to meet the minimum qualifications required for an open position in order for On-site HR to consider them for a transfer into that position. The motivation behind this was simple: Exel aimed to avoid laying off its employees by identifying other opportunities for them within the company. Hence, those employees at risk of imminent termination got first priority in filling vacant positions, with no weighing of their qualifications against those of external or other internal candidates not in imminent danger of being laid off. Since HR facilitated the process on its own initiative, priority transfer employees were not required to complete an application to be considered for an open job at another site. Once On-site HR matched a PTP candidate with an open position, it sent the candidate's information to the Hiring Manager. If the candidate met the minimum qualifications needed for the job and passed an interview with the Hiring Manager, the candidate got the job without any consideration of external or non-PTP internal candidates. This transfer occurred regardless of whether the Hiring Manager considered the priority candidate the "best" applicant or fit for the position. 4. Facts Leading to the Dispute at Hand In 2005, Exel hired Travis as an hourly worker at the PPG site. Within the year, the General Manager promoted Travis to Inventory Control Lead, another hourly position.10 In May 2006, Dave Harris joined Exel as the Operations Manager of the PPG site. In November 2006, Harris became General Manager of the PPG site.11 During his tenure as General Manager, Harris filled three open supervisor positions-February 2007, April 2008, and the at-issue June 2008 position.12 That he filled the first two openings with PTP candidates is not in dispute.13 It is also undisputed that he filled the third, the opening Travis wanted, with a PTP candidate referred to him by Franklin Hudson, an On-site HR representative who oversaw the PPG site and other sites on the Fairburn campus. The third supervisor position arose in June 2008, when Harris promoted James "Kenny" Teal to Operations Manager. Pursuant to the standard practice, Harris filled out a job requisition for the supervisor position vacated by Teal and submitted it to Corporate HR. In mid-June, Corporate HR approved the requisition and posted the job listing on Exel.com. Lisa Guydon, an On-site HR representative who worked on the Fairburn campus at the time, testified that five or six individuals applied online for the open position. Thereafter, Hudson presented Michael Pooler, who previously worked as a quality assurance coordinator at Exel's Hawaiian Tropic site, to Harris as a PTP candidate for the supervisor position. At the time, the Hawaiian Tropic site was in the midst of a workforce reduction and had scheduled Pooler to be laid off. Hudson and Pooler's boss, Mike Blose, met with Pooler on a Saturday and informed him of the potential availability of the position at the PPG site. According to Travis, Blose told Pooler to keep quiet about the opening; otherwise, the position would no longer be available. Hudson testified he recommended Pooler to Harris as a PTP candidate because Pooler possessed supervisory experience with Exel and met the minimum qualifications for the open position at the PPG site.14 Afterwards, Pooler's position at the Hawaiian Tropic site was eliminated and he waited at home for two weeks before Harris called him to set up an interview for the job at the PPG site. Harris said he interviewed Pooler and considered him qualified for the open position. Harris testified that because Pooler met the minimum qualifications for the position and passed the interview, Harris transferred Pooler into the job as he would any PTP candidate presented to him to fill an open position. Harris claimed he never considered whether or not Pooler was more or less qualified than Travis or any other applicant who applied internally or through Exel.com, because Hudson gave him Pooler's name as a PTP candidate and he met the minimum qualifications for the job. Travis and the EEOC largely do not dispute this version of events, but they do dispute the motives behind Harris's failure to promote her into the job instead of Pooler. Travis testified that before Harris put Pooler into the job, she told him she wanted to be considered for it. She said that since the job involved inventory-related duties that she believed she could handle with ease, she felt highly qualified and motivated to take on the role. Travis did not apply formally for the open position, either by applying through the website or completing an internal application. She alleged that she never applied because the job listing posted on Exel.com was for an "Operations Supervisor," when in actuality the position Kenny Teal vacated was an "Inventory Control Supervisor." She said she was interested in what she considered the real position: Inventory Control Supervisor, not the fictitious "Operations Supervisor" position posted on the site. Moreover, she alleged, although she would have formally applied anyway, Harris made clear she wasn't getting the job. Travis testified that Harris told her, "Contrice, just stop asking me, I'm not going to do it. ... I can't, I'm not going to do it. I won't do it." After Pooler began working at the PPG site, Harris assigned Pooler to train with Travis on the site's inventory procedures and systems. Realizing she was training Pooler for the supervisor position Teal vacated when he was promoted to Operations Manager, Travis began looking for a new job out of frustration. She found a new job with another company in mid-July 2008 and turned in her two-weeks' notice. After she left Exel, Harris formally announced Pooler's role as Inventory Control Supervisor and gave him responsibility for the duties Travis previously performed. B. Travis filed a discrimination complaint with the EEOC in January 2009. In her complaint, Travis alleged that she was passed over for promotions at Exel because of her gender. In response, Exel claimed it filled all open supervisor positions during Travis's tenure through routine application of the PTP.15 Exel further alleged that Harris encouraged Travis to apply for the open position, but Travis told Harris that "she wasn't interested" in taking a supervisor position because "everyone knew her and she thought it would be difficult to transition from co-worker to supervisor." The EEOC investigated Travis's allegations and concluded that Harris did not want to promote Travis because of her gender. It relied on Travis's narrative of past interactions with Harris and On-site HR, and testimony by Kenny Teal that Harris told him "behind closed doors" that he would never make a woman a manager.16 Relying on this evidence, the EEOC concluded that Travis was discriminated against because of her gender, and it brought this Title VII action against Exel on Travis's behalf. II. We review a district court's denial of a Rule 50(b) renewed motion for judgment as a matter of law ("JMOL") de novo and apply the same standard as the district court. Abel v. Dubberly , 210 F.3d 1334, 1337 (11th Cir. 2000). We "draw all factual inferences and resolve all credibility determinations in favor of the nonmoving parties." Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1344 (11th Cir. 2000). Nevertheless, to survive a JMOL motion, the non-movant must produce "more than a mere scintilla of evidence suggesting that reasonable minds could reach differing verdicts." Abel , 210 F.3d at 1337. Put differently, there must be a "substantial conflict in the evidence." Id. Denial of a JMOL motion is appropriate only when "reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions." Id. at 1337 (internal quotations omitted). In a Title VII discrimination case, the plaintiff must prove that an unlawful employment decision took place by preponderance of the evidence. Walker v. Mortham , 158 F.3d 1177, 1184-85 (11th Cir. 1998). A complaining party establishes an unlawful employment practice under Title VII by demonstrating that gender "was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m). She can do this by either "persuading the court that a discriminatory reason more likely motivated the employer," or "by showing that the employer's proffered explanation is unworthy of credence." Tex. Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). In other, simpler words, the plaintiff must show that the nondiscriminatory explanation offered by the employer "was not the true reason for the employment decision."17 Id. In this case, a reasonable factfinder could not conclude, on the evidence presented, that Exel's proffered nondiscriminatory motive for denying Travis the job was pretextual. The evidence Travis and the EEOC presented, when construed in the light most favorable to their case, established Dave Harris's general bias toward women in the workplace. However, that evidence did nothing to disprove Exel's assertion that the specific personnel position at issue in this case was filled via routine application of its priority transfer practice-an assertion that was corroborated by multiple witnesses and documentation and admitted by Travis and the EEOC's own witnesses. Thus, the evidence was insufficient to lead a reasonable factfinder to conclude that Harris's alleged bias was a motivating factor behind the decision-a decision that HR initiated and facilitated, and that Harris made wholly pursuant to the company's standard protocol. A. This case turns on whether or not Exel's decision to place Michael Pooler into the supervisor job at issue was a "routine application" of the PTP. Exel says that the PTP process was open-and-shut: if a candidate had the minimum qualifications and passed an interview with his prospective new boss, he got the job, simple as that. In Exel's view, that's exactly what happened here: Dave Harris never considered Travis or any other interested candidate besides Pooler, not because of sex, but simply because Pooler was given priority through the PTP and passed the interview. Travis and the EEOC disagree. They argue that the PTP was "merely pretextual." That the PTP existed went undisputed at trial. Franklin Hudson, the On-site HR Manager assigned to the PPG facility at the time Pooler's transfer took place, testified the practice existed since at the least the time he joined Exel in 2005. He reported that he "placed over a hundred associates" in new facilities using the practice when two different facilities closed in 2007. Hudson explained the rationale for the practice was "to save the company, to cut down on unemployment claims, litigation, and to simply place that associate." In fact, Hudson testified that Harris filled an open supervisor position in 2008 at the PPG facility by transferring a supervisor named Jim Russell from another Exel facility that was due to close. And Harris testified that he filled another open supervisory position in 2007 (before Hudson assumed oversight of the PPG facility) by transferring Calvin Sawyer from the company's soon-to-be-closed Icon facility. Travis's witness, Tommy Chambers, agreed regarding Sawyer's transfer. Other witnesses corroborated this testimony. Lisa Guydon, an On-site HR manager who worked at Exel's Fairburn campus, said the PTP was a "company-wide" practice. She testified that from 2007-08, Exel closed down or reduced its workforce in four of its sites located on the Fairburn campus: Kellogg, Icon, Scotts, and Hawaiian Tropic. She estimated that the company transferred "over 200 associates" from those facilities to other sites. Travis and the EEOC did not contest any of those assertions, and Travis admitted that she knew of the program's existence before Pooler's June 2008 transfer. Nevertheless, Travis and the EEOC argue that, with respect to Pooler's transfer, the PTP was a smokescreen to cover for Dave Harris's bias toward women in the workplace. To establish that bias, they cite testimony by Travis and by Kenny Teal, the employee whose promotion made way for Pooler's transfer. Travis testified that Harris treated women at the PPG facility differently than he treated men. She reported that Harris "limited his contact with pretty much all the females in [the PPG] office." Teal testified that, "in his office behind closed doors," Harris told Teal on "a couple" occasions that Harris "said that he would not put a woman into a management position."18 Teal further testified that in his seven years with Exel, "there was never a female in any management position." In addition, Tommy Chambers, a supervisor at the PPG facility in 2008, testified that Harris was "more standoffish towards females" than he was toward men. In fact, according to Travis and Chambers, Harris so disdained dealing with women in the office that he told Travis that he wanted her "to manage the ladies in the office" and asked Chambers to "address them" even though they reported directly to Harris and did not answer to Chambers. Additionally, Travis stated that she went to On-site HR to express her feeling that she was being treated differently by Harris because she was a female. She related that she first spoke with Marie Murphy, an HR coordinator at the site, and that Murphy said she could relate to Travis's concerns because she too had been "overlooked or passed on for promotion" because of her gender. However, according to Travis, Murphy could not help her because the HR manager responsible for the PPG site was actually Franklin Hudson. So, Travis testified she then went to Hudson in early 2008 to voice her concerns. She asserted that Hudson gave her concerns short shrift. She testified that Hudson "seemed like he had somewhere to go" and that "his best advice was to tell [Travis] to look into transferring to another site."19 Travis and the EEOC next point to circumstantial evidence surrounding the events leading up to Michael Pooler's transfer as proof that Harris's general animus was a motivating factor in not considering Travis for the job. In their view, a reasonable factfinder could draw this inference based on three observations. First, they argue that the "Operations Supervisor" job Harris posted in June 2008 was a "phantom" job opening designed to conceal the true position that was open, namely the "Inventory Control Supervisor" position. Second, they argue that Exel did not follow the procedures it claimed were part of the PTP. Third, they point to comments Harris allegedly made to Travis when she expressed interest in the job, as well as other circumstantial evidence of Harris's alleged bias, including that Travis was qualified for the position yet was not considered. To establish that the "Operations Supervisor" job Harris posted was a "phantom" job, they refer to Teal's testimony that the job Teal performed prior to his promotion was an "Inventory Control Supervisor" job and that Harris told Pooler his title was "Inventory Control Supervisor." They also point to Travis's testimony that Harris told his staff in a meeting that he was making Teal "Inventory Control Supervisor," testimony that other supervisors and PPG's on-site representative called Teal's job "Inventory Supervisor," and to the letter Pooler received when his position at the PPG site was eliminated, which stated that Pooler's title was "Inventory Management Supervisor." At trial, Travis and the EEOC presented an announcement Harris distributed to employees at the PPG site that stated Teal had moved up "through the management ranks as operations supervisor, training supervisor, inventory management supervisor , systems 'super user' and special service projects supervisor." (Emphasis added). In their view, this evidence, along with the fact that Teal said he only supervised Travis and no one else, confirmed that the vacancy left open was in fact "Inventory Control Supervisor." From this, they argue one could infer that Harris posted the job requisition for an "Operations Supervisor" on Exel's website with the "specific intent" to deceive Travis into not applying for the "Inventory Control Supervisor" job, the true position left vacant by Teal's promotion and the job Travis really wanted. Next, Travis and the EEOC argue that the evidence demonstrated that Exel did not follow the procedures normally used in the PTP when it moved Pooler into the job. They argue that Exel deviated from the standard protocol in two respects: first, Pooler was in fact "promoted" and not "transferred"; and second, the transfer was done in secret rather than openly. With respect to the former, they base this assertion on the fact that Pooler's job title prior to the transfer was "Quality Assurance Coordinator" and did not include the term "Supervisor," that he did not have supervisory responsibilities, and that he did not have inventory control experience. With respect to the latter, they argue that Exel deviated from standard procedures when its employees told Pooler to keep quiet about the position at the PPG site while his transfer was still pending. Pooler testified that when he was summoned to meet with Franklin Hudson and Mike Blose, the General Manager at the site from which he had been laid off, to talk about the opening at the PPG facility, Blose told him to "keep your mouth shut" and not to say a word about the position opening, else "the position w[ould] not be available." They argue that a factfinder could infer from this that those employees told Pooler to keep quiet about the opening in order to keep Travis in the dark about the job. From these two alleged policy deviations, Travis and the EEOC contend that a reasonable factfinder could infer that Exel and Harris used the PTP as a pretext to cover up the true, discriminatory motive behind their failure to consider Travis for the job. See Brown v. Am. Honda Motor Co. , 939 F.2d 946, 951 (11th Cir. 1991) ("Oftentimes, departures from well established guidelines are indicative of attempts to conceal a discriminatory motive through the use of ad hoc criteria which allow the defendant to cloak a discriminatory intent in ostensibly neutral rationales."). Additionally, Travis testified that when she learned of Teal's promotion to Operations Manager and went to Harris to express her interest in backfilling Teal's old position as Inventory Control Supervisor, Harris told her he was simply never going to make her a supervisor. She testified, "at that time [Harris] told me he was not going to make me, like, flat out, Contrice, just stop asking me, I'm not going to do it. ... I can't, I'm not going to do it. I won't do it." Travis and the EEOC further point out that Harris admitted in his testimony that he never considered Travis for the job. Thus, they argue, taken in concert with the circumstances surrounding Pooler's placement in the position and the testimony about Harris's prior comments about and behavior towards women, Harris's declaration to Travis shows that Travis's gender played a part in Harris's selection of Pooler over her for the position. Finally, Travis and the EEOC point to undisputed trial testimony by numerous witnesses that Exel did not place any women into management positions at the PPG site for many years as additional circumstantial evidence of discrimination by Harris and Exel. In Travis and the EEOC's view, all of this circumstantial evidence established that Harris's bias lurked in the background at the time he filled the supervisor position. And, they argue, the circumstances surrounding Pooler's transfer established that that bias lay at least in part behind Harris's decision not to promote Travis into the job. In their view, this was enough to allow a reasonable factfinder to conclude that the PTP was pretextual. B. Suitable as it may be to establish Harris's general bias toward women in the workplace at the JMOL stage, the evidence Travis and the EEOC cite to support their case falls short concerning the ultimate issue in this case. Without question, a plaintiff can rely on generalized sexist comments as circumstantial evidence to show employer discrimination. But acting alone, that evidence cannot win the day for a plaintiff if it is not reasonably linked to the alleged discriminatory employment action in question. The evidence must allow the factfinder to reasonably infer that such animus was a "motivating factor" behind the adverse employment action at issue. Price Waterhouse v. Hopkins , 490 U.S. 228, 251, 109 S.Ct. 1775, 1791, 104 L.Ed.2d 268 (1989) ("Remarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision. In making this showing, stereotyped remarks can certainly be evidence that gender played a part."); Quigg v. Thomas Cty. Sch. Dist. , 814 F.3d 1227, 1232-33 (11th Cir. 2016). Put simply, the biased decisionmaker must have the opportunity to act on his bias. Construed in Travis and the EEOC's favor, Teal's testimony about Harris's comments about women, taken in concert with Travis and Chambers' testimony about his behavior toward women in the office, would allow a reasonable factfinder to conclude that Harris harbored discriminatory animus toward female employees at Exel's PPG site, including Travis. The same is true with respect to Harris's alleged declaration to Travis that he was "not going to do it" when informed by her of her interest in being promoted into the job Teal vacated. But the evidence the Majority relies on to demonstrate that Harris had any chance in the process to put his bias into action cannot perform that function. Even when all inferences are drawn in Travis and the EEOC's favor, the evidence in the record conclusively established that the PTP existed and was used frequently at the PPG site and other Exel sites on the Fairburn campus. The evidence further established that HR, not general managers like Harris, facilitated PTP transfers and initiated them by identifying suitable candidates. And the evidence conclusively established that PTP candidates who were minimally qualified transferred directly into their new jobs without competing against other interested, non-PTP applicants. While it is true that general managers like Harris had final say over whether a PTP candidate got the job, the evidence conclusively established that rejection of a qualified PTP candidate rarely if ever occurred. Indeed, Franklin Hudson testified that in his "six or seven years" with the company, a general manager never vetoed a single one of the hundreds of PTP transfers he oversaw. Lisa Guydon testified that she never saw such a veto in ten years of employment with Exel. Clearly, the company expected general managers to give PTP candidates the benefit of the doubt: Guydon testified that a general manager who turned down a PTP candidate would have to explain the basis of that decision to his superiors. The policy was simple: if you are a PTP candidate and you qualify, you get the job. Turning to Pooler's transfer specifically, considered in its most favorable light, the evidence Travis and the EEOC cite does not cast suspicion on Exel's contention that the PTP functioned as it normally did with respect to Pooler. This is so for multiple reasons. First, there is insufficient evidence upon which to reasonably conclude that Harris concealed the true position he was seeking to fill when he posted a requisition for "Operations Supervisor" after he promoted Teal. Whether it was called "Operations Supervisor" or "Inventory Control Supervisor," the position Pooler filled was the third supervisor job at the PPG site. It is undisputed that Teal was previously promoted to Operations Supervisor in 2005 (before Harris became General Manager of the PPG site). Teal himself testified that the PPG site always had three supervisors (one for each of the site's three work shifts) until the site downsized the third shift and no longer needed a supervisor to manage the skeleton crew that remained on that shift. In fact, he testified that he was the third-shift supervisor prior to the shift's downsizing. Teal further testified that, counting the "Inventory Control Supervisor," the PPG site continued to have three supervisors after the downsizing. With regard to his "transfer" to the Inventory Control Supervisor position from Operations Supervisor, he testified that he never applied for the job, filled out any paperwork to be considered for the job, or received a pay raise because the job was just a "lateral transfer." Further, the evidence Travis and the EEOC cite in support of their contention that the "Operations Supervisor" position was a "phantom" job simply buttressed Exel's argument that Harris posted the opening to hire a third supervisor. The notice Harris created to announce Teal's promotion stated that he performed five different functions during his time at the PPG site prior to his transfer. Teal himself testified that those listed "positions" were "just some of the roles that they asked [him] to perform while [he] was supervisor." In other words, all of those titles simply described different responsibilities included among the duties of a supervisor at the site. So, to conclude that "Inventory Control Supervisor" was a separate, formal position at the PPG site, the factfinder would also have to conclude that the other four titles mentioned in the announcement were separate positions as well. Yet no evidence in the record suggests this was the case, or even suggests this was possible. It is undisputed that the position Harris posted when he submitted the job requisition to Corporate HR was for an "Operations Supervisor." It is also undisputed that the offer letter issued to Pooler when he took the position listed the job as "Operations Supervisor." And Hudson testified that Corporate HR had to approve job requisitions before those jobs were posted. What's more, Guydon, Hudson, and Harris all testified that HR-not general managers like Harris-facilitated the PTP by identifying candidates who were about to be affected by site closures or workforce reductions and forwarding those candidates to hiring managers seeking to fill open positions. Guydon explained that, by matching up qualified employees whose jobs were about to be eliminated to unfilled vacancies at other facilities, On-site HR was "the traction in trying to identify an opportunity" for associates affected by site closures and downsizings. This was true with respect to Pooler's transfer as well: both Hudson and Harris testified that Hudson presented Pooler to Harris as a candidate to fill the position left open by Teal's promotion, along with a positive recommendation, when the Hawaiian Tropic facility was winding down its operations. And Travis and the EEOC did not dispute that Hudson provided this referral to Harris. Thus, to find that Harris sometimes referred to the supervisor position as "Inventory Control Supervisor" and other times called it "Operations Supervisor" specifically to mislead Travis into not applying for it, the factfinder would have to conclude that both On-site HR and Corporate HR managers colluded to help Harris hide his bias and fool Travis, not just in hindsight but in real time. Hudson testified that his off-site higher-ups in Corporate HR had to approve all job requisitions submitted by site managers before they were posted and filled. So, to conclude that the job posting was a sham to deceive Travis, the factfinder would have to likewise conclude that those higher-ups endorsed the existence of a fraudulent "Operations Supervisor" position that did not really exist. And they would have to endorse screening, interviewing, and transferring or promoting interested candidates into that non-existent job, only to later move them into the real job. But Travis and the EEOC presented no evidentiary fulcrum upon which this conclusion could rest. Next, Travis and the EEOC's assertion that Exel failed to follow the standard PTP procedure is unsupported by the evidence presented. To begin, the evidence failed to establish that Pooler was promoted, not transferred. Travis and the EEOC rely on the fact that Pooler was a "Quality Assurance Coordinator" at the Hawaiian Tropic site before he moved into the supervisor position at the PPG site. Hudson testified that although "their job description[s] may be different," in general, coordinators at Exel were "a step under supervisor[s]," and that coordinators (Pooler's previous title) and leads (Travis's title) were "equal in pay." Though this might have been true in general, the undisputed evidence showed that this differed in Pooler's case. Both Pooler and Franklin Hudson testified that Pooler "supervised a large number of employees" and wielded "[c]ontrol over the entire quality operations" at the Hawaiian Tropic site before transferring. And Pooler's pay classification did not change when he took the new job. He was classified as salaried, not hourly, in his old job, and he remained salaried in the new position. Pooler, testifying as part of Travis's case-in-chief, agreed that this was the case. Further, all of the paperwork Pooler signed when he moved to the PPG facility listed his move as a "transfer." Pooler testified that when he moved into the position at PPG from his prior job at Exel's Hawaiian Tropic site, he was told, "you don't have to do anything, it's just an internal transfer." When asked on cross-examination whether he considered the move to be a transfer, Pooler said "yes." By contrast, Travis does not dispute that she was an hourly worker whose job title was "Inventory Lead," a position Travis admitted was "below supervisor." She further admitted that while she at times oversaw other workers as Inventory Lead, she did not have "write up" authority over them. To put Travis into the position, then, Exel would have been required to increase Travis's pay, convert her position into a salaried rather than hourly position, and increase her supervisory authority. What's more, Harris testified without dispute that to transfer Pooler into Travis's Inventory Lead position instead, Exel would have to demote Pooler and cut his pay. Further, the evidence conclusively established that a PTP candidate's qualifications, not his formal position in the company hierarchy, dictated whether he got the job. Hudson explained that the central inquiry with respect to job openings was whether the potential transferee was qualified for the position: Okay, that practice, the priority transfer practice is if a site is closing or if there is a downsizing. So that would mean any associate at that site would be losing their job. So what we would do as H.R., ... we ensure that we try our best to make sure that no associate lose[s] their job. So if we [have] ten sites and if they got openings, those associates if they meet the minimum qualifications will be placed in a job. (Emphasis added). Guydon agreed that the prospective transferee's qualifications were central to his placement. She described the priority transfer practice thusly: Priority simply means that we are going to give that person that we have identified who is going to be without an opportunity a shot at interviewing for that position. So they interview for the position. If their qualifications meet and they pass the interview process, they are automatically going to receive that position. (Emphasis added). Neither Exel nor Travis and the EEOC presented evidence suggesting otherwise. And Exel did not deviate from this requirement when it moved Pooler into the supervisor job. Exel presented evidence that Pooler possessed the qualifications needed for the job at the PPG site. Both Pooler and Franklin Hudson testified that Pooler "supervised a large number of employees" and wielded "[c]ontrol over the entire quality operations" at the Hawaiian Tropic site before transferring. This evidence is crucial, because even if it is accepted that Pooler's transfer was a "promotion" instead of a "lateral transfer," the transfer was based on the candidate's qualifications, just as all PTP transfers were. Travis and the EEOC rely on Hudson and Guydon's testimony to establish that PTP transfers were always "transfers" and not "promotions," but as shown above, Hudson and Guydon both testified that the potential transferee's qualifications, not his formal job title, governed whether he fit the open position. Similarly, this evidence also answers the argument that Travis's greater qualifications for the job circumstantially supported a finding of discriminatory intent on Harris or Exel's part. Accepting as true the assertion that Travis was more qualified than Pooler at the time of the transfer, this fact is irrelevant. The central feature of the PTP, as explained by Hudson, Guydon, and Harris, was to give minimally qualified employees who were about to be laid off priority over other internal and external candidates, including those who might be more qualified. With regard to candidates interviewed through the PTP, the dispositive question was whether they met the minimum qualifications for the open position and passed the interview, not whether they were more qualified than other, non-PTP candidates. With respect to the allegation that Exel deviated from the standard PTP protocol when Hudson and Blose told Pooler to "keep quiet" about the position, I give Pooler's testimony the full benefit of the doubt and thus accept as true that this conversation took place. I accordingly accept the argument that this constituted a deviation from Exel's standard practice when it made use of the PTP. Even so, the conversation is not reasonably probative of a discriminatory cover-up. To construe Blose and Hudson's instruction to Pooler as circumstantial evidence of discrimination, a factfinder would have to conclude that both Hudson and Blose were in on Harris's conspiracy to deny Travis the position. But this conclusion cannot reasonably rest on this one alleged conversation. A General Manager at a facility on the cusp of closing might choose to keep potential promotions private for many reasons. For example, he might want to avoid drawing undue attention to the transferee that could result in bad blood between the transferee and those whose jobs are to be completely eliminated. He might want to stave off the spread of rumors about possible position openings before those openings are certain, so as not to create false hope in the minds of those about to lose their jobs. Or he might even be doing so in a show of improper favoritism-perhaps unlawful or perhaps not-toward one of his employees. But here, to adopt Travis and the EEOC's view of those events, the factfinder would have to read this instruction not as proof that Blose was biased toward his female employees, but that both Blose and Franklin Hudson willingly signed on to Harris's discriminatory conspiracy to shut one of Harris's employees, namely Travis, out of the job.20 Standing alone, Blose's instruction to "keep your mouth shut" cannot establish the existence of such a sprawling plot. The record does not even establish that Blose knew Travis or knew who she was at the time. Moreover, Travis and the EEOC did not present any evidence that suggested Harris orchestrated the events leading to Pooler's placement in the job. Travis and the EEOC did not dispute that Harris filled out a job requisition for an open supervisor position. They did not dispute that Corporate HR approved the vacancy per the company's normal requisition process. And they did not dispute that Hudson approached Harris about placing Pooler in the position by way of the PTP. In light of those facts, a reasonable factfinder could not take the mandate issued to Pooler to keep the transfer under wraps far enough to reach the conclusion that the mandate established the existence of a discriminatory cover-up. Further, taken in conjunction with the overwhelming evidence establishing the PTP's existence and operation in placing Pooler into the job, Harris's admission that he did not consider Travis does not support the finding that discriminatory intent motivated his decision to deny her the promotion. To the contrary, in light of the numerous, uncontroverted evidentiary sources establishing the PTP's existence and its routine operation in filling the position Teal vacated, the only reasonable inference that can be drawn from this admission is that Harris did not consider anyone other than Pooler for the job.21 No other candidates, including Travis and the other five or six candidates who applied, were ever considered, because that was how the PTP worked. If a candidate identified through the PTP met the minimum qualifications and passed the interview, he got the job-hence the term "priority" transfer. As to the undisputed fact that no female was ever made supervisor at the PPG site during the time Harris worked there, Travis and the EEOC do not present any evidence that would lend this testimony any measure of statistical significance. See, e.g. , Howard v. BP Oil Co., Inc. , 32 F.3d 520, 524 (11th Cir.1994) (noting that, "to be relevant," evidence of a company's failure to promote black employees into open management positions would have to be coupled with "evidence as to how many blacks applied and were rejected and evidence of the success rate of equally qualified white applicants"). Without such corroboration, this evidence is merely "anecdotal" and "virtually meaningless." See Evans v. McClain of Georgia, Inc. , 131 F.3d 957, 963 (11th Cir. 1997) (quotations omitted) (quoting Brown v. Am. Honda Motor Co. , 939 F.2d 946, 952-53 (11th Cir. 1991), cert. denied , 502 U.S. 1058, 112 S.Ct. 935, 117 L.Ed.2d 106 (1992) ). Moreover, Travis and the EEOC did not dispute that no one was promoted to supervisor in that time frame: Exel's witnesses testified, and Travis and the EEOC did not dispute, that two supervisor positions came open prior to the position at issue in this case, and both of those positions were filled through the PTP. * * * In sum, Exel faced three options with respect to Pooler's fate. It could let him walk when the Hawaiian Tropic site closed.22 It could cut his pay and demote him to an hourly position, in order to allow Travis to leapfrog him into the supervisor job. Or it could follow its standard practice and transfer him into the vacant supervisor position at the PPG site-with no changes to his pay or salary classification. So far as all the evidence presented by both parties indicates, Exel simply chose the latter. Thus, the factfinder was left with a rather simple evidentiary picture. Once Harris promoted Teal and filed a job requisition with Corporate HR, he waited. Corporate HR approved the requisition and posted the job. On-site HR saw the job posting, identified Pooler as an employee on the verge of joblessness due to his site's closure, and presented him to Harris as a PTP candidate. Harris interviewed him, determined he was minimally qualified, and hired him without considering any other internal or external candidates. Open and shut. This series of events was entirely consistent with Exel's well-established and undisputed PTP procedure. What Harris did in this process to act on his alleged bias toward Travis, how he could have done so, or whether he could have done so at all, went unanswered. As a result, the evidence was insufficient to support the finding that Harris's bias toward women motivated that decision, in whole or in part. Thus, the District Court should have granted Exel's JMOL motion. Accordingly, I respectfully dissent. Deutsche Post DHL employed around 470,000 employees in more than 220 countries and territories. In 2005, DP DHL acquired Exel, a British logistics corporation, for 5.5 billion euros. Exel became a wholly owned entity of DP DHL but retained the Exel brand for North American markets until January 2016. Exel is now known as DHL Supply Chain. The PPG site was one of the smallest on the Fairburn campus. The General Manager reported to the Director of Operations responsible for the Fairburn campus. The Director of Operations maintained an office on the Fairburn campus. Throughout the trial and in the parties' briefing, supervisors are also referred to as Shift Supervisors, Operations Supervisors, and Inventory Supervisors, often with overlapping and unclear differentiation in duties. For our purposes, the term "supervisor" encompasses all potential titles given to salaried employees who possessed supervisory authority. The number of sites one HR representative oversaw depended on the size of the site and the number of employees on the site. HR representatives had an office in the Campus HR building. Oracle is a third-party online database that assists HR with employment and personnel logistics. At Exel, Oracle was housed on the company's intranet and accessible by all HR officers. The general public could not access Oracle. HR employees, regardless of their role or whether they worked in Corporate HR or on the Fairburn campus, could view the job requisition on Oracle. Although Corporate HR was responsible for receiving and processing applications, On-site HR employees could still access and view all applications through the database. Exel implemented the PTP on the Fairburn campus over a decade ago. At the time of this promotion, the General Manager was Bob Browne. Dave Harris replaced Bob Browne when Browne left Exel's PPG site in November 2006. Harris testified he first learned about the PTP from Marie Murphy, a Campus HR representative, in February 2007, when Harris filled the first supervisor vacancy following his appointment as General Manager. Travis testified that Harris informed her about the PTP in early 2007. Travis also testified that she spoke with Harris on numerous occasions regarding two open shift supervisor positions; however, she could not remember dates. In February 2007, Harris hired Calvin Sawyer into an open supervisor position. After Harris completed a job requisition for the open position, Murphy gave Harris Sawyer's name as a priority transfer. Sawyer's current site downsized and Sawyer faced a layoff. Sawyer's name was the only name given to Harris. Harris interviewed Sawyer, learned of his extensive management experience, and spoke with Sawyer's supervisor. Harris hired Sawyer through the PTP. In April 2008, Sawyer left the PPG site, creating a supervisor vacancy. Harris completed a job requisition and Franklin Hudson, an On-site HR manager, gave Harris Jim Russell's name as a priority transfer. Russell worked as a supervisor at Exel's Scotts site and faced a layoff. Harris spoke with Russell's former supervisor at the Scotts site and interviewed Russell. Russell was the only candidate that Hudson gave Harris for consideration. Harris hired Jim Russell through the PTP. After Harris filled the February 2007 position through the PTP, Travis said she spoke with Tommy Chambers, the Operations Manager, about what she needed to do to advance herself. Chambers told Travis that she could look for opportunities at other Exel facilities or outside the company because no supervisor positions were currently available at the PPG site and Harris believed Travis needed more time for development. Pooler managed over fifty employees at in his role at the Hawaiian Tropic site. Lisa Guydon prepared Exel's position statement in response to Travis's EEOC complaint. Travis claimed that in 2007, she told On-site HR representative Marie Murphy that she believed Harris would not promote her because she was a woman. Travis said she originally complained to Murphy because she believed Murphy was the HR representative over her site and because she had known Murphy a long time. Travis said Murphy told her she could not act on Travis's complaint because Franklin Hudson, not Murphy, oversaw the PPG facility. Travis alleged that Murphy advised her to document everything she could and then take her complaint to Hudson. At the time of this alleged conversation, there were no supervisor vacancies at the PPG site. Hudson oversaw the PPG site and it was his responsibility to investigate claims of discrimination. Travis testified that Hudson said "his best advice was to tell [her] to look into transferring to another site." However, on cross-examination, Travis admitted that she did not tell Hudson that she felt Harris discriminated against her because she was a woman. Travis believed this conversation occurred in early 2008. Hudson testified that he had no memory of speaking with Travis in his office or of Travis telling him that she was discriminated against due to her gender. Hudson testified that if she had done so, he would have started an investigation pursuant to the company's protocol for handling discrimination complaints. There were no supervisor vacancies at the time of Travis's conversation with Hudson, either. Hudson was promoted to HR Manager in 2008, after the alleged conversation with Travis. Exel had no written record of this conversation, or any other conversation between Travis and an HR representative. Additionally, Exel had no record of Travis utilizing Exel's NEAR hotline for voicing complaints and reporting discrimination. Exel had no record of any other discrimination complaints made against Harris by Travis or any other employee. Teal testified that he told Harris that Travis would be a strong candidate for a promotion to supervisor. Teal said that Harris responded by claiming that Travis lacked the necessary qualifications and experience to hold a supervisor position, and that he would not put a woman in a management position. Teal never reported this comment to HR. On direct examination at trial, Teal testified that the comment was made after Harris promoted Teal to Operations Manager in 2008. On cross-examination, Exel's attorney introduced an affidavit made by Teal in 2010-the first time Teal ever stated that Harris made the remark. In this affidavit, Teal stated that Harris made the remark in 2007. When further questioned, Teal testified that he could not recall the dates of any of these conversations, or the month or year in which Harris said that he would not put a woman in a management position. Teal did not tell anyone about the comment when Travis resigned in 2008, or during his conversation with Lisa Guydon, one of Exel's Campus HR managers, during her investigation into Travis's EEOC complaint. Exel fired Teal in June 2009 after Teal faced allegations and formal complaints of sexual harassment. Before making this showing, the plaintiff must first show that she was qualified for the job and either that she applied for the job or that applying for the job would have been a "futile gesture" under the circumstances. Burdine , 450 U.S. at 253, 101 S.Ct. at 1094 ; Int'l Bhd. of Teamsters v. United States , 431 U.S. 324, 365-66, 97 S.Ct. 1843, 1870, 52 L.Ed.2d 396 (1977). Teal's testimony was conflicted as to when Harris supposedly told Teal he would never put a woman into a management position. In his deposition, he stated that Harris made the comment in 2007, but he testified at trial that Harris made the comment in 2008, around the time he promoted Teal to Operations Manager and transferred Pooler into Teal's old job. I construe this testimony in Travis and the EEOC's favor and thus accept that Harris made the comment in 2008. However, Travis conceded she didn't tell Hudson specifically that she felt she was being discriminated against because she was a woman. As the Majority acknowledges, the District Court found no evidence that HR or Harris's superiors had actual knowledge that Harris discriminated against Travis in transferring Pooler into the position. In addition to the reasons discussed here, this finding by the District Court further precluded a finding that HR colluded with Harris to deny Travis the position. It stands to reason that HR could hardly have joined Harris's conspiratorial plan, given that it had no knowledge of that plan. The Majority places great weight on its determination that "Harris knew about Travis's interest before he ever received Pooler as a PTP candidate or even learned that he would receive a PTP candidate at all." See Majority Opinion supra . This, in the Majority's view, would allow a reasonable jury to find "that Harris could have promoted Travis when she approached him about Teal's vacated position, without going through the PTP process at all." Id. But the record does not indicate how much time elapsed between Travis's conversation with Harris about the open position and Harris's receipt of Pooler as a PTP candidate. So, a factfinder would have to assume without an evidentiary foundation that Harris had time to consider and reject Travis's candidacy before the PTP process began, and that his rejection was motivated by bias toward women rather than by simple adherence to the PTP process. In the face of the evidence concerning the PTP's routine operation presented in this case, I would not hold that this string of suppositions amounted to a reasonable finding. Indeed, Pooler was already sitting at home when he got the job at the PPG facility. | opinion_xml_harvard | 9,276 | 2023-10-06 15:19:19.076659+00 | 040dissent | f | f | 4,478,586 | Jill, Moody, Pryor, Tjoflat | NEW | CU | f | Published | 0 | Equal Employment Opportunity Commission v. Exel, Inc. | null | EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant Cross-Appellee, Contrice Travis, Intervenor-Appellant Cross-Appellee, v. EXEL, INC., Defendant-Appellee Cross-Appellant. | null | null | <parties id="p-1">
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant Cross-Appellee,
</parties><docketnumber id="p-2">
Contrice Travis, Intervenor-Appellant Cross-Appellee,
<br/>
v.
<br/>
EXEL, INC., Defendant-Appellee Cross-Appellant.
</docketnumber><docketnumber id="p-3">
No. 14-11007
</docketnumber><court id="p-4">
United States Court of Appeals, Eleventh Circuit.
</court><decisiondate id="p-5">
March 16, 2018
</decisiondate><attorneys id="p-6">
Anne Noel Occhialino, Equal Employment Opportunity Commission, Office of General Counsel-Appellate Services, Washington, DC, Robert K. Dawkins, Ottrell Ferrell Edwards, Sairalina Montesino, Steven A. Wagner, U.S. Equal Employment Opportunity Commission, Atlanta, GA, for Plaintiff-Appellant Cross-Appellee Equal Employment Opportunity Commission.
</attorneys><attorneys id="p-7">
Rudjard M. Hayes, Sanchez Hayes & Associates, LLC, Tyrone, GA, for Plaintiff-Appellant Cross-Appellee Contrice Travis.
</attorneys><attorneys id="p-8">
David Richard Kresser, Terri R. Stewart, Fisher & Phillips, LLP, Atlanta, GA, for Defendant-Appellee Cross-Appellant.
</attorneys><judges id="p-9">
Before TJOFLAT and JILL PRYOR, Circuit Judges, and MOODY,
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
District Judge.
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="p-122">
The Honorable James S. Moody, Jr., United States District Judge for the Middle District of Florida, sitting by designation.
</p>
</div></div> | null | null | null | null | null | null | 6,336,752 | 14-11007 | 0 | ca11 | F | t | Eleventh Circuit | Court of Appeals for the Eleventh Circuit |
4,125,547 | NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit SUPERIOR COMMUNICATIONS, INC., Appellant v. VOLTSTAR TECHNOLOGIES, INC., Appellee 2016-1204 Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 95/002,365. JUDGMENT SID LEACH, Snell & Wilmer, LLP, Phoenix, AZ, argued for appellant. JEROLD I. SCHNEIDER, Schneider Rothman IP Law Group, Boca Raton, FL, argued for appellee. Also repre- sented by JOEL B. ROTHMAN. THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED: PER CURIAM (WALLACH, HUGHES, and STOLL, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT February 13, 2017 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court | opinion_plain_text | 120 | 2017-02-13 16:01:18.305538+00 | 010combined | f | f | 4,348,287 | null | null | C | t | Unpublished | 0 | Superior Communications, Inc. v. Voltstar Technologies, Inc. | null | null | null | null | null | null | null | null | null | null | null | 4,584,167 | 16-1204 | 0 | cafc | F | t | Federal Circuit | Court of Appeals for the Federal Circuit |
2,339,505 | 342 F. Supp. 833 (1972) UNITED STATES of America v. Jack L. LEWIS. UNITED STATES of America v. James Louis WILLOZ et al. Crim. Nos. 26105, 26943. United States District Court, E. D. Louisiana. May 26, 1972. *834 Virgil M. Wheeler, Jr., New Orleans, La., for movants, Lewis and Willoz. Gerald J. Gallinghouse, U. S. Atty., by John R. Schupp, Asst. U. S. Atty., E. D. La., New Orleans, La., for the government. CHRISTENBERRY, District Judge. By this decision the court grants the motions of the above two movants, Lewis and Willoz, who as defendants in different cases have simultaneously filed motions in the nature of applications for writs of error coram nobis to vacate and set aside the judgments and sentences of this court and to be repaid fines paid pursuant to such sentences. On January 29, 1958, Jack L. Lewis pled guilty to two counts of an indictment charging him with violations of the Internal Revenue Code for failure to pay the special occupational tax imposed under 26 U.S.C. § 4411 and for failure to file the return required by 26 U.S.C. § 4401. By his plea of guilty, Lewis was convicted and by way of sentence he was fined $1,000.00 on each of the aforementioned violations. Accordingly, he paid a total of $2,000.00 in fines at that time. Presently, Lewis appropriately seeks via the writ of coram nobis to have his 1958 conviction annulled, vacated, and set aside. To this the government does not object. Defendant Lewis, however, also prays that the government be ordered to repay him the $2,000.00 fine which he paid in 1958. In the companion case, also to be ruled upon in this opinion, the petitioner is James Louis Willoz who was convicted on June 15, 1960, on his plea of guilty to a charge of failure to pay the special occupational tax required by 26 U.S.C. § 4411. Willoz paid a $1,000.00 fine on this conviction, and now, like Lewis, on the basis of Marchetti v. United States, 390 U.S. 39 , 88 S. Ct. 697 , 19 L. Ed. 2d 889 (1968), and Grosso v. United States, 390 U.S. 62 , 88 S. Ct. 709 , 19 L. Ed. 2d 906 (1968), he seeks to have the conviction set aside. To this, again, the government interposes no opposition, but strongly objects to Willoz's additional plea in his coram nobis application that the $1,000.00 fine be repaid. This court's jurisdiction to entertain this application for a writ of error coram nobis is founded upon 28 U. S.C. § 1651(a), the all-writs section of the Judicial Code, inasmuch as these petitioners are outside the ambit of 28 U. S.C. § 2255. Section 2255 is by its own language limited to prisoners "in custody" and thus the Supreme Court, for cases just such as this, resurrected and sanctioned the extraordinary writ of error coram nobis as a proper jurisdictional avenue by which to attack collaterally an allegedly illegal conviction and sentence. United States v. Morgan, 346 U.S. 502 , 74 S. Ct. 247 , 98 L. Ed. 248 (1954). These motions go further, however, *835 and in effect amount to suits brought against the government for money judgments and on this basis the court has jurisdiction under the Tucker Act. 28 U.S.C. § 1346(a) (1). The primary point to be remembered in this discussion was made by Mr. Justice Harlan in United States v. U. S. Coin & Currency, 401 U.S. 715 , 723, 91 S. Ct. 1041 , 1046, 28 L. Ed. 2d 434 (1971): " Marchetti and Grosso dealt with the kind of conduct that cannot constitutionally be punished in the first instance." Complete retroactivity has now been accorded the Marchetti-Grosso rule, U. S. Coin & Currency, supra ; United States v. Lucia, 416 F.2d 920 (5th Cir. 1969), aff'd en banc, 423 F.2d 697 (5th Cir. 1970), cert. denied, 402 U.S. 943 , 91 S. Ct. 1607 , 29 L. Ed. 2d 111 (1971), but all of the implications of retroactivity are not yet clear. At least it is known that the prosecutions of Lewis in 1958, and Willoz in 1960, were barred by the Fifth Amendment and that the resulting convictions must be vacated and set aside. With this the government concurs. The government, however, advances the transparent argument that because Willoz and Lewis both chose to plead guilty they voluntarily acquiesced in their sentences and are not entitled to reimbursement of the money which they paid as fines. Had they pled not guilty and exhausted their rights to appeal, then, implies the government, repayment would be forthcoming. This reasoning ignores the realities and imperfections in the administration of criminal justice by the courts and the prosecution, whether in a federal or state setting, and, furthermore, it characterizes the worst features of an impersonal and unresponsive governmental bureaucracy. Well before Lewis and Willoz were faced with these prosecutions, the Supreme Court had refused to extend the Fifth Amendment's protective cloak to these gambling tax requirements. Lewis v. United States, 348 U.S. 419 , 75 S. Ct. 415 , 99 L. Ed. 475 (1955); United States v. Kahriger, 345 U.S. 22 , 32, 73 S. Ct. 510 , 97 L. Ed. 754 (1953). It was not until 1968, with the Marchetti-Grosso duo, that the Lewis-Kahriger narrow view of the Fifth Amendment was abandoned. Until that time, however, this particular issue of law was considered settled doctrine and thus it is questionable whether any useful purpose is served by the debate over whether movants acted voluntarily or involuntarily in paying the fines. The important consideration is that Willoz and Lewis had no knowledge of their right against self incrimination because until Marchetti and Grosso that right was unknowable. This court agrees with Judge Wisdom's view in Lucia, supra , 416 F.2d at 922, that, in such circumstances, it is not possible to waive an unknown right. A person in the unenviable situation of one of these movants cannot freely react if he is unaware of all of his options. Consequently, a plea of guilty and the payment of a court-imposed fine in the face of the unfavorable, and since abandoned, constitutional principles embodied in Lewis, supra , and Kahriger, supra , can hardly be described as voluntary acts. This court is inclined to take the view that movants' guilty pleas were, for the purposes of this motion, less than voluntary; namely, they pleaded under the duress of penalties provided by a statute since declared unconstitutional. To have pled not guilty to all counts originally charged and to have taken the considerable risks that attend any defendant before a jury might have resulted in greater fines and/or imprisonment for these petitioners. Perhaps it is easier to understand why the retrospective application of Grosso and Marchetti should mean that movants' convictions are vacated and annulled than it is to understand why there should be restitution of the fines, but I am of the opinion that retroactivity should encompass both. True it is that the application of the retroactivity doctrine encounters conceptual difficulty *836 for those who are imprisoned and then affected by a retroactive decision, but that also is a situation which could be remedied, although it awaits for Congress to enact a scheme of compensation payments for those whom the federal government wrongfully incarcerates. But, certainly, this court's equity powers are broad enough to remedy the situation here existing in which manifest injustice has occurred. In addition, certainly the executive branch of the government can comply with this repayment order without suffering undue inconvenience or administrative hardship. While there are no means available to compensate a person who has been imprisoned for violating a statute that is subsequently found constitutionally void and retrospectively applied, there is always a means for such a person to recoup his losses when the loss takes the form of a monetary fine. The Fifth Amendment prohibition against the taking of one's property without due process of law demands no less than the full restitution of a fine that was levied pursuant to a conviction based on an unconstitutional law. Fairness and equity compel this result, and a citizen has the right to expect as much from his government, notwithstanding the fact that the government and the court were proceeding in good faith at the time of prosecution. Thus the retroactive applications of Marchetti and Grosso here will have more than simply an in futuro effect. That is, not only will the convictions be annulled so that there will be a restoration of any civil rights lost by movants due to these prosecutions, but, in addition, there will be restitution of the fines. This is a logical application of a principle that has been accorded complete retroactivity. In United States v. Rothstein, 187 F. 268 , 269 (7th Cir. 1911), the Seventh Circuit Court of Appeals, when confronted with a similar situation, stated: "Payment of the fine, even if the judgment of conviction was void, is not to be deemed a voluntary contribution to the government, and therefore is not a bar, if the recovery in other respects is sustainable." The defendant Rothstein, upon entering a plea of nolo contendere to a charge of violating an immigration statute, was convicted and fined $200.00 which fine he promptly paid. A few months later the Supreme Court declared that statute unconstitutional and Rothstein obtained a court order vacating the conviction and ordering the fine repaid. This result was cited with approval in Mossew v. United States, 266 F. 18 , 20, 22 (2d Cir. 1920). See Rio Cape Line, Ltd. v. United States, 89 Ct. Cl. 307 , 315 (1939). The government relies on the Supreme Court case of United States v. Gettinger, 272 U.S. 734 , 47 S. Ct. 276 , 71 L. Ed. 499 (1927), as standing for the proposition that a federal district court does not have jurisdiction to entertain a motion for the recovery of a fine paid after a plea of guilty or nolo contendere for the violation of a statute when that statute is subsequently declared unconstitutional. This statement of Gettinger is misleading and, indeed, the Gettinger case is quite susceptible to misinterpretation. E. g., United States v. Western Chemical & Manufacturing Co., 78 F. Supp. 983 (S.D.Cal.1948). Because of the cursory opinion rendered in Gettinger and the Court's reliance on contractual principles, I find that case distinguishable (despite the headnotes which are not fully in agreement with the text of the opinion) and inapposite. The Gettinger defendants pled nolo contendere to a Lever Act violation and they were convicted. When entering their nolo pleas, however, each defendant "undertook to `waive any and all claims which I now have or hereafter may have to any and all fines which the court may see fit to impose upon me upon such *837 plea, except in the event that the so-called Lever Act under which said indictment is founded shall be declared unconstitutional . . . .'" 272 U.S. at 735 , 47 S.Ct. at 276. The defendants promptly paid the fine imposed by the court. Later the applicable part of the Lever Act was declared constitutionally defective and defendants claimed that the government was contractually obligated to repay the fine. To this the Supreme Court stated: "The attempt by plaintiffs in error to reserve rights if the Lever Act should be held unconstitutional amounted at most to a protest, possibly sufficient to overcome the suggestion of an estoppel, but no contract arose out of it which obligated the United States to return the fine. Neither the court nor any federal officer had authority to make such an agreement." 272 U.S. at 735, 47 S. Ct. at 276 . The Gettinger Court simply found no implied contract and thus held that the government was not obligated to repay the fines on that theory. To expand that holding as the government now urges is unwarranted. Accordingly, it is ordered that for the reasons assigned above the motions of Jack L. Lewis and James Louis Willoz in the nature of applications for writs of error coram nobis be granted and that the conviction of Lewis in 1958, for violation of 26 U.S.C. § 4411 and 26 U.S.C. § 4401 in Criminal Action 26,105 be and it is vacated, annulled, and set aside; and that the conviction of Willoz in 1960 for violation of 26 U.S.C. § 4411 in Criminal Action 26,943 be and it is vacated, annulled, and set aside. It is further ordered that there be restitution by the government of the fine paid by Lewis in 1958, in Criminal Action 26,105 in the amount of $2,000.00; and of the fine paid by Willoz in 1960, in Criminal Action 26,943 in the amount of $1,000.00. The Clerk will prepare a judgment to this effect. | opinion_html_with_citations | 2,136 | 2013-10-30 09:10:16.325234+00 | 010combined | f | f | 2,339,505 | Christenberry | null | LU | f | Published | 19 | United States v. Lewis | Lewis | UNITED STATES of America v. Jack L. LEWIS; UNITED STATES of America v. James Louis WILLOZ Et Al. | null | null | <parties id="b893-4">
UNITED STATES of America v. Jack L. LEWIS. UNITED STATES of America v. James Louis WILLOZ et al.
</parties><docketnumber id="AiB">
Crim. Nos. 26105, 26943.
</docketnumber><br><court id="b893-8">
United States District Court, E. D. Louisiana.
</court><br><decisiondate id="b893-9">
May 26, 1972.
</decisiondate><br><attorneys id="b894-10">
<span citation-index="1" class="star-pagination" label="834">
*834
</span>
Virgil M. Wheeler, Jr., New Orleans, La., for movants, Lewis and Willoz.
</attorneys><br><attorneys id="b894-11">
Gerald J. Gallinghouse, U. S. Atty., by John R. Schupp, Asst. U. S. Atty., E. D. La., New Orleans, La., for the government.
</attorneys> | null | null | null | null | null | null | 2,209,628 | Crim. 26105, 26943 | 1 | laed | FD | t | E.D. Louisiana | District Court, E.D. Louisiana |
8,779,700 | FOLLMER, District Judge. Plaintiff, Marcellus C. List, brings this action against Roto-Broil Corporation of America and Roto Supply Sales, defendants, for personal injuries which he sustained in an automobile accident allegedly caused by the negligence of defendants’ driver, Kenneth Walters. Defendants now desire, under Rule 14(a) of the Federal Rules of Civil Procedure, to implead their own driver as a third-party defendant on the theory that said driver “is or may be liable” to them for all or part of plaintiff’s claim. Plaintiff objects. Plaintiff filed with his brief an affidavit indicating that both defendants; and defendants’ employee, Walters, are-protected by the same policy of liability insurance. This has not been denied by defendants. It would therefore seem to follow that any judgment secured would be paid by this insurance company. There is a considerable divergence of opinion on this matter. However I share with Judge Dimock his conviction against the practice of joining straw-man defendants. Goodhart v. United States Lines Company, 26 F.R.D. 163 (S.D.N.Y. 1960). Whatever reasons; may be given in favor of the motion, I do not feel they are of any real substance. In Buchholz v. Michigan Motor Freight Lines, 19 F.R.D. 407 (E.D.Mich., 1956), in refusing motion to implead, the Court, said, inter alia: “In the case at bar defendant seeks; to have the driver made a party defendant with the jury apparently under the false impression that the driver—not defendant nor any insurance company—must pay any judgment the jury may render in favor of plaintiff. Whether all juries would see through such a scheme—if such is the intent— *32this court doesn’t profess to know, and, while extremely large verdicts in past cases have undoubtedly prompted a desire of some insurers to ‘fight back’ so to speak, in our opinion, it is just as wrong for defendant to play upon emotions of the jury in this manner as it is for plaintiff to inject the insurance coverage before the jury.” {Emphasis supplied.) Furthermore, Rule 14(a) does not permit the joinder of persons who are or may be liable to plaintiff directly. Higgins et al. v. Shenango Pottery Co. et al., 12 F.R.D. 510, 514 (W.D.Pa., 1952); Buchholz v. Michigan Motor Freight Lines, Inc., 19 F.R.D. 407, 410 (E.D.Mich., 1956). Here the driver either is or may be liable to plaintiff. Motion will be denied. | opinion_xml_harvard | 389 | 2022-11-26 13:13:54.213406+00 | 020lead | t | f | 8,795,637 | Follmer | null | U | f | Published | 0 | List v. Roto-Broil Corp. of America | List | Marcellus C. LIST v. ROTO-BROIL CORPORATION OF AMERICA and Roto Supply Sales | null | null | null | null | null | null | null | null | null | 66,061,753 | Civ. A. No. 9110 | 0 | pamd | FD | t | M.D. Pennsylvania | District Court, M.D. Pennsylvania |
4,177,745 | NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted June 14, 2017* Decided June 15, 2017 Before JOEL M. FLAUM, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 17‐1305 GREGORY DABBS, Appeal from the United States District Plaintiff‐Appellant, Court for the Central District of Illinois. v. No. 16‐CV‐1463 PEORIA COUNTY, ILLINOIS, et al., Joe Billy McDade, Defendants‐Appellees. Judge. O R D E R Gregory Dabbs, an Army veteran, appeals the dismissal of his civil‐rights suit against Peoria County and two county officials for constitutional violations arising out of (1) the denial of his application for state veterans’ benefits and (2) a subsequent * We have agreed to decide the case without oral argument because the brief and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C). The defendants were not served with process in the district court and are not participating in this appeal. No. 17‐1305 Page 2 altercation that resulted in his arrest. The district court concluded that his complaint did not state a claim upon which relief could be granted and dismissed it. See 28 U.S.C. § 1915(e)(2)(B)(ii). We agree that his allegations do not state a claim and affirm. As he set forth in his amended complaint, Dabbs, through an Illinois veterans program, requested payment from Peoria County for a utility bill. The defendants, he alleges, unlawfully denied his request, and as a result he was without utilities for more than a month. Dabbs also alleges that days after he was denied payment, he was unlawfully arrested for “petty disorderly conduct” and involuntarily committed to a local hospital. Roughly one year later Dabbs brought this lawsuit and, in his amended complaint, asserts that his constitutional rights were violated. He does not, however, identify the particular defendants or misconduct that caused these violations. The district court screened the amended complaint under § 1915(e)(2)(B)(ii) and dismissed it with prejudice for failure to state a claim. Dabbs, the court explained, did not “provide more than wholesale recitations of legal conclusions, which are devoid of facts upon which a claim of relief can be granted,” nor did he give the defendants proper notice of the particular claims he meant to assert. Dabbs’s brief on appeal does not develop any argument, see FED. R. APP. P. 28(a)(8)(A), but we can discern at least one issue for review—whether the district court wrongly determined that the defendants “would not understand what they were being sued for.” But even if we, as did the district court, give Dabbs’s amended complaint the lenient reading that pro se pleadings deserve, his conclusory assertions of constitutional violations do not specify which defendants were responsible for which allegedly unlawful acts. To survive a motion to dismiss, a complaint must give defendants “fair notice of what the . . . claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and citation omitted). Because Dabbs’s amended complaint does not meet this requirement, the judgment is AFFIRMED. | opinion_html_with_citations | 534 | 2017-06-15 16:05:25.410014+00 | 010combined | f | f | 4,400,492 | Per Curiam | civil | C | t | Unpublished | 0 | Gregory Dabbs v. Peoria County, Illinois | null | null | null | null | null | null | null | null | null | null | null | 6,074,724 | 17-1305 | 0 | ca7 | F | t | Seventh Circuit | Court of Appeals for the Seventh Circuit |
8,340,141 | White, J. I dissent from the judgment of the court in this case. In regard to the statement accompanying the opinion, I will merely say that I do not assent to it as containing a full presentation of the circumstances of the case. I do not propose, however, to enter into a general review of the case, but to state briefly the grounds of my dissent. *614The case has already been before the court on error, and is found reported in 20 Ohio St. 517. The will was also brought before the court for consideration in the case of Davis et al. v. Boggs et al., Id. 550. In these cases the will is, in substance, set out., Three tracts of land were disposed of by the will, besides the lands in controversy in this case. One of them being described as the farm on which the testator formerly resided. In regard to the present ease, I will say, in the first place, it is very questionable whether a verdict in favor of the plaintiffs below ought, upon any aspect of the testimony, to be sustained, even if the charge of the court to the jury were unobjectionable. But it seems' quite plain to me that the charge was calculated to mislead the jury, and that the verdict Óf the jury is attributable to the misleading nature of the charge. And this is especially true in view of the character of the evidence before the jury. At the time of making his will, in 1842, the testator owned a body of land consisting of about 490 acres, on which he resided. From about the year 1833, this body of land was farmed as one farm. It was divided into various fields; but for some years prior to the making of the will there was nothing on the land or in the mode of its cultivation indicating that the body of land consisted of two farms. Testimony was admitted by the court against the objections of the defendants of various declarations of the testator, made before and after the making of the will, in regard to the lands in question, and which were admitted and allowed to be used by the jury to show what the testator meant to devise by the following clause of his will, viz : “ I give and bequeath unto my beloved wife the whole of my home farm, where I now reside, as an estate in fee simple.” That is, whether he meant to devise the whole tract, or only about 150 acres off the south end of the tract. The general character of this evidence is illustrated by the following extract from the testimony of Mrs. Grondo Taylor, taken from the bill of exceptions, viz : *615“ Ques. Mrs. Taylor, do yon know of any division of that property while you lived there ? “ Ans. I heard uncle (Capt. Taylor) tell just where the line was. - “ Ques. The line of what ? “ Ans. Between the Joe Boyd and the home place. “ Ques. What did you hear Capt. Taylor say, and to whom? “Ans. I heard him tell aunt (Mrs. Jane Taylor) just where the line was between the two places—the Joe Boyd place and the home place. “ Ques. What did he say to her ? “ Ans. He told her that the line went along the south line of the Pelham lot down across the corner of the meadow, and between where the machine-house stood, where they thrashed their grain, and the brick-kiln ; from that to the river. “ Ques. When was it you heard him tell that ? “ Ans. I think it was the summer before he died ; the fore part of the summer. He told her where the line was at the other side of the place too.” The line referred to by this witness, as described by Capt. Taylor, constituted, as the plaintiffs below claimed, the north boundary of his “ home farm.” The lands north of that line they sought to recover in this action, as not being part of the “ home farm ” devised to the widow, and which they claimed as residuary devisees under the will. Under this state of the evidence, the court instructed the jury, among other things, as follows : “ You will look to all the evidence admitted by the court, and determine what the testator meant by his home farm at the time he made his will—what it is that corresponds with that description. “ What lands did he mean when he used the words ‘ the whole of my home farm where I now reside ?’ When he used these words he evidently supposed they were sufficiently definite in meaning to enable all parties concerned to determine what land he intended to give his wife. *616“ In this action the plaintiffs must recover, if they recover at all, by satisfying you by a preponderance of proof that they have title to the lands claimed by them, or some definite and ascertained part thereof. Keeping, then, this rule in your mind, and applying it to the evidence, ascertain what parcel of land did Captain James Taylor intend to pass to his wife when he devised to her his home farm; that farm she would take under the will, and the plaintiffs will take his other lands, if any remain, described in the petition. “ If the plaintiffs, by their proof, have convinced you that at any time after Captain Taylor topic back the lands from Boyds he regarded such lands as two distinct farms; if they were two distinct farms in his mind, with a definite boundary between them, and so treated and used by him, one of tohich he regarded and in his mind was his home farm, and was so denominated by him, the presumption is that he continued so to regard it, and you must so find, unless the proof shows you that he afterward changed his mind and manner of treating it, and afterward considered, designated and treated it as one farm.” It is manifest from these instructions, that the declarations of the testator were not merely to be used by the jury as bearing upon the question whether the whole body of land constituted in fact two farms, or but one; but as direct evidence to show the testator’s intention. So that, if the jury found that there was in fact but a single farm, yet if they found, from the declarations of the testator, that he regarded the lands in his mind as two farms, the j ury were to so regard it, without reference to what the fact might be. What the testator meant is to be ascertained by the language contained in the will. “ The question, in expounding a will, is, not what the testator actually intended as contradistinguished from what his words express, but what is the meaning of the words he has used.” The words of a will are to be understood in their strict and primary meaning, unless it appears from the context they are used in a different sense. Where there is nothing in the context showing the words to be used in any other *617than their strict and primary sense, and the words as so understood are sensible with reference to extrinsic circumstances, it is laid down by Wigram as an inflexible rule of construction that the words are to be interpreted in that sense and in no other, although they may be capable of some secondary interpretation, and although the most conclusive evidence of intention to use them in such secondary sense be tendered. The language of the will is, of course, to be read in the light of the state of things existing at the time the will was made and to which it relates. This state of things is provable by parol evidence, and constitutes the extrinsic facts in the light of which the will is to be construed and applied. The parol evidence must be pertinent and material to the fact to be established, and should be limited to the purposes for which it is introduced. In the present case, the testator admittedly had but one home farm, and the question in controversy was as to the extent of that farm. The defendants claimed that the farm consisted of the entire 490 acres; while the claim of the plaintiffs was that the whole body of land constituted two farms. Any evidence tending to show whether the entire body of land constituted in fact two farms or only one, was pertinent and material. Whether there were two farms or only one, was a question of fact to be determined upon the evidence. But if, in view of all the evidence, the whole body of land constituted in fact a single farm, it could not be made two, by showing by parol testimony that the testator so intended, or so regarded it in Ms mind. A devise of a particular farm or parcel of land can not be defeated by showing by parol that it was the intention of the testator to devise but part of it. Under the ambiguous nature of the charge, the jury were allowed to resort to parol evidence as a direct means of ascertaining the meauing and intention of the testator. The intent and meaning as thus ascertained, they were, in effect, told to regard as the meaning of the will. This was putting the oral testimony.on an equal footing with the lan*618guage of the will, as a means of ascertaining the intention of the testator. The dangerous character of such evidence is manifest in this case. The declarations of the testator occurred more than thirty years before the witnesses were called on to testify concerning them, and when, in the nature of things, many of the circumstances attending the making of the declarations and explanatory of them would be forgotten. And yet these declarations were submitted to the jury as evidence of the intention of the testator, to control what would' otherwise be the plain meaning and operation of the will as applied to the subject of the devise. No where in the charge was it submitted to the jury to determine, as a question of fact, whether the whole body of land constituted one farm or two farms; but they were directed to ascertain how it was regarded in the mind of the testator, without reference to how it was in fact. In my view, the way in which the case was tried was an indirect, though an effectual mode of subverting the policy of the law which requires wills to be made in writing, and tbat, for this reason, the judgment should be reversed. Rex, J., concurred in the dissenting opinion. | opinion_xml_harvard | 1,812 | 2022-10-17 23:34:58.67787+00 | 040dissent | t | f | 8,371,036 | Gilmore, McIlvaine, Rex, Welch, White | null | U | f | Published | 0 | Boggs v. Taylor | Boggs | John Boggs and others v. Thomas F. Taylor and others | <p>Error to the Court of Common Pleas of Muskingum ■County. Reserved in the District Court.</p> <p>In 1842, James Taylor, being seized of a tract of land containing about 490 acres, on which he then resided, and also of several other tracts of land, on one of which he had formerly resided, made his last will and testament, containing, among others, the following devise :</p> <p>“ First. I give and bequeath mito my beloved wife, Jane Taylor, the whole of my home farm, where I now reside, as an estate in fee simple.”</p> <p>After devising several other parcels of real estate to different parties, the testator directs that all his real estate, ■except the “ home farm ” (and other lots and parcels so specifically devised), be equally divided between tbe children of Grondo Taylor.</p> <p>The action below was brought by the defendants in error,, who are the children of Grondo Taylor, or their representatives, against the grantees of the widow, to recover possession of about 340 acres, the north part of said tract of' 490 acres, on the ground that said 340 acres constitute no part of the “ home farm,” which it is claimed consisted of only 150 acres, the south part of the 490 acre tract. The-defendants claimed that the “ home farm,” within the true meaning of the will, consisted of the entire tract of 490-acres. "What was the “ home farm ” of the testator, within the meaning of the will, was, therefore, the only question involved in the action. If it consisted of the 150 acres only, then the 340 acres passed to the children of Grondo Taylor. If it consisted of the 490 acres, the whole, of course, vested-in the widow, and passed, by her conveyance, to the defendants.</p> <p>The history of this tract of 490 acres, as disclosed by the-evidence admitted on the trial, is substantially as follows: The south part of the tract, containing some 225 acres, was purchased by the testator in 1806, and he resided upon and cultivated it till 1817, having cleared and fenced the south 150 acres, now claimed by the plaintiffs in error to be the home farm, the north fence of the 150 acres being identical with the line now claimed to be the north line of the home farm, and that part of the 225 acres lying north of the fence being wood land. In 1817, the testator purchased 730 acres of wild land lying north of the 225 acres, and then conveyed the entire tract of 961 acres to John Boyd and Joseph Boyd. The Boyds made partition of the land, John taking the 150 acres south of this fence, and about 138 acres in the south-west part of the remainder. All of this 138 acres, however, except about 38 acres, was laid out by John into village lots, and sold by him, leaving John in possession of the 150 acres south of the fence, and some 38 acres north of the fence, but disconnected with the 150 acres south of the fence. The Boyds resided upon and farmed their re spective portions of the land until 1826, when they reconveyed to the testator the 490 acres in controversy, being the entire tract of 961 acres, except the village lots and about 371 acres on the north end of the entire tract. So that, at. the time of the reconveyance to the testator, the two farms of the Boyds constituted a single body of land, the division line between them being this north fence of the 150 acres, -except that the 38 acres north of the fence disconnected from the 150 acres, belonged to John. In 1826, the testator, who then resided on another farm, resumed his old resi•dence on the 150 acres, where he continued to reside until the time of his death, which took place in 1843. From 1826 to 1833, the testator cultivated the 150 acres as a separate farm, and the 340 acres north of the line fence was cultivated as a separate farm by tenants of the testator. From 1833 to the time of his death, the entire 490 acres were cultivated as a single farm, under the management of said Grondo Taylor, who occupied the old “ Jo. Boyd house,” on the 340 acres, and acted as agent and superintendent for the testator. During all this time, from 1826 to 1842, the testator was in the habit of calling the 150 acres where he resided his “home farm,” and the 340 acres the “ Jo. Boyd farm.” Soon alter Grondo Taylor took charge of the premises, it seems, the testator objected to the removal or change of this line fence, insisting that it should remain as a line fence, but he afterward seems to have acquiesced in its removal or change, and the fields were ultimately changed and shaped in disregard of this line, and were in that condition at the date of the will.</p> <p>This testimony, that the testator was in the habit of calling the 150 acres his “home farm,” and the 340 acres the “ Jo. Boyd farm,” was admitted by the court against the objection of counsel for defendants, and they took exception to the ruling of the court.</p> <p>"When the evidence had closed, the court instructed the jury, among other things, as follows :</p> <p>“ If the lands in controversy did not form a part of the Rome farm of Captain Taylor at the date of the will, then the plaintiffs are entitled to recover as devisees of the residue of the testator’s estate.</p> <p>“ The operation of the will is to be determined by the language it contains, but parol evidence is admissible to show what it is that corresponds with the description.</p> <p>“ The testator admittedly had hut one home farm, and the question for you to determine is as to its extent or boundaries.</p> <p>“ You will bear in mind that the question for you to decide is what it is that corresponds with the words ‘ home farm’ at the time these words were written in his will, and approved by him when he placed his signature to his will.</p> <p>“ What lands did he mean when he used the words * the whole of my home farm where I now reside?’ When he used these words he evidently supposed they were sufficiently definite in meaning to enable all parties concerned to determine what land he intended to give his wife.</p> <p>“If Captain Taylor regarded and treated these lands as two distinct farms, one of which he regarded as his home farm up to the time when Grondo came to live on them, the fact that Grondo took charge of both farms (if you find there were two farms) and worked them both for Captain Taylor until he died, would not necessarily destroy the identity of the two farms and make them thereafter one farm in the mind, of Captain Taylor.</p> <p>“ Captain Taylor might have two farms, and consider them two farms, and have them both worked together for him by one man, and all the time regard them as two farms, one of which he might regard as his home farm, and so devise it, and, also, he might have two farms and consolidate them, and regard them, and devise them as one. And it is for you to say from the evidence and all the facts and circumstances in this ease how the fact was.</p> <p>“ But the fact, if you find it to be a fact, that the land was farmed as one body for a series of years prior to, and up to the time of, making the will, is a matter to be considered by you in determining whether, at the time the will was made, Captain Taylor considered the tract as one or more than one farm.”</p> <p>To these instructions the counsel for defendants excepted; and they asked the court to charge the jury, that the question for them to decide was not what the testator considered to be his “ home farm,” or what he intended by those words, but what in fact, at the date of the will, was his home farm. But the court refused to modify its charge, and the counsel excepted.</p> <p>Under this evidence and these instructions, the jury found a verdict for the plaintiff', and the court, after overruling a motion by the defendants for a new trial, rendered judgment upon the verdict; and it is now claimed that the court erred in admitting this testimony,in its instructions to the j'i’~. and in refusing a new trial on the ground that the verdict was against the evidence.</p> <p>The court erred in its charge to the jury by in substance telling them that their verdict was to be controlled, not. by tlieir.finding that there was in fact but one farm when the will was made, but by their finding on the question, “Bid Captain Taylor in his mind regard or consider the land as one farm, or as two farms ?”</p> <p>In a certain sense it is true that what Captain Taylor meant must control.</p> <p>The law gave him the right to put his meaning into the form of a will. He exercised that right, and that will having been admitted to probate, the inquiry changes its form, and reads: “ What lands passed to Mrs. Jane Taylor in fee-simple by virtue of the language used in the first clause of the will ?”</p> <p>Until it is made to appear that, under the rules of the law, this question can not be answered without looking to Captain Taylor’s conversations, no evidence of such conversations is admissible. The words of the will must first be éxamined.</p> <p>If it then becomes necessary to introduce parol evidence to explain the will, such evidence must be of facts, not thoughts ; evidence showing what land was the farm on which the testator resided—not what he “ in Ms mind” considered that farm. 20 Ohio St. 537 ; Beaumont v. Fell, 2 Peere "Williams, 141; Doe v. Taylor, 1 Allen (N. B.) 425; 1 Greenl. Ev. secs. 290, 291, and cases there cited. And as to what evidence is admissible in the construction of a will, see "Wigram, 8-11, 13; 5 B. & Adol. 129 ; lb. 663 ; Colins v. Hope, 20 Ohio, 500; 5 Scott (N. R.) 1037; 70 Eng. Com. Law, 544; 30 lb. 266; 2 Ohio St. 382; 2 Starkie on Ev. 768-770; 3 lb. 1269; 4 M. & S. 550; 3 Taunton, 147; 2 Ves., Sr., 216; 1 .Ves., Jr., 412 ; 18 How. 385 ; 1 Greenl. 290 ; 11 How. 329 ; Jannau (2 Am. ed.) 351; 11 East, 441; 3 M. & S. 171; 5 Hev. & M. 391; Mann v. Mann, 1 Johns. Oh. 231; Torbert v. Twining, 1 Yates, 432; McGlay ,v. Hugers, 6 Watts, 345 ; Ccesar v. Chew, 7 Gill. & John. 127; Bicharás v. Dutch, 8 Mass. 506 ; Crocker v. Crocker, 11 Pick. 252 ; 4 B. & A. 57; 7 Met. 188; Hiscocks v. Hiscocks, 5 M. & W. 363; 12 Grattan, 196; Long v. Duvall, 6B. Mon. 219 ; Jackson v. Sill, 11 John. 201; Guy v. Sharp, 1 My. & K. 589 ; 1 Nev. & M. 524 ; Thompsons. Hempenstall, 13 Jur. 815; King v. Ackerman, 2 Black. (N. S.) 408; 2 Binn. 238; Plowd. 195 ; Touch. 93 ; 1 Tho. C. Litt. 208.</p> <p>The court, in substance, directed the jury to ascertain from the evidence—</p> <p>1. What the testator meant, instead of what do the words in the will mean.</p> <p>2. What lands did the testator intend to pass by the words employed, instead of what lands does the will convey.</p> <p>3. That the jury should find whether there were twe farms in the mind of Captain Taylor, instead .of whether there were two farms in fact.</p> <p>These directions to the jury, we submit, were clearly erroneous.</p> <p>The word farm has a definite and legal signification; and when used in a will, must be construed in its strict and primary sense, unless the context of the will shows it to have been used in a secondary sense.</p> <p>The word farm having a definite and legal meaning, to allow the jury to look to parol testimony to ascertain what Captain Taylor meant or intended, is not to give effect to the written will, but to make a will by parol; and this is what the law does not permit.</p> <p>I. The words “ hotne farm,” found in this devise, are not of such definite and uniform significance that we can ascertain what is the “ farm,” by any standard of physical facts. We may therefore prove, by the declarations of the testator, how he used these words in his lifetime ; what it was to which he applied the terms; and thus learn what he understood to be signified by the same terms found in his will. Byers, v. Wheeler, 22 Wend. 148; Luke of Leeds v. Amherst, .9 Jur. 359; Carnoys v. Blundell, 1 H. L. C. 778; Bichardson v. Watson, 4 B. & Adol. 800.</p> <p>II. Where the terms used to designate the subject of a devise are, in themselves, equivocal, or are made in view of the circumstances under which they are used, and when there are two or more subjects to which the terms are equally applicable, the declarations of the testator may be looked to in determining to what or to which he applied such terms.</p> <p>We have, in the will under consideration, an equivocal description. Of course, there was but one “ home farm ; ” but that home farm might be one body of land, or it might be more than that body. That description is equivocal, “ where one name and appellation doth denominate divers things.” Bac. Max. 23.</p> <p>There were two farms when Captain Taylor returned to the land: one of them had theretofore been his home farm; the other had not. The home farm he lived on; the other Grondo lived on. We find him qualifying—circumscribing—his designation by “ where I now reside.” If he applied these terms to one body of land or to the other, no violence is done to language. Reynolds v. Whelan, 16 L. J. N. S. Ch. 434; Hampshire v. Pierce, 2 Ves. sen. 216; Wigram, VII, Prop.; Hawkins on Wills, 9; Thomas v. Thomas, 6 Tenn. 671; 4 Ves. jun. 680; 2 Vern. 593; Beaumont v. Fell, 2 P. Will. 140; 10 Leigh, 199; 20 Ohio, 157; 1 Paige, 270 ; Hiscocks v. Hiscoeks, 5 M. & W. 363 : 2 Parsons on Con. 560, et seq.; 1 Redfield, 591, see. 22; lb. 650.</p> <p>III. As between devisees under the same will, the declarations of the testator may be given in evidence, to fix a division line which may not be ascertained by means afforded ■by the will itself. Doolittle v. Blakely, 4 Day, 265.</p> <p>“ Home farm ” had the same significance to Captain Taylor that the words have to us. How large that home farm was, Captain Taylor had the right to determine; and the jury were to ascertain how he had determined it.</p> <p>The jury were told to ascertain the understanding of ■'Captain Taylor as to the land described, in view of the circumstances, and which is identical with our understanding of the land described, under the same circumstances. Here are words of a will, and here are circumstances attending the use of those words. The circumstances fix a meaning to the words to us and to the mind of Captain Taylor, and these are identical.</p> | null | null | <p>1. Where words in a will are fairly and. legitimately applicable to one thing as its name, and are equally applicable to another thing as words of description, parol evidence is admissible to show in which of the two senses the testator was in the habit of using the words.</p> <p>2 Where a testator owned two adjoining farms, which had been for many years cultivated and managed as separate and distinct farms, and were known and designated by him by different names, the farm on which he resided, and which was cultivated by him, being called by him the “ Home Farm,” and the other, which was cultivated by tenants, the “Jo. Boyd Farm; ” hut for several years next preceding the date of his will these farms had béen managed and cultivated by an agent of the testator, as one farm, without regard to the division line between them; and the testator, by his will, devised his “home farm” to his wife. Held: That parol evidence was admissible to prove that the testator was in the habit, as well after the two farms had become so united in their management, as before, and down to the time of making his will, of calling the two farms by their former names, designating the one on which ho resided as the “ Home Farm,” and the other as the “Jo. Boyd Farm.”</p> <p>5. Seld, also: That it was not error in the Court to instruct the jury that it was for them to decide in which of the two senses the testator used the words “ home farm,” whether as designating the old home farm, or the entire tract composed of the two thus united.</p> | null | null | null | null | null | 65,551,832 | null | 0 | ohio | S | t | Ohio Supreme Court | Ohio Supreme Court |
6,466,910 | OPINION SUTIN, Judge. {1} We again address the battles between certain descendants of Jose Maria Montoya (the Montoyas) and a land grant known as the Tecolote Land Grant (the Land Grant). Our last significant involvement was Montoya v. Tecolote Land Grant ex rel. Tecolote Board of Trustees, 2008-NMCA-014, 143 N.M. 413, 176 P.3d 1145. The appeal now before us involves unfinished business: whether Montoya controls and precludes the title and possessory claims by the Montoyas to property called the Montoya Ranch that exists within the exterior boundaries of the Land Grant. {2} We begin with the historical birth of a land grant and its evolution into a congressional establishment of the Land Grant and a patent that conveyed it. Afterward, we describe the 1999 case filed by the Montoyas against the Land Grant (the 1999 Montoya action) that ended in 2005 with a district court quiet title judgment favoring the Montoyas as to an area some 19,320 acres in size, which included a smaller acreage consisting of the Montoya Ranch. In Montoya, we reversed the district court quiet title judgment in the 1999 Montoya action, based on a rule called the “Tameling bar” derived from Tameling v. United States Freehold & Emigration Co., 93 U.S. 644 (1876). The Tameling bar precludes courts from exercising jurisdiction over claims to land grant land confirmed by Congress and conveyed by a patent if the claims altered the origin, nature, character, or size of the land grant. We then discuss the case now before us on appeal, which is a district court case filed by the Land Grant against the Montoyas in 2010 for trespass relief related to the Montoya Ranch (the 2010 Land Grant action). The district court ended the 2010 Land Grant action by entering a summary judgment in 2012 in favor of the Land Grant on the ground that the district court in the 1999 Montoya action lacked subject matter jurisdiction in relation to the Montoya Ranch. The Montoyas have appealed that summary judgment. We hold that Montoya does not control the issue of subject matter jurisdiction in regard to the Montoyas’ claim to the Montoya Ranch, and we reverse the district court’s determination otherwise in the appeal now before us. BACKGROUND History: Original 1824 Grant to 1902 Patent {3} The history of the Land Grant, starting in 1825 after Mexico achieved its independence from Spain until issuance in 1902 of a United States patent to the Town of Tecolote, is well presented in Montoya, 2008-NMCA-014, ¶¶ 7-19. Briefly, a land grant originated in 1825 when Mexico placed Salvador Montoya and five others in possession of the land. Id. ¶ 7. An 1838 judicial “Repartimiento” divided that land grant into two parcels, one parcel allotted to Salvador Montoya and the other parcel allotted to other individuals. Id. ¶ 8. In 1856 the New Mexico surveyor general, whose office was created in 1854 by Congress to conduct administrative proceedings to determine the status of land grant claims, was petitioned to confirm the original land grant on behalf of two different groups: (1) Salvador Montoya’s heirs, and (2) the inhabitants of the Town of Tecolote. Id. ¶¶ 6, 9. The surveyor general, however, recommended to Congress approval of a community land grant solely to the Town of Tecolote, and in 1858 Congress confirmed the grant as the Land Grant, that is, a Town of Tecolote community grant, omitting any private grant to Salvador Montoya or others including his son, Jose Maria Montoya. Id. ¶¶ 9-11. {4} A survey in 1881 showed that the Land Grant consisted of 48,123 acres. Id. ¶¶ 12-13. In 1885, heirs of Salvador Montoya requested the General Land Office of the Department of Interior to cause the original 1825 land grant to be confirmed as a private grant to Montoya and his heirs and not a community grant to the Town of Tecolote. Id. ¶¶ 8, 12-13. The heirs contended that the original grant was to Salvador Montoya and his five associates, not to any town, and that the United States government had no right to divest their title. Id. ¶ 13. The General Land Office rejected the Montoya heirs’ request and, following the 1858 congressional confirmation of the land grant to the Town of Tecolote, the United States issued a patent in 1902 to the Town of Tecolote as the Land Grant, a community grant. Id. ¶¶ 13, 15, 16. {5} In the 1999 Montoya action, descendants of Salvador Montoya, the Montoyas, sued the Land Grant seeking to establish the Montoyas’ ownership of 19,320 acres within the boundaries of the 48,123-acre community Land Grant. Id. ¶¶ 17-18, 28. The 1999 Montoya Action {6} In the 1999 Montoya action against the Land Grant, the Montoyas sought to quiet title and a declaratory judgment declaring that the Montoyas owned approximately 19,320 acres within the boundaries ofthe Land Grant, in fee simple, and superior to any interest the Land Grant may claim, and further seeking trespass and injunctive relief. The Land Grant counterclaimed for quiet title in favor of the Land Grant and against the adverse claims of the Montoyas. {7} The 1999 Montoya action was tried March 31-April 3, 2003. Before addressing the issue relating to the full 19,320 acres, the parties and the court focused on the Montoya Ranch acreage that was located within the 19,320 acres. Shortly after the trial, on May 2, 2003, the court entered a Partial Stipulated Order and Judgment specifically pertaining to the Montoya Ranch, stating: [The Montoyas]... have title as against . . . Land Grant for the property more commonly known as the “Montoya Ranch” as described in the [Land Grant’s] Exhibits EE-1 through EE-9, attached hereto as Exhibit A. . . . This Partial Stipulated Order and Judgment does not resolve any other issues in this case. This Partial Stipulated Order and Judgment plays a major role in this appeal. We refer to it as “the Partial Stipulated Judgment.” The exhibits referred to in the Partial Stipulated Judgment consisted of nine 1899 (recorded during 1901-1903) deeds whose grantor was Jose Maria Montoya. {8} On September 17, 2003, the district court entered findings of fact and conclusions of law. The court found that the Land Grant Board of Trustees recognized the 1899 Jose Maria Montoya deeds “as valid conveyances . . . and cover the property known as the ‘Montoya Ranch’ ” and that “the [Land] Grant claims no common lands within the boundaries of these properties.” With the Montoya Ranch (which was located within the 19.320 acres) in undisputed ownership of the Montoyas, the court turned its focus to the 19.320 acres, excluding the Montoya Ranch. The court determined in its findings of fact and conclusions of law that the Montoyas had acquired title by adverse possession to the remaining portions of the 19,320 acres not including the Montoya Ranch already titled in the Montoyas pursuant to the parties’ Partial Stipulated Judgment. {9} The court entered a judgment and order on November 17, 2003, related to the remaining 19,320 acres, which we refer to as “the 2003 Judgment.” The 2003 Judgment did not mention the Partial Stipulated Judgment or the Montoya Ranch. The 2003 Judgment adopted the court’s findings of fact and conclusions of law, confirmed the Montoyas’ adverse holdings as to the remaining 19,320 acres, directed the parties to ascertain the boundaries of the acreage in question with a survey, retained jurisdiction for further proceedings in relation to the boundaries, and stated that the 2003 Judgment was not final for the purposes of appeal. {10} Following receipt of the survey of the boundaries, the court entered on October 5, 2005, a final judgment for quiet title, which we refer to as the 2005 Quiet Title Judgment. In this 2005 Quiet Title Judgment, the court determined that the survey identified by specific boundaries the lands which the Montoyas claimed as their adverse holdings, and the court quieted title in the Montoyas their right, title, and interest in the 19,320 acres against the Land Grant. Again, there was no mention of the Partial Stipulated Judgment in the 2005 Quiet Title Judgment. The Land Grant’s Appeal From the 2005 Quiet Title Judgment {11} The Land Grant appealed the district court’s Quiet Title Judgment. The Land Grant’s docketing statement raised six points on appeal, none of which attacked any finding or holding of the district court in regard to the Montoya Ranch or attacked any claim by the Montoyas to a possessory right and title to the Montoya Ranch. Likewise, nothing in the record before us indicates the Land Grant was appealing from or attacking the validity or viability of the Partial Stipulated Judgment relating to the Montoya Ranch. On the contrary, in its docketing statement, the Land Grant stated as a “relevant fact,” with respect to the Partial Stipulated Judgment, that “[djuring the course of [the] proceedings, the parties stipulated to the Montoyas’ title to a portion of the disputed property, known as the ‘Montoya Ranch,’ ” which was deeded by Jose Maria Montoya to various members of the Montoya family between 1901 and 1903. In describing the course of proceedings, the Land Grant stated that “the parties stipulated to . . . vesting title to a portion of the disputed property, known as the Montoya Ranch, in the Montoyas.” {12} Further, in their reply brief, the Land Grant stated in a footnote that “[t]he property deeded by Jose Maria Montoya to his heirs has been recognized by [the Land Grant] as the ‘Montoya Ranchf.]’ ” In addition, the Land Grant stated that “the recognition of the ‘Montoya Ranch,’ which probably is much smaller than the 5,380 acres claimed by the Montoyas, is not the same thing as recognition of the Montoyas’ alleged adverse possession of the 19,320 acres in the Doak Survey between 1840 and 1901.” The Land Grant also stated that “[u]nlike the Tecolote common lands described in the Doak [s]urvey, the ‘Montoya Ranch’ area was occupied by the present day Montoyas at the time they filed their claim in 1999.” And, referring to the Montoya Ranch, the Land Grant also stated that there was “no inconsistency between [the Land Grant’s] post-trial discretionary concession of acreage which continued to be occupied by the present day Montoyas, and [the Land Grant’s] continued opposition to vesting title to 19,320 acres on the basis of an occupation by Montoya ancestors in historic times.” The 2008 Court of Appeals Montoya Opinion {13} Montoya reflects the Land Grant’s appeal from the 2005 Quiet Title Judgment. 2008-NMCA-014, ¶¶ 18-19. Relying on the Tameling bar, this Court in Montoya reversed the district court on the ground that the district court lacked subject matter jurisdiction to determine title, in that “the district court had no authority to alter the terms of the [congressional [c]onfirmation and United States [p]atent[.]” 2008-NMCA-014, ¶¶ 1, 32-33. This Court noted that, in 1858, Congress had confirmed the Land Grant as a community grant to the T own of Tecolote. Id. ¶ 10. This Court further noted that in 1902 the United States issued a patent to the Town of Tecolote with respect to the land grant property and that the patent stated that it “shall only be construed as a relinquishment of all title and claim of the United States of any of said lands and shall not affect any adverse valid rights, should such exist.” Id. ¶ 16 (emphasis omitted). {14} This Court in Montoya explained that “Tameling holds that under the New Mexico Surveyor General Act, when Congress confirms a land grant, its determination concerning the origin, nature, character, and size of a land grant is conclusive and is not subject to attack in a court or any other forum.” Id. ¶ 21. And the Court further explained that “[t]he [congressional [a]ct in turn determines the status of a land grant under Article VIII of the Treaty of Guadalupe[-]Hidalgo” and also that “[t]he holding of Tameling, which we refer to as the Tameling bar, has been consistently followed and applied by the New Mexico Territorial Supreme Court and our own Supreme Court.” Id. {15} This Court determined that, in violation of the Tameling bar, the Montoyas were “challenging the origin, nature, character, and size of the Tecolote Land Grant by seeking a judicial determination that almost 20,000 acres in the Tecolote community land grant now belong to them[,j” id. ¶ 28, and further that “[b]y this action [the Montoyas] seek to convert 19,320 acres of the original 48,123 acres of the Tecolote Land Grant into private property[,]” thereby “seeking to alter the nature, character, and size of the Tecolote Land Grant.” Id. % 31. {16} In addition, this Court rejected the Montoyas’ argument that jurisdiction existed to adjudicate third party claims because those claims were specifically reserved in the congressional confirmation and patent provision that the act and the patent “shall only be construed as a relinquishment of all title and claim of the United States to any of said lands, and shall not affect any adverse valid rights, should such exist.” Id. ¶¶ 26-32 (internal quotation marks omitted). Based on reasoning expressed in the opinion, the Court determined that the Montoyas were not “third parties” within the meaning of the congressional confirmation and the patent. Id. ¶ 28. The Court closed the discussion, saying “To allow [the Montoyas] to go behind the United States [p]atent, and do so almost one hundred years later, to argue that the Tecolote Land Grant had been divested of some of the property in the confirmed grant prior to the issuance of the [p]atent is exactly what the patent process is designed to prevent.” Id. ¶ 32. {17} The Montoya Court reversed the judgment of the district court for lack of subject matter jurisdiction and remanded with instructions to dismiss the Montoyas’ complaint. Id. ¶¶ 1, 33. Pursuant to the Court’s mandate, the district court dismissed the Montoyas’ complaint with prejudice. Notably, nothing in Montoya refers to the Montoya Ranch or indicates that the Court’s intent was to affect the stipulation regarding ownership of the Montoya Ranch. Further, Montoya did not address any issues raised in the Land Grant’s partially adjudicated counterclaim. The Present 2010 Land Grant Action {18} In August2010, the Land Grant filed the district court action (D-412-CV-2010-00441) that presently has found its way to this Court, seeking a declaratory judgment against the Montoyas in regard to the Montoya Ranch for trespass on real estate and also seeking damages for trespass and permanent injunctive relief. In Count I of an amended complaint, the Land Grant alleged that in the 1999 Montoya action the Montoyas sought a judicial determination that they held superior title to 19,320 acres of the Land Grant, that the district court granted the relief sought, and that this Court in Montoya reversed that ruling. Specifically targeting the Montoya Ranch property, the Land Grant alleged that the Land Grant’s Board of Trustees had never transferred or approved transfer of the property comprising the Montoya Ranch to the Montoyas and, as a result, the Partial Stipulated Judgment purporting to approve such a transfer was void because, under Montoya, the district court did not have jurisdiction to enter the Partial Stipulated Judgment. {19} The Land Grant requested judgment “affirming that the Partial Stipulated . . . Judgment is void and of no effect and that the nine deeds attached to the Partial Stipulated . . . Judgment are void and of no effect.” Because the district court addressed solely Count I of the amended complaint and not other counts, the issues and relief requested in the other counts are not relevant in the appeal now before us. {20} In August and September 2011, the Montoyas filed an answer and counterclaim to the Land Grant’s amended complaint. The Montoyas sought to quiet title to the land that was the subject of the 1999 Montoya action. The Montoyas also filed a motion for partial dismissal or partial summary judgment seeking dismissal of the claims in the Land Grant’s amended complaint. The Montoyas asserted that the Land Grant’s appeal to this Court in Montoya from the Quiet Title Judgment in' the 1999 Montoya action involved solely the district court’s ruling with respect to the 19,320 acres and did not involve the court’s Partial Stipulated Judgment or the Montoya Ranch which constituted the lands described in the nine 1899 deeds from Jose Maria Montoya. The Montoyas argued that the Land Grant failed to appeal from the Partial Stipulated Judgment, which the Montoyas assert was a final judgment, and the Montoyas further argued that the present, 2010 Land Grant action constituted an impermissible collateral attack on that final judgment. The Montoyas also asserted affirmative defenses of res judicata, collateral estoppel, and judicial estoppel, among other defenses. In its September 2011 response to the Montoyas’ claims, among other positions taken, the Land Grant disputed the Montoyas’ characterization of the Partial Stipulated Judgment as a final order, and the Land Grant asserted that the Partial Stipulated Judgment was an interlocutory order that was modified and superseded by the district court’s 2003 Judgment; by the 2005 Quiet Title Judgment; and by the Montoya Opinion and order to dismiss the complaint with prejudice. {21} In November 2011, the Land Grant sought partial summary judgment “affirming that [Montoya, 2008-NMCA-014] establishes that [the Montoyas] have no interest in the approximately 6,000 acres represented by the [nine] deeds Jose Maria Montoya executed on June 23,1899 [i.e., the Montoya Ranch].” Its memorandum in support set out thirty “undisputed material facts” and argued that (1) the Partial Stipulated Judgment was void because the district court in the 1999 Montoya Action lacked subject matter jurisdiction; (2) the Partial Stipulated Judgment failed tp substantially comply with Section 49-10-5(A)(3) and thus did not operate as an agreement to alienate Land Grant common land; (3) the Partial Stipulated Judgment was not a final judgment; and (4) the Partial Stipulated Judgment was superseded by the 2005 Quiet Title Judgment, which was reversed by this Court “and [obliterated by the [judgment on the [mjandate.” {22} In their response to the Land Grant’s motion for partial summary judgment , and setting out their own statement of “additional undisputed material facts,” after addressing the Land Grant’s statements, the Montoyas then set out responsive points and arguments to the effect that the court in the 1999 Montoya action had jurisdiction to enter the Partial Stipulated Judgment as to the Montoya Ranch within the boundaries of the Land Grant; that in that action the Land Grant recognized and did not challenge that jurisdiction; that the Land Grant did not appeal the Partial Stipulated Judgment; that on appeal the Land Grant did not raise any issue in that regard; and that Montoya did not divest the district court of jurisdiction to enter the Partial Stipulated Judgment. {23} The Land Grant replied. Additional exhibits were filed by both sides. The district court heard the pending motions and ruled in favor of the Land Grant on Count 1 of the Land Grant’s amended complaint. During the hearing, among many other arguments, the Montoyas argued that the Land Grant had filed a counterclaim in the 1999 Montoya action as to acreage “vastly exceeding the 19,000 acres and gave [the district court] jurisdiction over that” for quieting title, thereby invoking the court’s subject matter jurisdiction to adjudicate the Montoyas’ adverse possession claims. Further, the Montoyas argued that, contrary to the district court’s ruling, Tameling was inapplicable because the Land Grant had “essentially disclaimed its] rights to land [it] had asked for quiet title to[,]” had recognized the Montoyas’ bona fide adverse holding, as shown by the testimony of the president of the Land Grant’s Board of Trustees, Mr. Herrera, and had stipulated and agreed to the Montoyas’ interest and title in the Partial Stipulated Judgment and as later shown in its docketing statement and reply brief in its appeal. {24} The Montoyas characterized the Land Grant’s statements and concessions in the 1999 Montoya action and the Montoya appeal as amounting to a stipulation that the Land Grant’s counterclaim did not cover the ranch. And the Montoyas pointed out that the Montoya Court did not remand with instructions to dismiss the 1999 Montoya action or the Land Grant’s counterclaim but, rather, the Court remanded with instructions to dismiss the complaint. Ergo, the Montoyas argued, the district court retained subject matter jurisdiction over the Land Grant’s quiet title counterclaim, and the Land Grant “stipulated to a piece of property being outside of [its] counterclaim, being outside of [its] common lands.” {25} At the close of the hearing, the district court, with no discussion and without setting out verbally or in its later-entered order the undisputed facts on which it granted summary judgment, ruled in favor of the Land Grant, granting summary judgment based on lack of subject matter jurisdiction. On May 22, 2012, the district court entered an order granting the Land Grant partial summary judgment as to Count I of its amended complaint, which asserted that the district court in the 1999 Montoya action lacked subject matter jurisdiction, and denying the Montoyas’ motion to dismiss or for partial summary judgment as to Count I. The court stayed the proceedings as to all other counts in the Land Grant’s amended complaint and thus did not reach any of the other grounds on which the Land Grant sought relief. {26} The Montoyas appealed the district court’s adverse summary judgment order, asserting four points on appeal. Because we conclude that one of these points requires reversal, we need not address the remaining points. We conclude that the district court erroneously held that the court in the 1999 Montoya action lacked subject matter jurisdiction to enter the Partial Stipulated Judgment regarding the Montoya Ranch. DISCUSSION {27} The Montoyas do not contend that material facts are in dispute. The issue before us is a legal one, which we review de novo. Slusser v. Vantage Builders, Inc., 2013-NMCA-073, ¶ 6, 306 P.3d 524 (stating that legal questions are reviewed de novo). The issue is whether the district court in the 1999 Montoya actionhad subject matter jurisdiction to entertain the Montoyas’ claimed title to and interest in the Montoya Ranch. {28} We are not persuaded that Montoya and the Tameling bar deprived the district court of subject matter jurisdiction to entertain the Montoyas’ claim in the 1999 Montoya action. The circumstances in this case take the issue out of Tameling and Montoya. {29} The Land Grant does not present record evidence that, before it filed the present 2010 Land Grant action, it claimed the Montoya Ranch property in question as Land Grant common lands to the exclusion of any claims of the Montoyas. Nor does the Land Grant present record evidence showing that the 1999 Montoya action pleadings, issues, or results suggested that the Montoya Ranch was an illegitimate, adverse claim that challenged or would alter the origin, nature, character, or size of the Land Grant. There exists no hint that Montoya intended its lack of subject matter jurisdiction determination to relate to the Montoya Ranch. The relief sought by the Land Grant’s counterclaim, together with its agreement and confirmation of the private ownership ofthe Montoya Ranch in the Partial Stipulated Judgment, confirms rather than alters the origin, nature, character, and extent of the Land Grant’s community or “common lands” that were recognized to exist in 1999, the date the lawsuit was filed. {30} The evidence affirmatively shows that where each party sought quiet title to the current status of their land holdings in the 1999 Montoya action, the Land Grant adjudicated its claim to the parcel known as the Montoya Ranch, and recognized that the Montoya Ranch was no longer part of the Land Grant common lands. Contrary to its counterclaim, the Land Grant formally confirmed quiet title and judgment in favor of the Montoyas’ ownership interest in the Montoya Ranch. In doing so, the president of the Land Grant Board of Trustees testified in his official capacity and with full authority to speak and litigate on behalf of the Land Grant, confirmed and recognized the private ownership of the Montoya Ranch. The legal dispute regarding whether the Montoya Ranch remained part of the post-patent common lands of the Land Grant was resolved and confirmed in favor of the Montoyas. This decision was not superseded or void when this Court held in Montoya that pre-patent claims filed by the Montoyas to a larger tract of land outside the Montoya Ranch were precluded by the Tameling bar. {31} The district court in the 1999 Montoya action recognized the expressed understanding and agreement between the parties as to the Montoya Ranch. In its findings of fact regarding the issue of title to or possessory interest in the 19,320 acres claimed by the Montoyas, the district court found that the Land Grant Board of Trustees recognized that the 1899 Jose Maria Montoya deeds were valid conveyances covering the Montoya Ranch. The court further found that the Land Grant claimed no common lands within the Montoya Ranch. The Land Grant did not contest or attack these findings either in the district court or in its appeal ofthe 1999 Montoya action where the district court proceeded to quiet title to the remainder of the 19,320 acres in dispute. The Land Grant further confirmed the understanding and agreement when, in addressing a cost bill issue at the close of the 1999 Montoya action, the Land Grant conceded that the Montoyas were partially a prevailing party based on the Partial Stipulated Judgment, thus recognizing that the Partial Stipulated Judgment was effective. It is manifestly clear that the Land Grant agreed in the 1999 case that the Montoyas had undisputed quiet title to the Montoya Ranch as that property was described in the 1899 Jose Maria Montoya deeds, and its agreement was confirmed in the court’s Partial Stipulated Judgment. {32} Corroborative evidence of the Land Grant’s intent and agreement did not stop at the close of the 1999 case. In its docketing statement in its appeal of the district court’s decision in the 1999 case regarding the 19,320 acres, the Land Grant stated to this Court as a relevant fact that in the Partial Stipulated Judgment the parties had stipulated to vesting title to the Montoya Ranch in the Montoyas. And in its appellate briefing, the Land Grant stated affirmatively that its agreement in the Partial Stipulated Judgment, at the very least, was “a conciliatory exercise of [the Land Grant’s] discretionary power to confirm deeds, which recognized the Montoyas’ title to a limited parcel of land.” The Land Grant stated further that it recognized the Montoya Ranch as the property deeded by Jose Maria Montoya and occupied by the present day Montoyas at the time they filed their claim in 1999. It further recognized that the acres claimed as the Montoya Ranch were “not the same thing as recognition of the Montoyas’ alleged adverse possession of the 19,320 acres[.]” The Land Grant further specifically distinguished the Montoya Ranch from the Land Grant common lands, stating that the Montoya Ranch was occupied by the Montoyas when they filed the 1999 Montoya action and that there existed no inconsistency between its discretionary concession, after trial, of the Montoya Ranch acreage that continued to be occupied by the Montoyas and the Land Grant’s opposition to vesting title in the Montoyas to the remaining portion of the 19,320 acres. To top it off, in its reply brief on appeal of the 1999 Montoya action, the Land Grant told this Court that the Land Grant’s “decision to limit its award to the Montoyas to' the area of the Montoya Ranch should be affirmed as .a proper exercise of [the Land Grant’s] discretion under [Section] 49-10-5(A)(2).” {33} A study of this Court’s opinion in Montoya unmistakably shows that neither the Land Grant nor this Court included or intended to include the Montoya Ranch in any analysis or outcome. The appeal was limited to the parties’ litigated dispute over the remaining portion of the 19,320 acres, excluding the Montoya Ranch. True, Montoya held that the district court lacked subject matter jurisdiction to entertain the Montoyas’ remaining claim to the 19,320 acres and, based on that ruling and this Court’s mandate, the district court dismissed theMontoyas’ complaint in the 1999 case with prejudice. But the Montoya ruling, and the district court’s mandate, pertained solely to the remainder of the 19,320 acres, excluding the Montoya Ranch. Subject matter jurisdiction was at issue solely with respect to this portion of the 19,320 acres, excluding the Montoya Ranch. The Montoya Ranch matter had already been agreed upon, and the agreement was confirmed in a stipulated judgment. The district court still had subject matter jurisdiction with respect to the Land Grant’s quiet title counterclaim in the 1999 Montoya action. The Partial Stipulated Judgment effectuated a partial adjudication and decree that resolved a portion of this counterclaim. The Land Grant points to nothing in the record indicating what further action, if any, the district court may have taken in the 1999 Montoya action regarding the issues raised in the Land Grant’s counterclaim. {34} Nothing requires application of the Tameling bar under the circumstances of this case. A community land grant has jurisdiction and the right to litigate adverse private holding claims that arise within the exterior of its originally patented boimdaries. See Bd. of Trs. of the Tecolote Land Grant v. Griego, 2005-NMCA-007, ¶ 3, 136 N.M. 688, 104 P.3d 554. We see nothing in Tameling, or in Montoya, that would forbid the district court in the 1999 Montoya action from confirming through an order and judgment and later findings the agreement between the parties that excluded the Montoya Ranch from the dispute regarding rights to ownership or possession of the remainder of the 19,320 acres. The Montoya Ranch was no longer part of the Land Grant’s recognized 1999 common lands. Under the circumstances in the 1999 case, nothing in the court’s confirmation resulted in an impermissible alteration of the origin, nature, character, or size of the Land Grant’s exterior boundaries, given the Land Grant’s agreement, acknowledgments, and concessions relating to the Montoyas’ title and possessory rights to the Montoya Ranch. And, under the circumstances of the 1999 case, nothing in the court’s confirmation in the 1999 case can be considered an unauthorized judicial usurpation of Congress’s sole authority to alter the Land Grant’s original 1902 status and exterior boundaries while allowing for the continued evolution of the interior holdings within the Land Grant that may have legally evolved after the issuance of the 1902 patent. {35} The Land Grant’s principal and, we conclude, only viable argument in support of affirming the district court in the matter now before us is that, notwithstanding the factual background of the Land Grant’s intent and agreement as to the Montoyas’ ownership interest in the Montoya Ranch and the Land Grant’s acknowledgments and concessions that the Montoya Ranch was not a part of the Land Grant common lands, nothing that has occurred can override the requirement in Section 49-10-5(A)(3) that a Board of Trustees’ resolution must exist in order to convey Land Grant common lands to a private grantee and that no such resolution occurred, thus making any alienation subject to nullification under Section 49-10-5(B). In regard to nullification, the Land Grant points out that Section 49-10-5(B) stated that any alienation of common lands made by a land grant board of trustees without fulfilling the requirements of Section 49-10-5(A) is voidable and that “an action to set aside and nullify the alienation of the land hereafter may be brought at any time in the district court for the county in which the grant is situated.” Section 49-10-5(B). The Land Grant argues that the purpose of these statutory provisions, and the public policy behind them, was to protect land grant heirs from improper board of trustees’ alienation of common lands — a protection inherent in the resolution process that required, for validity of any resolution, that the board of trustees give notice to all heirs of the intended resolution so that the heirs could react to an unwanted alienation of their common lands. The Land Grant asserts that testimony of the president of its Board of Trustees during trial of the 1999 case is of no consequence and cannot have any binding effect on the Land Grant or the heirs absent an existing, formal Board of Trustees’ resolution preceded by notice to all heirs with the opportunity to be heard in protest of any proposed resolution. The Land Grant underwrites its arguments with case law discussing the statutory obligation of a land grant board of trustees when proposing to alienate common lands. See Bibo v. Town of Cubero Land Grant, 1958-NMSC-137, ¶¶ 16, 18, 65 N.M. 103, 332 P.2d 1020 (invalidating a lease when no resolution existed authorizing the lease for the district court to approve under the requirements of the applicable statute, thus indicating that, where a land grant’s mode of exercising power is prescribed by statute, there must be substantial compliance with the statute); Armijo v. Town of Atrisco, 1957-NMSC-045, ¶¶ 30, 37, 46, 62 N.M. 440, 312 P.2d 91 (rejecting a district court’s approval of a board of trustees’ plan to alienate lands on the basis of lack of due process in that not all heirs were given notice). {36} We are not persuaded by the Land Grant’s statutory and public policy arguments. Nor do we hold that Bibo and Armijo require that the Land Grant’s desired result should prevail. Title to and interest in the Montoya Ranch property was raised in the 1999 Montoya action. Early in the litigation, the parties agreed by stipulation that the Montoyas had title to the Montoya Ranch. The district court approved the stipulation by entry of its Partial Stipulated Judgment. With undisputed ownership of the Montoya Ranch out of the way in the litigation, the issue became solely the issue of quieting title to the 19,320 acres (excluding the Montoya Ranch) claimed by the Land Grant as common lands. Further, not only in the district court, but in this Court, the Land Grant acknowledged and conceded through the Land Grant’s lawyer and the president of the Board of Trustees, who stated that he had the authority to speak on behalf of the Board, that the Montoya Ranch was no longer at issue and that it belonged to the Montoyas. The district court in the 1999 Montoya action not only entered the Partial Stipulated Judgment, the court entered findings of fact regarding the status of the Montoya Ranch, including that the Montoya Ranch was not part of the Land Grant common lands. The Land Grant not only did not raise any issue regarding the Montoya Ranch in its appeal in Montoya, it did not attack the district court’s findings. The Land Grant has not made us aware that any heir attempted to intercede in the 1999 Montoya action or in its subsequent appeal. {37} We reject the Land Grant’s views that testimony of the president of the Board of Trustees as to his authority and as to the Montoyas’ right to the Montoya Ranch, and that the statements of Land Grant counsel speaking for the Land Grant in a judicial proceeding as to the Montoyas’ right to the Montoya Ranch, have no persuasive, if not binding effect in the appeal now before us. We also reject the argument that, under the circumstances in this case, Section 49-10-5(A)(3) and (B) permit the Land Grant or any heir to seek nullification of the adjudication of ownership that occurred in the 1999 Montoya action and its appeal in Montoya. The Land Grant, along with its heirs if they had chosen to do so, had every opportunity to contest and litigate ownership of the Montoya Ranch in the 1999 Montoya action through its counterclaim, yet chose to enter into the Partial Stipulated Judgment. After entry of that judgment, the Land Grant continued to litigate the disputed ownership of the remaining portion of the 19,320 acres that excluded the Montoya Ranch. Through its board president and legal counsel, the Land Grant continued to legally acknowledge and concede that as of 1999, the Montoyas held proper title and private ownership of the Montoya Ranch outside the then-existing common lands of the Land Grant. The Montoyas’ acknowledged ownership interest in the Montoya Ranch was never questioned or rescinded throughoutthe appeal of the Land Grant’s larger claims to the remaining portion of the 19,320 acres in Montoya. {38} In conclusion, by stipulated judicial order and judgment, the Land Grant legally removed the Montoya Ranch from any claim that such lands were common lands of the Land Grant in 1999. The Land Grant agreed that the Montoyas had superior and proper title to the Montoya Ranch and confirmed this position by stipulation and judgment. Montoya and the district court’s dismissal upon remand in the 1999 Montoya action only applied to the Montoyas’ pending pre-patent claims to the remaining 19,320 acres in dispute and not the Montoya Ranch. We hold that, under the factual and procedural circumstances in this case, the district court had subject matter jurisdiction in the 1999 Montoya action to address the Land Grant’s counterclaim and confirm the parties’ agreement set forth in the Partial Stipulated Judgment quieting title to the Montoya Ranch in favor of the Montoyas. We further hold that the parties and the district court intended the Partial Stipulated Judgment to stand independently from the parties’ remaining contested issues regarding other portions of the 19,320-acre parcel. The Partial Stipulated Judgment continues to bind the parties regarding the counterclaim in the 1999 Montoya action and also applies to the Land Grant’s claims against the Montoya Ranch in the present case. CONCLUSION {39} We hold that the district court erred in granting the Land Grant partial summary judgment in regard to Count 1 of its amended complaint under the rationale that the district court in the 1999 Montoya action lacked subject matter jurisdiction. We hold that the district court in the 1999 Montoya action had subject matter jurisdiction to entertain the Land Grant’s counterclaim contesting the Montoyas’ claim to the Montoya Ranch and to enter the Partial Stipulated Judgment. We reverse the district court’s summary judgment in favor of the Land Grant as to Count I of its amended complaint. We remand for proceedings in the district court on any remaining issues. {40} IT IS SO ORDERED. JONATHAN B. SUTIN, Judge WE CONCUR: CYNTHIA A. FRY, Judge TIMOTHY L. GARCIA, Judge | opinion_xml_harvard | 6,408 | 2022-06-26 14:06:27.946221+00 | 020lead | t | f | 6,592,284 | Fry, Garcia, Sutin | null | U | f | Published | 0 | Tecolote Land Grant v. Montoya | Montoya | TECOLOTE LAND GRANT, by and through the TECOLOTE BOARD OF TRUSTEES, WALTER ATENCIO, MANUEL PACHECO, CHRIS CASTELLANO, JEROME GARZA, and MEL J. CASTELLANO, JR. v. EDWARDO MONTOYA, ANTONIO MONTOYA, ESTEVAN MONTOYA, CARLOS MONTOYA, RICARDO MONTOYA, DANIEL MONTOYA, TOM GONZALES, LEOPOLDO GONZALES, and GABRIEL MONTOYA | null | null | null | null | null | null | null | null | null | 63,522,489 | No. 34,778; Docket No. 32,275 | 0 | nmctapp | SA | t | New Mexico Court of Appeals | New Mexico Court of Appeals |
4,656,074 | Filed 1/29/21 P. v. Rodriguez CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO THE PEOPLE, B305739 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA024452) v. VIDAL RODRIGUEZ, Defendant and Appellant. THE COURT: On August 12, 1991, a jury found Vidal Rodriguez (Rodriguez) and codefendant Adam Riojas (Riojas)1 guilty of murder in the second degree. (Pen. Code, § 187, subd. (a).)2 The trial court sentenced Riojas to a term of 17 years to life in state prison and Rodriguez to a term of 15 years to life in state prison. 1 Riojas is not a party to this appeal. 2 All further statutory references are to the Penal Code unless otherwise indicated. The Court of Appeal affirmed Rodriguez’s conviction in People v. Riojas (July 13, 1993, B063404) [nonpub. opn.]. On February 21, 2019, Rodriguez filed a petition for resentencing under section 1170.95.3 On February 3, 2020, the trial court issued a written decision denying Rodriguez’s petition based on its conclusion that he was ineligible for relief. The trial court offered the following explanation: “[Rodriguez] was convicted of murder, but the record of conviction reflects that the 3 Senate Bill No. 1437 (2017-2018 Reg. Sess.), which went into effect on January 1, 2019 (see Stats. 2018, ch. 1015, § 4), added section 1170.95 and amended sections 188 and 189. “As amended, section 188 limits a finding of malice: ‘Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.’ (§ 188, subd. (a)(3).) As added by Senate Bill [No.] 1437, subdivision (c) of section 189 reads: ‘A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) . . . in which a death occurs is liable for murder only if one of the following is proven: [¶] ‘(1) The person was the actual killer. [¶] ‘(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] ‘(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life[.]” (People v. Ramirez (2019) 41 Cal.App.5th 923 , 928 (Ramirez).) Section 1170.95 permits a defendant to file a petition with the court that sentenced the defendant for resentencing if he was convicted under a theory of felony murder or murder under the natural and probable consequences doctrine, and if he could not have been convicted under the changes to sections 188 and 189 made effective January 1, 2019. (Ramirez, supra, 41 Cal.App.5th at p. 929.) 2 petitioner was not convicted under a theory of felony-murder of any degree, or a theory of natural and probable consequences. The record of conviction in this case established that [Rodriguez] was a direct aider and abettor to the murder charged in this case.” On March 30, 2020, Rodriguez filed an appeal challenging the denial of his section 1170.95 petition. DISCUSSION Appointed counsel filed a brief raising no issues for us to consider. Because this is an appeal from the denial of postconviction relief, we follow the procedures in People v. Serrano (2012) 211 Cal.App.4th 496 . As established by People v. Cole (2020) 52 Cal.App.5th 1023 , 1039–1040, review granted October 14, 2020, S264278, our sole task is to review the arguments in appellant’s supplemental brief. He argues that his section 1170.95 petition should have been granted because of two events that occurred during his trial in 1991: (1) the trial court erred by not instructing the jury on a natural and probable consequences theory of liability; and (2) the testimony of an identification witness for the state was discredited in its entirety because he lied about every person in a six-pack of photos also being present in a line-up. These arguments are not cognizable on appeal because they do not relate to the February 3, 2020, order denying appellant’s petition to withdraw his sentence under Senate Bill No. 1393 (2017-2018 Reg. Sess.) and to suppress evidence. We conclude that appellant has not established grounds for reversal. 3 DISPOSITION The February 3, 2020, order is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. LUI, P. J ASHMANN-GERST, J. HOFFSTADT, J. 4 | opinion_html_with_citations | 797 | 2021-01-29 23:02:07.565297+00 | 010combined | f | f | 4,852,295 | null | null | C | f | Unpublished | 0 | People v. Rodriguez CA2/2 | null | null | null | null | null | null | null | null | null | null | null | 54,882,510 | B305739 | 0 | calctapp | SA | t | California Court of Appeal | California Court of Appeal |
9,506,695 | KIDWELL, J. Pro Tern, dissenting in part. Respectfully, I disagree with the majority Opinion’s resolution (section X) of this matter and the analysis of the words actual residence (section VII). Actual residence when required by a statute is more readily subjectively discussed, than objectively defined. Whether utilizing “common sense” or “clear meaning of the statute” or “intent of the drafters,” it seems apparent that there must be some period of physical presence at a specific physical location. Further narrowing of the definition or historical analogies includes subjective determinations not in the record before us. Judge Bradbury has two residences or homes in Idaho; one in Idaho County (Grangeville) and one in Nez Perce County (Lewiston). The relevant statute requires actual residence in Idaho County. However, having two or more homes in Idaho is not precluded. It is important to note before addressing the residence issue, that neither the record presented or the majority opinion suggests any shirking of his job. On the contrary it appears that Judge Bradbury is dutifully carrying out the responsibilities to which he has been constitutionally elected. The controversy arises here because the Judicial Council raised the question of whether the judge actually resides in Grangeville because he spends approximately one or two days a week at his home there. Judge Bradbury testified in deposition that he spends more time on the road or at his home in Lewiston than at his home in Grangeville, because of the duties and demands of traveling throughout his judicial district. The record indicates that Judge Bradbury, upon being elected as District Judge, purchased a home in Grangeville (he had owned a ranch in the county in previous years). Subsequently he took out a homeowner’s exemption and signed the requisite forms indicating his intent to make that his primary home. He also began voting from Grange-ville, and he pays taxes and gets his judicial mail in Grangeville. Based on the conflicting and limited information presented, I am unable to conclude that Judge Bradbury is in violation of Idaho’s residency requirement statute. This matter should be dismissed at this time, but without prejudice to the Judicial Council’s right to proceed with additional information if it decides to do so. | opinion_xml_harvard | 368 | 2023-08-06 21:11:08.277136+00 | 040dissent | f | f | 874,336 | Burdick, Jones, Kidwell | null | LCU | f | Published | 13 | Bradbury v. IDAHO JUDICIAL COUNCIL | Bradbury | John H. BRADBURY, Petitioner, v. IDAHO JUDICIAL COUNCIL, Respondent | null | null | <citation data-order="0" data-type="citation" id="b139-13">
233 P.3d 38
</citation><br><parties data-order="1" data-type="parties" id="b139-14">
John H. BRADBURY, Petitioner, v. IDAHO JUDICIAL COUNCIL, Respondent.
</parties><br><docketnumber data-order="2" data-type="docketnumber" id="b139-16">
No. 36175.
</docketnumber><br><court data-order="3" data-type="court" id="b139-17">
Supreme Court of Idaho, Boise,
</court><p data-order="4" data-type="p" id="AVW">
July 2009 Term.
</p><br><decisiondate data-order="5" data-type="decisiondate" id="b139-19">
Sept. 10, 2009.
</decisiondate><br><attorneys data-order="6" data-type="attorneys" id="b142-10">
<span citation-index="1" class="star-pagination" label="110">
*110
</span>
Clements, Brown
<em>
&
</em>
McNichols, P.A., Lewiston; Runft & Steele Law Offices, PLLC, Boise; and M. Karl Shurtliff, Boise; for petitioner. Michael E. McNichols argued.
</attorneys><br><attorneys data-order="7" data-type="attorneys" id="b142-11">
The Roark Law Firm, Hailey, for respondent. R. Keith Roark argued.
</attorneys> | null | null | null | null | null | null | 1,947,345 | 36175 | 0 | idaho | S | t | Idaho Supreme Court | Idaho Supreme Court |
6,086,760 | Rose, J. Appeal from a judgment of the Supreme Court (Malone, Jr., J.), entered June 13, 2001 in Albany County, which partially granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Health reducing a component of its Medicaid reimbursement rate. Petitioner, a residential health care facility operating in Chemung County, commenced this proceeding seeking, inter alia, annulment of respondents’ determination adjusting its case mix index based on misclassifications revealed in an audit of patient review instrument data conducted by the Department of Health (hereinafter Department) and recalculating petitioner’s Medicaid reimbursement rate for the period beginning April 1, 1999.1 Specifically, the Department found that petitioner had improperly classified 28 patients as receiving restorative therapy rather than maintenance therapy, reduced petitioner’s reimbursement rate accordingly, and directed that future patient assessments be performed by an independent auditor. Petitioner argued that the Department’s nurse-auditors had improperly “second-guessed” the physician-prescribed rehabilitative care plans for its patients by denying reimbursement even though petitioner had provided restorative therapy as prescribed. Petitioner also argued that the Department acted arbitrarily and capriciously in using a fixed general rule precluding reimbursement for restorative therapy unless it produces actual improvement (hereinafter actual improvement standard) that has not been properly adopted and filed as a formal regulation. Supreme Court accepted this latter argument, granted the petition and remitted the matter to respondents to review the patient classifications without re*773course to the actual improvement standard. Respondents now appeal.2 Respondents argue that Supreme Court’s ruling was improper because the Department’s actual improvement standard is based on a rational interpretation of an existing regulation and, thus, is not an unfiled rule. Petitioner reiterates its contentions that the denial of reimbursement for restorative therapy provided to its patients was improper both because it was based on an auditor’s after-the-fact medical judgment and on an unfiled rule requiring actual improvement. Since the Department’s auditors were not required to defer to the judgments of petitioner’s physicians and therapists in retrospectively reviewing what patient care qualified for Medicaid reimbursement (see, Concourse Rehabilitation & Nursing Ctr. v DeBuono, US Dist Ct, SD NY, June 11, 1988, Conti, J., slip op at 12, appeal dismissed 179 F3d 38), we find no merit in petitioner’s first contention. Rather, as considered by Supreme Court and as presented on appeal, the central issue is whether respondents’ actual improvement standard for the restorative therapy classification is a rational interpretation of an existing regulation or a new unfiled rule being applied in violation of the State Administrative Procedure Act. Under 10 NYCRR 86-2.30 (i) (Instructions: Patient Review Instrument [PRI] [27]), a restorative therapy classification is proper where “[t]here is positive potential for improved functional status within a short and predictable period of time” and the “[t]herapy plan of care and progress notes * * * support that [the] patient has this potential/is improving.” In its clarification sheet provided to nursing homes, the Department explains that the phrase “has this potential/is improving” means that the patient must demonstrate both the potential for functional improvement and the actual occurrence of such improvement in order to qualify for the restorative therapy classification. On this appeal, the Department acknowledges that it has a fixed policy of applying the quoted regulation in this manner. Contrary to Supreme Court’s conclusion, we find that the Department’s clarification sheet is interpretive, that its interpretation has a rational basis and that, therefore, the resulting actual improvement standard does not constitute an improper unfiled rule (see, State Administrative Procedure Act *774§ 102 [2] [b] [iv]; see also, Matter of Dubb Enters. v New York State Liq. Auth., 187 AD2d 831, 833; cf, Matter of Cordero v Corbisiero, 80 NY2d 771, 772-773; Matter of Stuyvesant Polyclinic v Axelrod, 117 AD2d 99, 101). Generally, “courts will defer to an agency’s interpretation of its own regulations if not irrational” (Matter of Silver Lake Nursing Home v Axelrod, 156 AD2d 789, 790; see, Matter of Marzec v DeBuono, 95 NY2d 262, 266; Matter of County of Rockland v Axelrod, 157 AD2d 960, 961), and the agency’s interpretation is not rendered irrational simply because the regulation may be susceptible to a different rational interpretation (Matter of Jennings v New York State Off. of Mental Health, 90 NY2d 227, 239). Petitioner focuses on the role played by the forward slash or virgule in the phrase “patient has this potential/is improving.” Arguing that common usage reflects that the virgule merely means “or,” petitioner concludes that the Department’s requirements of potential improvement and actual improvement contradicts the language of the regulation. Our view of the use of the virgule in the regulation at issue here leads to a contrary conclusion. “Virgule” has been defined as a symbol used to denote, inter alia, “or” or “and or” (see, Webster’s Third New International Dictionary 2555 [unabridged 1986], cross-referencing “diagonal,” Webster’s Third New International Dictionary 622 [unabridged 1986]). Even defined in this way, the virgule allows for usage as “and,” resulting in no contradiction when both alternatives apply. However, “virgule” is more comprehensively defined as “a short oblique stroke ( / ) between two words indicating that whichever is appropriate may be chosen to complete the sense of the text in which they occur” (Random House Dictionary of the English Language 2125 [unabridged 2d ed 1993]). This definition is particularly apt here because the phrase “patient has this potential/is improving” follows, and is parallel to, the preceding phrase “therapy plan of care and progress notes.” To interpret the entire regulation, rather than parse the latter phrase only, it is rational to view the virgule as indicating that the reader should use the words that most appropriately complete the sense of the whole sentence. As the earlier phrase has two concepts with one anticipating future progress and the other reporting actual progress, the phrase “patient has this potential/is improving” provides the choice between potential and actual circumstances depending upon whether a plan for a patient or a patient’s progress is being considered. Interpreted this way, the regulation requires a therapy plan to set forth the patient’s potential for improvement and the patient’s prog*775ress notes to reflect actual improvement in order to qualify as restorative. Such an interpretation is also consistent with the overall regulatory scheme, for it seeks to assure that restorative therapy is utilized when it potentially will result in patient improvement while excluding reimbursement if the expected improvement is not achieved (see, Concourse Rehabilitation & Nursing Ctr. v Whalen, 249 F3d 136, 143-146).3 Given the parallel structure of the pertinent phrases of the regulation and the recognized use of the virgule to implement such parallelism, we find no conflict between the cited regulation and respondents’ interpretation, and conclude that their interpretation has a rational basis. Finally, petitioner’s contention that the issue is not judicially reviewable because the Department, through its auditors, did not expressly rely on the actual improvement standard in reclassifying petitioner’s patients is belied by the petition itself, which narrowly framed the issue by asserting that the Department’s actual improvement standard had resulted in the reclassifications. Accordingly, it was error to grant the petition and require further assessment by the Department. Crew III, J.P., Peters, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as partially granted the petition; petition denied in its entirety; and, as so modified, affirmed. . We refer the reader to Concourse Rehabilitation & Nursing Ctr. v Whalen (249 F3d 136) for an overview of the Medicaid program and Matter of Teresian House Nursing Home Co. v Chassin (218 AD2d 250) for a description of its process for auditing patient assessments. . Since the judgment issued by Supreme Court is nonimal and, thus, not appealable as of right (see, CPLR 5701 [b] [1]; [c]), we exercise our authority to grant permission to appeal sua sponte given the importance of the issue presented (see, Matter of Gane v Ambach, 135 AD2d 1013, 1013-1014). . The Health Care Financing Agency’s “Carriers Manual” provides as follows: “Restorative Therapy. To constitute physical therapy a service must, among other things, be reasonable and necessary to the treatment of the individual’s illness. * * * In addition, there must be an expectation that the patient’s condition will improve significantly in a reasonable (and generally predictable) period of time. However, if at any point in the treatment of an illness, it is determined that the expectations will not materialize, the services will no longer be considered reasonable and necessary; and they, therefore, should be excluded from coverage under § 1862 (a) (1) of the Social Security Act [42 USC § 1862 (a) (1)]” (Carriers Manual, part 3, ch II, § 2210.1 [emphasis supplied]). | opinion_xml_harvard | 1,448 | 2022-01-13 19:25:49.216569+00 | 020lead | t | f | 6,220,101 | Rose | null | U | f | Published | 0 | Elcor Health Services, Inc. v. Novello | Novello | In the Matter of Elcor Health Services, Inc. v. Antonia Novello, as Commissioner of Health of the State of New York | null | null | null | null | null | null | null | null | null | 62,581,256 | 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 |
2,318,665 | 593 F.Supp.2d 700 (2009) SIMPLIFICATION, LLC, Plaintiff, v. BLOCK FINANCIAL CORPORATION, and H & R Block Digital Tax Solutions, Inc., Defendants. Civil Action No. 03-355-JJF. United States District Court, D. Delaware. January 23, 2009. *702 Julie A. Petruzzelli, Esquire; Peter J. Curtin, Esquire; David M. Farnum, Esquire and Michelle M. Marcus, Esquire of Venable, LLP, Washington, D.C., Mary B. Graham, Esquire and Julia Heaney, Esquire of Morris, Nichols, Arsht & Tunnel LLP, Wilmington, DE, for Plaintiff Simplification, LLC. Jeffrey S. Standley, Esquire and F. Michael Speed, Jr., Esquire of Standley Law Group, LLP, Dublin, OH, John W. Shaw, Esquire; Karen E. Keller, Esquire and Jeffery T. Castellano, Esquire of Young Conaway Stargatt & Taylor, LLP, Wilmington, DE, for Defendants Block Financial Corporation and H & R Block Digital Tax Solutions, Inc. MEMORANDUM OPINION FARNAN, District Judge. This is a patent infringement case brought by Simplification, LLC ("Simplification") against Block Financial Corporation and H & R Block Digital Tax Solutions, Inc. (collectively, "Block") alleging infringement of United States Patent Nos. 6,202,052 ("the '052 patent") and 6,697,787 ("the '787 patent"), which pertain to fully automated tax reporting, payment, and refund. The parties briefed their respective positions on claim construction, and the Court conducted a Markman hearing on the disputed terms. This Memorandum Opinion provides constructions of the disputed terms. BACKGROUND The patents-in-suit relate to the elimination of "many inconveniences associated with the filing of federal, state, local, and foreign income tax returns and the payment of any associated tax liability or receipt of tax refund ...." ('052 patent at 3:9-12.) This is achieved through the automation of the steps typically associated with the filing of a tax return. Thus, the asserted claims include, in various combinations, steps pertaining to (1) connecting electronically to the providers of tax data, (2) collecting electronically the tax data, (3) processing electronically the tax data, (3) *703 preparing electronically an electronic tax return, (4) connecting electronically to taxing authorities, (5) filing electronically the electronic tax return, (6) connecting electronically to a financial institution, and (7) paying or receiving a tax liability or refund respectively. ( See id. at 3:23-34.) Here, the parties agree that the term "tax data" refers to "tax information relevant to a taxpayer's liability or tax reporting obligations," such as bank statements, mutual fund statements, brokerage account statements, and charity statements. ( See id. at 6:8-12; D.I. 80 at 10.) The "taxing authority" is an institution such as the U.S. Internal Revenue Service. ( See '052 patent at 1:64-66.) Particularly relevant to the construction of the disputed terms is the prosecution history of the patents-in-suit, the key aspects of which are summarized as follows. On March 8, 2003, Simplification initiated this action, alleging infringement of the '052 patent. Just a few months later, on July 11, 2003, Block filed a petition with the United States Patent and Trademark Office ("USPTO") requesting reexamination of the '052 patent. The petition was granted, and the Court stayed this action pending completion of the reexamination. (D.I. 21.) [1] During the stay, the '787 patent issued as a continuation of the '052 patent. Simplification then filed suit alleging infringement of the '787 patent (D.I. 1 in 04-114-JJF), and Block immediately requested reexamination of the '787 patent as well. The examiner assigned to the reexaminations consolidated the two reexaminations and ultimately rejected a number of claims, including all those asserted in this action. Pursuant to 35 U.S.C. §§ 134 and 306, Simplification appealed the rejections to the Board of Patent Appeals and Interferences ("BPAI"), which, after conducting an oral hearing, reversed all of the Examiner's rejections. Though Simplification attempts to downplay the significance of this oral hearing, the Court finds it to be of critical importance in construing the disputed terms. Indeed, as Simplification states in its Reply Claim Construction Brief, "[i]t is important to be mindful that this BPAI hearing capped more than three years of reexamination proceedings which produced a written file history more than a foot thick." (D.I. 85 at 1.) Similarly, as Block puts it, a statement before the BPAI is not merely "a random page of an obscure document in the prosecution history." (D.I. 84 at 8.) Rather, it is a statement "at the culmination of the reexamination process on the biggest stage at the Patent Officean Oral Hearing before the Board of Patent Appeals and Interferences." ( Id. ) DISCUSSION I. The Legal Principles of Claim Construction Claim construction is a question of law. Markman v. Westview Instruments, Inc., 52 F.3d 967 , 977-78 (Fed.Cir. 1995), aff'd, 517 U.S. 370 , 388-90, 116 S.Ct. 1384 , 134 L.Ed.2d 577 (1996). When construing the claims of a patent, a court considers the literal language of the claim, the patent specification and the prosecution history. Markman, 52 F.3d at 979 . Of these sources, the specification is "always highly relevant to the claim construction analysis. Usually it is dispositive; it is the single best guide to the meaning of a *704 disputed term." Phillips v. AWH Corporation, 415 F.3d 1303 , 1312-17 (Fed.Cir.2005)(quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576 , 1582 (Fed.Cir.1996)). However, "[e]ven when the specification describes only a single embodiment, the claims of the patent will not be read restrictively unless the patentee has demonstrated a clear intention to limit the claim scope using `words or expressions of manifest exclusion or restriction.'" Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898 , 906 (Fed.Cir.2004) (quoting Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313 , 1327 (Fed.Cir.2002)). A court may consider extrinsic evidence, including expert and inventor testimony, dictionaries, and learned treatises, in order to assist it in understanding the underlying technology, the meaning of terms to one skilled in the art and how the invention works. Phillips, 415 F.3d at 1318-19 ; Markman, 52 F.3d at 979-80 . However, extrinsic evidence is considered less reliable and less useful in claim construction than the patent and its prosecution history. Phillips, 415 F.3d at 1318-19 (discussing "flaws" inherent in extrinsic evidence and noting that extrinsic evidence "is unlikely to result in a reliable interpretation of a patent claim scope unless considered in the context of intrinsic evidence"). In addition to these fundamental claim construction principles, a court should also interpret the language in a claim by applying the ordinary and accustomed meaning of the words in the claim. Envirotech Corp. v. Al George, Inc., 730 F.2d 753 , 759 (Fed.Cir.1984). If the patent inventor clearly supplies a different meaning, however, then the claim should be interpreted according to the meaning supplied by the inventor. Markman, 52 F.3d at 980 (noting that patentee is free to be his own lexicographer, but emphasizing that any special definitions given to words must be clearly set forth in patent). If possible, claims should be construed to uphold validity. In re Yamamoto, 740 F.2d 1569 , 1571 (Fed.Cir.1984). II. The Meaning of the Disputed Terms Simplification asserts that Block infringes claims 1-2 and 6-20 of the '052 patent and claims 1-18 of the '787 patent. The following claim is illustrative of the asserted claims: 1. A method for automatic tax reporting by an electronic intermediary comprising: connecting electronically said electronic intermediary to a tax data provider; collecting electronically tax data from said tax data provider; processing electronically said tax data collected electronically from said tax data provider to obtain processed tax data; preparing electronically an electronic tax return using said processed tax data; connecting electronically said electronic intermediary to a taxing authority; and filing electronically said electronic tax return with said taxing authority. ('052 patent at 8:17-32.) The primary dispute between the parties pertains to the meaning of "automatic tax reporting." Briefly, Block contends that statements made during the BPAI hearing mandate that this term be construed to mean that the "electronic tax return" be prepared without manual intervention from the user apart from "limited manual input prior to initiating the automated process." (D.I. 79 at 11, 13.) Simplification, on the other hand, contends that the term should be construed to mean "that each *705 recited step in the claimed method may be performed without manual intervention once initiated but not that the entire claimed method (or the entire tax return) must be completed from start to finish entirely without stopping or manual intervention...." (D.I. 80 at 14.) The parties have a similar dispute with regard to the meaning of the claim term "electronically" and other claim terms that include the word "electronically." In general, Block contends that, in light of statements made by Simplification during the BPAI hearing, these terms should be construed in a manner similar to "automatic tax reporting." Because two asserted claims recite only an "electronically" limitation and not an "automatic tax reporting" limitation, the dispute over the meaning of these terms appears to be as significant to the parties as their dispute over "automatic tax reporting." An additional core dispute between the parties concerns the construction of a number of means-plus-function terms. For these terms, Simplification contends that the corresponding structure in the specification is a "data processing system comprising a general purpose computer programmed with code segments to operate the general-purpose computer...." ( See, e.g., D.I. 80 at 24.) Block, however, contends that in light of recent Federal Circuit authority, this structure is inadequate and that the claims are indefinite. For the reasons that follow, the Court construes the disputed terms as follows: A. "Automatic Tax Reporting" ---------------------------------------------------------------------------------------------------------- Simplification's Construction Block's Construction ---------------------------------------------------------------------------------------------------------- Determining and/or reporting tax liability, or Preparing a tax return on a computer automatically satisfying tax reporting obligations, via a process without manual intervention from in which one or more functions, once the user. initiated, are completed without manual intervention. ---------------------------------------------------------------------------------------------------------- The essence of Block's proposed construction appears to be that manual intervention in the preparation of the tax return is allowed only during an unclaimed initialization step that precedes the initiation of the claimed tax preparation method. Figure 1 of the specification portrays this initialization step in a flow chart as a box labeled "Provide information on the tax data providers." The text of the specification refers to this initialization procedure as "step 11" and provides a detailed description of what it may include. ( See '052 patent at 4:34-5:49.) Simplification urges the Court to adopt a broader construction of "automatic tax reporting." Specifically, Simplification contends that the term simply refers to a process in which " at least one piece of tax data is handled automatically in accordance with the steps recited in the claims." (D.I. 85 at 11 (emphasis added).) Thus, Simplification's construction would allow for manual intervention at any point in the process. During the Markman hearing, Simplification clarified that their construction would permit one to "circle back around in the process" and do additional manual data entry as necessary "throughout" the process. ( See, e.g., D.I. 101 at 13:9-14:7, 17:14-18:7.) Put yet another way, Simplification contends that Block is inappropriately asking the Court to redefine the term "automatic" to mean "fully automated." ( Id. at 7:5-16, 16:21-17:13.) After reviewing the intrinsic evidence, the Court agrees with Block that the claims are limited to a tax preparation system that, outside of manual intervention *706 during the initialization process, is "fully automated." Beginning with the specification, the Court notes that the patent distinguishes the prior art on the basis of it not being "fully automated." Indeed, the specification explains that despite certain technological advances, "the potential for fully-automated tax reporting has not yet been realized ...." ('052 patent at 2:16-18.) Likewise, the specification explains that the "objects and advantages of the present invention " are achieved through a "fully-automated" tax reporting system. ( Id. at 3:21-24 (emphasis added); see also id. at 4:28-33 (explaining that the figures in the specification portraying the "preferred embodiment" correspond to a "fully-automated" tax reporting system).) Similarly, the patent explains that "few technological, legal, or practical obstacles exist for the fully automated preparation and filing of federal and state tax returns...." ( Id. at 2:11-15 (emphasis added).) Thus, the patent characterizes the invention as a "fully automated" system. In fact, although the Court affords this little weight, it is notable that the '052 parent patent is entitled "Fully-Automated System For Tax Reporting, Payment And Refund." The substance and structure of the specification comports with the raw textual evidence set forth above. To the extent the patent describes manual intervention in the tax preparation process, it is only during an extended description of "step 11" of the method, which is the first step of the disclosed tax preparation process and that pertains to initialization of the process and the provision of information regarding tax data providers. ( See id. at 4:34-5:48.) In describing this process, the specification explains that the taxpayer can provide information regarding "special tax cases," such as whether the taxpayer has charitable contributions. ( Id. at 4:63-5:2.) The specification further describes an alternative embodiment where, during "step 11," a "tax return preparer ensures that the electronic intermediary receives the appropriate information required ...," including information pertaining to "special tax cases." ( Id. at 5:43-49.) Such manual intervention is not described as being part of subsequent steps in the automated tax preparation process. On the contrary, in discussing "step 12," the patent unambiguously explains that "the invention eliminates the current requirement that a taxpayer manually collect the tax data, eliminates the current requirement that a taxpayer manually enter such tax data onto a tax return or into a computer, and eliminates the need for all, or virtually all, intermediate hard copies of tax data, thereby saving paper, time, and cost." ( Id. at 6:23-29 (emphasis added).) Thus, the specification contemplates that during "step 11" the taxpayer and/or tax preparer, in addition to providing rudimentary information such as a social security numbers, will anticipate "special tax cases" so that during "step 12" manual entry of tax data is "eliminat[ed]." In the Court's view, this description does not embrace the notion of "circling back around" to do manual input as the need arises, but is more consistent with the construction advocated for by Block. To the extent the specification could be understood differently, such interpretations are laid to rest by the prosecution history. Indeed, during the BPAI hearing, counsel for Simplification argued as follows: JUDGE LEE: The tax preparer ensures that information is collected to determine whether the taxpayer has a special tax case. MR. SARTORI: Oh, on column 5. Okay, I got you. I'm sorry. JUDGE LEE: Can you explain that? *707 MR. SARTORI: Sure. JUDGE LEE: That sounds like manual intervention. MR. SARTORI: That is manual intervention. And that has to do with step 11, which is the manual step required to initiate it, to initiate the automatic process. That's taken from column 5, line 45, what you've been focusing on, sir, Your Honor. And that has to do with step 11, which is the manual stuff. JUDGE LEE: I see. So you're allocating all of these manual input to the category of initiating the process. MR. SARTORI: Yes, Yes. JUDGE LEE: If there's any manual input outside of initiation, then it's not covered by the claim. MR. SARTORI: It's not covered by the claim and it does not anticipate the claim. (D.I. 79, Exh. F at 30:7-24 (emphasis added).) This Court is aware that to disavow claim scope during prosecution a patentee must clearly and unambiguously express surrender of subject matter, and the Court is thus cautious in concluding that a patentee has disavowed claim scope. See, e.g., Sepracor Inc. v. Dey, L.P., 590 F.Supp.2d 649 , 655-56 (D.Del.2008); Honeywell Int'l, Inc. v. Nikon Corp., 589 F.Supp.2d 433 (D.Del.2008). However, in the Court's view, the above exchange represents a clear and unambiguous disavowal of claim scope. Furthermore, the Court has reviewed the entirety of the BPAI hearing transcript and concludes that this disavowal is not, as Simplification contends, merely taken out of context. Indeed, many other statements during the BPAI hearing confirm the disclaimer. For instance, at one point the following exchange occurred: JUDGE MEDLEY: So "automatic," what does thatwhat is your position? What does that mean? MR. SARTORI: It should mean acting or operating in a manner that is essentially independent of external input or control. JUDGE MEDLEY: So not manual. MR. SARTORI: Not manual, yes. JUDGE MEDLEY: So if you have any kind of manual input from start to end, then, it's no good. MR. SARTORI: It's no good in the sense of the comprising language, and no good in the sense of the limitations we have in the claims must be performed automatically. (D.I. 79, Exh. F at 15:8-18.) [2] Counsel for Simplification went on to explain that "step 11" was the point where some data had to be input manually, and that this was the "feature of the invention ... not recited in the claims." ( Id. at 15:21-26 (emphasis added).) Likewise, Simplification analogized its invention to an automatic dishwasher during the BPAI hearing. In so doing, Simplification explained that "once you start that dishwasher or that washing machine, it's going to town," that it was "automatic," and that there would be no need to "add the water" or "tell it when to start the rinse cycle." ( Id. at 16:13-18, 17:11-14.) Later in the hearing, Simplification explained *708 that "[s]tep 11 talks about the manual part of it," and that "once it receives the information, it automatically goes through all the steps in the process." (Id. at 21:14-20 (emphasis added).) In the Court's view, none of these statements comports with the meaning of "automatic tax reporting" that Simplification now advocates for. Simplification raises two main arguments in support of its construction. First, Simplification contends that by using the open-ended transitional phrase "comprising," the claims allow manual input that Block's construction improperly forecloses. (D.I. 80 at 13-14.) Second, Simplification relies on the Federal Circuit's decision in CollegeNet, Inc. v. ApplyYourself, Inc., 418 F.3d 1225 , 1235 (Fed.Cir.2005), where the term "automatically" was interpreted to mean "once initiated the function is performed by a machine, without the need for manually performing the function." Though these arguments would normally have force, Simplification's statements during the BPAI hearing change the situation dramatically. Furthermore, this case is not resolved by a straightforward application of CollegeNet, as Simplification contends, because in CollegeNet the specification and prosecution history both supported the proposed construction. See id. at 1235-36. As explained above, the Court finds that this is not the case here, especially when it comes to the prosecution history. Accordingly, the Court concludes that "automatic tax reporting" means, as Block essentially contends, "preparing a tax return on a computer without manual intervention from the user." Though the Court effectively adopts Block's construction, the Court declines to include in its construction the word "automatically," as Block proposes. In the Court's view, this word is redundant to the phrase "without manual intervention from the user." On the other hand, though Simplification criticizes Block's construction for using the word "computer" ( see D.I. 85 at 5 n. 2), the Court concludes that this word clarifies the meaning of "automatic." See CollegeNet, Inc. v. ApplyYourself, Inc., 418 F.3d 1225 , 1235 (Fed.Cir.2005) (defining "automatically," in part, to include the limitation of being "performed by a machine"). Furthermore, it is consistent with the agreed upon definition set forth in the specification for "electronic intermediary," which, in the claims and specification, is the component that carries out "automatic tax reporting." ( See D.I. 79 at 5; '052 patent 4:39-42 ("The term `electronic intermediary' refers to a data processing system comprising a general purpose computer and a computer program ... for performing the invention.").) Indeed, in the claims, "automatic tax reporting" is always done "by an electronic intermediary." Thus, the Court's construction has the added benefit of properly interpreting the disputed claim term not as "a single element in isolation," but within the context of the entire claim. See Pause Tech., LLC v. TiVo Inc., 419 F.3d 1326 , 1331-33 (Fed. Cir.2005) (construing the term "circular storage buffer" to require the storage of data at repeating physical addresses based on additional claim language calling for a processor to "write over" old data). B. "Electronically" ------------------------------------------------------------------------------------- Simplification's Construction Block's Construction ------------------------------------------------------------------------------------- By way of devices, circuits, or systems Performed on a computer automatically utilizing electron devices. without manual intervention from the user. ------------------------------------------------------------------------------------- *709 The dispute between the parties boils down to whether the term "electronically" should be construed in a manner similar to "automatic tax reporting." Based on statements Simplification made during the BPAI hearing, Block contends that it should. Simplification, on the other hand, asks for a broader construction based on a definition from the IEEE Standard Dictionary of Electrical and Electronics Terms. The Court concludes, as Block contends, that the prosecution history mandates that the term "electronically" be understood in a manner similar to "automatic tax reporting." Indeed, during the BPAI hearing, the Board explained to counsel for Simplification that "when I look through your arguments, it seems like you're equating electronic, automatic, and no manual input all to be the same. I could put equal signs in between." (D.I. 79, Exh. F at 24:15-18.) Simplification did not dispute this assertion, but unequivocally confirmed it as follows: JUDGE MEDLEY: But you don't claim automatic everywhere. MR. SARTORI: We do not claim that's right. We do not claimI'm sorry. I'm sorry. JUDGE MEDLEY: So electronicsee, that's why I'm kind of having a problem. Because I read your brief MR. SARTORI: I thought you were on the '052 for a second. You're on the '787. I'm sorry, JUDGE MEDLEY: But you do. You sort of mix the issues. I read what you say, and it seems like you're saving automatic is electronic, is not entering manually information. You're equating all three. MR. SARTORI: That's right. In the context of the '052 patent, which recites "automatic" in all the claims, "automatic" needs to be given its ordinary meaning and weight. In those ones, I think it's clear with regard to the Beamer reference. In the '787 we have two independent claims, 1 and 10, which do not recite "automatic." The rest of the independent claims recite "automatic." And so those ones, I think it's clear that the Beamer doesn't teach it. We're focusing on claims 1 and 10. And there are two reasons that I said previously that the Beamer article does not teach it. One is they're connecting electronically. And yes, we are saving electronically means that there's no manual input. You have towe're saying you need to read it in light of the specification. ( Id. at 28:9-29:5 (emphasis added).) Thus, during the BPAI hearing Simplification expressly stated that "electronically means that there's no manual input" and that this followed from a reading of the claims "in light of the specification." As above, the Court finds this to be a clear and unmistakable disavowal of claim scope, which, rather than being taken out of context, is buttressed by subsequent statements that Simplification made to the BPAI. Specifically, the transcript of the BPAI hearing reveals that the Board was, in fact, reluctant to accept Simplification's assertion that "electronically means that there's no manual input." Thus, following the exchange above, the, Board continued to question Simplification on the issue: JUDGE LEE: Isn't the way you're interpreting it contrary to just logic or common sense? You know, simply saying this is made of wool doesn't mean it doesn't have other components. MR. SARTORI: I'm sorry. You lost me, sir. *710 JUDGE LEE: Saying something is electronic doesn't necessarily exclude any kind of manual contribution. MR. SARTORI: The claim recites connecting electronically to a tax data provider, and then collecting electronically from a tax data provider. And that needs to be done electronically. The JUDGE LEE: Yeah. But why does that exclude any kind of manual input? I mean, that's crux to the issue. MR. SARTORI: Yes, for Claims 1 and 10 of the '787 patent. JUDGE LEE: You just say that it does, but I don't get it. MR. SARTORI In the context of the step which refers tothat recitation of collecting electronically refers to step 12 of the patent. And there it talks about, as I said before, the invention eliminates the current requirement that a taxpayer manually collect the tax data, and that the taxpayerit eliminates the current requirement that the taxpayer manually enter the tax data onto the tax return or into the computer. And by collecting electronically, you're eliminating those requirements. And to the extent that Beamer makes you do those things, or the system requires you do those things, it doesn't anticipate the claim. ( Id. at 29:9-30:3). Understanding the Board's motivation behind these lines of questions is helpful to capture the significance of these exchanges. Specifically, from the outset of the hearing, the Board's questions reveal that it was concerned because, although Simplification had distinguished its invention from the prior art on the basis of the prior art requiring manual entry, Simplification had nevertheless pursued claims that recited only an "electronically" limitation and not an "automatic" limitation. ( See id. at 5:22-23 ("But not all of your claims require automatic collecting. I see quite a few that don't require automatic collection.")) Faced with these questions, Simplification took the position, set forth above, that "electronically" should be understood similarly to "automatic." The Court concurs with that position. Indeed, the evidence set forth above in support of the Court's construction for "automatic tax reporting" is not just limited to understanding the meaning of "automatic" but shows, as Block contends, that the invention as a whole is directed to fully-automated tax reporting. In these circumstances, the evidence in the specification and prosecution history supporting the Court's construction of "automatic tax reporting" is relevant to and informs the construction of "electronically" also. ( See supra Part II.A.) Accordingly, the Court concludes, as Block contends, that the term "electronically" means "performed on a computer without manual intervention from the user." In support of their proposed construction, Simplification points to a dictionary definition from The IEEE Standard Dictionary of Electrical and Electronics Terms, which defines "electronic" to mean "[o]f or pertaining to devices, circuits, or systems utilizing electron devices." (D.I. 80, Exh. D.) This dictionary, in turn, defines "electron device" to be "[a] device in which conduction is principally by electrons moving through a vacuum, gas, or semiconductor." ( Id. ) In the Court's view, these definitions are vague, overbroad, and poorly suited to the context of the patents-in-suit. Indeed, the patent defines the "electronic intermediary" that carries out the steps of the claimed invention to be, in part, a "general purpose computer and a computer program." ('052 patent at 4:39-42.) If anything, this suggests that the *711 term "electronic" is connected to the use of a computer. The Court finds nothing in the specification or prosecution history supporting an expansive construction based on the term "electron device." Simplification further relies on the doctrine of claim differentiation for the position that the term "electronically" must be understood differently than the term "automatically." ( See D.I. 85 at 17-18.) However, claim construction positions based on claim differentiation are rebuttable, taking a secondary role if an alternate construction is dictated by the written description or prosecution history. See Regents of the Univ. of Cal. v. Dakocytomation Cal., Inc., 517 F.3d 1364 , 1375 (Fed. Cir.2008). For the reasons set forth above, the Court concludes that, in this case, the prosecution history and specification trump claim differentiation. Finally, Simplification notes that the specification explains that certain steps of the claimed method could be performed using certain prior art software that does not provide a fully automated tax preparation system, such as TurboTax. ( See D.I. 85 at 15-16, 23-24.) Based on this, Simplification contends, one of skill in the art would understand that the invention of the patents-in-suit, like the prior art, requires "manual intervention and input at several points," such that Block's construction of "electronically" should be rejected. ( Id. at 15.) The full portion of the specification relied upon by Simplification is as follows: In the present invention, step 13 can be implemented using a computer program similar to the computer programs currently available in the market place, such as TurboTax, which is a registered trademark of Intuit, Inc. Although step 13 can be implemented with current technology, the current technology requires that the tax data and other information relevant to the taxpayer be inputted manually. With the present invention, this information is obtained as described above in steps 11 and 12. ('052 patent at 6:33-41.) In the Court's view, this passage do not embrace the use of prior art methods that required manual input. On the contrary, this passage disparages prior art software specifically on the basis of it requiring manual input and explains that this is overcome in the "present invention." To the extent this passage suggests that certain steps of the claimed method could be done using software "similar" to prior art software, such statements appear to be only for the purpose of setting the stage for distinguishing such art. Accordingly, after reviewing the portion of the specification relied upon by Simplification, the Court is reluctant to place much weight on references to prior art software in the specification. C. Other Claim Terms That Use The Word "Electronically" The parties dispute the meaning of a number of terms that use the word "electronically" as a modifier. The parties each propose constructions that incorporate their proposed construction for the word "electronically." For the reasons se forth above, the Court will construe these terms in accordance with Block's proposed construction of "electronically." Below, the Court resolves the remaining disputes the parties have over the meaning of these terms. 1. "Connecting Electronically" ----------------------------------------------------------------------------------------------- Simplification's Construction Block's Construction ----------------------------------------------------------------------------------------------- Physically or logically coupling by way of The act of establishing communication devices, circuits, or systems utilizing electron between computerized devices automatically devices. without manual intervention from the user. ----------------------------------------------------------------------------------------------- *712 Neither party offers a great deal of assistance as to the meaning of "connecting" in the term "connecting electronically." Block relies on general purpose and technical dictionary definitions that are either undated or appear to postdate the filing of the patents-in-suit. ( See D.I. 79 at 21-22.) Simplification points out correctly that the specification explains that electronic connections are established over "electronic links." (D.I. 80 at 19.) Thus, Simplification offers a construction that it contends comports with a "[n]on-limiting" list of "electronic links" provided in the specification. ( Id. at 20; see also '052 patent at 5:67-6:6 (listing, for example, modem, Internet, and computer-readable medium as "electronic links").) Notably, the parties have agreed on the meaning of "electronic link," jointly defining it to be "an electronic means of communicating digital information bidirectionally." (D.I. 79 at 5.) In the Court's view, Block's proposed construction of "connecting electronically," which focuses on the establishment of "communication," aligns most naturally with this agreed upon definition. The Court further notes that Simplification's definition demands only "physical" coupling by way of an "electron device." As above, the Court finds this definition to be overbroad. Accordingly, the Court concludes that "connecting electronically" means, as Block contends, "establishing communication between computerized devices without manual intervention from the user." 2. "Collecting Electronically" ---------------------------------------------------------------------------------------- Simplification's Construction Block's Construction ---------------------------------------------------------------------------------------- Gathering by way of devices, circuits, or The act of gathering data automatically systems utilizing electron devices. without manual intervention from the user. ---------------------------------------------------------------------------------------- Other than the dispute over the interpretation of the term "electronically," the parties only disagreement is about whether the term "collecting" should refer to "gathering data" (Block's position) or simply "gathering" (Simplification's position). The Court's review of the claims reveals that the term "collecting electronically" is used exclusively in conjunction with the term "tax data." Accordingly, the Court concludes that the word "data" need not be included in the construction of "collecting electronically." Unlike the claim term "automatic tax reporting," where the Court looked to surrounding claim language to help construe the word "automatic," the Court finds no need to resort to surrounding claim language to clarify the meaning of the disputed term. The Court will thus construe the term "collecting electronically" to mean "gathering without manual intervention from the user." 3. "Processing Electronically" ----------------------------------------------------------------------------------------------------------- Simplification's Construction Block's Construction ----------------------------------------------------------------------------------------------------------- Systematic performance of operations, such The act of performing the appropriate computations as data manipulation, merging, sorting, and (e.g., addition, subtraction, multiplication, computing accomplished by way of devices, and division) automatically without circuits, or systems utilizing electron devices, manual intervention from the user. ----------------------------------------------------------------------------------------------------------- The parties offer competing constructions for the word "processing" in the term "processing electronically." Simplification offers a definition from the IEEE Standard Dictionary of Electronic Terms. ( See D.I. 80, Exh. D.) Block, on the other hand, points to the portion of the specification *713 that describes how the "electronic intermediary process the tax data," which explains that this includes "appropriate tax computations" such as "addition, subtraction, multiplication, and division ...." ('052 patent at 6:42-47.) Simplification contends that this definition is inappropriate because it limits the claims to examples in the specification. However, Block's proposed construction is, in fact, quite broad, referring only to "appropriate computations." Furthermore, it is inherently nonlimiting, explicitly stating that listed operations are only exemplary. The Court further favors Block's construction because, rather than being based on a dictionary that the Court has found inappropriate for other disputed terms, it is based on evidence in the specification. Accordingly, the Court concludes that "processing electronically" means, as Block contends, "performing the appropriate computations (e.g., addition, subtraction, multiplication, and division) without manual intervention from the user." 4. "Preparing Electronically" ------------------------------------------------------------------------------------------------ Simplification's Construction Block's Construction ------------------------------------------------------------------------------------------------ Preparing an electronic tax return by way of The act of completing automatically without devices, circuits, or systems utilizing electron manual intervention from the user. devices. ------------------------------------------------------------------------------------------------ Outside of the dispute over the meaning of "electronically," the parties dispute whether the word "preparing" in this claim term should be understood to imply "completeness" (Block's position) or not (Simplification's position). Block notes that the specification explains that "[i]n step 15, the electronic intermediary electronically files the electronic tax returns prepared in step 14 with the taxing authorities." ('052 patent at 6:63-64.) According to Block, because tax returns that were "prepared" in step 14 may then be filed with the taxing authority in step 15, those tax returns must have been "completed" during the "preparing" step. Block further contends that, in normal usage, "if one asks an accountant to prepare a tax return, then the accountant understands that the tax form (e.g., IRS Form 1040) is to be completed." (D.I. 79 at 26.) Simplification's briefing on this term appears focused on the meaning of the word "electronically." [3] Nevertheless, as part of this argument, Simplification notes that the specification explains that "step 14" the tax return preparation stepcould be implemented using prior art technology, such as TurboTax software. (D.I. 85 at 23-24.) Such prior art software, Simplification explains, required the taxpayer to print, sign and submit an original signature even when e-filing. Likewise, Simplification explains that even when using prior art software, the taxpayer still needed to complete an IRS Form 8453-OL and that the IRS did not consider a tax return to be completed until it received that signed form. ( Id. ) Thus, because the specification supposedly embraces the use of prior art techniques for "preparing" a tax return, and because these techniques clearly did not yield a truly completed tax return, Simplification apparently contends that it would be inconsistent with the specification *714 to construe "preparing" to imply "completeness." However, as explained above, the Court concludes that, at most, the specification explains that certain steps can be completed using software "similar" to prior art software. See supra Part II.B. On the whole, the specification and prosecution history distinguish the invention from prior art software, particularly on the basis of the prior art requiring manual involvement by the taxpayer. Block's proposed construction, which calls for the tax return to actually be "completed" through the process of "preparing" the tax return, is much more in line with the idea of the fully-automated tax preparation system that is presented in the specification and prosecution history of the patents-in-suit. Indeed, should the process of "preparing" a tax return result in only a partially completed tax return, manual intervention by the taxpayer would be required. But, as set forth above, Simplification relegated such manual input to the unclaimed initiation procedure described in the specification as "Step 11." Put another way, allowing for manual intervention following the preparation of a partially completed tax return would be akin to "start[ing] the rinse cycle" or "add[ing] the water" in an automatic dishwasher, which are the sort of actions Simplification specifically explained were not required in the present invention. (D.I. 79, Exh. F at 16:13-18, 17:11-14.) Accordingly, the Court concludes that "preparing electronically" means, as Block contends, "completing without manual intervention from the user." 5. "Filing Electronically" ------------------------------------------------------------------------------------------------ Simplification's Construction Block's Construction ------------------------------------------------------------------------------------------------ Submitting or transmitting to a taxing The act of entering a legal document into the authority by way of devices, circuits, or public record by means of a computer automatically systems utilizing electron devices. without manual intervention from the user. ------------------------------------------------------------------------------------------------ With regard to the meaning of "filing," Block relies on a definition from Merriam-Webster's Online Dictionary. (D.I. 79 at 29.) Simplification, on the other hand, notes that in describing the process of filing the tax return ("Step 15" in the specification), the specification explains that the "electronic intermediary" "transmits the electronic forms to the taxing authorities." ('052 patent at 6:66-67.) The Court concludes that Block's dictionary definition is not suitable. First, as Simplification notes, tax return information is confidential. 26 U.S.C. § 6103 ("Returns and return information shall be confidential...."). Thus, construing "filing" to include entering into the "public record" would be inappropriate in the context of the patents-in-suit. Second, the Court's review of the claims reveals that the term "filing electronically" is used exclusively in conjunction with the term "tax return." Thus, as with the term "collecting electronically," see supra Part II. C.2, the Court sees no need to include the vague term "legal document" in its construction of "filing." Accordingly, the Court shall construe "filing" to mean, as Simplification contends, "submitting or transmitting to a taxing authority," a definition that is well supported by the specification's description of the electronic filing process. The Court shall further construe the term "filing electronically" to mean "submitting or transmitting to a taxing authority by means of a computer without manual intervention from the user." D. "Electronic Tax Return" *715 --------------------------------------------------------------------------------------------- Simplification's Construction Block's Construction --------------------------------------------------------------------------------------------- A statement of tax liability or tax-related A completed computerized tax return ready information in a form prescribed by a taxing for submission to a governmental tax agency. authority, in an electronic format. --------------------------------------------------------------------------------------------- The parties main dispute is whether the term "electronic tax return" should be understood to refer to a "completed" document. Block contends that the essential utility of the patents-in-suit is that they "automatically complete one's tax return." (D.I. 84 at 14.) Construing the claims in a manner that does not clearly require this, Block contends, would allow the claims to "drift" into the partially automated systems that Simplification distinguished during prosecution. Block also raises the same arguments it raised in support of its position that the term "preparing" should, in the context of the patents-in-suit, be equated with "completing." See supra Part II.C.4. Simplification's proposed construction does not include a "completeness" requirement. Rather, Simplification focuses on the meaning of "tax return," and proposes a construction based on definitions contained in U.S. Treasury Regulations. ( See D.I. 80 at 31.) For the reasons set forth above, the Court agrees with Block that, given the intrinsic evidence, the term "electronic tax return" should be construed to refer to a "complete" document. However, Block's construction fails to elucidate the meaning of "tax return." Though it is unclear whether the parties have genuine differences over the definition of "tax return," the Court will nevertheless adopt Simplification's proposed construction, which Block does not appear to dispute. Because a general definition of "tax return" is not provided in the intrinsic record, the Court concludes that it is not inappropriate to, as Simplification contends, look to U.S. Treasury Regulations for assistance in construing certain terms of the patentsin-suit. Indeed, with regard to "electronic tax returns," the specification explains that they are prepared with "respect to the particular taxing authorities," and lists the IRS From 1040 and Form 1040EZ as examples. Thus, adopting a general definition of "tax return" based on a description provided by a key "taxing authority" is, in the Court's view, in line with the specification. Accordingly, the Court will construe "electronic tax return" to mean "a completed computerized statement of tax liability or tax-related information ready for submission to a governmental tax agency." E. Means Plus Function Terms The parties agree that a number of claim terms should be construed as means-plus-function terms pursuant to 35 U.S.C. § 112 (6). These terms correspond to the terms construed in Part II.C supra preceded by the words "means for," which is the language traditionally used to identify means-plus-function terms. When construing such means-plus-function terms, a court must first determine the function that is being performed, "staying true to the claim language and the limitations expressly recited by the claims." Omega Enq'g v. Raytek Corp., 334 F.3d 1314 , 1322 (Fed.Cir.2003). Second, a court must determine what structure, material, or acts provided in the written description correspond to the function performed. Id. A claim governed by § 112(6) does not encompass every structure, material, or act that can possibly perform the specified function. Laitram Corp. v. Rexnord, 939 F.2d 1533 , 1535 (Fed.Cir.1991). Rather, the limitation must be construed to cover the "corresponding structure, material, or *716 acts described in the specification and equivalents thereof." 35 U.S.C. § 112 (6); Odetics, Inc. v. Storage Tech. Corp., 185 F.3d 1259 , 1266-67 (Fed.Cir.1999). The claim limitation covers only the structure, material, or acts necessary to perform the function. Omega Eng'g, 334 F.3d at 1322 . With regard to the first step of the process, the parties both propose functions for the means-plus-function terms that track their proposed constructions for the terms construed in Part II.C of this Memorandum Opinion. The Court shall take this approach as well and identify functions that track the constructions set forth in Part II.C of this Memorandum Opinion. As to the second step of the process, which, in this case, is determinative, the parties have sharply diverging views. Simplification contends that the corresponding structure is "a data processing system comprising a general purpose computer programmed with code segments to operate the general purpose computer." ( See, e.g., D.I. 85 at 27.) Block, on the other hand, contends that in light of the Federal Circuit's recent decision in Aristocrat Techs. Austl. Pty Ltd. v. Int'l Game Tech., 521 F.3d 1328 (Fed.Cir.2008), such structure is insufficient and that the claims are indefinite. In Aristocrat, the patent-in-suit pertained to a method of making slot machines more exciting by allowing players to define winning opportunities. Aristocrat, 521 F.3d at 1330 . The patent claim at issue recited a "game control means" for performing three functions related to carrying out the invention. Id. at 1331. Much like Simplification, the plaintiff in Aristocrat argued that the corresponding structure was "a standard microprocessorbased gaming machine with `appropriate programming.'" Id. In finding the claims indefinite, the Federal Circuit explained that "[i]n cases involving a computer-implemented invention in which the inventor has invoked means-plus-function claiming, [it] has consistently required that the structure disclosed in the specification be more than simply a general purpose computer or microprocessor." Id. at 1333. Because "general purpose computers can be programmed to perform very different tasks in very different ways," the Federal Circuit explained, "simply disclosing a computer as the structure designated to perform a particular function does not limit the scope of the claim to `the corresponding structure, material, or acts' that perform the function, as required by section 112 paragraph 6." Id.; see also Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323 , 1340-41 (Fed.Cir.2008) ("Simply reciting 'software' without providing some detail about the means to accomplish the function is not enough."); Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359 , 1367 (Fed.Cir.2008) ("[A] means-plus-function claim element for which the only disclosed structure is a general purpose computer is invalid if the specification fails to disclose an algorithm for performing the claimed function."). In light of this guidance, the Court finds that Simplification's proposed corresponding structure, which includes nothing more than a "general purpose computer" and "code segments," is inadequate. In these circumstances, the Court has undertaken to carefully review the patents-in-suit to determine if anything more detailed is disclosed that could meaningfully serve as the corresponding structure for the means-plus-function limitations. Specifically, the Court has, as the Federal Circuit instructed, reviewed the patents-in-suit to determine if a specific algorithm is disclosed for "transform[ing] the general purpose microprocessor to a special purpose computer programmed to perform the disclosed algorithm." Aristocrat, 521 *717 F.3d at 1338. The Court finds nothing adequate. The claim term "means for connecting electronically" provides an illustration of the lack of structure in the specification. At the Markman hearing, Simplification attempted to identify corresponding structure for the term as follows: In sum, Your Honor, let's look and see what's been disclosed here. The taxpayer provides identifying information to the electronic intermediary, and that can be an identifying information about themselves, identification of the tax data providers, account numbers, et cetera. The electronic intermediary takes that information, reaches out and contacts the tax data provider and connects with the tax data provider. And those, Your Honor, are steps, the steps disclosed in the patent, the algorithm for performing the connecting electronically step, and that provides under the law and under the standards of Aristocrat and Harris, the algorithm that's required, the structure that's required to support the means plus function limitation. (D.I. 101 at 43:3-20.) In the Court's view, this description offers little more than a restatement of the claim language, not a description of a particular algorithm corresponding to the term "connecting electronically." Though Simplification correctly notes that the specification refers to the collection of personal identification and information on tax data providers, the Court finds no description of an algorithm explaining how such information is actually used to perform the function associated with the "connecting electronically" limitation or, for that matter, any other means-plus-function terms. It is manifest that personal identification and/or information on tax data providers will be used in the claimed invention to, among other things, "connect electronically." However, observation of this fact does nothing to explain how the "general purpose computer" mentioned in the specification may be transformed into the "special purpose" computer that performs the algorithm corresponding to either the "connecting electronically" limitation or any of the other means-plus-function terms. Likewise, though the specification states that the Internet could be searched for tax data, or, alternatively, that "the taxpayer could specifically identify the tax data providers and could include information on how to contact the tax data providers electronically ...," ('052 patent at 4:51-60), the Court concludes that such statements, and others like it, do not meaningfully advance the disclosure beyond the phrase "general purpose computer," which, as explained above, is insufficient. For some of the means-plus-function terms, Simplification relies on district court and Federal Circuit authority that supposedly stands for the proposition that a reference to an exemplary commercially available product can serve as corresponding structure for a means-plus-function limitation. See, e.g., Budde v. Harley-Davidson, Inc., 250 F.3d 1369 , 1382 (Fed. Cir.2001) (holding that characterizing a "vacuum sensor as a `commercially available unit'" would apprise one of skill in the art of structure capable of performing the function of the claim limitation); Radio Sys. Corp. v. Tri-Tronics, No. 05-cv-243, 2007 WL 776519 , at *4, 2007 U.S. Dist. LEXIS 17315 , at *11 (E.D.Tenn. Mar. 9, 2007) ("[A] structure included in a specification need not be described in detail to show that it performs the claimed function when that structure is well known in the art."). Relying on this authority, Simplification contends that the patent's references *718 to TurboTax software provide the necessary corresponding structure. However, the specification offers no detail regarding the underlying algorithms used by TurboTax to perform the recited means-plus-function steps. In these circumstances, additional evidence is necessary to confirm that one of skill in the art would understand the references to Turbo-Tax as disclosing particular algorithms, and, more importantly, what those algorithms are. But no such evidence has been provided. As it stands, the Court finds itself unable to fashion a meaningful construction based on the specification's naked references to TurboTax. Furthermore, even if such evidence were provided, the Court would be reluctant to conclude that aspects of the TurboTax software package could serve as corresponding structure. As noted above, though the specification explains that certain steps can be implemented using programs "similar" to TurboTax, the key reference in the specification to such software largely disparages it on the basis of requiring manual input. ('052 patent at 6:31-41.) Where the patent's reference to prior art software is, at best, equivocal, the Court is unenthusiastic about relying on it for corresponding structure. CONCLUSION For the reasons discussed, the Court has construed the disputed terms and/or phrases of the '052 and '787 patents as provided herein. An Order consistent with this Memorandum Opinion will be entered setting forth the meanings of the disputed terms and/or phrases in the '052 and '787 patents. ORDER At Wilmington, this 23 day of January 2009, for the reasons discussed in the Memorandum Opinion issued this date; IT IS HEREBY ORDERED that the following terms and/or phrases in United States Patent Nos. 6,202,052 ("the '052 patent") and 6,697,787 ("the '787 patent") are assigned the following meanings: 1. The term "automatic tax reporting" means "preparing a tax return on a computer without manual intervention from the user." 2. The term "electronically" means "performed on a computer without manual intervention from the user." 3. The term "connecting electronically" means "establishing communication between computerized devices without manual intervention from the user." 4. The term "collecting electronically" means "gathering without manual intervention from the user." 5. The term "processing electronically" means "performing the appropriate computations (e.g., addition, subtraction, multiplication, and division) without manual intervention from the user." 6. The term "preparing electronically" means "completing without manual intervention from the user." 7. The term "filing electronically" means "submitting or transmitting to a taxing authority by means of a computer without manual intervention from the user." 8. The term "electronic tax return" means "a completed computerized statement of tax liability or tax-related information ready for submission to a governmental tax agency." 9. The term "means for connecting electronically" is a means-plus-function term with the function of "establishing communication between computerized devices without manual intervention from the user." The specification does not set forth corresponding structure. *719 10. The term "means for collecting electronically" is a means-plus-function term with the function of "gathering without manual intervention from the user." The specification does not set forth corresponding structure. 11. The term "means for processing electronically" is a means-plus-function term with the function of "performing the appropriate computations (e.g., addition, subtraction, multiplication, and division) without manual intervention from the user." The specification does not set forth corresponding structure. 12. The term "means for preparing electronically" is a means-plus-function term with the function of "completing without manual intervention from the user." The specification does not set forth corresponding structure. 13. The term "means for filing electronically" is a means-plus-function term with the function of "submitting or transmitting to a taxing authority by means of a computer without manual intervention from the user." The specification does not set forth corresponding structure. NOTES [1] Unless otherwise noted, docket item numbers in this Memorandum Opinion refer to Civil Action No. 03-355-JJF, which is the action where the parties filed their claim construction briefs. Civil Action Nos. 03-355-JJF and 04-114-JJF have been consolidated into Civil Action No. 03-355-JJF, as reflected in the caption of this Memorandum Opinion. [2] Simplification argues that Block is misunderstanding this exchange and contends that in referring to the open-ended transitional phrase "comprising," it was clearly advocating for broader understanding of the claims. (D.I. 85 at 9-10.) However, the Court disagrees, and finds that although the term "comprising" was mentioned, Simplification's position was quite clear that "any kind of manual input from start to end" was "no good." [3] The parties do not appear to hotly contest the issue of whether the term "preparing" should imply "completeness." Indeed, Simplification asserts that it is "unclear whether the parties' competing definitions of `preparing' as `preparing' or `the act of competing' reflect a substantive difference," and then devotes the remainder of its briefing to the issue of how the term "electronically" should be construed. ( See D.I. 85 at 23-24.) | opinion_html_with_citations | 8,826 | 2013-10-30 09:05:21.638502+00 | 010combined | f | f | 2,318,665 | Farnan | null | LU | f | Published | 0 | SIMPLIFICATION, LLC v. Block Financial Corp. | null | SIMPLIFICATION, LLC, Plaintiff, v. BLOCK FINANCIAL CORPORATION, and H & R Block Digital Tax Solutions, Inc., Defendants | null | null | <parties id="b740-2">
SIMPLIFICATION, LLC, Plaintiff, v. BLOCK FINANCIAL CORPORATION, and H & R Block Digital Tax Solutions, Inc., Defendants.
</parties><br><docketnumber id="b740-4">
Civil Action No. 03-355-JJF.
</docketnumber><br><court id="b740-5">
United States District Court, D. Delaware.
</court><br><decisiondate id="b740-7">
Jan. 23, 2009.
</decisiondate><br><attorneys id="b742-11">
<span citation-index="1" class="star-pagination" label="702">
*702
</span>
Julie A. Petruzzelli, Esquire; Peter J. Curtin, Esquire; David M. Farnum, Esquire and Michelle M. Marcus, Esquire of Venable, LLP, Washington, D.C., Mary B. Graham, Esquire and Julia Heaney, Esquire of Morris, Nichols, Arsht & Tunnel LLP, Wilmington, DE, for Plaintiff Simplification, LLC.
</attorneys><br><attorneys id="b742-13">
Jeffrey S. Standley, Esquire and F. Michael Speed, Jr., Esquire of Standley Law Group, LLP, Dublin, OH, John W. Shaw, Esquire; Karen E. Keller, Esquire and Jeffery T. Castellano, Esquire of Young Conaway Stargatt & Taylor, LLP, Wilmington, DE, for Defendants Block Financial Corporation and H & R Block Digital Tax Solutions, Inc.
</attorneys> | null | null | null | null | null | null | 2,187,569 | Civil Action 03-355-JJF | 0 | ded | FD | t | D. Delaware | District Court, D. Delaware |
8,364,464 | The following order has been entered on the motion filed on the 18th day of May 2007 by Defendant for judgment in favor of defendant, dropping all charges and dismissing the case, in accordance to NC Rules of Appellate Procedure:"Motion Dismissed by order of the Court in conference this the 6th day of December 2007." | opinion_xml_harvard | 55 | 2022-10-18 00:47:26.49768+00 | 020lead | t | f | 8,394,210 | null | null | U | f | Published | 0 | State v. Armsrong | Armsrong | STATE v. Arthur O. ARMSTRONG. | null | null | null | null | null | null | null | null | null | 65,575,077 | No. 488P06-3. | 0 | nc | S | t | Supreme Court of North Carolina | Supreme Court of North Carolina |
6,534,802 | ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud (Justice González sat for Justice Wiggins), considered at its October 30, 2018, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered. ¶ 2 IT IS ORDERED: ¶ 3 That the petition for review is denied. For the Court /s/ Fairhurst, C.J. CHIEF JUSTICE | opinion_xml_harvard | 74 | 2022-07-19 21:34:53.721466+00 | 020lead | t | f | 6,657,458 | Fairhurst | null | U | f | Published | 0 | State v. Hill | Hill | STATE of Washington v. Kevin James HILL | null | null | null | null | null | null | null | null | null | 63,635,905 | No. 96117-4 | 0 | wash | S | t | Washington Supreme Court | Washington Supreme Court |
6,219,475 | Conviction reversed and new trial ordered. Opinion by Putnam, J. | opinion_xml_harvard | 10 | 2022-02-10 18:20:52.246891+00 | 020lead | t | f | 6,350,781 | Putnam | null | U | f | Published | 0 | People v. Kehoe | Kehoe | The People of the State of New York v. James Kehoe | null | null | null | null | null | null | null | null | null | 62,991,143 | null | 0 | nysupct | ST | t | New York Supreme Court | New York Supreme Court |
9,294,667 | Welsh, J. This is an action alleging negligence in the operation of a motor vehicle. The case was tried before a jury. A verdict was returned indicating that the defendant was not negligent The issue on appeal is whether the judge erred in failing to instruct the jury in accordance with G.L.c. 89, §8, (the general “right of way” at intersections) as well as G.L.c. 89, §9 (the duty of a motorist at an intersection governed by a stop sign). We determine there was no error. The following evidence was adduced at trial. On January 9,1996, the plaintiff was operating a motor vehicle on Revere Street a public way in Quincy. She testified that she came to a complete stop at a “stop” sign at the intersection of Revere Street and Mechanic Street also a public way. A large mound of snow obstructed her view and she was unable to see the intersection. She proceeded out into the intersection and stopped again about half way into the intersection. The passable roadway was narrowed considerably due to the snow banks on the sides of the road. She allowed a white car to pass her and then started up again. She testified that she saw the car operated by the defendant approaching at a speed of 45 miles per hour; nevertheless she proceeded through the intersection, making a left turn in the path of the oncoming vehicle. The defendant’s vehicle struck the left side of the plaintiffs vehicle, with left hand side damage to the defendant's vehicle. The defendant testified that the plaintiff did not stop. The jury determined that the defendant was not negligent The court gave comprehensive instructions on the elements of negligence and the duty of care. The court specifically instructed the jury as to the issue of violation of a statute as evidence of negligence, taking pains to explain that the violation, if found, must be a contributing factor to the damage sustained by the plaintiff. See Minnehan v. Hiland, 278 Mass. 518, 523 (1932). He specifically charged as to the duty to stop at a stop sign as provided by G.L.c. 89, §9.2 The plaintiff’s quarrel with the judge is that he failed specifically to instruct as she requested regarding G.L.c. 89, §8, the general duty of care applicable when two motorists arrive at an intersection at approximately the same time. There was no error. G.L.c. 89, §8 expressly provides that its provisions do not *138apply when an operator is otherwise directed by a traffic regulatory sign erected and maintained in accordance with the provision of Sec. 2 of Ch. 85 (which would include “stop” signs). See Canane v. Dandini, 355 Mass. 72, 75 (1968). G.L.c. 89, §9 is the statute that is primarily applicable to intersections governed by stop signs. As stated in Canane, one directed to stop by a stop sign may not have the benefit of the general rule if the rule grants him the right of way, until he has complied with the order to stop. After stopping, the operator becomes subject to the general rule and may proceed and thereafter exercise the right of way in accordance with that rule. Id. at 75. However, the operator must proceed into the intersection with due care. Even if the operator has the right of way under c. 89, §8, that right is subject to the requirement of using due care. Possession of the right of way is only one factor to be considered in deciding whether the operator has fulfilled his duty of due care. Id. at 76. Accordingly, an operator who has stopped at a “stop” sign may still be found to be negligent if he proceeds into the intersection without using due care. The duty to exercise due care requires an operator who has halted at a stop sign to behave with reasonable caution before entering the intersection. Even an operator who has stopped at a stop sign and has a “right of way” under §8 may be found to be negligent if he proceeds into the intersection before he can do so with reasonable prudence and with suitable regard for his safety and that of others. Freyermuth v. Lutfy, 376 Mass., 612, 616, N. 3. (1978). Again, the “right of way^ rule in §8 is not absolute, but is subject to the condition of due care as to its exercise. With these principles in mind, we turn to the judge’s charge. At the outset, we observe that it is not required that the judge charge the jury in the precise formulation proposed [see Poole v. Boston & Main Ry., 216 Mass. 12, 15 (1913)] so long as the judge fairly and adequately covers the point in the charge. See Comeau v. Beck, 319 Mass. 17, 10 (1946); Squires v. Fraska, 301 Mass. 474, 476 (1938). Stated somewhat differently, the denial of requested instruction does not constitute error where the requested instructions were covered substantially in the charge. Pearlin v. Farrell, 356 Mass. 741 (1970). The judge gave detailed and comprehensive instructions on the concept of negligence in the context of operating of motor vehicles. He explained the duty of a motorist with regard to intersections controlled by stop signs. This explanation included the duty to yield to vehicles in or in close proximity to the intersection. While the instruction did not follow precisely the formulation suggested in the Canane and Freyermuth cases, the judge’s instruction properly stressed the duty of due care when proceeding into the intersection governed by the stop sign after having stopped. Appeal dismissed. So ordered. “Another rule of the road is that every driver approaching a stop sign, shall stop at a clearly marked stop line, and if there is not a stop line, then [at] a point nearest the intersecting roadway before entering it After having stopped, the driver shall yield the right of way to every vehicle in the intersection or approaching in [the] other roadway so closely as to constitute an immediate hazard during the time when the driver is moving across or within the intersection.” | opinion_xml_harvard | 1,012 | 2022-11-29 17:16:00.853768+00 | 020lead | t | f | 9,299,654 | Creedon, Welsh, Wheatley | null | U | f | Published | 0 | Anthony v. Jancsics | Anthony | Margot Anthony v. Maddalyn Jancsics, and another | null | null | null | null | null | null | null | null | null | 66,569,677 | null | 0 | massdistctapp | SA | f | Mass. Dist. Ct., App. Div. | Massachusetts District Court, Appellate Division |
9,683,154 | KEM THOMPSON FROST, Justice, concurring on denial of rehearing en banc. I write separately to respond to the dissenting opinion on the denial of rehearing en banc. A majority of the en banc court voted not to reconsider the panel’s decision en banc.1 See Tex.R.App. P. 49.7. That decision is compelled by the exacting standard for en banc review imposed by the Texas Rules of Appellate Procedure.2 *424En banc review at the intermediate appellate courts was instituted to maintain uniformity of a court’s decisions as a single, unitary body, even though the court may sit in panels. See O’Connor v. First Court of Appeals, 887 S.W.2d 94, 96 (Tex.1992) (discussing promulgation of Rule 79, predecessor to current en banc rehearing rule, after constitutional amendment authorized increase in size of intermediate courts and allowed courts to sit in panels of three). Rule 41.2 of the Texas Rules of Appellate Procedure governs the decision to grant a motion for rehearing by an en banc court. Tex.R.App. P. 41.2. The portion of that rule relevant here provides: (c) En banc consideration disfavored. En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court’s decisions or unless extraordinary circumstances require en banc consideration.... Tex.R.App. P. 41.2(c).3 Appellant’s motion for rehearing en banc did not address the standard for en banc review as set forth in Rule 41.2(c). Appellant did not cite to a direct conflict between the panel opinion and any other opinion of this court.4 Thus, en banc review is not required in this case to maintain uniformity of our decisions. Appellant also failed to delineate the extraordinary circumstances that necessitate review by the en banc court. While our learned Chief Justice asserts that the issues he discusses in the dissenting opinion to the denial of en banc review are important, they are not the focus of appellant’s motion for rehearing. Indeed, the Chief Justice acknowledges that appellant did not mention the constitutional questions the dissenting opinion raises. Instead, the motion presented two points of error that, while related to the discussion in the dissenting opinion, concentrated on the jury argument but failed to specifically attack the holding in the panel opinion that the trial court erred in remitting part of appellees’ damages.5 Appellant argued the jury argument was incurable, obviating the necessity for an objection, and that the argument caused the jury to award excessive damages. Appellant did not challenge the factual sufficiency review of the remitted damages. Any motion for rehearing is required to “clearly state the points relied on for the rehearing.” Tex.R.App. P. 49.1. Absent an extraordinary situation, such as an intervening ruling from this court or a higher court that directly impacts the panel’s opinion, the decision whether to grant en banc review should be based upon the points asserted in the motion for rehearing. Furthermore, the party seeking en banc review should set forth the specific reasons why the case meets the standard for such review. Whether a majority of the en banc court may disagree with all or a part of a panel opinion is not the standard for en banc review. Neither is an assertion that an issue is “important” sufficient. Rather, the rules promulgated by the Texas Supreme Court require that extraordinary *425circumstances exist before ordering en banc review when there is no conflict among panel decisions. The issues before the panel in this case are important, but the appellant has not met the heightened criterion imposed in the rule.6 For these reasons, I respectfully concur with the majority decision to deny rehearing en banc. . "An en banc court consists of all members of the court who are not disqualified or re-cused and ... any members of the panel who are not members of the court but remain eligible for assignment to the court.” Tex. R.App. P. 41.2(a). . See S & L Restaurant Corp. v. Leal, 883 S.W.2d 221, 237 (Tex.App.—San Antonio 1994) (Hardberger, J., concurring in denial of en banc review) (stating case did not meet "exacting standard”of the rule), rev’d, 892 S.W.2d 855 (Tex.1995). . The language in this portion of Rule 41.2 is nearly identical to that in the former rule. . Appellant noted only that Gannett Outdoor Co. of Texas v. Kubecaka, 710 S.W.2d 79 (Tex.App.—Houston [14th Dist.] 1986, no writ), which was cited in the panel opinion, should not control the outcome in this case. .Appellant raised three issues in the motion: (1) to request punishment in the compensatory damages phase constitutes incurable jury argument; (2) the actual damages are excessive and infected by incurable argument; and (3) unqualified expert testimony on causation was erroneously admitted. . Cf. Willover v. State, 38 S.W.3d 672, 684 (Tex.App.—Houston [1st Dist.] 2000, pet. granted) (Taft, J., dissenting) ("The panel opinion’s holding effectively turns the prevailing rule, 180 degrees around, to overturning a trial court’s ruling on appeal if such ruling is incorrect for a reason not previously mentioned either at trial or on appeal. I find this beyond extraordinary.”) (emphasis in original); Crestway Care Center, Inc. v. Berchelmann, 945 S.W.2d 872, 873 n. 2. (Tex.App.—San Antonio 1997, orig. proceeding) (explaining that extraordinary circumstances for en banc review were satisfied when majority disagreed with panel’s interpretation of law and its decision to issue extraordinary remedy of mandamus, which is reserved for manifest and urgent necessity). | opinion_xml_harvard | 897 | 2023-08-24 13:23:35.103397+00 | 030concurrence | f | f | 1,786,747 | Joe L. Draughn | null | LU | t | Published | 48 | Schindler Elevator Corp. v. Anderson | Anderson | SCHINDLER ELEVATOR CORPORATION, Appellant, v. Scott ANDERSON and Diana Anderson, Individually and as Next Friends of Scott “Scooter” Anderson, Appellees | null | null | <parties id="b412-11">
SCHINDLER ELEVATOR CORPORATION, Appellant, v. Scott ANDERSON and Diana Anderson, Individually and as Next Friends of Scott “Scooter” Anderson, Appellees.
</parties><br><docketnumber id="b412-15">
No. 14-98-01286-CV.
</docketnumber><br><court id="b412-16">
Court of Appeals of Texas, Houston (14th Dist.).
</court><br><decisiondate id="b412-17">
Aug. 16, 2001.
</decisiondate><br><otherdate id="b412-18">
Dissenting and Concurring Opinions on Denial of Rehearing En Banc April 4, 2002.
</otherdate><br><attorneys id="b418-6">
<span citation-index="1" class="star-pagination" label="398">
*398
</span>
David B. Weinstein, David R. Tippetts, David J. Healey, Lisa S. McCalmont, Houston, for appellant.
</attorneys><br><attorneys id="b418-7">
George Chandler, Lufkin, Sam W. Cruse, Jr., Houston, Michael A. Hatchell, Tyler, Price Ainsworth, Austin, Scott Kidd, Houston, for appellees.
</attorneys><br><judges id="b418-8">
Panel consists of Justices DRAUGHN, SEARS, and LEE.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b418-12">
Senior Justices Joe L. Draughn, Ross A. Sears, and Norman Lee sitting by assignment.
</p>
</div></div> | null | null | null | null | null | null | 1,359,572 | 14-98-01286-CV | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
6,228,332 | The opinion of this court was delivered by Coulter, J. The clerk to the commissioners is not forbidden by the law to be a purchaser of a tract of land sold at public sale by the commissioners for arrears of taxes. Hor is it so opposed to the policy of the law as to make it iniquitous and void. The sale is open to all, except the commissioners themselves, who are the vendors, and cannot therefore both sell and buy. The clerk is merely the scrivener or ministerial agent of the commissioners. He is, it is true, employed or appointed by the commissioners subject to their directions and instructions, and without any independent authority or control over such sales; has no power in ordering, arresting, or continuing them, or in directing to whom the lands shall be stricken down. Everything he does in relation *211to them must necessarily be in subservience to the directions of .the commissioners. And if he was the highest and best bidder at the sale, and the commissioners, who are sworn public officers, made him a deed in pursuance of the purchase, it is opposed by no statutory prohibition, or any rule of public policy that has been recognised by our courts. If the clerk of the commissioners had been the purchaser himself, and received a deed from the commissioners, and afterwards sold the land, he would undoubtedly be entitled to recover the purchase-money. But in this case he was not the purchaser himself, but interested to the extent of one moiety, in the tract purchased by Cash, the defendant. Cash and Miller Fox, who was the clerk, on the day of sale entered into a written agreement, that Cash should buy at the sale a tract, in the name of Curry, for their mutual and joint benefit, each to pay an equal proportion of the purchase-money and expenses. Cash made the purchase, and received a deed from the commissioners in 1834. Afterwards an ejectment was brought against Cash for the land, by the former owner, during the pendency of which, he called on Fox, by letter, to assist in conducting the suit. Before it was finally tried, Cash compromised and made a deed, himself and wife, to the agent of the plaintiff, in that suit, who was the former owner, on the 29th October, 1840. Some time before that, as alleged (and there is no evidence to the contrary), Fox, who had committed the management to Cash, left the neighbourhood, and did not know of the sale by Cash until shortly before this suit was brought on the 13th April, 1847. The court below was of opinion that the contract was executory, and against the policy of the law, and that, therefore, Fox could not recover his share of the purchase-money. But the contract was executed by the purchase at the commissioners’ sale, and by the deed made to Cash in pursuance thereof. All that was against the policy of the law, even in the opinion of the court below, was fully executed and accomplished by the deed from the commissioners to Cash. From thenceforth Cash was the trustee of one moiety for Fox. For even if public policy made the purchase void, as against the county, or the former owner; it would nevertheless be good as between Cash and Fox. It would be iniquitous to allow Cash to *212pocket the whole proceeds, when Fox had paid half the consideration and expenses. In Lestapies v. Ingraham, 5 Barr, 81, the Chief Justice says, “ True it is that an illegal contract will not he executed, but when it has been executed by tbe parties themselves, and tbe illegal object of it has been accomplished, the money or thing which was the product of it may be a legal consideration among themselves for a promise, either express or implied; and the court will not unravel the transaction to discover its origin.” The case of Fackney v. Reynous, 4 Burr. 2069, cited by the Chief Justice in the above case, which was a bond given by one of two stockjobbers, for a difference in amount paid in a stock-jobbing transaction, prohibited by act of Parliament, is directly in point. It was held that tbe bond was good. But we are of opinion that there was nothing illegal or against tbe policy of tbe law in tbe transaction, and that Fox has a lawful and just claim against Cash for a moiety of the money he received for the land, together with interest. The statute of limitations is not a bar to the plaintiff’s action. Fox was not bound to know tbe precise time when Cash sold tbe land. It was tbe duty of Cash to give him notice. Cash was, in fact, the trustee, and Fox the cestui que trust of one moiety of the money for which the land was sold, and which is claimed in this action. Judgment reversed, and venire de novo awarded. | opinion_xml_harvard | 829 | 2022-02-17 20:16:13.498686+00 | 020lead | t | f | 6,359,578 | Coulter | null | U | f | Published | 1 | Fox v. Cash | Fox | Miller Fox v. David Cash | <p>Error to the 'Common Pleas of Bradford.</p> <p>On the 7th October, 1834, William Eox, who was clerk to the Commissioners of Bradford county, and David Cash, entered into an agreement in writing, by which it was agreed that Cash should bid off at commissioners’ sale a tract of land in the warrantee name of Susanna Curry, and should take a deed from the commissioners in his own name, each party to pay half of the purchase-money and expenses, and to be jointly interested. On the same day Cash bid off this tract at the commissioners’ sale, and on the 23d December, 1834, the commissioners executed a deed to him. On the 15th March, 1837, Charles Barclay, the former owner, instituted a suit in ejectment against Cash for this land. Cash wrote to Eox informing him of this suit, and in various letters recognised his right in this land. In one of these letters he asked Eox to agree to pay the whole of the counsel fees in the suit, which brought from Eox an angry letter in reply, in which he offered to abandon his whole claim to Mr. Cash if he would discharge him from his obligation to pay him one-half of the expenses, and he also stated that he had given him, according to his own letters, full power to do as he pleased with the suit, or abandon the claim to the land. Mr. Cash took no notice of this letter, and Mr. Eox heard nothing more of the matter for many years, being absent from the county. He accidentally learned that Cash had compromised the suit, and sold the land to Samuel Rhoades, Jr., the agent of Barclay, for $1,000, and that by deed of 29th October, 1840, recorded 7th Hovember, 1840, he had conveyed the same to him. This suit was brought by Fox on the 30th April, 1847, and is an action on the case in assumpsit for money had and received. The plaintiff set out in his declaration the agreement and the subsequent purchase by and deed to Cash — that he then held the one half in trust for the plaintiff; that he sold the same, as well his own right as the right of the plaintiff, and received the purchase-money; that he neglected to give notice to plaintiff of such sale. The defendant set up as a defence: 1. That the plaintiff abandoned his claim to Cash. 2. That the contract was not executed, and was against the policy of the law. And 3. That the plaintiff’s claim is barred by the statute of limitations. The court below (Cohyngham, President) negatived the first, and sustained the second and third grounds of defence. The verdict was for the defendant. The errors assigned here covered the instruction of the court upon the second and third grounds of defence.</p> | null | null | <p>1. The clerk to the county commissioners is not forbidden by the law to be a purchaser of land sold at public sale by them for arrears of taxes. Nor is such purchase so opposed to the policy of the law as to make it iniquitous and void.</p> <p>2. Where A., being such clerk, and B., agreed that B. should buy at such sale for their joint benefit, each paying an equal share, which was done, the contract between them was executed by the deed to B.; and if policy made the purchase void as against the public or the former owner, it would be good as between A. and B.</p> <p>3. The statute of limitations is not a bar, where it was the duty of the defendant, standing in the relation of trustee to the plaintiff, to give him notice of the sale of the trust property, which he did not do.</p> | null | null | null | null | null | 63,014,331 | null | 0 | pa | S | t | Supreme Court of Pennsylvania | Supreme Court of Pennsylvania |
5,178,123 | OPINION BY JOHN F. FISCHER, PRESIDING JUDGE: 11 Cook and Associates and Justin Cook appeal various post-judgment rulings and an amended judgment in their effort to avoid liability for the deficiency after a sheriff's *948sale in this mortgage foreclosure action. The Cooks received the required notice of the hearing on the motion to determine their deficiency, which was not constitutionally defective. Therefore, the district court did not err in denying the Cooks' September 11, 2013 motion to vacate the deficiency orders, and the order reflecting that ruling is affirmed. Appeal of the remaining rulings is either premature or time barred, BACKGROUND T2 Charles Sanders Homes, Inc. (Homes) sold commercial property to Cook and Associates in 2006, In partial satisfaction of the purchase price, Cook and Associates and Justin Cook signed a promissory note secured by a real estate mortgage on the property, When the note was in default, Homes sued to collect the balance due and foreclose its mortgage. Judgment was granted to Homes, and the property was sold at sheriff's sale for less than the amount of the judgment. The matter was then set for hearing to determine the amount of the deficiency for which Cook and Associates and Justin Cook would be liable. The amount of the Cooks' deficiency was determined to be $98,769.78. A Default Defic1ency Judgment against Cook and Associates was filed October 30, 2012, and a Default Deficiency Judgment against Justin Cook was filed February 6, 2013.1 The Cooks filed motions to vacate these deficiency orders and a motion to reconsider the denial of one of those motions. They appeal the adverse rulings on those motions and an Amended Journal Entry of Deficiency Judgment against Justin Cook filed on October 18, 2018. For the reasons stated in this appeal, we find that only the January 22, 2014 Journal Entry of Final Order denying the Cooks' September 11, 2013 motion to vacate is subject to appellate review, - STANDARD OF REVIEW 13 A motion to vacate a judgment "is addressed to the sound legal discretion of the trial court and the order made thereon will not be disturbed on appeal unless it clearly. appears that the trial court has abused its discretion." Hassell v. Texaco, Inc., 1962 OK 136, ¶ 14, 372 P.2d 233, "An abuse of disceretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling." Spencer v. Oklahoma Gas & Elec. Co., 2007 OK 76, ¶ 13, 171 P.3d 890 (footnote omitted). ANALYSIS T4 The intended scope of the Cooks' appeal is unclear, Part II of the Amended Petition in Error identifies the October 18, 20183 Amended Journal Entry of Deficiency Judgment against Justin Cook and two January 22, 2014 final orders as the decisions appealed. Part IV states that "three journal entries of 'final orders'" are attached as Exhibit A. However, Exhibit A lists five orders: the October 30, 2012, and February 6, 2018 Default Deficiency Judgments; the October 18, 2018 Amended Journal Entry of Deficiency Judgment against Justin Cook; the January 22, 2014 Journal Entry of Final Order denying the Cooks' September 11, 2013 motion to vacate; and the January 22, 2014 Journal Entry of Final Order denying their motion to reconsider. A copy of each of those decisions is attached to Exhibit A to the Amended Petition in Error, Those decisions and the precipitating motions often confuse which defendant is the movant hnd the subject matter of the motion or decision We treat those documents as their substance requires. Horizons, Inc. v. KEO Leasing Co., 1984 OK 24, ¶ 4, 681 P.2d 757. Further, the Cooks direct their appellate briefing only to assignments of error in refusing to vacate the deficiency Judgments Issues not supported by argument and authority in a party's brief may be deemed waived. In re Estate of Walker v. Walker, 1985 OK 2, ¶ 4, 695 P.2d 1; Okla. Sup. Ct. R. 1.11(k)(1), 12 O.S. Supp. 2013, ch. 15, app. 1. Subject to these constraints, we will address *949the appealability of each of the five decisions attached to the Cooks' Amended Petition in Error and the arguments tendered for reversal of those decisions. I. The Initial Proceedings 15 Homes filed its foreclosure petition on February 12, 2012, Both Cook and Associates and Justin Cook were served with the petition on March 9, 2012, but chose not to appear or defend the action. Judgment was granted to Homes on May 17, 2012, against each of the defendants in the amount of $279,769.78. No appeal was taken and that judgment is final, See Funk v. Payne, 1938 OK 270, 183 Okla. 332, 82 P.2d 976 (in order to assert errors in a judgment of foreclosure it is necessary to appeal from that judgment); First Nat'l Bank of Tulsa v. Colonial Trust Co., 1917 OK 360, 66 Okla. 106, 167 P. 985 (a judgment of foreclogure is final if not appealed). Therefore, the fact of Cook and Associates' and Justin Cook's liability to Homes and the amount of that lability, subject to appropriate offsets, has been determined and is not challenged in this appeal. 16 After the May 17, 2012 judgment was entered, three appraisers were appointed as required by law and the property was appraised at $279,000. The property was then ordered to be sold at sheriffs sale. The Cooks did not appear at the sheriff's sale or submit a bid, and the property was sold to Homes. The order confirming the sheriffs sale recites that the property was sold for a purchase price of $186,000, the sale conformed to law and the order of the court, Homes was the highest and best bidder, and the price paid was not disproportionate to the total value 'of the property. The order confirming that sale was filed August 28, 2012, and not appealed, The Cooks have not challenged the order confirming the sheriffs sale in this appeal. ~ T7 After the sheriff's sale, the matter was set for hearing to determine the amount of the deficiency for which Cook and Associates and Justin Cook would be liable. Cook and Associates was served but chose not to appear at the hearing. A Default Deficiency Judgment against Cook and Associates in the amount of $98,769.78 was filed October 30, 2012. Homes concluded that it had not obtained service of its motion to determine deficiency on Justin Cook by the time the Cook and Associates deficiency order was entered. Homes subsequently obtained the district court's approval to serve Justin Cook by publication, Service by publication was made and the matter was set for hearing on the deficiency owed by Justin Cook. He did not appéar at that hearing. On February 6, 20183, a Default Deficiency Judgment in the amount of $98,769.78 was filed against Justin Cook. No motion for new trial or term-time motion to vacate was filed to challenge either of these post-judgment deficiency orders. ~ II. The First Motion to Vacate 18 On June 18, 2018, Cook and Associates filed a motion to vacate the October 80, 2012 deficiency order, Although Justin Cook joined in this motion, only the. October 30, 2012 deficiency order against Cook and Asso-clates is sought to be vacated and only that order is attached to the motion to vacate. Consequently, the June 18, 2018 motion to vacate did not seek to vacate the February 6, 2018 deficiency order against Justin Cook, T9 The June 18, 2018 motion to vacate relied on 12 0.8.2011 § 1031(8) and argued "irregularity in obtaining a judgment or order." Cook and Associates contended "irregularity" resulted from the district court's use of the $186,000 sheriffs sale price rather than the $279,000 appraised value when determining the amount of the deficiency it would be Hable for after the sale. It asserted that the only evidence from which the district court -could have determined the "fair and reasonable market value" of the property as required by 12 0.8.2011 § 686 was the appraised value reflected on the return filed by the appraisers. 110 On July 26, 2018, the district court entered a "Minute Order" denying the June 18, 2018 motion to vacate. Although it contains the word "Order" in its title, the district court's July 26 filing is not an order,. If a filing "bears a title in some form using the word 'minute', and otherwise meets the description of a minute, we believe the Legislature intended it not to be appealable. ..." *950Mansell v. City of Lawton, 1994 OK 75, ¶ 3, 877 P.2d 1120. A "minute" is the internal abstract of court proceedings posted on the case appearance docket and is distinct from a court order. Id. 14 (Opala, J., concurring in result). Accord Manning v. State ex rel. Dep't of Pub. Safety, 1994 OK 62, ¶ 5, 876 P2d 667. "Pursuant. to [12 < 0.8.2011 § 696.2(C) ] a minute entry, even though. it might meet- the other requirements of § 696.8, is not an appealable order or judgment." Corbit v. Williams, 1995 OK 53, ¶ 8, 897 P.2d 1129. Accord Alexander v. Alexander, 2015 OK 52, 357 P.3d 481, Consequently, the July 26, 2018 minute may have documented the district court's disposition of the June 2018 motion to vacate, but it was not the order denying that motion despite the fact that it was titled "Minute Order." Besecker v. Chilbert, 1994 OK 125, 887 P.2d 1286 (ruling titled "Minute Order" was not prepared in conformance with section 696.8 specifying the requirements for appealable orders). {11 Nonetheless, on September 11, 2018, Cook and Associates filed a motion to reconsider the district court's July 26 ruling. That motion was denied in another "Minute Order" filed October 8, 2018, which the Cooks attached to the original petition in error. Pursuant to an order of the Supreme Court, the October 8, 2013 "Minute Order" was memorialized in a Journal Entry of Final Order filed January 22, 2014, and is, attached to the amended petition in error. T12 Cook and Associates' appeal of the district court's January 22, 2014 Journal Entry of Final Order denying its September 2013 motion to reconsider must be dismissed. There has never been an appealable order entered disposing of Cook and Associates' June 18, 2013 motion to vacate. The January 22, 2014 Final Order only memorializes the district court's disposition of the September 11, 2013 motion to reconsider the July 26, 2013 minute entry, And, although the July 26, 2018 minute entry documents the district court's denial of Cook and Associates' June 18, 2018 motion to vacate, until formalized as an appealable order it remains "subject to revision at any time before the final judgment, decree, or final order ... is filed with the court clerk." 12 O.8.2011 § 994(A). As previously discussed, the July 26, 2013 minute entry is not an appealable order. "A judgment or appealable order conforming to § 696.3 is 'a jurisdictional prerequisite to the commencement of an appeal'" Mansell v. City of Lawton, 1994 OK 75, ¶ 8, 877 P.2d 1120 (quoting statutory language currently found at 12 0.8.2011 696.2). Cook and Associates' appeal of the January 22, 2014 Journal Entry of Final Order denying its September 2013 motion to reconsider the July 26, 2018 ruling is premature and, therefore, dismissed, . III. The Second Motion to Vacate 13 In, addition to the motion to reconsider, the Cooks also filed a separate motion on September 11, 2018 denominated as a motion to vacate. That motion is directed at the October 80, 2012 deficiency order against Cook and Associates and the February 6, 2018 deficiency order entered against Justin Cook. The district court denied that motion in a separate Journal Entry of Final Order also filed on January 22, 2014.2 {14 In their second motion to vacate, the Cooks argue the deficiency orders are void because the notice of the deficiency hearings was constitutionally defective. They contend that the notice was defective because it did not state that a number other than the appraised value of the property would be used to determine their deficiency lability. Although they filed their second motion to vacate more than thirty days after either of the deficiency orders, the Cooks argue that a void judgment can be vacated at any time. They are correct, A "void judgment, decree or order may be vacated at any time. ..." 12 0.8.2011 § 1088. See also Halliburton Oil Producing Co. v. Grothaus, 1998 OK 110, n. 11, 981 1244 (judgment void on the face of the judgment roll can be vacated at any *951time). A judgment is "facially void" if the judgment roll does not show that the district court had (1) jurisdiction of the subject matter, (2) jurisdiction of the person, and (8) the power to render the judgment sought to be vacated. Booth v. McKnight, 2003 OK 49, 11, 70 P.3d 855. Subject matter and personal jurisdiction are not at issue. The Cooks' argument is focused on the third requirement. 115 The Cooks argue that the district court obtains the power to render a deficiency order only if the judgment debtor receives constitutionally effective notice of the deficiency hearing. They concede that they received notice of the hearings on Homes' two motions for a deficiency order. In fact, they refer to five separate notice filings they received concerning those hearings. But, they argue that the notice they received was defective because each of the filings only informed them that the appraised value of the property would be used in determining their deficiency, not two-thirds of that amount, the value that was actually used. T16 The Cooks' motion cites Booth for the proposition that: While the core element of due process is the right to be heard, that element would have no value unless advance notice is afforded of the hearing at a meaningful time and in a meaningful manner, The person to be affected must be fairly and timely apprised of what interests are sought to be reached by the triggered process. Notice and opportunity to be heard must be provided in such a way that a person can intelligently decide in advance whether to appear at the hearing and contest the matters in issue or acquiesce in their in absentia resolution and assume the risk from consequences attendant upon a default. Id. 118 (footnotes omitted). In Booth, heirs received notice of a hearing to approve the final account in a probate proceeding. The notice, however, did not inform them that property of the estate would be distributed in a manner different than that directed by the will, The omission of that critical fact rendered the notice constitutionally defective. "At the bare minimum, a constitutionally adequate notice must apprise one of the antagonist's pressed demands and of the result consequent upon default." Id 120 (original emphasis omitted). T17.The facts in Booth are not present here. Even the Cooks' selective and inacenu-rate report of the contents of the notices they received fails to establish any constitutional defect. For example, the second motion to vacate asserts that the "Notice and Order of Hearing for Deficiency Judgment filed December 20, 2012; served on Justin Cook by publication only ... stated that Justin Cook was liable for a deficiency amount '... which is the difference between the appraised value of the Party [sic]} on the Sale Date and the full amount of the debt to Plaintiff. ...'" (emphasis in original). That recitation misrepresents the record. The December 20, 2012 notice actually states that the deficiency will be determined by "the difference between the fair market value of the Party [sic] as of the Sale Date and the full amount of the debt owed to Plaintiff...." (Emphasis added). That same language appears in the notice published in the newspaper as reflected in the Publisher's Affidavit, Neither instrument contains the phrase "appraised value." [18 Further, the phrase "appraised value" does not appear in any of the four other notice filings that the Cooks claim, in their September 11, 2018 motion to vacate, informed them that only the appraised value would be used to determine their deficiency, ® - The Notice of Sheriffs Sale,. This notice states that the property had been appraised at $279,000, and the sheriff "will offer for sale and sell [the property] for cash at public auction to the highest and best bidder." Although served with this notice, the Cooks chose not to appear or otherwise offer a bid for the property: ® - The order confirming the sheriffs sale. This order recites that (1) the property was sold for a purchase price of $186,000; (2) the sale conformed to law and the order of the court; (8) Homes was the hlghest and best bidder; and (4) the price paid was not disproportionate to the total value of the proper*952ty. The Cooks did not appear at the confirmation hearing or otherwise object to entry of the order confirming the sheriff's sale. ® The Motion for Deficiency Judgment. This motion states that (1) the property was sold for $186,000; (2) the fair market value of the property was less than the debt owed by the Cooks; and (8) the deficiency would be measured by "the difference between (a) the fair market value of the Property as of the Sale Date and (b) the full amount of the debt owed to Plaintiff...." e The order for a hearing on Homes' Motion for Deficiency Judgment. This order states that the Cooks may appear at the hearing "and show cause why the Court should not grant Plaintiffs Motion and enter Deficiency Judgment" against them. Again, the Cooks chose not to appear or offer any cause as to why a deficiency order should not be entered against them. 19 The purpose of the hearing on a motion for deficiency is to have a "judicial determination of the difference» between the amount of the judgment entered in the lawsuit and the fair market value of the mortgaged premises on or near the date of the sale." Mehojah v. Moore, 1987 OK CIV APP 43, ¶ 15, 744 P.2d 222 (Approved for Publication by the Supreme Court). Nothing in the judgment roll shows that the Cooks were not fully apprised of this purpose through the notices admittedly received. Nothing in the judgment roll shows that the notices received by the Cooks informed them or even suggested that only the appraised value would be used to determine the fair market value of the property. Consequently, the Cooks have failed to show that the district court erred in denying their motion to. vacate based on alleged lack of effective notice, The district court's January 22, 2014 Final Order denying the Cooks' September 11, 2018 motion to vacate is affirmed. IV. Appeal of October 18, 2018 Amended Journal Entry of Deficiency Judgment 120 Justin Cook also purports to appeal the Amended Journal Entry of Defi-clency Judgment against him filed on October 18, 2013.3 In the September 11, 2018 motion to vacate, the Cooks had suggested that the February 6, 2018 Default Deficiency Judgment against Justin Cook did not contain language documenting the district court's finding that service by publication on Justin Cook was warranted as required by Oklahoma District Court Rule 16, 12 0.8. 2011, ch. 2, app. This point was not addressed in the "Legal Argument and Citations of Authority" section of their motion. Nonetheless, an October 7, 2018 minute entry on the appearance docket denying the Cooks' September 11, 2018 motion to vacate states: "Plaintiff is allowed to file an amended journal entry with mandatory Rule 16 language as to publication notice...." On October 18, 2018, Homes filed an Amended Journal Entry of Deficiency Judgment, If that filing constituted a separate judgment, the Cooks' November 12, 2014 petition in error was timely to preserve appellate review of that document. We find, for the following reasons, that the October 18, 2018 filing does not constitute a separate judgment. [21 On December 13, 2012, Homes filed a motion for authorization to serve Justin Cook by publication,. That motion stated facts concerning Homes' previous efforts to serve Justin Cook, was verified by counsel for Homes and was supported by the affidavit of the process gerver employed by Homes to serve Justin Cook by conventional methods. On December 20, 2012, the district court entered an order authorizing service by publication on Justin Cook finding that it was "satisfied that it is impossible or impracticable to make *953personal service of Motion for Deficiency Judgment on Defendant, Justin Cook, an individual." The February 6, 2013 Default Deficiency Judgment against Justin Cook recites that he was served by publication as authorized by the district court "upon satisfactory proof that it was impossible or impracticable to make personal service of the Motion for Deficiency Judgment upon Justin Cook, an individual." The February 6, 2018 Default Deficiency Judgment then recites the details of the publication service and that Justin Cook failed to appear and is in default. However, the February 6, 2013 Default Deficiency Judgment does not contain the language District Court Rule 16 states "should" be included in such cirenmstances.4 The October 18, 2018 Amended Journal Entry of Deficiency Judgment does contain this language. ~ (22 A district court has inherent power through entry of a judgment nune pro tunc to correct the record so that it accurately reflects the judgment actually pronounced. Murray v. Murray, 1959 OK 188, ¶¶ 19-20, 349 P.2d 504. The October 18, 2018 Amended Journal Entry of Deficiency Judgment merely documents what the district court had previously found but not completely stated in its February 6, 2018 Default Deficiency Judgment against Justin Cook, ie., after the exercise of due diligence and a meaningful search of all reasonably available sources at hand, Homes was unable to obtain service on Justin Cook except by publication, Consequently, the October 18, 2018 Amended Journal Entry of Deficiency Judgment is not a separate judgment but a correction of the February 6, 2018 Default Deficiency Judgment against Justin Cook to include the Rule 16 language. "A judgment entered nune pro tune is retrospective, and has the same force and effect as if entered at the time judgment was rendered." Glasgow v. Fox, 1988 OK 71, ¶ 9, 757 P.2d 836. Justin Cook's time to appeal the deficiency order against him ended thirty days after the «Default Deficiency Judgment was filed on February 6, 2018, the "appealable event" against him individually. Id. I 11, T28 Therefore, the only issues preserved by Justin Cook for review in this appeal are those issues raised in his September 11, 2018 motion to vacate the February 6, 2018 Default Deficiency Judgment, His appeal cannot reach the merits of the February 6, 2018 deficiency order. "In an appeal from a motion to vacate, this Court does not look to the original judgment, but to the correctness of the court's response to the motion to vacate." Yery v. Yery, 1981 OK 46, ¶ 14, 629 P.2d 357. "In appeals lodged from an adverse order entered in a postjudgment vacation proceeding, errors which may be réviewed are confined to those in granting or denying relief sought upon the grounds advanced and the evidence presented." Stites v. DUIT Constr. Co., Inc., 1995 OK 69, ¶ 25, 903 P.2d 293 (footnote omitted). As a result, we do not address the argument. that the district court erred in using the sheriff's sale price rather than the appraised value of the property when determining the Cooks' deficiency liability. | <8 CONCLUSION { 24 The procedural intricacies of this appeal are complicated, but ultimately one issue was preserved for appellate review. The Cooks received the constitutionally required notice of the hearing on Homes' motions for a deficiency order. The district court's January 22, 2014 Final Order denying the Cooks' September 11, 2018 motion to vacate is affirmed. The Cooks' appeal of the January 22, 2014 Journal Entry of Final Order denying their September 11, 2018 motion to reconsider is dismissed as premature. *954125 APPEAL DISMISSED IN PART, AFFIRMED IN PART. GOODMAN, V.C.J., and WISEMAN, J., ' concur. . The determination of the deficiency in a mortgage foreclosure proceeding does not result in a judgment, Mehojah v. Moore, 1987 OK CIV APP 43, 744 P.2d 222 (Approved for Publication by the Supreme Court); Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125, n. 6, 932 P.2d 1100. Although referred to as a judgment by custom and practlce, it is "a post-judgment deficiency order." 12 0.8.2011 § 686. . The entry of this January 22, 2014 final order was preceded by an October 8, 2013 "Minute Order" denying the Cooks' September 2013 motion to vacate. Pursuant to the Supreme Court's direction, the October 2013 minute entry was memorialized and filed on January 22, 2014, and is the order appealed. . That document concludes by finding that Homes is entitled to a "default deficiency judgment against Defendant, Cook and Associates Engineering, Inc. ..." However, it is clear from the remainder of the document and the judgment roll that the October 18, 2013 Amended Journal of Deficiency Judgment is intended. to relate to the deficiency order entered against Justin Cook. "The meaning of a judgment is to be divined from the terms expressed in the instrument as construed with other parts of the judgment roll." Timmons v. Royal Globe Ins. Co., 1985 OK 76, n. 6, 713 P.2d 589. . If, after hearing the evidence the judge finds that plaintiff did in fact exercise due diligence in conducting a meaningful search, the following recitation should be included in the journal entry of judgment: 'The Court conducted a judicial inquiry into the sufficiency of plaintiff's search to determine the names and whereabouts of the defendants who were served herein by publication, and based on the evidence adduced the Court finds that plaintiff has exercised due diligence and has conducted a meaningful search of all reasonably available sources at hand. The Court approves the publication service given herein as meetlng both statutory requirements and the minimum standards of state and federal due process. . Okla Dist. Ct. R 16, 12 0.8.2011, ch. 2 app | opinion_xml_harvard | 4,349 | 2022-01-06 01:21:03.247266+00 | 020lead | t | f | 5,345,276 | Fischer, Goodman, Wiseman | null | U | f | Published | 3 | Charles Sanders Homes, Inc. v. Cook & Associates, Engineering, Inc. | null | CHARLES SANDERS HOMES, INC. v. COOK AND ASSOCIATES, ENGINEERING, INC. and Justin Cook, an individual, and Romaco, LLC Occupants of the Premises Board of County Commissioners and the County Treasurers of Tulsa County, State of Oklahoma | null | null | null | null | null | null | null | null | null | 61,692,950 | Case No. 112,323 | 0 | oklacivapp | SA | t | Court of Civil Appeals of Oklahoma | Court of Civil Appeals of Oklahoma |
2,902,996 | COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ABDOL KARIM SAADATKHAH, INDIVIDUALLY AND D/B/A FIESTA AUTO SALVAGE, ALL JAPANESE & EUROPEAN AUTO SALVAGE and ALL AUTO SALVAGE, Appellant, v. SOUTHWESTERN BELL YELLOW PAGES, INC., Appellee. § § § § § § § § No. 08-08-00075-CV Appeal from the 34th Judicial District Court of El Paso County, Texas (TC# 2000-1993) MEMORANDUM OPINION Pending before the Court is Appellant's motion to dismiss this appeal pursuant to Tex.R.App.P. 42.1(a)(1). Appellant represents to the Court that the parties have reached a settlement agreement in the underlying case and therefore he no longer wishes to pursue this appeal. Appellee has not objected to the motion, and there is no indication that dismissal would prevent Appellee from seeking the relief to which it would otherwise be entitled. See Tex.R.App.P. 42.1(a)(1). We therefore grant Appellant's motion, and dismiss the appeal pursuant to the parties' settlement agreement. As the motion does not indicate the parties have agreed otherwise, costs will be taxed against Appellant. See Tex.R.App.P. 42.1(d). August 14, 2008 DAVID WELLINGTON CHEW, Chief Justice Before Chew, C.J., McClure, and Carr, JJ. | opinion_html_with_citations | 186 | 2015-09-09 19:43:00.239065+00 | 010combined | f | f | 2,902,996 | null | null | C | f | Published | 0 | null | null | Abdol Karim Saadatkhah, Individually and D/B/A Fiesta Auto Salvage, All Japanese and European Auto Salvage, and All Auto Salvage v. Southwestern Bell Yellow Pages, Inc. | null | null | null | null | null | null | null | null | null | 2,760,029 | 08-08-00075-CV | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
8,113,225 | Lawrence, Judge: The merchandise which forms the subject of the above-enumerated protest consists of stethoscopes, which were classified by the collector of customs as surgical instruments in paragraph 359 of the Tariff Act of 1930 (19 U.S.C. §1001, par. 359), as modified by the Annecy Protocol to the General Agreement on Tariffs and Trade, 84 Treas. Dec. 403, T.D. 52373, supplemented by Presidential proclamation, 85 Treas. Dec. 116, T.D. 52462, and subjected to duty at the rate of 45 per centum ad valorem. Plaintiff herein controverts said classification and duty assessment, contending that the stethoscopes should properly have been classified as articles or wares, not specially provided for, composed wholly or in chief value of base metal, in paragraph 397 of said act (19 U.S.O. §1001, par. 397), as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802, for which duty at the rate of 22% per centum ad valorem is provided. Prior to entering into an oral stipulation of fact when the instant case was called for hearing, there was received in evidence as plaintiff’s illustrative exhibit 1 a stethoscope representative of the merchandise in issue. The stipulation of fact above referred to is here set forth verbatim: It is stipulated and agreed by and between respective parties that the merchandise at bar, consisting of stethoscopes are diagnostic instruments, chiefly used throughout the United States by licensed physicians or general practitioners in the general practice of medicine, for diagnostic purposes. 2. That the merchandise is not chiefly used by surgeons throughout the United States. 3. That the merchandise at bar is not chiefly used throughout the United States in surgical procedures. 4. That since the decision in the case of A. S. Aloe vs. United States, Abstract 14572, decided December 19, 1930, there has been a uniform, definite and long-continued practice of classifying stethoscopes and parts under the provision for surgical instruments and parts, under Paragraph 359 of the Tariff Act of 1930. 5. That the merchandise consists of manufactures wholly or in chief value of brass, not plated with platinum, gold or silver, and not colored with gold lacquer. *263It appears from the proceedings at the trial that plaintiff:, in refuting the classification of the instant stethoscopes by the collector of customs as surgical instruments and contending their proper classification lies within the purview of the basket provisions of paragraph 897 of the Tariff Act of 1930, relies basically on two cases decided by this court within the last few years, to wit, Empire Findings Co., Inc. v. United States, 44 Cust. Ct. 21, C.D. 2148, and Arthur Salm, Inc. v. United States, 46 Cust. Ct. 68, C.D. 2235. Although, at defendant’s request, time was extended to it by the court for the filing of a brief, the defendant filed a notice with the court stating that it would not do so, in view of the record herein “and the prior enunciations by this Honorable Court made in the cases cited in the record by the plaintiff.” In the Empire Findings case referred to, supra, this court held that certain otoscopes, electrical instruments used by pediatricians and general practitioners to introduce light into the ear canal and the eardrum for diagnostic purposes, were electrical therapeutic (including diagnostic) instruments within the purview of paragraph 353 of the Tariff Act of 1930, as modified, as claimed by plaintiff therein, rather than surgical instruments in paragraph 359 of said act, as modified, which was the classification by the collector of customs. In the later case of Arthur Salm, cited, supra, percussion hammers used by physicians in their diagnostic study of patients to test reflexes to determine their presence or absence, or whether they have diminished or become hyperactive, were held to be articles or wares, not specially provided for, composed wholly or in chief value of base metal, in paragraph 397 of the Tariff Act of 1930, as modified, which was the contention of plaintiff therein, rather than surgical instruments in paragraph 359 of said act, as modified. In view of the agreed facts of record that the stethoscopes presently before the court are instruments chiefly used throughout the United States by licensed physicians or general practitioners in the general practice of medicine for diagnostic pui’poses; that the merchandise is not chiefly used by surgeons throughout the United States; that said stethoscopes are not chiefly used throughout the United States in surgical procedures; and that said articles consist of articles or wares, wholly or in chief value of brass, not plated with platinum, gold, or silver, or colored with gold lacquer, we are of the opinion that plaintiff herein has sustained its twofold burden of overcoming the presumption of correctness attaching to the classification of the collector and has shown affirmatively its claimed classification to be correct. United States v. Zoltan Erdosi, 40 CCPA 137, C.A.D. 509. Reference has been made to the official decision in full in A. S. Aloe Co. v. United States, which is reported in abstract form in 59 Treas. Dec. 1462, Abstract 14572. Involved therein were certain stethoscopes, which had been classified as surgical instruments in paragraph 359 of the Tariff Act of 1922 and were claimed to be properly subject to classification as “manufactures of metal, not specially provided for,” in paragraph 399 of said act. The court there held that the record before it failed to substantiate the plaintiff’s claim and the protest of plaintiff was overruled. The Aloe case, therefore, is clearly distinguishable from the one at bar, in view of the fact that not only have the essential facts been agreed upon by the adversary parties hereto, but said facts disclose that the stethoscopes in issue are not used by surgeons in the practice of their profession and are not surgical instruments, as that term has been judicially construed in the Empire Findings case and the Salm case, supra. It having been agreed by the parties hereto that the stethoscopes are articles wholly or in chief value of brass, not plated with platinum, gold, or silver, or colored with gold lacquer, said articles are encompassed by the provisions of *264paragraph 397 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, supra, which provides duty therefor at the rate of 22y2 per centum ad valorem, as alleged by plaintiff herein. That claim in the protest is, therefore, sustained. Judgment will be entered accordingly. | opinion_xml_harvard | 1,073 | 2022-09-09 14:42:24.050263+00 | 020lead | t | f | 8,151,733 | Lawrence | null | U | f | Published | 0 | Empire Findings Co. v. United States | null | Empire Findings Co., Inc. v. United States | null | null | null | null | null | null | null | null | null | 65,247,748 | No. 68126; protest 291641-K (New York) | 0 | cusc | FS | t | U.S. Customs Court | United States Customs Court |
5,188,217 | Judgment and order affirmed, with costs. All concurred. | opinion_xml_harvard | 8 | 2022-01-06 15:31:58.213639+00 | 020lead | t | f | 5,354,508 | null | null | U | f | Published | 0 | Ryan v. Dean | Ryan | Kate Ryan, and Ellen Hunt and Another v. Edward E. Dean, and Roscoe Wilcox and Another | null | null | null | null | null | null | null | null | null | 61,702,554 | 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 |
5,244,439 | Order affirmed, with ten dollars costs and disbursements. No opinion. Present — Clarke, P. J., Scott, Dowling, Smith and Page, JJ. | opinion_xml_harvard | 21 | 2022-01-06 17:55:14.90707+00 | 020lead | t | f | 5,407,161 | null | null | U | f | Published | 0 | In re the Appraisal under the Transfer Tax Law of the Estate of Norton | null | In the Matter of the Appraisal under the Transfer Tax Law of the Estate of Edwin Norton, Lucy E. Norton, as etc., Appellant The Comptroller of the State of New York | null | null | null | null | null | null | null | null | null | 61,755,610 | 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 |
1,767,955 | 424 So. 2d 1353 (1982) Ronald Lee FRANKLIN v. STATE. 2 Div. 329. Court of Criminal Appeals of Alabama. October 12, 1982. Rehearing Denied November 23, 1982. Certiorari Denied January 28, 1983 *1354 James B. McNeill, Jr. of Bryant, Edwards, McNeill & Poole, Selma, for appellant. Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State. Alabama Supreme Court 82-224. BOWEN, Judge. The defendant was indicted and convicted for robbery in the first degree. Alabama Code 1975, Section 13A-8-41. Sentence was fifty years' imprisonment. The defendant presents five arguments for the reversal of his conviction. I Although the defendant argues that 11 percent of the veniremen had read newspaper accounts of the crime, there is absolutely no evidence of any actual prejudice against the defendant resulting from any pretrial publicity. The law on this subject is summarized as follows: "Exposure of jurors to adverse publicity either prior to or during trial may create prejudice and violate a defendant's right to be tried by an impartial jury. The constitutional standard of jury impartiality does not require, however, that jurors be wholly ignorant of the facts and issues involved in the case. Thus, exposure does not impair the defendant's right to an impartial jury if the jurors can lay aside any impressions or opinions that result from pretrial media exposure and render a verdict based solely on evidence presented during the trial .... To establish impermissible juror partiality, the defendant must show that pretrial publicity resulted in either actual juror prejudice or pervasive community prejudice." Eleventh Annual Review of Criminal Procedure: United States Supreme Court And Courts of Appeal 1980-1981, 70 The Georgetown Law Journal 680-81 (1981) (footnotes omitted). "Extensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair." Dobbert v. Florida, 432 U.S. 282 , 303, 97 S. Ct. 2290 , 2303, 53 L. Ed. 2d 344 (1977). Since the defendant did not prove actual juror prejudice or attempt to show that the community was saturated with prejudicial articles, his motion for a change of venue on the basis of inflammatory and prejudicial pretrial publicity was properly denied. Murphy v. Florida, 421 U.S. 794 , 95 S. Ct. 2031 , 44 L. Ed. 2d 589 (1975); Mayola v. Alabama, 623 F.2d 992 (5th Cir.1980); Dolvin v. State, 391 So. 2d 666 (Ala.Cr.App.1979), affirmed, 391 So. 2d 677 (Ala.1980). II The defendant had no constitutional right to counsel at a post arrest lineup for the reason that adversary judicial proceedings had not been initiated. Lomax v. Alabama, 629 F.2d 413 , 415 (5th Cir.1980), cert. denied, 450 U.S. 1002 , 101 S. Ct. 1712 , 68 L. Ed. 2d 205 (1981). The right to counsel established in United States v. Wade, 388 U.S. 218 , 87 S. Ct. 1926 , 18 L. Ed. 2d 1149 (1967), applies only to post-indictment corporeal identification procedures. III We have examined the photographic identification procedure and find that neither the photographs themselves nor the manner in which they were displayed were suggestive or created any risk of misidentification. Stovall v. Denno, 388 U.S. 293 , 87 *1355 S.Ct. 1967, 18 L. Ed. 2d 1199 (1967); Nicholes v. State, 409 So. 2d 454 , 455 (Ala.Cr.App. 1982); Griffin v. State, 356 So. 2d 723 (Ala. Cr.App.), cert. denied, 356 So. 2d 728 (Ala. 1978). IV Sergeant Newell's testimony concerning the victims' identifications of the defendant at a pretrial photographic lineup constituted a well recognized exception to the hearsay rule and was properly admitted. Ferguson v. State, 401 So. 2d 204 , 207-08 (Ala.Cr.App.), cert. denied, 401 So. 2d 208 (Ala.1981); Abercrombie v. State, 382 So. 2d 614 (Ala.Cr.App.), cert. denied, 382 So. 2d 616 (Ala.1980). Any error in the admission of the statements of the victims identifying the defendant was rendered harmless where the victims subsequently testified and were subjected to cross examination. See Love v. State, 377 So. 2d 8 (Ala.Cr.App.1979); Stokes v. State, 13 Ala.App. 294, 69 So. 303 (1915); Rule 45, A.R.A.P. The admission of these statements was also harmless where Sergeant Newell had already testified to their contents without objection. Allen v. State, 390 So. 2d 676 (Ala.Cr.App.1980). The statements only contained a brief statement of which photograph each witness selected and, after Sergeant Newell had related their contents to the jury, we fail to see how the admission of the written statements could have prejudiced the defendant. V After an examination of the record, we are not persuaded that the State failed to prove a proper chain of custody for the admission of fingerprints and related exhibits. To warrant the reception of an object in evidence against a proper objection, it is not necessary that the chain of custody be proved to an absolute certainty, but rather to a reasonable probability, that the object is the same as, and not substantially different from the object as it existed at the beginning of the chain. Sexton v. State, 346 So. 2d 1177 (Ala.Cr.App.), cert. denied, 346 So. 2d 1180 (Ala.1977). The judgment of the circuit court is affirmed. AFFIRMED. All Judges concur. | opinion_html_with_citations | 858 | 2013-10-30 07:21:15.370607+00 | 010combined | f | f | 1,767,955 | Bowen | null | L | f | Published | 37 | Franklin v. State | Franklin | null | null | null | null | null | null | null | null | null | null | 1,708,413 | null | 0 | alacrimapp | SA | t | Court of Criminal Appeals of Alabama | Court of Criminal Appeals of Alabama |
6,232,199 | The opinion of the court was delivered, by Read, J. The Twenty-fifth street culvert was constructed under the ordinances of the city of Philadelphia, of the 27th February and 1st October 1858, and 10th January 1859. It was built by contract, and the 5th and 6th sections of the first-named ordinance charged upon the properties in front of which *11it passed, the sum of seventy-five cents for each lineal foot of the front of the said properties, the contractor to accept the sums so assessed and charged in part payment of his contract price, and to collect the same at his own cost; and the better to enable him so to do, to use the name of the city of Philadelphia, and employ all legal remedies or proceedings, whether of lien or otherwise, to which the said city may be competent. The street on which this property is situate is Pennsylvania avenue, which has been laid over the old bed of the Union Canal, and is one hundred feet wide. The state used twenty-five feet of the line of the avenue for the Philadelphia and Columbia Railroad, which, by contract with the state, has passed into the hands of the Philadelphia and Reading Railroad Company. Pennsylvania avenue has been laid out on a plan of the then district of Spring Garden, which has been confirmed but not opened through this lot, nor have any steps been taken for that purpose. The question upon this state of facts is, whether the 8th section of the Act of April 21st 1855, Digest of City Laws 5T, is applicable to this case. . Until opened, it is clearly not a street (for if it is, it is one hundred feet wide), but a piece of land marked out for a street, nearly twenty years ago, and under existing laws it cannot become one until damages are assessed and paid, or secured to be paid, according to law: Sower v. City of Philadelphia, 11 Casey 231; District of City of Pittsburgh, 2 W.&S. 320. By the 40th section of the Consolidation Act of 1854, it is enacted “ That it may be prescribed by ordinance that paving of streets, except at the intersections thereof, and of footways, and laying of water-pipes within the limits of the city, shall be done at the expense of the owners of the ground in front whereof such work shall be done, and liens may be filed by the said city for the same, as is now practised and allowed by law.” This was conforming to the practice of the districts in such cases; in the city proper it having been the rule to charge the paving of streets and laying of water-pipes upon the public funds of the corporation. The 8th section of the Act of 1855, after a provision authorizing the city to construct bridges to carry any street or highway across any ravine or stream therein, enacts that “ The charges for culverts and pipes shall be at not exceeding the following rates per lineal foot, according to the fronts of the owners, to wit, for water-pipes, seventy-five cents, making the usual allowance for corner lots; for culverts', seventy-five cents, and for street paving, one dollar per square yard, and all extra or further charge, and for intersections shall be paid out of the general taxation.” *12It is clear, from the previous legislation in relation to the districts, and the collocation of the various subjects in this section, that open streets only are contemplated in which’ culverts are built, water-pipes laid, and paving done. This is also clearly the effect of the decision in The City of Philadelphia v. Tryon, 11 Casey 401, where the law on this subject is very fully and clearly stated by the present chief justice. It is not intended to limit the Act of February 18th 1769, 1 Smith’s L. 284, nor the powers vested in the city as a municipal corporation to construct culverts or common sewers through private property when necessary, a power which has been exercised by the old city in various instances; nor is it intended to countenance the recovery back of sums which have been paid on the line of unopened streets. In cases like the present, it is within the power of the legislature to oblige the owners of property, similarly situated to the plaintiff, to pay their share of such expenses. In the present instance, this sewer was of vast importance to the citizens at large, and its object was to prevent the drainage of a large district passing into the Schuylkill above the dam, and thus preserving the purity of the water, upon which so much of the health of our city depends. Judgment reversed, and judgment entered on the case stated for the defendant. Thompson, J., was absent at Nisi Prius, when this case was argued. | opinion_xml_harvard | 814 | 2022-02-17 20:24:32.363627+00 | 020lead | t | f | 6,363,405 | Prius, Read, Thompson, When | null | U | f | Published | 0 | Coxe v. City of Philadelphia | Coxe | Coxe versus The City of Philadelphia | <p>Error to the Common Pleas of Philadelphia.</p> <p>This was an amicable scire facias by the City of Philadelphia against Charles S. Coxe, upon a claim filed by the city against him for $81.22, being his portion of the expense of constructing a culvert in a street within the city limits, called Pennsylvania avenue.</p> <p>The following case was stated for the opinion of the court:—</p> <p>“ Ann M. Coxe, the wife of Charles S. Coxe, the party named in the claim as owner and the defendant here, is the owner of a lot, through or across which a street or avenue, called Pennsylvania avenue, has been laid out on a plan of the district, which has been confirmed. But the street has never been opened, except as hereinafter specified, nor have any steps been taken for this purpose. The proposed avenue is one hundred feet wide, crosses the lot diagonally, and covers about one-half of it.</p> <p>Some years ago a portion of the bed of this avenue was laid out and duly opened for the use of .the Columbia Railroad, and was and is occupied for that purpose. The width of this road is twenty-five feet, and is in the centre of the ground laid out for the said avenue, on the plan of the city or district. The avenue is not indicated on the ground by metes and bounds.</p> <p>“ In pursuance of ordinances of the said city, of February 27th 1858, November 20th 1858, October 1st 1858, a culvert was built through that portion of the bed of the proposed avenue which lies to the northward of the said railroad, crossing diagonally that part of the said lot covered thereby. The culvert is some feet distant from the north line of the railroad, and some feet distant from the northern line of the proposed avenue.</p> <p>“ The claim filed in the case No. 178, is for the proportion of the charge due from that part of the lot situate on the south side of the railroad. No notice was' given to defendant .or the owner, by the city, of the construction of the culvert, nor was there any notice, saving by rumour which reached them, that the city intended constructing the culvert, nor was notice given to the city or to its agents by the defendant, or by any one for him, that the construction of said culvert was on ground which was private property. The court shall have the power to make such inferences from the foregoing facts which a jury could do, or ought to do if the same were proven to them upon issuable pleadings under a writ of scire facias. It is admitted the claims were duly filed. If the plaintiffs are entitled to recover, then a judgment to be entered therefor, and the damages to be assessed in conformity with the claims and interest thereon, as hereinbefore stated; if otherwise, judgment to be entered for the defendant. Either party to take out writs or writ of error, and to withdraw the case stated, if, in the opinion of the court, some further facts should be admitted or proven for the final adjudication of the matters herein submitted.”</p> <p>The court gave judgment for the plaintiffs, orally assigning their reasons, which were, that there was a street laid out, and •whether opened or not was immaterial; which was the error assigned by the defendant.</p> | null | null | <p>
Liability of lot-owner for expense of erecting culverts in street laid out, but not opened.
</p> <p>Under the Acts of Assembly relating to streets, &c., in the city of Philadelphia, the owners of lots bordering on a street laid out but never opened, are not liable for the expense of constructing a culvert therein.</p> | null | null | null | null | null | 63,018,225 | null | 0 | pa | S | t | Supreme Court of Pennsylvania | Supreme Court of Pennsylvania |
4,987,639 | Court Below — Superior Court of the State of Delaware, C.A, No. N13L-07-031 DISMISSED. | opinion_xml_harvard | 14 | 2021-09-25 22:00:40.49245+00 | 020lead | t | f | 5,166,417 | null | null | U | f | Published | 0 | Pierre-Louis v. M & T Bank | Pierre-Louis | John R. PIERRE-LOUIS, Below-Appellant v. M & T BANK, Below-Appellee | null | null | null | null | null | null | null | null | null | 60,482,866 | No. 326, 2017 | 0 | del | S | t | Supreme Court of Delaware | Supreme Court of Delaware |
204,905 | 632 F.3d 1140 (2011) Ronald B. BACCEI, Trustee of the Eda O. Pucci 2004 Revocable Trust, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 08-16965. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 15, 2010. Filed February 16, 2011. *1142 Edward W. Suman, San Bruno, CA, for the plaintiff-appellant. John A. DiCiccio, Acting Assistant Attorney General, Washington, D.C.; Steven W. Parks & Carol Barthel (argued), Department of Justice, Tax Division, Washington, D.C.; Joseph P. Russoniello, United States Attorney, Northern District of California, San Francisco, CA; Jay Robert Weill, Assistant United States Attorney, Northern District of California, San Francisco, CA, for the defendant-appellee. Before: RICHARD C. TALLMAN and JAY S. BYBEE, Circuit Judges, and TIMOTHY M. BURGESS, District Judge. [*] OPINION BURGESS, District Judge: I Ronald B. Baccei, Trustee of the Eda O. Pucci 2004 Revocable Trust, initiated this action in the Northern District of California, seeking a refund of a penalty imposed by the Internal Revenue Service for late payment of an estate tax. Baccei appeals the district court's summary judgment order, arguing that the district court erred in: (1) concluding the substantial compliance doctrine was inapplicable to regulations governing payment extension requests; (2) finding the IRS was not equitably estopped from assessing the late payment penalty and interest; and (3) finding the penalty should not be abated *1143 on grounds of "reasonable cause," as that term is used in 26 U.S.C. § 6651 (a)(2). We affirm. A Ronald Baccei served as trustee of the Eda O. Pucci 2004 Revocable Trust. On September 17, 2005, Eda O. Pucci passed away, and Baccei was named executor of the estate. Upon his appointment as executor, Baccei retained Dean Bagley, a certified public accountant, to prepare and file a federal estate tax return on behalf of the Pucci estate. On June 16, 2006, Bagley purported to file a Form 4768 Application for Extension of Time to File a Return and/or Pay U.S. Estate Taxes ("Form 4768") to extend the June 19, 2006, filing deadline. See 26 C.F.R. § 20.6075-1 (stating that estate taxes are due nine months after the date of death, unless the taxpayer has obtained an extension of time to pay). Form 4768 contains four distinct parts, in addition to a signature line requiring the preparer to verify the accuracy of the information submitted under penalty of perjury. Prior to filing Form 4768, Bagley completed three of the four numbered parts; he did not complete Part III, entitled "Extension of Time to Pay." Bagley did not enter an extension period in the field labeled "Extension date requested," nor did he check the box indicating that a payment extension was needed. Under Part IV of Form 4768, Bagley reported that the amount of estate taxes "estimated to be due" and still owing was $131,327 and left blank the field labeled "Amount of cash shortage (complete Part III)." In submitting Form 4768, Bagley enclosed a letter dated June 16, 2006, entitled "Request for extension of time to file and pay U.S. Estate Tax" ("supplemental letter"). In relevant part, that letter stated as follows: I believe the tax due is the sum of $131,327, but the amount cannot be paid at this time for the following reason: There are more than adequate liquid assets in the Estate to pay the tax. However, due to the litigation, letters testamentary appointing Mr. Ronald B. Baccei were only approved on May 17, 2006. They were promptly delivered to the bank wherein most of the liquid assets are on deposit. The bank, however, has to date not approved the release of funds to Mr. Baccei as trustee so that the tax could be paid as such. We seek this extension of time to pay as well as asking that no penalty be asserted. The trustee has done all in his power to comply. On December 19, 2006, Bagley filed the federal estate tax return on behalf of the Pucci estate, and reported that the estate taxes actually amounted to $1,684,408. On February 5, 2007, the IRS notified Baccei that the federal estate tax had not been paid by the June 19, 2006, deadline. Consequently, the IRS assessed a penalty of $58,954.28, plus interest in the amount of $69,801, against the estate. On February 22, 2007, Baccei submitted a payment to the IRS in the amount of $128,755.28. However, Baccei requested the IRS refund the late payment penalty and interest, claiming that Bagley "had in fact sent an application for extension of time to file a return, Form 4768, on June 16, 2006." The IRS responded that the penalty and interest were properly assessed, as Baccei had "filed [the] return by the extended due date" but failed to "request an extension of time to pay the tax." Accordingly, the IRS denied Baccei's claim for a refund on the basis that Baccei failed to request an extension of time to pay the estate taxes owed. *1144 B Baccei initiated this action in district court, seeking a refund of the penalty and interest imposed by the IRS for late payment of the federal estate tax. In his complaint, Baccei alleged (1) a payment extension request had been filed; (2) the late payment penalty should be abated on grounds of reasonable cause; and (3) the IRS's refusal to refund the penalty was unconscionable, contrary to the meaning of the United States Tax Code, and an abuse of discretion. The United States moved for summary judgment, contending that Baccei did not properly request an extension of time to pay the taxes owed and that Baccei had not established reasonable cause excusing his failure to timely pay the estate tax. Baccei cross-moved for summary judgment, claiming he made a valid late payment request. In the alternative, Baccei argued that reasonable cause existed excusing his failure to timely pay the estate taxes, as he reasonably relied upon his accountant to obtain the payment extension. The parties stipulated to the material facts for purposes of the cross-motions for summary judgment. After supplemental briefing, the district court entered summary judgment in favor of the United States. It held that the IRS properly assessed a penalty for late payment of taxes because Baccei had not complied with the regulations governing payment extension requests and did not timely pay the estate taxes owed. Additionally, the district court rejected Baccei's argument that he substantially complied with the regulations, holding that the substantial compliance doctrine was inapplicable since the regulatory requirements were substantive and not procedural. The court observed that Baccei's extension request was deficient in several respects and concluded that application of the substantial compliance doctrine would permit Baccei "to evade the substantive requirements that the IRS has established to govern its determinations regarding extensions of time to pay." Lastly, the district court found that the late payment penalty should not be abated on the grounds of reasonable cause. The court rejected Baccei's argument that he exercised ordinary business care and prudence in relying on a "well-qualified and knowledgeable CPA" to request and obtain a payment extension. In so doing, the district court held that "[a]n individual's duty to file tax returns or pay tax returns or pay taxes under 26 U.S.C. § 6651 (a) cannot be delegated, and reliance on a third party, even a CPA, is not `reasonable cause' for late filing." As executor of the estate, it was Baccei's "responsibility to ascertain the [payment] due date, and to make certain that a proper request for late payment had been made, and that permission to file late had been granted." Accordingly, the district court found that the late payment penalty and interest should not be refunded. The court also denied Baccei's cross-motion for summary judgment. However, the court concluded that neither party had adequately addressed whether Baccei's failure to timely pay the estate taxes resulted from "willful neglect." At the court's request, the parties submitted a joint statement addressing the issue. Upon reviewing the parties' statement, the district court granted the United States' summary judgment motion in its entirety. Baccei filed a timely appeal, which we have jurisdiction to review pursuant to 28 U.S.C. § 1291 . II We review a district court's summary judgment ruling de novo. Evanston Ins. Co. v. OEA, Inc., 566 F.3d 915 , 918 *1145 (9th Cir.2009). In doing so "[w]e must determine, viewing the evidence in the light most favorable to . . . the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law." Olsen v. Idaho State Bd. of Med., 363 F.3d 916 , 922 (9th Cir.2004) (citation omitted). III On appeal, Baccei argues that the district court erred in (1) holding the substantial compliance doctrine inapplicable to regulations governing requests for extensions of time to pay an estate tax; (2) finding the IRS was not equitably estopped to assess a late payment of penalty and interest; and (3) concluding that Baccei's failure to timely pay the estate taxes owed was not due to reasonable cause. We address each of these claims in turn. A Although Baccei conceded before the district court that Bagley did not strictly comply with the requirements for requesting an extension of time to pay the estate taxes owedin particular, Bagley failed to state the period of the extension requestedBaccei argues that Bagley substantially complied with the regulations governing payment extension requests. The doctrine of substantial compliance is an equitable doctrine designed to avoid hardship in cases where a party has done all that can be reasonably expected. Sawyer v. Sonoma County, 719 F.2d 1001 , 1008 (9th Cir.1983). We have previously held that "[s]ubstantial compliance with regulatory requirements may suffice when such requirements are procedural and when the essential statutory purposes have been fulfilled." Shotgun Delivery, Inc. v. United States, 269 F.3d 969 , 973 (9th Cir. 2001). "Full compliance is necessary when the requirement relates to the substance of the statute or where the essential purposes have not been fulfilled." Id. at 973-74; see also Sawyer, 719 F.2d at 1008 (stating that "in the context of statutory prerequisites, the doctrine [of substantial compliance] can be applied only where invocation thereof would not defeat the policies of the underlying statutory provisions"). Additionally, "the doctrine of substantial compliance can have no application in the context of a clear statutory prerequisite that is known to the party seeking to apply the doctrine." Sawyer, 719 F.2d at 1008; cf. Volvo Trucks of N. Am., Inc. v. United States, 367 F.3d 204 , 210 (4th Cir.2004) ("[A] taxpayer may be relieved of perfect compliance with a regulatory requirement when the taxpayer has made a good faith effort at compliance or has a `good excuse' for noncompliance, and (1) the regulatory requirement is not essential to the tax collection scheme but rather is an unimportant or `relatively ancillary requirement' or (2) the regulatory provision is so confusingly written that it is reasonably subject to conflicting interpretations."); Prussner v. United States, 896 F.2d 218 , 224 (7th Cir.1990) (en banc) ("The common law doctrine of substantial compliance should not be allowed to spread beyond cases in which the taxpayer had a good excuse (though not a legal justification) for failing to comply with either an unimportant requirement or one unclearly or confusingly stated in the regulations or the statute."). Here, Baccei cannot rely on the substantial compliance doctrine to excuse his failure to properly request an extension of time to pay the estate tax because doing so "would . . . defeat the policies of the underlying [regulatory] provision[ ]." Sawyer, 719 F.2d at 1008. The regulation governing payment extensions is designed to provide the IRS with the information *1146 necessary to determine whether an extension of time to pay is warranted and, if so, to determine a reasonable length for that extension. Among other things, the regulation mandates that "[a]n application containing a request for an extension of time for paying the [estate] tax . . . shall state the period of the extension requested." 26 C.F.R. § 20.6161-1 (b) (emphasis added). This requirement is neither unclear nor unimportant; rather, it is essential to the IRS's tax collection efforts because it allows the IRS to assess the reasonableness of the taxpayer's request. For example, if a taxpayer requests a 12-month extension but the facts disclosed in the request reveal that only a much shorter extension is warranted, the IRS may, in its discretion, conclude that the request is unreasonable and refuse to grant it. See id. ("The granting of the extension of time for paying the tax is discretionary with the appropriate internal revenue officer and his authority will be exercised under such conditions as he may deem advisable."). Additionally, where the taxpayer fails to state the period of the extension requested, the IRS may be forced to guess when the taxpayer will acquire the necessary funds to pay the tax due. For these reasons, we hold that "the purposes of the. . . [regulation] are unsatisfied where the applicant fails to [state the period of the extension requested]." Sawyer, 719 F.2d at 1008. Baccei argues that in requesting an automatic six-month extension of time to file the estate tax return, the IRS could infer that he also requested a six-month extension of time to pay the estate taxes owed. However, in establishing allowable extension periods, the statute and regulations clearly distinguish extensions of time to file from extensions of time to pay. Upon submitting Form 4768, taxpayers are entitled to an automatic six-month extension of time to file an estate tax return. 26 U.S.C. § 6081 (a); 26 C.F.R. § 20.6081-1 (b). In contrast, an extension of time to pay is discretionary and may be granted only for a "reasonable period of time" not to exceed twelve months. 26 U.S.C. § 6161 (a); 26 C.F.R. § 20.6161-1 (a)(1). As Baccei conceded to the district court, his request for an automatic six-month extension to file could have led the IRS to rationally infer that he was requesting a payment extension for any period less than twelve months, the statutory maximum. Such an ambiguous and undefined extension request does not fulfill the purposes of the regulations because it deprives the IRS of the information necessary to determine whether to grant the extension of time to pay. Accordingly, we hold that the district court correctly refused to apply the substantial compliance doctrine. [1] B Baccei also argues that the district court erred in denying his estoppel claim. Specifically, Baccei claims the IRS had an obligation to inform him that his payment extension request was deficient, and to provide him with an opportunity to amend his extension application or otherwise mitigate *1147 the late payment penalty. Baccei contends that the IRS did not fulfill its obligations and may not profit from its "own wrong" by imposing a late payment penalty and assessing interest. The traditional elements of an equitable estoppel claim include "(1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former's conduct to his injury." Morgan v. Gonzales, 495 F.3d 1084 , 1092 (9th Cir.2007) (quoting Watkins v. U.S. Army, 875 F.2d 699 , 709 (9th Cir. 1989) (en banc)). Additionally, a party asserting equitable estoppel against the government must also establish that (1) the government engaged in affirmative misconduct going beyond mere negligence; (2) the government's wrongful acts will cause a serious injustice; and (3) the public's interest will not suffer undue damage by imposition of estoppel. Morgan v. Heckler, 779 F.2d 544 , 545 (9th Cir.1985); see also Watkins, 875 F.2d at 708 . Baccei has not sustained his burden of establishing that the IRS engaged in affirmative misconduct. Affirmative misconduct on the part of the government requires an affirmative misrepresentation or affirmative concealment of a material fact, Watkins, 875 F.2d at 707 , such as a deliberate lie or a pattern of false promises. See, e.g., Mukherjee v. INS, 793 F.2d 1006 , 1009 (9th Cir.1986). While Baccei complains that the IRS failed to notify him that his extension request was incomplete or invalid, Baccei does not contend that this failure resulted from anything more than negligent oversight. Even if the IRS were negligent in failing to notify Baccei, negligence alone will not support a claim of equitable estoppel against the government. Jaa v. INS, 779 F.2d 569 , 572 (9th Cir.1986). Further, Baccei has not pointed to any affirmative misconduct by the IRS at all. Instead, Baccei complains of inaction, namely, that the IRS should have notified him that his payment extension request was deficient and had been denied. However, the IRS did not deny any payment extension request; Baccei never properly requested a payment extension in the first place. The IRS's failure to inform a taxpayer that he has not properly requested an extension is mere inaction that cannot support a claim of equitable estoppel. See Lehman v. United States, 154 F.3d 1010 , 1017 (9th Cir.1998); Cadwalder v. United States, 45 F.3d 297 , 299-300 (9th Cir.1995). In light of the foregoing, we conclude that the district court properly rejected Baccei's argument that the doctrine of equitable estoppel barred the IRS from imposing a late payment penalty and assessing interest. C Baccei's final argument is that the district court erred in concluding that his failure to timely pay the estate taxes owed was not due to reasonable cause. The Internal Revenue Code provides that a late payment penalty will be assessed if the taxpayer fails to timely pay taxes owed, unless that failure is "due to reasonable cause and not due to willful neglect." 26 U.S.C. § 6651 (a)(2). A taxpayer can establish reasonable cause for failure to timely pay by making "a satisfactory showing that he exercised ordinary business care and prudence in providing for the payment of his tax liability and was nevertheless either unable to pay the tax or would suffer an undue hardship . . . if he *1148 paid [the tax] on the due date." 26 C.F.R. § 301.6651-1 (c)(1). Baccei asserts that the late payment penalty should be abated on grounds of reasonable cause because he exercised "ordinary business care and prudence in providing for the payment of [the estate's] tax liability." [2] Baccei advances two arguments in support of his position. 1 First, Baccei argues that he exercised "ordinary business care and prudence" in relying upon his accountant, Bagley, to competently file a payment extension request. See 26 C.F.R. § 301.6651-1 (c)(1). Although we have found no cases evaluating whether a taxpayer's reliance on an accountant to obtain an extension of time to pay taxes owed constitutes "reasonable cause" under § 6651(a)(2), we draw guidance from United States v. Boyle, 469 U.S. 241 , 105 S.Ct. 687 , 83 L.Ed.2d 622 (1985). In Boyle, an executor claimed that he relied on his attorney to file a federal estate tax return and argued that this reliance constituted reasonable cause under § 6651(a)(1) for failing to timely file the return. Id. at 251-52, 105 S.Ct. 687 . The Supreme Court denied the executor's claim, holding that "[t]he failure to make a timely filing of a tax return is not excused by the taxpayer's reliance on an agent, and such reliance is not `reasonable cause' for a late filing under § 6651(a)(1)." Id. at 252, 105 S.Ct. 687 . The Court noted that "Congress has placed the burden of prompt filing on the executor, not on some agent or employee of the executor." Id. at 249, 105 S.Ct. 687 . Applying Boyle, we have also explained that a taxpayer's reasonable reliance on an agent to timely file a return does not constitute reasonable cause when the due date of the return was ascertainable by the taxpayer. Conklin Bros. of Santa Rosa, Inc. v. United States, 986 F.2d 315 , 317-18 (9th Cir.1993); accord In re Am. Biomaterials Corp., 954 F.2d 919 , 923 (3d Cir.1992). As we noted in Conklin Bros., a taxpayer "cannot rely on its employee or agent to escape responsibility for the nonperformance of nondelegable tax duties." Id. at 319. We extend these determinations of reasonable cause under § 6651(a)(1) to determinations of reasonable cause under § 6651(a)(2). There is no reason to distinguish between reasonable cause for a failure to timely file an estate tax return and reasonable cause for a failure to timely pay an estate tax, and we refuse to do so. [3] Accordingly, we affirm the district court's finding that Baccei's reliance upon Bagley to competently file a payment extension request does not constitute reasonable cause excusing Baccei's failure to timely pay the estate taxes owed. Although Baccei *1149 was entitled to retain an accountant to seek a payment extension, Baccei was responsible for either identifying the payment deadline and ensuring that payment was made prior to that deadline, or confirming that a payment extension had been properly requested and granted. By failing to confirm that an extension had been requested and granted before the payment deadline lapsed, Baccei failed to exercise the "ordinary business care and prudence" necessary to establish reasonable cause under 26 C.F.R. § 301.6651-1 (c)(1). 2 Secondly, Baccei argues that the late payment penalty should be abated on grounds of reasonable cause because he was unable to liquidate the estate's real property assets before the payment deadline lapsed. Baccei contends that the district court did not adequately evaluate whether the estate possessed sufficient liquid assets to pay the estate taxes owed in a timely manner. However, Baccei did not argue before the district court that the estate's lack of funds constituted reasonable cause excusing the late payment. Rather, he raises this argument for the first time on appeal. Absent exceptional circumstances, we generally will not consider arguments raised for the first time on appeal, although we have discretion to do so. In re Am. W. Airlines, Inc., 217 F.3d 1161 , 1165 (9th Cir.2000). We may exercise this discretion (1) to prevent a miscarriage of justice; (2) when a change in law raises a new issue while an appeal is pending; and (3) when the issue is purely one of law. Kimes v. Stone, 84 F.3d 1121 , 1126 (9th Cir.1996). However, we will not reframe an appeal to review what would be in effect a different case than the one decided by the district court. Robb v. Bethel Sch. Dist. No. 403, 308 F.3d 1047 , 1052 n. 4 (9th Cir.2002). Baccei bore the burden of proving that his failure to timely pay the estate tax was due to reasonable cause and not willful neglect. See Boyle, 469 U.S. at 243 , 105 S.Ct. 687 (citing 26 U.S.C. § 6651 (a)). However, Baccei did not argue in either the complaint or his cross-motion for summary judgment that the estate's financial need to liquidate real property assets constituted reasonable cause. If Baccei believed that the estate's need to liquidate real property assets constituted reasonable cause for abatement of the late payment penalty under § 6651(a)(2), it was incumbent on him to make that argument before the district court. Because Baccei failed to do so and this case does not present "exceptional circumstances" warranting our consideration of his argument for the first time on appeal, we decline to address it. IV We hold that the district court correctly found that the substantial compliance doctrine does not excuse Baccei's failure to strictly comply with the regulations governing requests for extension of time to pay estate taxes. We also hold that the district court appropriately rejected Baccei's argument that the doctrine of equitable estoppel barred the IRS from imposing a late payment penalty and assessing interest. Lastly, we hold that the district court properly granted summary judgment to the United States on the issue of whether the late payment penalty should be abated on the grounds of reasonable cause. The judgment entered by the district court is therefore AFFIRMED. NOTES [*] The Honorable Timothy M. Burgess, District Judge for the District of Alaska, sitting by designation. [1] Baccei cites Germantown Trust Co. v. Commissioner, 309 U.S. 304 , 60 S.Ct. 566 , 84 L.Ed. 770 (1940), in support of his argument that the submitted materials substantially complied with the regulations. However, in Germantown Trust, the Supreme Court held that a tax return was complete, even though the return did not include a computation of the tax owed, because the return contained all of the information necessary to calculate the tax owed. Id. at 310, 60 S.Ct. 566 . In contrast, neither Form 4768 nor the supplemental letter submitted by Bagley contained all of the information necessary to permit the IRS to calculate the appropriate length of the extension requested or to determine whether a payment extension was reasonable and warranted. [2] Baccei does not argue that undue hardship would result if a payment extension request were refused. [3] Baccei cites several cases construing the negligence penalty under former 26 U.S.C. § 6653 (a) for the proposition that "[w]hen an accountant or attorney advises a taxpayer on a matter of tax law, such as whether a liability exists, it is reasonable for the taxpayer to rely on that advice." Henry v. Comm'r, 170 F.3d 1217 , 1220 (9th Cir.1999) (quoting Boyle, 469 U.S. at 251 , 105 S.Ct. 687 ). However, these cases are distinguishable as they involve a taxpayer's reliance on the advice of tax professionals to take aggressive tax deductions or adopt positions that can be classified as "reasonably debatable." See Foster v. Comm'r, 756 F.2d 1430 , 1439 (9th Cir.1985). Baccei does not contend that Bagley inaccurately advised him of his liability under the tax code or provided him with substantive advice on a debatable tax position. Rather, Baccei solely claims that he relied on Bagley to request and obtain a payment extension. | opinion_html_with_citations | 4,333 | 2011-02-16 18:05:03+00 | 010combined | f | f | 204,905 | Richard C. Tallman and Jay S. Bybee, Circuit Judges, and Timothy M. Burgess, District Judge | null | LCU | f | Published | 61 | Baccei v. United States | Baccei | Ronald B. BACCEI, Trustee of the Eda O. Pucci 2004 Revocable Trust, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee | null | null | <parties id="b1146-5">
Ronald B. BACCEI, Trustee of the Eda O. Pucci 2004 Revocable Trust, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
</parties><br><docketnumber id="b1146-9">
No. 08-16965.
</docketnumber><br><court id="b1146-10">
United States Court of Appeals, Ninth Circuit.
</court><br><otherdate id="b1146-11">
Argued and Submitted July 15, 2010.
</otherdate><decisiondate id="Ahm">
Filed Feb. 16, 2011.
</decisiondate><br><attorneys id="b1148-13">
<span citation-index="1" class="star-pagination" label="1142">
*1142
</span>
Edward W. Suman, San Bruno, CA, for the plaintiff-appellant.
</attorneys><br><attorneys id="b1148-14">
John A. DiCiccio, Acting Assistant Attorney General, Washington, D.C.; Steven W. Parks & Carol Barthel (argued), Department of Justice, Tax Division, Washington, D.C.; Joseph P. Russoniello, United States Attorney, Northern District of California, San Francisco, CA; Jay Robert Weill, Assistant United States Attorney, Northern District of California, San Francisco, CA, for the defendant-appellee.
</attorneys><br><judges id="b1148-16">
Before: RICHARD C. TALLMAN and JAY S. BYBEE, Circuit Judges, and TIMOTHY M. BURGESS, District Judge.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b1148-12">
The Honorable Timothy M. Burgess, District Judge for the District of Alaska, sitting by designation.
</p>
</div></div> | null | null | null | null | null | null | 76,412 | 08-16965 | 1 | ca9 | F | t | Ninth Circuit | Court of Appeals for the Ninth Circuit |
6,230,427 | The opinion of the court was delivered by Lewis, C. J. By the law of Pennsylvania a sale of personal property is not good as against the creditors of the vendor, unless possession be delivered to the vendor in accordance with the sale. When possession is retained by the vendor, it is not only evidence of fraud, but fraud per se. There are some exceptional cases. When from the nature of the transaction, possession either could not be delivered at all, or, at least without defeating fair and honest objects intended to be effected by, and which constituted the motive for entering into, the contract, the cause might be regarded as an exception to the rule. Where possession has been withheld from the vendee, pursuant to the terms of the agreement, some good reason for the arrangement beyond the convenience of the parties should appear: Clow et al. v. Woods, 5 S. & R. 273. But this rule does not appear to prevail in Virginia: Davis v. Turner, 4 Grattan 422. In that state the rule is, the retention of possession of personal property by the vendors, after an absolute sale, is prima facie fraudulent, but the presumption may be rebutted by proof. In this case the parties to the sale, and the property which was the subject of it, were within the jurisdiction of Virginia when the sale was made; but the property, consisting of horses and mules, was subsequently sent over the state' line into Pennsylvania to be pastured. The question is, whether on an attachment in Pennsylvania, by a creditor of the vendor, the validity of the sale shall be tested by the law of Virginia or by that of Pennsylvania. If there had been a previous sale by the owners at their place of domicil, and the contest was between the prior and subsequent purchase, a very different question would be presented. So, if the property had been situated within the jurisdiction of Pennsylvania at the time of the sale in Virginia, the lex rei sites might be applied for the purpose of protecting the rights of our own citizens. But where the property and the parties to the sale were within the jurisdiction of another state, when the contract was made and executed according to the laws of that state, the right vested eo instanti in the purchaser, and no subsequent removal of the property into Pennsylvania for a lawful purpose, can divest it. The subsequent removal of the horses and mules for the purpose of pasturing them in Pennsylvania, was no violation of our policy, nor of the rights of our citizens. They had no claims upon it under our laws when the sale was made, because it was not in any respect subject to our jurisdiction. Their claims upon it were under the laws of Virginia, and the court fell into error in holding that the validity of the sale was to be tested by the law of Pennsylvania: Thuret v. Jackson, 7 Martin 318; Scott v. Duffy, 2 Harris 18; Shelby v. Guy, 11 Wheat. 361. By the common law a debtor has a right to prefer one class of creditors to another; and we think it was error to encourage the jury to take into con*293sideration the exercise of this right, as “a circumstance of suspicion,” in deciding upon the fairness of the transfer. The other errors are not sustained. Judgment reversed and venire facias de novo awarded. | opinion_xml_harvard | 577 | 2022-02-17 20:20:39.871753+00 | 020lead | t | f | 6,361,652 | Lewis | null | U | f | Published | 0 | Born v. Shaw | Born | Born versus Shaw | <p>Error to the Court of Common Pleas of Q-reene county.</p> <p>This was a scire facias sur judgment in a foreign attachment, at the suit of Lucas Shaw against Pettibone, Hoban & Co. Judgment was obtained against the defendants for $964.94, and in which Born, Garrison and others, -together with the Baltimore and Ohio Railroad Company, were garnishees. To the scire facias the garnishees pleaded nulla bona, with leave to give the special matter in evidence. The defendants in the attachment were contractors for making a tunnel on the Baltimore and Ohio Railroad Company, in the state of Virginia, and but a short distance from the line of Pennsylvania.</p> <p>After the work had progressed for some time, the company, by virtue of power reserved in the contract, rescinded the same. The contractors being unable to pay off their hands, they transferred to the company, through the engineer, their stock of horses, mules, harness, tools, implements, fixtures, and materials, on the 2d day of September, 1852, by a written agreement, and in which it was declared that they delivered to Manning the possession of them on the same day. The agreement provided that the value of the stock should be paid by the company to the defendants as soon as the value could be ascertained by persons mutually chosen, so far as it was not agreed upon by the parties at the time of making out the schedule. On the same day a schedule of the property sold was made, which was signed by the defendants and 0. P. Manning, the company’s engineer, and at the same time an estimate was made of the value of the property by the engineer, amounting to $8732.</p> <p>Immediately after the sale, and on the same day, Manning employed Hoban, a member of the firm of Pettibone, Hoban & Co., to assist the resident engineer in the preservation and care of the property purchased. Most of the property was on the premises at the time of the sale; a portion of the horses /were at pasture some distance from the work. A few days after this sale Hoban, by the direction of Frost, took a portion of the horses and mules to Abner Garrison’s, in Greene county, Pennsylvania, for the purpose of being pastured there. Two men of the names of Born and Irwin, who had been employed by Pettibone, Hoban & Co., continued in charge of the horses and mules, and accompanied them to Garrison’s, in the employ of Frost, the engineer of the company. A few days after the sale, Manning paid to the defendants eight thousand dollars, and took a receipt on account of the purchase of this property. At the time of the sale, and the transfer of the property, Manning, the engineer, gave permission to Pettibone, Hoban & Co. to use the property for a few days, until the money should be paid, to keep the hands employed, and to prevent difficulty with and clamour among the labourers. The money was paid, however, before the horses and mules were sent to Garrison’s. While the horses and mules were there in pasture, this attachment was laid.</p> <p>The plaintiff contended that, under the laws of Pennsylvania, the sale was fraudulent and void, because possession had not accompanied and followed the sale, and that the property having been voluntarily brought within the jurisdiction of this Common- ■ wealth, the transaction must be governed by the law of the forum.</p> <p>The court below (Gilmore, P. J.) charged the jury, inter alia, as follows:—</p> <p>“If you should determine, therefore, that the sale was not fraudulent, there still will be another inquiry upon which the case may finally turn. You have it in evidence that on the 10th, 11th,. and 12th of September, these horses and mules, to the number of sixty-one, were taken to Pennsylvania, and put to pasture on the' farm of Esquire Garrison. By whom were they taken there ? Under whose care were they placed ? Who hired the pasturage for them ? You have the evidence of Garrison in reference to these several inquiries. In sending the property into Pennsylvania, was there any change of possession before they were- attached by the creditors of the vendors ? If you find that Hoban and the same ostlers who attended to them before the sale, still had possession of them, I do not see how you can find there was any change of possession — although you may believe that Hoban was constituted the agent of the Baltimore and Ohio Railroad Company. If the jury find, then, that there was no other change than this, we instruct you that this will not be sufficient; and if the horses were brought into this state by these agents of the Baltimore and Ohio Railroad Company, the lex loei, or the law of this state, will govern, and the sale must be considered fraudulent. It would be otherwise if the property was brought here against the assent of the railroad company. But I am not aware there is any evidence of this.</p> <p>“ If the jury, then, should find that after the sale, and until the horses were attached in this state, there was no other change of possession, except continuing them under the control of Hoban and the ostlers who had heretofore attended on them, such sale would be void in Pennsylvania against creditors, and the plaintiff would be entitled to recover. This would be the case, although the sale, by the decision of the courts of Virginia, might make it a valid sale there; the lex loci here requiring a change of possession, the neglect of which would render it fraudulent, per se- and this, although Hoban, one of the former owners, was in reality constituted the agent of the railroad company, to bring the property into this state.”</p> <p>The jury found for the plaintiffs $>1126.95, and that the garnishees had property in their possession amounting to the sum of $4833, and judgment was entered upon the verdict.</p> <p>The garnishees sued out this writ, and assigned the charge as above quoted for error.</p> | null | null | <p>Delivery of personal property must accompany the sale in Pennsylvania, or it will be fraudulent as to creditors of the vendor.</p> <p>Where possession of "personal property is retained after sale, it is not only evidence of fraud, but fraud per se.</p> <p>Where from the nature of the transaction possession either could not be delivered at all, or at least without defeating fair and honest objects intended to be effected by the transaction, the case may be regarded as an exception to the rule. *</p> <p>In Virginia the rule is that the retention of the possession of personal property by the vendors after the sale is prima facie fraudulent, but this presumption may be rebutted by proof.</p> <p>Where a sale of personal property took place in Virginia, but the property, consisting of horses and mules, was subsequently sent to Pennsylvania to be pastured, and here attached on a foreign attachment by a creditor of the vendor, it was hold that the validity of the sale and transfer was to be tested by the laws of Virginia.</p> | null | null | null | null | null | 63,016,433 | null | 0 | pa | S | t | Supreme Court of Pennsylvania | Supreme Court of Pennsylvania |
7,754,862 | ORFINGER, R. B., J. In this Anders1 case, Daniel W. Brown, Sr. challenges his conviction and sentence, alleging that his plea was invalid because he was unrepresented by counsel. We reverse because the record fails to demonstrate that the trial court conducted a proper Faretta2 inquiry when it allowed Brown to represent himself or offered Brown the assistance of counsel when he entered his plea. Brown was charged with sale and delivery of a controlled substance within one thousand feet of a school3 and felony driving while license suspended.4 On the morning of trial, Brown, then unrepresented by counsel, entered a negotiated plea to the drug offense in exchange for an agreed upon sentence and the State’s dismissal of the driver’s license charge. Why Brown was unrepresented is unclear. The record before us shows that Brown was found to be indigent and had counsel appointed to represent him early in the proceedings. However, there is nothing in the record that demonstrates why Brown was unrepresented at the time he entered the plea or if a Faretta hearing was ever conducted.5 Even if we assume that Brown discharged appointed counsel prior to trial following an appropriate Faretta hearing, a defendant’s waiver of the right of counsel applies only to that stage of the proceedings during which the waiver is made. Sproule v. State, 719 So.2d 349 (Fla. 4th DCA 1998). “Where the right to counsel *205has been properly waived, the State may proceed with the stage in issue; but the waiver applies only to the present stage and must be renewed at each subsequent crucial stage where the defendant is unrepresented.” Traylor v. State, 596 So.2d 957, 968 (Fla.1992). See Fla. R.Crim. P. 3.111(d)(5) (“If a waiver [of counsel] is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.”). The entry of a plea is a critical stage in a criminal proceeding. Clary v. State, 818 So.2d 686 (Fla. 5th DCA 2002). Consequently, Faretta and rule 3.111(d)(5) required the trial court to renew the offer of assistance of counsel to Brown before accepting his plea. Because that was not done, we are compelled to reverse the judgment and sentence and remand for further proceedings. On remand, the trial court must advise Brown of his right to counsel and make certain that should he wish to proceed unrepresented, a proper Faretta inquiry is made. Thereafter, Brown may again enter a new plea if the parties successfully negotiate a plea agreement, or the matter may proceed to trial on any charges deemed appropriate by the State, which would then not be bound by any prior plea agreement. Clary, 818 So.2d at 688. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. GRIFFIN and PLEUS, JJ., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (a defendant in a state criminal trial has the constitutional right of self-representation and may forego the right of assistance of counsel; however, it is incumbent on the trial judge to examine the defendant to determine whether the waiver of this right is made knowingly and intelligently before allowing the defendant to proceed without the assistance of counsel). . § 893.13(l)(c)l, Fla. Stat. (2001). . § 322.34(2)(c), Fla. Stat. (2001). . The State failed to file a brief in this matter. Accordingly, we have only the record brought forth by Brown. | opinion_xml_harvard | 593 | 2022-07-30 20:25:51.9038+00 | 020lead | t | f | 7,813,624 | Griffin, Orfinger, Pleus | null | U | f | Published | 0 | Brown v. State | Brown | Daniel W. BROWN, Sr. v. STATE of Florida | null | null | null | null | null | null | null | null | null | 64,818,946 | No. 5D01-3316 | 0 | fladistctapp | SA | t | District Court of Appeal of Florida | District Court of Appeal of Florida |
4,114,268 | This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016). STATE OF MINNESOTA IN COURT OF APPEALS A15-2016 State of Minnesota, Respondent, vs. Elroy James Thomas, Appellant. Filed January 9, 2017 Affirmed Peterson, Judge Polk County District Court File No. 60-CR-15-193 Lori Swanson, Attorney General, St. Paul, Minnesota; and Greg Widseth, Polk County Attorney, Scott A. Buhler, Charles R. Curtis, Assistant County Attorneys, Crookston, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Peterson, Presiding Judge; Larkin, Judge; and Reyes, Judge. UNPUBLISHED OPINION PETERSON, Judge In this appeal challenging the denial of appellant’s presentence motion to withdraw his guilty plea, appellant argues that the district court erred by considering his motion under the manifest-injustice standard, rather than the fair-and-just standard. We affirm. FACTS After accusing his girlfriend of hiding his beer, appellant Elroy James Thomas grabbed her arm and forcibly removed her from their apartment. The deputy sheriff who responded to the report of this incident arrested Thomas on an outstanding warrant that was issued after Thomas failed to appear at a hearing on a misdemeanor charge for a previous assault. The state charged Thomas with felony-level domestic assault for the new incident involving his girlfriend. After the misdemeanor charge for the previous assault was filed, the state learned that Thomas had prior convictions that allowed the previous assault to be charged as a felony. When Thomas made his first appearance on the domestic-assault charge for assaulting his girlfriend, the state moved to dismiss the misdemeanor charge for the previous assault. The district court dismissed the misdemeanor charge, and the previous assault was later charged as a felony. The parties reached a plea agreement. In exchange for Thomas’s guilty plea to the domestic-assault charge, the state agreed to a 23-month sentence, which was at the bottom of the presumptive sentencing range, and to allow Thomas to argue for a dispositional 2 departure at sentencing. The state also agreed to dismiss the felony charge for the previous assault. The district court accepted Thomas’s guilty plea. Three days after entering his guilty plea, Thomas wrote the district court a letter asking to withdraw the plea. Thomas claimed that he had not been taking his prescribed anxiety medication when he entered the plea, which caused him to make irrational and impulsive decisions and made the plea involuntary and unknowing, and that he received ineffective assistance of counsel. A few days later, Thomas formally moved to withdraw his plea. Thomas later withdrew this motion. Almost four months later, Thomas again moved to withdraw his guilty plea. Although Thomas was represented by a public defender, he submitted the motion to withdraw his guilty plea pro se.1 The motion stated that it was made “in accordance to the Minnesota Rules of Criminal Procedure, Rule 15.05, based on an invalid guilty plea,” and it addressed new “evidence of manifest injustice” based on prohibited procedures committed by the prosecutor. Thomas argued that, by dismissing the misdemeanor charge for the previous assault during his first appearance on the domestic-assault charge and later filing a felony charge for the previous assault, the prosecutor violated the law-of-the-case doctrine and Thomas’s right against double jeopardy. Thomas contended that because the state was barred from filing the felony charge after dismissing the misdemeanor charge, his guilty plea in 1 The district court granted Thomas’s request to discharge his attorney, and Thomas represented himself with respect to his motion to withdraw his guilty plea. The motion was presented to the district court on written submissions. 3 exchange for the dismissal of the felony charge was invalid. The district court determined that filing the felony charge did not violate Thomas’s right against double jeopardy because jeopardy did not attach upon the dismissal of the misdemeanor charge and that the law-of- the-case doctrine was not violated because no rule of law was decided in the misdemeanor case that later governed when the offense was charged as a felony. Thomas also argued that because one of his previous assault convictions did not contain “relationship evidence,” he could have accurately pleaded guilty to only gross- misdemeanor domestic assault, not felony domestic assault. The district court determined that this argument was without merit, as the definition of “qualified domestic violence-related offense” under Minn. Stat. § 609.02 , subd. 16 includes fifth-degree assault and “similar laws of other states.” [Thomas] had two previous qualified domestic violence- related offense convictions within the past ten years, and therefore the requirements of the Felony Domestic Assault charge were satisfied. The district court denied Thomas’s motion to withdraw his guilty plea. The court concluded that Thomas did not show a manifest injustice that required the court to allow him to withdraw his plea. Thomas was sentenced, and he now challenges the denial of his motion to withdraw his guilty plea. DECISION Thomas argues that, because he moved to withdraw his guilty plea before he was sentenced, the district court erred by judging the motion under the manifest-injustice standard, rather than under the fair-and-just standard. A reviewing court will reverse the 4 district court’s determination of whether to permit withdrawal of a guilty plea only if the district court abused its discretion. Barragan v. State, 583 N.W.2d 571 , 572 (Minn. 1998). Under the rules of criminal procedure, there are two standards for judging a motion to withdraw a guilty plea; one applies only to a motion brought before sentencing, and the other applies to a motion brought at any time. The district court, in its discretion, “may allow the defendant to withdraw a plea at any time before sentence if it is fair and just to do so.” Minn. R. Crim. P. 15.05, subd. 2 (emphasis added). “At any time the court must allow a defendant to withdraw a guilty plea upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1 (emphasis added). The fair-and-just standard is discretionary and less demanding than the manifest-injustice standard. State v. Raleigh, 778 N.W.2d 90 , 97 (Minn. 2010); State v. Lopez, 794 N.W.2d 379 , 382 (Minn. App. 2011). “[A] defendant who can show manifest injustice is entitled as a matter of right to withdraw his plea of guilty.” Hirt v. State, 298 Minn. 553 , 557, 214 N.W.2d 778 , 782 (1974). “Manifest injustice occurs if a guilty plea is invalid.” Barnslater v. State, 805 N.W.2d 910 , 913 (Minn. App. 2011). “To be constitutionally valid, a guilty plea must be accurate, voluntary, and intelligent.” Raleigh, 778 N.W.2d at 94. It is the defendant’s burden to show the invalidity of a plea. Id. at 94. Thomas had a right to withdraw his guilty plea at any time, either before or after sentencing, if he could prove that withdrawal was necessary to correct a manifest injustice. See State v. Abdisalan, 661 N.W.2d 691 , 693 (Minn. App. 2003) review denied (Minn. Aug. 19, 2003) (defendant may premise motion to withdraw guilty plea on manifest 5 injustice either before or after sentencing). In his motion, Thomas stated that the motion was “based on an invalid guilty plea” and that the motion “addresses new evidence of manifest injustice” based on prohibited procedures committed by the prosecutor. The district court’s determination that Thomas did not prove a manifest injustice addressed the claim that Thomas made. Because the district court could not have judged Thomas’s claim that there was a manifest injustice without considering the manifest-injustice standard, the district court did not abuse its discretion by applying the manifest-injustice standard to Thomas’s motion. Furthermore, even if the district court had considered Thomas’s motion to withdraw under the more lenient fair-and-just standard, the result would have been the same. The fair and just standard requires district courts to give due consideration to two factors: (1) the reasons a defendant advances to support withdrawal and (2) prejudice granting the motion would cause the State given reliance on the plea. A defendant bears the burden of advancing reasons to support withdrawal. The State bears the burden of showing prejudice caused by withdrawal. Raleigh, 778 N.W.2d at 97 (citations and quotations omitted). The district court concluded that the reasons Thomas advanced to support withdrawal were without merit: recharging the previous misdemeanor assault as a felony violated neither the Double Jeopardy Clause nor the law-of-the-case doctrine, and Thomas’s prior convictions qualified to enhance the charge from a misdemeanor to a felony-level charge. Because Thomas’s reasons for withdrawal were without merit, they were not sufficient to allow Thomas to withdraw his guilty plea under either the manifest-injustice or the fair-and-just standard. 6 Thomas does not contend on appeal that the district court’s conclusion regarding any of his three reasons for withdrawal was erroneous, he simply argues that the district court might have granted his motion if it had considered the motion under the fair-and-just standard. Thomas argues that, because he brought his motion before he was sentenced, all he needed to show was that it would have been fair and just to allow him to withdraw his plea. He contends that, in attempting to meet this burden, he relied on his attorney’s ineffective assistance and the fact that he was not taking his anxiety medication, and, while these problems might not have created a manifest injustice, they might have made it fair and just to allow him to withdraw his plea. But Thomas did not rely on his attorney’s ineffective assistance and the fact that he was not provided with his anxiety medicine to meet his burden of proof on his second motion to withdraw his guilty plea; in a letter to the district court, he asserted those facts as the reasons for his first motion to withdraw his guilty plea. His first motion cited Minn. R. Crim. P. 15.05, subd. 2, and sought to withdraw his plea because it was fair and just to do so. But Thomas withdrew that motion, and the district court did not rule on it. What Thomas is really requesting is an opportunity to have the district court now consider the motion that he withdrew, and he asks that this court remand this case so that the district court can evaluate his motion under the fair-and-just standard.2 We will not 2 Thomas contends that a remand is the remedy that this court provided in Anderson v. State, 746 N.W.2d 901 (Minn. App. 2008). Anderson, however, was different from this case. In Anderson, defense counsel advised appellant “to defer moving to withdraw her guilty plea until after sentencing, without advising her how the differing standards of proof might affect the decision,” which prejudiced appellant. Id. at 911 . This court remanded “to allow Anderson to move the district court to withdraw her guilty plea for consideration 7 remand to allow Thomas to assert in support of his second motion the reasons that he asserted in support of his first motion but failed to raise when his second motion was before the district court. Affirmed. under the more lenient, pre-sentencing, fair-and-just standard.” Id. at 911-12 . Unlike the appellant in Anderson, Thomas was not prevented from making his motion to withdraw his guilty plea before sentencing; he made the motion before sentencing. But he failed to present issues to the district court when he had the opportunity to present them. 8 | opinion_html_with_citations | 1,912 | 2017-01-09 22:08:48.668192+00 | 010combined | f | f | 4,337,007 | null | null | C | t | Unpublished | 0 | State of Minnesota v. Elroy James Thomas | null | null | null | null | null | null | null | null | null | null | null | 4,564,666 | A15-2016 | 0 | minnctapp | SA | t | Court of Appeals of Minnesota | Court of Appeals of Minnesota |
7,628,057 | In re Brimmer, Brian; — Plaintiff(s); applying for writ of certiorari and/or review; to the Court of Appeal, Fifth Circuit, No. 92-CA-0413; Parish of Jefferson, 24th Judicial District Court, Div. “0”, No. 335-093. Denied. *683ORTIQUE, J., would grant the writ. HALL, J., not on panel. | opinion_xml_harvard | 45 | 2022-07-29 18:14:35.996896+00 | 020lead | t | f | 7,692,953 | Grant, Hall, Ortique, Writ | null | U | f | Published | 0 | Brimmer v. A. Copeland Enterprises, Inc. | Brimmer | Brian BRIMMER v. A. COPELAND ENTERPRISES, INC., d/b/a Popeyes Famous Fried Chicken and Biscuits | null | null | null | null | null | null | null | null | null | 64,695,512 | No. 93-C-0510 | 0 | la | S | t | Supreme Court of Louisiana | Supreme Court of Louisiana |
1,662,449 | 71 S.W.3d 862 (2002) Clayton Dwayne WILLIAMS, Appellant, v. The STATE of Texas, Appellee. No. 06-01-00053-CR. Court of Appeals of Texas, Texarkana. Submitted January 31, 2002. Decided March 6, 2002. *863 Hayward M. Rigano II, Attorney At Law, Longview, for appellant. Andy Porter, Asst. Dist. Atty., Longview, for appellee. Before CORNELIUS, C.J., GRANT and ROSS, JJ. OPINION CORNELIUS, Chief Justice. Clayton Williams appeals from his conviction for criminal nonsupport. He was convicted on his plea of guilty, and the trial court assessed his punishment at two years' confinement in a state jail facility. Williams contends in a single point of error that the statute under which he was convicted, Tex. Pen.Code Ann. § 25.05 (Vernon Supp.2002), is unconstitutional because it violates Article I, § 18 of the Texas Constitution. Tex. Const. art. I, § 18. That section provides that, "No person shall ever be imprisoned for debt." This Court has previously addressed this issue. In Lyons v. State, 835 S.W.2d 715 , 718 (Tex.App.-Texarkana 1992, pet. ref'd), we rejected an argument that a conviction under Tex. Pen.Code Ann. § 25.05 constitutes an impermissible imprisonment for debt. We held that imprisonment *864 assessed as punishment for the violation of a statute or court order is not imprisonment for debt, even if the statute or court order has the effect of requiring a payment of money. Tex. Const. art. I, § 18 commentary, citing Ex parte Robertson, 27 White & W. 628 , 11 S.W. 669 (1889); Dixon v. State, 2 Tex. 481 (1847); Ex parte Wagner, 905 S.W.2d 799 , 803 (Tex.App.-Houston [14th Dist.] 1995, orig. proceeding). The obligation that the law imposes on spouses to support one another and on parents to support their children is not considered a debt. See Ex parte Hall, 854 S.W.2d 656 (Tex.1993); see also Freeland v. Freeland, 313 S.W.2d 943 (Tex.Civ.App.-Dallas 1958, no writ). [1] Accordingly, we will affirm the judgment of conviction. We find, however, that the punishment assessed Williams is not according to the law governing his offense. The trial court applied the current version of Tex. Pen.Code Ann. § 25.05. It should have applied the law in effect before the 1993 amendments to the Texas Penal Code. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.18, 1993 Tex. Gen. Laws 3586, 3705. [The 1993 act amending the penal code, which became effective September 1, 1994, provided that an offense committed before the effective date of the amendment is governed by the law in effect when the offense was committed, and that the former law is continued in effect for that purpose.] Id. § 1.18(a). The act further provided, "an offense is committed before the effective date of this article if any element of the offense occurs before the effective date." Id. Criminal nonsupport is a continuing offense. See Belcher v. State, 962 S.W.2d 653 , 656 (Tex.App.-Austin 1998, no pet.). Williams committed part of his nonsupport as far back as 1988, and it continued until June 1, 2000. Thus, part of the offense occurred before September 1, 1994, the effective date of the act. See Dickens v. State, 981 S.W.2d 186 , 188 (Tex.Crim. App.1998). Because an element of the offense of criminal nonsupport occurred before the effective date of the act, Williams should have been sentenced under the former law, Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 922, 923 (amended 1987, 1993) (current version at Tex. Pen.Code Ann. § 25.05). That law classified criminal nonsupport as either a class A misdemeanor, which carried a punishment of a fine and/or confinement not to exceed one year, or a third-degree felony, which carried a punishment of no less than two years' and no more than ten years' confinement. Harvill v. State, 13 S.W.3d 478 (Tex.App.-Corpus Christi 2000, no pet.). The trial court, however, sentenced Williams under the current version of the criminal nonsupport statute, which classifies criminal nonsupport as a state jail felony and provides a range of punishment of not less than 180 days' and no more than two years' confinement. See Tex. Pen.Code Ann. § 12.35 (Vernon 1994). A sentence unauthorized by law is fundamental error, rendering the sentence void. See Ex parte Hill, 528 S.W.2d 125 , 126 (Tex.Crim.App.1975); Muse v. State, 815 S.W.2d 769 , 773 (Tex.App.-Waco *865 1991, no pet.). The sentence imposed on Williams was unauthorized under the applicable version of the criminal nonsupport statute. See Act of May 23, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 922, 923 (amended 1987, 1993). Accordingly, the sentence is void. The void sentence, however, does not necessarily invalidate the conviction. See Saunders v. State, 511 S.W.2d 281 , 283-84 (Tex.Crim. App.1974). Where the trial court sets the punishment and the only error concerns the punishment, the conviction should not be reversed, but the cause should be remanded to the trial court for assessment of the proper punishment. See Ex parte Hill, 528 S.W.2d at 126; Saunders v. State, 511 S.W.2d at 283-84. The conviction is affirmed, but the sentence is voided. We remand the case to the trial court for the setting of proper punishment. NOTES [1] Public policy imposes an obligation on parents to support their children; thus, child support payments are not considered a debt, but a legal duty. Ex parte McManus, 589 S.W.2d 790 , 792 (Tex.Civ.App.-Dallas 1979, orig. proceeding). Texas has also permitted imprisonment for failure to pay child support, as well as the attorney's fees incurred while attempting to enforce support obligations, because of the strong public policy in favor of a parent's duty to support his or her children. Tamez v. Tamez, 822 S.W.2d 688 , 691 (Tex. App.-Corpus Christi 1991, writ denied). | opinion_html_with_citations | 958 | 2013-10-30 07:03:34.793785+00 | 010combined | f | f | 1,662,449 | Cornelius, C.J., Grant and Ross | null | LU | f | Published | 9 | Williams v. State | null | Clayton Dwayne WILLIAMS, Appellant, v. the STATE of Texas, Appellee | null | null | <parties id="b856-9">
Clayton Dwayne WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
</parties><br><docketnumber id="b856-12">
No. 06-01-00053-CR.
</docketnumber><br><court id="b856-13">
Court of Appeals of Texas, Texarkana.
</court><br><otherdate id="b856-14">
Submitted Jan. 31, 2002.
</otherdate><br><decisiondate id="b856-15">
Decided March 6, 2002.
</decisiondate><br><attorneys id="b857-18">
<span citation-index="1" class="star-pagination" label="863">
*863
</span>
Hayward M. Rigano II, Attorney At Law, Longview, for appellant.
</attorneys><br><attorneys id="b857-19">
Andy Porter, Asst. Dist. Atty., Long-view, for appellee.
</attorneys><br><judges id="b857-20">
Before CORNELIUS, C.J., GRANT and ROSS, JJ.
</judges> | null | null | null | null | null | null | 1,251,124 | 06-01-00053-CR | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
4,116,389 | STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED January 17, 2017 Plaintiff-Appellee, v No. 328890 Calhoun Circuit Court JOSEPH EDWARD-JARED ROTHWELL, LC No. 2012-002654-FH Defendant-Appellant. Before: WILDER, P.J., and BORRELLO and GLEICHER, JJ. PER CURIAM. Defendant pled guilty to third-degree home invasion, MCL 750.110a(4) pursuant to a plea agreement. As part of the plea agreement, defendant was to serve 18 months’ probation. In exchange, the prosecution agreed to drop a second-degree home invasion charge and agreed that, upon successful completion of probation, defendant’s felony third-degree home invasion conviction would be reduced to a misdemeanor. Although defendant violated one of the terms of probation, on September 10, 2014, the circuit court entered an order discharging defendant from probation and indicating that defendant had successfully completed the conditions of probation. The prosecution did not object to or appeal the order. Subsequently, in accord with the plea agreement, defendant moved to reduce his felony third-degree home invasion to a misdemeanor. The prosecution objected, claiming that defendant failed to successfully complete probation because he had violated one of the terms. The circuit court agreed, and, in a July 27, 2015 order, denied defendant’s motion to reduce his felony to a misdemeanor. After this Court denied defendant’s application for leave to appeal, in lieu of granting leave, our Supreme Court remanded to this Court for consideration as on leave granted. People v Rothwell, 499 Mich. 958 ; 879 NW2d 877 (2016). For the reasons set forth in this opinion, we reverse the circuit court’s July 27, 2015, order and remand for entry of an order granting defendant’s motion to reduce his felony to a misdemeanor in accord with the terms of the plea agreement. I. BACKGROUND On the night of June 30, 2012, defendant broke into the home of his former girlfriend and stole property. Defendant was charged with one count of second-degree home invasion and one count of third-degree home invasion. At a plea hearing on April 9, 2013, defendant pleaded guilty to the third-degree home invasion count, pursuant to a plea agreement in which the second-degree home invasion count would be dismissed and defendant’s conviction would be -1- reduced to a misdemeanor after he successfully completed probation. The parties outlined the plea agreement on the record as follows: The Court: Now, [defense counsel], would you outline the nature and extent of the plea bargain please. [Defense Counsel]: Your Honor, my client will enter a plea of guilty to count two, five-year offense, home invasion in the third degree. In exchange for that the prosecutor’s office will dismiss count one. And they recommend to the court that my client be placed on probation and any jail which may be contemplated be deferred to the end of probation. After successful completion of probation the prosecution agrees that the offense with which my client would have a conviction would be reduced to a misdemeanor of entry without permission. With the regard to probation [sic] the prosecution and [defendant] have agreed that—or the prosecutor agreed that they will agree to a cap of no more than two years of probation. Although a lesser amount may be appropriate in the Court’s eye after the presentence investigation is done. The Court: Is that your understanding, [prosecutor]? [Prosecutor]: It is, your Honor. I would add that there are two terms of probation the people are requesting specifically which include payments of restitution and no contact with the victims of this case. The Court: [Defense counsel]. [Defense Counsel]: Agreed. [Emphasis added.] At a sentencing hearing on May 17, 2013, defendant was sentenced to 18 months’ probation. As part of the terms of probation, the trial court ordered defendant “to have no contact at all with [the victim or her parents] . . . either directly or through another person or be within 500 feet of their residence, school, or place of employment while you’re on probation.” In imposing the sentence, the trial court stated: Upon successful completion of probation this charge may be reduced to a misdemeanor if the motion is filed and there’s no objection by the prosecutor that would be justifiably used to deny your request. Defense counsel sought to clarify the procedure for reducing defendant’s conviction to a misdemeanor: [Defense Counsel]: We talked in terms, he may petition and may be granted. The plea agreement specifically says upon completion of probation, then it will be reduced to a misdemeanor. -2- The Court: If it is a stipulation that is submitted, [defense counsel], it certainly will be considered as stuff [sic]. Before his probation ended, on April 4, 2014, defendant violated one of the terms of probation when he attempted to contact the victim using a false Facebook account. Defendant was sentenced on April 7, 2014, to continued probation with the additional terms that he (1) complete sex offender treatment or other treatment when referred by the field agent; and (2) serve 4 days in jail with credit for 4 days served. Nothing in the record presented to this Court gives rise to a finding that the prosecutor raised the issue of the reduction of the charge being nullified by defendant’s probation violation. On September 5, 2014, Probation Officer Nina Garza moved for defendant to be discharged from probation. The motion stated: The defendant has paid his Court ordered assessments in full and maintains compliance with special and standard terms of probation. [Defendant] has also completed sex offender treatment and has been crime free. It is recommended he be successfully discharged at this time. The circuit court approved the order and discharged defendant from probation on September 10, 2014, indicating in the order that the trial court found “that all conditions of probation” were “successfully completed.” The prosecution neither objected to nor appealed the order. Thereafter, on June 1, 2015, defendant filed a motion to reduce his felony conviction to a misdemeanor pursuant to the terms of the plea agreement.1 The prosecution objected. At a motion hearing, defendant argued that the terms of the plea agreement entitled him to have his felony conviction reduced to a misdemeanor because he successfully completed probation. Defendant argued that the circuit court’s September 10, 2014, order discharged him from probation and indicated that he successfully completed probation. Defendant further argued that he was discharged from probation early, being discharged in September rather than December; he did not have his probation extended; he apparently completed all probation requirements and paid all financial assessments; Officer Garza indicated in her letter that defendant complied with the probation terms and successfully completed probation; and that while he had a probation violation, he was never resentenced and his probation was not revoked. Defendant argued that successful completion of probation requires substantial compliance, not perfection; that defendant substantially complied with the terms of probation; and that defendant’s single probation violation did not disqualify him from receiving the benefit of his plea bargain because he was never off of probation. 1 The case was reassigned to a different trial judge apparently after the former judge retired. -3- In response, the prosecution argued that defendant failed to successfully complete probation because he had violated a term of probation before being discharged. Thus, the plea agreement did not require the circuit court to reduce the felony to a misdemeanor. The circuit court denied defendant’s motion to reduce the conviction to a misdemeanor. In denying the motion, the trial court stated: Well, I don’t think the issue revolves around a reneging of the plea agreement whatsoever. It revolves around the definition of successful completion. And, in fact, the record does reflect that the defendant was subject to a probation violation proceeding for having contact with the victim in this case while on probation in violation of the specific term thereof. And was sentenced to four days in jail with credit for four days with an added term of completion of sex offender treatment. While the file indicates that the terms of probation were successfully completed and that the defendant was discharged from probation and may have been early. I don’t—I didn’t—I haven’t computed the time. I’m not disputing, [defense counsel]. What that means, to this Court as least [sic], is that probation did not end up being revoked and the defendant being resentenced on the additional charge—on the initial charge rather. That the probation simply ended. I have a hard time contemplating that a violation of so important a term as to not have contact with the victim is a successful performance of probation. And it seems to me that is very central to the whole idea of probation that the defendant not have contact with the victim and that he be held in strict compliance with that. So, while he ended up being discharged from probation without it being revoked, I don’t count it as a successful completion. And the motion for the reduction to a misdemeanor is therefore denied. On August 17, 2015, defendant filed an application for leave to appeal with this Court and this Court denied the application.2 Defendant then filed an application for leave to appeal in the Michigan Supreme Court and, in lieu of granting leave to appeal, on June 22, 2016, our Supreme Court remanded the matter to this Court for consideration as on leave granted. Rothwell, 499 Mich. at 958 . II. ANALYSIS On appeal, defendant argues that the circuit court erred in denying his motion to reduce his conviction from a felony to a misdemeanor, claiming various grounds on which the circuit court erred. 2 People v Rothwell, unpublished order of the Court of Appeals, entered December 7, 2015 (Docket No. 328890). -4- Resolution of this appeal requires that we interpret and apply terms of a plea agreement. “[C]ontractual analogies may be applied in the context of a plea agreement if to do so would not subvert the ends of justice.” People v Blanton, Mich App , ; NW2d (Docket No. 328690, issued August 30, 2016); slip op at 9 (quotation marks and citation omitted). Contract interpretation, “including whether the language of a contract is ambiguous and requires resolution by the trier of fact,” presents a question of law that we review de novo. DaimlerChrysler Corp v G Tech Prof Staffing, Inc, 260 Mich. App. 183 , 184-185; 678 NW2d 647 (2003). In this case, the issue raised by the parties is whether defendant successfully completed his probation. Based on Judge Kinsley’s order we find that defendant successfully completed probation. The parties in this case freely entered into a plea agreement wherein the prosecution agreed, inter alia, that defendant’s felony conviction would be reduced to a misdemeanor upon defendant’s successful completion of probation. The probation officer moved for defendant to be discharged from probation, and that motion was granted by Judge Kingsley. In his order entered September 10, 2014, which the prosecution neither objected to nor appealed, Judge Kingsley discharged defendant from probation and specifically indicated in the order that defendant had successfully completed the conditions of probation. “A court speaks through written judgments and orders[.]” People v Jones, 203 Mich. App. 74 , 82; 512 NW2d 26 (1993). By entering his September 10, 2014 order, Judge Kingsley “concluded as a matter of law” that defendant had “successfully completed” “all conditions of probation[.]” See People v Sessions, 474 Mich. 1120 ; 712 NW2d 718 (2006). “The prosecutor did not seek leave to appeal that order pursuant to MCR 7.203(B)(1) and (E), and MCL 770.12(2), and may not collaterally attack that order in this case.” Id. We therefore hold that once the circuit court successfully discharged defendant from probation, defendant successfully completed probation and was entitled to have his felony conviction reduced to a misdemeanor. The circuit court erred in holding otherwise. Remand for entry of an order granting defendant’s motion and reducing his felony to a misdemeanor is therefore appropriate.3 We reverse the circuit court’s July 27, 2015, order and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. /s/ Kurtis T. Wilder /s/ Stephen L. Borrello /s/ Elizabeth L. Gleicher 3 Given our conclusion, we need not address defendant’s argument that the circuit court violated MCR 2.613(B) and (C). -5- | opinion_html_with_citations | 2,026 | 2017-01-18 12:07:18.904676+00 | 010combined | f | f | 4,339,128 | null | null | C | f | Unpublished | 0 | People of Michigan v. Joseph Edward-Jared Rothwell | null | null | null | null | null | null | null | null | null | null | null | 4,569,302 | 328890 | 0 | michctapp | SA | t | Michigan Court of Appeals | Michigan Court of Appeals |
5,467,874 | Parker, Justice. The defendant seeks to set aside the amended complaint on the ground that it is for a cause of action different from that set forth in the original complaint, and therefore irregular. The original complaint alleged the construction of a rail road, across a bay between plaintiff’s farm and the Hudson River, and claimed damages for thus obstructing the navigation between the farm and the river. The amended complaint not only claims such damages for the injury already suffered by such obstruction, but also seeks indemnity for the future, by praying that the defendants be adjudged and enjoined to construct such a bridge as is required by the fifteenth section of their charter, so as to admit of the passage of plaintiff’s boats and vessels between his farm and the river. The original complaint claimed only legal relief. The amended complaint claims relief both legal and equitable; and it is here contended by the defendant’s counsel that they can not both be united in the same action. The facts set forth in both the complaint and. the amended complaint are substantially the same. It is only in the relief prayed that they differ. We have certainly made but little progress in the reform that has been attempted, if law and equity can now only bp administered *270in separate actions. If such is held to be the present rule of practice, the very object of having law and equity administered in the same tribunal and in the same forms of proceeding will be defeated. It was formerly considered a great evil that in a suit at law the plaintiff could be turned out of court, on the ground that his relief was in chancery; and that where a bill was filed in the Court of Chancery, it might be dismissed, on the ground that the complainant had an ample remedy at law. The evil is still just as great as it was formerly, if a party can have only legal or equitable relief in the same action. In such case, if he commences his action asking for equitable relief, as for instance a specific performance, and it turns out that he is not entitled to it, but only to legal relief, by way of damages, he might perhaps, if such strictness is to govern, be put to a new action to obtain redress. This certainly ought not to be; and such a strictness is hostile to the whole spirit of the change that has been made. In trying such a cause at the circuit, I should most certainly allow whatever amendment in the pleadings was necesssary to give the party redress. If the plaintiff had asked for equitable relief, and it turned out that he was entitled to legal relief only, I should permit him to take it in that form. And if he had asked for legal relief only, Avhen he was entitled to both legal and equitable relief, I should allow the proper amendment to administer complete justice in the case. The power to amend, authorized by the Code, is ample for such purpose. Noav the last case of amendment I have mentioned as permissible at the circuit, is precisely what is claimed in this case, with this difference only, that it is claimed to be made here, before issue joined, and when, of course, the defendant has abundant time and opportunity to prepare to meet the claim at the circuit. I see no objection in this case to uniting claims for both legal and equitable relief in the same action. Both depend on the same transaction and both are necessary to indemnify the plaintiff for past, and to protect him against future injury. I think the proper course, under our present system of practice, is to give the party whatever relief is applicable to the facts put *271in issue in the pleadings and established on the trial, whether such relief be legal or equitable, or both. And I see no reason against uniting in one action claims for both legal and eqiutable relief, when they are not inconsistent with each other (Linden agt. Hepburn, 5 How. Pr. R. 188). Substantial justice must no longer be sacrificed to mere form and technicality. It is said that different modes of trial are prescribed for legal and equitable issues. But they are not necessarily to be tried differently, for § 254 of the Code gives ample power to the court to direct that the latter class be tried before the same tribunal, which is prescribed by sections 252 and 253 for the former class. Nor is the distinction at all material; in as much as the court adjudges the relief in all cases, both legal and equitable, on the facts established, whether they were found by the court itself, or by a jury. I think the amended complaint is regular, and the motion must therefore be denied with $10 costs. | opinion_xml_harvard | 821 | 2022-01-09 20:06:31.244169+00 | 020lead | t | f | 5,622,878 | Parker | null | U | f | Published | 0 | Getty v. Hudson River Rail Road | Getty | Getty agt. The Hudson River Rail Road Company | <p>This was a motion to set aside an amended complaint. The facts sufficiently appear in the opinion of the court.</p> | null | null | <p>Claims for both legal and equitable relief may be united in one action, where they are not inconsistent with each other.</p> <p>Cases in which amendments ought to be allowed at the circuit.</p> | null | null | null | null | null | 61,975,459 | null | 0 | nysupct | ST | t | New York Supreme Court | New York Supreme Court |
7,143,310 | Opinion of the Court by Judge Carroll. Affirming.- *458This suit was brought by the- board of trustees of the Highland Park Graded Common School District against the members of the county board of health of Jefferson count; and Dr. Whittenburg, the county health officer, for the purpose of enjoining them from enforcing an order directing vaccination by a day named in the order of all school children attending the graded school in question who had not been vaccinated within seven years preceding the issual of the order. After the issues had been made up, the case was submitted on the evidence and an agreed state of facts and the petition dismissed. Section 2049 of the Kentucky Statutes, which is a part of the chapter devoted to the powers and duties of the State Board of Health, provides, in part, that “the board shall have general supervision of the health of the citizens of this State * * * and are further empowered to make and enforce rules and regulations to obstruct and prevent the introduction or spread of infectious or contagious diseases to or within the' State.” In section 2055 provision is made for the appointment of local boards of health for the respective counties in which they reside, and these county boards “are authorized and shall have power to enforce the rules and regulations adopted by the State Board of Health.” It further provides that “such local boards are empowered and it shall be their duty to inaugurate and execute and to require the heads of families and other persons to execute such sanitary regulations as the local board may consider expedient to prevent the outbreak and spread of cholera, smallpox, yellow fever, scarlet fever, diphtheria and other epidemic and communicable diseases, and to this end may bring the infected population under prompt and proper treatment during premonitory or other-stages of the disease, and they are- empowered to go upon and inspect any premises which they may believe are in an unclean or infectious condition, and it shall be empowered to fix and determine the location of an eruptive hospital for the county, sufficiently remote from human habitation and public highways as in its. judgment is safe.” And also directs that “The local board shall appoint a competent practicing physician who shall be the health officer of the county and secretary of the board, whose duties shall be to see that the rules and regulations pro*459vided for in this act, and the. rules- and regulations of the State Board of Health are enforced.” In the chapter on smallpox, embracing sections 4.608-4618, of the statutes, further provision is made for the prevention and spread of smallpox and the duty enjoined on .parents, guardians and other persons having the care, custody or control of children to have the same vaccinated. The graded school district here in question is located in Jefferson county, outside the corporate limits of the city of Louisville, and Dr. Whittenburg is the health officer for Jefferson county appointed by the local board of health of the county, which board in turn had been appointed by the State Board of Health. It further appears that the State Board of Health had adopted a regulation known as rule thirty-five reading: “No person shall become a member of any public school within the jurisdiction of this board, as-teacher or scholar, without furnishing a certificate from some reputable physician that he or she has been successfully vaccinated, and has been re-vaccinated at least once every seven years. ’ ’ On January 10,1916, Dr. Whittenburg, in his capacity as health officer for Jefferson county, and purporting to act by order of the Jefferson county board of health, served on each of the trustees of the graded school a notice in writing, which notice, after setting out rule thirty-five of the- State board, recited that “information has come to this office- that the- rules- concerning vaccination in your school are not being carried out in accordance with the instructions of the board of health. * * * ‘ ‘ I expect each child enrolled to bring a certificate of successful vaccination, and file same with the teacher and principal in charge. You have- at present an infection of smallpox in your immediate school vicinity. * * * Vaccination must follow immediately, and certificates must be on file by the twentieth day of this month from all children who have not already complied with the- above instructions. In case of failure, they must be sent home. ’ ’ It appears, however, that Dr. Whittenburg issued this order or notice without having been expressly so directed to do by the county board or the State Board of Health; and the trustees of the graded school refusing to obey the instructions contained in the notice, the county board of health, on February 4, 1916, held a meeting *460and adopted a resolution reciting that “it appearing that there are a number of smallpox cases in Highland Park and in the vicinity of the school houses in district No. 46, and that an epidemic is threatened in that neighborhood, and it further appearing that the board of trustees of the Highland Park Graded Common School District No. 46, and the principal of the school, wilfully refused to enforce rule No. 35 adopted by the State Board of Health; * * • * now, therefore, it is ordered by the county board of health that the county health officer, Dr. Whittenburg, shall take all necessary steps by taking out warrants and instituting prosecutions against said parties, to the end that the vaccination laws nf the State of Kentucky and the rules and regulations of the State Board of Health be vigorously enforced and the lives of the school children and other residents of Jefferson county be protected.” "When this resolution was adopted by the county board of health Dr. Whittenburg again notified in writing-each of the school trustees to have all children attending school and not holding a certificate of successful vaccination, to be sent home and not allowed to re-enter without first showing a certificate of successful vaccination from some reputable physician. This notice further directed the trustees that it must be obeyed within twenty-four hours after its service. Aside from the stipulation of fact, in which it was agreed that there was a county board of health in Jefferson county composed of certain named persons, and that Dr. Whittenburg was the duly appointed health officer of the county, and that rule thirty-five had been adopted by the State Board of Health, the only evidence in the case consists of the deposition of Dr. Whittenburg. In his evidence he said, in substance, that he issued the notice of January tenth under what he conceived to be his authority as health officer of the county and without having been expressly directed to do so by either the State Board of Health or the county board of health. That when this notice was not obeyed, the county board of health had a meéting and adopted the resolution which was served on the trustees on February 4th. He further said that at the time of or before the issual of the notice in January, there was a child in the graded common school district who was afflicted with smallpox, and that subsequently several other cases of smallpox developed *461at different places on the border line of this school district, although none of the persons' afflicted lived in the .school district. ... Further testifying, he was asked and answered the following questions: “Q. In your opinion, and from what you know of the situation out there, has the existence of those five cases of smallpox also caused a considerable exposure of other people to smallpox? A. Yes, I think so; there can be no question about that. Then you can’t tell how far these exposures run. Q. Doctor, at the time you sent these communications about which you have testified, with reference to enforcing this rule thirty-five.of the State Board of Health, was or not the smallpox siiuation out there dangerous, or what was the nature of the situation? A. I considered it dangerous. On one occasion here we had one infection here in Louisville, a negro man, and I followed it thoroughly through, and tried to se,e if I could get in touch with where there were other cases around here, and I was unable to; that I did in the State generally, and that winter we had 641 cases from that one negro man. I mention this to show how it will spread . where people are unvaccinated. Q. Does the presence of five cases of smallpox constitute an epidemic or create any danger of an epidemic breaking out? - A. Yes, there is no question about that. Q. Doctor, from your knowledge and experience as a physician, and especially your knowledge and experience with reference to this disease of smallpox, state whether or not vaccination is a prevention of smallpox? A. It is an absolute, positive preventive for seven years, and thereafter immunity may partially run om, and a mild form may occur later in life, the frequency of its occurring depending on the length oí time from vaccination, and I have never seen any one die that had been vaccinated at any time in life, even in infancy, from smallpox. It is the only known method of preventing the disease throughout the civilized world, the' only preventive of the disease endorsed by all civilized countries on earth. Q. After a period of seven years has elapsed from vaccination, does or not the efficacy of it diminish? A. Yes, you lose a part of your immunity. In some cases you do not lose any. Q. Gan or not that immunity be regained by a fresh vaccination after seven years have elapsed? A. Yes, if you lose immunity, it is restored by re-vaccination, and a positive preventive again for the next lease- or the next length of *462time. Q. Is it or not the generally accepted view of the medical profession that vaccination should he repeated after seven years have elapsed, at intervals of seven years? A. Yes, that is accepted by all reputable physicians. “Q. Now, doctor, though a case of Smallpox is mild or may be mild, is it or not by reason of that fact any the less likely to give smallpox to other persons? A. No, I have seen them where they were in the very mildest form give it to others, of the most malignant type and die. I have seen that in my own experience. Q. Is the requirement of vaccination every seven years one which is necessary to prevent the spread of the disease? A. Yes, that is necessary to prevent the spread of it, and by following that system up we can get rid of it entirely. It is an absurd thing for a person to- have smallpox. Q. "What is the opinion of the medical profession as to the efficacy of vaccination? A. The medical profession stands practically as a unit on that. I have had occasion to look at that carefully, and I have never found any reputable physician opposing vaccination. I have found some few physicians that were ignorant along medical lines opposing it, but found no reputable physician opposing vaccination. “Q. Now, doctor, why would you state, as you have stated, that the presence of five cases of smallpox in the neighborhood of or adjacent to the Highland Park School District No. 46 constitutes an epidemic or imminent danger of an epidemic — why would you state that from your knowledge of the nature of the disease? A. All the epidemics that have spread here in. Louisville in the last fourteen years spread practically in the same manner ; a case brought in, you know, and people not properly vaccinated, and it spread just in that way. All epidemics spread just from one case; That has been my experience for the last fourteen years. Q. State what is the nature of the disease with reference to the degree of contagiousness? A. It is highly contagious, one of the most highly contagious diseases I think known, to the medical profession. ,Q. In your opinion did the smallpox situation in or near this school district at the time you took these steps that you have testified about, did the situation .at that time in your opinion require that this rule of the State Board of Health be enforced? A. Yes, sir. Q. Is that the situation at present? A. Yes. Q. If such rule *463were not enforced would or not there be danger of a serious epidemic? A. Yes, in that vicinity. There are a good many people out there and children unvaccinated, and all the schools in the city and the rest of the county are vaccinated very thoroughly except in one of the most distant parts of the county. Q. In your experience how many people have you vaccinated? Between sixty and seventy thousand. Q. Have you ever known in your experience any of them to die that you vaccinated from vaccination? A. I never knew anybody to die form vaccination per se. Q. Is or not vaccination dangerous ? A. No, there is not a possible chance for anybody to die, I didn’t think, from vaccination, unless they do not take the proper care of it. If there is any death at all, it will come from some infection like a scratch with a pin or something like that. A person can .die from a scratch from a pin causing blood poisoning, but from vaccination there is no chance for them to die. That has been my experience. Q. Is that the general experience of the profession? A. Yes, sir.” On behalf of the school trustees the argument is made that Dr. Whittenburg, in his capacity as health officer for Jefferson county, was without power or authority to demand the observance of the notice issued by him on January 10, 1916, because he had not been expressly directed by either the State board or the county board to take the action set forth in this notice, and we may first dispose of this question. It will be noticed that under section 2055 of the statutes it is the duty of the health officer of the county “to see that the rules and regulations of the State Board, of Health are enforced, ’ ’ and among the rules adopted by the State Board of Health was rule thirty-five heretofore set out, providing that no person shall become a, member of any public school without furnishing a certificate that he or she has been successfully vaccinated once every seven years; and it is the contention of counsel for the local board of health that under authority of this rule and the power conferred by the statute, Dr. Whittenburg, as health officer, independent of any action on the part of the local board, had power to take the action set out in the notice of January 10th. The health officer of the county is primarily the agent and executive officer of the local board, and is charged with the duty of enforcing such rules and regulations as *464the State board or the county board may adopt within the scope of the powers conferred upon them by the statute.- But we are not prepared to say that without express authority from either the State board or the county board the health officer would have power to take the responsible action assumed to be exercised in this notice of January 10th. It is quite a serious matter to order, as was done in this notice, that all of a great number of children attending a public school shall be vaccinated within a certain time or denied the privilege of attending school, and we are inclined to the view that before the health officer undertakes to demand the enforcement of a preventive regulation like this affecting so many people, he ought to have express authority so to do from either the State or the county board. We do not of course mean to hold that before the health officer can act in any case he must be armed with express authority from one of these boards, because many matters might come up in connection with the duties of his office that he should be permitted-to perform, in the exercise of a sound discretion and within the scope of his general authority, without having the express sanction of either the State or county board. And so we do not think it would be wise or prudent to attempt to describe in detail the things a health officer may 0£ may not do without the express direction of one of these boards. Sufficient for the purpose of this case is it, to say that in our opinion it would be investing the health officer with more authority than was contemplated by the statute if he should be given the power on his own volition to direct that all children attending one or more public schools should be promptly vaccinated or else denied the privilege of attending the school; Taylor v. Adair County, 119 Ky. 374; Hickman County v. Scarborough, 150 Ky. 1. • • So far, however, as the questions arising in this case are concerned, it is not important whether Dr. Whittenburg did or did not have the authority attempted to be exercised at the time he gave the notice of January 10th because subsequent to this, and after having been expressly directed by the- county board so to do, he gave the notice of February 4th, and we may assume that the lower court, in dismissing the petition of the school trus: tees, considered that they were under a duty to enforce •compliance with this last notice. And .as this notice was *465given by direct authority of the local board of health, the principal question in the case is, did the local board have power to direct the action set forth in this, notice to be taken? Counsel for the school board insist that neither the State board nor the county board of health had authority to adopt or enforce a regulation requiring the vaccination of school children as a condition precedent to their right to attend the public schools of the‘State. It is further contended in this behalf that there was not an epidemic or a threatened epidemic of smallpox in the Highland Park Graded School Dsitrict at the time of the issual of the order of February 4th. In disposing of these questions we will not stop to discuss the issue raised that vaccination is not a safe and valuable preventive for smallpox. There may be some difference of opinion as to its efficacy, but the weight of medical authority supports the view that it is not only a safe but a valuable preventive: Jacobson v. Massachusetts, 197 U. S. 11, 49 L. Ed. 643. Nor is it necessary to determine whether the action was taken under rule thirty-five of the State board or by the direction of the local board under the power vested in it. Each of these boards is charged independently with preserving the public health and with taking- such action as in the exercise of a reasonable discretion may be deemed necessary to suppress and prevent the spread of infectious, or contagious diseases. The only substantial difference in their powers, in respect to taking such measures as may be necessary to conserve the health of the people of the State is that the State board is invested by the statute with larger power and greater jurisdiction than the local boards. But the local boards may under the statute exercise the authority conferred! upon them without asking the advice or the consent of the State board. So that the adoption of rule thirty-five by the State board was. not necessary to confer upon the local board the power attempted to. be exercised, as set forth in this notice, if the conditions were such as to justify the county board in adopting this method of preventing and suppressing the spread of smallpox in the school district. We are further of the opinion that the language of the statute is broad enough to confer on the State board and the local boards, the authority to issue an order such *466as the one here in question when they believe there is reasonable apprehension of an epidemic of smallpox in a school district and that the vaccination of the school children is the only means by which it can be prevented. It is true that the precise questions as to the power of these boards to make vaccination a condition precedent to attendance upon the public schools when there is a reasonable apprehension of an outbreak of smallpox and in the judgment and discretion of the board it is necessary to require the vaccination of school children, has not heretofore come before this court, but it has •frequently been adjudicated by other courts, and the uniform ruling is that when there is reasonable apprehension of the outbreak of a communicable disease such as smallpox, health boards have authority to take such action as was here directed: State v. Zimmerman, 86 Minn. 353; Blue v. Beach, 155 Ind. 121, 50 L. R. A. 64; Duffield v. Williamsport School District, 162 Pa. St. 476, 25 L. R. A. 152; Morris v. Columbus, 102 Ga. 792, 42 L. R. A. 175; State v. Hay, 126 N. C. 999, 49 L. R. A. 588; Bissell v. Davison, 65 Conn. 183, 29 L. R. A. 251; Viemeister v. White, 179 N. Y. 235, 70 L. R. A. 796; People v. Board of Education, 234, Ill. 422, 17 L. R. A. (N. S.) 709. And although we have no direct statutory direction on this subject, a reasonable’ construction of the liberal powers; conferred by the statute in the creation of these boards would imply a grant of authority to adopt in reference to public schools such measures as were' here taken. Indeed, it would be extremely unfortunate if the legislature had limited the power of these boards in respect to dealing with situations such as this, or if the court should restrain them from taking such measures as might be by them deemed necessary to prevent an outbreak and epidemic of this disease in public schools, because there is scarcely any place where an outbreak of smallpox would spread with more rapidity or over a wider territory than if it found a starting place in one of the public schools attended by hundreds of children. .The argument is made that this construction gives to these boards great power. This is true, but necessarily so. The conditions which they were created to deal with could not be successfully met unless they had large power and discretion. In the very nature of things it would be utterly impracticable for the legislative department of the State to undertake to define the conditions that must *467exist before these boards could take such action as might be necessary to control situations that are constantly coming up in various forms; and so if these agencies of thq State created for the purpose of conserving the health of the people are to accomplish the objects for which they were created, they must need be given authority to take such prompt and effective action, in each case as it comes up, as in the exercise of their reasonable judgment and discretion may be deemed necessary to meet the exigencies of the occasion. They are not required to wait until an epidemic actually exists before taking action. Indeed, one of the chief purposes of their existence is to adopt and enforce such timely measures as will prevent epidemics. What they shall do and how it shall be done are matters left to their sound discretion. But of course these boards cannot adopt unreasonable or arbitrary rules or regulations or, without cause, harass the public or needlessly subject individuals to expense, or inconvenience or act unless they have reasonable grounds to believe that the action taken is necessary to prevent or suppress the disease sought to be controlled. And we have no doubt of the jurisdiction of the courts to restrain these boards if they should undertake to exert authority not fairly within the powers, conferred by the statute or plainly not needed for the purpose of conserving or protecting the health of the people or preventing the outbreak or spread of infectious or contagious diseases. These views are fully supported by the cases of Hengehold v. City of Covington, 108 Ky. 752; Trabue v. Todd County, 125 Ky. 809; Allison v. Cash, 143 Ky. 679; Hickman County v. Scarborough, 150 Ky. 1; Breckinridge County v. McDowell, 154 Ky. 721; Board of Health v. Kollman, 156 Ky. 351. Whether the State board or the local boards have authority to order vaccination of all children as a condition precedent to their attendance on school, in the absence of reasonable apprehension of an outbreak of this disease, is not before us in this case, and it is not necessary to a decision of this case that we should express an opinion on this subject. The remaining question is, did the facts, authorize the issual and the enforcement of the order adopted by the local board in respect to this graded school district? This may be shortly disposed of. Keeping in mind what we have said as to the power of the boards, and that the *468discretion lodged in them will not be interfered with unless plainly abused, it is apparent from the evidence of Dr. Whittenburg supplemented by the action of the local board that there was a reasonable apprehension in the minds of the board that an epidemic-of smallpox might find a starting place' in this school. And to prevent a calamity like this the board was authorized to take the action it did. The judgment is affirmed. | opinion_xml_harvard | 4,349 | 2022-07-24 15:31:39.436233+00 | 020lead | t | f | 7,230,916 | Carroll | null | U | f | Published | 0 | Board of Trustees v. McMurtry | McMurtry | Board of Trustees of the Highland Park Graded Common School District No. 46 v. McMurtry | <p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p> | null | null | <p>1. Health — Powers of State and Local Boards of. — Under sections 2049 and 2055 of the Kentucky Statutes the State and local boards of health have general supervision of the health of the citizens of the State and power to inaugurate and execute such rules and regulations as may be necessary to secure sanitary conditions and prevent and suppress infectious or contagious diseases.</p> <p>2. Health — Duties and Power of Health Officer — Vaccination of School Children. — The health officer is the agent and executive officer of the local board and may perform many duties without the express sanction of the board. But he has not authority, without the direction of the board, to order the vaccination of all children attending a public school as a condition' precedent to their attendance.</p> <p>3. Health — Powers of State and Local Boards to Order Vaccination of School Children. — These, boards have power, when there is reasonable apprehension of an epidemic of smallpox in a public school, to order the vaccination of the school children as a condition precedent to their right to attend the public school. Whether they have authority to order vaccination of the children as a condition precedent to their right to attend school, in the absence of reasonable apprehension of an outbreak of this disease, is not decided.</p> <p>4. Health — Boards of — Cannot Exercise Arbitrary Power — ¡Right of Court tó Restrain.- — Health boards cannot adopt unreasonable or arbitrary rules or regulations, or without cause harass the public or subject individuals to expense or inconvenience; and if they undertake to exert authority not within their powers, or not needed for the purpose of conserving or protecting the health of the people, they may be restrained by the courts.</p> <p>6. Health — Discretion of Boards of Will Not Be Interfered With Unless Abused.- — -The power and discretion lodged in health boards will not be interfered with by the courts unless it is plainly abused.</p> | null | null | null | null | null | 64,219,291 | null | 0 | kyctapp | SA | t | Court of Appeals of Kentucky | Court of Appeals of Kentucky |
8,345,119 | Judgments of the circuit court and common pleas-courts reversed for reasons previously stated. | opinion_xml_harvard | 13 | 2022-10-17 23:43:09.871947+00 | 020lead | t | f | 8,375,876 | null | null | U | f | Published | 0 | Railroad Co. v. Aller | Aller | Railroad Company v. Aller | <p>Error to the Circuit Court of Lucas county,</p> | null | null | null | null | null | null | null | null | 65,556,677 | No. 7108 | 0 | ohio | S | t | Ohio Supreme Court | Ohio Supreme Court |
3,825,607 | The plaintiff in error was convicted in the county court of Canadian county on a charge of selling whisky, and was sentenced to pay a fine of $250 and to serve 90 days in the county jail. The judgment was rendered on the 24th day of September, 1928, and the appeal was lodged in this court on the 1st day of December, 1928. No briefs in support of the appeal have been filed. The evidence sufficiently sustains the judgment. No prejudicial error is made to appear. The case is affirmed. *Page 184 | opinion_html_columbia | 92 | 2016-07-06 07:58:47.119246+00 | 020lead | f | t | 4,067,796 | PER CURIAM. | null | ZU | f | Published | 0 | Kitzmiller v. State | Kitzmiller | Roy Kitzmiller v. State. | null | null | <parties id="b199-6">
ROY KITZMILLER v. STATE.
</parties><br><docketnumber id="b199-7">
No. A-7233.
</docketnumber><decisiondate id="Ayy">
Opinion Filed Oct. 26, 1929.
</decisiondate><br><otherdate id="b199-8">
Rehearing Denied Dec. 16, 1929.
</otherdate><br><citation id="b199-9">
(282 Pac. 1117.)
</citation><br><attorneys id="b199-12">
Joe Adwon, for plaintiff in error.
</attorneys><br><attorneys id="b199-13">
J. Berry King, Atty. Gen., for the State.
</attorneys> | null | Appeal from County Court, Canadian County; R.J. Kintz, Judge.
Roy Kitzmiller was convicted of selling whisky, and appeals. Affirmed. | null | null | null | null | 3,939,938 | No. A-7233. | 0 | oklacrimapp | SA | t | Court of Criminal Appeals of Oklahoma | Court of Criminal Appeals of Oklahoma |
7,024,683 | Joyce Brown, a Kentucky resident proceeding pro se, appeals a district court order dismissing her civil action filed pursuant to 26 U.S.C. §§ 6335 and 7426; the doctrine announced in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); and 42 U.S.C. §§ 1983, 1985, and 1986. 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 10, 1997, Brown and “Shield of Faith” filed a complaint against the Internal Revenue Service (“IRS”) and Dennis Anderson, the purchaser of property sold by the IRS to satisfy a federal tax liability allegedly owed by Brown. Brown subsequently retained counsel who filed an amended complaint identifying the plaintiffs as Della Brown, who is Brown’s mother, and Shield of Faith Ministries, Incorporated (“Shield of Faith”). The amended complaint purported to sue the IRS and IRS Agent Lynn Tucker. The complaint alleged that Brown acquired property located on Todds Road in Lexington, Kentucky, on April 3, 1996. Although Brown acquired the property on behalf of Shield of Faith, a deed to the property was issued to Brown, rather than Shield of Faith. On June 9, 1996, Brown executed a quitclaim deed to the property to Della Brown and Shield of Faith, which was recorded on July 8,1996. In the meantime, on April 30, 1986, the IRS issued a notice of tax deficiency for the year 1983 to Brown and her ex-husband, Jones Ogagun, at their former Louisville, Kentucky address. Brown and Ogagun had divorced prior to April 30, 1986, however, and Brown no longer resided at the Louisville address. On July 23, 1996, Tucker issued a levy against the Todds Road property, a notice of seizure, and a notice that the property would be sold at public auction, all of which Brown contended she never received. On August 13, 1996, the IRS sold the property to Anderson. As a result of the above-described proceedings, Della Brown and Shield of Faith (“plaintiffs”) alleged that the IRS wrongfully levied against the Todds Road property and failed to properly notify them of the seizure and sale of the property. The plaintiffs also asserted Fourth and Fifth Amendment claims against Tucker pursuant to Bivens and § 1983. The plaintiffs sought monetary relief. The claims against Anderson and Tucker were dismissed on November 6, 1997, and January 3, 2000, respectively. The remaining claims against the IRS proceeded to trial on January 12, 2000. The plaintiffs’ counsel and counsel for the IRS appeared for trial. However, because Della Brown did not appear for trial, the district court dismissed the case. Reconsideration of the dismissal was denied. Brown has filed a timely appeal. *274Initially, we note that we have jurisdiction to consider this appeal. Even though Brown was deleted as a plaintiff when counsel filed an amended complaint, she may appeal if she has intervened, tried to intervene, or been “summoned” into court below. Hinten v. Hercules Engines, Inc., 138 F.3d 608, 611 (6th Cir.1998). Brown filed an initial pro se complaint, an amended complaint, and responded to all of the pleadings filed by the defendants, until counsel was retained. Under these circumstances, Brown’s initiation of the case and participation in the proceedings permit us to hear her appeal. Id.; EEOC v. Louisiana Office of Cmty. Servs., 47 F.3d 1438, 1442 (5th Cir.1995). We review for an abuse of discretion a district court’s dismissal of a suit for failure to prosecute under Fed.R.Civ.P. 41(b). Link v. Wabash R.R., 370 U.S. 626, 633, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir.1999). Federal Rule of Civil Procedure 41(b) provides for dismissal of a complaint where the plaintiff has failed “to prosecute or to comply with these rules or any order of court....” Upon review, we conclude that the district court acted within its discretion in dismissing Brown’s complaint pursuant to Fed.R.Civ.P. 41(b). Link, 370 U.S. at 633; Knoll, 176 F.3d at 363. Neither Brown nor Della Brown appeared for trial on their own behalf or to provide assistance to counsel so that he could proceed on behalf of Shield of Faith. Brown had prior notice of the date trial would commence and counsel admonished his clients that they must attend the trial. Brown offered no explanation for her failure to appear at trial. The matter had been pending on the district court’s docket for approximately three years and the district court had expressed its desire to resolve the case due to its age. ‘Where a plaintiff does not appear at the trial date or, ... is inexcusably unprepared to prosecute the case, Rule 41(b) dismissal is particularly appropriate.” Knoll, 176 F.3d at 364. Brown’s remaining issues concern the district court’s dismissal of her §§ 1983, 1985, and 1986 claims, her claims against Anderson, and the alleged unlawful acts of the IRS. While Brown has listed these issues, she has not offered any argument or citations in support of them. The failure to present an argument in an appellate brief waives appellate review. Buziashvili v. Inman, 106 F.3d 709, 719 (6th Cir.1997); Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 881 (6th Cir.1996). Even if Brown had not waived these issues by failing to brief them, her challenges fail. Anderson is not a state actor subject to liability under § 1983, Catz v. Chalker, 142 F.3d 279, 289 (6th Cir.1998), or a federal agent subject to liability under Bivens. Bivens, 403 U.S. at 397. Brown also did not allege that Anderson acted in concert with state or federal agents. Brown’s § 1985(2) and (3) claims were properly dismissed because Brown failed to allege any facts upon which a conspiracy could be based. Because the § 1985 claims were dismissed, Brown’s § 1986 claim was also properly dismissed. Haverstick Enters., Inc. v. Fin. Fed,. Credit, Inc., 32 F.3d 989, 994 (6th Cir.1994). We decline to address Brown’s arguments relating to the IRS’s levy upon and sale of the Todds Road property. The district court dismissed Brown’s action on the day of trial prior to deciding the merits of the underlying action. Unless exceptional circumstances are present, issues which were not reached and ruled upon by the district court will not be addressed on appeal. Maldonado v. Nat’l Acme Co., 73 *275F.3d 642, 648 (6th Cir.1996). No exceptional circumstances exist in this case. Accordingly, the district court’s order is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | opinion_xml_harvard | 1,104 | 2022-07-24 05:00:05.882796+00 | 020lead | t | f | 7,117,677 | Batchelder, Clay, Polster | null | U | f | Published | 0 | Brown v. Internal Revenue Service | Brown | Joyce BROWN v. INTERNAL REVENUE SERVICE | null | null | null | null | null | null | null | null | null | 64,106,032 | No. 00-5503 | 0 | ca6 | F | t | Sixth Circuit | Court of Appeals for the Sixth Circuit |
9,468,972 | ON REHEARING The State of Wisconsin has petitioned for rehearing with respect to the issue, not discussed in our opinion, whether the state statutes, Wis.Stat. §§ 342.20 and 349.13(3), that authorize towing are unconstitutional on their face because they do not require the city officers who do the actual towing to comply with any procedural safeguards, either pre-towing or post-towing, or whether they are merely enabling legislation. The district court’s judgment contains a declaration that the statutes are unconstitutional. But the state was not a party in the district court. It intervened in the appeal pursuant to 28 U.S.C. § 2403(b) and filed a brief, but it did not participate in the oral argument, and we formed the impression, evidently erroneously, that the *649constitutionality of the state statutes was no longer an issue in the case. As we have reversed the judgment of the district court, the declaration that the state objects to has been vacated. Of course the plaintiffs may move to reinstate it. But it is not certain that they will. They have not previously sought any relief against the state, which as mentioned was not a party to the district court proceedings; and since all the towing that is done in Milwaukee is done by city rather than state officers, it is far from clear that there is an actual controversy between the plaintiffs and the state regarding the subject matter of this lawsuit. We are naturally reluctant, to say the least, to address a constitutional question that may be academic. If the plaintiffs do move the court below to reinstate its declaration that the state statutes are unconstitutional, the state will be entitled to intervene in the district court proceedings under 28 U.S.C. § 2403(b), and that court can then decide whether there is an actual controversy between the plaintiffs and the state and, if so, whether the declaration should be reinstated in light of the principles stated in our opinion. Except for this clarification, the state’s petition for rehearing is denied. The plaintiffs’ petition for rehearing with suggestion for rehearing en banc has already been denied, the members of the panel having voted unanimously to deny it and no judge in active service having requested a vote on the suggestion. | opinion_xml_harvard | 375 | 2023-08-05 02:28:36.470305+00 | 070rehearing | f | f | 400,145 | Cudahy, Fairchild, Posner | null | RU | f | Published | 83 | James Sutton, Jr. v. City of Milwaukee | null | James SUTTON, Jr., Et Al., Plaintiffs-Appellees, v. CITY OF MILWAUKEE, Et Al., Defendants-Appellants | null | null | <parties id="b722-3">
James SUTTON, Jr., et al., Plaintiffs-Appellees, v. CITY OF MILWAUKEE, et al., Defendants-Appellants.
</parties><br><docketnumber id="b722-6">
No. 81-2518.
</docketnumber><br><court id="b722-7">
United States Court of Appeals, Seventh Circuit.
</court><br><otherdate id="b722-8">
Argued Feb. 11, 1982.
</otherdate><br><decisiondate id="b722-9">
Decided March 18, 1982.
</decisiondate><br><otherdate id="b722-10">
Rehearing and Rehearing En Banc Denied June 24, 1982.
</otherdate><br><attorneys id="b722-22">
Thomas E. Hayes, Deputy City Atty., Linda Uliss Burke, Asst. City Atty., Milwaukee, Wis., for appellant.
</attorneys><br><attorneys id="b722-23">
Lawrence G. Albrecht, Legal Action of Wisconsin, Inc., Milwaukee, Wis., for appellee.
</attorneys><br><judges id="b722-24">
Before CUDAHY and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
</judges> | null | null | null | null | null | null | 766,864 | 81-2518 | 0 | ca7 | F | t | Seventh Circuit | Court of Appeals for the Seventh Circuit |
3,118,727 | COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER ON MOTION Cause Number: 01-12-00971-CR Trial Court Cause Number: 1791565 Style: Jason Brian Connor v The State of Texas * Date motion filed : April 16, 2013 Type of motion: Extension of Time to File Reporter's Record Party filing motion: Court Reporter Document to be filed: Reporter's Record Is appeal accelerated? Yes No If motion to extend time: Original due date: April 15, 2013 Number of previous extensions granted: Date Requested: May 22, 2013 Ordered that motion is: Granted If document is to be filed, document due: May 22, 2013 Absent extraordinary circumstances, the Court will not grant additional motions to extend time The Court will not grant additional motions to extend time. Denied Dismissed (e.g., want of jurisdiction, moot) Other: Judge's signature: /s/ Sherry Radack Acting individually Acting for the Court Panel consists of Chief Justice Radack and Justices Higley and Brown Date: April 18, 2013 | opinion_plain_text | 159 | 2015-10-16 08:06:09.276019+00 | 010combined | f | f | 3,118,727 | null | null | C | f | Published | 0 | Jason Brian Connor v. State | null | null | null | null | null | null | null | null | null | null | null | 2,976,202 | 01-12-00971-CR | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
710,340 | 73 F.3d 356 NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Harold BACKEY, Plaintiff-Appellant, v. SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, Defendant-Appellee. No. 94-7495. United States Court of Appeals, Fourth Circuit. Submitted Dec. 14, 1995. Decided Jan. 3, 1996. Harold Backey, Appellant Pro Se. Vinton DeVane Lide, LIDE, MONTGOMERY, POTTS & MEDLOCK, P.C., Columbia, South Carolina, for Appellee. Before ERVIN, Chief Judge, and WIDENER and WILKINS, Circuit Judges. OPINION PER CURIAM: 1 Harold Backey appeals from a judgment order entered by the magistrate judge * pursuant to a jury verdict entered in favor of the Defendant in an action seeking relief under 42 U.S.C. Sec. 1983 (1988). We note that the record does not contain a transcript of the trial, but find that the appeal presents no "substantial question" justifying provision of a free transcript at government expense. See 28 U.S.C. Sec. 753(f) (1988). Appellants generally bear the burden of demonstrating nonfrivolity and substantiality. See Maloney v. E.I. Du Pont de Nemours & Co., 396 F.2d 939 , 940 (D.C.Cir.1967), cert. denied, 396 U.S. 1030 (1970). 2 In this case, Backey's allegations of wrongful placement in administrative segregation do not involve the kind of significant or atypical hardship necessary to invoke the due process rights he avers were violated in this case; namely, his right to notice of the reasons for such placement. See Sandin v. Conner, --- U.S. ----, 63 U.S.L.W. 4601 (U.S. June 19, 1995) (No. 93-1911). Moreover, Backey's contentions relating to the alleged conversion of his personal property by the Defendant most likely necessitated a credibility determination by the jury, and such determinations are not subject to review by this Court. See United States v. Saunders, 886 F.2d 56 , 60 (4th Cir.1989). 3 We therefore affirm the magistrate judge's order entering judgment for the Defendant and deny Backey's motion for appointment of counsel. We dispense with oral argument because the facts and legal 4 contentions are adequately presented in the materials before the court and argument would not aid the decisional process. 5 AFFIRMED. * The parties consented to trial by a magistrate judge pursuant to 28 U.S.C.A. Sec. 636(c) (West 1993) | opinion_html_with_citations | 386 | 2012-04-17 06:28:57+00 | 010combined | f | f | 710,340 | null | null | R | f | Published | 0 | Harold Backey v. South Carolina Department of Corrections | null | null | null | null | null | null | null | null | null | null | null | 851,883 | 94-7495 | 0 | ca4 | F | t | Fourth Circuit | Court of Appeals for the Fourth Circuit |
257,225 | 303 F.2d 278 R. B. TYLER COMPANY, Robert W. Hyde, Jr., Trading as Hyde Construction Company, and United States Fidelity and Guaranty Company, Appellants, v. The UNITED STATES of America for the Use and Benefit of SMITH ENGINEERING AND CONSTRUCTION COMPANY, Appellee. No. 19356. United States Court of Appeals Fifth Circuit. June 11, 1962. Appeal from the United States District Court for the Northern District of Florida; George Harrold Carswell, Judge. Frank J. Dougherty, Jr., Louisville, Ky., Joe Harrell, Pensacola, Fla., Glenn L. Schilling, Louisville, Ky., for appellants. Raymond A. Hepner, Pensacola, Fla., Wm. Fisher, Pensacola, Fla., for appellees. Before CAMERON, JONES and GEWIN, Circuit Judges. PER CURIAM. 1 In this appeal the findings of fact, and the inferences and conclusions drawn from them, are challenged. No purpose would be served by a recital of the matters disclosed by the record. Having found no error, the district court's judgment is 2 Affirmed. | opinion_html_with_citations | 152 | 2011-08-23 08:37:08+00 | 010combined | f | f | 257,225 | null | null | R | f | Published | 1 | null | null | R. B. Tyler Company, Robert W. Hyde, Jr., Trading as Hyde Construction Company, and United States Fidelity and Guaranty Company v. The United States of America for the Use and Benefit of Smith Engineering and Construction Company | null | null | null | null | null | null | null | null | null | 1,269,484 | 19356 | 0 | ca5 | F | t | Fifth Circuit | Court of Appeals for the Fifth Circuit |
8,211,259 | COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Siana Oil & Gas Co., LLC v. White Oak Operating Company LLC Appellate case number: 01-21-00721-CV Trial court case number: 2015-45224 Trial court: 164th District Court of Harris County On September 16, 2022, Michael J. Blanchard and the Butch Boyd Law Firm, attorney of record for appellant, Siana Oil and Gas Co., LLC, filed a “Motion to Withdraw and to Substitute Counsel and Designation of New Lead Counsel to Appellant Siana Oil and Gas Co., LLC.”1 The motion does not comply with Texas Rule of Appellate Procedure 6.5(b). That is, the motion does not state it was “delivered to the party in person or mailed–both by certified and by first- class mail–to the party at the party’s last known address.” Accordingly, the motion is denied without prejudice to refiling. See TEX. R. APP. P. 6.5 (b). It is so ORDERED. Judge’s signature: /s/ Julie Countiss Acting individually Date: September 27, 2022 1 We note that counsel for appellees has not agreed to this motion. See TEX. R. APP. P. 10.1(a)(5). | opinion_plain_text | 186 | 2022-10-03 07:08:29.819366+00 | 010combined | f | f | 8,245,996 | null | null | C | f | Published | 0 | Siana Oil & Gas Co., LLC v. White Oak Operating Company LLC | null | null | null | null | null | null | null | null | null | null | null | 65,394,189 | 01-21-00721-CV | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
7,230,401 | Memorandum Opinion and Order GARY FEINERMAN, United States District Judge Having uncovered what she believed to be Medicare fraud, Holly Rockey brought *809this qui tam suit against her former employer and all nine of its doctors and audiologists (collectively, “Ear Institute Defendants”), as well as its billing contractor (“Trellis”), under the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. Doc. 102. Rockey also claims that the Ear Institute and its doctors fired her in retaliation for having exposed the alleged fraud, in violation of the FCA and Illinois law. Ibid. Eighteen months after Rockey filed this suit, the United States declined to intervene and the Chief Judge unsealed the complaint. Docs. 11-13. Months later, Rockey sought and obtained leave to file an amended complaint. Docs. 45, 48-49. Faced with a motion to dismiss, Doc. 62, Rockey sought and obtained leave to file a second amended complaint, Docs. 80, 83, 86, 102. In allowing Rockey to file the second amended complaint, the court stated on the record that it would be Rockey’s last chance to amend. Ear Institute Defendants and Trellis have separately moved under Federal Rule of Civil Procedure 12(b) to dismiss the second amended complaint. Docs. 103, 105. Trellis’s motion is granted, while Ear Institute Defendants’ motion is granted in part and denied in part. Background On a motion to dismiss under Rule 12(b)(6), the court must accept the operative complaint’s well-pleaded factual allegations, with all reasonable inferences drawn in Rockey’s favor, but not its legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir.2012). The court must also consider “documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice,” along with additional facts set forth in Rockey’s briefs opposing dismissal, so long as those additional facts “are consistent with the pleadings.” Geinosky v. City of Chicago, 675 F.3d 743, 745 n. 1 (7th Cir.2012). The facts are set forth as favorably to Rockey as those materials permit. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir.2012). The Ear Institute employs several physicians and audiologists who “diagnos[e] and treat[] disorders of the ear, facial nerves, and related structures.” Doc. 102 at ¶ 1. Many of its patients are eligible for Medicare. Id. at ¶ 63. From April 2010 until her termination in November 2010, Rockey worked as a “medical biller and coder” at the Ear Institute. Id. at ¶ 5. Among Rockey’s duties was to enter data, including Medicare billing codes, into patient claims forms stored in “eClinical,” the Ear Institute’s electronic medical records system. Id. at ¶¶ 44-45. Each evening the Ear Institute’s billing contractor, Our Billing Department, Inc., d/b/a Trellis Health Billing, downloaded the information from eClinical and prepared official claims forms (either “CMS 1500” paper forms or their electronic equivalents) for submission to Medicare for reimbursement. Id. at ¶¶ 25, 51. The eClinical forms had several fields, including “Servicing Provider” and “Rendering Provider.” Id. at ¶42. During Rockey’s tenure at the Ear Institute, if an audiologist performed services for a patient, he would enter his own name in both fields, but before releasing the' data to Trellis for submission to Medicare, Rockey would — per Ear Institute Defendants’ instructions — change the “Rendering Provider” from the name of the audiologist to that of a physician, even if the physician had not performed any service listed on the form. Id. at ¶¶ 43-47. Trellis then would download from eClinical only the name of the Rendering Provider, not the Servicing Provider, and so only the physician’s name and National Provider Identification number (“NPI”) would appear on-the forms Trellis submitted to Medicare on *810the Ear Institute’s behalf. Id. at ¶ 51. In fact, the Ear Institute’s audiologists had not even enrolled as Medicare providers, and so did not have their own NPIs, despite a Medicare regulation stating that “[ajudiologists must be enrolled and use their NPI on claims for services they render in office settings on or after October 1, 2008.... ” Centers for Medicare & Medicaid Services, Medicare Claims Processing Manual, Pub. 100-04, at ch. 12, § 30-3(A)(2); see Doc. 102 at ¶¶ 36, 51. To be reimbursable, medical services for eligible patients ordinarily must be furnished by a physician or, if by a non-physician, “under [an] appropriate level of supervision by a physician.” 42 C.F.R. § 410.32; see Doc. 102 at ¶ 29. Medicare does, however, cover diagnostic audiology services “personally furnished by a qualified audiologist” even without physician supervision — albeit with some limitations. Centers for Medicare & Medicaid Services, Medicare Benefit Policy Manual, Pub. 100-02, at ch. 15, § 80.3(A); see Doc. 102 at ¶ 29; 42 C.F.R. § 410.32(b)(2)(h). One limitation is that a physician must order the service; diagnostic audiology services “performed by an audiologist without a physician order ... are not covered.” Medicare Benefit Policy Manual, supra, at ch. 15, § 80.3(B); see Doc. 102 at ¶ 91. In addition, “[t]here is no provision in the law for Medicare to pay audiologists for therapeutic services,” as distinct from diagnostic services, even though some therapeutic services may be covered if administered directly by a physician. Medicare Benefit Policy Manual, supra, at ch. 15, § 80.3(F); see Doc. 102 at ¶ 30. Not only did the Ear Institute regularly present reimbursement claims to Medicare for services rendered by an audiologist using a physician’s name and NPI, but some of those services were either therapeutic services or performed vidthout a physician order — meaning that but for the false listing of the physician’s NPI, Medicare would not have reimbursed the Ear Institute for the services. Doc. 102 at ¶¶ 53, 69, 72-76, 97-98. Sometime in Summer 2010, Rockey told a Trellis employee that, on Ear Institute Defendants’ instructions, she had been changing the names in the Rendering Provider field on claims forms from that of the treating audiologist to that of a physician. Id. at ¶¶ 58-59. The Trellis employee said that Trellis “was unaware that such changes had been made and that any such changes were in fact improper.” Id. at ¶ 59. In an October 26, 2010 office meeting, Rockey alerted Ear Institute Defendants to their improper billing practices. Id. at ¶ 102. Ear Institute Defendants “acknowledged and admitted to [Rockey] that they were well aware that their actions were improper,” yet “instructed and directed [her] to continue submitting ... claims in this manner,” ibid, and to train another employee to do the same, id. at ¶ 104-05. Ear Institute Defendants told Rockey that they had adopted that billing approach “at the suggestion of their accountant because it would allow them to collect more money from Medicare.” Id. at ¶ 102. On October 28, two days after the meeting, Rockey sent an email to Ear Institute Defendants “again outlining the proper and lawful procedure for billing Medicare for audiology services.” Id. at ¶ 103; see Doc. 102-5 at 14 (copy of the email, which is attached to the complaint). In the email, Rockey reiterated that “[a]ny test that is performed by an audiologist ... has to be billed under their own NPI and can not [sic] be billed under the physician,” but also noted that “[p]ayment will not differentiate from prior payments as[] long as all audiologist[s] are set up and credentialed correctly with [M]edicare at [the] time of service.” Doc. 102-5 at 14. *811On November 30, 2010, one of the Ear Institute’s physicians, Richard J. Wiet, sent a letter to Medicare (actually to a private Medicare contractor, Wisconsin Physicians Service Insurance Corporation (‘WPS Medicare”), but the parties agree that this wrinkle is immaterial) stating: We recently became aware that our audiologists were to enroll in Medicare as of October 1, 2008 and that bills for the audiologists’ services should have identified their NPIs.... While we realize that the claims we have submitted for the audiologists’ services since October 1, 2008 should have been submitted under the audiologists’ NPIs, we do not believe that payment of these claims by WPS Medicare results in an overpayment.... [The Ear Institute] did not receive any payments from WPS Medicare that it otherwise would not have received if it had billed under the audiologists’ NPIs.... I want to express my regret for this billing oversight. Doc. 102-9 at 12-13 (copy of the letter); see Doc. 102 at ¶ 61. WPS Medicare responded in a January 14, 2011 letter to Wiet, stating: WPS Medicare appreciates your honesty and openness about this matter.... Normally, Medicare requires providers to correct improperly filed claims, either through the Medicare Appeals process or by refunding and resubmitting the claims. This includes situations such as yours when the overall payment will not change. However, after discussing your situation with CMS [ (the Centers for Medicare & Medicaid Services)], WPS Medicare has agreed not to require your practice to refund and resubmit the services performed by your audiologists and billed under a physician’s NPI. This concession applies only to those claims for audiology services performed by audiologists that WPS Medicare has already processed and paid. WPS Medicare expects any such services billed after the date you discovered your billing error to be billed appropriately under the audiologist’s NPI according to CMS guidelines. Doc. 102-9 at 15 (copy of the letter); see Doc. 102 at ¶ 61 n.l. Meanwhile, shortly after she sent the October 28, 2010 email, Rockey received two disciplinary write-ups: one for being late to work, and the other for failing to send bills to four patients, although sending bills to patients was not among her job duties. Doc. 102 at ¶ 106. One of the Ear Institute’s physicians, Robert A. Battista, then told her that she was suspended without pay and immediately escorted her out of the office. Id. at ¶¶ 107-08. Battista told Rockey that she was being suspended due to her “conflict of interest” with Ear Institute Defendants regarding their Medicare billing practices. Id. at ¶ 108. A couple of weeks later, Rockey was fired. Id. at ¶ 117. In October 2011, Rockey filed this qui tam action under the FCA. See 31 U.S.C. § 3730(b). The operative complaint alleges that Ear Institute Defendants and Trellis violated at least three provisions of the FCA: 31 U.S.C. §§ 3729(a)(1)(A), (B), and (G), the last being commonly known as the “reverse false claims” provision. Doc. 102 at ¶¶ 120-129, 138-142 (Counts 1, 2, and 4, respectively). The complaint also alleges that Ear Institute Defendants and Trellis conspired to violate one or more of those provisions, in violation of 31 U.S.C. § 3729(a)(1)(C). Doc. 102 at ¶¶ 130-137 (Count 3). Finally,- the complaint alleges that Ear Institute Defendants wrongfully terminated Rockey in retaliation for having pointed out the improper billing practices, in violation of both the FCA, 31 U.S.C. § 3730(h)(1), and Illinois common *812law. Doc. 102 at ¶¶ 143-150 (Counts 5 and 6, respectively). Discussion Before proceeding, the court notes that Congress amended relevant provisions of the FCA in 2009 and again in 2010. See Patient Protection and Affordable Care Act, Pub. L. 111-148 § 101040(2), 124 Stat. 119, 901-02 (March 23, 2010) (amending 31 U.S.C. § 3730(e)); Fraud Enforcement and Recovery Act of 2009, Pub.L. 111-21 § 4, 123 Stat. 1617, 1621-25 (May 20, 2009) (amending 31 U.S.C. §§ 3729-33). The 2009 Act provided that it “shall take effect on [May 20, 2009] and shall apply to conduct on or after the date of enactment” — except for § 3729(a)(1)(B), which “shall take effect as if enacted on June 7, 2008, and apply to all claims under the False Claims Act ... that are pending on or after that date.” Pub. L. 111-21 § 4(f), 123 Stat. 1625 (emphases added). The operative complaint is vague as to the exact timeframe of Rockey’s qui tarn claims. But she has alleged at least some specific acts before May 20, 2009, e.g., Doc. 102 at ¶ 66 (April 15, 2009), and presumably means to include conduct going back to October 1, 2008, the date that Medicare began requiring audiologists to seek reimbursement under their own NPIs. The new version of § 3729(a)(1)(B) unquestionably applies to Rockey’s case, as her claims were pending on or after June 7, 2008. But the remaining provisions that Ear Institute Defendants are alleged to have violated — §§ 3729(a)(1)(A), (C), and (G) — apply only to conduct after May 20, 2009. Any allegedly illegal conduct before that date is therefore governed by the previous versions of those provisions. As it happens, the old and new provisions are very similar: *81331 U.S.C. §§ 3729(a)(l)(A)-(G); 31 U.S.C. §§ 3729(a)(l)-(7) (2006). Similar, but not identical — yet Defendants do not rely on any differences in the statutory language as grounds to treat pre-May 20, 2009 conduct differently, and therefore have forfeited any such argument for purposes of their motions to dismiss. *812[[Image here]] *813Another preliminary matter is the pleading standard that applies to Rockey’s claims. Although Rule 8(a) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” Rule 9(b) provides that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 8(a), 9(b). “The FCA is an anti-fraud statute and claims under it are subject to the heightened pleading requirements of Rule 9(b).” United States ex rel. Gross v. AIDS Research Alliance-Chicago, 415 F.3d 601, 604 (7th Cir.2005). “A complaint alleging fraud must provide the who, what, when, where, and how.” Borsellino v. Goldman Sachs Grp., Inc., 477 F.3d 502, 507 (7th Cir.2007) (internal quotation marks and citation omitted). “A principal purpose of requiring that fraud be pleaded with par ticularity is, by establishing this rather slight obstacle to loose charges of fraud, to protect individuals and businesses from privileged libel (privileged because it' is contained in a pleading).” Kennedy v. Venrock Assocs., 348 F.3d 584, 594 (7th Cir.2003). Rule 9(b)’s heightened pleading standard therefore applies to Rockey’s FCA qui tam claims, including her conspiracy claim. See Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 948 (7th Cir.2013) (holding that an allegation of conspiracy to commit fraud is subject to Rule 9(b)’s heightened' pleading standards); Borsellino, 477 F.3d at 507-08; cf. Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir.2003) (holding that Rule 9(b) does not apply to claims of conspiracy to commit non-fraudulent acts). Rule 8(a) applies to her retaliation claims under both the FCA and state law. See United States ex rel. Sanchez v. Lymphatx, Inc., 596 F.3d 1300, 1304 (11th Cir.2010) (“Because her retaliation claim did not depend on allegations of fraud, Sanchez’s complaint only needed ‘a short and plain statement of the claim showing that [she was] entitled to relief.’ Fed. R. Civ. P. 8(a).”) (alteration in original); Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir.2008) (“[T]he heightened pleading requirements of Rule 9(b) do not apply to FCA retaliation claims. Instead, a FCA retaliation claim must meet the Rule 8(a) notice pleading standard.”). Finally, although Rockey has organized the operative complaint’s four qui tam counts by the relevant FCA provision, the parties’ briefs are organized around Rock-ey’s three distinct qui tam claims: (1) the “NPI claims,” which allege that Ear Institute audiologists improperly used physician NPIs, instead of their own, on Medicare reimbursement forms; (2) the “physician order claims,” which allege that the audiologists impermissibly sought and received reimbursement for services performed without a physician order; and (3) the “therapeutic claims,” which allege that the audiologists impermissibly sought and received reimbursement for therapeutic services. Both categorizations . are useful, and the court will use both as appropriate. I. The NPI Qui Tam Claims Against Ear Institute Defendants (Counts 1 and 2) Counts 1 and 2 arise under §§ 3729(a)(1)(A) and (B), respectively, which establish liability for “any person who — (A) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; [or] (B) knowingly makes, uses, or causes to be made or *814used, a false record or statement material to a false or fraudulent claim.” 31 U.S.C. §§ 3729(a)(1)(A), (B). To the extent they are stated against Ear Institute Defendants and pertain to the NPI claims, those counts fail for two separate and independent reasons: they cannot surmount the public disclosure bar, and they fail to satisfy applicable pleading standards. A. Public Disclosure Bar Ear Institute Defendants argue that the FCA’s “public disclosure” bar, “which deprives courts of jurisdiction over qui tam suits when the relevant information has already entered the public domain through certain channels,” Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 285, 130 S.Ct. 1396, 176 L.Ed.2d 225 (2010), requires dismissal of Rockey’s NPI claims under Rule 12(b)(1). See also Rockwell Int'l Corp. v. United States, 549 U.S. 457, 468, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007) (holding that the public disclosure bar is jurisdictional); Glaser v. Wound Care Consultants, Inc., 570 F.3d 907, 909 (7th Cir.2009) (same). Graham County, Rockwell, and Glaser applied a prior version of the FCA, which stated in relevant part: No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions ... unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. 31 U.S.C. § 3730(e)(4)(A) (2006) (emphasis added). In 2010, Congress amended the relevant provision to read: The court shall dismiss an action or claim under this section, unless opposed by the Government, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed ... unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. 31 U.S.C. § 3730(e)(4)(A) (emphasis added); see Pub. L. 111-148 § 10104(j)(2), 124 Stat. 119, 901-02 (March 23, 2010) (amending 31 U.S.C. § 3730(e)(4)). Although neither the Supreme Court nor the Seventh Circuit have definitively addressed this issue, the change from “[n]o court shall have jurisdiction” to “[t]he court shall dismiss” strongly suggests that the public disclosure bar is no longer jurisdictional. See Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (holding that unless “the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, ... courts should treat the restriction as non-jurisdictional in character”); Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 852 (7th Cir.2012) (en banc); Miller v. Herman, 600 F.3d 726, 732 (7th Cir.2010). This is especially so given that other provisions in § 3730(e) still contain the “[n]o court shall have jurisdiction” language. See 31 U.S.C. §§ 3730(e)(1), (e)(2)(A); see also Allison Engine Co. v. United States ex rel. Sanders, 553 U.S. 662, 671, 128 S.Ct. 2123, 170 L.Ed.2d 1030 (2008) (“[W]hen Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (internal quotation marks omitted). Accordingly, the court will treat the public disclosure bar as a non-jurisdictional “claim processing rule,” see Gonzalez v. Thaler, — U.S.-, 132 S.Ct. 641, 648-49, 181 L.Ed.2d 619 (2012); Bowles v. Russell, 551 U.S. 205, 213, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) — that is, a non-jurisdictional merits issue to be handled under Rule 12(b)(6) rather than under Rule 12(b)(1). See United States ex rel. Absher *815v. Momence Meadows Nursing Ctr., Inc., 764 F.3d 699, 706 (7th Cir.2014) (remarking in dicta that as a result of the 2010 amendment, “it is no longer clear that Rockwell’s holding [that § 3730(e)(4) is jurisdictional] is still good law”). Under the FCA, a “public disclosure” includes, among other things, anything revealed “in a congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation.” 31 U.S.C. § 3730(e)(4)(A)(ii). Governing precedent holds that “allegations have been publicly disclosed ... when information about fraudulent behavior has been provided to a competent public official ... who has managerial responsibility for the very claims being made.” Glaser, 570 F.3d at 913 (citations and quotation marks omitted, second alteration in original); see United States v. Bank of Farmington, 166 F.3d 853, 861 (7th Cir.1999) (“disclosure to a public official with direct responsibility for the claim in question of allegations or transactions upon which a qui tarn claim is based constitutes public disclosure within. the meaning of § 3730(a)(4)”). Rockey does not dispute that the contents of Wiet’s November 2010' letter to WPS Medicare were publicly disclosed. The parties disagree, however, over whether that letter sufficiently disclosed Rockey’s NPI claims. See Rockwell Int’l Corp., 549 U.S. at 476, 127 S.Ct. 1397 (“Section 3730(e)(4) does not permit jurisdiction in gross just because a relator is an original source with respect to some claim. We, along with every court to have addressed the question, conclude that § 3730(e)(4) does not permit such claim smuggling.”) Ear Institute Defendants submit that Wiet’s letter disclosed all pertinent information about the NPI claims: Ear Institute audiologists obtained reimbursement for their services using a physician’s name and NPI, contrary to Medicare rules since October 1, 2008. These disclosures, say Ear Institute Defendants, are “substantially the same allegations or transactions as alleged in” Rockey’s NPI claims, which therefore are subject to the public disclosure bar. 31 U.S.C. § 3730(4)(A). Rockey’s only response is that Wiet lied in saying that Ear Institute Defendants only “recently became aware” of the error, Doc. 102-9 at 12, and that Ear Institute Defendants’ conduct was not a “billing oversight,” id. at 13, but rather an intentional effort to defraud Medicare. Any “disclosure,” Rockey concludes, was therefore incomplete and misleading. Doc. 110 at 2-4. Ear Institute Defendants have the better of the argument. Both parties agree that the governing standard is provided by United States ex rel. Springfield Terminal Railway Co. v. Quinn, 14 F.3d 645 (D.C.Cir.1994), which holds that allegations or transactions have been publicly disclosed if “the information conveyed [to the government] could have formed the basis for a governmental decision on prosecution, or could at least have alerted law-enforcement authorities to the likelihood of wrongdoing.” Id. at 654 (alteration in original, quotation marks omitted); see Absher, 764 F.3d at 707-08 (approvingly citing Springfield Terminal Railway’s analysis of the public disclosure bar). Wiet’s letter did just that; far from being incomplete, it disclosed all of the elements necessary to show that Ear Institute Defendants had violated the new Medicare regulations. That not only comprises “substantially the same allegations or transactions as alleged in” Rockey’s NPI claims, 31 U.S.C. § 3730(4)(A), but also “could .. have alerted [WPS Medicare] to the likelihood of wrongdoing” on Defendants’ part, Springfield Terminal Ry., 14 F.3d at 654. See Bank of Farmington, 166 F.3d at 862 (“It may not have been the Bank’s intent to confess or correct its own misrepresentation, but the effect of its ac*816tion was to bring just that misrepresentation to the attention of precisely the person who should have been apprised of the information to begin with, thus effectuating the purpose of public disclosure.”); tf-Absher, 764 F.3d at 708-09 (holding that the public disclosure bar did not apply to the relator’s allegation that the defendant “refused to chart incidents of scabies, pressure ulcers, and rashes” because the defendant “d[id] not offer evidence that the government survey reports disclosed this misconduct”). Even though her NPI claims were publicly disclosed, Rockey may still pursue a qui tarn action on those claims if she was an “original source” of the information. 31 U.S.C. § 3730(e)(4)(A) (providing that the public disclosure bar does not apply if “the person bringing the action is an original source of the information”). As pertinent here, an original source is someone “[1] who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and [2] who has voluntarily provided the information to the Government before filing an action.” 31 U.S.C. § 3730(e)(4)(B) (emphasis added). Rockey alleges that her lawyer hand-delivered copies of documents describing all of her relevant knowledge to the United States Attorney’s Office in Chicago before filing this lawsuit, Doc. 102 at ¶ 11, so the second requirement is satisfied. As for the first requirement, Rock-ey’s allegation that Ear Institute Defendants were long aware of the NPI rule yet deliberately violated it, id. at ¶ 39, is “independent of’ the publicly disclosed information; Wiet’s letter did not confess that Ear Institute Defendants knowingly violated Medicare rules, but instead said that the violations were inadvertent “oversight[s]” that only “recently” had come to light. Yet Rockey’s allegation, even if true, does not “materially add[]” to the disclosures in Wiet’s letter. Section 3730(e) does not define what “materially adds” means, and no federal appeals court has interpreted the phrase, which was added to § 3730(e) in 2010. See Pub. L. 111-148 § 10104(j)(2), 124 Stat. 119, 901-02 (March 23, 2010). But under “the usual definition” of materiality in the FCA context, “a ‘statement is material if it has a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed.’ ” United States v. Rogan, 517 F.3d 449, 452 (7th Cir.2008) (quoting Neder v. United States, 527 U.S. 1, 16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)) (some quotation marks and alterations omitted); see 31 U.S.C. § 3729(b)(4) (“For purposes of this section ... the term ‘material’ means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.”) Beyond reiterating that she has alleged the falsity of the letter’s “recently became aware” language, Rockey makes absolutely no attempt to explain how this detail could have been “capable of influencing” WPS Medicare’s decision regarding the NPI claims. Doc. 110 at 7. She has therefore forfeited any such argument. See Batson v. Live Nation Entm’t, Inc., 746 F.3d 827, 833 (7th Cir.2014) (“[A]s the district court found, the musical diversity argument was forfeited because it was perfunctory and underdeveloped.”); Judge v. Quinn, 612 F.3d 537, 557 (7th Cir.2010) (‘We have made clear in the past that it is not the obligation of this court to research and construct legal arguments open to parties, especially when they are represented by counsel, and we have warned that perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived.”) (internal quotation marks and alterations omitted). Rockey’s position on the “materially add” issue would fail even setting aside forfeiture. Rockey’s brief characterizes *817the Wiet letter’s alleged falsity as “telling [Medicare] that [Ear Institute Defendants] ‘only recently discovered that they had been submitting claims’ with the incorrect NPI numbers,” when in fact “they knowingly and intentionally had been using those practices ‘for at least several years.’ ” Doc. 110 at 7 (citing Doc. 102 at ¶ 39). But Wiet’s letter made it perfectly clear that Ear Institute Defendants’ billing practices were knowing and intentional; Wiet said, however, that he had only “recently became aware” of the fact that those practices were no longer compliant with Medicare regulations. Doc. 102-9 at 12. So Rockey’s own characterization of her allegation of falsity defeats materiality, because Wiet’s letter revealed the alleged falsity (submitting claims with the wrong NPI numbers) as Rockey describes it. See United States ex rel. Osheroff v. Humana Inc., 776 F.3d 805, 815 (11th Cir.2015) (“[U]nder the amended statute, we conclude that Mr. Osheroffs information does not materially add to the public disclosures, which were already sufficient to give rise to an inference that the clinics were providing illegal remuneration to patients.”); United States ex rel. Paulos v. Stryker Corp., 762 F.3d 688, 694 (8th Cir.2014) (‘With the key facts to Dr. Paulos’s FCA claims — i.e., the lack of safety testing and causal connection between device and disease — already thoroughly revealed and without any clear sense about what new information Dr. Paulos brings to the table, we cannot say his knowledge (even if gained early and independently) materially contributes anything of import to the public knowledge about the alleged fraud.”); United States ex rel. Kraxberger v. Kansas City Power & Light Co., 756 F.3d 1075, 1080 (8th Cir.2014) (holding that a relator’s allegations do not “materially add” to publicly disclosed allegations where the publicly disclosed allegations already “raise[d] a reasonable inference of fraud”). Rockey’s only other argument regarding materiality is that the operative complaint “has also provided numerous detailed examples of Ear Institute Defendants’ NPI fraud that of course nowhere appear in [Wiet’s] letter.” Doc. 110 at 7 (citing Doc. 102 at ¶¶ 65-69; 73-76, 80-84). Paragraphs 73-76 refer to the physician order and therapeutic claims; in the other paragraphs, Rockey alleges several specific invoices that were incorrectly billed, and she attached printouts of the relevant eClinical claims forms to her complaint. Doc. 102-4 at 21; Doc. 102-5 at 2, 6,10; Doc. 102-6 at 18-21; Doc. 102-7 at 2-3, 7, 13-14, 19-20, 22-24; Doc. 102-8 at 1-2, 5, 8-9, 11, 13, 18-20, 22-35; Doc. 102-9 at 2. Yet Wiet’s letter identified all of the “CPT codes” that were incorrectly billed — including all of the CPT codes (92541, 92543, 92544, 92545, 92552, 92556, 92557, and 92604) appearing in the attached printouts; came clean that all claims under those CPT codes dating back to October 1, 2008, the effective date of the new Medicare regulations, were incorrect; and offered “to provide any claim detail or additional information that WPS Medicare may require or request.” Doc. 102-9 at 12-13. The isolated examples alleged in the complaint do not materially add to Wiet’s comprehensive mea culpa. See Glaser, 570 F.3d at 920 (“It is true that Glaser’s complaint adds a few allegations not covered by CMS’s investigation. But this is not enough to take this case outside the jurisdictional bar[J”). Accordingly, Rockey is not an “original source” under § 3730(e)(4)(B) and therefore cannot escape the public disclosure bar on her NPI claims. For these reasons, the NPI claims against Ear Institute Defendants — and, for the same reasons, against Trellis as well— are dismissed. B. Pleading Standards Even if the NPI claims were not barred by the public disclosure doctrine, *818they would fail to state a viable claim under the governing pleading standards. “An FCA claim ... has three essential elements: (1) the defendant made a statement in order to receive money from the government, (2) the statement was false, and (3) the defendant knew it was false.” Gross, 415 F.3d at 604. In addition, the false statement must be material, which means that the statement could “have influenced (or naturally tended to influence) the [government’s] decision to” pay. United States ex rel. Yannacopoulos v. Gen. Dynamics, 652 F.3d 818, 830 (7th Cir.2011); see also id. at 828 (“In light of that undisputed disclosure, no reasonable jury could think General Dynamics’ failure to check the proper box in the Certification Agreement was a material false statement, as required for. liability under the False Claims Act.”). As they pertain to the NPI claims, Counts 1 and 2 fail to adequately allege knowledge, falsity, and materiality. 1. Knowledge To state viable claims under §§ 3729(a)(1)(A) and (B), Roekey must plausibly allege that Ear Institute Defendants knew that their statements to Medicare were false. See id. at 832 (“The False Claims Act does not penalize all factually inaccurate statements, but only those statements made with knowledge of their falsity.”) (internal quotation marks omitted). The FCA defines knowledge as “actual knowledge,” “deliberate ignorance of the truth or falsity,” or “reckless disregard of the truth or falsity” of the relevant information. 31 U.S.C. §§ 3729(b)(l)(A)(i)-(iii). Showing that a defendant had knowledge “require[s] no proof of specific intent to defraud.” 31 U.S.C. § 3729(b)(1)(B). Rockey’s allegation of knowledge is subject to the federal pleading standard as stated in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). See Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, ... Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.”); Thulin v. Shopko Stores Operating Co., 771 F.3d 994, 1000-01 (7th Cir.2014). Although Roekey repeatedly alleges that Ear Institute Defendants knowingly and deliberately billed their audiologists’ services to Medicare using a physician’s NPI, almost nowhere does she allege that Ear Institute Defendants knew that this practice — which was permissible prior to October 1, 2008, Doc. 102 at ¶36 — was no longer allowed. Rockey’s only concrete allegation regarding Ear Institute Defendants’ knowledge of the practice’s impropriety is that she alerted them to the problem in the October 26, 2010 office meeting, and again in her October 28 email. Doc. 102 at ¶¶ 102-103. If that is the first that Ear Institute Defendants learned of the problem, then their coming clean to Medicare on November 30 — having in the interim enrolled their five audiologists in Medicare, obtained NPI numbers for them, and held “multiple phone conversations with representatives in WPS Medicare’s Provider Enrollment section,” Doc. 102-9 at 13 — compels the conclusion that the billing error really was an oversight that they worked diligently to remedy. Roekey responds by citing the complaint’s allegation in ¶ 102 that “Defendants acknowledged and admitted to Ms. Roekey [in the October 26 meeting] that they were well aware that their actions were improper, explaining that they had been submitting those fraudulent claims at the suggestion of their accountant because it would allow them to collect more money from Medicare.” Doc. 102 at ¶ 102 (capitalization normalized). Rockey’s own October 28 email, which she attached to her *819complaint, Doc. 102-5 at 14, belies this allegation’s plausibility. The email, which bears the subject line “per youR request,” states that one of the Ear Institute Defendants “asked [Rockey] to type out and submit via email the information that was given to you ... in our [October 26] meeting.” Ibid. If, as the complaint alleges,Ear Institute Defendants were already “well aware” of the NPI regulations, why would they need her to describe them in an email? Moreover, Rockey wrote in the email: “Payment will not differentiate from prior payments as[] long as all audiologists] are set up and credentialed correctly with [Medicare at [the] time of service.” Ibid. How could Ear Institute Defendants “collect more money from Medicare” — which ¶ 102 alleges was their motive — by using the wrong NPIs if, had they used the correct NPIs, “[p]ayments w[ould] not differ[ ]”? More to the point, why would they knowingly choose to violate a regulation that would have cost them nothing to follow? On a motion to dismiss, the court must, to be sure, draw all inferences in Rockey’s favor. But given all this, particularly the October 28 email, the complaint’s allegation in ¶ 102 that Ear Institute Defendants knew before the October 26 meeting they were violating the new Medicare regulations is implausible. See Forrest v. Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir.2007) (“Where an exhibit and the complaint conflict, the exhibit typically controls. A court is not bound by the party’s characterization of an exhibit and may independently examine and form its own opinions about the document.”) (citation omitted). Although the analysis could stop there, it bears mention that the allegation of knowledge in ¶ 102 is at odds with the remainder of the complaint. Rockey repeatedly uses words like “improper,” “fraudulent,” “false,” and “illegal” to describe Ear Institute Defendants’ knowing-use of a physician’s NPI instead of the treating audiologist’s NPI — but not to allege that Ear Institute Defendants also knew that this practice had come to violate Medicare rules. For example, ¶ 70 alleges: “Defendants had specific knowledge of these illegal, fraudulent, and improper practices. Indeed, [Ear Institute] Defendants instructed and trained Ms. Rockey to make the changes in eClinical knowing that the Defendant Physicians were not the Rendering Providers and that such false claims would be submitted to Medicare.” Doc. 102 at ¶ 70 (emphases added, capitalization normalized). In other words, the “specific knowledge of these illegal, fraudulent, and improper practices” alleged in ¶ 70 is demonstrated only by Ear Institute Defendants’ “knowing that the Defendant Physicians were not the Rendering Providers” — not by their knowing about the new regulations. Likewise, ¶ 38 alleges: “Defendants operated their fraudulent scheme by submitting claims to Medicare using the NPI of a Defendant Physician, even though a Defendant Audiologist, not enrolled in Medicare and without a valid NPI, had performed the service, and even though the Defendant Physician performed no services for the patient at all.” Id. at ¶ 38 (capitalization normalized, first emphasis added). The “fraudulent scheme” referenced in ¶ 38 is merely Ear Institute Defendants’ using the physician’s NPI as permitted by the old Medicare rule, with nary an allegation that they were aware of the new Medicare rule. Indeed, ¶¶ 63-69 list, by Rockey’s own description, “examples of specific false records and claims Defendants!] fraudulently submitted to Medicare for reimbursement,” Doc. 102 at ¶¶ 63-69 (capitalization normalized) — even though those examples do not include any allegation that Ear Institute Defendants *820also knew that substituting the NPIs in these cases violated Medicare regulations. In sum, the operative complaint, while littered with vague and conclusory uses of “improper,” “fraudulent,” “false,” and “illegal,” Doc. 102 at ¶¶ 10, 38, 57, 59-61, 70, 88-90, 115, does not plausibly allege that Ear Institute Defendants acted with the knowledge that their conduct violated the new Medicare regulations. An unknowing regulatory violation does not satisfy the knowledge element of an FCA qui tam claim. See United States ex rel. Grenadyor v. Ukrainian Vill. Pharmacy, Inc., 772 F.3d 1102, 1107 (7th Cir.2014) (“[I]t is not enough to allege, or even prove, that the pharmacy engaged in a practice that violated a federal regulation. Violating a regulation is not synonymous with filing a false claim.”); United States ex rel. Lamers v. City of Green Bay, 168 F.3d 1013, 1020 (7th Cir.1999) (“[T]he FCA is not an appropriate vehicle for policing technical compliance with administrative regulations.”). Rockey’s failure to provide any plausible basis for believing that Ear Institute Defendants knew before October 26, 2010 that their once legitimate billing practices were no longer kosher — despite her having had the opportunity to file, three different complaints — demonstrates that no such basis exists. See Grenadyor, 772 F.3d at 1108 (“And if [the relator] can’t allege how he learned that the charges had not been reversed, what basis has he for alleging they were never reversed?”); Lamers, 168 F.3d at 1018 (“Lamers provided no credible evidence that the City intended to flout the regulations from the very beginning.”). The operative complaint’s only other allegations bearing on Ear Institute Defendants’ knowledge assert that Ear Institute Defendants “kn[ew] for at least several years that they were required to” obtain NPIs for their audiologists, and that “[t]he law and Regulations were knowingly and intentionally disregarded.” Doc. 102 at ¶¶ 39-40. Those allegations are concluso-ry and, as noted above, unsupported by any factual averments in these or any other paragraphs of the complaint. See Thulin, 771 F.3d at 1000 (holding that under the FCA, “vague allegations that a corporation acted with reckless disregard ... [of falsity] simply by virtue of its size, sophistication, or reach do not clear even th[e] lower pleading threshold” of Rule 8(a)); McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.2011) (“We have interpreted Twombly and Iqbal to require the plaintiff to ‘provid[e] some specific facts’ to support the legal claims asserted in the complaint.”) (alteration in original). 2. Falsity To adequately plead ■ falsity, Rockey must plausibly allege that Ear .Institute Defendants either presented “a false or fraudulent claim for payment or approval,” 31 U.S.C. § 3729(a)(1)(A), or “knowingly ma[de] ... a false record or statement material to a false or fraudulent claim,” § 3729(a)(1)(B). “[E]rrors based simply on faulty calculations or flawed reasoning,” “innocent mistakes,” or “negligence” are not “false” under the FCA. Lamers, 168 F.3d at 1018. According to the Seventh Circuit, “it is impossible to meaningfully discuss falsity without implicating the knowledge requirement.” Ibid. For the same reasons that Rockey has not plausibly alleged that Ear Institute Defendants knew about the new NPI regulation and violated it anyway, she has also failed to plausibly allege that the NPI claims were anything but negligent or “innocent mistakes.” Alternatively, Rockey asserts that the NPI claims were what she calls “legally false.” On this theory, Ear Institute Defendants’ signing a Medicare Electronic Data Interchange Agreement (“EDIA”) form, which certified that “the claims sub*821mitted are accurate, complete, and truthful,” Doc. 102 at ¶¶ 21-28, rendered the NPI claims false as a matter of law. Rockey concedes that this type of “certification liability” attaches only if the certification is a condition of payment. Doc. 109 at 11; Doc. 110 at 14; see Gross, 415 F.3d at 604 (“An FCA claim premised upon an alleged false certification of compliance with statutory or regulatory requirements also requires that the certification of compliance be a condition of or prerequisite to government payment.”). Trellis attached a copy of the EDIA certification to its brief, Doc. 104-1 at 18-21, and because Rockey specifically references the certification form in her complaint, Doc. 102 at W 26-28 — and because it is central to her “certification liability” argument — the court may consider it on a motion to dismiss. See Geinosky, 675 F.3d at 745 n. 1. Executed by Battista on behalf of the Ear Institute in May 2008, the EDIA form indeed certifies that the Ear Institute “will submit claims that are accurate, complete, and truthful.” Doc. 104-1 at 18, ¶ 7. The claim forms’ only alleged falsity .is that a doctor, not the treating audiologist, was listed as the “Rendering Provider.” Yet this practice was, as noted, long permitted by Medicare, so it is unrealistic to call it false or untruthful. See Gross, 415 F.3d at 604 (“[T]he existence of mere technical regulatory violations tends to undercut any notion that a prior representation of regulatory compliance was knowingly and falsely made in order to deceive the government.”). Nothing in the EDIA form imposes strict liability for technical regulatory noncompliance; to the contrary, it contains provisions dealing with how to handle inadvertent inaccuracies in submitted claims. Doc. 104-1 at 18, ¶ 5 (providing for governmental audits and procedures for how to “adjust” any “incorrect payments”); id. at 19, ¶14 (imposing a duty on the Ear Institute to “research and correct claim discrepancies”). The Tenth Circuit discussed the “certification liability” theory in a Medicare case in which the certification form read: “I further certify that I am familiar with the laws and regulations regarding the provision of health care services, and that the services identified in this cost report were provided in compliance with such laws and regulations.” United States ex rel. Conner v. Salina Reg’l Health Ctr., Inc., 543 F.3d 1211, 1219 (10th Cir.2008) (quoting 42 C.F.R. § 413.24(f)(4)(iv)). Declining to hold the defendant liable under the FCA for its technical noncompliance with Medicare regulations, the Tenth Circuit explained: Although this [Medicare] certification represents compliance with underlying laws and regulations, it contains only' general sweeping language and does not contain language stating that payment is conditioned on perfect compliance with any particular law or regulation. Nor does any underlying Medicare statute or regulation provide that payment is so conditioned. Thus, by arguing that the certification’s language is adequate to create an express false certification claim, Conner fundamentally contends that any failure by [the defendant] to comply with any underlying Medicare statute or regulation during the provision of any Medicare-reimbursable service renders this certification false, and the resulting payments fraudulent. Ibid. Conner rejected the plaintiffs contention, and its rationale is persuasive. The same rationale applies here. See Grenadyor, 772 F.3d at 1105 (holding that the defendants had not made a “false” statement by signing a certification form stating, “I agree to abide by the Medicare 'laws, regulations and program instructions that apply to this supplier,” reasoning that “[i]t may have been an honest statement of intentions at the time, followed by a change of heart, motivated perhaps by *822greed ... — and in that ease the pharmacy would not have made any false statements, but simply have billed Medicare when it shouldn’t have”). Rockey urges the court to ignore the EDIA form because it might not “govern[ ] the entirety of-.[Ear Institute Defendants’ and Trellis’s] relationship to Medicare, CMS, or even [each other].” Doc. 109 at 10. Maybe — but if Rockey is going to allege that other agreements may give rise to liability for fraud, it is her job to identify those agreements with particularity. After all, Rule 9(b) “requires the plaintiff to conduct a precomplaint investigation in sufficient depth to assure that the charge of fraud is responsible and supported.” Cincinnati Life Ins. Co., 722 F.3d at 950 (quotation marks omitted). Rockey’s suggestion that other agreements may exist, and that Defendants might have committed fraud by violating the terms of those hypothetical agreements, amounts to nothing more than rank speculation. 3. Materiality Even assuming Rockey has plausibly alleged knowledge and falsity, her NPI claims would still founder on materiality. Rockey agrees that to state a claim under the FCA, she must allege not only that Ear Institute Defendants’ claims were knowingly false, but also that the falsehoods were material to the government’s decision to pay the claims. Doc. 110 at 15-17; see Yannacopoulos, 652 F.3d at 828; Rogan, 517 F.3d at 452; Luckey v. Baxter Healthcare Corp., 183 F.3d 730, 732-33 (7th Cir.1999). Section 3729(b) defines “material” as “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” 31 U.S.C. § 3729(b)(4). Materiality is measured by an objective standard. See Rogan, 517 F.3d at 452. As discussed above, Rockey’s NPI claims are limited to those for which Medicare would have reimbursed the Ear Institute even if the audiologists’ NPIs had been listed on the claims forms. Thus, Ear Institute Defendants’ failure to use the correct NPI .could not have “influence[d] the payment or receipt of money” by the government because the government would have paid the claim regardless of whose NPI was on the form. It follows that the alleged falsity of those claims was not material. See Yannacopoulos, 652 F.3d at 828 (“General Dynamics’ failure to check the proper box in the Certification Agreement was [not] a material false statement, as required for liability under the False Claims Act.”); Conner, 543 F.3d at 121920 (“If the government would have paid the claims despite knowing that the contractor has failed to comply with certain regulations, then there is no false .claim for purposes of the FCA.”). It is true that WPS Medicare stated that the government granted the Ear Institute a “concession” in light of Wiet’s “honesty and openness.” Doc. 102-9 at 15. If Wiet had not been honest and open, his letter to WPS Medicare could have been “capable of influencing” the government’s decision to grant that concession. But WPS Medicare’s “concession” was merely to relieve Ear Institute Defendants of the burden of refunding all of the payments and then resubmitting the same claims using the correct NPIs — which Medicare would then have been obliged to pay. In other words, the concession was simply to avoid needless paperwork; as WPS Medicare’s letter itself noted, “the overall payment will not change,” ibid, which means that the alleged falsity did not influence the “payment or receipt of money.” 31 U.S.C. § 3729(b)(4) (emphasis added); see Gross, 415 F.3d at 605 (“False claim allegations must relate to actual money that was or might have been doled out by the government based upon actual and particularly-identified false representations.”). *823II. The Physician Order and Therapeutic Qui Tam Claims Against Ear Institute Defendants (Counts 1 and 2). Ear Institute Defendants next challenge Rockey’s “physician order” and “therapeutic” claims. As discussed, Medicare covers diagnostic audiology services performed by an audiologist only if ordered by a physician, and will not cover therapeutic audiology services performed by an audiologist at all. Medicare Benefit Policy Manual, supra, at ch. 15, §§ 80.3(B), (F); see Doc. 102 at ¶¶ 30, 91. By submitting its audiologists’ claims using a physician’s name and NPI, says Rockey, Ear Institute Defendants were reimbursed for services that were not reimbursable. Ear Institute Defendants concede that the physician order and therapeutic claims are not precluded by the public disclosure bar. Doc. 105 at 8 n.ll. And Rockey has alleged enough to survive a motion to dismiss on those claims. Regarding the physician order claims, the operative complaint plausibly alleges that new patients could schedule appointments to be seen by the Ear Institute’s audiologists, and could receive audiology services from the audiologists, all without a physician’s order or referral. Doc. 102 at ¶¶ 95-97. The complaint also plausibly alleges that, had there been a physician order, it would have been noted in the patient files — yet Rockey never saw any. Id. at ¶¶ 96, 99-100. Regarding the therapeutic claims, the complaint plausibly alleges that Rockey personally changed the claims forms for therapeutic services provided by audiologists, and that she overheard the Ear Institute’s audiologists discussing therapeutic services that they provided to patients and then billed to Medicare. Id. at ¶¶ 73-76. True, Rockey does not allege any specific instances of these kinds of false claims. But the Seventh Circuit has held that it is not “essential for a relator to produce the invoices (and accompanying representations) at the outset of the suit.” United States ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849, 854 (7th Cir.2009); see Note, “Linking Rule 9(b) Pleading and the First-To-File Rule to Advance the Goals of the False Claims Act,” 108 Nw. U.L. Rev. 1423, 1427-28 (2014) (describing a circuit split as to whether a relator must attach a “particular fraudulent invoice” to her complaint, and noting that the Seventh Circuit falls on the “permissive side of the spectrum”). Rule 9(b)’s particularity requirement exists “so that opposing parties can respond effectively, and the trial judge can set an appropriate course for the litigation process.” Cincinnati Life Ins. Co., 722 F.3d at 949. That is the case here: Rock-ey describes in detail exactly what those kinds of claims forms would look like, Doc. 102 at ¶¶ 76-77, 100-101, and plausibly alleges that those documents “are in Defendants’ sole possession, custody and control,” id. at ¶ 77;. see also id. at ¶ 101, making dismissal inappropriate. III. Counts 1 and 2 Against Trellis Counts 1 and 2 in their entirely do not satisfy the governing pleading standards against Trellis because Rockey has failed to allege materiality or that Trellis “knowingly” presented “false” claims. (The NPI claims would fail anyway under the public disclosure bar.) In fact, the case for dismissal as to Trellis is even stronger, for Rockey’s only allegation regarding its knowledge is that “sometime in the summer of 2010,” she told a Trellis employee about Ear Institute Defendants’ practice of using a physician’s NPI instead of the treating audiologist’s. Doc. 102 at ¶¶ 58-59. But according to the operative complaint, the employee responded that “Trellis was unaware” that Ear Institute Defendants were doing that. Ibid. Rockey does not allege that she discussed the applicable Medicare regulation with the Trel*824lis employee; nor does she allege that she even mentioned the physician order or therapeutic claims to the employee. Rockey goes on to allege, in conclusory fashion, that Trellis knew all along that Ear Institute Defendants were substituting the NPIs on the claims forms or, at best, “buried their head in the sand ... by failing to make appropriate inquiry.” Id. at ¶ 60. But Rockey’s brief provides no authority to support the claim that Trellis had an affirmative legal duty to investigate Ear Institute Defendants’ behavior. In fact, the EDIA form makes clear that Ear Institute Defendants “will be responsible for all Medicare claims submitted to CMS ... by itself, its employees, or its agents.” Doc. 104-1 at 18, ¶ 1 (emphasis added). Trellis was indisputably Ear Institute Defendants’ agent in this respect, and Rockey has not plausibly alleged that its passive role in submitting the reimbursement claims forms based on the information its principal provided was anything worse than negligent. In any event, even if this conclusion were wrong, the NPI claims are nonetheless defeated by the public disclosure bar, and the physician order and therapeutic claims would fail because of the dearth of allegations tying Trellis to those claims. IV. Reverse False Claims (Count 4) Rockey alleges that Ear Institute Defendants and Trellis also violated the FCA’s “reverse false claims” provision, 31 U.S.C. § 3729(a)(1)(G), which condemns “knowingly makfing], us[ing], or causing] to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly concealing] or knowingly and improperly avoiding] or decreasing] an obligation to pay or transmit money or property to the Government.” Rockey asserts that “all of their submissions for payment of claims” violated that provision because Ear Institute Defendants “failed to take out or reimburse the Government for prior false claims.” Doc. 102 at ¶ 141. But this is merely a repackaged version of Counts 1 and 2, and so does not state a plausible claim for relief against either Ear Institute Defendants (as to the NPI claims) or Trellis (as to all claims). Rockey contends that Wiet’s November 2010 letter to WPS Medicare violated the reverse false claims provision because it “intentionally and fraudulently misrepresented [Ear Institute Defendants’] conduct affirmatively and by omission.” Ibid. Rockey does not allege that Trellis played any part in sending the letter, so it cannot form the basis of liability against Trellis. Ear Institute Defendants for their part argue that reverse false claims liability arises only where the defendant makes a false statement at the time it owes an obligation to the government. Doc. 105 at 19. Several circuits have imposed this “contemporaneity” requirement on reverse false claims. See United States ex rel. Matheny v. Medco Health Sol’ns, Inc., 671 F.3d 1217, 1223 (11th Cir.2012); Chesbrough v. VPA, P.C., 655 F.3d 461, 473 (6th Cir.2011); United States ex rel. Vigil v. Nelnet, Inc., 639 F.3d 791, 802 (8th Cir.2011). Under that requirement, a relator who “merely allege[s] that [the defendant] is obligated to repay all payments it received from the government” has not stated a claim for relief under the reverse false claims provision. Chesbrough, 655 F.3d at 473. It is doubtful that a contemporaneity requirement, if in fact it existed, survived the amendment to the reverse false claims provision. The old version of the statute imposed liability for “knowingly mak[ing] ... a false record or statement to conceal, avoid, or decrease an obligation.” 31 U.S.C. § 3729(a)(7) (2006) (emphasis added). The phrase “to conceal” implies a purpose or intent, just as the “to get” *825language did in former § 3729(a)(2) (“knowingly makes ... a false record or statement to get a false or fraudulent claim paid”) (emphasis added). See Allison Engine Co., 553 U.S. at 668-69, 128 S.Ct. 2123 (“ ‘To get’ denotes purpose, and thus a person must have the purpose of getting a false or fraudulent claim ‘paid or approved by the Government’ in order to be liable under § 3729(a)(2).”) (brackets omitted). Contemporaneity was likely tied to purpose, for how could a fraudster have the purpose to conceal a non-existent obligation? But the phrase “to conceal” disappeared from the reverse false claims provision, which now imposes liability for “knowingly mak[ing] ... a false record or statement material to an obligation to pay” the government. 31 U.S.C. § 3729(a)(1)(G) (emphasis added). The issue is academic, however, because Ear Institute Defendants never had an “obligation” to the government on the NPI claims. The amended statute defines “obligation” to include “the retention of any overpayment” by the government. 31 U.S.C. § 3729(b)(3). The NPI claims, however, did not result in any overpayment, as the government would have made the payments even had the correct NPIs been listed. Ear Institute Defendants therefore could not have violated § 3729(a)(1)(G), because no statement, false or otherwise, can be “material to” a nonexistent obligation. Count 4 is therefore dismissed as to the NPI claims. By the same token, the physician order and therapeutic claims, per Rockey’s allegations, did result in overpayments. And those alleged overpayments would have been made long before the November 2010 letter — thereby satisfying even the contemporaneity requirement, if it still exists. The reverse false claims provision also requires the defendant’s statement to be objectively false. See Yannacopoulos, 652 F.3d at 838 (“To establish a reverse false claim, [the relator] must first show that [the defendants’ statement] was objectively false in some way.”). Rockey says that Wiet’s letter misleadingly omitted any mention of the physician order and therapeutic claims; in fact, it affirmatively stated that the Ear Institute “did not receive any payments from WPS Medicare that it otherwise would not have received if it had billed under the audiologists’ NPIs.” Doc. 102-9 at 13. Taking Rockey’s allegations about the physician order and therapeutic claims as true, this statement in Wiet’s letter is objectively false. And so the letter could plausibly be construed as “a false ... statement material to an obligation to pay” the government, in violation of § 3729(a)(1)(G). Accordingly, Count 4 is dismissed except as to the physician order and therapeutic claims against Ear Institute Defendants. V. FCA Conspiracy Claim (Count 3) Rule 9(b) governs Rockey’s conspiracy claim under 31 U.S.C. § 3729(a)(1)(C). See Cincinnati Life Ins. Co., 722 F.3d at 948; Borsellino, 477 F.3d at 507-08. “[G]eneral civil conspiracy principles apply” to FCA conspiracy claims. United States ex rel. Durcholz v. FKW Inc., 189 F.3d 542, 545 n. 3 (7th Cir.1999). “A civil conspiracy is a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damage.” Lenard v. Argento, 699 F.2d 874, 882 (7th Cir.1983) (internal quotation marks omitted, emphasis added). The italicized phrase is crucial, for it means that unlike criminal conspiracy, a civil conspiracy requires both an overt act and a resulting injury. See ibid.; cf. United States v. Feola, 420 U.S. *826671, 687, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975) (holding that a criminal “conspiracy to commit [an] offense is nothing more than an agreement to engage in the prohibited conduct”); United States v. Saybolt, 577 F.3d 195, 202 (3d Cir.2009) (holding that 18 U.S.C. § 286, the criminal false claims statute, does not require a showing of any overt act). Put differently, an actionable FCA conspiracy exists only where at least one of- the alleged co-conspirators actually committed an FCA violation. See United States ex rel. Farmer v. City of Houston, 523 F.3d 333, 343 (5th Cir.2008) (holding that an FCA relator “must demonstrate that defendants shared a specific intent to defraud the Government”) (internal quotation marks and brackets removed). Because Rockey has failed to state a claim for relief on her NPI claims on Counts 1, 2, and 4, the conspiracy allegation regarding those claims also fails. The same holds for the physician order and therapeutic claims against Trellis, though for a different reason: Rockey has failed to allege the existence of an agreement between Trellis and Ear Institute Defendants regarding those claims; as noted earlier, she has not even adequately alleged that Trellis knew that Ear Institute Defendants were committing those violations. See Durcholz, 189 F.3d at 546. So the only viable conspiracy claim is against Ear Institute Defendants on the physician order and therapeutic claims. Ear Institute Defendants have not argued whether they are even capable of conspiring among themselves, given that all of the individual physicians and audiologists were indisputably acting as employee-agents of, and within the scope of their employment with, the Ear Institute. Cf. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984) (“[Officers or employees of the same firm do not provide the plurality of actors imperative for a [Sherman Act] conspiracy.”); Shaun P. Martin, “Intracorporate Conspiracies,” 50 Stan. L. Rev. 399, 411 (1998) (“[B]eeause the acts of a corporate agent are the acts of the corporation, no plurality of autonomous agents exists when wholly intracorporate conduct is at issue. This theory posits that internal corporate discussions cannot give rise to corporate liability for conspiracy because only the actions of one entity— the corporation, acting through its agents — is alleged. The federal judiciary has adopted this ‘single entity’ view of intracorporate agreements in a variety of civil settings.”) (footnotes and paragraph break omitted). Ear Institute Defendants have therefore forfeited the argument for purposes of this motion to dismiss. See G & S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 534, 538 (7th Cir.2012) (“We have repeatedly held that a party waives an argument by failing to make it before the district court. That is true whether it is an affirmative argument in support of a motion to dismiss or an argument establishing that dismissal is inappropriate.”) (citations omitted). The motion accordingly is denied as to the conspiracy count against Ear Institute Defendants on the physician order and therapeutic claims. VI. FCA Retaliation Claim (Count 5) Rockey alleges that Ear Institute Defendants fired her in violation of the FCA’s anti-retaliation provision, which imposes liability for discharging an employee “because of lawful acts done by the employee ... in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.” 31 U.S.C. § 3730(h)(1). The provision protects employees’ “collecting information about a possible fraud, before they have put all the pieces of the puzzle together.” Fanslow v. Chicago Mfg. Ctr., Inc., 384 F.3d 469, 481 (7th Cir.2004). “[T]he stat*827ute covers investigations that, although reasonable in prospect, do not pan out and thus do not lead to actions under the False Claims Act.” Lang v. Nw. Univ., 472 F.3d 498, 494 (7th Cir.2006). “The statute does not, however, protect an employee who just imagines fraud without proof.” Fanslow, 384 F.3d at 481. Ear Institute Defendants argue that Rockey has not alleged that she engaged in any conduct “in furtherance of an action” under the FCA. Doc. 105 at 19-22.* In response, Rockey points to ¶¶ 144-146 of the operative complaint. Doc. 110 at 24. But those paragraphs simply state, in con-elusory fashion, the elements of a retaliation claim under the FCA. Doc. 102 at ¶¶ 144-146. Rockey also cites ¶¶ 102-108 of the complaint, which describe the October 26, 2010 meeting, the October 28 follow-up email, and details about her firing as evidence that she engaged in “protected activity” under the FCA. Doc. 110 at 24. But her alleged conduct was not “in furtherance of an action” under the FCA. Almost exactly on point is Brandon v. Anesthesia & Pain Management Associates, Ltd., 277 F.3d 936 (7th Cir.2002): What exactly had Brandon done that could have been seen as protected conduct or a “precursor to [FCA] litigation?” He had notified the shareholders that he was concerned about their billing practices. He had contacted Medicare for information about Medicare billing rules. But were any of these actions “in furtherance of’ a qui tam action? Did any of these actions put APMA on notice of the “distinct possibility” of a qui tam action? Under the circumstances here, we cannot find that APMA would have realized that it faced the “distinct possibility” of such an action. It is true that Brandon used terms like “illegal,” “improper,” and “fraudulent” when he confronted the shareholders about the billing practices. On the other hand, Brandon had never explicitly told the shareholders that he believed they were violating the FCA and had never threatened to bring a qui tam action. He never threatened to report their conduct to the government until after he was discharged. Brandon was simply trying to convince the shareholders to comply with the Medicare billing regulations. Such conduct is usually not protected by the FCA. Id. at 944-45 (citations omitted). Rockey alleges nothing more than that she, too, merely “notified [Ear Institute Defendants] that [s]he was concerned about their billing practices,” and “was simply trying to convince [Ear Institute Defendants] to comply with the Medicare billing regulations.” Ibid. Rockey never alleges that she told Ear Institute Defendants “that [s]he believed they were violating the FCA,” or that she ever “threatened to bring a qui tam action.” Ibid. Ignoring Ear Institute Defendants’ citations to Brandon, Doc. 105 at 20-21, Rockey does not even attempt to explain how her case is distinguishable, Doc. 110 at 24-25. That said, Rockey does argue that her actions comprised “efforts to stop 1 or more violations” of the FCA. Ibid. In Halasa v. ITT Educational Services, Inc., 690 F.3d 844 (7th Cir.2012), the Seventh *828Circuit stated: “In 2009, Congress amended the statute to protect employees from being fired for undertaking ‘other efforts to stop’ violations of the Act, such as reporting suspected misconduct to internal supervisors.” Id. at 847-48 (emphasis added). This statement may be dicta, given that the Seventh Circuit immediately followed it with: “For the purposes of this appeal, we proceed on the assumption that Halasa’s conduct falls within the scope of the statute’s amended language.” Id. at 848. Yet it is persuasive, especially given Rockey’s position within the company: what more can a lower-level employee like Rockey realistically do to stop a potential FCA violation than report it to a supervisor? Accordingly, Rockey’s FCA retaliation claim survives dismissal. Ear Institute Defendants might have argued that Rockey’s retaliation claim is untenable because she has not adequately alleged an FCA qui tarn violation on the NPI claims, and so, the argument would go, her reporting the NPI-related “misconduct” to Ear Institute Defendants is irrelevant, for her efforts could not have stopped a plausible violation of the FCA. And nowhere does the complaint state that she reported to Ear Institute Defendants any alleged misconduct related to the physician order or therapeutic claims. But Ear Institute Defendants do not make these arguments, Doc. 105 at 19-22; Doc. Ill at 22-23, and so they are forfeited for purposes of this motion to dismiss. See G & S Holdings, 697 F.3d at 538. VII. State Law Retaliatory Discharge Claim (Count 6) Rockey also brings a state law retaliatory discharge claim. Illinois is an at-will employment state, meaning that, as a general rule, “an employer may discharge an employee ... for any reason or for no reason.” Turner v. Mem’l Med. Ctr., 233 Ill.2d 494, 331 Ill.Dec. 548, 911 N.E.2d 369, 374 (Ill.2009) (internal quotation marks omitted); see also Brandon, 277 F.3d at 940. The Supreme Court of Illinois “has recognized the limited and narrow tort of retaliatory discharge as an exception to the general rule of at-will employment.” Jacobson v. Knepper & Moga, P.C., 185 Ill.2d 372, 235 Ill.Dec. 936, 706 N.E.2d 491, 492 (Ill.1998). “To state a valid retaliatory discharge cause of action, an employee must allege that (1) the employer discharged the employee, (2) in retaliation for the employee’s activities, and (3) that the discharge violates a clear mandate of public policy.” Turner, 331 Ill.Dec. 548, 911 N.E.2d at 374; see also Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622, 628 (7th Cir.2009); Blount v. Stroud, 232 Ill.2d 302, 328 Ill.Dec. 239, 904 N.E.2d 1, 9 (Ill.2009); Palmateer v. Int’l Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876, 877-78 (Ill.1981). Ear Institute Defendants argue that because the FCA’s anti-retaliation provision provides an adequate remedy for Rockey, she is precluded from pursuing a state law retaliatory discharge claim. Doc. 105 at 23 & n.17; Doc. Ill at 23. In support, they cite only United States ex rel. Chandler v. Hektoen Institute for Medical Research, 35 F.Supp.2d 1078 (N.D.Ill.1999), which observed that “Illinois courts would not expand the tort of retaliatory discharge to this case because the remedies embodied in the FCA serve as an adequate deterrent to future employer misconduct.” Id. at 1083. The Seventh Circuit’s decision in Brandon, however, undermines that portion of Chandler: But the existence of government-imposed criminal and civil sanctions for unlawful conduct cannot be the basis for inferring that an employee cannot state a claim for retaliatory discharge when the employer fires her in retaliation for reporting the unlawful conduct. In most “whistle-blower” retaliatory discharge *829claims, the employee is objecting to conduct by her employer that carries criminal or civil sanctions. If the district court’s view were correct, the whole “citizen crime-fighter” species of retaliatory discharge claim would become extinct in Illinois. We see nothing in the scraps of language from other courts that would support such an important shift in Illinois law, and the Illinois' Supreme Court itself has never taken such a step. 277 F.3d at 943 (citation omitted); see also Jacobson, 235 Ill.Dec. 936, 706 N.E.2d at 493 (holding that a retaliatory discharge claim is viable “when an employee is discharged in retaliation for the reporting of illegal or improper conduct, otherwise known as “whistle blowing’ ”) (citing Palmateer); Darchak, 580 F.3d at 628-29 (same). In light of Brandon, Chandler’s, alternative-remedy rationale is not a valid reason for dismissing Rockey’s state law retaliation claim. See United States ex rel. Geschrey v. Generations HealthCare, LLC, 2013 WL 1828070, at *2 (N.D.Ill. Mar. 22, 2013) (reaching the same conclusion after analyzing Brandon and Chandler). Ear Institute Defendants argue that Brandon is inapposite because there “it was ‘unclear’ whether plaintiffs activity fell within the FCA’s anti-retaliation provision,” while here it is clear that the FCA “will support a retaliatory discharge claim ... [where] a plaintiff makes an internal report of fraud.” Doc. Ill at 23. And indeed, this court declined to dismiss Rockey’s § 3730(h) claim in part because Halasa’s dicta (that “reporting suspected misconduct to internal supervisors” may be protected under the amended FCA, 690 F.3d at 847-48) is persuasive. Persuasive, but not binding; maybe this court has guessed wrong about what the Seventh Circuit would do when squarely presented with the issue. So, as in Brandon, whether the FCA provides Rockey with an adequate remedy remains “unclear,” and thus her possibly valid FCA retaliation claim is an insufficient ground on which to dismiss her state law retaliation claim. Ear Institute Defendants make no other arguments in favor of dismissal, and so the claim survives. Conclusion Trellis’s motion to dismiss is granted, as is Ear Institute Defendants’ motion to dismiss Counts 1 through 4 as to the NPI claims. Those claims are dismissed with prejudice; in granting Relators leave to file their second amended complaint rather than requiring them to respond to the motion to dismiss the first amended complaint, the court stated that it would be their “last and best opportunity to amend.” See Bogie v. Rosenberg, 705 F.3d 603, 608 (7th Cir.2013) (“When a complaint fails to state a claim for relief, the plaintiff should ordinarily be given an opportunity, at least upon request, to amend the complaint to correct the problem if possible.”). Ear Institute Defendants’ motion to dismiss is denied on Counts 1 through 4 as to the physician order and therapeutic claims, and also on Counts 5 and 6. Before 2009, the FCA provided that "in furtherance of an action under this section” included "investigation for, initiation of, testimony for, or assistance in an action filed or to be filed." 31 U.S.C. § 3730(h) (2006); see Pub. L. 111-21, 123 Stat. 1624-25'(May 20, 2009). That language is absent from the current version of the statute, which applies to Rockey’s suit. Neither Ear Institute Defendants nor Rockey, however, suggest that this deletion changed the meaning of "in furtherance of an action,” so the court will seek guidance from both pre- and post-2009 case law. | opinion_xml_harvard | 11,995 | 2022-07-25 04:25:15.558967+00 | 020lead | t | f | 7,312,497 | Feinerman | null | U | f | Published | 0 | United States ex rel. Rockey v. Ear Institute of Chicago, LLC | null | UNITED STATES of America EX REL. Holly A. ROCKEY, Relator/Plaintiff v. EAR INSTITUTE OF CHICAGO, LLC, Richard J. Wiet, Robert A. Battista, Arvind Kumar, Mark Wiet, Vasilike Rauch, Kathleen Highhouse, Jill Brodinski, Krystine Mullins, Carly Williams, Our Billing Department, Inc., d/b/a Trellis Health Billing, and Chicago Otology Group, LLC | null | null | null | null | null | null | null | null | null | 64,300,976 | 11 C 7258 | 0 | ilnd | FD | t | N.D. Illinois | District Court, N.D. Illinois |
6,659,520 | COMBINED-OPINION AND ORDER1 FIRESTONE, Judge. Pending before the court are the motions by the five petitioners, Claudia Rotoli, David Myers, Colleen Torbett, Mona Porter, and Allison Hager, for review of the special master’s decisions denying them compensation under the National Vaccine Injury Compensation Program. Rotoli v. Sec’y of HHS, No. 99-644V, 2008 WL 4483739 (Fed.Cl. Sept. 11, 2008); Myers v. Sec’y of HHS, No. 99-631V, 2008 WL 4483747 (Fed.Cl. Sept. 11, 2008); Torbett v. Sec’y of HHS, No. 99-660V, 2008 WL 4483738 (Fed.Cl. Sept. 11, 2008); Porter v. Sec’y of HHS, No. 99-639V, 2008 WL 4483740 (Fed.Cl. Sept. 11, 2008); Hager v. Sec’y of HHS, No. 01-307V, 2008 WL 4763736 (Fed.Cl. Oct. 15, 2008); National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”), 42 U.S.C. §§ 300aa-1 to -34 (2004). The petitioners allege that the hepatitis B vaccine, which they each received in three doses in the 1990s, caused them to suffer autoimmune hepatitis (“AIH”)2 and associat*77ed injuries. Joint hearings were held in the five cases on September 17-19, 2007, and March 10-11, 2008. In each ease, the special master found by a preponderance of the evidence that the petitioners had failed to establish a medical theory causally connecting the hepatitis B vaccine to AIH and that each individual petitioner had failed to demonstrate that the hepatitis B vaccine was the cause-in-fact of the injuries in his or her particular case. In their motions for review, the petitioners contend that the special master’s decisions were arbitrary, capricious, and not in accordance with law. Oral argument on the motions for review was heard on July 22, 2009. A single, consolidated Opinion and Order is being issued in all five cases because of the substantial overlap of the legal and factual issues in each. As discussed below, the court finds that the special master’s decisions were not in accordance with law. As a result, the court will issue its own findings of fact and conclusions of law in each of the five cases. STANDARDS OF REVIEW Under the Vaccine Act, in reviewing a special master’s decision on a motion for review, the Court of Federal Claims has jurisdiction to “undertake a review of the record of the proceedings” and may take any of the following actions: (A) uphold the findings of fact and conclusions of law of the special master and sustain the special master’s decision, (B) set aside any findings of fact or conclusion of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law, or (C) remand the petition to the special master for further action in accordance with the court's direction. 42 U.S.C. § 300aa-12(e)(2); see also RCFC, App. B Rule 27. Thus, “the Court of Federal Claims reviews the decision of the special master to determine if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” de Bazan v. Sec’y of HHS, 539 F.3d 1347, 1350 (Fed.Cir.2008) (quoting 42 U.S.C. § 300aa-12(e)(2)(B)). Specifically, “[fjact findings are reviewed ... under the arbitrary and capricious standard; legal questions under the ‘not in accordance with lav/ standard; and discretionary rulings under the abuse of discretion standard.”3 Munn, 970 F.2d at 870 n. 10, cited in, e.g., Pafford v. Sec’y of HHS, 451 F.3d 1352, 1355 (Fed.Cir.2006). The Federal Circuit has held that, [i]n general, reversible error is extremely difficult to demonstrate if the special master has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision- [I]t is not ... the role of [the reviewing] court to reweigh the factual evidence, or to assess whether the special master correctly evaluated the evidence. And of course [the reviewing court does] not examine the probative value of the evidence or the credibility of the witnesses. These are all matters within the purview of the fact finder. Lampe v. Sec’y of HHS, 219 F.3d 1357, 1360 (Fed.Cir.2000) (internal quotations omitted) (citing Hines v. Sec’y of HHS, 940 F.2d 1518, 1528 (Fed.Cir.1991); Munn, 970 F.2d at 871). However, as the Federal Circuit recently cautioned, a special master may not “frame her rejection of [a petitioner’s] theory of causation under the rubric of a ‘credibility’ determination.” Andreu v. Sec’y HHS, 569 F.3d 1367, 1379 (Fed.Cir.2009). As the Federal Circuit explained, While considerable deference must be accorded to the credibility determinations of *78special masters, see Bradley v. Sec’y of [HHS], 991 F.2d 1570, 1575 (Fed.Cir.1993), this does not mean that a special master can cloak the application of an erroneous legal standard in the guise of a credibility determination, and thereby shield it from appellate review. A trial court makes a credibility determination in order to assess the candor of a fact witness, not to evaluate whether an expert witness’ medical theory is supported by the weight of epidemiological evidence. See Lampe ..., 219 F.3d [at] 1373-74 ... (Plager, J., dissenting) (noting that the issue is not one of “credibility” when a highly qualified expert presents a biologically plausible theory linking a claimant’s injury to the DPT vaccine). Andreu, 569 F.3d at 1379 (emphasis added). If the Court of Federal Claims concludes that the special master’s decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, the Court of Federal Claims may make its own factual findings, 42 U.S.C. § 300aa-12(e)(2)(B); de Bazan, 539 F.3d at 1350-51; Munn, 970 F.2d at 871-72, “[s]o long as the record contain[s] sufficient evidence upon which to base predicate findings of fact and the ultimate conclusion of causation.” Althen v. Sec’y of HHS, 418 F.3d 1274, 1281 (Fed.Cir.2005). CAUSATION STANDARDS UNDER THE VACCINE ACT The Vaccine Act created the National Vaccine Injury Compensation Program (“Vaccine Program”), “under which compensation may be paid for a vaccine-related injury or death.” 42 U.S.C. § 300aa-10(a); Walther v. Sec’y of HHS, 485 F.3d 1146, 1149 (Fed.Cir.2007). As part of the Vaccine Program, the Vaccine Injury Table (“Table”) was developed, listing vaccines, injuries resulting therefrom, and time periods for onset of those injuries “for purposes of receiving compensation under the Program.” 42 U.S.C. § 300aa-14; 42 C.F.R. § 100.3 (2009). In a so-called “Table case,” “a petitioner who shows that he or she received a vaccination listed in the [Table], and suffered an injury listed in the Table within the time period prescribed by the Table gains a presumption of causation.” Walther, 485 F.3d at 1149 (citing 42 U.S.C. § 300aa-ll(c)(1)(C)(I); Pafford, 451 F.3d at 1355). By contrast, if a petitioner received a vaccination listed in the Table but did not suffer an injury listed therein, the petitioner is considered to have an “off-Table case.” In cases involving off-Table injuries, there is no presumption of causation. Under the Vaccine Act, a petitioner claiming that she “sustained, or had significantly aggravated, any illness, disability, injury, or condition not set forth in the Vaccine Injury Table” must show that the injury “was caused by a vaccine” listed in the Table. 42 U.S.C. § 300aa-11(c)(1)(C)(ii)(I). Thus, in an off-Table case, the petitioner must prove “causation-in-fact,” de Bazan, 539 F.3d at 1351, meaning that she “suffered an injury that was actually caused by the vaccine.” Walther, 485 F.3d at 1149 (emphasis added). Because AIH is not listed in the Table as a covered illness, disability, injury or condition for the hepatitis B vaccine, 42 C.F.R. § 100.3, these five cases are off-Table cases, and the petitioners must prove causation-in-faet. In Althen v. Secretary of Health and Human Services, the Federal Circuit clarified that, to meet her burden to prove causation-in-fact, a petitioner must show by preponderant evidence that the vaccination brought about her injury by providing: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury;4 and (3) a showing of a *79proximate temporal relationship between vaccination and injury.5 418 F.3d at 1278; see 42 U.S.C. § 300aa-13(a)(1)(A) (preponderance of evidence standard as to petitioner). The three factors of the Althen test make up the petitioner’s pri-ma facie ease for entitlement to compensation.6 de Bazan, 539 F.3d at 1352. Once the petitioner has met her burden, “the burden shifts to the government to prove by a preponderance of the evidence that the petitioner’s injury is due to factors unrelated to the ... vaccine” (“alternative causation”), de Bazan, 539 F.3d at 1352 (internal quotation omitted) (citing 42 U.S.C. § 300aa-13(a)(1)(B) (preponderance of evidence standard as to causation by factors unrelated to the vaccine); Walther, 485 F.3d at 1150). The Federal Circuit “has interpreted the ‘preponderance of the evidence’ standard referred to in the Vaccine Act as one of proof by a simple preponderance, of ‘more probable than not’ causation.” Althen, 418 F.3d at 1279. Of course, “[t]he government, like any defendant, is permitted to offer evidence to demonstrate the inadequacy of the petitioner’s evidence on a requisite element of the petitioner’s case-in-chief.” de Bazan, 539 F.3d at 1353. However, the Federal Circuit has emphasized that “ ‘close calls regarding causation are resolved in favor of injured claimants.’” Andreu, 569 F.3d at 1378 (quoting Capizzano, 440 F.3d at 1325-26). Importantly, preponderance of the evidence does not require “scientific certainty,” and the findings of the special master or this court need not “meet the standards of the laboratorian.” Bunting v. Sec’y of HHS, 931 F.2d 867, 873 (Fed.Cir.1991) (quotation omitted). Instead, the Federal Circuit has held, [c]ausation in fact under the Vaccine Act is ... based on the circumstances of the particular case, having no hard and fast per se scientific or medical rules. The determination of causation in fact under the Vaccine Act involves ascertaining whether a sequence of cause and effect is “logical” and legally probable, not medically or scientifically certain.... Thus, for example, causation can be found in vaccine cases based on epidemiological evidence and the clinical picture regarding the particular child without detailed medical and scientific exposition on the biological mechanisms. Knudsen, 35 F.3d at 548-49 (citations omitted). The fact that a link between a vaccine and a particular injury is a “sequence hitherto unproven in medicine” will not bar recovery, because “the purpose of the Vaccine Act’s preponderance standard is to allow the finding of causation in a field bereft of complete and direct proof of how vaccines affect the human body.”7 Althen, 418 F.3d at 1280. As the Federal Circuit has explained, in contrast to medical research, in which *80“attribution of causation is typically not made until a level of very near certainty — perhaps 95% probability — is achieved[,] ... determination of causation in fact under the Vaccine Act involves ascertaining whether a sequence of cause and effect is ‘logical’ and legally probable, not medically or scientifically certain.'” Andreu, 569 F.3d at 1380 (both emphases in original; quotations omitted); see also Bunting, 931 F.2d at 873 (“The association of the administration of the ... vaccine with the onset of these illnesses is not negated by the Medical Review’s assertion of the absence of a ‘controlled study.’ ”). Thus, circumstantial evidence may be used to prove causation by preponderant evidence, and “ ‘identification and proof of specific biological mechanisms’ ” are not required. Althen, 418 F.3d at 1280 (quoting Knudsen, 35 F.3d at 549 (“The Court of Federal Claims is ... not to be seen as a vehicle for ascertaining precisely how and why ... vaccines sometimes destroy the health and lives of certain children while safely immunizing most others. This research is for scientists, engineers, and doctors working in hospitals, laboratories, medical institutes, pharmaceutical companies, and government agencies.”)); Capizzano, 440 F.3d at 1324. Moreover, pursuant to 42 U.S.C. § 300aa-13(a)(1), a finding of preponderant evidence of causation-in-fact must be substantiated by medical records or by medical opinion.8 Althen, 418 F.3d at 1279. Thus, a finding of causation may be based on a reliable medical opinion alone, even where there are no supporting studies; medical literature supporting causation-in-fact is not required, nor is medical documentation.9 Althen, 418 F.3d at 1280. DISCUSSION I. The Special Master’s Rejection of the Petitioners’ Evidence of Causation Violated the Federal Circuit’s Standards Under Andreu. As described above, the Federal Circuit recently held in Andreu v. Secretary of Health and Human Services that, “[w]hile considerable deference must be accorded to the credibility determinations of special masters, this does not mean that a special master can cloak the application of an erroneous legal standard in the guise of a credibility determination, and thereby shield it from appellate review.” 569 F.3d at 1379 (citation omitted). The Federal Circuit in Andreu clarified that “[a] trial court makes a credibility determination in order to assess the candor of a fact witness, not to evaluate whether an expert witness’ medical theory is supported by the weight of the epidemiological evidence.” Id. (emphasis added) (citing Lampe, 219 F.3d at 1373-74 (Plager, J., dissenting) (noting that the issue is not one of “credibility” when a highly qualified expert presents a biologically plausible theory linking a claimant’s injury to the DPT vaccine)). In these five cases, the special master’s analysis of the petitioners’ evidence of causation ran afoul of the Federal Circuit’s standards regarding credibility determinations. Just as the special master did in Andreu, the special master in these cases erroneously “eloak[ed]” much of his rejection of the petitioners’ theory of causation “under the rubric of a ‘credibility’ determination” regarding Dr. Joseph A. Bellanti, the petitioners’ expert witness. See Andreu, 569 F.3d at 1379. *81These were not cases in which the special master was “assessing the candor of a fact witness,” in which a credibility determination might have been appropriate. See id. Instead, Dr. Bellanti was a highly qualified expert witness whose extensive credentials are not in dispute. At the time of the hearings in this ease, Dr. Bellanti was a Professor of Microbiology and Immunology and Pediatrics at Georgetown University Medical Center. Tr. 6; e.g., Rotoli Ex. 47 (Curriculum Vitae of Dr. Bellanti). He was also the Director of the International Center for Interdisciplinary Studies of Immunology at Georgetown University Medical Center. Tr. 6-7; e.g., Rotoli Ex. 47. He was also the Director of the Division of Immunology and Virology at the Department of Laboratory Medicine at the Georgetown University Hospital. E.g., Rotoli Ex. 47. He was involved in research, education, and in-patient care at Georgetown. Tr. 7. Among other professional organizations, Dr. Bellanti served on the American Board of Allergy and Immunology, where he was the pediatric component chairman alongside respondent’s expert, Dr. Burton Zweiman, who served as Dr. Bellanti’s counterpart in internal medicine. Tr. 11. Though Dr. Bellanti is admittedly not a gas-troenterologist nor a hepatologist, he is an expert in the field of immunology and is qualified to discuss the pathways of autoimmune disease.10 As the Federal Circuit emphasized, where a highly qualified expert such as Dr. Bellanti presents a biologically plausible theory of causation in a vaccine case, the issue is not one of credibility. Andreu, 569 F.3d at 1379 (citing Lampe, 219 F.3d at 1373-74). In these cases, however, the special master erroneously founded his rejection of the petitioners’ theory of causation on his assessment of Dr. Bellanti’s “poor” credibility. E.g., Rotoli 2008 WL 4483739 at *7. The special master’s discussion of Dr. Bellanti’s credibility permeated his analysis of the petitioners’ claims. Most egregiously, the special master included a nine-page section — a substantial portion of the total length of each decision — entitled “Additional Comments Regarding Dr. Bellanti,” in which he questioned not only “Dr. Bellanti’s persuasiveness but also his truthfulness” as a result of various weaknesses in the evidence underlying Dr. Bellanti’s claims and Dr. Bellanti’s “demean- or.” E.g., Rotoli 2008 WL 4483739 at *22-30; see also, e.g., id. at *29 (“[T]he evidence from each case solely supports a finding that Dr. Bellanti lacks credibility.”). In addition to the portion of each decision devoted expressly to Dr. Bellanti’s credibility, references to Dr. Bellanti’s credibility also pervaded the special master’s analyses of the medical theory proposed by all five petitioners and of the specific evidence of causation in each of the five cases.11 In reviewing the evidence (including the medical literature) in the five cases, the special master — rather than simply evaluating whether Dr. Bellanti’s medical theory of causation was supported by the weight of that evidence — went so far as to conclude that the “questions about the basis for Dr. Bellanti’s statements ... have led to a question about Dr. Bellanti’s veracity.” E.g., Rotoli 2008 WL 4483739 at *30 (emphasis added). Indeed, by couching his rejection of Dr. Bellanti’s testimony in terms of credibility, the special master apparently expected his analysis to be “virtually not reviewable on appeal.” See, e.g., Rotoli, 2008 WL 4483739 at *4 (citing Bradley, 991 F.2d at 1575). In view of the foregoing, the court finds that the special master erroneously used his assessment of Dr. Bellanti’s eredibil*82ity — an assessment that should be reserved for “assessing the candor of a fact witness”— as a basis for rejecting Dr. Bellanti’s expert testimony regarding causation, in violation of Andreu, 569 F.3d at 1379. Moreover, the court finds that the pervasiveness of the comments regarding Dr. Bellanti’s credibility throughout the special master’s decisions— both in his discussion of the medical theory put forth by all five petitioners and in his discussions of the specific evidence of causation in each of the five individual eases— makes it impossible to review the special master’s evaluation of the evidence separately from his erroneous credibility determination. The special master’s error has tainted his entire causation analysis. Accordingly, the court finds that the special master’s framing of his rejection of the petitioners’ theory of causation “under the rubric of a ‘credibility’ determination,” see Andreu, 569 F.3d at 1379, constituted a legal error allowing the court to set aside the special master’s findings under 42 U.S.C. § 300aa-12(e)(2)(B). Rather than remand to the special master for a redetermination regarding causation, the court will issue its own findings in these cases, as authorized under 42 U.S.C. § 300aa-12(e)(2)(B) (permitting the Court of Federal Claims to “issue its own findings of fact and conclusions of law”) and under RCFC, App. B Rule 27 (same). The Federal Circuit has recognized that the Court of Federal Claims may make its own findings of fact in circumstances in which it has concluded that the special master’s decision was arbitrary and capricious or not otherwise in accordance with law “and that it is necessary for the [Court of Federal Claims] to substitute its own findings of fact.” Munn, 970 F.2d at 870. While remand to the special master for a redetermination regarding causation would ordinarily be appropriate, given the protracted, ten-year history of this litigation and the impossibility of separating the special master’s error regarding Dr. Bellan-ti’s credibility from the rest of the special master’s analysis, the court has deemed it appropriate it to make its own findings as to causation in these five cases. Moreover, because the credibility of fact witnesses is not at issue in these cases, as discussed above, and the court has the benefit of a thorough record, including the hearing transcript, the expert reports, the medical literature, and the petitioners’ medical records, the court is well-situated to make such findings. Althen, 418 F.3d at 1281 (“[B]ecause the special master’s decision was not in accordance with law, the trial court was permitted to review the evidence anew and come to its own conclusion .... So long as the record contained sufficient evidence upon which to base predicate findings of fact and the ultimate conclusion of causation, which it did, the trial court was not required to remand.” (citations and footnote omitted)). Accordingly, the court’s findings of fact and conclusions of law regarding causation are set forth, below. II. The Court’s Findings as to Causation-in-Fact Having determined, as discussed above, that the special master’s findings were irremediably tainted with a legally improper credibility determination, the court will now make its own findings of fact and conclusions of law regarding the merits of the petitioners’ claims that the hepatitis B vaccine was the cause-in-fact of their injuries. To that end, the court will first evaluate the petitioners’ proposed medical theory by which the hepatitis B vaccine can cause AIH, for which the discussion will be the same in all five cases, followed by an evaluation of the evidence of causation in each of the five individual cases. A. Medical Theory The first prong of the Althen causation-in-fact test — preponderant evidence of “a medical theory causally connecting the vaccination and the injury,” Althen, 418 F.3d at 1278 — addresses whether the vaccine at issue can cause the type of injury alleged. Pafford, 451 F.3d at 1355-56. Because the petitioners and the government in all five of the instant cases relied upon essentially the same expert witnesses and supporting evidence as to whether the vaccine can cause the injury alleged, this portion of the court’s analysis applies to all of the petitioners whose claims are included in this Opinion and Order. *83For the reasons set forth below, the court finds that the petitioners met their burden to demonstrate a reliable medical theory causally connecting the hepatitis B vaccine with AIH. Specifically, the court finds that the petitioners set forth sufficient evidence that the hepatitis B virus can cause AIH, and therefore the hepatitis B vaccine may also be presumed to be capable of doing so. Furthermore, the court finds that the petitioners presented sufficient evidence that the hepatitis B vaccine could cause AIH via dysfunction of the CD4 + regulatory T cells in genetically predisposed individuals. 1.The Petitioners’ Proposed Medical Theory In these five eases, the petitioners submitted the expert report and testimony of Dr. Bellanti, whose expert credentials as an immunologist have already been described, above. In his report, Dr. Bellanti stated, Based upon my review of the experimental and clinical studies related to the environmental, genetic, and immunologic factors that play a role in the pathogenesis of autoimmune liver disease, it is my opinion to a reasonable degree of medical and scientific probability that [hepatitis B vaccine] can cause or significantly contribute to the development of [AIH].12 Rotoli Ex. 46 at 6.13 Specifically, Dr. Bellanti stated, There are a number of reasons for my opinion. 1. Infection with each of the hepatitis vi-rases (A, B and C) has been reported to cause [AIH]. Specifically germane to the present cases is the fact that infection with hepatitis B virus is known to cause [AIH], and generally, if a wild virus infection can cause an autoimmune disease, it should be assumed that the vaccine can also lead to autoimmunity in some susceptible individuals. Since vaccines include the infecting agents (whether attenuated, killed, modified, or recombinant) that can cause autoimmunity, by the same token, through any of the mechanisms discussed below, the vaccines can also stimulate autoreactivity; 2. Vaccines in general can cause autoimmune conditions, and [AIH] is such a condition; 3. There are other components in the [hepatitis B vaccine], besides the [hepatitis B] surface antigen, that can cause autoimmune reactions in some individuals, such as yeast, aluminum and thimerosal. It is biologically plausible for [hepatitis B vaccine] to result in [AIH] in some susceptible individuals; and 4. There are reports in the literature of positive rechallenge14 where [hepatitis B vaccine] has been reported to cause various autoimmune conditions. Rotoli Ex. 46 at 3. In support of his contention that the hepatitis B virus is known to cause AIH, Dr. Bellanti pointed to the reference to such a connection in a chapter by Michael P. Manns et al. in a textbook edited by Noel Rose and Ian Maekay. Rotoli Ex. 70 at 511 (“Autoimmune Diseases: The Liver,” by Michael P. Manns et al., in The Autoimmune Diseases, Noel Rose & Ian Maekay, eds. (3d ed. 1998) (“[AIH] is one entity of chronic hepatitis. Most cases of chronic hepatitis are due to viral infections caused by hepatitis viruses B, C, and D.”)). The assertion in the textbook was based on two articles, one by Hopf and Moller from 1984 and the other by Laskus and Slusarczky from 1989. Dr. Bellanti also pointed to an article by Dr. Edward L. Krawitt, who is among the world’s leading researchers in AIH, whose 2006 review of “Autoimmune Hepatitis” in the New England Journal of Medicine, cited by all of the experts in this case, states that “the most convincing evidence [identifying an infectious agent triggering AIH] is related to hepatitis *84viruses.” Rotoli Ex. 46 Tab A at 1 (emphasis added). Finally, Dr. Bellanti relied upon two additional articles in support of his assertion that the hepatitis B viras can cause AIH — one by Antal Csepregi et al. from 2005, reporting one case of exacerbation of AIH with administration of the Twinrix vaccine, which contains a vaccine against both hepatitis A and hepatitis B (Rotoli Ex. 77), and the other by Valerio Nobili et al. from 2006, reporting one case of a child in Senegal who had both a chronic hepatitis B infection and AIH (Rotoli Ex. 83). Dr. Bellanti then described various mechanisms by which infections and vaccines can cause autoimmune disease — molecular mimicry, bystander activation, polyclonal activation, and dysfunction of CD4 + regulatory T cells (or “T-reg cell dysfunction”). Rotoli Ex. 46 at 4. Over the course of the hearings in these cases, the last theory, CD4+ regulatory T cell dysfunction, rose to the forefront as a promising theory by which AIH might be triggered by a vaccine such as hepatitis B.15 With regard to the T-reg cell theory in particular, Dr. Bellanti explained, A more recent theoretical mechanism involves participation of CD4 + regulatory T cells. These have been identified as the cells that maintain immunologic tolerance, the property of the immune system which distinguishes one’s own tissues as self from those exogenous materials which are recognized as “non-self.” The failure of, or escape from, normal suppression of reactivity against “self’ has an essential role in the development of autoimmune disease. Studies suggest that a decrease in the number of regulatory T cells and their ability to expand may lead to autoimmune liver disease. Rotoli Ex. 46 at 4. Dr. Bellanti explained how the CD4 + regulatory T cell theory might be linked to the hepatitis B vaccine thus: [T]he regulation of the immune system, how antigen is recognized, processed and delivered determines in all cases the ultimate success or failure of elimination, and that ties in with autoimmune disease.... [I]n certain genetically predisposed individuals, their response to certain vaccines leads to adverse effects due to this genetic inability to handle the antigen as [compared with] that bell-shaped curve — 95-99 percent of the population. There [are] these outliers that are responding differently, and those are the unfortunate ones that get into trouble with vaccines. Tr. 108-09. In support of the T-reg cell dysfunction theory, Dr. Bellanti pointed to an article by Maria Serena Longhi et al., entitled “Impairment of CD4+ CD25+ regulatory T-cells in autoimmune liver disease,” 41 Journal of Hepatology 31-37 (2004) (“Longhi article”). Rotoli Ex. 97. The Longhi article found that T-reg cells were significantly lower in number and ability to expand in patients with autoimmune liver disease than in controls. Id. 2. The Respondent’s Evidence The respondent, in turn, submitted the expert reports and testimony of Dr. Raymond Koff, a gastroenterologist and Clinical Professor of Medicine at the University of Connecticut School of Medicine, Rotoli Ex. D, and Dr. Burton Zweiman, an Emeritus Professor of Medicine and Neurology at the University of Pennsylvania School of Medi*85cine.16 Rotoli Ex. B. Both Dr. Koff and Dr. Zweiman testified that they believe that medical and scientific evidence has not established that the hepatitis B vaccine can cause AIH. Dr. Zweiman indicated that he would require stronger epidemiological evidence, such as an epidemiological study demonstrating statistical significance, before he would be convinced that the hepatitis B vaccine causes AIH. Tr. 169-71. Dr. Zweiman also indicated that, contrary to Dr. Bellanti’s assertion, there is much less convincing evidence that chronic AIH results from chronic hepatitis B infection than from hepatitis A or hepatitis C infection. Similarly, Dr. Koff stated that there is no support in the literature “for the concept that acute hepatitis B virus infection can be a trigger of [AIH].” Rotoli Ex. C at 2. With regard to Dr. Bellanti’s reehallenge assertion, Dr. Zweiman pointed to a 2005 study by J. Beran et al. in the Central European Journal of Public Health, in which “a group of patients with pre-exis-tent [chronic AIH] experienced no worsening of their [chronic AIH] following receipt of the [hepatitis B vaccine] injections.”17 Rotoli Ex. A at 4; Rotoli Ex. 1004. Finally, with regard to the T-reg cell dysfunction theory, Dr. Zweiman noted that Dr. Bellanti had “discussed nicely” the T-regulatory cell theory, Tr. 863, but emphasized that the Longhi article studied people who had AIH, not people who received the hepatitis B vaccine, and that “nobody has ever reported whether or not hepatitis immunization induces alteration of immunoregulatory T-cells.” Tr. 1100, 1132. 3. The Petitioners Met Their Burden to Provide a Medical Theory Causally Connecting the Hepatitis B Vaccine to AIH. As noted above, to meet their burden as to eausation-in-fact, petitioners must demonstrate a medical theory causally connecting the vaccine and the alleged injury that is “supported by reputable medical or scientific explanation, i.e., evidence in the form of scientific studies or expert medical testimony.” Althen, 418 F.3d at 1278 (emphasis added; quotation omitted). In these five cases, the petitioners put forth the expert medical testimony of Dr. Bellanti, who stated that, in his opinion, the hepatitis B vaccine can cause or significantly contribute to the development of AIH. Dr. Bellanti offered a number of reasons for his opinion— most significantly that, in light of the evidence that the hepatitis B viras can cause AIH, the hepatitis B vaccine can also be presumed to be capable of causing AIH, and that vaccine-induced AIH might be brought about by or associated with the dysfunction of the CD4+ T-regulatory cells in genetically susceptible individuals. In turn, in support of each of the reasons for his opinion, Dr. Bellanti offered medical literature and/or scientific studies. The court finds that the evidence presented by the petitioners is sufficient to meet their burden with regard to a medical theory causally linking the hepatitis B vaccine with AIH. The respondent’s attack of the petitioners’ evidence of a medical theory was largely focused on the quantum of evidence in the scientific literature underlying Dr. Bellanti’s assertions. They did not present any medical literature that negated Dr. Bellanti’s medical theory. Instead, they emphasized the fact that no link between the hepatitis B vaccine and AIH has been directly proven in the literature. In addition, the respondent attempted to undermine the articles offered by the petitioners in support of the inferen*86tial building blocks of Dr. Bellanti’s theory. For example, with regard to Dr. Bellanti’s assertion, based on an established textbook, that the hepatitis B virus has been shown to cause AIH, the respondent’s expert, Dr. Koff, questioned the findings of each of the articles underlying the statement in the Rose and Mackay textbook to that effect, as well as of each of the other supporting articles put forth by the petitioners.18 The respondent concluded that the paucity of reports of the hepatitis B virus causing AIH in the literature meant that a causal relationship was not indicated. Likewise, with regard to Dr. Bellanti’s assertion that the hepatitis B vaccine might trigger AIH by way of dysfunction in the CD4-I- T-regulatory cells in genetically susceptible individuals, the respondent did not contend that the theory was not sound. Instead, the respondent’s expert, Dr. Zweiman, testified that “nobody has ever reported whether or not hepatitis immunization induces alteration of immunoregulatory T-cells.” Tr. 1100,1132. The court is not persuaded by the respondent’s attempt to undermine the petitioners’ medical theory by chipping away at the quantity of evidence in the literature supporting Dr. Bellanti’s assertions. As the Federal Circuit has recently emphasized, ‘“in a field bereft of complete and direct proof of how vaccines affect the human body,’ a paucity of medical literature supporting a particular theory of causation cannot serve as a bar to recovery." Andreu, 569 F.3d at 1379 (emphasis added) (quoting Althen, 418 F.3d at 1280; citing Capizzano, 440 F.3d at 1324, and Daubert, 509 U.S. at 593, 113 S.Ct. 2786 (“[I]n some instances well-grounded but innovative theories will not have been published. ... Some propositions, moreover, are too particular, too new, or of too limited interest to be published.”)). Similarly, the Federal Circuit has long held that a petitioner may recover even where the causal link between the vaccine and the particular injury was “a sequence hitherto unproven in medicine.” Althen, 418 F.3d at 1280. In light of the Federal Circuit’s clear guidance that a medical theory can be found even where scientific studies on the subject are limited and direct proof is nonexistent, the court finds that in these eases, Dr. Bellanti’s expert testimony regarding a medical theory causally connecting the hepatitis B vaccine and AIH was supported by sufficient scientific evidence to sustain a finding that the petitioners met their preponderant evidence burden. Specifically, with regard to Dr. Bellanti’s assertion that because the hepatitis B virus has been shown to cause AIH, the hepatitis B vaccine can be presumed to be similarly capable of causing AIH, contrary to the respondent’s view, the fact that only a handful of cases linking the hepatitis B vims and AIH have been reported is not fatal to Dr. Bellanti’s claim. As the petitioners correctly argue, the respondent’s expert, Dr. Koff, himself explained that the undisputed link between the hepatitis A virus and AIH is supported by an equally small number of ease reports. In Dr. Koffs words, “[i]f you *87look at the totality of the literature in which hepatitis A virus infection has been followed by AIH, you can put that number of cases in a corner of your eye, and you won’t feel it. There may be six or seven cases.” Tr. 429. Nonetheless, it is undisputed that that small number of cases is sufficient to support an accepted link between the hepatitis A virus and AIH. By the same token, in support of Dr. Bellanti’s expert opinion that the hepatitis B virus can cause AIH, the petitioners identified a reference in the textbook edited by Rose and Mackay stating that the hepatitis B virus has been implicated in chronic AIH, which in turn was supported by articles by Hopf and Moller and by Laskus and Slusarezky. When asked to identify further support for the proposition, Dr. Bellanti submitted additional case reports in articles by Csepregi and Nobili. Thus, the court finds that the petitioners submitted sufficient medical evidence of Dr. Bellanti’s assertion regarding the hepatitis B virus. Moreover, as the Federal Circuit has explained, in contrast to medical research, in which “attribution of causation is typically not made until a level of very near certainty — perhaps 95% probability — is achieved[,] ... determination of causation in fact under the Vaccine Act involves ascertaining whether a sequence of cause and effect is ‘logical’ and legally probable, not medically or scientifically certain.’ ” Andreu, 569 F.3d at 1380 (both emphases in original; quotations omitted). As a result, the court finds that, although Dr. Bellanti’s expert testimony that the hepatitis B vaccine can be presumed to be capable of causing AIH based on the link between the hepatitis B virus and AIH has not been directly proven in the literature, where, as here, there is no evidence to negate the theory, the petitioners have met their burden of demonstrating that it is “logical and legally probable,” regardless of whether it has been shown to be “medically or scientifically certain.” Andreu, 569 F.3d at 1380 (quotation and emphasis omitted). The court also finds that the petitioners have set forth sufficient evidence in support of Dr. Bellanti’s expert testimony that AIH might be brought about by or associated with the dysfunction of the CD4+ T-regulatory cells in genetically susceptible individuals, whose susceptibility might, in turn, be triggered by the introduction of the hepatitis B vaccine. As an initial matter, the court reiterates that, under Federal Circuit precedent, the petitioners are not required to provide “detailed medical and scientific exposition on the biological mechanisms.” Knudsen, 35 F.3d at 548-49 (citations omitted); see also Althen, 418 F.3d at 1280 (“identification and proof of specific biological mechanisms” are not required). In these cases, Dr. Bellanti indicated that research regarding the function and dysfunction of T-regulatory cells including CD4 + cells is a “recent theoretical mechanism” currently being explored by scientists. Rotoli Ex. 46 at 4. Especially in light of the Longhi article connecting T-regulatory cell dysfunction with AIH, Dr. Zwei-man did not disagree with Dr. Bellanti that CD4+ T-regulatory cell dysfunction was a possible pathway by which the hepatitis B vaccine might be found to cause AIH. Instead, he merely testified that “nobody has ever reported whether or not hepatitis immunization induces alteration of immunoregula-tory T-cells.” Tr. 1100, 1132. Again, the court finds that, although Dr. Bellanti’s theory that CD4+ T-regulatory cell function could play a role in causally linking the hepatitis B vaccine and AIH has not, as Dr. Bellanti freely admitted, been directly proven by scientific studies, the petitioners have met their burden of demonstrating that the theory is “logical and legally probable,” regardless of whether it has been shown to be “medically or scientifically certain.” Andreu, 569 F.3d at 1380 (quotation and emphasis omitted). Finally, the respondent’s expert, Dr. Zwei-man, indicated that he would require strong epidemiological evidence, such as a study demonstrating statistical significance, before he could be convinced that the hepatitis B vaccine causes AIH. Tr. 169-71. However, the Federal Circuit has definitively held that “requiring ‘epidemiologic studies ... or general acceptance in the scientific or medical communities ... impermissibly raises a claimant’s burden under the Vaccine Act and hinders the system created by Congress, in which close calls regarding causation are resolved in favor of injured claimants.” An*88dreu, 569 F.3d at 1380 (quoting Capizzano, 440 F.3d at 1325-26). Accordingly, the court will not hold the petitioners to the impermis-sibly high burden of proof urged by the respondent. In conclusion, for the reasons set forth above, the court finds that the petitioners have met their burden under Al-then to provide a logical and legally probable medical theory causally connecting the hepatitis B vaccine with AIH. See Andreu, 569 F.3d at 1380; Althen, 418 F.3d at 1278. B. Specific Causation Having found, as discussed above, that the petitioners have set forth sufficient evidence to meet their burden as to a medical theory, the court will now consider the evidence regarding the two remaining prongs of Al-then — “a logical sequence of cause and effect showing that the vaccination was the reason for the injury” and “a showing of a proximate temporal relationship between vaccination and injury” — in each of the five individual cases. 418 F.3d at 1278. The court’s facts and findings specific to each petitioner will be addressed in detail below. 1. Claudia Rotoli (No. 99-644V) a) Facts and Expert Testimony The undisputed facts relevant to Claudia Rotoli’s case are briefly summarized below. Ms. Rotoli was born on January 25, 1969. Between March 1984 and 1994, she was treated for various conditions, including dry, itchy skin and rashes, neck, back and shoulder pain, and anxiety and depression. In 1994, Ms. Rotoli decided to attend school to become a medical assistant. In preparation for her enrollment, she received three doses of the hepatitis B vaccine, beginning on October 10, 1994. On October 21, 1994, Ms. Rotoli reported coughing, congestion, fever, and later reported a low grade fever and episodes of shakes and extreme weakness. Ms. Rotoli received her second dose of the hepatitis B vaccine on November 9, 1994. Approximately two months later, she was treated for a prolonged upper respiratory infection, bronchitis and conjunctivitis. A June 1995 report indicated that Ms. Rotoli started having pain in her right upper quadrant in May 1995. On May 1, 1995, Ms. Rotoli received her third dose of the hepatitis B vaccine. On May 9, 1995, Ms. Rotoli donated blood, and on May 19, 1995, she was informed by the blood service that her blood contained an elevated amount of the enzyme alanine ami-notransferase (“ALT”), elevation of which is consistent with some forms of liver disease. Blood tests from May 25,1995 confirmed Ms. Rotoli’s elevated ALT level and indicated other enzymes were also elevated. At that point, a doctor diagnosed hepatitis of unknown origin. Blood tests from May 31, 1995 also showed non-normal liver function. The May 31, 1995 tests also indicated that she did not develop antibodies to the hepatitis B surface antigen, meaning that she did not respond to the vaccine.19 On June 20,1995, Ms. Rotoli saw Dr. Katz, a gastroenterologist, who thought that Ms. Rotoli might have AIH and ordered tests for anti-nuclear antibodies (“ANA”) to exclude this diagnosis. Ms. Rotoli’s ANA test was positive. On June 29, 1995, a biopsy of Ms. Rotoli’s liver revealed that she had chronic, active hepatitis with fibrosis and moderate necrosis. In July 1995, Dr. Katz diagnosed Ms. Rotoli with AIH and started her on prednisone, a steroid used to moderate the reaction of the immune system; Dr. Katz added Imuran later that month. Ms. Rotoli continued to experience numerous health problems, including liver problems. In October 1996, she was diagnosed with Sjogren’s disease. In 1997, she was diagnosed with systemic lupus erythematous, another autoimmune disorder. Finally, in 1998, she was diagnosed with central nervous system lupus. She now has deep pain and fatigue, skin infections, discoid lupus, diminished eyesight, and lesions on the white matter in her brain. She was removed from a *89liver transplant list after her diagnosis of lupus, and she is now terminally ill. Based on these undisputed facts, Dr. Bel-lanti testified that it was his opinion “to a reasonable degree of medical and scientific probability” that the hepatitis B vaccine “caused or significantly contributed to the development of the [AIH] in [Ms. Rotoli].” Tr. 590-91. Dr. Bellanti stated that Ms. Rotoli “has both evidence of [AIH] and systemic lupus with some overlap symptoms” and that “[t]he temporal relationship between her immunizations and the onset of symptoms is appropriate, and there’s no other likely cause identifiable in the record.” Tr. 591. Based on the same undisputed facts, the respondent’s expert, Dr. Koff, testified that, in his opinion, Ms. Rotoli’s fibrosis established that her AIH began long before she received the hepatitis B vaccine, pointing to the presence of extensive fibrosis in her June 29, 1995 liver biopsy. As a result, Dr. Koff concluded, the hepatitis B vaccine could not have caused her AIH. b) Ms. Rotoli Established a Proximate Temporal Relationship Between the Vaccine and Her Injuries by a Preponderance of the Evidence. As noted above, as part of the petitioner’s prima facie case of causation-in-fact, Althen requires “a showing of a proximate temporal relationship between vaccination and injury,” 418 F.3d at 1278, defined as “preponderant proof that the onset of symptoms occurred within a timeframe for which, given the medical understanding of the disorder’s etiology, it is medically acceptable to infer eausation-in-fact.” de Bazan, 539 F.3d at 1352. The court finds that Ms. Rotoli met her burden to show a medically acceptable temporal relationship between the vaccine and the onset of her injuries, as required under Althen. Dr. Bellanti testified that a reasonable time to expect an adverse reaction is roughly fourteen to forty days after receipt of a dose of a vaccination. Tr. 34. The undisputed evidence showed that, eleven days after receiving her first dose of the vaccine on October 10, 1994, Ms. Rotoli reported coughing, congestion, and a fever. Approximately two months after her receipt on November 9, 1994 of her second dose of the vaccine, Ms. Rotoli was treated for a prolonged upper respiratory infection. She received her third dose of the vaccine on May 1,1995. Around that time, she began having right upper quadrant pain, and blood work from May 9,1995 indicated elevated levels of ALT. A June 20, 1995 test for ANA was positive, indicating a diagnosis of AIH. A June 29,1995 biopsy revealed that Ms. Rotoli had chronic, active hepatitis with fibrosis and moderate necrosis. Dr. Bellanti testified that he believed that the temporal relationship between Ms. Rotoli’s immunizations and the onset of her symptoms was therefore medically appropriate. The respondent disputed the temporal relationship between Ms. Rotoli’s symptoms and the vaccine on the basis of Dr. Koffs testimony that Ms. Rotoli’s liver biopsy on June 29, 1995 (eight-and-a-half months after her first vaccination on October 10, 1994) showed that she already had active hepatitis with such extensive fibrosis that it had to have predated the vaccination. In response to Dr. Koffs testimony, the petitioners pointed to an article (presented by the respondent as an attachment to Dr. Zweiman’s report) in the Journal of Hepatology by Hans-Iko Hup-pertz et al., to show that fibrosis could develop in as little as fourteen to sixteen weeks. Rotoli Ex. A Tab 5; see also Rotoli Ex. 98. In the Huppertz article, a seven-year-old subject developed AIH after being infected with the hepatitis A virus, and fibrosis was seen in a biopsy sixteen weeks later (ten weeks after the onset of jaundice, which, in turn, developed six weeks after the “onset of hyperbilirubinemia”). Rotoli Ex. A Tab 5. In light of the evidence in the Huppertz article that fibrosis might be able to form in as little as sixteen weeks, as well as Dr. Bellanti’s testimony regarding the uncertain etiology of AIH and the variability of clinical manifestations of the disease, the court finds that Dr. Koffs testimony that Ms. Rotoli’s AIH must have predated her vaccinations was unpersuasive. Thus, in addition to finding that the petitioners have met their burden of showing a medical theory causally connecting the vaccine and AIH, the court finds that Ms. Rotoli *90met her burden under Althen to establish a medically acceptable temporal relationship between the hepatitis B vaccinations and the onset of her AIH. In addition, in setting forth the medical theory and temporal relationship, Ms. Rotoli established by a preponderance of the evidence a logical sequence of cause and effect showing that the vaccine was the reason for the injury. See Capizzano, 440 F.3d at 1327. The government has not argued in Ms. Rotoli’s case that a particular factor other than the vaccine was more likely than not the actual cause of Ms. Rotoli’s AIH. Thus, because Ms. Rotoli has satisfied the Althen factors and met her burden as to causation-in-fact, and the government has failed to meet its burden as to alternative causation, Ms. Rotoli is entitled to recover for her injuries under the Vaccine Act. Walther, 485 F.3d at 1151 (“Once petitioners satisfy their burden of proving presumptive or actual causation by a preponderance of evidence, they are entitled to recover unless the Secretary shows, also by a preponderance of evidence, that the injury was in fact caused by factors unrelated to the vaccine.” (quotation omitted)); see also 42 U.S.C. § 300aa-13(a)(l). 2. David Myers (No. 99-631V) a) Facts and Expert Testimony The undisputed facts relevant to David Myers’ case are briefly summarized below. Mr. Myers was born in 1961. In June 1992, tests of Mr. Myers’ blood indicated two abnormal results: his ALT level was elevated, and his albumin was slightly above the normal range. On February 3, 1994, he received his first dose of the hepatitis B vaccination, after which he noticed some arm swelling and local pain. On February 17, 1994, Mr. Myers was treated for pruritis over his arms and legs; prednisone was ordered. By the following week, his pruritis had cleared, but he was prescribed dyazide for hypertension. On March 7, 1994, Mr. Myers received his second dose of the hepatitis B vaccination. On March 18, 1994, Mr. Myers went to an Immediate Care Center complaining of having had right upper quadrant pain for about three weeks, beginning after the first hepatitis B vaccination, but before the seeond. Blood tests at that time again showed elevated ALT and elevated albumin, as well as elevated alkaline phosphatase (“ALP”)20 On March 28, 1994, Mr. Myers saw Dr. Daniel Maieo for his right upper quadrant pain. Dr. Maico later stated that Mr. Myers’ problems were not related to the hepatitis B vaccination. Blood drawn on March 31,1994 indicated elevated asparatate aminotransfer-ase (“AST”) and ALT, but normal levels of albumin. On April 4, 1994, Mr. Myers’ hypertension medication was changed from dyazide to lotensin because dyazide can impair liver function. Blood work from April 26, 1994 indicated that the ALP was normal, and the AST and albumin were barely outside the normal ranges. Testing for hepatitis A, B, and C were negative. On May 25, 1994, Mr. Myers was diagnosed with mild hepatitis. Dr. Steven Jones attributed the mild hepatitis to the dyazide. Dr. Jones also discontinued the lotensin and started cardura. Blood work from May 1994 indicated that Mr. Myers’ AST and ALP were within the normal range, while the ALT was elevated and the albumin remained slightly elevated. On June 15, 1994, the AST and ALP were again normal, while the ALT and albumin were slightly elevated. On August 15, 1994, Mr. Myers received his third dose of the hepatitis B vaccination. On August 27, 1994, Mr. Myers went to the emergency room with fever, headache, and chills, and the doctor diagnosed acute vire-mia. On August 31, 1994, Dr. Jones diagnosed probable diverticulitis, prescribing ei-pro and flagyl. Blood work drawn at that time indicated much higher levels of AST, ALT and ALP than reported previously; the results of each were considerably outside normal range. Albumin, however, was at the low end of normal. On September 23, 1994, a CT scan of Mr. Myers’ abdomen was ordered, which showed no problems with his liver, spleen, pancreas, or kidneys. On October 10,1994, Mr. Myers asked Dr. Jared Kniffen, a gastroenterolo*91gist, whether the hepatitis B vaccinations could have caused the elevation in his liver function tests (“LFTs”). Dr. Kniffen had apparently acquired some literature — possibly from either Mr. Myers or from the manufacturer of the vaccine — that indicated elevated ALT levels have followed hepatitis B vaccination. Dr. Kniffen indicated that Mr. Myers’ ALT level was over twice the maximum elevation described in the literature. On November 8, 1994, Dr. Kniffen reported that Mr. Myers’ LFTs were normal. Also on November 8, 1994, Dr. Jones indicated, “We are now reasonably certain that patient’s elevated ALTs were due to his Enge-rix-B immunization.” Myers Ex. 1 at 93. Approximately one year later, a November 3, 1995 liver biopsy revealed “scattered macro-vesicular steatosis and minimal lobular hepatitis suggestive but not diagnostic of Hepatitis C.” Myers Ex. 3 at 48. Dr. Rolland Dickson reviewed the biopsy results, ruling out hepatitis C because Mr. Myers had been tested for that disease. Dr. Dickson opined that “this is most likely steatohepatitis[.] I will cheek autoimmune markers to make sure he has not developed a precipitated [AIH], although this would be less likely.” Myers Ex. 3 at 20. On January 5, 1996, Dr. Dickson also indicated that Mr. Myers’ “right upper quadrant pain is without a good explanation” and that while “[i]t is possible that his liver biopsy findings could be explained by the vaccine, however, it would be very surprising to see this persist to this l[o]ng.” Myers Ex. 3 at 5. On January 25, 1996, a Dr. Setzer stated, I have participated in Mr. Myers’ care for the last nine months. It seems he has suffered from a nonspecific hepatitis of uncertain etiology over the last two years. Specialists seem to concur at this time in their opinion hepatitis is related to a series of hepatitis B vaccinations that the patient received. Myers Ex. 1 at 37. Over the next few years, Mr. Myers continued to complain of right upper quadrant pain. The results of his LFTs varied from inside to outside the normal range. The pathologist reviewing a May 2000 liver biopsy stated that the tissue “represents mild chronic steatohepatitis which may have been caused by alcohol drinking, obesity or certain medications.” Myers Ex. 20 at 12. However, at no time did any of Mr. Myers’ treating physicians diagnose him with AIH. Based on these undisputed facts, Dr. Bel-lanti testified that it was his opinion “to a reasonable degree of certainty” that the hepatitis B vaccine “caused or significantly contributed to the development of [Mr. Myers’] condition,” which Dr. Bellanti called AIH, though “not a classic finding” thereof. Tr. 490. He indicated that, in his opinion, Mr. Myers suffered from “steatosis, with features suggestive of an immunologic component.” Tr. 490. He concluded that “it is more likely than not that the hepatitis B vaccine could have contributed to [Mr. Myers’ condition], based upon the temporal relationship to the onset of symptoms and no other likely cause identifiable.” Tr. 490. Based on the same undisputed facts, the respondent’s expert, Dr. Koff, testified that, in his opinion, Mr. Myers suffered from nonalcoholic steatohepatitis (“NASH”) instead of AIH and that there is no evidence to show that the hepatitis B vaccine causes NASH. As Dr. Koff testified, NASH is a metabolic liver disorder which falls under the group of disorders known as nonalcoholic fatty liver disease. Tr. 532-33. According to Dr. Koff, NASH cannot be considered an autoimmune disease. Tr. 535. Moreover, Dr. Koff testified that, given that Mr. Myers had elevated liver enzymes prior to the receipt of the hepatitis B vaccine, it was reasonable to assume that his NASH predated the vaccine. Tr. 544-45. As a result, Dr. Koff concluded, the hepatitis B vaccine could not have caused Mr. Myers’ condition. b) Mr. Myers had NASH Instead of AIH, and the Petitioners Did Not Present Evidence of a Medical Theory Causally Connecting the Hepatitis B Vaccine with NASH. The court finds that Mr. Myers suffered from NASH instead of AIH. Moreover, because Mr. Myers did not present any evidence of a medical theory by which the hepatitis B vaccine can cause NASH (a metabolic disease, as opposed to an autoimmune condition such as AIH), the court finds that Mr. *92Myers did not meet his burden under Al-then’s first prong. The respondent’s expert, Dr. Koff, testified that Mr. Myers had NASH, not AIH. None of Mr. Myers’ treating physicians ever diagnosed him with AIH. Even the petitioners’ expert, Dr. Bellanti, could not say that Mr. Myers presented a “classic finding” of AIH, testifying instead that Mr. Myers suffered from “steatosis, with features suggestive of an immunologic component.” Tr. 490. The petitioners argue that, while they do not dispute Dr. Koffs diagnosis that Mr. Myers suffers from NASH, nor do they dispute that NASH is a different condition than AIH, Mr. Myers is nonetheless entitled to recover on the basis of the evidence that the hepatitis B vaccine caused him to suffer liver damage “of some nature,” regardless of the ultimate diagnosis. Mot. for Review 11, 9 & n. 13 (citing Kelley v. Sec’y of HHS, 68 Fed.Cl. 84, 100 (2006) (“The Vaccine Act does not require petitioners coming under the non-Table injury provision to categorize their injury; they are merely required to show that the vaccine in question caused them injury — regardless of the ultimate diagnosis.”)). However, the medical theory presented by the petitioners, as discussed at length above, was entirely concerned with linking an autoimmune disease, AIH — not a metabolic disease such as NASH, nor even “steatosis, with features suggestive of an immunologic component,” see Tr. 490 — with the hepatitis B vaccine. While the court accepts the petitioners’ medical theory as regards the autoimmune disease AIH, as discussed above, the court cannot extend its acceptance of the petitioners’ medical theory to an entirely different, metabolic disease such as Mr. Myers’ NASH. The record simply does not contain any evidence setting forth or supporting a theory by which the latter condition could be causally connected with the hepatitis B vaccine. As a result, the court finds that Mr. Myers’ failure to meet his burden with regard to the first Althen prong — a medical theory causally connecting his injury, NASH, with the hepatitis B vaccine — precludes his recovery for his injuries under the Vaccine Act.21 3. Colleen Torbett (No. 99-660V) a) Facts and Expert Testimony The undisputed facts relevant to Colleen Torbett’s case are briefly summarized below. Ms. Torbett was born on March 15, 1957. On January 29, 1996, on the recommendation of the school system in which she was a physical education teacher, Ms. Torbett received her first dose of the hepatitis B vaccine. On February 9, 1996, she visited her doctor, complaining of having felt dizzy for a day and a half; she had also been taking Sudafed for two weeks (predating the vaccination) due to some mild sinus congestion. In February 1996, Ms. Torbett began taking diclofenac for her acne. On February 29, 1996, Ms. Torbett received her second dose of the hepatitis B vaccine. In an affidavit in 2000, Ms. Torbett stated that in April 1996, she noticed stiffness in her joints. In July 1996, Ms. Torbett began taking minocycline for her acne. On August 20, 1996, she received her third hepatitis B vaccination. In her affidavit, Ms. Torbett stated that she started having joint pain after this third dose. On December 2, 1996, Ms. Tor-bett visited her doctor, complaining of soreness in her right elbow for about three weeks. She stated that the soreness was worse with activity. She was diagnosed with lateral epicondylitis, which is also known as tennis elbow. She followed up for her elbow pain three times, the last being February 10, 1997. On August 15, 25, and 30, 1997, Ms. Tor-bett visited her doctor’s office complaining of soreness in her joints. Blood tests from August 30, 1997 revealed two LFTs with elevated results. At some point during the summer of 1998, Ms. Torbett again started taking diclofenac. Between November 1997 and October 1998, Ms. Torbett visited various doctors numerous times, complaining *93variously of headaches, fatigue, myalgia, ar-thralgias, allergies, asthma, and stiffness and tenderness in her wrists, elbows, and knees. On October 9, 1998, blood work showed abnormally high results for the LFTs. However, her anti-nuclear antibodies were negative. As a result of the elevated LFTs, Dr. Joseph Temming, a rheumatologist, recommended that Ms. Torbett stop using diclofenac. Dr. Temming considered the possibility that Ms. Torbett had AIH, but thought this condition was unlikely. Follow-up blood work on October 29, 1998 indicated that her LFTs were still elevated. A November 19,1998 liver biopsy revealed results “consistent with an autoimmune form of chronic hepatitis.” Torbett Ex. 3 at 10. Upon receipt of these results, hepatologist Dr. Philip Williams believed that AIH was the most likely diagnosis and started Ms. Torbett on prednisone.22 After three weeks on prednisone, Ms. Torbett’s blood tests revealed an improvement in the level of her LFTs; Dr. Williams stated that this change supported the AIH diagnosis. After Ms. Torbett stopped taking prednisone in late December 1998 as a result of dyspepsia, her joint pain returned. Dr. Williams started Ms. Torbett on prednisone again on January 4, 1999. Blood tests in February 1999 revealed normal LFTs. On February 22, 1999, Ms. Torbett told her dermatologist that she had been diagnosed with AIH; the dermatologist noted that “this could possibly be secondary to the minocycline” and had her stop taking the drug. Torbett Ex. 5 at 7. On March 26, 1999, Ms. Torbett’s blood tests again revealed normal LFTs. On April 1, 1999, Dr. Williams considered her AIH to be “well controlled biochemically.” Torbett Ex. 3 at 7. However, she still had joint pain and fatigue, and Dr. Williams suspected that she may have “other auto immune problems.” Id. By 2001, Ms. Tor-bett’s hepatitis had stabilized with the help of several medications. However, she is easily fatigued and has pain throughout her body, and she does not work. Based on these undisputed facts, Dr. Bel-lanti testified that it was his opinion “to a reasonable degree of probability” that Ms. Torbett’s AIH “was likely ... due to the hepatitis B immunization, and [he] base[d] that opinion on the temporal relationship between her immunization, the onset of symptoms, which were medically appropriate, and there was no other likely cause identifiable in the record.” Tr. 1231. Based on the same undisputed facts, the respondent’s expert, Dr. Zweiman, testified that the timing of the events in Ms. Torbett’s case was strong evidence against an association between the vaccine and her symptoms. In addition, the respondent’s expert, Dr. Koff, testified that, in his opinion, Ms. Tor-bett’s AIH was likely caused by her use of the drug minocycline, a known cause of AIH, and not by the hepatitis B vaccine, b) Ms. Torbett Failed to Establish a Proximate Temporal Relationship Between the Vaccine and Her Injuries by a Preponderance of the Evidence. As noted above, as part of the petitioner’s prima facie case of causation-in-fact, Althen requires “a showing of a proximate temporal relationship between vaccination and injury,” 418 F.3d at 1278, defined as “preponderant proof that the onset of symptoms occurred within a timeframe for which, given the medical understanding of the disorder’s etiology, it is medically acceptable to infer causation-in-fact.” de Bazan, 539 F.3d at 1352. The court finds that Ms. Torbett failed to establish an appropriate temporal relationship between the vaccine and her injuries, as required under Althen. The court is persuaded that the purported early signs of Ms. Torbett’s AIH were not related to her AIH. Ms. Torbett did not see a doctor for her alleged joint stiffness in April 1996 nor for her alleged joint pain in August 1996. Dr. Koff testified that it would be very hard for him to attribute the joint manifestations of which Ms. Torbett complained. Tr. 1447. For example, Dr. Koff testified that the joint pain she complained of in December 1996 *94(the first symptom documented in her medical records) was more likely attributable to her work as a physical education teacher than to the vaccine; he noted that tennis elbow has “never been reported as an ex-trahepatic articular joint manifestation of [AIH].” Tr. 1445. Similarly, Dr. Zweiman indicated that AIH patients “almost always had multiple joint involvement as their ex-trahepatic manifestation of [AIH],” Tr. 1500, and that the pain must be pronounced and prolonged before it could be considered ar-thralgia. Tr. 1503 (“Most experienced clinicians, particularly rheumatologists, will not accept a twinge that you have in a joint ... when you get up in the morning that lasts for a few minutes as arthralgias. They demand a more pronounced and generally more prolonged expression of pain before they will call it arthralgias.”). Dr. Zweiman also indicated that he believed Ms. Torbett’s work as a physical education teacher was likely the cause of the joint pain for which she saw a doctor in December 1996. Tr. 1506. In light of the above testimony by the respondent’s experts, the court finds that the earliest reliable indication of Ms. Torbett’s AIH was the abnormal results of her blood tests on August 30, 1997. Moreover, the court finds that the August 30, 1997 test results were too far removed from the last dose of the hepatitis B vaccine on August 20, 1996 to infer causation from the temporal relationship.23 Because the petitioners bear the burden to demonstrate a temporal relationship by a preponderance of the evidence under Althen, Ms. Torbett’s failure to provide sufficiently robust temporal evidence is fatal to her prima facie case of causation-in-fact. c) Ms. Torbett’s AIH Was More Likely than Not Caused by Her Use of Mino-cycline Instead of by the Hepatitis B Vaccine. In Ms. Torbett’s ease, the court also finds that, even assuming, arguendo, that she had met her burden under Althen, a preponderance of the evidence nonetheless supports a finding that her injuries were actually caused by her use of minocycline instead of by the hepatitis B vaccine. See de Bazan, 539 F.3d at 1352 (If the court finds that a petitioner has met her burden with regard to the Althen factors, “the burden shifts to the government to prove by a preponderance of the evidence that the petitioner’s injury is due to factors unrelated to the ... vaccine.” (internal quotation omitted)). Specifically, the court is persuaded by the testimony of the respondent’s expert, Dr. Koff, to the effect that minocycline caused Ms. Torbett’s AIH. Dr. Koff presented several articles linking minocycline use and AIH, including a 2000 article entitled “Minocycline as a cause of drug-induced autoimmune hepatitis,” by Neal S. Goldstein et al., in the American Journal of Clinical Pathology, which indicated that the hepatitis caused by minocycline is not distinguishable from the hepatitis caused by an autoimmune reaction.24 Torbett Ex. C Tab 6. In light of this evidence, the court finds that the causal connection between minocycline and hepatitis is well-established and reliable. As to whether minocycline was an alternative cause in Ms. Torbett’s case in particular, the court finds that there was an appropriate temporal relationship between the earliest reliable signs of Ms. Torbett’s AIH in August 1997 and the start of her minocycline use thirteen months prior in July 1996.25 According to the Goldstein article, minocycline-related autoimmune disorders have been found to develop an average of two years after the initiation of drug therapy, with a range of three days to six years. Torbett Ex. C Tab 6 at 596-97. Despite being questioned about Ms. Torbett’s minocycline use during the hearing, Dr. Bellanti failed to present any evidence to overcome the gov*95ernment’s evidence in Ms. Torbett’s case.26 Dr. Bellanti acknowledged that minocycline can cause an immune-mediated reaction but failed to offer any explanation for his apparent belief that minocycline did not cause the AIH in Ms. Torbett’s case. Tr. 1552-57. Thus, in light of the evidence that Ms. Tor-bett had been taking minocycline, a known cause of AIH, for thirteen months at the time her LFTs were found to be elevated, the court finds that Ms. Torbett’s AIH was more likely than not caused by her use of minocy-cline instead of the hepatitis B vaccine. In conclusion, because the court finds that (1) Ms. Torbett failed to meet her burden under Althen to establish a medically acceptable temporal relationship between the hepatitis B vaccinations and the onset of her AIH, and (2) preponderant evidence established that Ms. Torbett’s injuries were actually caused by a factor other than the vaccine, specifically her minocycline use, the court finds that Ms. Torbett is not entitled to recover for her AIH under the Vaccine Act. See 42 U.S.C. § 300aa-13(a)(1); Althen, 418 F.3d at 1278. 4. Mona Porter (No. 99-639V) a) Facts and Expert Testimony The undisputed facts relevant to Mona Porter’s case are briefly summarized below. Ms. Porter was born on September 28, 1962. On May 15, 1991, a dermatologist prescribed minocycline for Ms. Porter’s acne. She took minocycline daily from May 15 through October 18, 1991, at which time she was switched to an every-other-day dosage. On December 26,1991, her LFTs were normal. Porter Ex. I. On May 11, 1992, her dermatologist indicated that she should “finish off’ at the every-other-day dosage and then “discontinue.” Porter Ex. I; Porter Ex. 36 at 9. On July 8, 1992, because of her work in a physician’s office, where her duties included drawing and preparing blood, Ms. Porter received her first dose of the hepatitis B vaccine. Blood tests taken that day revealed normal LFTs. On August 7, 1992, Ms. Porter received her second hepatitis B vaccination; she received her third dose on February 5, 1993. On March 1,1993, blood tests revealed that Ms. Porter’s liver enzymes were elevated well beyond the normal range. On March 5,1993, her liver enzymes were approximately the same as on March 1, 1993: well outside the normal range. The March 5, 1993 tests also indicated that Ms. Porter was immune to hepatitis B and was not infected with hepatitis A, B, or C. Ms. Porter began feeling nauseated, itching, and turning yellow on March 11, 1993. Blood tests on March 15, 1993 were again highly abnormal. On March 18, 1993, Ms. Porter saw a gastroenterologist, Dr. Richard Gilmore, who noted that she suffered from “acute hepatitis of undetermined etiology. The possibility that this is related to her vaccine cannot be excluded.” Porter Ex. 8 at 1. Blood work taken on April 1, 1993 showed that Ms. Porter had a positive antinuclear antibody and a positive smooth muscle antibody, both of which are consistent with a diagnosis of AIH. Her liver enzymes had decreased but were still above normal. Ms. Porter resumed taking minocycline on April 23, 1993. Porter Ex. I. A liver biopsy was conducted on May 14, 1993, and the pathologist and Dr. Gilmore interpreted the results of that biopsy as consistent with AIH. On July 7, 1993, Dr. Gilmore stated that Ms. Porter had been “placed on high dose steroids and over the past several weeks, her enzyme levels have dropped in half, but approximately by 90% since the peak of over 1000 was noted.” Porter Ex. 8 at 2. In January 1994, Ms. Porter complained of psychiatric symptoms, which were diagnosed by an endocrinologist as secondary to the high dose steroids. Ms. Porter filed a workers’ compensation claim against the physician’s office where she had worked. The AIH continued to affect Ms. Porter for several years, but by September 2004, Ms. Porter’s treating doctor recorded that her AIH had been in remission “for a long time.” Porter Ex. 39 at 1. A December 2005 liver biopsy showed *96findings consistent with inactive or minimally-active chronic AIH. Based on these undisputed facts, Dr. Bel-lanti testified that it was his opinion “to a reasonable degree of medical and scientific probability” that Ms. Porter’s AIH “was likely due to her hepatitis B immunizations.” Tr. 937-38. Dr. Bellanti noted that “[t]he temporal relationships are right, and the onset of symptoms is medically appropriate^] and there’s no other likely cause identifiable in the record.” Tr. 938. With regard to her minocycline use, Dr. Bellanti testified that most minocycline-induced cases of AIH improve following discontinuation of the drug, contrary to what happened in Ms. Porter’s case. Tr. 938. Based on the same undisputed facts, the respondent’s expert, Dr. Koff, testified that, in his opinion, Ms. Porter’s liver problems were more likely caused by her use of mino-cycline, a known cause of AIH, than by the hepatitis B vaccine. In response to the petitioners’ discontinuation of use theory, Dr. Koff indicated that Ms. Porter may have continued to take the minocycline for some time after the notation in her medical records that she was told to discontinue. Tr. 1028. b) Ms. Porter Established a Proximate Temporal Relationship Between the Vaccine and Her Injuries by a Preponderance of the Evidence. As noted above, as part of the petitioner’s prima facie case of eausation-in-fact, Althen requires “a showing of a proximate temporal relationship between vaccination and injury,” 418 F.3d at 1278, defined as “preponderant proof that the onset of symptoms occurred within a timeframe for which, given the medical understanding of the disorder’s etiology, it is medically acceptable to infer eausation-in-faet.” de Bazan, 539 F.3d at 1352. The court finds that Ms. Porter met her burden to show a medically acceptable temporal relationship between the vaccine and the onset of her injuries, as required under Althen. The undisputed evidence showed that Ms. Porter had blood tests indicating normal liver enzymes on July 8, 1992, the same day as she received her first dose of the hepatitis B vaccine. On February 5, 1993, she received her third dose of the vaccine. On March 1, 1993, Ms. Porter’s blood tests indicated dramatically elevated liver enzymes. Thus, the evidence established that Ms. Porter’s AIH began during the period between July 8,1992 and March 1, 1993. During this same period, Ms. Porter also received three doses of hepatitis B vaccine. Dr. Bellanti testified that a reasonable time to expect an adverse reaction is roughly fourteen to forty days after receipt of a dose of a vaccination. Tr. 34. Dr. Bellanti further testified that, in his expert opinion, the temporal relationship between Ms. Porter’s immunizations and the onset of her symptoms was medically appropriate to infer causation. The Federal Circuit does not require the petitioner to identify a specific date of onset of her illness, but merely a “medically acceptable timeframe” for the onset of symptoms. See de Bazan, 539 F.3d at 1352. Accordingly, in light of the evidence that Ms. Porter’s liver enzymes spiked sometime during the timeframe in which she received three doses of the hepatitis B vaccine, the court finds that Ms. Porter demonstrated an appropriate temporal relationship between the onset of her illness and her receipt of the vaccine, as part of her prima facie case of causation-in-fact under Althen. c) The Government Failed to Establish by a Preponderance of the Evidence that Ms. Porter’s Minocycline Use Was More Likely than Not the Cause of Her Injuries. As the government acknowledged at oral argument, if the court finds that a petitioner has met her burden with regard to the Al-then factors, “the burden shifts to the government to prove by a preponderance of the evidence that the petitioner’s injury is due to factors unrelated to the ... vaccine.” de Bazan, 539 F.3d at 1352 (internal quotation omitted). In Ms. Porter’s case, as discussed above, the court has found that she met her burden under Althen to demonstrate a medical theory supported by a logical sequence of cause and effect showing that the vaccine was the reason for her injury, as well as an appropriate temporal relationship between the vaccine and the onset of her illness. As a result, the burden now shifts to the govern*97ment to prove alternative causation. For the reasons discussed below, the court finds that the government has not met that burden. In Ms. Porter’s case, the respondent argued, based on Dr. Koffs testimony, that a preponderance of the evidence showed that her AIH was not caused by the vaccine but was instead caused by another factor, her use of minocycline for her acne. As in Ms. Tor-bett’s case, discussed above, Dr. Koff presented several articles linking minocycline use and AIH, including a 2000 article entitled “Minocycline as a cause of drug-induced autoimmune hepatitis,” by Neal S. Goldstein et al., in the American Journal of Clinical Pathology, which indicated that the hepatitis caused by minocycline is not distinguishable from the hepatitis caused by an autoimmune reaction.27 Porter Ex. F Tab 5. As the court found in Ms. Torbett’s case, the causal connection between minocycline and hepatitis is well-established. However, as to whether minocycline was an alternative cause in Ms. Porter’s ease in particular, the court finds by a preponderance of the evidence that Ms. Porter’s injuries were not caused by her use of minocy-cline, based on her medical records and the medical literature indicating that symptoms typically resolve upon discontinuation of use of the drug. Specifically, according to Ms. Porter’s medical records, she began taking minocycline on May 15, 1991. A blood test on December 26, 1991 indicated normal LFTs. Then, on May 11, 1992, Ms. Porter’s dermatologist indicated that she should “finish off” at her every-other-day dosage of minocycline and then “discontinue.” Porter Ex. I; Porter Ex. 36 at 9. Two months after being told to discontinue her minocycline, on July 8,1992 (the day Ms. Porter received her first hepatitis B vaccine), Ms. Porter’s LFTs were again found to be normal. It was not until March of 1993, after receiving the remaining two doses of hepatitis B vaccine, that Ms. Porter’s LFTs were found to have spiked dramatically.28,29 Dr. Bellanti testified that, in his opinion, minocycline was not likely the cause of Ms. Porter’s AIH, because a patient’s symptoms can be expected to improve when minocycline use is stopped, which did not happen in Ms. Porter’s case—her enzyme level spike happened during the period of time when she was not taking the drug. As Dr. Bellanti explained, “[t]he symptoms [of] the hepatitis [are] reversible upon cessation of the drug, which is the rule with most drug[-]indueed pathologies.” Tr. 939. In support of Dr. Bellanti’s opinion, the petitioners submitted a chapter by James H. Lewis and Hyman J. Zimmerman entitled “Drug-induced autoimmune liver disease” from the textbook Autoimmune Liver Diseases, edited by Dr. Krawitt et al.30 Porter Ex. 117. The chapter indicates that certain drugs, including mino-cycline, have been associated with a syndrome similar to autoimmune chronic hepatitis (“AICH”), but under “Clinical Features,” the authors indicate that “until the effect of withdrawal of the respective drag is appreciated, drug-induced AICH is indistinguishable from cryptogenic AICH.” Porter Ex. 117 at 627-28, 630 (emphasis added). Similarly, the chapter indicates that “Characteristics of Drug-Induced AICH” include “[Resolution on withdrawal of the drug.” Porter Ex. 117 at 630. In Ms. Porter’s case, the evidence in her medical records showed that Ms. Porter discontinued minocycline, but she nonetheless developed symptoms of hepatitis after that time. Because the burden to demonstrate that minocycline was the cause-in-fact *98of Ms. Porter’s injuries falls on the government, the court finds that, to prevail on such a theory, the respondent must do more than suggest that it is possible that Ms. Porter was not taking the medication in compliance with her doctor’s instructions, where, as here, there is no evidence in the record to support such an assertion. Nor may the government meet its burden merely by suggesting that Ms. Porter could have been one of the rare cases in which symptoms caused by minocycline use do not improve upon discontinuation. The government’s burden is to demonstrate, not merely that an alternative cause could have been at play, but that it was more likely than not that her symptoms were caused in fact by an alternative cause. de Bazan, 539 F.3d at 1354 (“[Successfully proving the elements of the Althen test establishes that the medical evidence indicating that the vaccine may have caused the petitioner’s injury is strong enough to infer eau-sation-in-fact absent proof that some other factor ivas the actual cause. The government then must provide that proof by identifying a particular such factor (or factors) and presenting sufficient evidence to establish that it was the sole substantial factor in bringing about the injury.” (first emphasis in original; second emphasis added; citation omitted)). The court finds that the government has failed to meet that evidentiary burden in Ms. Porter’s case. Thus, because Ms. Porter has met her burden under the Althen factors, and the government has failed to present preponderant evidence showing that minocycline was the sole substantial factor in bringing about Ms. Porter’s injury, the court finds that Ms. Porter is entitled to recover for her AIH under the Vaccine Act. See 42 U.S.C. § 300aa-13(a)(1); de Bazan, 539 F.3d at 1354. 5. Allison Hager (No. 01-307V) a) Facts and Expert Testimony The undisputed facts relevant to Allison Hager’s case are briefly summarized below. Ms. Hager was born on October 10,1986. At age eleven, Ms. Hager received her first dose of the hepatitis B vaccine on November 17, 1997, and her second dose on December 17, 1997.Ms. Hager’s mother indicated in an affidavit that Ms. Hager was healthy until March or April of 1998, at which time Allison began to have stomach pain and nausea. Ms. Hager’s own affidavit indicated that she was feeling fine in May 1998. On September 28, 1998, Ms. Hager was examined for upper abdominal pain since late July or early August, as well as a decrease in appetite. Her doctor, Dr. Hope Tinker, diagnosed gastritis and prescribed Zantac. The next day, September 29, 1998, Ms. Hager received the third dose of hepatitis B vaccine. On October 19, 1998, Ms. Hager returned to Dr. Tinker’s office complaining of abdominal pain, nausea, and anorexia. Her Zantac was increased. Blood tests taken that same day revealed that her liver enzymes were elevated. On October 28, 1998, Dr. Tinker indicated, “Certainly Sept. HEP B shot could have been contributory to [elevated LFTs;] though rarely reported, have seen before. Doesn’t explain initial illness,” which the doctor indicated had begun in late July or August, prior to the third dose of hepatitis B vaccine. Hager Ex. 1 at 16. On November 5, 1998, Ms. Hager saw Dr. Jose Barrios, an assistant professor of pedia-tries at the University of Missouri Hospital and clinics. Ms. Hager’s mother told him that her daughter was in good health until July or August 1998. He diagnosed gastritis and noted her elevated LFTs. Though Dr. Barrios recommended repeating the LFTs in a few months, Ms. Hager did not do so. Her mother indicated that Ms. Hager was feeling much better and not taking Zantac; she felt well until late July 1999. Around August 1, 1999, Ms. Hager began experiencing a rash; she received various treatments, and by September 14,1999, her rash had cleared. In a September 14, 1999 appointment, an associate of Dr. Tinker noted that Ms. Hager was jaundiced in her eyes and referred her to a specialist. That same day, Ms. Hager saw Dr. Michael Cooperstock. He stated that she had jaundice and a multiform rash and that he believed that “[i]t is very likely that she has hepatitis, perhaps hepatitis A or C. Far less likely, might be drug induced hepatitis, lupus hepatitis, or other causes of liver disease.” Hager Ex. 2 at 6. Bloodwork *99ordered by Dr. Cooperstoek revealed that most liver enzymes were elevated, including very high levels for ALP, and that she did not have hepatitis A or C. On September 16, 1999, Dr. Barrios reported that Ms. Hager had a rash and that she was jaundiced and fatigued. An ultrasound the next day revealed a persistently contracted gallbladder and dilation of the common hepatic bile duct. On September 23, 1999, Ms. Hager was admitted to the hospital with a macropapular rash over her lower extremities and an enlarged liver. A liver ultrasound that day revealed an enlarged echogenic liver, a normal gallbladder, and debris in the common bile duet. A liver biopsy the next day was consistent with biliary obstruction, and some fibrosis was noted. An endoscopic retrograde cholangiopancreatography (“ERGP”) on September 29, 1999 indicated dilation in the common bile duct. Ms. Hager remained at the hospital until October 1, 1999. When she was discharged, Dr. Thomas Foy indicated that any problem was primarily obstructive. On October 27, 1999, Ms. Hager was readmitted to the hospital with nausea and an itchy rash over most of her body; she was also jaundiced. Her LFTs were elevated. On October 29, 1999, Ms. Hager was discharged; the discharge notes indicated “Jaundice and elevated LFT’s most likely [secondary] to [AIH].” Hager Ex. 7 at 22. Dr. Foy believed Ms. Hager had AIH; blood tests during her previous admission showed positive results for anti-nuclear antibodies and smooth muscle antibody. Dr. Foy prescribed prednisone and Imuran. On November 1, 1999, Dr. Barrios reported that Ms. Hager’s LFTs, jaundice, activity level, and appetite were all improved. Dr. Foy indicated that her improvement is “good evidence that at least a component of her liver disease is probably from [AIH].” Hager Ex. 7 at 259. Dr. Foy also noted that the doctor who performed Ms. Hager’s ERCP stated that Ms. Hager “did not have [a] biliary tree at this time consistent with scle-rosing cholangitis.” Id. On January 7, 2000, her gastroenterologist wrote that Ms. Hager “has had good response of what appears to be smooth muscle antibody positive [AIH] and we can begin weaning her steroids.” Hager Ex. 7 at 272. In November 2000, Ms. Hager told Dr. Barrios she was having loose stools. On approximately December 9, 2000, Ms. Hager began having blood in her stools and more diarrhea, as well as abdominal pain. At that time, her ALP was very high, and her AST was high. Following a December 19, 2000 colonoscopy, Ms. Hager was diagnosed with ulcerative colitis. On January 3, 2001, Dr. Barrios stated that Ms. Hager had “ulcera-tive colitis and probably sclerosing cholangi-tis.” Hager Ex. 6 at 194. A liver biopsy and transhepatic cholangiogram under ultrasound on March 29, 2001 revealed “a pattern more suggestive of distortion due to cirrhosis than to sclerosing cholangitis.” Hager Ex. 9 at 475-76. Reports from the hospital’s hepatol-ogy clinic on September 27, 2001 and January 9, 2002 indicated a diagnosis of “end stage liver disease and ulcerative colitis,” Hager Ex. 9 at 27, and “inflammatory bowel disease and chronic liver disease, felt to be a combination of both sclerosing cholangitis and an autoimmune parenchymal process,” Hager Ex. 9 at 14, respectively. In 2004, a doctor stated that, although Ms. Hager was originally diagnosed with AIH, the course of her disease was “felt to be more consistent with sclerosing cholangitis.” Hager Ex. 11 at 618. Ms. Hager is on a list to receive a liver transplant. Based on these undisputed facts, Dr. Bel-lanti testified that it was his opinion that the hepatitis B vaccine “can cause or significantly have contributed to the development of an [AIH] or cholangitis or both.” Tr. 220. Dr. Bellanti testified that, in his opinion, Ms. Hager’s AIH “and associated sequela were most likely due to her hepatitis B immunization, and this is based upon the temporal relationships between her immunizations, the onset of symptoms is medically appropriate, and there is no other likely cause that could be identified in the record.” Tr. 220. In Ms. Hager’s ease, Dr. Bellanti emphasized that his opinion was “based upon ... new clinical studies related to the interaction of environmental, genetic and immunologic factors which play a role in the pathogenesis of autoimmune liver disease.” Tr. 220. *100Based on the same undisputed facts, the respondent’s expert, Dr. Koff, testified that, in his opinion, Ms. Hager never had AIH, but that she has either primary sclerosing cho-langitis (“PSC”) or autoimmune sclerosing cholangitis, instead.31 Dr. Koff further opined that, like AIH, neither form of cholan-gitis has been shown to be caused by the hepatitis B vaccine. Dr. Koff also stated that Ms. Hager’s medical records suggest a “predisposition to autoimmune diseases” dating back to her early childhood. Hager Ex. C at 2, 1. By contrast, Dr. Berger, also an expert for the respondent, indicated that, in his opinion, Ms. Hager has “an ‘overlap’ syndrome of [AIH] ... with autoimmune scle-rosing cholangitis.” Hager Ex. A at 4. However, Dr. Berger, like Dr. Koff, indicated that, in his opinion, the evidence does not show that the hepatitis B vaccine can cause AIH or autoimmune sclerosing cholangitis, b) Ms. Hager Suffered from AIH that Evolved into PSC or AutoimmuneX Sclerosing Cholangitis, So the Petitioners’ Medical Theory Connecting the Vaccine with AIH Applies to Ms. Hager’s Injuries. The court finds that Ms. Hager suffered from AIH which evolved into PSC or autoimmune sclerosing cholangitis. Moreover, by contrast to Mr. Myers’ case, in which the diagnosis of NASH differed in kind from the illness (AIH) identified in the petitioners’ medical theory, in Ms. Hager’s case, because her illness evolved from and is on a spectrum of diseases with AIH, the court finds that the medical theory accepted by the court with regard to AIH is sufficient to meet Ms. Hager’s burden as to the first prong of Althen. Specifically, the court is persuaded by the substantial body of peer-reviewed medical literature indicating that AIH has been known to evolve into or overlap with PSC.32 See Hager Ex. 18 (Evolution of Autoimmune Hepatitis to Primary Sclerosing Cholangitis: A Sequential Syndrome, by Ayman A. Abdo et al, 36 No. 6 Hepatology 1393 (2002)); see also Hager Exs. 17, 19, 25, H. In addition, the court is persuaded by the testimony of one of the respondent’s experts, Dr. Berger, who stated that Ms. Hager has “an ‘overlap’ syndrome of [AIH] ... with autoimmune sclerosing cholangitis.”33 Hager Ex. A at 4. The court also notes that several of Ms. Hager’s treating physicians, including Dr. Foy, Dr. Tinker, and a gastroenterologist, stated that Ms. Hager had AIH at some point in the course of her illness. See An-dreu, 569 F.3d at 1375 (Testimony of treating physicians is “quite probative.”). Thus, because the evidence in Ms. Hager’s case showed that her condition evolved along an established spectrum from AIH to the more severe condition of PSC or autoimmune sclerosing cholangitis, the court finds that *101the petitioners’ medical theory causally connecting AIH and the hepatitis B vaccine, accepted by the court as set forth above, applies to Ms. Hager’s injuries as well. Accordingly, the court finds that Ms. Hager has satisfied her burden as to the medical theory prong of Althen. c) Ms. Hager Established a Proximate Temporal Relationship Between the Vaccine and Her Injuries by a Preponderance of the Evidence. The court next turns to the evidence of a temporal relationship between the onset of Ms. Hager’s illness and her receipt of the hepatitis B vaccine. As noted above, as part of the petitioner’s prima facie ease of eausation-in-fact, Althen requires “a showing of a proximate temporal relationship between vaccination and injury,” 418 F.3d at 1278, defined as “preponderant proof that the onset of symptoms occurred within a timeframe for which, given the medical understanding of the disorder’s etiology, it is medically acceptable to infer eausation-in-faet.” de Bazan, 539 F.3d at 1352. The court finds that Ms. Hager has met her burden to show such a relationship by a preponderance of the evidence. Ms. Hager received her three doses of the vaccine on November 17,1997, December 17,1997, and September 29,1998. Three weeks after her third dose of the vaccine, on October 19, 1998, Ms. Hager visited Dr. Tinker’s office complaining of abdominal pain, nausea, and anorexia. Blood tests taken that same day revealed that her liver enzymes were elevated. On October 28, 1998, Dr. Tinker indicated, “Certainly Sept. HEP B shot could have been contributory to [elevated LFTs;] though rarely reported, have seen before.” Hager Ex. 1 at 16. Indeed, Dr. Bellanti testified that Ms. Hager’s medical records indicated that there seems to be a definite progression of events that occurred following the second immunization of hepatitis B vaccine. Whether or not something was going on before the third immunization where she was experiencing abdominal pain, fullness, nausea, since July of 1998,1 honestly don’t know. But certainly something happened after the third vaccine. Three weeks after [the third vaccine] she had an exacerbation of abdominal pain, nausea, and the blood tests at that time revealed the increased liver function studies!,] and the whole cascading set of events that transpired after it spoke to a progression of an inflammatory autoimmune disease that progressed on to eirrhoses, dilated esophageal varices, portal hypertension, and then to top it off another autoimmune disease, ulcer colitis. Tr. 219 (emphasis added); see also Tr. 238 (“It was an exacerbation three weeks after number three vaccine, sever[e] enough to give her severe abdominal pain to be seen by a physician and to have blood drawn to do a metabolic panel, to do liver function studies.”).34,35 Based on the evidence that Ms. Hager’s symptoms flared three weeks after her third dose of the vaccine, combined with the statement by Ms. Hager’s treating physician, Dr. Tinker, that the vaccine “certainly” could have contributed to her symptoms, Hager Ex. 1 at 16, and the expert testimony of Dr. Bellanti that “certainly something happened after the third vaccine,” Tr. 219, the court finds that Ms. Hager has met her burden to show a temporal relationship between her illness and the vaccine.36 In conclusion, in addition to finding that Ms. Hager met her burden of showing a *102medical theory causally connecting the vaccine and her AIH progressing to PSC or autoimmune sclerosing cholangitis, the court finds that Ms. Hager met her burden under Althen to establish a medically acceptable temporal relationship between the hepatitis B vaccinations and the onset of her illness. In addition, in setting forth the medical theory and temporal relationship, Ms. Hager established by a preponderance of the evidence a logical sequence of cause and effect showing that the vaccine was the reason for the injury. See Capizzano, 440 F.3d at 1327. The government has not argued in Ms. Hag-er’s case that a particular factor other than the vaccine was more likely than not the actual cause of her illness. Thus, because Ms. Hager has satisfied the Althen factors and met her prima facie burden as to eausation-in-fact, and the government has failed to meet its burden as to alternative causation, Ms. Hager is entitled to recover for her injuries under the Vaccine Act. Walther, 485 F.3d at 1151 (“Once petitioners satisfy their burden of proving presumptive or actual causation by a preponderance of evidence, they are entitled to recover unless the Secretary shows, also by a preponderance of evidence, that the injury was in fact caused by factors unrelated to the vaccine.” (quotation omitted)); see also 42 U.S.C. § 300aa-13(a)(1). CONCLUSION In these five cases, the court hereby ORDERS as follows: 1) Ms. Rotoli (No. 99-644V): Based on the court’s findings pursuant to 42 U.S.C. § 300aa-12(e)(2)(B), as set forth above, Ms. Rotoli’s case is remanded to the special master for a determination of damages consistent with this Opinion and Order. The special master shall issue his decision on remand within 90 days of the original date of filing of this Opinion and Order, in accordance with RCFC, App. B Rule 28(b). 2) Mr. Myers (No. 99-631V): Based on the court’s findings pursuant to 42 U.S.C. § 300aa-12(e)(2)(B), as set forth above, the clerk of the court is instructed to enter judgment for the government in Mr. Myers’ ease. 3) Ms. Torbett (No. 99-660V): Based on the court’s findings pursuant to 42 U.S.C. § 300aa-12(e)(2)(B), as set forth above, the clerk of the court is instructs ed to enter judgment for the government in Ms. Torbett’s case. 4) Ms. Porter (No. 99-639V): Based on the court’s findings pursuant to 42 U.S.C. § 300aa-12(e)(2)(B), as set forth above, Ms. Porter’s ease is remanded to the special master for a determination of damages consistent with this Opinion and Order. The special master shall issue his decision on remand within 90 days of the original date of filing of this Opinion and Order, in accordance with RCFC, App. B Rule 28(b). 5) Ms. Hager (No. 01-307V): Based on the court’s findings pursuant to 42 U.S.C. § 300aa-12(e)(2)(B), as set forth above, Ms. Hager’s ease is remanded to the special master for a determination of damages consistent with this Opinion and Order. The special master shall issue his decision on remand within 90 days of the original date of filing of this Opinion and Order, in accordance with RCFC, App. B Rule 28(b). IT IS SO ORDERED. . Pursuant to Rule 18(b) of Appendix B of the Rules of the United States Court of Federal Claims ("RCFC, App. B”), this Opinion and Order was initially filed under seal on August 17, 2009. The parties had fourteen days from the date of filing of this Opinion and Order to propose redactions of any of the information herein. Neither party submitted any redactions. . AIH is “a chronic inflammatory disease of the liver, characterized by a loss of tolerance against hepatocytes leading to the destruction of hepatic *77parenchyma.” Myers Ex. A Tab 2 (Michael P. Manns & Arndt Vogel, Autoimmune Hepatitis, From Mechanisms to Therapy, 43 Hepatology No. 2, Suppl. 1 S 132 (2006)). In lay terms, AIH is a condition in which the immune system attacks the liver as if it is foreign tissue. Throughout this Opinion and Order, exhibits labeled alphabetically (with numeric tabs) refer to exhibits submitted by the respondent in a given case (i.e., Rotoli Ex. A Tab 1), while those labeled numerically (with alphabetic tabs) are the petitioners’ exhibits (i.e., Rotoli Ex. 1 Tab A). . “The latter will rarely come into play except where the special master excludes evidence.” Munn v. Sec’y of HHS, 970 F.2d 863, 870 n. 10 (Fed.Cir.1992). . Specifically, the Federal Circuit has held that "[a] persuasive medical theory is demonstrated by proof of a logical sequence of cause and effect showing that the vaccination was the reason for the injury, the logical sequence being supported by reputable medical or scientific explanation, i.e., evidence in the form of scientific studies or expert medical testimony.” Althen, 418 F.3d at 1278 (quotation omitted); see also Knudsen v. Secy of HHS, 35 F.3d 543, 548 (Fed.Cir.1994) (“This logical sequence of cause and effect must be supported by a sound and reliable medical or scientific explanation.” (quotations omitted)). The Federal Circuit has further explained the second prong oí Althen thus; *79The second prong of the Althen ... test is not without meaning. There may well be a circumstance where it is found that a vaccine can cause the injury at issue and where the injury was temporally proximate to the vaccination, but it is illogical to conclude that the injury was actually caused by the vaccine. A claimant could satisfy the first and third prongs without satisfying the second prong when medical records and medical opinions do not suggest that the vaccine caused the injury, or where the probability of coincidence or another cause prevents the claimant from proving that the vaccine caused the injury by preponderant evidence. Capizzano v. Sec'y of HHS, 440 F.3d 1317, 1327 (Fed.Cir.2006). . The “proximate temporal relationship” standard requires “preponderant proof that the onset of symptoms occurred within a timeframe for which, given the medical understanding of, the disorder's etiology, it is medically acceptable to infer causation-in-fact.” de Bazan, 539 F.3d at 1352. . The Federal Circuit has explained that, "[s]o long as the petitioner has satisfied all three prongs of the Althen test, she bears no burden to rule out possible alternative causes.” de Bazan, 539 F.3d at 1352. However, “a petitioner may instead rule out possible alternative causes to prove causation-in-fact when evidence as to the Althen requirements is insufficient.” de Bazan, 539 F.3d at 1352 n. 3 (emphasis in original). . Nor is it dispositive that the state of medical knowledge regarding a causal link between the vaccination and the illness can be characterized as “controversial.” Bunting, 931 F.2d at 873. . 42 U.S.C. § 300aa-13(a)(1) stales, "The special master or court may not make ... a finding [of preponderant evidence of causation] based on the claims of a petitioner alone, unsubstantiated by medical records or by medical opinion.” . As the Federal Circuit recently noted, however, [although Althen and Capizzano make clear that a claimant need not produce medical literature or epidemiological evidence to establish causation under the Vaccine Act, where such evidence is submitted, the special master can consider it in reaching an informed judgment as to whether a particular vaccination likely caused a particular injury. See Daubert[v. Merrell Dow Pharms., Inc.], 509 U.S. [579,] 593-97, 113 S.Ct. 2786, 125 L.Ed.2d 469[(1993)] (noting that one factor in assessing the reliability of expert testimony is whether the theory espoused enjoys general acceptance within a relevant scientific community). Andreu, 569 F.3d at 1379-80 ("The assessment of whether a proffered theory of causation is 'reputable' can involve assessment of the relevant scientific data.”). . Even the special master noted that, [i]n other cases, Dr. Bellanti has offered opinions that a vaccine caused a particular condition that Special Masters have found persuasive. E.g., Keenan v. Sec'y of [HHS], No. 99-561V, 2007 WL 1231592 *10 (Fed.Cl.Spec.Mstr. Apr. 5, 2007); Bowes v. Sec’y of [HHS], No. 01-481V, 2006 WL 2849816 (Fed.Cl.Spec.Mstr. Sept. 8, 2006). E.g., Rotoli, 2008 WL 4483739 at *30. . For example, with regard to the petitioners' medical theory causally linking the hepatitis B vaccine with AIH in general, the special master cited Dr. Bellanti’s lack of credibility as a reason to reject molecular mimicry, Rotoli, 2008 WL 4483739 at *7, and challenge-rechallenge, id. at * 16. In Ms. Rotoli's case, the special master also pointed to Dr. Bellanti's credibility as a reason to dismiss Ms. Rotoli's arguments regarding the temporal relationship of her symptoms to the vaccine. Id. at *17. . Dr. Bellanti further testified that, in his opinion, the hepatitis B vaccine was likely the cause of the petitioners’ injuries in the five individual cases, as will be discussed below. . The general causation sections of Dr. Bellan-ti's reports were virtually the same in each case. For the sake of simplicity, in discussing the petitioners’ medical theory, the court will cite to the reports, exhibits, and special master’s decision in Ms. Rotoli’s case. . "A rechallenge event occurs when a patient who had an adverse reaction to a vaccine suffers worsened symptoms after an additional injection of the vaccine.” Capizzano, 440 F.3d at 1322. . With regard to the other three mechanisms, Dr. Bellanti stated, There are a number of recognized mechanisms by which infections and vaccines can cause autoimmune disease. The most common is the concept of molecular mimicry.... The finding of molecular mimicry in which cross-reactivity between epitopes of hepatitis viruses and certain liver antigens exists adds credence to a hypothesis for the pathogenesis of [AIH]. Another mechanism involves ... bystander activation, where the vaccine, or some compo-nenl[ ], causes tissue damage. The tissue damage leads to the exposure of antigens to which the body is not tolerized and believes is "foreign[.”] When the immune system fails to recognize the cryptic antigens as "self,” it assaults the self-antigens in a self-perpetuating destructive attack. Polyclonal activation is another potential pathogenic mechanism of autoimmunity that has received attention in numerous articles. In this situation, adjuvants in the vaccines poten-tiate the immune response which then becomes misdirected. Some of the adjuvants, like thimerosal, can even induce autoimmune phenomena in animal models without an infecting antigen being present. Rotoli Ex. 46 at 4. . In Ms. Hager’s case, the respondent also submitted the expert report and testimony of Dr. Melvin Berger, a Professor of Pediatrics and Pathology at Case Western Reserve University School of Medicine in Cleveland, OH. . The Beran study was undertaken to determine, in light of the risk of disease exacerbation or relapse if patients with AIH contract the hepatitis A or B viruses, whether it is appropriate to immunize such patients with a combined hepatitis A and hepatitis B vaccine. Rotoli Ex. 1004. Indeed, Dr. Zweiman testified that “it is generally recommended that all individuals with chronic inflammatory disease of the liver receive a course of hepatitis B immunization.” Tr. 129. However, the petitioners argue that the Beran study, which examined only ten patients with AIH, did not have a sufficiently large sample size to detect the rare reaction of people whose genetic makeup makes them susceptible to contracting AIH triggered by the hepatitis B vaccine. As the petitioners emphasize, they are not claiming that all cases of AIH are related to the hepatitis B vaccine, but that the vaccine can trigger AIH in certain genetically predisposed individuals. . Specifically, with regard to the article by Hopf and Móller, Dr. Koff indicated, based on his translation of the title of the article, which was written in German, but without having read the article, that the patient involved likely had chronic hepatitis B rather than AIH. Tr. 458-59. With regard to the article by Laskus and Slusarczky, Dr. Koff testified that, because there was no testing for hepatitis C at the time, it was possible that what was reported in the article as hepatitis B-related AIH could have been hepatitis C-related AIH instead. Tr. 459-60. Similarly, with regard to the articles by Csepregi and Nobili, submitted by Dr. Bellanti in support of his assertion that the hepatitis B virus causes AIH, the respondent’s experts testified that the reports, which each described only one patient, did not contain any meaningful analysis of causation. See, e.g., Tr. 1144-49. Finally, with regard to Dr. Krawitt’s article stating that "the most convincing evidence [identifying an infectious agent triggering AIH] is related to hepatitis viruses,” Rotoli Ex. 46 Tab A at 1, the respondent's experts pointed out that the articles cited in support of this statement indicate only that AIH has been associated with hepatitis A infection and hepatitis C infection. Dr. Koff recounted that, between sessions of hearings in these cases, he spoke to Dr. Krawitt and two other experts in AIH, all of whom told Dr. Koff that they were not aware of the hepatitis B virus causing AIH. Tr. 989-92. The court is deeply suspicious of the conclusions the respondent would draw from Dr. Koffs description of what he was told in out-of-court conversations with Dr. Krawitt and others, especially given that the substance of those conversations varied from the statements in Dr. Krawitt's own writings. . The petitioners presented some evidence to show that non-responsiveness to the hepatitis B vaccine may correlate with a propensity for autoimmune illness. Rotoli Ex. 95 (Cesare Belloni et al., No Evidence, of Autoimmunity in 6-Year-Old Children Immunized at Birth with Recombinant Hepatitis B Vaccine, 110 Pediatrics 1, 1-4 (July 2002) ("[A] high frequency (30%) of autoantibod-ies, in particular SMA, was observed in the non-responder children. The SMA-positive children carried [a] haplotype [that is] a well-known predisposing factor for autoimmune disorders.”). . Elevated ALT, albumin, and ALP are all consistent with liver problems. . The court notes that the evidence in Mr. Myers' case also raised questions as to whether he had demonstrated an appropriate temporal relationship between the onset of his disease and the hepatitis B vaccine. However, because the court finds, as discussed supra, that Mr. Myers has failed to satisfy the medical theory prong of Althen and therefore cannot recover for his injuries, the court does not have occasion to reach the remaining Althen factors in his case. . Ms. Torbett's use of minocycline and diclofe-nac is not specifically mentioned in Dr. Williams’ reports. However, Dr. Williams had the records from Ms. Torbett's doctor, Dr. Grainger, and her rheumatologist. Dr. Temming. Dr. Temming's reports do note that Ms. Torbett was taking mi-nocycline and diclofenac. . As noted above, Dr. Bellanti testified that a reasonable time to expect an adverse reaction is roughly fourteen to forty days after receipt of a dose of a vaccination. Tr. 34. . Indeed, Dr. Krawitt also listed minocycline as a cause of "hepatocellular injury that mimics [AIH]." Torbett Ex. A Tab 1. . Ms. Torbett continued to take minocycline until February 1999, with a two-week break in October 1998. She discontinued use upon the recommendation of a doctor who thought it might be causing her AIH. . Unlike in Ms. Porter's case, discussed infra, Ms. Torbett was taking minocycline at the time her illness developed. . Indeed, Dr. Krawitt also listed minocycline as a cause of "hepatocellular injury that mimics [AIH].” Porter Ex. D Tab 1. . To illustrate the spike in Ms. Porter’s enzyme levels, on July 8, 1992, her AST and ALT were 21 and 22, respectively. On March 1, 1993, her AST and ALT spiked to 814 and 1221, respectively. Similarly, on March 15, 1993, her AST and ALT were 1012 and 1047, and on March 18, 1993, they were 968 and 1023, respectively. By April 2, 1993, her levels had dropped to 196 and 307. By October of 1993, her levels returned to the double digits, with her AST and ALT measuring 36 and 53, respectively. Porter Ex. I. . On April 23, 1993, Ms. Porter resumed taking minocycline. . Though the Lewis and Zimmerman chapter was late-submitted in Ms. Porter's case, it had been previously filed in Ms. Torbett's case—by the respondent—as Torbett Ex. C Tab 1. . Specifically, Dr. Koff stated that Ms. Hager has either [PSC], a chronic cholestatic liver disease ... of unknown etiology characterized by inflammation and fibrosis of the biliary tree, or a disorder called autoimmune sclerosing cholangitis, which shares many features with [PSC]. Both are thought to be immunologically mediated. In both, large or small bile ducts are affected, antinuclear antibodies may be present and inflammatory bowel disease ... is common. Whether these are truly different disorders or whether one can evolve into the other remains uncertain. Hager Ex. A at 2 (emphasis added). . In addition, the court is persuaded by Dr. Koff's testimony to the effect that autoimmune sclerosing cholangitis shares many features with [PSC]. Both are thought to be immunologically mediated. In both, large or small bile ducts are affected, antinuclear antibodies may be present and inflammatory bowel disease ... is common. Whether these are truly different disorders or whether one can evolve into the other remains uncertain. Hager Ex. A at 2. Thus, the court need not decide which of the two conditions — PSC or autoimmune sclerosing cholangitis — Ms. Hager's AIH evolved into or overlapped with. . Specifically, Dr. Berger stated: She initially responded well to treatment with prednisone and imuran, which are usually used for [AIH].... [I]n retrospect, it seems quite clear that this child has an "overlap” syndrome of [AIH] with autoimmune scleros-ing cholangitis (ASC). This is a well-reported association.... Allison's case, with hyperglo-bulinemia and positive anti-smooth muscle antibodies!,] seems most similar to those described by McNair et al. ["Autoimmune hepatitis overlapping with primary sclerosing cholangitis in five cases,” 93 Am. J. Gastroenterol. 5:777-84 (May 1998)]. Hager Ex. A at 4. . As noted above, Dr. Bellanti testified that a reasonable time to expect an adverse reaction is roughly fourteen to forty days after receipt of a dose of a vaccination. Tr. 34. . A liver biopsy performed on September 24, 1999 showed fibrosis, indicating a disease that had been present for at least a year, according to Dr. Koff. However, in that same biopsy, no cirrhosis was noted. Dr. Koff testified that a showing of cirrhosis would indicate a disease that had been present "for years.” Tr. 435. By contrast, eighteen months later, on March 29, 2001, a biopsy and transhepatic cholangiogram under ultrasound did show "a pattern more suggestive of distortion due to cirrhosis than to sclerosing cho-langitis.” Hager Ex. 9 at 475-76. . Having found that Ms. Hager has met her burden to show actual causation under Althen, the court does not have occasion to reach the question of whether Ms. Hager might prevail under a significant aggravation theory. | opinion_xml_harvard | 18,371 | 2022-07-20 21:00:37.688647+00 | 020lead | t | f | 6,776,250 | Firestone | null | U | f | Published | 1 | Rotoli v. Secretary of Health & Human Services | Rotoli | Claudia ROTOLI, David Myers, Colleen Torbett, Mona Porter, Allison Hager v. SECRETARY OF HEALTH AND HUMAN SERVICES | null | null | null | null | null | null | null | null | null | 63,757,470 | Nos. 99-644V, 99-631V, 99-660V, 99-639V, 01-307V | 0 | uscfc | FS | t | Federal Claims | United States Court of Federal Claims |
7,607,959 | Denied. | opinion_xml_harvard | 1 | 2022-07-29 08:34:32.857055+00 | 020lead | t | f | 7,673,223 | null | null | U | f | Published | 0 | L.D.R. v. L.R. | L.D.R. | L.D.R., Appellant/Petitioner(s) v. In the Int: L.R., Appellee/Respondent(s). | null | null | null | null | null | null | null | null | null | 64,674,309 | CASE NO.: 2D17–672 | 0 | fladistctapp | SA | t | District Court of Appeal of Florida | District Court of Appeal of Florida |
1,743,387 | 289 Wis. 2d 127 (2005) 2006 WI App 4 710 N.W.2d 175 AON RISK SERVICES, INC., of Wisconsin, a Wisconsin corporation, and Aon Risk Services, Inc., of Maryland, a foreign corporation, Plaintiffs-Appellants-Cross-Respondents, v. James A. LIEBENSTEIN and David Pautz, Defendants-Cross-Appellants, PALMER & CAY OF WISCONSIN, LLC, a Wisconsin limited liability company, and Palmer & Cay Holdings, Inc. a foreign corporation, Defendants-Respondents-Cross-Appellants. AON RISK SERVICES, INC., of Wisconsin, a Wisconsin corporation, and Aon Risk Services, Inc., of Maryland, a foreign corporation, Plaintiffs-Appellants-Cross-Respondents, v. PALMER & CAY, INC., a foreign corporation, Defendant-Respondent-Cross-Appellant. Nos. 2004AP2163, 2004AP2164. Court of Appeals of Wisconsin. Oral argument December 6, 2005. Decided December 28, 2005. On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the briefs of David M. Lucey of Foley & Lardner, LLP, of Milwaukee. Oral Argument by David M. Lucey. On behalf of the defendants-respondents-cross-appellants and defendants-cross-appellants, the cause was submitted on the briefs of Jane C. Schlicht of Cook & Franke, S.C., of Milwaukee. Oral argument by Jane C. Schlicht. Before Wedemeyer, P.J., Fine and Curley, JJ. *139 ¶ 1. FINE, J. Aon Risk Services, Inc., of Wisconsin, and its parent, Aon Risk Services, Inc., of Maryland, in appeal number 2004AP2163 (Milwaukee County Circuit Court case number 2002-CV-932), appeal the trial court's grant of summary judgment dismissing their claims against Palmer & Cay of Wisconsin, LLC, and Palmer & Cay Holdings, Inc., and also appeal the trial court's denial of leave for the Aon companies to further amend their complaint. [1] James A. Liebenstein, David Pautz, and Palmer & Cay cross-appeal, pursuant to our leave, the trial court's rulings in *140 connection with the enforceability of non-compete agreements Liebenstein and Pautz signed with predecessors of Aon. We affirm and reverse, as summarized in Part I.C. of this opinion. ¶ 2. Aon also appeals, in appeal number 2004AP2164 (Milwaukee County Circuit Court case number 2003-CV-10621), the trial court's order granting summary judgment dismissing Aon's claims against Palmer & Cay, Inc. (the parent of Palmer & Cay of Wisconsin, LLC, and Palmer & Cay Holdings, Inc.) asserted in that action. Palmer & Cay, Inc., was not named as a party in appeal number -2163. Palmer & Cay, Inc., cross-appeals in appeal number -2164 from the trial court's order denying its request for frivolous-action costs and attorney fees under WIS. STAT. § 814.025 (2003-04). We affirm and reverse, as summarized in Part II.B. of this opinion. ¶ 3. These appeals were consolidated by our order. *141 I. APPEAL NUMBER -2163 A. ¶ 4. Aon and Palmer & Cay sell and service commercial-property and casualty insurance for businesses. According to Aon's amended complaint, Palmer & Cay entered the Milwaukee market in November of 2001, and is Aon's "direct competitor." James A. Liebenstein worked for Aon as a senior vice president in Aon's Milwaukee office until he resigned in November of 2001 to, as phrased by Aon's amended complaint, "start a Milwaukee office for Palmer & Cay." David Pautz worked as an "account executive" in Aon's Milwaukee office until he, again according to the amended complaint, joined "Liebenstein in starting Palmer & Cay's new Milwaukee office." ¶ 5. Aon sued Liebenstein and Pautz, claiming that they each breached both their contractual and common-law duties of loyalty to Aon. Aon also sued Palmer & Cay for helping Liebenstein and Pautz breach those duties and also for tortuously interfering with Aon's relationships with Aon's customers. Aon's amended complaint in appeal number -2163 asserted the following claims: Count One: An accounting from Palmer & Cay and Liebenstein and Pautz for their alleged misappropriation of Aon's "confidential information" and solicitation of Aon's customers, all of which was alleged to violate Liebenstein's and Pautz's employment agreements with Aon. Count Two: An injunction against Liebenstein and Pautz enforcing their non-compete agreements with Aon, and preventing their use of Aon's "confidential business information." *142 Count Three: Against Liebenstein and Pautz for damages Aon asserted it sustained as a result of Liebenstein's and Pautz's alleged breach of their contracts with Aon. Count Four: Against Palmer & Cay and Liebenstein and Pautz as employees of Palmer & Cay seeking Aon's damages arising from the defendants' alleged tortious interference with Aon's relationship with Aon's customers. Count Five: Against Liebenstein and Pautz alleging that they breached their agency and loyalty duties to Aon. Count Six: Against Palmer & Cay for helping Liebenstein and Pautz breach their "agency and other duties to Aon." Count Seven: Against all of the defendants, a claim for punitive damages. As sources of Liebenstein's and Pautz's contractual duties of loyalty to Aon, Aon's amended complaint pointed to agreements executed by Liebenstein and Pautz when they were employees of an Aon predecessor, promising, in essence to: (1) not disclose to competitors confidential information; (2) not solicit their employer's customers for a competing business, either while they worked for Aon's predecessor or for two years thereafter; and (3) use their best efforts to advance the predecessor company's business while they worked for it. We address in turn each of Aon's claims against Palmer & Cay in light of the cross-appeal by Liebenstein, Pautz, and Palmer & Cay, which we discuss in its appropriate slot in Part I.B.1. below. *143 B. ¶ 6. We review de novo a trial court's grant of summary judgment. Green Spring Farms v. Kersten, 136 Wis. 2d 304 , 315-317, 401 N.W.2d 816 , 820-821 (1987). In assessing whether summary judgment is appropriate, we first determine whether the complaint states a claim, and, if so, whether there are any genuine issues of material fact for trial. Preloznik v. City of Madison, 113 Wis. 2d 112 , 116, 334 N.W.2d 580 , 582-583 (Ct. App. 1983). In evaluating the complaint, we determine whether, looking at the facts alleged in a light most favorable to the plaintiff, those facts state claims for relief. See Doe v. Archdiocese of Milwaukee, 2005 WI 123 , ¶ 19, 284 Wis. 2d 307 , 321, 700 N.W.2d 180 , 186-187. Although we accept "`the facts pled as true,'" a complaint's legal conclusions are analyzed de novo, both by the trial court initially, and by us on our de novo review. Ibid. (quoted source omitted). Stated another way, mere conclusory assertions that echo legal or statutory standards are insufficient; a complaint's assertions must "allege the ultimate facts" that support the plaintiff's claims. ECT Int'l, Inc. v. Zwerlein, 228 Wis. 2d 343 , 349, 597 N.W.2d 479 , 482 (Ct. App. 1999) (trade-secret protection under WIS. STAT. § 134.90). ¶ 7. In order to survive summary judgment, the party with the burden of proof on an element in the case must establish that there is at least a genuine issue of fact on that element by submitting evidentiary material "set[ting] forth specific facts," WIS. STAT. RULE 802.08(3), pertinent to that element, Transportation Ins. Co. v. Hunzinger Constr. Co., 179 Wis. 2d 281 , 290-292, 507 N.W.2d 136 , 139-140 (Ct. App. 1993); Estate of Anderson *144 v. Anderson, 147 Wis. 2d 83 , 88, 432 N.W.2d 923 , 926 (Ct. App. 1988) (party asserting affirmative of a proposition has the burden of proof); see also Schaffer ex rel. Schaffer v. Weast, 126 S. Ct. 528 , 534 (2005) ("`Perhaps the broadest and most accepted idea is that the person who seeks court action should justify the request, which means that the plaintiffs bear the burdens on the elements in their claims.'") (quoted source omitted). As with the assessment of whether a complaint states a claim, mere conclusory assertions are not enough. Thus, summary judgment is not appropriate if both the complaint states a claim and there are genuine issues for trial. RULE 802.08(2). We analyze Aon's amended complaint and the parties' summary-judgment material against this background. 1. Palmer & Cay's Liability for the Disclosure of Claimed Confidential Aon Information by Liebenstein and Pautz. ¶ 8. As we have seen, Count One asserts claims against Palmer & Cay based on two things Aon contends Liebenstein and Pautz did: (1) their alleged misappropriation of confidential Aon customer-list information, and (2) their alleged violation of their non-compete agreements. We look at each aspect of Count One in turn. ¶ 9. The ability in Wisconsin to assert a claim based on the alleged misappropriation of confidential information is circumscribed by WIS. STAT. § 134.90, Wisconsin's enactment of the Uniform Trade Secrets Act. [2] First, the Act provides remedies for the misappropriation of "trade secrets," which, as material here, *145 must be "information [that] derives [its] independent economic value, actual or potential, from not being *146 generally known to, and not being readily ascertainable by proper means by, other persons who can obtain *147 economic value from its disclosure or use." Sec. 134.90(1)(c)1. This requires that the information for which trade-secret protection is sought be "available from only one source" the party seeking trade-secret *148 protection. ECT Int'l, 228 Wis. 2d at 349, 597 N.W.2d at 482. Further, the party seeking trade-secret protection for information must specify how and why the information qualifies; that is, the party must show the unique characteristics of that information that make it worthy of protection. See id., 228 Wis. 2d at 350-351, 597 N.W.2d at 482-483. Generally, customer lists are not trade secrets under the Act because potential customers of most businesses are readily ascertainable from public records and sources. See Burbank Grease Servs., LLC v. Sokolowski, 2005 WI App 28 , ¶¶ 9, 14-18, 278 Wis. 2d 698 , 706, 709-712, 693 N.W.2d 89 , 93, 94-96, review granted, 2005 WI 134 , 282 Wis. 2d 719 , 700 N.W.2d 271 (WI May 1, 2005) (No. 2004AP468). [3] ¶ 10. Second, the Act "displaces conflicting tort law, restitutionary law and any other law of this state providing a civil remedy for misappropriation of a trade secret," unless the claimant seeks enforcement of either a "contractual remedy, whether or not based upon misappropriation of a trade secret," or a "civil remedy not based upon misappropriation of a trade secret." WIS. STAT. § 134.90(6). This pre-empts all common-law claims based on the alleged misappropriation of information, irrespective of whether that information qualifies as a "trade secret" under the Act. Burbank Grease, 2005 WI App 28 , ¶¶ 29-37, 278 Wis. 2d at 717-724, 693 N.W.2d at 98-102. Thus, we must first determine whether Aon has passed summary-judgment muster *149 showing that Palmer & Cay may be responsible for Liebenstein's and Pautz's alleged disclosure to it of purported confidential Aon information, and this requires an initial inquiry whether the information is a "trade secret" under § 134.90. If it is, then the procedures of the Act govern; if it is not, pre-emption bars the claims Aon makes in Count One of its amended complaint in appeal number -2163 insofar as the disclosure-of-confidential-information claims rest on common-law, not contractual, duties. ¶ 11. As we have seen, "trade secret" is defined by Wisconsin's Uniform Trade Secrets Act as: information, including a formula, pattern, compilation, program, device, method, technique or process to which all of the following apply: 1. The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. 2. The information is the subject of efforts to maintain its secrecy that are reasonable under the circumstances. WIS. STAT. § 134.90(1)(c). As we have also seen, this requires that the information for which trade-secret protection is sought must be "available from only one source" the party claiming that someone has misappropriated that information. ECT Int'l, 228 Wis. 2d at 349, 597 N.W.2d at 482. Although in its main and reply briefs in appeal number -2163, Aon points to material in the Record supporting its contention that Liebenstein and Pautz disclosed to Palmer & Cay customer *150 lists of Aon, it has not developed any argument as to how or why that information is within the Act's definition of "trade secret." Accordingly, we take that as a concession that this information, which Aon's main brief in appeal number -2163 characterizes as "obviously confidential information about Aon's customers and prospective customers," was not a "trade secret" under the Act. See League of Women Voters v. Madison Cmty. Found., 2005 WI App 239 , ¶ 19, 288 Wis. 2d 128 , 140, 707 N.W.2d 285 , 291 (appellant "must present developed arguments if it desires this court to address" its contentions). [4] *151 ¶ 12. WISCONSIN STAT. § 134.90(6)(b)1 does not, however, pre-empt "[a]ny contractual remedy, whether or not based upon misappropriation of a trade secret." Cf. Burbank Grease, 2005 WI App 28 , ¶ 3, 278 Wis. 2d at 703, 693 N.W.2d at 91 (employee was "never asked to sign a noncompete agreement"; no indication from decision that employee ever signed an agreement to not disclose his employer's confidential information). Thus, if either Liebenstein's or Pautz's non-compete agreement with an Aon predecessor is both enforceable and prevents either of them from giving confidential Aon information to Palmer & Cay, and they did so with Palmer & Cay's help or connivance, Count One of Aon's amended complaint states a claim. See St. Francis Sav. & Loan Ass'n v. Hearthside Homes, Inc., 65 Wis. 2d 74 , 81, 221 N.W.2d 840 , 844 (1974) ("`A person who, without being privileged to do so, intentionally causes or assists an agent to violate a duty to his principal is subject to liability to the principal.'") (adopting and quoting RESTATEMENT (SECOND) OF AGENCY § 312 (1958)). ¶ 13. When Liebenstein first started to work for Aon's predecessor, he agreed that he would not, "during the term of [his] employment and for two (2) years after termination thereof" disclose his employer's confidential information, which was defined to "include[], but is not limited to policy expiration dates, policy terms, conditions and rates, familiarity with customer's risk characteristics, and information concerning the insurance markets for large and complex commercial risks." Pautz also agreed when he first started to work for Aon's predecessor to not disclose, "during the term of [his] employment and for two (2) years after Termination Date," similarly defined "confidential information." *152 ¶ 14. In their cross-appeal, Liebenstein, Pautz, and Palmer & Cay contend that these agreements are not enforceable and thus the trial court erred in denying their motion for summary judgment seeking dismissal of claims resting on those agreements. We disagree. ¶ 15. Non-compete agreements must satisfy WIS. STAT. § 103.465, which provides: A covenant by an assistant, servant or agent not to compete with his or her employer or principal during the term of the employment or agency, or after the termination of that employment or agency, within a specified territory and during a specified time is lawful and enforceable only if the restrictions imposed are reasonably necessary for the protection of the employer or principal. Any covenant, described in this subsection, imposing an unreasonable restraint is illegal, void and unenforceable even as to any part of the covenant or performance that would be a reasonable restraint. The defendants contend that the Liebenstein and Pautz agreements with Aon's predecessor are unenforceable because Aon did not enforce similar restraints on other employees, and, also, because the restrictions were not, as phrased by the statute, "reasonably necessary" for Aon's "protection," and are thus "too broad to be enforceable in Wisconsin." (Bolding in quotation from Palmer & Cay's brief omitted.) Whether the covenant is reasonably necessary to protect the employer depends on the totality of the circumstances and is a question of law to be resolved on the basis of factual findings. "[T]o enforce a restraint, the employee must present a substantial risk either to the employer's relationships with his customers or with *153 respect to confidential business information." The employer has the burden of proving the reasonable necessity of the restrictive covenant. NBZ, Inc. v. Pilarski, 185 Wis. 2d 827 , 840, 520 N.W.2d 93 , 97 (Ct. App. 1994) (quoted source and citations omitted). The Record here does not present us with the requisite "totality of the circumstances" from which to assess the enforceability of the agreements. "Summary judgment is not to be a trial on affidavits and depositions." Lecus v. American Mut. Ins. Co. of Boston, 81 Wis. 2d 183 , 189, 260 N.W.2d 241 , 243 (1977); see also Envirologix Corp. v. City of Waukesha, 192 Wis. 2d 277 , 296, 531 N.W.2d 357 , 366 (Ct. App. 1995) ("Summary judgment should not be granted unless the moving party demonstrates a right to a judgment with such clarity as to leave no room for controversy."). Indeed, the precise scope of duties owed by either Liebenstein or Pautz to Aon requires that the pertinent facts be "fully developed" at a trial. Bass v. Ambrosius, 185 Wis. 2d 879 , 890, 520 N.W.2d 625 , 629 (Ct. App. 1994) (resolution of complex legal issues may require full exposition of facts). [5] *154 ¶ 16. Liebenstein, Pautz, and Palmer & Cay also complain that the trial court erroneously truncated their ability to present a factual basis controverting Aon's projected proof in support of its burden under WIS. STAT. § 103.465 when it ruled in limine that: (1) the defendants' proof concerning Aon's "practices of requiring employees to sign restrictive covenants" was to "be limited to evidence concerning employees similarly situated to either defendant James Liebenstein or defendant David Pautz who were hired by [Aon's predecessor] within six months before or after Mr. Liebenstein *155 or Mr. Pautz was hired," and (2) the defendants' evidence concerning Aon's "practices of enforcing restrictive covenants" was to "be limited to employees whose employment with Aon-Wisconsin terminated within six months before or six months after" Liebenstein and Pautz left Aon "on November 26, 2001." This cuts the loaf too thinly. ¶ 17. Although trial-court rulings on evidence are discretionary, State v. Pharr, 115 Wis. 2d 334 , 342, 340 N.W.2d 498 , 501 (1983), a party's right to present relevant evidence should be respected. Evidence is "relevant" if it has " any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." WIS. STAT. RULE 904.01 (emphasis added). "The criterion of relevancy is whether the evidence sought to be introduced would shed any light on the subject of inquiry." Rogers v. State, 93 Wis. 2d 682 , 688, 287 N.W.2d 774 , 776 (1980). Further, to be relevant, evidence need only shed light on a "`single link'" in connection with a party's syllogism of proof. State v. Brewer, 195 Wis. 2d 295 , 309, 536 N.W.2d 406 , 412 (Ct. App. 1995) (quoted source omitted). As we have seen, whether non-compete agreements survive WIS. STAT. § 103.465 is a question of law to be decided by the trial court after a full exegesis of the facts. NBZ, 185 Wis. 2d at 840, 520 N.W.2d at 97. The weight to be given to those facts in assessing the requisite "totality of the circumstances," as phrased by NBZ, will be the trial court's prerogative in reaching its legal conclusion on whether the Liebenstein and Pautz agreements are enforceable. See ibid. Accordingly, we reverse the trial court's order in limine restricting the scope of the defendants' proof at any trial. *156 ¶ 18. If the trial court determines on remand that the non-compete agreements signed by Liebenstein and Pautz are enforceable, then Aon has submitted sufficient summary-judgment material that indicates that there are fact issues whether either Liebenstein or Pautz, or both, breached those agreements by disclosing to Palmer & Cay confidential Aon customer information, both while they were still working for Aon and within two years after they left Aon. For example, in August of 2001, while he still worked for Aon, Pautz sent to one of his contacts at Palmer & Cay an extensive list of Aon's customers whom he projected, as the heading on the list indicated, were "Likely to Move" to Palmer & Cay once Liebenstein and Pautz did. The cover e-mail told Pautz's Palmer & Cay contact that attached to the e-mail were "various scenarios of how we envision business revenue flowing to Palmer & Cay" from Aon. Pautz testified at his deposition that " we . . . forwarded" that information to the Palmer & Cay contact. (Emphasis added.) Further, Liebenstein testified at his deposition that he went to Atlanta while he still worked at Aon and discussed with the Palmer & Cay contact a projected business plan for Palmer & Cay's Milwaukee office once they opened it. In light of Liebenstein's and Pautz's contacts with Palmer & Cay before they left their employment with Aon, there are fact issues whether Palmer & Cay helped them breach their employment agreements in connection with their alleged disclosure of confidential Aon customer information. 2. Alleged Tortious Interference by Liebenstein and Pautz, as Employees of Palmer & Cay, of Aon's Relationships with its Customers. ¶ 19. As we have seen, Counts Two and Three of Aon's amended complaint assert claims against Liebenstein *157 and Pautz only, and this appeal is only from the dismissal of Aon's claims against Palmer & Cay. Accordingly, we turn to Count Four. ¶ 20. Count Four alleged that "Liebenstein and/or Pautz, as Palmer & Cay's employees, have falsely told or suggested to certain of Aon's customers, including Northern Shared Medical, that Aon will be `getting out of' its relationships with smaller customer accounts, and would pursue business relationships only with large customer accounts." Count Four also alleged that Liebenstein and Pautz "told these customers that Aon would require them to deal with Aon's service center in Glenview, Illinois, and would not allow them to obtain service from Aon's Milwaukee office." Aon claimed that these comments were false, that Liebenstein and Pautz knew the comments were false, and that they were made "in order to encourage Aon's customers to switch their business to Palmer & Cay." The elements of tortious interference with a contract are: (1) the plaintiff had a contract or prospective contractual relationship with a third party; (2) the defendant interfered with the relationship; (3) the interference was intentional; (4) a causal connection exists between the interference and the damages; and (5) the defendant was not justified or privileged to interfere. Dorr v. Sacred Heart Hosp., 228 Wis. 2d 425 , 456, 597 N.W.2d 462 , 478 (Ct. App. 1999). In connection with part five of this test, truth is a defense. Liebe v. City Fin. Co., 98 Wis. 2d 10 , 16-19, 295 N.W.2d 16 , 19-21 (Ct. App. 1980). ¶ 21. Palmer & Cay has not argued for summary-judgment purposes that either Liebenstein or Pautz as employees of Palmer & Cay did not make the comments *158 about Aon's business plan to Aon's customers, or that this was not done to persuade Aon customers to switch their business to Palmer & Cay. Rather, Palmer & Cay contends that the comments were either "true" or "substantially true." The trial court determined that based on the internal Aon materials submitted to it by Palmer & Cay, the comments were "a reasonable inference" that could be drawn from Aon's business plan, "even if it's not the one [Aon] would have drawn, or even intended." This ignores, however, an affidavit submitted by Aon executed by Philip Prass, describing Prass as having been the "Resident Managing Director of Aon-Wisconsin's Milwaukee office since September 2001." ¶ 22. In his affidavit, Prass avers the following in direct contradiction to the comments that were alleged to have been made by Liebenstein and Pautz: "In my tenure with Aon-Wisconsin, it has never been the company's plan . . . to sever all of its relationships with smaller customer accounts and focus its sales efforts exclusively on larger accounts, nor has Aon-Wisconsin ever pursued such a strategy." "[I]t was not true in the fall of 2001, and it is not true today, that Aon-Wisconsin is `getting rid of' relationships with smaller customer accounts or that it will pursue business relationships only with larger customer accounts." "While many customers have been encouraged to deal with regional service centers for routine day-to-day matters, a customer is never precluded from dealing with a local Aon-Wisconsin office." "The Aon-Wisconsin office has and continues to assure its customers that notwithstanding the creation of the service centers, customers may deal *159 with the Milwaukee office on service issues. In fact, employees in the Milwaukee office, including me, deal with customers' service needs on a regular basis." "[I]t was not true in the fall of 2001, and it is not true today, that Aon-Wisconsin would require customers to deal with the Glenview, Illinois service center and would not allow customers to obtain service from personnel in Aon-Wisconsin's Milwaukee office." ¶ 23. As we have seen, summary judgment may not be granted when there is a genuine issue of material fact. WIS. STAT. RULE 802.08(2). Thus, the "drastic remedy" of granting summary judgment to deny a party its day in court "should not be granted unless the material facts are not in dispute, no competing inferences can arise, and the law that resolves the issue is clear." Lecus, 81 Wis. 2d at 189, 260 N.W.2d at 243. Inasmuch as the truth or falsity of Liebenstein's and Pautz's alleged misrepresentations to Aon's customers while Liebenstein and Pautz were employees of Palmer & Cay is the only issue in connection with the trial court's grant of summary judgment dismissing Count Four of Aon's amended complaint, and because a reasonable jury could, based on the evidentiary submissions, find for either party, we reverse the trial court's dismissal of Count Four. [6] *160 3. Palmer & Cay's Alleged Help to Liebenstein and Pautz in Breaching Their "Agency and Other Duties to Aon." ¶ 24. As we have seen, Count Five of Aon's amended complaint asserts claims against Liebenstein and Pautz only, and, as noted before, this appeal is only from the dismissal of Aon's claims against Palmer & Cay. Accordingly, we turn to Count Six. ¶ 25. In its brief on appeal, Aon contends that Palmer & Cay helped Liebenstein and Pautz breach their duties to Aon when, while still employed by Aon, Liebenstein and Pautz: (1) gave to Palmer & Cay confidential Aon information; (2) helped Palmer & Cay find office space for its Milwaukee office; and (3) "used Aon staff and facilities to send at least one Aon client promotional materials about Palmer & Cay." We assess Count Six in this light. ¶ 26. There is no doubt but that at least key employees in Wisconsin owe to their employer common-law duties of loyalty the precise nature of the employment necessary to trigger those duties and, also, the scope of those duties are often blurred at the edges. See Burg v. Miniature Precision Components, Inc., 111 Wis. 2d 1 , 4-7, 330 N.W.2d 192 , 194-195 (1983) (manager of company's thermoplastic molding department breached duty of loyalty to company by secretly having an ownership interest in a competing company) (no employment contract imposing duty of loyalty); Hartford Elevator, Inc. v. Lauer, 94 Wis. 2d 571 , 580, 289 N.W.2d 280 , 284 (1980) (theft of employer funds by mill manager was a breach of duty of loyalty owed to employer); General Auto. Mfg. Co. v. Singer, 19 Wis. 2d 528 , *161 530-535, 120 N.W.2d 659 , 660-663 (1963) (general manager of business whose duties were to solicit orders for machine shop violated contractual duty of loyalty by secretly diverting orders for his own benefit); Modern Materials, Inc. v. Advanced Tooling Specialists, Inc., 206 Wis. 2d 435 , 440-447, 557 N.W.2d 835 , 837-840 (Ct. App. 1996) (employee not a "`corporate officer'" or someone whose "responsibilities and authority" were at that "level" did not owe employer "fiduciary duty") (preparation while employed for starting a competing business) (no employment contract imposing duty of loyalty); see also Burbank Grease, 2005 WI App 28 , ¶ 39, 278 Wis. 2d at 725, 693 N.W.2d at 102 ("An employee that [ sic ] is an agent for his or her employer owes the employer a duty to act solely for the benefit of the employer during the term of employment; an employee breaches that duty by secretly engaging in competition with the employer during the employment term."). ¶ 27. Modern Materials adopted from a federal district-court decision the following criteria as to whether an employee owes his or her employer a common-law fiduciary duty: In order to show that an individual breached a fiduciary duty, the first element which must be established is that the defendant is an officer and therefore a fiduciary duty is owed. An officer is "a person charged with important functions of management such as a president, vice president, treasurer, etc." Among the facts a court may consider are: (1) the individual's managerial duties; (2) whether the position occupied is one of authority; and (3) whether the individual possesses superior knowledge and influence over another and is in a position of trust. Id., 206 Wis. 2d at 443, 557 N.W.2d at 838 (quoted source *162 and citations omitted). In the absence of a contract imposing specific duties of loyalty, if the employee whose acts are alleged to have breached a common-law duty of loyalty to his or her employer is not an officer, the inquiry then shifts to "whether [the] employee is vested with policy-making authority or has the ability to make decisions which bind the company." Id., 206 Wis. 2d at 444, 557 N.W.2d at 838. The trial court here determined as a matter of law that Liebenstein and Pautz did not fall within this rubric, and that any derivative liability of Palmer & Cay thus also fell. We disagree. ¶ 28. First, it is an issue of fact whether either Liebenstein or Pautz had the requisite managerial responsibilities in Aon's Milwaukee office to trigger their common-law duty of loyalty to Aon. Certainly, each had significant responsibilities, as evidenced by their titles and duties, that went beyond the mere ministerial. ¶ 29. Second, and most significant here, each had agreed in their employment contracts that they would not do anything that prejudiced Aon's right to their undivided loyalty. At the very least, therefore, there are facts that need to be fleshed out in connection with Liebenstein's and Pautz's dutiesboth common-law and, if the contracts are enforceable, contractual; we do not see with the requisite "clarity" that either Aon or Palmer & Cay are entitled to summary judgment on whether Liebenstein and Pautz owed any duties of loyalty to Aon, and, if they did, the scope of the duties as applicable to this case. See Envirologix Corp., 192 Wis. 2d at 296, 531 N.W.2d at 366. Indeed, the precise scope of the duties owed by either Liebenstein or Pautz to Aon requires that the pertinent facts be "fully developed" at a trial. See Bass, 185 Wis. 2d at 890, 520 N.W.2d at 629. ¶ 30. We now move to the specific allegations that Liebenstein and Pautz breached their duties of loyalty *163 to Aon while working for Aon, and Palmer & Cay's liability. As we have seen, Aon's brief raises three areas where, it claims, either Liebenstein or Pautz breached their duties of loyalty to Aon while still working there. We address them in turn to determine whether what they are alleged to have done would be a breach of loyalty if they owed such a duty to Aon. a. Confidential Information. ¶ 31. We have already discussed why any common-law tort claim based on the alleged misappropriation of confidential information is pre-empted by WIS. STAT. § 134.90. But, as we have also seen, both Liebenstein and Pautz had contracts that imposed on them duties to keep confidential information from competitors, and that § 134.90(6)(b)1 does not pre-empt claims based on contract. As indicated earlier, the validity of the contracts and their applicability here will have to be determined on remand. Further, as noted earlier, one who assists an employee to breach his or her duties of loyalty to his or her employer is liable to that employer for damages sustained by the employer as a result. St. Francis Sav. & Loan Ass'n, 65 Wis. 2d at 81, 221 N.W.2d at 844. Accordingly, Aon may maintain an action against Palmer & Cay based on contentions that Liebenstein or Pautz gave to Palmer & Cay confidential Aon information in breach of their respective employment agreements if the trial court determines on remand that the agreements are enforceable by Aon. b. Assistance to Palmer & Cay in Setting Up its Milwaukee Office. ¶ 32. As indicated, there are fact issues that need to be resolved to determine whether either Liebenstein *164 or Pautz owed duties of loyalty to Aon when they worked there. There is evidence in the Record that while he was still working at Aon and being paid by Aon, Pautz helped Palmer & Cay find space for its new Milwaukee office. For example, he sent a letter to one of his Palmer & Cay contacts offering "a brief explanation of the lessee documents [for the proposed Palmer & Cay office space in Milwaukee] attached." The letter closed with the following upbeat assessment of the projected move to Palmer & Cay by Aon personnel: On behalf of the team, I want to let you know that there is a lot of enthusiasm and energy to get deal [ sic ] moving forward. We have clients as well as prospects approaching us to let them know where we wind up. There is no doubt in our minds that Palmer & Cay is the right fit for our clients and would be clients. This will be fun as well as profitable for all. ¶ 33. Although Palmer & Cay's brief on this appeal makes light of Pautz's help in securing office space for Aon's competitor while he was still working for Aon, a reasonable jury could find that this breached Pautz's non-compete employment contract, if it is determined to be enforceable, and if Pautz owed to Aon common-law duties of loyalty, those duties as well. Simply put, a reasonable jury could find that the location and cost of Palmer & Cay's Milwaukee office were factors in the potential profitability of that office. c. Sending Palmer & Cay Promotional Materials to One of Aon's Clients. ¶ 34. Liebenstein testified at his deposition that when both he and his assistant, Lisa Cheke, were employed by Aon, Cheke tried to send to one of Aon's health-care customers, with whom Liebenstein had discussed the projected Aon service-center arrangements, *165 a packet of Palmer & Cay promotional materials that also touted the qualifications of a person who "heads up the Palmer & Cay health care practice in Atlanta." Although he denied during his deposition testimony that he had specifically mentioned Palmer & Cay to the Aon customer, he admitted that Cheke had told the customer that Liebenstein was going to go with Palmer & Cay, albeit contending that she disclosed that information on her own. According to Liebenstein's deposition testimony, Cheke "had put a Palmer & Cay brochure in a package that was going to [the Aon customer] in the mail room and that obviously someone from Aon opened up the sealed package and found that pamphlet in there." Apparently, though, according to a UPS document in the Record, the package was, as reflected by a stamp on the document, returned "to shipper," which was designated on the document as Aon Risk Services. Although Liebenstein disclaimed any intent that Cheke send the Palmer & Cay material to the customer, he acknowledged that someone at the customer's office had "asked her to send them something on Palmer & Cay." He also admitted that he had previously given to Cheke some Palmer & Cay promotional materials, not recalling whether he had given Cheke more than one copy. ¶ 35. Although the Palmer & Cay materials apparently never reached the Aon customer, a reasonable jury could find that trying to send the Palmer & Cay materials to that Aon customer was evidence that Liebenstein and Pautz breached duties of loyalty to Aon. Accordingly, the trial court's dismissal of Count Six of Aon's amended complaint is reversed. 4. Punitive-Damage Claim. ¶ 36. Aon's punitive-damage claim, asserted in Count Seven of its amended complaint, fell because the *166 trial court dismissed its substantive tort claims against Palmer & Cay. Thus, there has been no trial and it is premature for any assessment of whether, following presentation of Aon's evidence, a punitive-damage claim should go to the jury. Accordingly, the trial court's dismissal of Count Seven of Aon's amended complaint is reversed. 5. Motion by Aon to Further Amend its Complaint in Milwaukee County Circuit Court case number 2002-CV-932. ¶ 37. By motion filed March 19, 2003, Aon sought trial-court leave to file a second amended complaint to assert claims against Palmer & Cay based on Palmer & Cay's alleged intentional tortious interference with Aon's non-compete employment agreements with Liebenstein and Pautz. The trial court denied the motion, essentially for two reasons: (1) it had already orally ruled that Aon's first amended complaint against Palmer & Cay should be dismissed, and (2) it perceived the proposed second amended complaint as an end-run around that ruling: "The main thing that disturbs the Court is the fact that this is completely calculated as a response to [Palmer & Cay's] summary judgment motion." The trial court cited Mach v. Allison, 2003 WI App 11 , 259 Wis. 2d 686 , 656 N.W.2d 766 , as a basis for its decision to deny Aon's motion. ¶ 38. A party's right to amend a complaint is controlled by WIS. STAT. RULE 802.09(1), which, as material here, provides: A party may amend the party's pleading once as a matter of course at any time within 6 months after the summons and complaint are filed or within the time set in a scheduling order under s. 802.10. Otherwise a *167 party may amend the pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given at any stage of the action when justice so requires. In support of its motion for leave to file its proposed second amended complaint, Aon told the trial court that it had mistakenly believed that its first amended complaint had asserted a claim against Palmer & Cay for intentional tortious interference with Aon's noncompete employment agreements with Liebenstein and Pautz (presumably in Count Six), but, after the trial court had indicated otherwise during oral argument, it wanted to fix what it conceded may have been an error in drafting so Aon could have its full day in court: "I made a mistake in not adequately alleging this claim, as the Court has ruled, and I'm simply asking for the opportunity to restate pleadings so that the merits of this claim is [ sic ] presented and heard, and there's plenty of time to hear it." ¶ 39. A trial court's decision granting or denying leave to file an amended complaint is vested in that court's reasoned discretion. Mach, 2003 WI App 11 , ¶ 20, 259 Wis. 2d at 703-704, 656 N.W.2d at 774. Although the Rule's command that "leave shall be freely given at any stage of the action when justice so requires" applies before judgment is entered against the party seeking to amend its complaint, it does not apply after entry of that judgment because of the countervailing interests of the need for finality. Id., 2003 WI App 11 , ¶¶ 23-27, 259 Wis. 2d at 704-709, 656 N.W.2d at 774-777 ("[A]fter a motion for summary judgment has been granted, there is no presumption in favor of allowing the amendment."). *168 [T]he party seeking leave to amend must present a reason for granting the motion that is sufficient, when considered by the trial court in the sound exercise of its discretion, to overcome the value of the finality of judgment. The reasons why the party has not acted sooner, the length of time since the filing of the original complaint, the number and nature of prior amendments, and the nature of the proposed amendment are all relevant considerations, as is the effect on the defendant. However, the absence of specific prejudice to the defendant is not a sufficient reason, in itself, for allowing amendment, because that does not give appropriate weight to the value of the finality of judgment. Id., 2003 WI App 11 , ¶ 27, 259 Wis. 2d at 709, 656 N.W.2d at 777. Thus, if we were affirming the trial court's dismissal of Aon's claims against Palmer & Cay, the trial court's denial of leave to amend would be well within its discretion. Here, however, unlike the situation in Mach, we are reversing the trial court's grant of summary judgment, so the "finality" consideration falls. Thus, the "leave shall be freely given" command comes back into play. Ordinarily, we would remand to the trial court for a renewed analysis of whether leave to amend should be given, see id., 2003 WI App 11 , ¶ 29, 259 Wis. 2d at 711, 656 N.W.2d at 778, but there are no material countervailing considerations: Aon's claims against Palmer & Cay will be tried and the proposed amendment is within the scope of the original pleading. Accordingly, remand is not necessary because there is nothing in the Record, other than Palmer & Cay's annoyance, that militates against the "freely given" leave to which Aon is entitled under the Rule. See Estate of Christopherson v. Neugart, 2002 WI App 180 , ¶ 38, 256 Wis. 2d 969 , 994, 650 N.W.2d 52 , 65 (no need to remand where contrary ruling by trial court would be an erroneous exercise of discretion); cf. McCleary v. *169 State, 49 Wis. 2d 263 , 291, 182 N.W.2d 512 , 526 (1971) (supreme court exercised sentencing discretion in lieu of remand). C. ¶ 40. In sum, in appeal number -2163: (1) we reverse the trial court's grant of summary judgment to Palmer & Cay dismissing Aon's amended complaint, with the exception of Aon's claim against Palmer & Cay that we have determined is pre-empted by WIS. STAT. § 134.90; (2) we affirm the trial court's order denying the motion by Liebenstein, Pautz, and Palmer & Cay for a summary-judgment ruling that the non-compete agreements are not enforceable; (3) we reverse the trial court's order in limine restricting the evidence that the defendants can present in support of their contention that the non-compete agreements are not enforceable; and (4) we reverse the trial court's order denying Aon leave to file its proposed second amended complaint, and remand with directions that Aon's proposed second amended complaint be accepted for filing. II. APPEAL NUMBER -2164 A. 1. Aon's Appeal. ¶ 41. After the trial court in appeal number -2163 denied Aon's motion for leave to amend its complaint, Aon started a new action, this time against the parent company of the Palmer & Cay entities it had sued in appeal number -2163 This second action, on appeal as appeal number -2164, asserted claims against the *170 Palmer & Cay parent that were congruent with those precluded by the trial court's denial of leave for Aon to amend its complaint in the first action: a claim alleging that the Palmer & Cay parent intentionally interfered with the non-compete agreements Liebenstein and Pautz made with Aon's predecessor, and a claim for civil conspiracy based on the same allegations as the interference claim. The complaint in the new action asserted that in approximately August of 2001, "Palmer & Cay promised" both Liebenstein and Pautz, and "other Aon employees whom Palmer & Cay was recruiting for its new office in Wisconsin," that if Aon sought to enforce the non-compete agreements, Palmer & Cay would pay the employees' "legal fees to defend the litigation and would indemnify the employees from any damages awarded against them." These allegations, however, not only reprised those made in Aon's proposed second amended complaint in appeal number -2163 but were also asserted, albeit in a short-hand way, in Aon's first amended complaint in appeal number -2163. Thus, Aon alleged in its first amended complaint in appeal number -2163 that "Palmer & Cay was aware of the agency and other duties owed by the defendants Liebenstein and Pautz to Aon," and that "Palmer & Cay intentionally caused or assisted defendants Liebenstein and Pautz to breach" those alleged duties. Aon was more specific in its proposed second amended complaint in appeal number -2163, alleging that: Palmer & Cay knew, "[i]n the summer of 2001" that Liebenstein and Pautz had "Aon restrictive covenants"; Before Liebenstein left Aon, he talked to Palmer & Cay's "general counsel" who told him "that Aon would not be able to enforce the Liebenstein Agreement"; *171 Liebenstein later "relayed the results of his conversation with Palmer & Cay's general counsel to other Aon employees, including Pautz"; and "On information and belief, Palmer & Cay agreed to defend and/or indemnify Liebenstein and Pautz in the event that Aon sued them for their conduct in launching the proposed Palmer & Cay Milwaukee office, including but not limited to, their conduct in violating the Liebenstein and/or Pautz agreements." As noted, the trial court in appeal number -2163 denied Aon leave to amend its complaint in that action. As we discuss below, filing a new action is not an alternate way to amend a complaint. See United Pac. Ins. Co. v. Metropolitan Sewerage Comm'n, 114 Wis. 2d 258 , 261, 338 N.W.2d 298 , 299 (Ct. App. 1983). Indeed, a lawsuit may be dismissed in Wisconsin solely because there is already "[a]nother action pending between the same parties for the same cause." WIS. STAT. RULE 802.06(2)(a)10. ¶ 42. A party may not circumvent a ruling it does not like in one case (or a judge for whom the substitution-of-judge remedy is no longer available, see WIS. STAT. RULE 801.58) by filing a new action, unless the second action is based on claims that could not have been brought in the first action such as where, for example, either the party is entitled to a jury trial in the second action but not in the "pending" action, see Caulfield v. Caulfield, 183 Wis. 2d 83 , 90, 515 N.W.2d 278 , 281 (Ct. App. 1994), or where the second action is based on things that happened after the court in the first action denied leave to file an amended complaint, see Curtis v. Citibank, N.A., 226 F.3d 133 , 136-140 (2d Cir. 2000); cf. Menard, Inc. v. Liteway Lighting Prods., 2005 WI 98 , ¶¶ 40-42, 282 Wis. 2d 582 , 607-608, 698 N.W.2d 738 , *172 750-751 (noting that, in the context of the Uniform Commercial Code and claim-preclusion principles, a judgment on a seller's action against a buyer will not bar the buyer's subsequent lawsuit asserting that the product was defective if the buyer discovers the defects after entry of judgment) ("`Material operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be the basis of a second action not precluded by the first.'") (quoted source omitted). Significantly, unlike Wisconsin's WIS. STAT. RULE 802.06(2)(a)10, the federal system does not have a specific rule that prevents the duplicative filing of lawsuits. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 , 817 (1976); see also Curtis, 226 F.3d at 138; compare RULE 802.06(2)(a) (listing the defenses that may be raised "by motion," which includes the prior-pending-action defense), with RULE 12(b) of the Federal Rules of Civil Procedure (which does not recognize a prior-pending-action defense that can be "made by motion" under that rule), and RULE 8(c) of the Federal Rules of Civil Procedure (which does not even recognize a prior-pending-action as an affirmative defense). Thus, in the federal courts there is often an analysis that tracks claim-preclusion principles in determining whether the second action is barred by a pending first action between the same parties on the same issues. See Curtis, 226 F.3d at 138-140. Although the parties here focus on the intricacies of claim-preclusion, and the trial court based its decision dismissing the second action on a similar analysis, RULE 802.06(2)(a)10's, declaration that the existence of an action pending between the same parties for the same cause subjects the latter-filed action to dismissal is dispositive. See United Pac. Ins. Co., 114 Wis. 2d at 261, *173 338 N.W.2d at 299. We may, of course, affirm a trial court that reaches the right result, irrespective of the trial court's rationale. See State v. Holt, 128 Wis. 2d 110 , 124, 382 N.W.2d 679 , 687 (Ct. App. 1985) ¶ 43. Whether dismissal is warranted under WIS. STAT. RULE 802.06(2)(a)10 is left to the trial court's reasoned discretion. Caulfield, 183 Wis. 2d at 89, 515 N.W.2d at 281. As we have already seen, however, we may decide an issue vested in the trial court's discretion if remand would be a needless and wasteful step. See Estate of Christopherson, 2002 WI App 180 , ¶ 38, 256 Wis. 2d at 994, 650 N.W.2d at 65. That is the situation here. ¶ 44. Although Aon represented that it brought the second action against the parent Palmer & Cay company to be assured of being able to collect any judgment it recovered in the first action, it made not even a colorable representation why the parent company could not have been joined or added in the first action, even if an underlying statute of limitations had expired (about which we make no assessment). [7] See *174 WIS. STAT. RULE 802.09(3). [8] Indeed, the complaint in appeal number -2164 asserted that the defendant in that action, "Palmer & Cay, Inc. is a Georgia corporation with its principal office at 25 Bull Street, Savannah, Georgia," which was the same address its amended complaint in appeal number -2163 gave for Palmer & Cay Holdings, Inc. Aon has also not made even a colorable representation as to why the claims asserted in the second action, which encompassed claims it sought to raise in its proposed second amended complaint in the first action, and which, as we have seen, it conceded in the letter to the trial judge before whom the first action was pending, "arise from allegations similar to those" in the first action, could not have been asserted in the original action, or, if it believed that the trial court erred in *175 denying its motion for leave to file the proposed second amended complaint, why an appeal would not have given it a chance to seek rectification of any alleged error. Simply put, as we have already noted, if a party believes that a trial court has erred, the remedy is an appeal, not a new action. United Pac. Ins. Co., 114 Wis. 2d at 261, 338 N.W.2d at 299. The trial court did not erroneously exercise its discretion by preventing what it correctly saw as Aon's attempted end-run around its decision denying Aon leave to amend its complaint. We thus affirm the trial court's dismissal of Milwaukee County Circuit Court case number 2003-CV-10621. [9] 2. Palmer & Cay's Cross-Appeal. ¶ 45. Palmer & Cay contends that it is, contrary to the trial court's determination, entitled to frivolous-action costs and attorney fees under WIS. STAT. RULE 802.05 and § 814.025. [10] We agree. ¶ 46. As material here, WIS. STAT. § 814.025(1) (2003-04) provided: "If an action . . . commenced . . . by a plaintiff . . . is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs determined under s. 814.04 and reasonable attorney fees." An action was "frivolous" under that section *176 if, among other things, "[t]he party or the party's attorney knew, or should have known, that the action . . . was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law." Sec. 814.025(3)(b) (2003-04). "A claim is frivolous under [WIS. STAT. § 814.025(3)(b)] if the party or attorney `knew or should have known' that the claim was `without any reasonable basis in law or equity.'" The standard is objective: "whether the [party or] attorney knew or should have known that the position taken was frivolous as determined by what a reasonable [party or] attorney would have known or should have known under the same or similar circumstances." This inquiry involves a mixed question of law and fact. "Determining what was known or should have been known involves questions of fact. Such findings of fact will not be upset unless they are against the great weight and clear preponderance of the evidence." "However, . . . the ultimate conclusion about whether what was known or should have been known supports a [determination] of frivolousness under [Section 814.025(3)(b)] is a question of law we review independently of the . . . circuit and appellate courts." "All doubts on this issue are resolved in favor of the party or attorney" whom it is claimed commenced or continued a frivolous action. Howell v. Denomie, 2005 WI 81 , ¶ 8, 282 Wis. 2d 130 , 139-140, 698 N.W.2d 621 , 625-626 (citations, quoted sources, and footnote omitted; brackets by Howell ). In assessing what "`a reasonable . . . attorney would have known or should have known,'" a court should consider "`the amount of time the attorney had to prepare the document and research the relevant law; whether the document contained a plausible view of the law; the complexity of the legal questions involved; and whether the document was a good faith effort to extend or *177 modify the law.'" Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531 , 550-551, 597 N.W.2d 744 , 754 (1999) (quoted source omitted). Aon does not contend that it could not determine the corporate structure of the Palmer & Cay entities when it filed its first actionas we have seen, one of the Palmer & Cay entities sued in appeal number -2163 has the same address as does the Palmer & Cay parent sued in appeal number -2164. ¶ 47. In its oral decision, the trial court found that the second action "deal[t] with the same transactions, the same facts, the same claims, and the same people," as did the first action. Those findings are, clearly, not "against the great weight and clear preponderance of the evidence." Implicit in those findings is the fact that Aon's counsel obviously knew that the second action was but a replication of, at the very least, that aspect of its first action encompassed by its attempted second amendment of its complaint. Indeed, as we have seen, Aon's counsel conceded in a letter to the trial judge before whom the first action was pending that the claims in the second action "arise from allegations similar to those" in the first action. Given the clear mandate of WIS. STAT. RULE 802.06(2)(a)10, we conclude that as a matter of law there was no "reasonable basis in law or equity" for Aon to have brought the second action, and that it has not pointed to anything that could be construed as a "good faith argument" as to why RULE 802.06(2)(a)10 did not apply to the second action, other than a "waiver" argument made in a footnote in one of its briefs. We are not bound by the parties' framing of the issues, however, see Saenz v. Murphy, 162 Wis. 2d 54 , 57 n.2, 469 N.W.2d 611 , 612 n.2 (1991), overruled on other grounds by State ex rel. Anderson-El v. Cooke, 2000 WI 40 , 234 Wis. 2d 626 , 610 N.W.2d 821 , *178 and we did raise the RULE 802.06(2)(a)10 issue at oral argument. Moreover, a briefs addressing an issue only in a footnote is not sufficient. See Badger III Ltd. P'ship v. Howard, Needles, Tammen & Bergendoff, 196 Wis. 2d 891 , 899 n.1, 539 N.W.2d 904 , 908 n.1 (Ct. App. 1995). ¶ 48. The trial court never gave a reason why it denied Palmer & Cay's motion for frivolous-action costs and attorney fees, other than that would be "a very significant finding, one that the Court does not take lightly or make lightly." It did, however, opine that "it's right on the edge," and conceded that "other Courts could find that this was frivolous and allow for costs." We agree with the trial court that a determination that a party should pay frivolous-action costs and attorney fees is something that should not be made "lightly." Nevertheless, objectively, the law here was clear. Filing a second action when there is "[a]nother action pending between the same parties for the same cause" is improper. WIS. STAT. RULE 802.06(2)(a)10. Accordingly, we conclude that Palmer & Cay is entitled to its reasonable costs and attorney fees under WIS. STAT. § 814.025 (2003-04), and, upon remand, the trial court is to hold a hearing to determine an appropriate award. B. ¶ 49. In sum, in appeal number -2164: (1) we affirm the trial court's dismissal of the action, and (2) reverse the trial court's denial of frivolous-action costs and attorney fees, and remand for further proceedings. By the Court. Orders affirmed and reversed, and cause remanded with directions. *179 NOTES [1] For the purposes of this appeal, the relationships between the Aon companies, on the one hand, and between the Palmer & Cay companies, on the other hand, are immaterial, except as noted in connection with appeal number 2004AP2164 below. Accordingly, we refer to each set of company defendants by their common name. Except as Aon's claims against Liebenstein and Pautz are material to Aon's claims against Palmer & Cay, these appeals do not concern the liability to Aon, if any, of Liebenstein and Pautz. Palmer & Cay contends in its response brief in appeal number -2163 that Aon has not appealed the trial court's order "dismissing the accounting claim," Count One of Aon's amended complaint, against Palmer & Cay. That is not true. The trial court dismissed that claim on June 30, 2004. An amended notice of appeal filed by Aon on August 13, 2004, specifically states that it is appealing from that order. Further, under WIS. STAT. § 808.04(8) a notice of appeal encompasses subsequently entered orders or judgments. That subsection reads: "If the record discloses that the judgment or order appealed from was entered after the notice of appeal was filed, the notice of appeal shall be treated as filed after such entry and on the day thereof." [2] WISCONSIN STAT. § 134.90 reads: (1) DEFINITIONS. In this section: (a) "Improper means" includes espionage, theft, bribery, misrepresentation and breach or inducement of a breach of duty to maintain secrecy. (b) "Readily ascertainable" information does not include information accessible through a license agreement or by an employee under a confidentiality agreement with his or her employer. (c) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique or process to which all of the following apply: 1. The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. 2. The information is the subject of efforts to maintain its secrecy that are reasonable under the circumstances. (2) MISAPPROPRIATION. No person, including the state, may misappropriate or threaten to misappropriate a trade secret by doing any of the following: (a) Acquiring the trade secret of another by means which the person knows or has reason to know constitute improper means. (b) Disclosing or using without express or implied consent a trade secret of another if the person did any of the following: 1. Used improper means to acquire knowledge of the trade secret. 2. At the time of disclosure or use, knew or had reason to know that he or she obtained knowledge of the trade secret through any of the following means: a. Deriving it from or through a person who utilized improper means to acquire it. b. Acquiring it under circumstances giving rise to a duty to maintain its secrecy or limit its use. c. Deriving it from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use. d. Acquiring it by accident or mistake. (3) INJUNCTIVE RELIEF. (a) 1. A court may grant an injunction against a person who violates sub. (2). Chapter 813 governs any temporary or interlocutory injunction or ex parte restraining order in an action under this section, except that no court may issue such an injunction or restraining order unless the complainant makes an application which includes a description of each alleged trade secret in sufficient detail to inform the party to be enjoined or restrained of the nature of the complaint against that party or, if the court so orders, includes written disclosure of the trade secret. The complainant shall serve this application upon the party to be enjoined or restrained at the time the motion for the injunction is made or the restraining order is served, whichever is earlier. 2. Except as provided in subd. 3., upon application to the court, the court shall terminate an injunction when a trade secret ceases to exist. 3. The court may continue an injunction for a reasonable period of time to eliminate commercial advantage which the person who violated sub. (2) otherwise would derive from the violation. (b) In exceptional circumstances, an injunction granted under par. (a) may condition future use of a trade secret by the person who violated sub. (2) upon payment of a reasonable royalty by that person to the owner of the trade secret for no longer than the period of time for which the court may enjoin or restrain the use of the trade secret under par. (a). Exceptional circumstances include a material and prejudicial change of position, prior to acquiring knowledge or reason to know of a violation of sub. (2), that renders an injunction inequitable. (c) In appropriate circumstances, the court may order affirmative acts to protect a trade secret. (4) DAMAGES. (a) Except to the extent that a material and prejudicial change of position prior to acquiring knowledge or reason to know of a violation of sub. (2) renders a monetary recovery inequitable, a court may award damages to the complainant for a violation of sub. (2). A court may award damages in addition to, or in lieu of, injunctive relief under sub. (3). Damages may include both the actual loss caused by the violation and unjust enrichment caused by the violation that is not taken into account in computing actual loss. Damages may be measured exclusively by the imposition of liability for a reasonable royalty for a violation of sub. (2) if the complainant cannot by any other method of measurement prove an amount of damages which exceeds the reasonable royalty. (b) If a violation of sub. (2) is willful and malicious, the court may award punitive damages in an amount not exceeding twice any award under par. (a). (c) If a claim that sub. (2) has been violated is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or a violation of sub. (2) is willful and deliberate, the court may award reasonable attorney fees to the prevailing party. (5) PRESERVATION OF SECRECY. In an action under this section, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting a protective order in a discovery proceeding, holding an in-camera hearing, sealing the record of the action and ordering any person involved in the action not to disclose an alleged trade secret without prior court approval. (6) EFFECT ON OTHER LAWS. (a) Except as provided in par. (b), this section displaces conflicting tort law, restitutionary law and any other law of this state providing a civil remedy for misappropriation of a trade secret. (b) This section does not affect any of the following: 1. Any contractual remedy, whether or not based upon misappropriation of a trade secret. 2. Any civil remedy not based upon misappropriation of a trade secret. 3. Any criminal remedy, whether or not based upon misappropriation of a trade secret. (7) UNIFORMITY OF APPLICATION AND CONSTRUCTION. This section shall be applied and construed to make uniform the law relating to misappropriation of trade secrets among states enacting substantially identical laws. [3] See footnote four, below. [4] Oddly, Aon's reply brief in appeal number -2163 asks us not to follow Burbank Grease Servs., LLC v. Sokolowski, 2005 WI App 28 , 278 Wis. 2d 698 , 693 N.W.2d 89 , even though the law has been clear for at least eight years that we are bound by published decisions of our court unless they are overturned by the Wisconsin Supreme Court. Cook v. Cook, 208 Wis. 2d 166 , 189-190, 560 N.W.2d 246 , 256 (1997); see also WIS. STAT. § 752.41(2) ("Officially published opinions of the court of appeals shall have statewide precedential effect."). The supreme court heard oral argument in Burbank Grease on December 2, 2005. According to the supreme court's "Table of Pending Cases," the court will consider the following issues: Does WIS. STAT. § 134.90(6) preempt the common law cause of action for breach of fiduciary duty? Does the disclosure of confidential, proprietary computer data constitute a disclosure of "restricted access information" within the meaning of WIS. STAT. § 943.70(2) (a) 6? As noted, we are remanding appeal number -2163 for further proceedings. On remand, the trial court shall determine whether the supreme court's decision in Burbank Grease affects the parties' rights and remedies in this case, and, if appropriate, give the parties additional discovery and an opportunity to seek summary judgment in connection with whatever impact the supreme court decision may have. [5] The defendants argue that the mere presence of a severability clause in a non-compete agreement makes the entire agreement "null and void." This is how they phrase their argument in their main brief on their cross-appeal in appeal number -2163: "Under Wisconsin law, reasonable and enforceable provisions of a non-compete agreement become null and void if any part of the covenant is unenforceable. Wis. STAT. 103.465." As we have seen, § 103.465 reads, as material: "Any covenant, described in this subsection, imposing an unreasonable restraint is illegal, void and unenforceable even as to any part of the covenant or performance that would be a reasonable restraint." This means that a restrictive employment agreement is void if any of its connected parts are void, irrespective of whether the contract provides that the offending aspect may be severed from those that are reasonable. See Streiff v. American Family Mut. Ins. Co., 118 Wis. 2d 602 , 613, 348 N.W.2d 505 , 511 (1984) ("clauses of the covenant are intertwined" because they "govern[] several similar types of activities and establish[] several time and geographical restraints rather than two covenants," and, therefore, it is not necessary to "decide whether a restraint which is reasonable as to activity, duration, and territory is enforceable under sec. 103.465, when the agreement includes a second restraint which is unreasonable as to activity, duration, and territory and is unenforceable under sec. 103.465"). Thus, the mere presence of a severability clause does not doom the entire agreement even though all of its provisions may be reasonable under the statute. Indeed, the very case that the defendants cite, Nalco Chemical Co. v. Hydro Technologies, Inc., 984 F.2d 801 , 806 (7th Cir. 1993), makes this clear: As a final note, paragraph five [of the employment agreement] contains a savings clause that maintains that the covenant not to compete is applicable with reasonable restrictions if the restrictions as originally stated are found by a court to be unreasonable. This modification practice is called "blue penciling" and is prohibited by section 103.465. Streiff v. American Family Mutual Insurance Company, 118 Wis. 2d 602 , 613-14, 348 N.W.2d 505 (Wis. 1984). For that reason paragraph five and paragraph three are void and may not be enforced with otherwise reasonable restrictions. [6] Palmer & Cay have submitted newspaper articles that their brief on appeal contends demonstrate that Liebenstein's and Pautz's comments to Aon's customers were "not . . . false." Newspaper articles, however, are "hearsay" and may not be considered on summary judgment, Eisenstadt v. Centel Corp., 113 F.3d 738 , 742 (7th Cir. 1997), unless, of course, the articles are submitted by someone in a libel action against the newspaper based on those articles, or, oddly, unless they are at least twenty years old, see WIS. STAT. RULE 908.03(16) ("ancient documents" exception to the rule against hearsay). [7] The day after it filed its complaint in appeal number -2164, Aon's lawyers wrote to the judge in appeal number -2163 telling her about the new action and enclosing a copy of the complaint in that action. The letter explained why Aon believed it needed to file the second lawsuit: You will see that the new action asserts causes of action for tortious interference with contract and conspiracy against Palmer & Cay, Inc. These claims are pleaded against a different corporate entity than is before you in the original action, but otherwise arise from allegations similar to those Aon sought to add to the above-captioned case [appeal number -2163] by means of a motion to amend, which you denied last April. In filing this new action, Aon is not seeking in any way to circumvent your decision not to permit the amendment of the complaint in the action pending before you. Aon will not ask to have this new action consolidated for trial with the previously filed action. Rather, Aon has filed this new action solely to preserve its right to collect from Palmer & Cay, Inc. damages caused by the breaches of the Liebenstein and Pautz noncompete agreements, should any judgment Aon recovers in the first action prove uncollectible from the defendants in that action. [8] WISCONSIN STAT. RULE 802.09(3) provides: If the claim asserted in the amended pleading arose out of the transaction, occurrence, or event set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against such party, the party to be brought in by amendment has received such notice of the institution of the action that he or she will not be prejudiced in maintaining a defense on the merits, and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against such party. [9] Given our reversal of the trial court's order denying Aon leave to amend its complaint in appeal number -2163, the practical effect of the dismissal is now largely moot. [10] WISCONSIN STAT. § 814.025 was repealed by S. CT. ORDER 03-06, 2005 WI 38 (eff. July 1, 2005). WISCONSIN STAT. RULE 802.05 was amended by S. CT. ORDER 03-06, 2005 WI 38 (eff. July 1, 2005). The parties do not contend that Palmer & Cay's request for frivolous-action costs and attorney fees is governed by 2005 WI 38 . | opinion_html_with_citations | 11,971 | 2013-10-30 07:18:05.618953+00 | 010combined | f | f | 1,743,387 | Wedemeyer, P.J., Fine and Curley | null | LU | f | Published | 9 | Aon Risk Services, Inc. v. Liebenstein | Liebenstein | Aon Risk Services, Inc., of Wisconsin, a Wisconsin Corporation, and Aon Risk Services, Inc., of Maryland, a Foreign Corporation, Plaintiffs-Appellants-Cross-Respondents, v. James A. Liebenstein and David Pautz, Defendants-Cross-Appellants, Palmer & Cay of Wisconsin, LLC, a Wisconsin Limited Liability Company, and Palmer & Cay Holdings, Inc. a Foreign Corporation, Defendants-Respondents-Cross-Appellants. [Case No. 2004AP2163.]; Aon Risk Services, Inc., of Wisconsin, a Wisconsin Corporation, and Aon Risk Services, Inc., of Maryland, a Foreign Corporation, Plaintiffs-Appellants-Cross-Respondents, v. Palmer & Cay, Inc., a Foreign Corporation, Defendant-Respondent-Cross-Appellant. [Case No. 2004AP2164.] | null | null | <parties id="b271-3">
Aon Risk Services, Inc., of Wisconsin, a Wisconsin corporation, and Aon Risk Services, Inc., of Maryland, a foreign corporation, Plaintiffs-Appellants-Cross-Respondents, v. James A. Liebenstein and David Pautz, Defendants-Cross-Appellants, Palmer & Cay of Wisconsin, LLC, a Wisconsin limited liability company, and Palmer & Cay Holdings, Inc. a foreign corporation, Defendants-Respondents-Cross-Appellants. [Case No. 2004AP2163.] Aon Risk Services, Inc., of Wisconsin, a Wisconsin corporation, and Aon Risk Services, Inc., of Maryland, a foreign corporation, Plaintiffs-Appellants-Cross-Respondents, v. Palmer & Cay, Inc., a foreign corporation, Defendant-Respondent-Cross-Appellant. [Case No. 2004AP2164.]
</parties><br><court id="b271-10">
Court of Appeals
</court><br><docketnumber id="b271-11">
<em>
Nos. 2004AP2163, 2004AP2164.
</em>
</docketnumber><otherdate id="A4b">
<em>
Oral argument December 6, 2005.
</em>
</otherdate><decisiondate id="Aar">
Decided
<em>
December 28, 2005.
</em>
</decisiondate><br><citation id="b271-12">
2006 WI App 4
</citation><br><citation id="b272-3">
<span citation-index="1" class="star-pagination" label="128">
*128
</span>
(Also reported in 710 N.W.2d 175.)
</citation><br><attorneys id="b283-4">
<span citation-index="1" class="star-pagination" label="139">
*139
</span>
On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the briefs of
<em>
David M. Lucey oí Foley & Lardner, LLP,
</em>
of Milwaukee. Oral Argument by
<em>
David M. Lucey.
</em>
</attorneys><br><attorneys id="b283-5">
On behalf of the defendants-respondents-cross-appellants and defendants-cross-appellants, the cause was submitted on the briefs of
<em>
Jane C. Schlicht
</em>
of
<em>
Cook & Franke, S.C.,
</em>
of Milwaukee.
</attorneys><br><attorneys id="b283-6">
Oral argument by
<em>
Jane C. Schlicht.
</em>
</attorneys><br><judges id="b283-7">
Before Wedemeyer, PJ., Fine and Curley, JJ.
</judges> | null | null | null | null | null | null | 2,531,303 | 2004AP2163, 2004AP2164 | 0 | wisctapp | SA | t | Court of Appeals of Wisconsin | Court of Appeals of Wisconsin |
6,021,612 | Carpinello, J. Appeal from an order of the Supreme Court (Dawson, J.), entered January 23, 1997 in Clinton County, which granted plaintiffs motion to dismiss the counterclaims of defendants Henry N. Dashnaw, Jr. and Kevin N. Dashnaw. In connection with their development of a “planned unit development” and golf course on property in the Town of Peru, Clinton County, defendants Henry N. Dashnaw, Jr. and Kevin N. Dashnaw (hereinafter collectively referred to as defendants), *815sole partners of Northwood Estates, secured financing from plaintiff’s predecessor in interest in the amount of $300,000. Defendants executed a “mortgage note” which was secured by a first mortgage on the real property. The note was subsequently modified on two occasions. After defendants defaulted on the loan, plaintiff commenced this foreclosure action in June 1995. On August 7, 1995, an amended answer was served with lender liability counterclaims asserting fraud, breach of good faith and fair dealing and breach of fiduciary duty, among other claims. The counterclaims sought, inter alia, “a judgment reforming, as appropriate, the Notes and Obligations” and damages. Two days after filing the amended answer, Northwood Estates filed for chapter 11 bankruptcy in the US District Court in the Northern District of New York. It is undisputed that defendants’ debt to plaintiff was scheduled as a partnership liability in the bankruptcy proceeding, that the counterclaims were scheduled as partnership assets (see, 11 USC § 521 [1]; see also, Bankruptcy Rules, rule 1007 [g]) and that the instant action was stayed following defendants’ successful procurement of a co-debtor stay (see, 11 USC § 105). Notably, the bankruptcy plan of reorganization resolved the debt at issue in this action. Under the confirmed plan, defendants’ mortgage loan was reinstated and modified. Defendants’ refusal to voluntarily discontinue the instant State court action after plan confirmation forced plaintiff to move to dismiss the counterclaims based on the doctrine of res judicata. In a thorough and well-reasoned decision, Supreme Court granted plaintiff’s motion. “Res judicata bars future litigation between the same parties, or those in privity with the parties, of a cause of action arising out of the same transaction or series of transactions as a cause of action that was either raised or could have been raised in a prior proceeding” (Matter of Joy Co. v Hudacs, 199 AD2d 858, 859). The doctrine applies with full force to Bankruptcy Court determinations (see, e.g., McNeary v Senecal, 197 AD2d 835). Stated more simply, the doctrine of res judicata precludes second chance litigation and in our view that is exactly what defendants are attempting to gain in this case. Accordingly, we affirm. Even though defendants sought, and received, a co-debtor stay in the bankruptcy proceeding staying the instant foreclosure action and even though that proceeding restructured the very debt at issue herein, defendants maintain that their interests “were simply not an issue in the Bankruptcy Proceeding” and that the financial relationship between themselves *816and plaintiff is “wholly irrelevant to the financial relationships between Northwood Estates, as debtor, and [plaintiff!, as creditor”. We disagree and find that the lender liability counterclaims arose out of the same series of transactions as plaintiffs financial claims in the bankruptcy proceeding for the purpose of res judicata (see generally, Eubanks v Federal Deposit Ins. Corp., 977 F2d 166, 172). The crux of the counterclaims is that plaintiffs predecessor allegedly misrepresented that the note would be routinely renewed until paid in full. The bankruptcy proceeding, with the express consent of defendants, resulted in the loan being extended. Moreover, whether they agreed to the confirmed reorganization plan or not, defendants, as general partners in Northwood Estates, are now bound by it (see, 11 USC § 1141 [a]; see also, Sure-Snap Corp. v State St. Bank & Trust Co., 948 F2d 869, 873 [res judicata bars any attempt by parties to reorganization hearing to relitigate matters that were raised or could have been raised]). Relying almost exclusively on a now defunct rule of law in Specialty Rests. Corp. v Barry (Sup Ct, Rensselaer County, July 27, 1995, Ceresia, J., affd 236 AD2d 754)—a case, we note, that did not involve the application of res judicata— defendants further assert that they were not in privity with Northwood Estates during the bankruptcy proceeding. Again, we are unpersuaded. To establish privity, “the connection between the parties must be such that the interests of the nonparty can be said to have been represented in the prior proceeding” (Green v Santa Fe Indus., 70 NY2d 244, 253; see, Tamily v General Contr. Corp., 210 AD2d 564, 566). The concept requires a flexible analysis of the facts and circumstances of the actual relationship between the party and nonparty in the prior litigation (see, Matter of Slocum v Joseph B., 183 AD2d 102, 104) and privity will exist where individuals “so controlled the conduct of the prior litigation in which they were interested such that the result is res judicata against them” (Tamily v General Contr. Corp., supra, at 566). Defendants were intimately involved in the bankruptcy proceeding. Notwithstanding the fact that they were represented by counsel separate from the debtor’s counsel, it is undisputed that they signed all pertinent paperwork in that proceeding, including the chapter 11 bankruptcy petition and reorganization plan, were present during negotiations of the plan and agreed to it and attended hearings before the Bankruptcy. Court, including the confirmation hearing. As the sole partners of Northwood Estates, defendants clearly possessed *817controlling status over the bankruptcy proceeding (see, Green v Santa Fe Indus., supra, at 254; see generally, Sterling Doubleday Enter. v Marro, 238 AD2d 502, 503; cf., Tamily v General Contr. Corp., supra, at 566) and were afforded ample opportunity to litigate the counterclaims, which were scheduled as partnership assets (cf., Nationwide Mech. Contrs. Corp. v Hokkaido Takushoku Bank, 188 AD2d 871, 872, lv denied 81 NY2d 711). Significantly, neither counsel for Northwood Estates nor counsel for defendants raised an objection to the reorganization plan on the ground that it did not take these claims into consideration (see generally, Matter of Baudoin v Bank of La Fayette, 981 F2d 736, 741-743). Moreover, while defendants correctly point out that actual or potential conflicts of interest between a party and nonparty in previous litigation “will negate the necessary element of adequate representation to establish privity” (Matter of Slocum v Joseph B., supra, at 105), no such conflict of interest has been demonstrated here as between the partnership Northwood Estates and defendants, its general partners (compare, In re New Era Co., 115 BR 41, 45, affd 125 BR 725). We have reviewed the parties’ remaining contentions and reject them as unpersuasive. Mikoll, J. P., White, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, with costs. | opinion_xml_harvard | 1,116 | 2022-01-13 11:53:14.239577+00 | 020lead | t | f | 6,156,003 | Carpinello | null | U | f | Published | 0 | Evergreen Bank, N. A. v. Dashnaw | Dashnaw | Evergreen Bank, N. A. v. Henry N. Dashnaw, Jr. | null | null | null | null | null | null | null | null | null | 62,516,159 | 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 |
8,171,632 | Gibson, J. Plaintiffs brought an action seeking damages for defendants’ failure to remove a beaver dam on their adjoining property in Underhill. The trial court dismissed the action. We reverse and remand. Plaintiffs’ property is located upstream from defendants’ property. A stream running through both properties had been blocked by a beaver dam located on defendants’ property, and plaintiffs claimed that the dam caused the stream level to rise and flood, causing damage to their property. Plaintiffs requested that defendants remove the dam or allow plaintiffs to do so, but the requests were refused. Plaintiffs thereafter brought the present action, based on theories of negligence, *331nuisance, trespass, and interference with riparian rights. Defendants argued at trial that they were not required to remove the dam under any legal theory, and denied that any damages had occurred. Defendants also argued that plaintiffs were required by 10 V.S.A. App. § 43(e)* to obtain a permit from the Fish and Wildlife Commissioner to remove the dam and did not do so, thereby barring the present action. The trial court granted defendants’ motion for summary judgment, concluding that § 43(e) superseded all common-law theories of recovery. The court reasoned that both defendants and plaintiffs would need a permit to remove the dam — defendants, since they would not have been acting to protect their own property, and plaintiffs, since they were not an “owner of property” within the meaning of the statute. The court concluded, however, that in the present action the statute relieved defendants of any common-law duty to plaintiffs to act with respect to the dam: It was not necessary for the defendants to obtain the permit to remove the dam, since the plaintiffs could have obtained a permit and removed it themselves. Nor can it be found that defendants had a duty to act, for one can have no duty to act when one needs a permit to perform the act. Thus, defendants were not negligent. Defendants similarly cannot be found to have acted recklessly, under [10 V.S.A. App. § 43(e)], as plaintiffs assumed the risk of the flooding by not taking the permit action themselves. The present appeal followed. The trial court concluded in effect that plaintiffs’ common-law rights were abrogated by § 43(e) and that plaintiffs were left to their statutory remedies, which they should have *332pursued. But there is nothing in the text of § 43(e) that denotes or implies abrogation of common-law actions, and we have no reason to assume that it overrode preexisting common-law rights. We stated in Langle v. Kurkul, 146 Vt. 513, 516, 510 A.2d 1301, 1303 (1986), “The common law is changed by statute only if the statute overturns the common law in clear and unambiguous language, or if the statute is clearly inconsistent with the common law, or the statute attempts to cover the entire subject matter.” Also, in Record v. State Highway Board, 121 Vt. 230, 236-37, 154 A.2d 475, 480 (1959), we held that, in construing a statute, “we are not to presume that the [Legislature intended to work any change in the common law beyond what the statute itself declares in either express terms, or by unmistakable implication.” In the present case, none of the Langle v. Kurkul factors support an inference that the Legislature intended to override the common law. As for the language of the statute, its explicit purpose is to protect beaver habitat from destruction without a permit from the commissioner, with an exception, in the case of private property, for acts by an “owner of property” suffering damage from a beaver dam. The statute does not charge the commissioner with deciding the tort and riparian rights issues that could arise in such matters, and no procedures are provided for their determination. Moreover, the statute does not provide for remedies or allow entry of judgments appropriate to common-law actions. The statute limits the role of the commissioner to the permit process, and the standards for granting a permit may well be different from those to be applied by a court in a common-law action, where issues and interests beyond those involved in a § 43(e) permit application may be raised. Nor does the statute “attempt[] to cover the entire subject matter.” Langle, 146 Vt. at 516, 510 A.2d at 1303. The court correctly stated that plaintiffs were under a duty to obtain a § 43(e) permit prior to seeking to remove the beaver dam themselves, but it does not follow that plaintiffs were required to limit their remedies to those available within the statutory permit process. The statute is prohibitory in nature, subject to an exception for an owner of property. Obtaining the approval of the commissioner to waive the bar of § 43(e) would not have authorized plaintiffs as adjacent landowners to enter their *333neighbor’s property without permission. Plaintiffs have alleged that they sought such permission and were denied. If the statute were the sole remedy in cases like the present one, in lieu of common-law theories, it' appears that money damages would be unavailable to owners of property damaged by a beaver dam on adjoining land, since § 43(e) does not provide for money damages. The statute should not be read to effect such a significant change in the law by implication. Defendants argue that the trial court’s conclusion as to the preemptive effect of § 43(e) was correct, since they read § 43(e) to require them to obtain a permit from the commissioner before removing the dam, absent damage to their property. They rely on the court’s conclusion that “one can have no duty to act when one needs a permit to perform the act.” We disagree that the need for a permit precludes a duty to act. Rather, if a permit is required before an act may be performed, then obtaining the permit is simply the first step in performing the act. We need not decide whether defendants would have to obtain a permit to remove the dam, however, because they never approached the commissioner and have denied that plaintiffs’ property was damaged. The questions raised by plaintiffs’ common-law claims are whether defendants have a duty to remove the dam and whether they owe plaintiffs’ damages for their failure to do so. Only if the commissioner were to deny defendants a permit would a question arise as to the reasonableness of their next steps. Even if defendants are required to proceed under § 43(e) before removing the dam on their property, they offer no reason why that requirement absolves them of duties they might otherwise owe plaintiffs under the common law. The question of who could, or should, have obtained the commissioner’s approval for removal of the dam is separate from the issue of who had the primary common-law duty to address the potentially damaging effects of the beaver dam. It is not uncommon for courts to sort out similar conflicts or apparent conflicts between common-law rights and statutory or regulatory requirements. See, e.g., Murray v. Inhabitants of Town of Lincolnville, 462 A.2d 40, 43 (Me. 1983) (contract for sale of land subject to purchasers’ obtaining environmental and zoning permits remained enforceable notwithstanding statute barring sale of land in subdivision prior to approval by reviewing authority). *334In sum, in the absence of statutory intent in § 43(e) to substitute an administrative permit process for existing common-law actions, the need for an administrative permit to remove a beaver dam did not by itself relieve defendants of whatever common-law duty they might have to plaintiffs with respect to the beaver dam on their property. The court erred in dismissing plaintiffs’ action as a matter of law. Since this action was decided on defendants’ motion for summary judgment, we need not address the question of which, if any, of plaintiffs’ common-law theories apply to the present facts. Reversed and remanded. 10 V.S.A. App. § 43(e) states: § 43 Method of taking (e) A person shall not interfere in any manner with dams, dens, or houses of beaver except upon special permit in writing from the commissioner, provided, however, that these provisions shall not apply to an owner of property, his employee, tenant, or caretaker protecting the same from damage by beaver, or to the selectmen of a town protecting public highways or bridges from such damage or submersion, with permission of the owners of lands affected. | opinion_xml_harvard | 1,391 | 2022-09-09 21:19:12.039554+00 | 020lead | t | f | 8,209,273 | Allen, Dooley, Gibson, Johnson, Morse | null | U | f | Published | 0 | Villeneuve v. Powers | Villeneuve | Richard Villeneuve and Ardelle Villeneuve v. Nathan Powers and Marjory Powers | null | null | null | null | null | null | null | null | null | 65,307,269 | No. 91-389 | 0 | vt | S | t | Supreme Court of Vermont | Supreme Court of Vermont |
5,123,383 | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JACQUELYN FISHER, Appellant, v. ROBERT LAMANO STEVEN, Appellee. No. 4D20-2344 [November 4, 2021] Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Glenn D. Kelley, Judge; L.T. Case No. 502018CA000948. Scott J. Liotta of Dan Newlin & Partners, Orlando, for appellant. Kansas R. Gooden of Boyd & Jenerette, P.A., Miami, and Lara J. Edelstein of Boyd & Jenerette, P.A., Boca Raton, for appellee. PER CURIAM. Affirmed. CONNER, C.J., MAY and DAMOORGIAN, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. | opinion_plain_text | 101 | 2021-11-04 15:04:21.261425+00 | 010combined | f | f | 5,294,821 | null | null | C | f | Published | 0 | JACQUELYN FISHER v. ROBERT LAMANO STEVEN | null | null | null | null | null | null | null | null | null | null | null | 60,698,403 | 20-2344 | 0 | fladistctapp | SA | t | District Court of Appeal of Florida | District Court of Appeal of Florida |
5,526,828 | Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the appellants are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd. [a], par. [iii]). | opinion_xml_harvard | 34 | 2022-01-10 17:56:03.910048+00 | 020lead | t | f | 5,678,861 | null | null | U | f | Published | 0 | Meaney v. Loew's Hotel, Inc. | Meaney | James Meaney v. Loew's Hotel, Inc. | null | null | null | null | null | null | null | null | null | 62,032,195 | null | 0 | ny | S | t | New York Court of Appeals | New York Court of Appeals |
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