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1,419,639 | 199 S.E.2d 462 (1973) 284 N.C. 81 STATE of North Carolina v. Jimmy L. EVERETTE. No. 23. Supreme Court of North Carolina. October 10, 1973. *465 Atty. Gen., Robert Morgan and Associate Atty., Ann Reed, Raleigh, for the State. Felix B. Clayton and Raymond Sitar, Durham, for defendant-appellant. MOORE, Justice. Defendant first assigns as error the failure of the trial court to direct a verdict for defendant at the close of the State's evidence, at the close of defendant's evidence, and at the close of all the evidence. In support of this assignment, defendant summarizes a portion of the evidence that stresses his plea of self-defense and contends that because of this evidence the State did not meet the burden of proof required for submission of the case to the jury. In a criminal case the proper motion to test the sufficiency of the State's evidence to carry the case to the jury is a motion to dismiss the action or a motion for judgment as in the case of nonsuit, pursuant to G.S. § 15-173. State v. Evans, 279 N.C. 447 , 183 S.E.2d 540 (1971); State v. Cutler, 271 N.C. 379 , 156 S.E.2d 679 (1967). The sufficiency of the evidence for the State in a criminal case is reviewable upon appeal without regard to whether a motion has been made pursuant to G.S. § 15-173 in the trial court. G.S. § 15-173.1. From the record in this case it is not clear whether defendant actually made any motion. However, we review the sufficiency of the State's evidence under the provisions of G.S. § 15-173.1 as if the proper motion had been made under G.S. § 15-173. On such motion the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable intendment thereon and every reasonable inference therefrom. Contradictions and discrepancies, even in the State's evidence, are for the jury to resolve and do not warrant nonsuit. Only the evidence favorable to the State is considered, and defendant's evidence relating to matters of defense or defendant's evidence in conflict with that of the State is not considered. State v. Henderson, 276 N.C. 430 , 173 S.E.2d 291 (1970); 2 Strong, N.C. Index 2d, Criminal Law § 104 (1967). To withstand a judgment as of nonsuit there must be substantial evidence of all material elements of the offense charged. Whether the State has offered such substantial evidence presents a question of law for the trial court. State v. Evans, 279 N.C. 447 , 183 S.E.2d 540 (1971); State v. Allred, 279 N.C. 398 , 183 S.E.2d 553 (1971). The essential elements of murder in the first degree are premeditation, deliberation, and malice. State v. Moore, 275 N.C. 198 , 166 S.E.2d 652 (1969). In this case the State offered evidence which tends to show that defendant entered the establishment known as the Red Hen on 27 March 1972 with a pistol in his hand, told deceased to stand up, and told him he was going to kill him. He then shot deceased twice, and deceased died as a result of these bullet wounds. The State's evidence further tends to show that after deceased fell, defendant walked over to him and said "I hope you dead," and that on several occasions prior to the shooting defendant said he was going "to get" the deceased. From this evidence the jury could reasonably infer that defendant *466 killed the deceased and that the killing was committed with premeditation, deliberation, and malice. In passing upon the sufficiency of the State's evidence to carry the case to the jury, the trial court in the present case was not required to consider defendant's testimony concerning self-defense. Therefore, the court properly refused to enter judgment as of nonsuit for defendant. Defendant next contends that the court violated G.S. § 1-180 by asking defendant certain questions. On direct examination defendant testified: "When I walked into the Red Hen, Blue and Bass were sitting together. When he seen me he started getting up and both of us were reachinghe pulled Blue in front of him and I just started shooting, that is how I hit him and that is how I hit Blue." The court then asked defendant: "Who was holding Blue in front of him?" Defendant answered: "The deceased. I didn't intend to hit Blue. When I walked in our eyes met and he got up and began reaching under his coat. I didn't wait to see if he had a gun or not, but he was just going through the motion." The court then asked: "The deceased is alleged to be Bass, isn't it?" At another point during the trial defendant's witness Blue testified: "Bass grabbed me after the first shot trying to use me as a shield I guess." The court asked Blue: "Who was it that grabbed you?" Obviously, in asking these questions the court simply meant to clarify the facts. Nothing in the questions would indicate to the jury that the judge had any opinion as to the guilt or innocence of defendant. If the court questions a witness only to clarify the witness's testimony or to promote a proper understanding of the case, such questions do not amount to an expression of opinion. State v. Freeman, 280 N.C. 622 , 187 S.E.2d 59 (1972); State v. Colson, 274 N.C. 295 , 163 S.E.2d 376 (1968). Defendant also contends that the court erred in telling the witness Blue: "Speak out. She has to record your answer." This statement was simply an effort by the court to get the witness to speak louder. State v. Allen, 283 N.C. 354 , 196 S.E.2d 256 (1973). These contentions are without merit. Defendant brings forward four assignments of error based on the admission of certain documents introduced by the State and the answers to certain questions asked by the solicitor. An examination of the record discloses that defendant did not object to the admission of the documents or to the questions that defendant now contends were improper, and that defendant made no motions to strike any of the answers. Ordinarily, failure to object in apt time to incompetent testimony is regarded as a waiver of the objection, and its admission is not assignable as error unless the evidence is forbidden by statute. If the testimony is incompetent, objection thereto should be imposed at the time the question is asked, and if no objection was made to the question when asked, a motion to strike the answer should be made. State v. Lewis, 281 N.C. 564 , 189 S.E.2d 216 (1972); State v. Blackwell, 276 N.C. 714 , 174 S.E.2d 534 (1970); 1 Stansbury's N.C. Evidence, Brandis Rev. § 27 (1973); 7 Strong, N.C. Index 2d, Trial § 15 (1968). Even though no objections were made to the admission of the documents or to the questions asked by the State, and no motions were made to strike the answers to such questions, in view of the serious nature of this case we have carefully examined each assignment and find them to be without merit. Defendant finally contends that the court erred in its charge to the jury in that "little explanation was devoted to the lesser included charges of second degree murder and manslaughter." Defendant does not contend that the court failed to charge the jury on the lesser included offenses of second degree murder and *467 manslaughter, nor does he contend that the instructions as given were incorrect. Rather he simply contends that the "shortness of the time" devoted to the instructions on the lesser included offenses could have caused the jury to forget those portions of the charge when deliberations began. The court in the charge correctly and adequately defined murder in the first degree, murder in the second degree, and voluntary manslaughter, and fully instructed the jury on defendant's right of self-defense. In the final mandate to the jury, the court applied the law to the facts in the case and instructed the jury that it could return one of four verdicts: Guilty of murder in the first degree, guilty of murder in the second degree, guilty of voluntary manslaughter, or not guilty. The court then inquired if defendant desired any further instructions. Defendant's counsel replied: No, your Honor. I think that it was a very fine charge." The presiding judge in his charge to the jury must declare and explain the law arising on the evidence relating to each substantial feature of the case. State v. Brady, 236 N.C. 295 , 72 S.E.2d 675 (1952); G.S. § 1-180. When the trial judge has instructed the jury correctly and adequately on the essential features of the case but defendant desires more elaboration on any point or a more detailed explanation of the law, then he should request further instructions. Otherwise, he cannot complain. State v. Brooks, 228 N.C. 68 , 44 S.E.2d 482 (1947); State v. Gordon, 224 N.C. 304 , 30 S.E.2d 43 (1944); State v. Hendricks, 207 N.C. 873 , 178 S.E. 557 (1935); 7 Strong, N.C. Index 2d, Trial §§ 33, 38 (1968). Neither the exception, nor the assignment of error, nor the brief, calls attention to any particular statements or omissions in the charge. All are broadside and are not sufficient to draw into focus any assigned error of law. State v. Wilson, 263 N.C. 533 , 139 S.E.2d 736 (1965); Clifton v. Turner, 257 N.C. 92 , 125 S.E.2d 339 (1962); State v. Stantliff, 240 N.C. 332 , 82 S.E.2d 84 (1954); 1 Strong, N.C. Index 2d, Appeal and Error § 31 (1967). This assignment is without merit. Defendant has had a fair trial, free from prejudicial error. The verdict of the jury is fully supported by the evidence. In the record we find no basis for a new trial. No error. | opinion_html_with_citations | 1,642 | 2013-10-30 06:02:58.581815+00 | 010combined | f | f | 1,419,639 | Moore | null | LU | f | Published | 22 | State v. Everette | Everette | State of North Carolina v. Jimmy L. Everette | null | null | <parties id="b101-10">
STATE OF NORTH CAROLINA v. JIMMY L. EVERETTE
</parties><br><docketnumber id="b101-11">
No. 23
</docketnumber><br><decisiondate id="b101-12">
(Filed 10 October 1973)
</decisiondate><br><attorneys id="b104-5">
<span citation-index="1" class="star-pagination" label="84">
*84
</span>
<em>
Attorney General Robert Morgan and, Associate Attorney Ann Reed for the State.
</em>
</attorneys><br><attorneys id="b104-6">
<em>
Felix B. Clayton and Raymond Sitar for defendant appellant.
</em>
</attorneys> | null | null | null | null | null | null | 886,154 | 23 | 0 | nc | S | t | Supreme Court of North Carolina | Supreme Court of North Carolina |
5,026,468 | MONTGOMERY, Judge. C. D. Carpenter and Logan E. Patterson, both attorneys, have petitioned this Court to prohibit the Honorable Courtney -C. Wells, Judge of the Perry Circuit Court, from compelling them to answer certain questions or from punishing them for their continued rfefusals to answer the questions or to make certain disclosures. On December 12, 1961, H. C. Cantrell and four other former employees of Jewell Ridge Coal Corporation sued Jewell Ridge for various sums alleged to be due them under the National Bituminous Coal Wage Agreement of 1950. They claimed a lien under KRS 376.150 and 376.160 and sought to have it enforced on all of the property of Jewell Ridge to satisfy the payment of their claims. The depositions of Carpenter and Patterson were taken by counsel for the employees on February 20 and April 12, 1962, respectively. Both depositions were taken by way of discovery, as stated in the response filed herein, and as captioned in the action pending between H. C. Cantrell, et al. v. Jewell Ridge Coal Corporation. Carpenter and Patterson refused to answer certain questions asked. Following *526hearings the orders complained of were entered. The depositions show that at that time Carpenter was the president of Kentucky River Coal Corporation, described as a landholding company engaged in leasing various tracts of Eastern Kentucky land for the extraction of coal. Patterson, in his deposition, described his connection with the Blair Fork Coal Company as attorney and nominal vice president. Carpenter testified that on or about August 7, 1961, a coal mine lease in which Kentucky River was the lessor and Jewell Ridge the lessee had been canceled. By the termination agreement, Jewell Ridge retained no rights in the leasehold or the effects and improvements thereon. Subsequently, the same property was re-leased by Kentucky River to Blair Fork. In essence, the questions which petitioners refused to answer were designed to elicit information concerning the terms of the cancellation agreement and of the re-lease agreement, the disposition of the improvements and equipment used by Jewell Ridge, the relation, if any, between Jewell Ridge and Blair Fork, and the organization and identity of the stockholders of Blair Fork. Neither the petitioners nor Kentucky River and Blair Fork are parties to the Jewell Ridge lawsuit. It is alleged in the petition that none of them has any pecuniary interest in the outcome of the Jewell Ridge action; that neither Carpenter nor Kentucky River has ever owned any stock in Jewell Ridge or Blair Fork and that neither of them has any proprietary interest in either Jewell Ridge or Blair Fork except by reason of the two leases; that neither Patterson nor Blair Fork has ever owned any stock or other proprietary interest in Jewell Ridge; that Jewell Ridge and Blair Fork are entirely separate corporations, without either owning stock in the other and without common stockholders, officers, or directors; and that there exists no contractual or other relationship between the corporations. These allegations are neither admitted nor denied by respondent. At the hearing concerning Patterson, counsel for Jewell Ridge appeared and offered to file a performance bond with good corporate surety “in order to obviate the inconvenience, expense, and embarrassment of further inquiries allegedly seeking assets of Jewell Ridge.” The bond tendered was regular on its face, but counsel for the employees objected to its being filed and questioned the authority of the agent to sign the bond and the genuineness of the signature. The persistence in seeking the information after refusal of a performance bond on superficial grounds casts some doubt on the sincerity of the inquiry. Petitioners assert that since September 1961, Blair Fork and the United Mine Workers of America have been jointly involved in charges, investigations, and proceedings before the National Labor Relations Board. They contend that the employees’ counsel, who are the regularly retained counsel for United Mine Workers, are using the deposition takings as a means to gain information to be used in the NLRB proceedings. It is apparent at once that two extraordinary legal processes are involved: discovery and prohibition. Depositions may be taken for the purpose of discovery or for use as evidence in an action, or for both purposes. CR 26.01. Unless limited by CR 30.02 or 30.04, the scope of examination permitted in depositions taken is limited to “matter, not privileged, which is relevant to the subject matter involved in the pending action.” CR 26.02. Petitioners contend that the matters inquired about were privileged and were not relevant. The latter contention is dispositive. In Foremost Promotions v. Pabst Brewing Co., D.C., 15 F.R.D. 128, the rule is stated thus: “It is the duty of the court to keep the inquiry within reasonable bounds and to restrict questions to those having substantial relevancy to a sensible investigation.” *527Relevancy under F.R.Civ.P. 26(b), 28 U.S.C.A. has been defined as relevancy to the subject matter involved rather than as relevancy limited by the precise issues presented by the pleadings. Kaiser-Frazer Corporation v. Otis & Co., D.C., 11 F.R.D. 50; Rose v. Bourne, Inc., D.C., 15 F.R.D. 362. However, where, as here, “there being before the Court nothing but the complaint and answer, the pleadings are the touchstone by which the subject matter of the action is determined.” Bullard v. Universal Millwork Corporation, D.C., 25 F.R.D. 342. As determined by the pleadings, and as admitted by respondent, the subject matter of the action is the amount of wages owed, if any, by Jewell Ridge to certain employees and the existence of a statutory lien. Nowhere in the record of that action is there any alleged connection with either petitioner or Kentucky River, Blair Fork, or their properties. No allegations of fraud, concealment, or insolvency are made as the bases for proceeding against the properties of Kentucky River or Blair Fork. No property owned by Kentucky River or Blair Fork was described or identified as belonging to Jewell Ridge. The only reference in the complaint to the property of Jewell Ridge is in the prayer wherein a lien is prayed against the property, described in general terms, “used an its mining operation.” The inquiries made concerned the private affairs of nonparties to the .action and were not relevant to the subject matter of the action. Arlington Glass Co. v. Pittsburgh Plate Glass Co., D.C., 24 F.R.D. 50. Nor can the questions be justified on the ground that they appear to 'be reasonably calculated to lead to the discovery of admissible evidence. North River Barge Line, Inc. v. Grace Line, Inc., D.C., 8 F.R.D. 117. If it be true, as petitioners charge, that the inquiries were made to gain information to be used in a matter pending before the National Labor Relations Board, they would appear to .have been made for a collateral purpose, which has been condemned. Radio Corporation of America v. Solat, D.C., 31 F. Supp. 516. Hence, the same conclusion is reached as in Proctor & Gamble Distributing Co. v. Vasseur, Ky., 275 S.W.2d 941, wherein the Court concluded that the purpose of the inquiry was to learn whether or not Proctor & Gamble Distributing Company was the alter ego or distributing agency of Proctor & Gamble Company. It was pointed out that the information sought might become important if judgment should be obtained and prove to be noncollectible. It was concluded that the questions asked were not relevant and that the lower court erroneously required answers thereto. Obviously, petitioners as nonparties have no remedy by appeal. There is no adequate remedy other than by prohibition. The supervisory power of this Court under Section 110 of the Kentucky Constitution has been invoked in cases where in addition to the element of great and irreparable injury there is some aspect of injustice. Schaetzley v. Wright, Ky., 271 S.W.2d 885. Injustice was there defined as “something in the nature of usurpation or abuse of power by the lower court, ⅜ * * such as to demand that the Court of Appeals step in to maintain a proper control over the lower court, * *. The object of the supervisory power of the Court of Appeals is to prevent miscarriage of justice.” The rule in such cases is that if an erroneous order results in a substantial miscarriage of justice, the showing of great and irreparable injury as ordinarily defined is not an absolute necessity. Bender v. Eaton, Ky., 343 S.W.2d 799. The aspect of substantial injustice without an adequate remedy by appeal or otherwise prompts the remedial action under Section 110. The Schaetzley rule was approved in Ison v. Bradley, Ky., 333 S.W.2d 784, cited by respondent, which is not in point since petitioners there were held to have,had adequate remedy by appeal. *528Petitioners are faced with punishment for contempt of court for refusing to answer questions which are not relevant to the issues in the action involved. It is considered that the threatened action of the lower court in the absence of an adequate remedy by appeal constitutes a usurpation or abuse of power with the requisite element of great and irreparable injury sufficient to justify the exercise of this Court’s power under Section 110 of the Kentucky Constitution in order to prevent a miscarriage of justice. Prohibition granted. | opinion_xml_harvard | 1,535 | 2021-10-01 04:53:10.617921+00 | 020lead | t | f | 5,203,275 | Montgomery | null | U | f | Published | 1 | Carpenter v. Wells | Carpenter | C. D. CARPENTER v. Honorable Courtney C. WELLS, Judge, Perry Circuit Court | null | null | null | null | null | null | null | null | null | 60,533,506 | null | 0 | kyctapp | SA | t | Court of Appeals of Kentucky | Court of Appeals of Kentucky |
6,531,058 | Dismissed | opinion_xml_harvard | 1 | 2022-07-19 20:17:42.963966+00 | 020lead | t | f | 6,653,883 | null | null | U | f | Published | 0 | Browning v. State | Browning | Rodney Antonio BROWNING v. STATE | null | null | null | null | null | null | null | null | null | 63,631,846 | CR-14-0477 | 0 | alacrimapp | SA | t | Court of Criminal Appeals of Alabama | Court of Criminal Appeals of Alabama |
9,550,600 | ON PETITION FOR REHEARING *473In support of the petition for rehearing, there was a brief for the appellants by Thomas A. Nicholas and Robert A. Burgess, both of Casper, Wyoming. Heard before Blume, Chief Justice; Riner, Justice; and Parker, District Judge. *474OPINION ON REHEARING Blume, Chief Justice. A petition for rehearing has been filed in the foregoing case. We considered what we thought to be the vital and important questions in the case fully in the original opinion. We stated' at the end of that opinion that it was long; that other matters had been mentioned in the brief of counsel for appellant, but that none of them were of sufficient importance to deserve argument. We still think so. However, counsel had the right to file a petition for rehearing under our rules notwithstanding what we said, and freedom of thought and of expression is one of the heritages in our country, and far be it from us to desire to stifle that. So we have carefully read the brief in support of the petition. In the main, the various pionts heretofore decided have not been questioned, but counsel seem to think that on account of certain matters which they now argue the case ought to be reversed. We shall, in deference to counsel, briefly touch upon some of the matters argued in the present brief. Counsel complain that Christy Smith was not compelled to answer interrogatory 9 submitted by the plaintiffs. That interrogatory was as follows: “State what consideration was paid in connection with said deed, apart from the general consideration mentioned in the alleged agreement.” Respondent answered that plaintiffs were as well informed on that subject as he. That was obviously true. The interrogatory was submitted on the theory of appellants that the warranty deed in evidence enlarged the rights of respondent which were granted' to him in the agreement for that deed. We have shown in the original opinion that that was not true. The foregoing point becomes accordingly wholly academic, and no possible prejudice resulted from the fact that the interrogatory was not fully *475answered. Counsel say that a large part of the time of the trial was lost because of respondent’s answer. It should not have been. If it was, that was due to the wrong theory of counsel for appellants. Moreover, losing unnecessary time in a trial of a case cannot, of course, be ground for reversal of the judgment. Furthermore while appellants assigned the ruling of the court in connection herewith as error, we do not find that it was argued at the original hearing, either in the brief of appellants or on oral argument. The assignment of error was accordingly waived. It is quite apparent that counsel took the same view of the matter originally as we d'o now. Counsel say in their brief that the preliminary agreement at the ranch was important. Just what conclusion they draw from that fact is not clear to us. In any event whatever the agreement at the ranch may have been, it was superseded by a written contract subsequently drawn. Appellants had a copy of it; it was read to them and they signed it. Courts do not easily overturn contracts which are voluntarily entered into by the parties as was true in this case according to the finding of the trial court. Counsel again argue the question that there were numerous leading questions asked in the trial of this case by counsel for Christy Smith. The control in connection with leading questions in a case is largely within the sound discretion of the trial court. 70 C.J. 524. Upon examination of the record, we do not think that appellants were in any way prejudiced in connection with this matter, particularly in view of the fact that the case was tried by the court without a jury. As a part consideration for the contract Christy Smith assumed and agreed to pay to the Federal Land Bank a mortgage in the sum of $7500. The evidence shows that the mortgage is satisfied and released. Counsel say that the record shows that Christy Smith paid *476only $7414.79. While it is hard to believe that the Federal Land Bank would agree to discharge a loan of $7500 for $7414.79, if in fact it did' so, that was a matter between the bank and Christy Smith and does not concern appellants. It is argued that in view of the fact that the trial court failed to make a finding as to the meaning of the language of the contract, this court had no right to search the record and determine the meaning thereof. We think counsel are mistaken. As far as we can see, the finding of the trial court corresponds to what we said on the subject in the original opinion. True, the trial court did not use the same language we did, but the substance of its finding was the same. Counsel say the court did not make any finding of fact or conclusion of law on fraud, duress or mistake. We do not find any specification of error in that connection, nor was the point argued, if we recollect rightly, at the time of the original hearing. Moreover, we think counsel are in error. The court found that appellants voluntarily signed, executed and acknowledged the agreement for the warranty deed involved in the case at bar. It further found: “That each of said instruments is sufficient in law, binding upon the parties thereto, valid and subsisting, and not void and not voidable by reason of any matter or thing within the issues of the causes of action herein and the evidence adduced In support thereof.” While the court did not use the terms fraud, duress and mistake, the substance of its finding is that the contract was free from fraud, duress and mistake. Counsel have again devoted a good deal of their present brief to the professional conduct of one of the counsel for respondent. We think that what we said on that subject in the original opinion is all that we should say thereon. Counsel say that we were wrong when we stated that the professional conduct of counsel for re*477spond'ent was “attacked.” They disclaim any attack. However when you hit a man, and then disclaim that you hit him, the disclaimer is rather valueless. That is about the situation here. We find no ground for a rehearing herein, and the petition therefor is, accordingly denied. Riner, J. and Parker, District Judge, concur. | opinion_xml_harvard | 1,088 | 2023-08-07 18:37:59.500592+00 | 070rehearing | f | f | 1,181,605 | Blume, Parker, Riner | null | LU | f | Published | 23 | Goodson & Koski v. Smith | null | MARY A. GOODSON and VELMA JEAN KOSKI, Plaintiffs and Appellants, vs. CHRISTY K. SMITH, Defendant and Respondent, and PRESTON T. McAVOY, Trustee, Defendant and Respondent; CHRISTY K. SMITH, Plaintiff and Respondent, vs. MARY A. GOODSON, VELMA JEAN KOSKI, and M. J. KOSKI, Defendants and Appellants | null | null | <parties id="b447-2">
MARY A. GOODSON and VELMA JEAN KOSKI,
<em>
Plaintiffs and Appellants,
</em>
vs. CHRISTY K. SMITH,
<em>
Defendant and Respondent,
</em>
and PRESTON T. McAVOY, Trustee,
<em>
Defendant and Respondent.
</em>
CHRISTY K. SMITH,
<em>
Plaintiff and Respondent,
</em>
vs. MARY A. GOODSON, VELMA JEAN KOSKI, and M. J. KOSKI,
<em>
Defendants and Appellants.
</em>
</parties><br><docketnumber id="b447-14">
(Nos. 2529, 2530;
</docketnumber><decisiondate id="AvM">
April 7, 1952;
</decisiondate><citation id="AMX">
243 Pac. 2d 163)
</citation><br><attorneys id="b451-3">
<span citation-index="1" class="star-pagination" label="443">
*443
</span>
For the plaintiffs and appellants, in case No. 2529 and for defendants and appellants in case No. 2530, the causes were submitted upon the brief and also oral argument of Thomas A. Nicholas and Robert A. Burgess, both of Casper, Wyoming.
</attorneys><br><attorneys id="b451-4">
For the defendant and respondent, in case No. 2529 and the plaintiff and respondent in case No. 2530, the causes were submitted upon the brief and also oral argument of Robert S. Lowe of Rawlins, Wyoming, and Thomas M. McKinney of Basin, Wyoming.
</attorneys><br><judges id="b451-5">
Heard before Blume, Chief Justice; Riner, Justice; and Parker, District Judge.
</judges> | null | null | null | null | null | null | 503,139 | 2529, 2530 | 1 | wyo | S | t | Wyoming Supreme Court | Wyoming Supreme Court |
4,346,706 | In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ********************* CHRISTINE HARRISON, * * No. 15-1064V Petitioner, * Special Master Christian J. Moran * v. * Filed: November 6, 2018 * SECRETARY OF HEALTH * AND HUMAN SERVICES, * Attorneys’ fees and costs * * Respondent. * ********************* Mark Sadaka, Mark T. Sadaka, LLC, Englewood, NJ, for Petitioner; Ryan D. Pyles, United States Dep’t of Justice, Washington, DC, for Respondent. UNPUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS1 Christine Harrison prevailed in her claim brought in the National Childhood Vaccine Compensation Program. She is now seeking an award for attorneys’ fees and costs. She is awarded the amount requested, $40,839.53. * * * Represented by attorney Mark Sadaka, Ms. Harrison filed her petition on September 22, 2015, alleging that the influenza vaccine caused her to suffer various problems, including a demyelinating event. After discussions, the parties 1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website. resolved this case. The parties submitted a stipulation that a decision incorporated. Decision, 2017 WL 6945685 (Dec. 10, 2017). On July 2, 2018, Ms. Harrison filed a motion for an award of attorneys’ fees and costs. The motion seeks a total of $40,839.53, comprised of $26,093.22 in attorneys’ fees and $14,746.31 in attorneys’ costs. Ms. Harrison did not incur any costs personally. Gen. Order No. 9 Stat. The Secretary filed a response to Ms. Harrison’s motion. The Secretary represented that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Resp’t’s Resp., filed July 13, 2018, at 2. With respect to amount, the Secretary recommended that “the special master exercise his discretion” when determining a reasonable award for attorneys’ fees and costs. Id. at 3. Ms. Harrision filed a reply reiterating her request for attorneys’ fees and costs. Pet’r’s Reply, filed July 20, 2018. This matter is now ripe for adjudication. * * * Because Ms. Harrison received compensation, she is entitled to an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the unresolved question is what is a reasonable amount of attorneys’ fees and costs? I. Attorneys’ Fees The Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step process. Avera v. Sec’y of Health & Human Servs. 515 F.3d 1343 , 1348 (Fed. Cir. 2008). First, a court determines an “initial estimate … by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886 , 888 (1984)). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348. Here, because the lodestar process yields a reasonable result, no additional adjustments are required. Instead, the analysis focuses on the elements of the lodestar formula, a reasonable hourly rate and a reasonable number of hours. 2 A. Reasonable Hourly Rate Under the Vaccine Act, special masters, in general, should use the forum (District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349 . There is, however, an exception (the so-called Davis County exception) to this general rule when the bulk of the work is done outside the District of Columbia and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755 , 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work was done outside of the District of Columbia. Ms. Harrison requests compensation for Attorney Sadaka, as well as paralegals who assisted him. The proposed rates are reasonable. Rolshoven v. Sec'y of Health & Human Servs., No. 14-439V, 2018 WL 3986831 , at *2 (Fed. Cl. Spec. Mstr. June 26, 2018).2 B. Reasonable Number of Hours The second factor in the lodestar formula is a reasonable number of hours. Reasonable hours are not excessive, redundant, or otherwise unnecessary. See Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517 , 1521 (Fed. Cir. 1993). The Secretary also did not directly challenge any of the requested hours as unreasonable. In light of the Secretary’s lack of objection, the undersigned has reviewed the fee application for its reasonableness. See McIntosh v. Sec’y of Health & Human Servs., 139 Fed. Cl. 238 (2018). Nearly all of the activities are reasonable. Although some entries relating to the filing of documents might be questionable, these potentially excessive items 2 Although Ms. Harrison’s motion references an inflation rate of 3.7 percent, that figure was for a different time and based upon a different index. Special masters have not increased hourly rates at that rate. See Keenan v. Secʼy of Health & Human Servs., No. 17-189V, 2018 WL 2772307 , at *2 n.4 (Fed. Cl. Spec. Mstr. May 2, 2018), judgment modified on non-relevant grounds, 2018 WL 5573432 (Fed. Cl. Spec. Mstr. Sept. 12, 2018). 3 are relatively trivial. Thus, in light of the Secretary’s failure to object, the undersigned finds all of the time billed reasonable. II. Costs In addition to seeking an award for attorneys’ fees, Ms. Harrison seeks compensation for costs expended, totaling $14,746.31. The costs for routine items, such as medical records and the filing fee, are reasonable and adequately documented. Ms. Harrison is awarded them ($1,621.31) in full. The bulk of the costs ($13,125.00) derive from Dr. Steinman’s work. This cost is reasonable as well. * * * The Vaccine Act permits an award of reasonable attorneys’ fees and costs. §15(e). The undersigned finds $40,839.53 ($26,093.22 in attorneys’ fees and $14,746.31 in attorneys’ costs) to be a reasonable amount for all attorneys’ fees and costs incurred. The undersigned GRANTS the petitioner’s motion and awards $40,839.53 in attorneys’ fees and costs. This shall be paid as follows: A lump sum of $40,839.53 in the form of a check made payable to petitioner and petitioner’s attorney, Mark Sadaka, for attorneys’ fees and costs available under 42 U.S.C. § 300aa-15(e). In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.3 IT IS SO ORDERED. s/Christian J. Moran Christian J. Moran Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 4 | opinion_html_with_citations | 1,136 | 2018-12-03 21:02:57.019283+00 | 010combined | f | f | 4,569,453 | Christian J. Moran | null | C | t | Unpublished | 0 | Harrison v. Secretary of Health and Human Services | Harrison | null | null | null | null | null | null | null | null | null | PUBLIC DECISION (Originally filed: 11/6/2018) regarding DECISION of Special Master - Fees. Signed by Special Master Christian J. Moran. (abs) Service on parties made. | 8,344,833 | 15-1064 | 0 | uscfc | FS | t | Federal Claims | United States Court of Federal Claims |
8,599,842 | PER CURIAM: Cesar Garcia Cazun, a federal prisoner, seeks to appeal the district court’s order denying relief on his motion filed under 28 U.S.C. § 2255 (2000). The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of his constitutional claims is debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001). We have independently reviewed the record and conclude that Cazun has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED | opinion_xml_harvard | 203 | 2022-11-23 21:06:15.144459+00 | 020lead | t | t | 8,620,591 | King, Niemeyer, Williams | null | U | f | Published | 0 | United States v. Cazun | Cazun | UNITED STATES of America, Plaintiff—Appellee v. Cesar Garcia CAZUN, Defendant—Appellant | null | null | null | null | null | null | null | null | null | 65,885,038 | No. 04-7296 | 0 | ca4 | F | t | Fourth Circuit | Court of Appeals for the Fourth Circuit |
1,800,084 | 549 So. 2d 82 (1989) Lucille RUTLEY and Willie Rutley v. COUNTRY SKILLET POULTRY COMPANY. 88-277. Supreme Court of Alabama. August 25, 1989. Steven D. Tipler, Birmingham, for appellants. Carol A. Smith and M. Clay Ragsdale of Starnes & Atchison, Birmingham, for appellee. MADDOX, Justice. The plaintiffs appeal from a summary judgment for the defendant, Country Skillet Poultry Company (hereinafter "Country Skillet"). The evidence before the trial court at the time of the summary judgment motion tended to show the following: Lucille Rutley worked at Peco Foods, Inc. (hereinafter "Peco"), and on October 26, 1983, her thumb was amputated while she was reaching into a chicken wing cutting machine to clear a stuck chicken wing. This machine had been manufactured by Research Development & Manufacturing Corporation, and a few weeks prior to Lucille's injury Peco had purchased this machine and another just like it from Country Skillet, a company also in the poultry processing business. *83 Before Country Skillet sold these machines to Peco, they had been in use at Country Skillet's plant in Athens, Alabama, and three workers had had their thumbs amputated by these machines. There had also been two other hand injuries on these machines. The purchase of the machines from Country Skillet was initiated by Peco's manager, Holly Dyer. Dyer and Country Skillet's manager, J.W. McKinney, discussed the accidents that had occurred on the machines but did not discuss specifics such as names and dates. Each machine was sold "as is". During the years that Country Skillet had owned and operated the machines, Travelers Insurance Company provided safety inspection services, and as a result of injuries on the machines, Travelers made recommendations for alterations and modifications to the machines. Those recommendations were made by Travelers' engineering representative, Stephen Bentley, and were that a rod or thong be provided to clear the machine, that a sign be attached reading "Turn Machine Off Before Attempting to Clear Machine," that a written training program be drafted, and that a guard be added. All of these recommendations were adopted by Country Skillet except that the signs placed on the machines read "Do Not Talk To Machine Operators" and "Shut Down This Machine Before Cleaning, Oiling Or Repairing. Wait Until All Moving Parts Stop." Despite all of these changes, another injury occurred on one of the machines. Bentley returned to the plant and mentioned to Country Skillet's management that if the machines caused another injury, further steps would be necessary. Country Skillet then changed the safety switch to one that would brake the machine's moving part so that there would be no continued motion after the machine was turned off and initiated a slide show training program. Two more injuries occurred on the machines. When Country Skillet sold the machines to Peco, Country Skillet did not tell Peco about the Travelers recommendations, about the need for a rod or thong to clear the machine, or about the details of the accidents; Country Skillet also did not tell Peco about the training materials or provide Peco with those materials. Once the machines were delivered to Peco, Peco replaced the safety switches with switches that did not brake the machines, and on the day of Lucille's injury, the switch on her machine did not work at all. Peco also removed the signs. The record is conflicting over whether Peco also removed other safety features from the machines. Lucille and her husband sued the machine's manufacturer, certain co-employees, and Peco's insurance carrier; Country Skillet was later added as a defendant in an amendment to the complaint. A settlement for $114,000.00 was reached with all defendants except Country Skillet. Country Skillet then moved for summary judgment, and the trial court granted that motion. Because this action was filed prior to June 11, 1987, the effective date of Ala. Code 1975, § 12-21-12, the "scintilla rule" governs this Court's review of the summary judgment. This Court has stated: "`A motion for summary judgment may be granted only when there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Fountain v. Phillips, 404 So. 2d 614 , 618 (Ala.1981). Furthermore, all reasonable doubts concerning a genuine issue of material fact must be resolved against the moving party. Couch v. Dothan-Houston County Airport Authority, Inc., 435 So. 2d 14 (Ala.1983).'" Best v. Houtz, 541 So. 2d 8 , 9 (Ala.1989) (quoting Cabaniss v. Wilson, 501 So. 2d 1177 , 1182 (Ala.1986)). Under the "scintilla rule," once the moving party has made a prima facie showing, the burden shifts to the non-moving party to show that there is at least a scintilla of evidence in his favor. Ross v. Edwards, 541 So. 2d 507 , 509 (Ala. 1989). Plaintiffs claim that Country Skillet was negligent in the redesign, alteration, and sale of the machine, and they rely on Restatement (Second) of Torts § 388 (1965), which provides: "One who supplies directly or through a third person a chattel for another to use *84 is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier "(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and "(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and "(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous." Section 388 was cited by this Court in Purvis v. PPG Indus., Inc., 502 So. 2d 714 , 719 (Ala.1987). Country Skillet argues that plaintiffs raise the applicability of § 388 for the first time on appeal, and that plaintiffs sued it only under the Alabama Extended Manufacturer's Liability Doctrine and that the § 388 claim was never added by amendment to their pleadings and was not presented at the summary judgment hearing. Plaintiffs' third amendment states, in part: "3. This claim is brought under the Alabama Extended Manufacturer's Liability Doctrine. "4. Plaintiff substitutes Country Skillet Poultry Company for the parties fictitiously described in the original Complaint as `G', `H', `I', `J', `M' and `N'. "5. The plaintiff claims that the defendant, Country Skillet Poultry Company, and those fictitiously described defendants named in the original Complaint which are listed in the previous paragraph herein, sold, manufactured, altered and/or distributed [the] wing machine made the basis of the original Complaint and this Amendment thereto, in a defective condition unreasonably dangerous to the ultimate user thereof, to-wit; the plaintiff, Lucille Rutley. Plaintiff further avers that the said defendants, Country Skillet Poultry Company and those fictitiously described defendants named in the preceding paragraph herein, negligently placed the wing machine made the basis of this Complaint into the stream of commerce in the State of Alabama when said defendants knew or by the exercise of reasonable care should have known that the said wing machine was inherently and unreasonably dangerous when it was used for its intended purpose. Plaintiff claims further that she, Lucille Rutley, was an expected ultimate user of said product and that she was using it for its intended purpose when she sustained the severe injuries complained of in the original Complaint." In Barnett v. Mobile County Personnel Bd., 536 So. 2d 46 (Ala.1988), we discussed how a caption to a pleading is only the label by which to identify it and is not the determining factor of what the pleading actually is or what it states. A court must look to the allegations in the body of the complaint in order to determine the nature of a plaintiff's cause of action. Id., 536 So.2d at 50. While paragraph 3 in the amended complaint is not a caption, certainly that one statement does not act as the only means of determining what action the amended complaint states; the pleading must be read in its entirety. Taken as a whole, the amendment does not allege that Country Skillet failed to warn Peco of the machine's dangers, and, thus, the amendment does not state a claim under § 388. A fair reading of the amendment shows that the plaintiffs attempted to state only a cause of action under the Alabama Extended Manufacturer's Liability Doctrine. The liberalized rules of procedure have not eliminated pleadings as the principal means by which the parties choose the issues that they wish to litigate. Id., 536 So.2d at 49-50; Zeigler v. Baker, 344 So. 2d 761 , 763 (Ala.1977). This Court stated in Archie v. Enterprise Hosp. & Nursing Home, 508 So. 2d 693 , 696 (Ala.1987): "A given set of facts may give rise to more than one cause of action, and if a plaintiff elects to pursue only one such cause of action, the fact that an unpursued cause of action would have supported recovery will not bolster a cause of action which will not support recovery. *85 Although the Alabama Rules of Civil Procedure have established notice pleading, see Rule 8, a pleading must give fair notice of the claim against which the defendant is called to defend." The amendment in this case does not allege that Country Skillet failed to exercise reasonable care to inform Peco of the dangerous condition of the machine. Failure to warn is an essential element under § 388. Therefore, no claim under § 388 was ever stated. When taken as a whole, the plaintiffs' claim against Country Skillet is one under the Alabama Extended Manufacturer's Liability Doctrine. Plaintiffs have conceded that that doctrine is not applicable in this case and do not claim on this appeal that Country Skillet can be held liable under the A.E.M.L.D. The necessary elements for recovery under a negligence theory are duty, breach of that duty, proximate cause, and injury. Jones v. Newton, 454 So. 2d 1345 , 1348 (Ala.1984). Restatement (Second) of Torts § 388 provides that part of the duty of one who supplies a chattel for another to use is reasonable care in informing the other party of the chattel's dangerous condition. The plaintiffs failed to state a claim for negligence under § 388. Therefore, the judgment of the trial court is affirmed. AFFIRMED. HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | opinion_html_with_citations | 1,755 | 2013-10-30 07:28:31.950366+00 | 010combined | f | f | 1,800,084 | Maddox | null | L | f | Published | 16 | Rutley v. Country Skillet Poultry Co. | Rutley | null | null | null | null | null | null | null | null | null | null | 1,719,874 | 88-277 | 0 | ala | S | t | Supreme Court of Alabama | Supreme Court of Alabama |
1,276,950 | 163 S.E.2d 798 (1968) Lonnie JARRELL v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and the Carbon Fuel Company. No. 12739. Supreme Court of Appeals of West Virginia. Submitted October 8, 1968. Decided October 29, 1968. *799 Jackson, Kelly, Holt & O'Farrell, John L. McClaugherty, Louis S. Southworth, II, Charleston, for appellants. George G. Burnette, Jr., Charleston, for appellee. CALHOUN, Judge: This workmen's compensation case is before the Court on an appeal by the employer, The Carbon Fuel Company, for review of an order entered by the Workmen's Compensation Appeal Board on January 10, 1968, which affirmed an order of the West Virginia Director of Workmen's Compensation (now known as West Virginia Workmen's Compensation Commissioner) entered on October 4, 1967, by which he awarded silicosis benefits to the claimant, Lonnie Jarrell. The claim directly involved in this case relates to the second application for silicosis benefits filed by the claimant. The primary question presented for decision on this appeal is whether the claimant is precluded under the provisions of Code, 1931, 23-5-1, as amended, from a right to an award of benefits upon this second application by reason of his failure, within thirty days, to object in writing to the finding of the director in relation to the proceedings upon the first application. The claimant ceased work for the employer on December 20, 1963, when the coal mine at which he was employed terminated its operations. On August 19, 1964, the claimant filed a claim for silicosis benefits. In its report in relation to the claim, the employer questioned the contention of the claimant that he had been exposed to the hazard of silicon dioxide dust in accordance with the requirements of Code, 1931, 23-4-15b, *800 as amended. On September 10, 1964, the director entered an order as follows: "This claim came on to be considered this 10th day of September, 1964, upon the claimant's application for silicosis benefits, filed August 19, 1964, and upon a review of the entire record; and it appearing therefrom that claimant has made no prima facie showing that he has contracted the disease silicosis, and the Director being of the opinion that claimant has not been exposed to the hazard of silicon dioxide dust in harmful quantities for a continuous period of sixty days or more, within two years prior to the filing of his said application, it is hereby ordered and directed that this claim be and the same is hereby denied; all of which is accordingly so ordered." It will be noted that by his order the director (a) found that the claimant had made no prima facie showing that he had contracted the disease silicosis; (b) found that he had not been exposed to the hazard of silicon dioxide dust as required by the pertinent statute; and directed that the claim be denied. On September 14, 1964, R. Jack Canterbury, Secretary, Workmen's Compensation Fund, directed a letter to the claimant and to the employer. The letter notified the parties of the director's action and quoted the order which had been entered by the director. The concluding paragraph of the letter is as follows: "Either party has thirty days from receipt of this order within which to enter objection in writing thereto." No protest or objection was made to the director's order of September 10, 1964, in accordance with Code, 1931, 23-5-1, as amended. On October 8, 1965, the claimant filed the second application or claim for silicosis benefits. The proceedings upon this second application are involved in the case presently before the Court. In the second application, the claimant stated that he had not applied previously for silicosis benefits. On December 1, 1965, the West Virginia Workmen's Compensation Commissioner, (the title of his official position having been changed by an act of the legislature which became effective July 1, 1965), entered a nonmedical order referring the claim to the Silicosis Medical Board. A protest to that action was made by the employer. Pursuant to that protest, a nonmedical hearing was held on June 17, 1966. At the hearing, the employer introduced in evidence a copy of the claimant's initial application for silicosis benefits. It was stipulated that the claimant received a copy of Mr. Canterbury's letter of September 14, 1964. The claimant admitted that he had not been exposed to the hazard of silicon dioxide dust subsequent to the period of employment referred to in his initial application for silicosis benefits. The employer moved that the claim be dismissed on the ground that the claimant's contention that he is entitled to silicosis benefits was irrevocably determined against him as a consequence of the law applicable to the proceedings in connection with his initial claim. Under date of July 5, 1966, the motion to dismiss was denied and the claim was referred to the Silicosis Medical Board which, on November 1, 1966, determined that there was sufficient evidence to justify a diagnosis of silicosis. The employer promptly objected to that action of the board. A hearing was held before the Silicosis Medical Board on May 17, 1967. At this hearing, the employer renewed its motion to dismiss the claim. The trial examiner denied the motion. On October 4, 1967, the commissioner entered an order making a 20% award of silicosis benefits to the claimant. Upon appeal by the employer, the appeal board, by its order entered on January 10, 1968, affirmed the ruling and order of the commissioner. From that action of the appeal board, the employer has been granted the appeal to this Court. *801 The case presents for decision the question whether the commissioner and the appeal board erred in awarding silicosis benefits to the claimant upon his second application by reason of the provisions of Code, 1931, 23-5-1, which, subject to omission of certain language not deemed pertinent to this case, is as follows: "The commissioner shall have full power and authority to hear and determine all questions within his jurisdiction, but upon the making or refusing to make any award, * * * the commissioner shall give notice, in writing, to the employer, employee, * * *, of his action, which notice shall state the time allowed for filing an objection to such finding, and such action of the commissioner shall be final unless the employer, employee, claimant or dependant shall, within thirty days after the receipt of such notice, object, in writing, to such finding. Upon receipt of such objection the commissioner shall, within thirty days from receipt thereof, set a time and place for the hearing of evidence. * * *. After final hearing the commissioner shall, within sixty days, render his decision affirming, reversing or modifying, his former action, which shall be final; provided, however, that the claimant or the employer may apply to the appeal board herein created for a review of such decision; * * *." (Italics supplied). We are of the opinion that the language of the statute which is pertinent to this case is clear and unambiguous. It is the duty of the Court, therefore, to apply the statute in accordance with the legislative intent therein clearly expressed. State ex rel. Riffle v. City of Clarksburg, W.Va., pt. 3 syl., 162 S.E.2d 181 . The appeal board, relying upon Burr v. State Compensation Comm'r, 148 W.Va. 17, 132 S.E.2d 636 and Meeks v. State Compensation Comm'r, 143 W.Va. 732, 104 S.E.2d 865 , held that the order entered by the commissioner on September 10, 1964, in relation to the claimant's initial application was based upon the commissioner's "administrative procedure of processing a silicosis claim in the initial stages upon the basis of claimant's application, form CD 6-Z, the physician's preliminary report, form CD 7-Z, and the employer's report, CD 13-Z. Such order, in our opinion, did not encompass a determination made upon the merits of the claim." The appeal board's opinion further states that the order "was not a final determination of claimant's entitlement to silicosis benefits and did not bar claimant's second application * * *, and the award of 20% permanent partial disability made to claimant for the disease silicosis." By brief and oral argument in this Court, counsel for the claimant relies basically on the same reasoning and the same prior decisions of this Court as those which were relied upon by the appeal board in its opinion. Counsel for claimant concedes that the order of September 10, 1964, was not erroneous; that it became final by failure of the claimant to make timely protest or objection to the order; and that, having attained that status, the order "can never be vacated, set aside, annulled, modified or amended under the doctrine of Dismond and Garnes. " The reference is to Dismond v. State Compensation Comm'r, 148 W.Va. 26, 132 S.E.2d 743 and State ex rel. Garnes v. Hanley, 150 W.Va. 468, 147 S.E.2d 284 . Counsel for the claimant inisists that the order of September 10, 1964, was merely "an interlocutory finding" and that it was not "res judicata" so as to preclude an award of silicosis benefits upon the second application. We are unable to agree with the reasoning and legal principles asserted by the appeal board and counsel for the claimant. The Meeks and Burr cases, which were relied upon by the appeal board and which are relied upon by counsel for the claimant, both involved applications for reopenings and further adjustments of claims. We believe, therefore, that those cases are *802 not in point in relation to the legal question presented in this case. This case involves a refusal of the director (now commissioner) to make an award. The applicable statute is Code, 1931, 23-5-1, which provides that after the commissioner enters such an order and after the giving of the prescribed notice to the claimant, "such action of the commissioner shall be final unless the * * * claimant * * * shall, within thirty days after the receipt of such notice, object, in writing, to such finding." (Italics supplied). The statute from which we have quoted immediately above, as it relates to this case, is clear and unambiguous. The order of September 4, 1964, in the absence of objection in writing as provided for in Code, 1931, 23-5-1, became final upon the date of the entry thereof. The claimant had a right to object in writing to the order, to have a hearing and, upon an adverse ruling, he had a right to appeal to the appeal board. In the event of an adverse ruling by the appeal board, he had the right to apply to this Court for review of the appeal board's order. Our construction of pertinent statutes in this respect is, we believe, sustained by State ex rel. Garnes v. Hanley, 150 W. Va. 468 , 472-473, 147 S.E.2d 284 , 287; Dismond v. State Compensation Comm'r, 148 W.Va. 26, 132 S.E.2d 743 ; Cottrell v. State Compensation Comm'r, 145 W.Va. 336, 115 S.E.2d 153 . We are sympathetic to the claimant, and we regret that he was not represented by counsel until after the expiration of the thirty-day period. For reasons stated in this opinion, the order of the Workmen's Compensation Appeal Board entered on January 10, 1968, is reversed and the case is remanded to the West Virginia Workmen's Compensation Commissioner with directions to dismiss the claim. Reversed and remanded with directions. | opinion_html_with_citations | 1,891 | 2013-10-30 05:19:34.608571+00 | 010combined | f | f | 1,276,950 | Calhoun | null | L | f | Published | 3 | Jarrell v. STATE WORKMEN'S COMPENSATION COM'R | Jarrell | null | null | null | null | null | null | null | null | null | null | 739,004 | 12739 | 0 | wva | S | t | West Virginia Supreme Court | West Virginia Supreme Court |
2,713,985 | #26411-a-DG 2013 S.D. 27 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA **** MICHELE K. ROSETH n/k/a MICHELE K. HOLIEN, Plaintiff and Appellee, v. CALVIN A. ROSETH, Defendant and Appellant. **** APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA **** THE HONORABLE RONALD K. ROEHR Judge **** THOMAS M. FRANKMAN TIMOTHY M. GEBHART of Davenport, Evans, Hurwitz & Smith, LLP Sioux Falls, South Dakota Attorneys for plaintiff and appellee. RAYMOND D. RYLANCE of Wiles & Rylance, LLP Watertown, South Dakota and DAVID L. GANJE Rapid City, South Dakota Attorneys for defendant and appellant. **** CONSIDERED ON BRIEFS ON FEBRUARY 12, 2013 OPINION FILED 03/27/13 #26411 GILBERTSON, Chief Justice [¶1.] Calvin Roseth and Michele Holien entered into an agreement regarding payment of their children’s post-high school educational expenses as part of their divorce. Calvin and Michele’s youngest child Jason pursued a double major in college and took five years to complete his undergraduate degree. Additionally, during Jason’s fifth year of college, Jason was accepted into several two-year master’s degree programs in the field of music performance. At the end of Jason’s senior year of college, Calvin began disputing his obligation to continue paying his share of Jason’s educational expenses. Michele argued that the terms of the parties’ agreement required Calvin to pay his share of Jason’s expenses for Jason’s fifth year of college, as well as for Jason’s first year of graduate school. The circuit court found that the parties’ agreement was unambiguous, and ordered Calvin to pay his share of the expenses associated with Jason’s fifth year of undergraduate studies and Jason’s first year of graduate school. Calvin appeals. FACTS [¶2.] Calvin and Michele divorced in 1997. As part of their divorce, Calvin and Michele entered into a Stipulation and Agreement (the Agreement) on July 15, 1997. The Agreement was incorporated into the parties’ Judgment and Decree of Divorce. Paragraph 19 of the Agreement provides: In the event either child of the parties enrolls as a full time student in a recognized and accredited institution of higher education or vocational training within nine months following graduation from high school, each party shall pay his or her pro- rata share of room, board, tuition, fees, and books, until completion of said course of study or age 25, whichever first occurs. The pro-rata share of each parent shall be equal to the -1- #26411 percentage which would be utilized for calculation of child support if the same were to be calculated at that time. [¶3.] Calvin and Michele had three children during their marriage. The parties’ oldest daughter attended Augustana College for approximately two-and-a- half years, and their other daughter obtained a four-year degree from Northern State University. Calvin and Michele paid their respective shares of the girls’ room, board, tuition, fees, and books (educational expenses) during those years. Jason Roseth is the parties’ youngest child. He was born on September 5, 1988. Calvin’s payment of his pro-rata share 1 of Jason’s educational expenses is the subject of this appeal. [¶4.] Jason graduated from high school in the spring of 2007. In the fall of 2007, Jason began attending Augustana College in Sioux Falls, South Dakota, as a music major with an emphasis on trombone performance. Jason’s career goal was to become a professional musician and to play professionally in a symphony. On the advice of his instructor, Vance Shoemaker, Jason added accounting as a second major during his sophomore year of college. 2 Shoemaker recommended that Jason add a second major because it was difficult for music performance majors to get a job and make a career out of performing. In accordance with the terms of the 1. At the time of this dispute, Calvin’s pro-rata share of Jason’s educational expenses was 71 percent, and Michele’s pro-rata share was 29 percent. 2. Calvin was unaware of Jason’s addition of the accounting major, as the two had not been in contact for several years. -2- #26411 Agreement, Calvin paid his pro-rata share of Jason’s educational expenses during Jason’s freshman, sophomore, junior, and senior years of college. 3 [¶5.] On May 5, 2011, Calvin received a letter from Michele updating Calvin on Jason’s plan to continue his education. Up until this point, Calvin believed Jason would be graduating from Augustana College with a degree in music in May 2011. In the letter, Michele informed Calvin that Jason would not be graduating in May 2011. Instead, Michele informed Calvin that: Jason was registered for the first summer session at Augustana College; Jason would be attending Augustana College in the fall to complete a fifth year of undergraduate studies; and Jason planned to attend graduate school following his graduation in May 2012. After receiving Michele’s letter, Calvin requested a copy of Jason’s transcript. Upon reviewing Jason’s transcript, Calvin believed Jason should have been able to graduate from Augustana College in May 2011 with a music major. [¶6.] In order to receive an undergraduate degree from Augustana College, a student must complete a total of 130 credit hours. Approximately 60 of these credits are general education requirements (core classes) that all students must complete. To obtain a bachelor of arts in music, 45 of the 130 credits must be in music. 4 Further, to obtain a degree in accounting, a student must complete 31 3. By the end of the spring 2011 semester (Jason’s senior year of college), Calvin had made all payments except for a payment of $412.72, which was his pro- rata share of expenses that stemmed from some of Jason’s spring 2011 accompaniment and book/supply costs and a portion of Jason’s summer book costs. 4. There are certain music classes that satisfy the 45-credit requirement. -3- #26411 credits, plus 14 additional hours of supporting credits, for a total of 45 credits. Thus, for a student to graduate with a double major in music and accounting, the student must complete a total of 150 credits. [¶7.] By the end of the spring of 2011, Jason had completed 141 credit hours. Seventy of those credits were in music, and Jason admitted that as of May 2011 he had completed all courses required to obtain his music major. However, despite having more credits than necessary for a music degree, Jason was not eligible for graduation in May 2011 because he had not completed three core classes he was required to complete in order to obtain a bachelor’s degree. Specifically, Jason still needed to complete a speech course, a religion course, and a capstone course in order to be eligible for graduation. The capstone course, which students typically took during their senior year, was offered every fall semester, interim, spring semester, and summer session. Additionally, the speech and religion courses were offered each semester, and Jason could have taken these courses any year. 5 Calvin believed Jason chose not to take these required courses in order to prolong his education. [¶8.] Ultimately, Jason completed the required speech and religion courses during the summer session in 2011. During the fall of 2011, Jason took 6 credits that were required for his accounting major, and 6 credits that were music electives. The music electives were not required in order for Jason to obtain his bachelor’s degree. Calvin believed Jason took these credits in order to maintain his status as a 5. At the hearing, Sharon Neish (the Assistant Registrar at Augustana College) clarified that the religion course could be taken any time after a student’s first year of college. -4- #26411 full-time student, which was a condition of Calvin’s payment of Jason’s educational expenses pursuant to Paragraph 19 of the Agreement. Further, although the capstone course was offered during the summer session, fall semester, and interim, Jason did not complete the required capstone course until the spring 2012 semester. In addition to the 3-credit capstone course, Jason took 4 credits that were required for his accounting major, and 5 credits of unrequired music electives during the spring of 2012. Jason graduated from Augustana College in May 2012 after completing a total of 167 credits. [¶9.] On June 3, 2011 (after Jason finished his senior year at Augustana), Calvin filed a motion requesting a determination that he had satisfied his obligation to pay his pro-rata share of Jason’s educational expenses. Alternatively, if the circuit court determined that he had not satisfied his obligation as of May 2011, he requested that the circuit court determine his obligation for continued payment of Jason’s educational expenses. At the same time, Calvin deposited his share of Jason’s summer 2011 educational expenses with the clerk of courts. The parties later agreed that Calvin would not be required to pay any additional money to the clerk of courts during the pendency of the action. On March 13, 2012 (during the spring semester of Jason’s fifth year at Augustana), Michele filed a motion requesting that the circuit court enforce Paragraph 19 of the Agreement. [¶10.] The circuit court held a hearing on April 5, 2012, to address the parties’ motions. Calvin testified that he understood the phrase “course of study” within Paragraph 19 of the Agreement to mean an undergraduate degree with a single major. Calvin argued that because Jason should have completed his “course -5- #26411 of study” by graduating with a music major in May 2011 (but intentionally prolonged his graduation by putting off three core classes), Calvin was no longer obligated to pay his pro-rata share of the educational expenses Jason incurred after May 2011. Alternatively, Michele testified that “course of study” was not intended to be confined to an undergraduate degree in a single major, but instead included an undergraduate degree with multiple majors and also included graduate school. Thus, Michele argued that Calvin was obligated to pay his pro-rata share of Jason’s educational expenses for the summer 2011 session, the fall 2011 semester, the spring 2012 semester, and the first year of Jason’s two-year master’s degree program. 6 [¶11.] In addition to their own testimony and testimony from Jason, during the hearing both parties presented testimony from witnesses 7 in support of their respective understandings of Paragraph 19 of the Agreement. The circuit court reserved ruling on objections to the admission of various parol evidence during the hearing, subject to its later determination of whether or not Paragraph 19 of the Agreement was ambiguous. Ultimately, the circuit court determined that 6. As Jason will turn 25 before his second year of graduate school, Michele admits that Calvin is not obligated to pay for Jason’s second year of graduate school pursuant to Paragraph 19 of the Agreement. 7. Sharon Neish, the Assistant Registrar at Augustana College, testified that a “course of study” was one major leading towards a bachelor’s degree. Vance Shoemaker, a music instructor at Augustana College, testified that Jason’s “course of study” was music performance, and that Jason could not complete his “course of study” and achieve his goal of being a professional musician without attending graduate school. Shoemaker also testified that the accounting major was necessary to Jason’s “course of study” due to the difficulties associated with making a career out of music performance. -6- #26411 Paragraph 19 of the Agreement was unambiguous and that all parol evidence was consequently inadmissible. Further, the circuit court concluded that the phrase “course of study” was broad and was not restricted to an undergraduate degree or one major. As a result, the circuit court granted Michele’s motion. On June 15, 2012, the circuit court entered an order (along with findings of fact and conclusions of law) requiring Calvin to pay his pro-rata share of Jason’s educational expenses for the summer 2011 session, the fall 2011 semester, the spring 2012 semester, and for Jason’s graduate school until Jason turned 25. The circuit court also ordered Calvin to pay the $412.72 he owed from the spring of 2011, along with some other expenses. Calvin appeals, arguing the circuit court erred in concluding that Paragraph 19 of the Agreement obligated him to pay his pro-rata share of Jason’s educational expenses for the summer 2011 session, Jason’s fifth year of undergraduate studies, and Jason’s first year of graduate school. ANALYSIS AND DECISION [¶12.] Whether the circuit court erred in determining that Paragraph 19 of the Agreement was unambiguous, and that Calvin was required to pay his pro-rata share of Jason’s educational expenses for the summer 2011 session, Jason’s fifth year of college at Augustana, and Jason’s first year of graduate school. [¶13.] “Contractual stipulations in divorce proceedings are governed by the law of contracts.” Duran v. Duran, 2003 S.D. 15 , ¶ 7, 657 N.W.2d 692 , 696 (quoting Pesika v. Pesika, 2000 S.D. 137 , ¶ 6, 618 N.W.2d 725 , 726). “Contract interpretation is a question of law reviewable de novo.” Pankratz v. Hoff, 2011 S.D. 69 , ¶ 10 n.1, 806 N.W.2d 231 , 235 n.1 (quoting Ziegler Furniture & Funeral Home, Inc. v. Cicmanec, 2006 S.D. 6 , ¶ 14, 709 N.W.2d 350 , 354). “Because we can review the contract as easily as the trial court, there is no presumption in favor of the trial -7- #26411 court’s determination.” Id. (quoting Ziegler Furniture, 2006 S.D. 6 , ¶ 14, 709 N.W.2d at 354 ). Further, “whether the language of a contract is ambiguous is a question of law for the court, which is reviewable de novo.” LaMore Rest. Grp., LLC v. Akers, 2008 S.D. 32 , ¶ 31, 748 N.W.2d 756 , 765 (citing All Star Constr. v. Koehn, 2007 S.D. 11 , ¶ 33, 741 N.W.2d 736 , 744). [¶14.] “In determining the proper interpretation of an agreement incorporated into a divorce decree, a court must seek to ascertain and give effect to the intention of the parties.” Kier v. Kier, 454 N.W.2d 544 , 547 (S.D. 1990) (citing Malcolm v. Malcolm, 365 N.W.2d 863 , 865 (S.D. 1985)). Further, “[i]n determining the intention of the parties, the Court must look to the language that the parties used.” Id. (quoting Malcolm, 365 N.W.2d at 865). “When the meaning of contractual language is plain and unambiguous, construction is not necessary.” Pesika, 2000 S.D. 137 , ¶ 6, 618 N.W.2d at 726 (citing Alverson v. Nw. Nat.’l. Cas. Co., 1997 S.D. 9 , ¶ 8, 559 N.W.2d 234 , 235). This is because “the intent of the parties can be derived from within the four corners of the contract.” Vander Heide v. Boke Ranch, Inc., 2007 S.D. 69 , ¶ 37, 736 N.W.2d 824 , 835 (citing Spring Brook Acres Water Users Ass’n, Inc. v. George, 505 N.W.2d 778 , 780 n.2 (S.D. 1993)). However, “[i]f a contract is found to be ambiguous the rules of construction apply.” Pesika, 2000 S.D. 137 , ¶ 6, 618 N.W.2d at 726 . [¶15.] “A contract is not rendered ambiguous simply because the parties do not agree on its proper construction or their intent upon executing the contract.” Vander Heide, 2007 S.D. 69 , ¶ 37, 736 N.W.2d at 836 (quoting Pesika, 2000 S.D. 137 , ¶ 10, 618 N.W.2d at 727 ). Instead, “a contract is ambiguous only when it is -8- #26411 capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.” Id. (quoting Pesika, 2000 S.D. 137 , ¶ 10, 618 N.W.2d at 727 ). If a writing is found to be ambiguous, parol evidence “is admissible to explain the instrument.” LaMore Rest. Grp., 2008 S.D. 32 , ¶ 30, 748 N.W.2d at 764 (quoting Jensen v. Pure Plant Food Int’l Ltd., 274 N.W.2d 261 , 264 (S.D. 1979)). However, “parol or extrinsic evidence may not be admitted to vary the terms of a written instrument or to add or detract from the writing.” Arrowhead Ridge I, LLC v. Cold Stone Creamery, Inc., 2011 S.D. 38 , ¶ 13, 800 N.W.2d 730 , 734 (quoting Brookings Mall, Inc. v. Captain Ahab’s, Ltd., 300 N.W.2d 259 , 262 (S.D. 1980)). Thus, parol evidence “is resorted to where the ambiguity may be dispelled to show what the parties meant by what they said but not to show that they meant something other than what they said.” Id. (quoting Brookings Mall, 300 N.W.2d at 262 ). [¶16.] The outcome of this case essentially hinges upon the interpretation of the phrase “course of study” as used within Paragraph 19 of the Agreement. The circuit court concluded Paragraph 19 of the Agreement was unambiguous, and gave the phrase “course of study” a broad construction. On appeal, both parties argue that the phrase “course of study” is unambiguous 8 and that the plain meaning of the phrase reinforces their divergent interpretations of Paragraph 19 of the Agreement. As a matter of law, we disagree. Instead, we find that the phrase 8. Michele argues in the alternative that even if the phrase “course of study” as used within Paragraph 19 of the Agreement is ambiguous, parol evidence supports Michele’s claim that “course of study” was not meant to be limited to the completion of an undergraduate degree with a single major. -9- #26411 “course of study” as used within Paragraph 19 of the Agreement is ambiguous. 9 As a result, parol evidence is admissible to explain the meaning of Paragraph 19 of the Agreement. [¶17.] Although the circuit court ultimately excluded all parol evidence, the circuit court allowed parol evidence to be presented at the parties’ motions hearing subject to the circuit court’s later ruling on the admissibility of the evidence. Thus, this Court has a sufficient record from which we can determine the meaning of “course of study” as used within Paragraph 19 of the Agreement. At the hearing, Calvin testified that age 25 was used in Paragraph 19 of the Agreement to allow the parties’ children to take a break from their undergraduate studies and still be able to receive payments from Calvin and Michele if they later resumed those studies before turning 25. [¶18.] In contrast, Michele testified the parties used the language requiring each parent to pay his or her pro-rata share of the children’s educational expenses “until completion of said course of study or age 25, whichever first occurs” in Paragraph 19 of the Agreement based upon the ambitions of the parties’ oldest daughter, who entered college in 1998 as a biology major. Michele testified that the parties’ oldest daughter had always intended to go to medical school and become a 9. In Calvin’s reply brief, he argues that if Paragraph 19 of the Agreement is found to be ambiguous, this Court should apply the rule of construction that requires any ambiguities in a contract to be construed against the party that drafted the contract. Calvin asserts that Michele drafted Paragraph 19 of the Agreement, and thus any ambiguity should be construed against her. However, the circuit court made no findings on this issue, and from the record it is unclear who drafted Paragraph 19 of the Agreement. Thus, Calvin’s argument does not affect our resolution of this case. -10- #26411 physician. With their daughter’s goals in mind, Michele testified that the parties used the phrase “course of study” with the intent that the parties would pay for their daughter to complete her education. Further, Michele explained that the parties agreed to use age 25 in Paragraph 19 of the Agreement because they knew a degree in medicine required several years of schooling beyond an undergraduate education. The parties’ oldest daughter was 17 at the time she entered college in 1998. Given that medical school typically takes four years, the parties’ oldest daughter would have turned 25 during her final year of medical school. Thus, Michele argues that Paragraph 19 of the Agreement was intended to encompass more than an undergraduate education. [¶19.] As additional support for her understanding of Paragraph 19 of the Agreement, Michele offered evidence that in December 1998, Calvin proposed that the parties change the age limit in Paragraph 19 of the Agreement from 25 to 23. Michele did not agree to the change. In September 1999, Calvin again requested that the age limit in Paragraph 19 of the Agreement be changed. The second time he requested changing the age limit from 25 to 22. Michele also rejected this proposal. Michele asserts that this evidence supports her claim that the parties’ obligations under Paragraph 19 of the Agreement were not limited to their children’s undergraduate educations. Michele asserts that Calvin’s attempt to lower the age limit suggests that Calvin changed his mind about wanting to pay for the children’s educational expenses beyond the undergraduate level. [¶20.] Overall, we conclude that the parol evidence presented at the hearing supports Michele’s claim that “course of study” as used within Paragraph 19 of the -11- #26411 Agreement includes graduate school. Therefore, under Paragraph 19 of the Agreement, Calvin is obligated to pay his pro-rata share of Jason’s master’s degree program educational expenses until Jason turns 25. [¶21.] Next, we reject Calvin’s claim that the phrase “course of study” as used within Paragraph 19 of the Agreement is limited to the completion of one major. Upon reviewing the parol evidence introduced by Michele, there is no indication that the parties meant for the phrase “course of study” to be limited to a single major. Further, at the hearing, Shoemaker testified that he recommended Jason add an accounting major because it was difficult to make a career out of performing music. Additionally, Shoemaker testified he recommended a double major to every music performance major he ever worked with because the field was so competitive. Thus, Shoemaker believed a double major was a necessary component of a “course of study” in music performance. In light of this testimony, we conclude that the phrase “course of study” as used within Paragraph 19 of the Agreement was not limited to a single major, and that Jason’s accounting major was encompassed within Jason’s “course of study” in music performance. [¶22.] We also reject Calvin’s claim that he is not obligated under Paragraph 19 of the Agreement to pay for Jason’s educational expenses associated with the 2011 summer session, the fall 2011 semester, and the spring 2012 semester because Jason should have been able to graduate with a music major in May 2011. Instead, we conclude that the courses Jason took during the summer of 2011, the fall of 2011, and the spring of 2012 were all part of Jason’s “course of study” in music performance. As discussed above, the phrase “course of study” as used within -12- #26411 Paragraph 19 of the Agreement includes Jason’s accounting major. Because the accounting credits Jason took during his fifth year at Augustana were all required in order for Jason to complete his accounting major, these credits were part of Jason’s “course of study” in music performance. In addition, Jason was required to complete the speech, religion, and capstone courses in order to receive his undergraduate degree from Augustana College, making these credits part of Jason’s “course of study” in music performance. [¶23.] Further, although the music electives Jason took during his fifth year at Augustana were not required, these credits were nonetheless part of Jason’s “course of study” in music performance. At the hearing, Shoemaker explained that practice was essential to a “course of study” in music performance. He testified that these additional music credits were beneficial to Jason because they gave him more practice and allowed him to improve his playing abilities. Therefore, we conclude that Calvin is required to pay his pro-rata share of Jason’s educational expenses for the 2011 summer session, the fall 2011 semester, and the spring 2012 semester, as the credits Jason completed during these terms were part of his “course of study” in music performance. CONCLUSION [¶24.] The phrase “course of study” as used within Paragraph 19 of the Agreement is ambiguous, making parol evidence admissible to explain the meaning of Paragraph 19 of the Agreement. The parol evidence presented at the parties’ motions hearing establishes that Paragraph 19 of the Agreement was intended to include graduate school and was not limited to an undergraduate education. In -13- #26411 addition, Calvin is obligated to pay his pro-rata share of Jason’s educational expenses for the summer 2011 session and Jason’s fifth year of college at Augustana, as the credits Jason completed during this time period were part of his “course of study” in music performance. Therefore, we affirm. [¶25.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur. -14- | opinion_html_with_citations | 4,071 | 2014-08-06 14:41:17.551688+00 | 010combined | f | f | 2,713,985 | Gilbertson, Konenkamp, Severson, Wilbur, Zinter | null | CU | f | Published | 0 | Roseth v. Roseth | Roseth | Michele K. ROSETH N/K/A Michele K. Holien, Plaintiff and Appellee, v. Calvin A. ROSETH, Defendant and Appellant | null | null | <citation id="b170-12">
2013 S.D. 27
</citation><br><parties id="b170-13">
Michele K. ROSETH n/k/a Michele K. Holien, Plaintiff and Appellee, v. Calvin A. ROSETH, Defendant and Appellant.
</parties><docketnumber id="AmP">
No. 26411.
</docketnumber><br><court id="b170-18">
Supreme Court of South Dakota.
</court><br><otherdate id="b170-19">
Considered on Briefs Feb. 12, 2013.
</otherdate><br><decisiondate id="b170-20">
Decided March 27, 2013.
</decisiondate><br><attorneys id="b172-14">
<span citation-index="1" class="star-pagination" label="138">
*138
</span>
Thomas M. Frankman, Timothy M. Geb-hart of Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
</attorneys><br><attorneys id="b172-15">
Raymond D. Rylance of Wiles & Ry-lance, LLP, Watertown, South Dakota and David L. Ganje, Rapid City, South Dakota, Attorneys for defendant and appellant.
</attorneys> | null | null | null | null | null | null | 423,972 | 26411 | 1 | sd | S | t | South Dakota Supreme Court | South Dakota Supreme Court |
3,935,898 | This suit was filed by the appellee, the Citizens' National Bank of Plainview, Tex., in the county court of Hale county, Tex., against C. E. Lock and F. M. Lock, the appellants, on a promissory note payable to the order of G. A. Henderson, which was negotiated by Henderson to the appellee bank. The appellants claim that the note was procured by fraud, of which appellee had full knowledge, was without consideration, and was in contravention of the antitrust laws of the state. The trial court, after the close of the evidence, instructed the jury to find for the plaintiff against the defendants Lock for the principal and interest of the note and 10 per cent. attorneys' fees. At the time of the execution of the note, a written contract was executed by G. A. Henderson and C. E. Lock and F. M. Lock, by the terms of which the Locks were ostensibly appointed as sole and exclusive agents for the sale of a combined educational chart, drawing board, and writing desk, in Smith county, Tex., from the 14th day of December, 1911, to August 9, 1917, in consideration of the agents purchasing from Henderson 36 of said articles at $8.50 per chart, to be delivered f. o. b. Muncie, Ind., and to be shipped to Lock Son within 30 days from the date of the contract; the said Henderson granting to the said Lock Son an equal right with Henderson and his other agents to have all orders filled by the manufacturer at Muncie, Ind., according to the manufacturer's contract with Henderson at the wholesale price of $1.50 per chart. Besides the exclusive agency for the sale of the charts in Smith county, Lock Son were granted another agency with equal privilege with Henderson and his other authorized agents, to sell said chart in the counties of Hale, Swisher, Floyd, and Briscoe, for the same period of time. Aside from the written contract, as abbreviated above, appellants testified, in substance, that Henderson orally represented that as to the Panhandle counties named no other person would have any right to sell the chart in that territory and that no other person would be able to purchase the same chart except from him (Henderson), the latter claiming absolute control over the sale of the same, that none of the agents were permitted to sell the charts for less than $8.50 each and stated that they were constructed out of the best oak wood; however, testifying that they read the contract and the note and signed the same. The appellants stated that the 36 charts received by them were made of inferior material, and that in attempting to sell the charts in some of the Panhandle territory it developed that they were in competition with other charts listed by a mail order house at $2.75, which, with the freight added, would have made the chart cost in that territory $3.25, and, because other firms were selling the same chart in other territory for less money, the particular contract to them was worthless. At the time the written contract and the note were executed, C. E. Lock addressed a letter at the solicitation of Henderson, to the Citizens' National Bank, the appellee, as follows: "I have this day made one note, payable to G. A. Henderson, for $306.00, due November 15, 1912. Will be agreeable with me for you to take up my note." When Henderson negotiated the note to the bank, he presented the letter, and the bank discounted the note about 10 per cent., and we infer from the record that this transpired within a short time after the execution of the note and contract. The president of the bank testified that he had an idea that the note purchased was given for school supplies; that an agent of Henderson, selling charts for him, was staying at his house at that time; that he knew nothing of *Page 538 any statements made to Lock by Henderson, and, as we construe the record, this is the only knowledge of any fact in connection with the transaction possessed by any officer of the bank. Appellants contend that the discount is such, coupled with the purchase of the note in suit from a stranger, and the knowledge of the bank that C. E. Lock, the father, was solvent, was such constructive notice as to put the bank upon inquiry. The case of Oppenheimer et al. v. Farmers' Merchants' Nat. Bank, 97 Tenn. 19 , 36 S.W. 705 , 33 L.R.A. 767 , 56 Am. St. Rep. 778 , by the Supreme Court of Tennessee, cited by appellant upon another proposition, is authority against the contention. It is true that the real amount of the consideration in some cases and under some circumstances is important in determining good faith and constructive notice in the purchase of negotiable paper. The amount paid by a purchaser of paper executed by a solvent maker may be so disproportionate to the face value of the security, and especially so if bought from a stranger, which would imply a guilty knowledge, or a willful ignorance of facts, in connection with the execution of the paper which could have been ascertained by reasonable inquiry. However, it is uniformly held that the rule does not require the full face of the paper to be paid in its purchase, and a contrary principle would not only deprive commercial paper of one of the most essential and valuable incidents of negotiability — that is, the sale of same — but necessarily affect the business and commerce of the country. King v. Doane, 139 U.S. 166 , 11 S. Ct. 465 , 35 L. Ed. 87 . The officers of the bank testified that they relied upon the letter in the purchase of the paper. It was some time after the execution of the contract and the negotiable paper in question that the Locks received the shipment of the charts purchased. If the paper had been sold to the bank prior to the delivery of the charts and the bank had inquired of the Locks, what information would they have received as to any fraud between the Locks and Henderson? The Locks had none until they received the charts and attempted to sell the same. We necessarily overrule the assignment insisting upon this contention. Neither do we think that it is sufficiently shown that the note, as a part of the contract, is in violation of the anti-trust statute of this state. This contract has the usual earmarks of a sale of the exclusive right to vend a patented article throughout a specified district, especially as to Smith county. The Locks testified that Henderson informed them that the article was patented, and if so the evidence suggests that Henderson assumed to control it. The object of the patent law is monopoly, "and the rule is, with few exceptions, that any conditions which are not in their very nature illegal with regard to this kind of property, imposed by the patentee and agreed to by the licensee for the right to * * * sell the article, will be upheld by the courts. The fact that the conditions in the contracts keep up the monopoly or fix prices does not render them illegal." Bement Son v. National Harrow Co., 186 U.S. 91 , 22 S. Ct. 755 , 46 L. Ed. 1069 . A contract of the character indicated by the quotation was held by that court as not void as an unlawful restraint on interstate trade or commerce and was not forbidden by the act of Congress on that subject. The Supreme Court of Texas held, in the case of Albertype Co. v. Gust Feist Co., 102 Tex. 219 , 114 S.W. 791 , that where the former agreed to sell the latter 2,000 copies of souvenir albums, and further agreed not to sell any of said albums in the city of Galveston for one year to any other person, where the articles were to be manufactured in a foreign state and shipped into this state, was not a contract in contravention of our antitrust statute for the reason that the transaction under consideration constituted interstate commerce, and such commerce is not subject to the anti-trust laws of this state. This contract seems to contemplate the right of the Locks to purchase charts at a certain price, to be manufactured at Muncie, Ind., with which the said Henderson had another contract providing for the sale and manufacture of same. If it were not a patented article, we are inclined to think that interstate commerce is such a salient feature of the contract as that the Supreme Court case cited would apply to this record. The appellants also contend that if there was fraud between the maker and the original payee, and the note was fraudulently put into circulation, the bank as an innocent holder should be limited in its recovery to the amount that it paid for the note with interest and attorneys' fees on that amount, and cite the following cases in support of the contention: Sperlin v. Peninsular L. D. Co., 103 S.W. 232 ; People's Nat. Bank v. Mulkey et al., 61 S.W. 528 ; Oppenheimer v. Farmers' Merchants' Bank, 97 Tenn. 19 , 36 S.W. 705 , 33 L.R.A. 767 , 56 Am. St. Rep. 778 ; Campbell v. Brown, 100 Tenn. 245 , 48 S.W. 970 . The two latter are Tennessee cases. Daniel on Negotiable Instruments asserts the same doctrine, with a conflict of authority, though by the different courts of the country on the question. The Supreme Court of this state, however, in the case of Petrie Bro. v. National Bank, 83 Tex. 427 , 18 S.W. 752 , 29 Am. St. Rep. 657 , adopted the rule on this subject declared by the Supreme Court of the United States in the case of Cromwell v. Sac County, 96 U.S. 60 , 24 L. Ed. 681 : "A purchaser of negotiable security before maturity, in cases where he is not personally chargeable with fraud, is entitled to recover its full amount against its maker, though he may have paid less than its par value, whatever may have been its *Page 539 original infirmity." The same question again arose in the case of Petri Bro. v. Fond du Lac Nat. Bank, 84 Tex. 212 , 20 S.W. 777 , and was again decided in the same manner. We are unable to grasp the distinction between paper fraudulently put in circulation and any other fraud in connection with the execution of negotiable paper as to the rights of an innocent holder who has paid value without notice. There are cases, of course, where a negotiable note has been fraudulently put in circulation, in which, with reference to the inception of the paper and circulation of same, the holder, although innocent, has not any rights whatever; but such cases are not applicable here. The rule of the Supreme Court of the United States, followed by our court, is based upon what is considered as the better policy as an aid to commerce in the use of such paper as an evidence of credit in substitution for actual money. Our Supreme Court having adopted the rule, we are concluded by its decision. The appellants insist that the evidence did not justify a peremptory instruction for the attorneys' fees, because that feature of the note is merely a contract of indemnity. Our Supreme Court, in the case of First National Bank of Eagle Lake v. Robinson, 135 S.W. 372 , concludes the appellant on this question. There is an absence of plea and proof in this case by the appellants that the attorneys' fees agreed upon in the note are unreasonable, or unconscionable; hence "the court is authorized to act upon the amount of such fees as agreed upon by the parties and enter judgment accordingly." Upon the above consideration of this record, the cause having been decided upon its merits, it is unnecessary to pass upon the question of the result of a failure to except to a charge of the court, where the instruction to the jury is peremptory. We conclude that the action of the trial court was correct, and the judgment is in all things affirmed. On Motion for Rehearing. In this cause the written contracts in substance set out in our original opinion, if deemed contracts of sale, on the question of the same being condemned by our anti-trust statutes, upon a close consideration and the comparative legal effect between the same and the one considered by the Supreme Court of the state in the case of Albertype Co. v. Gust Feist Co., 102 Tex. 219 , 114 S.W. 791 , we think clearly places this cause, on that question, within the scope of that case, and not within the purview of the case of Watson Medical Co. v. Johnson et al., 162 S.W. 394 . If appellee contends that the testimony of the Locks, as to the statements made by Henderson prior to the time that the written contracts were made, brings this cause within the scope of the latter case cited, and that the contract, viewed as a whole, supplemented by this oral testimony, as the contract between the parties, is condemned by the case last cited, the answer is in the condition of this record that the testimony as to the previous statements and representations made by Henderson cannot constitute the contract between them. The rule that a written memorial which merges previous negotiations excludes such proof is for the reason that the testimony is incompetent. Wigmore says (volume 4, § 2300, subd. 1): "The rule is in no sense a rule of evidence, but a rule of substantive law. It does not exclude certain data because they are for one or another reason untrustworthy or undesirable means of evidencing some fact to be proved. * * * What the rule does is to declare that certain kinds of fact are legally ineffective in the substantive law; and this, of course (like any other ruling of substantive law), results in forbidding the fact to be proved at all." The Supreme Court of the state, in the case of Henry et al. v. Phillips, 105 Tex. 466 , 151 S.W. 538 , with reference to a certain character of testimony in a case different in its status from the cause here, announced, however, what we believe to be the same principle, when it said: "Such incompetent testimony can never form the basis of a finding of facts in an appellate court, notwithstanding its presence in the record without objection. When the appellate court comes to apply the law to testimony constituting the facts of the case, it can only base its conclusion upon such testimony as is under the law competent. That which is not competent testimony should be given no probative force." While we are not inclined to think the oral testimony would bring this cause within the principle of the case of Watson Medical Co. v. Johnson, supra , however, when we come to the written contract, we are clearly of that opinion. Appellants insist that the trial court committed error as follows: On cross-examination of the cashier of the bank, the witness had testified that he could not tell exactly what the bank gave Henderson for the note, but to the best of his recollection it was an amount less about a 10 per cent. discount; that he could not testify to the exact amount without going to the book at the bank recording the purchase. Counsel for defendants asked the witness to secure the book and from it give the exact amount paid for the note. The court stated that he did not consider the amount as material and that it would take up too much time to secure the book. The president of the bank, who negotiated the purchase of the note, had testified that they had discounted the note about 10 per cent. When the bank purchased the note, whatever amount they paid for it, if they had inquired of the Locks in regard to the transaction between the latter and Henderson, the only information that the Locks could have imparted to the officers of the bank was that they had made a *Page 540 certain contract with Henderson for the purchase of certain charts and the right to purchase more to sell in certain territory, upon certain representations made by Henderson. Whether false or true, or fraudulent or not, at that time no one knew or had any means of knowing. We concede there are cases where the court could have abused his discretion in refusing to suspend or delay a case, even though a litigant has not attempted to avail himself of the proper process to obtain information from the opposite party, or to compel the production of his papers into court; but under the record here we do not think an abuse of discretion upon the real merits of the cause is exhibited. We refuse to certify to the Supreme Court a question which we conceive has been previously decided by that court, in the case of Petri Bro. v. National Bank, 83 Tex. 427 , 18 S.W. 752 , 29 Am. St. Rep. 657 , and again repeated in 84 Tex. 212 , 20 S.W. 777 . The motion for rehearing is in all things overruled. | opinion_html_with_citations | 2,920 | 2016-07-06 10:00:28.285145+00 | 020lead | f | f | 4,168,910 | Hendricks | null | ZU | f | Published | 4 | Lock v. Citizens' Nat. Bank | Lock | LOCK Et Al. v. CITIZENS’ NAT. BANK | <p>Appeal from Hale County Court; W. B. Lewis, Judge.</p> <p>Action by the Citizens’ National Bank against C. E. Lock and another. Judgment for plaintiff, and defendants appeal.</p> | null | <parties id="b550-8">
LOCK et al. v. CITIZENS’ NAT. BANK.
</parties><court id="Ag_">
(Court of Civil Appeals of Texas. Amarillo.
</court><br><decisiondate id="b550-9">
March 7, 1914.
</decisiondate><otherdate id="AX3_">
On Motion for Rehearing, April 11, 1914.)
</otherdate><br><headnotes id="b550-10">
1. Bills and Notes (§ 354
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
) — Bona Fide PURCHASERS — CONSTRUCTIVE NOTICE.
</headnotes><br><headnotes id="b550-11">
The amount paid by the purchaser of a note of a solvent maker may be so disproportionate to its face value, especially if bought from a stranger as to imply a guilty knowledge or a willful ignorance of facts connected with the execution of the paper which could have been ascertained by reasonable inquiry, but this rule does not require that the full face value should be paid.
</headnotes><br><headnotes id="b550-12">
[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 904, 905; Dec. Dig. § S54.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
]
</headnotes><br><headnotes id="b550-13">
2. Bills and Notes (§ 354
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
) — Bona Fide Purchasers — Constructive Notice.
</headnotes><br><headnotes id="b550-14">
That a bank discounted the note of a solvent maker purchased from a stranger about 10 per cent, did not deprive it of the standing of a bona fide purchaser where, at the time of the purchase, the makers did not know of the fraud committed by the payee, and the bank, had it made inquiry, would therefore not have learned of the fraud.
</headnotes><br><headnotes id="b550-15">
[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 904, 905; Dee. Dig. § 354.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
]
</headnotes><br><headnotes id="b550-16">
3. Monopolies (§ 17
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
) — Validity —Restraint op Trade.
</headnotes><br><headnotes id="b550-18">
A contract giving one party an exclusive right to vend an article throughout a specified district and fixing a price below which he was not authorized to sell did not violate the antitrust statute of this state if the article was a patented one; the object of the patent law being to create a monopoly.
</headnotes><br><headnotes id="b550-19">
[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. § 17.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
]
</headnotes><br><headnotes id="b550-20">
4. Monopolies (§ 17
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
) — Interstate Commerce-Application op State Laws.
</headnotes><br><headnotes id="b550-21">
A contract giving an exclusive right to sell an article in a specified district and fixing the selling price was not in violation of the antitrust statute of this state, where the articles were to be manufactured and delivered to the party given the exclusive right in another state.
</headnotes><br><headnotes id="b550-22">
[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. § 17.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
]
</headnotes><br><headnotes id="b550-23">
5. Bills and Notes (§ 354
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
) — Bona Fide Purchasers — Extent op Recovery.
</headnotes><br><headnotes id="b550-24">
A purchaser of a negotiable security before maturity, who is not personally chargeable with fraud, is entitled to recover its full amount against the maker, though he may have paid less than its par value whatever the original infirmity in the security.
</headnotes><br><headnotes id="b550-25">
[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 904, 905; Dec. Dig. § 354.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
]
</headnotes><br><headnotes id="b550-26">
6. Bills and Notes (§ 534
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
) — Actions—Burden op Proop — Attorneys’ Fees.
</headnotes><br><headnotes id="b550-27">
In an action on a note stipulating for attorneys’ fees, where there was no proof that
<span citation-index="1" class="star-pagination" label="537">
*537
</span>
the stipulated fees were unreasonable or unconscionable, the court was authorized to act on the stipulation and enter judgment for the stipulated amount.
</headnotes><br><headnotes id="b551-5">
[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1916, 1947; Dec. Dig. § 534.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
]
</headnotes><br><headnotes id="b551-6">
On Motion for Rehearing.
</headnotes><br><headnotes id="b551-7">
7. Trial (§ 396*) — Parol Evidence — Effect op Admission Without Objection — Findings.
</headnotes><br><headnotes id="b551-8">
Oral statements of a party prior to the execution of a written contract were merged therein, and, ■ though received in evidence without objection, could not form the basis of a finding or judgment.
</headnotes><br><headnotes id="b551-9">
[Ed. Note.- — For other cases, see Trial, Cent. Dig. §§ 935-938; Dee. Dig. § 396.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
]
</headnotes><br><headnotes id="b551-10">
8. Trial (§ 26
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
) — Adjournments—Discretion.
</headnotes><br><headnotes id="b551-11">
In an action on a note by an indorsee, where it appeared that at the time of its purchase the makers did not know of the fraud practiced by the payee and that had the indorsee made inquiry it would therefore not have, learned of the fraud, the court did not abuse its discretion in refusing to suspend or delay the case to enable a witness to produce the indorsee’s books for the purpose of showing the exact amount of the discount; the witness testifying that he could not tell the exact amount without the books.
</headnotes><br><headnotes id="b551-12">
'[Ed. Note. — For other cases, see Trial, Cent. Dig. § 42; Dee. Dig. §§ 26.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
]
</headnotes><br><headnotes id="b551-13">
9. Courts (§ 247
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
) — Certifying Questions to Supreme Court.
</headnotes><br><headnotes id="b551-14">
The Court of Civil Appeals will not certify to the Supreme Court a question which in its opinion has been previously decided by that court.
</headnotes><br><headnotes id="b551-15">
[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. § 247.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
]
</headnotes><br><summary id="b551-16">
Appeal from Hale County Court; W. B. Lewis, Judge.
</summary><br><summary id="b551-17">
Action by the Citizens’ National Bank against C. E. Lock and another. Judgment for plaintiff, and defendants appeal.
</summary><disposition id="AT2">
Affirmed.
</disposition><br><attorneys id="b551-18">
Austin C. Hatchell, of Plainview, for appellants. Geo. L. Mayfield and L. R. Pearson, both of Plainview, for appellee.
</attorneys><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b550-28">
For other ca,ses see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexe.
</p>
</div><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b551-23">
For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
</p>
</div></div> | <p>1. Bills and Notes (§ 354*) — Bona Fide PURCHASERS — CONSTRUCTIVE NOTICE.</p> <p>The amount paid by the purchaser of a note of a solvent maker may be so disproportionate to its face value, especially if bought from a stranger as to imply a guilty knowledge or a willful ignorance of facts connected with the execution of the paper which could have been ascertained by reasonable inquiry, but this rule does not require that the full face value should be paid.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 904, 905; Dec. Dig. § S54.*]</p> <p>2. Bills and Notes (§ 354*) — Bona Fide Purchasers — Constructive Notice.</p> <p>That a bank discounted the note of a solvent maker purchased from a stranger about 10 per cent, did not deprive it of the standing of a bona fide purchaser where, at the time of the purchase, the makers did not know of the fraud committed by the payee, and the bank, had it made inquiry, would therefore not have learned of the fraud.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 904, 905; Dee. Dig. § 354.*]</p> <p>3. Monopolies (§ 17*) — Validity —Restraint op Trade.</p> <p>A contract giving one party an exclusive right to vend an article throughout a specified district and fixing a price below which he was not authorized to sell did not violate the antitrust statute of this state if the article was a patented one; the object of the patent law being to create a monopoly.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. § 17.*]</p> <p>4. Monopolies (§ 17*) — Interstate Commerce-Application op State Laws.</p> <p>A contract giving an exclusive right to sell an article in a specified district and fixing the selling price was not in violation of the antitrust statute of this state, where the articles were to be manufactured and delivered to the party given the exclusive right in another state.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. § 17.*]</p> <p>5. Bills and Notes (§ 354*) — Bona Fide Purchasers — Extent op Recovery.</p> <p>A purchaser of a negotiable security before maturity, who is not personally chargeable with fraud, is entitled to recover its full amount against the maker, though he may have paid less than its par value whatever the original infirmity in the security.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 904, 905; Dec. Dig. § 354.*]</p> <p>6. Bills and Notes (§ 534*) — Actions—Burden op Proop — Attorneys’ Fees.</p> <p>In an action on a note stipulating for attorneys’ fees, where there was no proof that the stipulated fees were unreasonable or unconscionable, the court was authorized to act on the stipulation and enter judgment for the stipulated amount.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1916, 1947; Dec. Dig. § 534.*]</p> <p>On Motion for Rehearing.</p> <p>7. Trial (§ 396*) — Parol Evidence — Effect op Admission Without Objection — Findings.</p> <p>Oral statements of a party prior to the execution of a written contract were merged therein, and, ■ though received in evidence without objection, could not form the basis of a finding or judgment.</p> <p>[Ed. Note.- — For other cases, see Trial, Cent. Dig. §§ 935-938; Dee. Dig. § 396.*]</p> <p>8. Trial (§ 26*) — Adjournments—Discretion.</p> <p>In an action on a note by an indorsee, where it appeared that at the time of its purchase the makers did not know of the fraud practiced by the payee and that had the indorsee made inquiry it would therefore not have, learned of the fraud, the court did not abuse its discretion in refusing to suspend or delay the case to enable a witness to produce the indorsee’s books for the purpose of showing the exact amount of the discount; the witness testifying that he could not tell the exact amount without the books.</p> <p>'[Ed. Note. — For other cases, see Trial, Cent. Dig. § 42; Dee. Dig. §§ 26.*]</p> <p>9. Courts (§ 247*) — Certifying Questions to Supreme Court.</p> <p>The Court of Civil Appeals will not certify to the Supreme Court a question which in its opinion has been previously decided by that court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. § 247.*]</p> | Appeal from Hale County Court; W. B. Lewis, Judge.
Action by the Citizens' National Bank against C. E. Lock and another. Judgment for plaintiff, and defendants appeal. Affirmed. | null | null | Affirmed. | null | 4,041,052 | null | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
1,625,944 | 25 So. 3d 506 (2008) RICKEY JOSEPH SMITH v. MASUMI SMITH. No. 2060833. Court of Civil Appeals of Alabama. January 11, 2008. Decision Without Published Opinion Reh. denied. | opinion_html_with_citations | 28 | 2013-10-30 06:58:03.077561+00 | 010combined | f | f | 1,625,944 | null | null | L | f | Published | 0 | Smith v. Smith | null | null | null | null | null | null | null | null | null | null | null | 1,193,107 | 2060833 | 0 | alacivapp | SA | t | Court of Civil Appeals of Alabama | Court of Civil Appeals of Alabama |
6,090,211 | Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Superintendent of Cayuga Correctional Facility which found petitioner guilty of violating a prison disciplinary rule. Petitioner was found guilty of violating the prison disciplinary rule prohibiting the unauthorized use of a controlled substance after his urine twice tested positive for the presence of cannabinoids. Substantial evidence of petitioner’s guilt was presented in the form of the misbehavior report, the positive test results with supporting documentation, and the testimony given by the correction officer who conducted the laboratory *780testing (see Matter of Ellison v Goord, 274 AD2d 800, 801; Matter of Smart v Goord, 266 AD2d 606, 607). Contrary to petitioner’s assertions, the record establishes both an unbroken chain of custody for his urine sample and full compliance with urinalysis testing procedures, including those relating to the refrigeration of specimens (see 7 NYCRR 1020.4; see also Matter of Peterson v Goord, 268 AD2d 739). The remaining contentions raised herein have been reviewed and found to be without merit. Cardona, P.J., Crew III, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed. | opinion_xml_harvard | 204 | 2022-01-13 19:47:06.917944+00 | 020lead | t | f | 6,223,515 | null | null | U | f | Published | 0 | Tingue v. Mccoy | Tingue | In the Matter of Daniel Tingue v. Joseph McCoy, as Superintendent of Cayuga Correctional Facility | null | null | null | null | null | null | null | null | null | 62,584,775 | 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 |
395,495 | 661 F.2d 912 U. S. v. Stillman 80-6153, 80-6181 UNITED STATES COURT OF APPEALS Second Circuit 6/4/81 1 E.D.N.Y. REVERSED AND REMANDED | opinion_html_with_citations | 22 | 2011-08-23 09:19:04+00 | 010combined | f | f | 395,495 | null | null | R | f | Published | 0 | United States v. Stillman | Stillman | null | null | null | null | null | null | null | null | null | null | 767,470 | 80-6153 | 0 | ca2 | F | t | Second Circuit | Court of Appeals for the Second Circuit |
3,324,422 | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The above cited case involves a petition for Writ of Habeas Corpus in which the petitioner claims that he was denied statutory good time credit for a sentence resulting from a conviction of a crime committed after October 1, 1994. After a review of the petition the court, sua sponte, and pursuant to § 23-29 (2) of the Practice Book, scheduled a hearing to determine whether the petition should be dismissed on the ground that CT Page 13878 the relief sought is unavailable pursuant to § 18-100d of the General Statutes and Velez v. Commissioner of Correction , 250 Conn. 536 (1999). The petitioner and his court appointed counsel, Assistant Public Defender Todd Edgington, were given notice of the hearing and the proposed dismissal of the petition pursuant to the decision of Velez v. Commissioner , 250 Conn. 536 (1999). Counsel for the petitioner did not appear for this hearing but did appear for other hearings involving the same issue and did not object to the dismissal of the petitions in those cases. After reviewing the petition, the court found that the petitioner was serving a sentence for a crime committed subsequent to October 1, 1994 and that he was not legally entitled to the statutory good time credit which he sought. Accordingly, the court dismissed the petition. The Office of the Chief Public Defender has now filed a petition for certification claiming that Velez v. Commissioner , 250 Conn. 536 (1999) is wrongly decided and should be reconsidered by the Supreme Court. The petitioner has not cited, nor can the court find, any issue of fact or law contained within the judgement of the court which warrants appellate review. After reviewing the unambiguous language of § 18-100d , and the unanimous decision of the Supreme Court in its consideration of this issue, this court is unable to certify that any question involved in the decision dismissing the petition is debatable among jurists of reason. The petitioner has not satisfied the statutory criteria for an appeal pursuant to General Statute § 52-470 (b). Accordingly, the petition for certification is denied. Terence A. Sullivan, J. Superior Court Judge | opinion_html_with_citations | 372 | 2016-07-05 17:41:56.053018+00 | 020lead | f | f | 3,328,925 | SULLIVAN, JUDGE. | null | Z | t | Unpublished | 0 | Cormier v. Warden, No. Cv 99 2854 S (Nov. 15, 2000) | Cormier | J. Cormier v. Warden, State Prison. | null | null | null | null | null | null | null | null | null | 3,201,046 | No. CV 99 2854 S | 0 | connsuperct | SA | t | Connecticut Superior Court | Connecticut Superior Court |
1,480,080 | 232 Pa. Super. 336 (1974) Commonwealth v. Eisenhauer, Appellant. Superior Court of Pennsylvania. Submitted September 9, 1974. December 11, 1974. *337 Before WATKINS, P. J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN DER VOORT, and SPAETH, JJ. A. Anthony Kilkuskie, Assistant Public Defender, for appellant. Grant E. Wesner, Deputy District Attorney, and Robert L. VanHoove, District Attorney, for Commonwealth, appellee. OPINION BY VAN DER VOORT, J., December 11, 1974: Appeal is taken to this Court from an order of the lower court denying appellant's petition for vacation of sentence, the petition having been made pursuant to the "Post Conviction Hearing Act," Act of 1966, January 25, P.L. (1965) 1580, 19 P.S. § 1180-1 et seq. For purposes of that petition, as well as in this appeal, appellant argues deprivation of his rights under the Interstate Compact Concerning Detainers, Act of September 8, 1959, P.L. 829, No. 324, § 1, 19 P.S. §§ 1431-1438. On and before May 7, 1970, appellant was incarcerated at the Berks County prison. On that day he escaped. In due course the Grand Jury charged him with prison breach. On February 23, 1971, appellant was arrested and incarcerated in the State of Maryland on charges stemming from offenses within that jurisdiction. The District Attorney of Berks County, on June 25, 1971, wrote a letter to appellant apprising him of *338 the prison breach charge and telling him of his right to demand a trial within 180 days pursuant to the Interstate Compact Concerning Detainers, supra. Appellant wrote a reply on July 2, 1971, to the Berks County District Attorney, but failed to inform the authorities in Maryland of his demand as is required by the Act. Trial was set in Berks County for December 7, 1971; however, the Governor of Maryland denied his extradition. Pursuant to further requests of Berks County in 1972, appellant was finally removed to Pennsylvania for arraignment on March 22, 1972, at which time he pleaded nolo contendere and was sentenced. On March 2, 1973, appellant was allowed to withdraw this plea and was tried by jury on March 29, 1973. The jury verdict was guilty and sentence of 2½ to 7 years was imposed. Appellant filed his "PCHA" petition on July 25, 1973, and hearing was held October 31, 1973, when the petition was denied. Appellant now argues that his statutory right to trial on the Berks County indictment within 180 days of his request for same was denied him because trial was not held within such period of time. We disagree. It is the stated purpose of the Interstate Compact, supra, Section 1, Article I, "to encourage the expeditious and orderly disposition of such charges [as are outstanding against a prisoner incarcerated in other jurisdictions which are parties to the Act] and determination of the proper status of any and all detainers based on untried indictments, informations or complaints." If trial is not held within the statutory period, the indictment shall be dismissed with prejudice. It is further a provision of the Act, at Article III (b), that the prisoner shall notify the authorities of the jurisdiction having custody of him that he wishes disposition of the charges pending against him in the sister jurisdiction. This allows the custodial jurisdiction due notice of the request and opportunity properly *339 to certify the matter to the sister state. With this provision appellant did not comply, and he did not amend his request later even though advised of his right to counsel by the June 25, 1971, letter of the Berks County District Attorney. The reason why the appellant could not be tried within the 180 days was because of either his failure to comply with the Interstate Compact Concerning Detainers Act or to request the assistance of counsel or the refusal of the Maryland authorities to grant extradition of the appellant to Pennsylvania or a combination of any two or more of these factors. Any one or more of these conditions is sufficient to toll the running of the 180 day period. Had the attorney for the Commonwealth been dilatory in attempting to bring the appellant back to Pennsylvania a different situation would exist; however, the District Attorney was diligent in his efforts to bring the appellant back to Berks County for the trial listed on December 7, 1971. He instituted extradition proceedings on November 12, 1971, and it was his letter of January 7, 1972, to the Maryland Correctional Institution which brought about the return of appellant to Pennsylvania in March of that year. Order affirmed. HOFFMAN, J., concurs in the result. | opinion_html_with_citations | 760 | 2013-10-30 06:25:50.299561+00 | 010combined | f | f | 1,480,080 | Cercone, Hoffman, Jacobs, Price, Spaeth, Van, Voort, Watkins | null | LU | f | Published | 0 | Commonwealth v. Eisenhauer | Commonwealth | Commonwealth, v. Eisenhauer, Appellant | null | null | <parties id="b372-6">
Commonwealth,
<em>
v.
</em>
Eisenhauer, Appellant.
</parties><br><otherdate id="b373-2">
<span citation-index="1" class="star-pagination" label="337">
*337
</span>
Submitted September 9, 1974.
</otherdate><judges id="A2o">
Before Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.
</judges><br><attorneys id="b373-6">
<em>
A. Anthony Killmshie,
</em>
Assistant Public Defender, for appellant.
</attorneys><br><attorneys id="b373-7">
<em>
Grant E. Werner,
</em>
Deputy District Attorney, and
<em>
Robert L. VanHoove,
</em>
District Attorney, for Commonwealth, appellee.
</attorneys><decisiondate id="AUx">
December 11, 1974:
</decisiondate> | null | null | null | null | null | null | 1,623,326 | Appeal, 303 | 0 | pasuperct | SA | t | Superior Court of Pennsylvania | Superior Court of Pennsylvania |
2,838,585 | Opinion issued March 31, 2005 In The Court of Appeals For The First District of Texas NO. 01-04-00824-CV MARCOS MONTOYA ET UX, PAULA MONTOYA, INDIVIDUALLY AND AS NEXT FRIENDS OF MARCOS MONTOYA, JR., Appellants V. HOUSTON INDEPENDENT SCHOOL DISTRICT AND VERONICA DAMPHA, Appellee s On Appeal from the 333rd District Court Harris County, Texas Trial Court Cause No. 2004-24564 O P I N I O N In this accelerated, interlocutory appeal, appellants, Marcos Montoya et ux, Paula Montoya, Individually and as Next Friends of Marcos Montoya, Jr. (the “Montoyas”), challenge the trial court’s order granting a plea to the jurisdiction in favor of appellee, Houston Independent School District (HISD), on the Montoyas’ claims against HISD for injuries sustained by Marcos Montoya, Jr. (“Marcos”) when he fell from the emergency exit of an HISD school bus. In four issues, the Montoyas contend that the trial court erred in granting HISD’s plea to the jurisdiction on the grounds of governmental immunity from suit because the Texas Tort Claims Act waives such immunity from suit for personal injuries arising “from the operation or use of a motor-driven vehicle.” We affirm the trial court’s order. Factual and Procedural Background As stated in the Montoyas’ first amended petition, on May 15, 2002, Marcos sustained personal injuries when he fell from the emergency exit of a moving school bus owned by HISD and driven by an HISD employee. At the time of the incident, Marcos was eight years old and enrolled in special education in HISD. He had previously been diagnosed with mental retardation and other mental handicaps. Prior to the incident, Marcos had a history of aggressive behavior on the school bus, including a history of leaving his seat on the bus, running around on the bus, and attempting to exit the bus using the emergency exit. On April 4, 2002, HISD equipped Marcos’s school bus seat with a special child-proof harness to restrain him. However, the harness did not effectively restrain Marcos, and, on May 5, 2002, Marcos was able to free himself from the harness. On May 14, 2002, the day before the incident, Marcos freed himself from the harness and opened the rear emergency exit door of the bus, but did not fall out of the bus. The next day, on May 15, 2002, Marcos again freed himself from the harness and, while the bus was in motion, opened and fell through the emergency exit, sustaining the personal injuries giving rise to this lawsuit. The Montoyas sued HISD and the HISD bus driver (collectively “HISD”), alleging that HISD was negligent in the operation or use of Marcos’s school bus. In their first amended petition, the Montoyas alleged that HISD was negligent in the following ways: a. failing to properly use the child-proof harness restraining Marcos; b. failing to maintain a reasonable lookout, and notice that Marcos had disengaged the harness; c. failing to stop the bus before Marcos reached the emergency exit, opened it, and fell through it; d. failing to equip the bus with an adequate restraining device; and e. failing to instruct the bus driver in the proper use of the harness. HISD filed an answer pleading as a defense “all the exemptions and exceptions from, and limitations on, liability provided in the Texas Tort Claims Act.” Contemporaneously with filing its answer, HISD filed a motion to dismiss and plea to jurisdiction, asserting that HISD was entitled to governmental immunity and that the trial court lacked jurisdiction to hear the Montoyas’ claim. HISD further asserted that Marcos’s injuries did not arise from the operation or use of a motor-driven vehicle, and thus the Montoyas’ allegations did not trigger a waiver of HISD’s immunity under the Texas Tort Claims Act. The Montoyas filed a response to HISD’s plea to jurisdiction, arguing that their allegations arose from the operation or use of a motor-driven vehicle and thus HISD’s immunity was waived. After HISD filed a reply to the Montoyas’ response, the trial court conducted a hearing on HISD’s plea to the jurisdiction, and entered an order granting HISD’s plea. Standard of Review Governmental immunity from suit defeats a trial court’s subject matter jurisdiction. Tex. Dept. of Parks and Wildlife v. Miranda , 133 S.W.3d 217 , 225 (Tex. 2004); Dallas Area Rapid Transit v. Whitley , 104 S.W.3d 540 , 542 (Tex. 2003). Whether a party has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction is a question of law reviewed de novo. Miranda , 133 S.W.3d at 226. “In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity.” Whitley , 104 S.W.3d at 542. In reviewing the pleadings to determine whether a party has alleged facts that affirmatively demonstrate the court’s jurisdiction and a valid waiver of immunity, the reviewing court must construe the pleadings liberally in favor of the pleading party and must also look to the intent of the pleading party. Miranda , 133 S.W.3d at 226. Waiver of Governmental Immunity In issues one through four, the Montoyas argue that the trial court erred in granting HISD’s plea to the jurisdiction because their allegations that HISD was negligent in failing to timely stop the bus, maintain a reasonable lookout, and properly use a child-proof harness state a claim for personal injuries arising from HISD’s operation or use of the bus, and the Texas Tort Claims Act specifically waives governmental immunity from suit for such claims. Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1) (Vernon 1997) . HISD, a governmental unit, is immune from liability for Marcos’s injuries unless that immunity has been waived by the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001, 101.021, 101.025, 101.051 (Vernon 1997 & Supp. 2004-2005); Whitley , 104 S.W.3d at 542; LeLeaux v. Hamshire-Fannett Sch. Dist. , 835 S.W.2d 49 , 51 (Tex. 1992). The Texas Tort Claims Act provides, in relevant part: A governmental unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law. Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1) (Emphasis added). The waiver of immunity set forth in section 101.021(1) has been construed by Texas courts to be a limited waiver. LeLeaux , 835 S.W.2d at 51. Thus, pursuant to this limited waiver, a school district is liable for a personal injury proximately caused by a negligent employee only if the injury arises from the operation or use of a motor-driven vehicle or motor-driven equipment. Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A) . While the terms “use” and “operation” are not defined in the Act, the supreme court has defined “use” as “to put or bring into action or service; to employ for or apply to a given purpose” and has defined operation as “a doing or performing of a practical work.” Whitley , 104 S.W.3d at 542 ; LeLeaux , 835 S.W.2d at 51 . The supreme court has also explained that the “arises from” language in section 101.021(1)(A) requires “ a nexus between the injury negligently caused by a governmental employee and the operation or use of the motor-driven vehicle or piece of equipment.” LeLeaux , 835 S.W.2d at 51; see also Whitley , 104 S.W.3d at 543 ; Hopkins v. Spring Indep. Sch. Dist. , 736 S.W.2d 617 , 619 (Tex. 1987) . “This nexus requires more than mere involvement of property.” Whitley, 104 S.W.3d at 543. Rather, the use of the vehicle “must have actually caused the injury.” Id . The operation or use of a motor-driven vehicle “does not cause injury if it does no more than furnish the condition that makes the injury possible.” Id. (citing Dallas County Mental Health and Mental Retardation v. Bossley , 968 S.W.2d 339 , 343 (Tex. 1998 ). Additionally, while the statute does not expressly state whose operation or use of the vehicle or equipment is necessary, the supreme court has noted that “the more plausible reading is that the required operation or use is that of the [governmental] employee.” LeLeaux , 835 S.W.2d at 51. The Montoyas make three specific allegations as to how Marcos’s injuries arose from HISD’s negligent operation or use of the school bus . First, the Montoyas allege that the HISD bus driver was negligent in failing to timely stop the bus before Marcos opened the rear emergency door and fell from the moving bus. Second, the Montoyas allege that the HISD bus driver was negligent in failing to maintain a reasonable lookout while driving the bus. Third, the Montoyas allege that the HISD bus driver was negligent in failing to properly use a child-proof harness and restrain Marcos. In reviewing the order of the trial court granting HISD’s plea to jurisdiction, we must take these allegations as true. LeLeaux , 835 S.W.2d at 52. However, even assuming the truth of these allegations, the Montoyas have still failed to demonstrate that Marcos’s injuries actually arose from the bus driver’s operation or use of the bus. LeLeaux , 835 S.W.2d at 51. As to the Montoyas’ first allegation, we cannot agree with the Montoyas’ assertion that the bus driver’s negligent failure to timely stop the school bus “is the very quintessence of an allegation which arises from the use or operation of a motor vehicle.” While it is generally true that a driver’s negligent failure to timely stop a vehicle to avoid a collision would relate to the operation of that vehicle, here the Montoyas’ allegation concerns the bus driver’s failure to stop the bus to prevent Marcos from opening the rear door and falling out of the bus. This allegation actually relates to the bus driver’s duty to supervise and respond to Marcos’s behavior on the bus, not the driver’s operation or use of the bus itself. Furthermore, the Montoyas’ argument, that Marcos’s injuries would not have occurred if the bus had stopped prior to Marcos’s exiting the emergency door, does not demonstrate that Marcos’s injuries arose from the operation of the bus . For example, Marcos’s injuries would not have occurred if he had not boarded the bus altogether. But an allegation to this effect would not be sufficient to demonstrate that Marcos’s injuries arose from the operation of the bus. In order to establish the required nexus, the Montoyas must allege that the bus driver’s operation of the bus actually caused Marcos’s injuries. See Estate of Garza v. McAllen Indep. Sch. Dist. , 613 S.W.2d 526 , 528 (Tex. Civ. App.—Beaumont 1981, writ ref’d n.r.e.). Here, the Montoyas’ allegation concerning the driver’s failure to stop the bus, even when construed liberally, is not sufficient to establish a waiver of HISD’s immunity. The Montoyas’ second allegation, that the bus driver negligently failed to maintain a reasonable lookout, also relates to the bus driver’s duty to supervise the bus passengers and does not concern the actual operation or use of the bus . Goston v. Hutchison , 853 S.W.2d 729 , 733 (Tex. App.—Houston [1st Dist.] 1993, no writ). In Goston , we concurred with the distinction made by the court in Estate of Garza that “when the allegations of negligence are related to the direction, control and supervision of the students, the suit is barred [and] when the allegations of negligence are related to the negligent use of the motor vehicle itself, the suit is not barred.” Id. at 733 (citing Estate of Garza , 613 S.W.2d at 528). We conclude that the Montoyas’ allegation concerning the driver’s failure to maintain a reasonable lookout falls squarely into the category of cases related to the direction, control, and supervision of students. Moreover, the Montoyas’ allegation regarding the bus driver’s failure to keep a reasonable lookout fails to demonstrate the required nexus between the driver’s negligent act and the injuries sustained by Marcos. Whitley , 104 S.W.3d at 543; Hopkins , 736 S.W.2d at 619. Similarly, the Montoyas’ third allegation, that the bus driver negligently failed to use the harness properly, does not relate to the driver’s operation or use of the bus. However, even assuming that the driver’s negligent use of the harness constituted an operation or use of the bus, the negligent use was not the actual cause of Marcos’s injuries. The actual cause of Marcos’s injuries was Marcos’s affirmative act of opening and exiting the rear emergency door of the bus. At most, the driver’s negligent use furnished the condition which enabled Marcos to exit the bus and injure himself. See Whitley , 104 S.W.3d at 543. Because this allegation does not demonstrate the critical nexus between the driver’s negligent use of the harness and Marcos’s fall from the bus, it is insufficient to support a waiver of HISD’s immunity. In the trial court proceedings and in their appellate briefing the Montoyas rely heavily on Austin Ind. Sch. Dist. v. Gutierrez , 54 S.W.3d 860 (Tex. App.—Austin 2001, pet. denied), and Hitchcock v. Garvin , 738 S.W.2d 34 (Tex. App.—Dallas 1987, no writ), both of which are distinguishable from the facts at hand. In Gutierrez , a school bus driver discharged a student from the bus and then honked the horn of the bus to indicate to the student that she could safely cross the road. Gutierrez , 54 S.W.3d at 861. After the bus driver’s signal, the student attempted to cross the street and was struck and killed by a passing vehicle. Id. The court denied the school district’s plea to the jurisdiction because the bus driver’s “affirmative action of honking the horn,” which may have contributed to the accident, constituted a use of the bus. Id. at 866. Similarly, in Hitchcock , a school bus driver failed to activate the bus flashers or warning signals prior to unloading a child. Hitchcock , 738 S.W.2d at 36. Immediately after exiting the bus, the child attempted to cross the street but was struck by another car. Id. at 37. The court held that the driver’s failure to activate the flashers or warning signals of the school bus when the child was exiting constituted “an act or omission arising from the operation or use of a motor vehicle.” Id. Here, however, the Montoyas’ allegations do not demonstrate that Marcos’s injuries actually resulted from the bus driver’s operation or use of the bus. Rather, the allegations demonstrate that Marcos’s injuries were caused by Marcos’s affirmative actions of opening the school bus emergency door and exiting the bus while it was in motion. Furthermore, even if the bus driver’s failure to adequately supervise the students on the bus contributed to the accident, her actual operation and use of the bus did not cause the injuries. See Goston , 853 S.W.2d at 733. The Montoyas’ allegations are more comparable to the allegations made in Hopkins , 736 S.W.2d at 618 and Estate of Garza , 613 S.W.2d at 527. In Hopkins , a student with cerebral palsy suffered severe convulsions while riding on her school bus to her after-school day care center. Hopkins , 736 S.W.2d at 618. The bus driver contacted his supervisor and requested that a school nurse meet the bus. Id. Instead of providing the nurse, the supervisor instructed the driver to proceed with the student to the day care center, where she finally received medical care. Id . The student’s family brought suit against the school district, alleging that the district’s failure to provide adequate medical care caused the student’s personal injuries. Id . The court refused to find a waiver of the school district’s immunity, noting that the student’s injuries “could not have arisen from the use or operation of a motor vehicle as contemplated by the statute.” Id. (emphasis added). In Garza , a non-student passenger boarded a school bus and stabbed a student who was riding the bus to school. Garza , 613 S.W.2d at 527. The plaintiffs alleged that the school district “failed to provide safe transportation for and effective control of the students riding on the school bus.” Id. The Garza court held that “the injury arose out of the failure to control and supervise the public, and not from the operation or use of a motor vehicle. . . . [A] knife and not the use of the bus was the cause of plaintiff’s damage.” Id. at 528; see also Martinez v. VIA Metrop. Transit Auth. , 38 S.W.3d 173 , 176 (Tex. App.—San Antonio 2000, no pet.) (concluding that transit authority did not waive immunity to claims brought by metro van passenger after metro van driver failed to transport passenger timely and properly to nearest medical facility when he became sick and passed out) . As in Hopkins and Garza , here, the Montoyas’ pleadings demonstrate that the bus driver’s failure to supervise or control Marcos may have contributed to Marcos’s injuries. However, the pleadings do not demonstrate that the bus driver’s operation or use of the bus actually caused Marcos’s injuries. Instead of demonstrating the required nexus between Marcos’s injuries and the driver’s operation or use of the bus, the Montoyas’ pleadings establish only that Marcos’s injuries were the result of Marcos’s affirmative actions and possibly the bus driver’s failure to supervise, control, or direct Marcos . Because the Montoyas’ allegations demonstrate that the HISD school bus merely provided the setting for Marcos’s injuries and that the bus driver’s operation or use of the bus did not proximately cause Marcos’s injuries, we hold that the Montoyas’ claims do not fall within the waiver of immunity set forth in section 101.021(1). Hopkins , 736 S.W.2d at 619. Accordingly, we further hold that the trial court did not err in granting HISD’s plea to the jurisdiction. We overrule issues one through four. Conclusion We affirm the order of the trial court granting HISD’s plea to the jurisdiction. Terry Jennings Justice Panel consists of Justices Nuchia, Jennings and Alcala. Justice Alcala dissenting. | opinion_html_with_citations | 3,033 | 2015-09-02 22:52:02.169983+00 | 010combined | f | f | 2,838,585 | null | null | C | f | Published | 0 | Marcos Montoya, Et Ux, Paula Montoya, Ind., and as Next Friends of Marcos Montoya, Jr. v. H.I.S.D. and Veronica Dampha | null | null | null | null | null | null | null | null | null | null | null | 2,695,574 | 01-04-00824-CV | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
7,606,320 | DENIED. | opinion_xml_harvard | 1 | 2022-07-29 07:52:20.678037+00 | 020lead | t | f | 7,671,592 | null | null | U | f | Published | 0 | Thomas v. State | Thomas | Willie Vincent Timothy THOMAS v. STATE of Florida | null | null | null | null | null | null | null | null | null | 64,672,673 | CASE NO. 1D16–4893 | 0 | fladistctapp | SA | t | District Court of Appeal of Florida | District Court of Appeal of Florida |
14,885 | REVISED - JUNE 22, 1998 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 97-50444 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ELWOOD CLUCK, also known as Jack Cluck, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas June 3, 1998 Before WISDOM, JOLLY, and HIGGINBOTHAM, Circuit Judges. E. GRADY JOLLY, Circuit Judge: Elwood “Jack” Cluck appeals his conviction and sentence for committing bankruptcy fraud in violation of 18 U.S.C. § 152(1) & (3). Finding no merit in any of Cluck’s multitudinous and niggling points of error, we affirm. I A Before the events in this case, Cluck was an attorney who specialized, by his own admission, in the legal avoidance of income, estate, and gift taxes.1 His practice was, by all accounts, quite successful, allowing Cluck to enjoy many of the finer things in life. In his case, the finer things ranged from an assortment of properties located throughout the state of Texas, to his own Beechcraft Bonanza airplane, to a collection of classic Jaguar automobiles. Smooth travel sometimes comes to an abrupt halt, however, and so it was in the case of Cluck. In October 1989, the road ahead worsened considerably when a state court rendered judgment against him in the staggering amount of $2.9 million.2 Although Cluck had high hopes that an appellate detour would shortly return him to his golden highway,3 he soon found that the detour itself would require 1 An undoubtedly satisfying profession that we do not disparage. See Estate of McLendon v. Commissioner of Internal Revenue, 135 F.3d 1017 , 1025 n.16 (5th Cir. 1998). 2 The suit was based on alleged fraudulent conduct by Cluck in his handling of the estate of Booney M. Moore, one of his tax planning clients. It was brought pursuant to Texas’s Deceptive Trade Practices Act, whose punitive damage provisions gave rise to the large award. For further background, see generally Coble Wall Trust Co. v. Palmer, 848 S.W.2d 696 (Tex. App.-San Antonio 1991, writ granted), rev’d and remanded, 851 S.W.2d 178 (Tex. 1992), on remand, 859 S.W.2d 475 (Tex. App.-San Antonio 1993, writ denied). 3 As well he should have. The judgment entered on the jury’s verdict was reversed on appeal for lack of subject matter jurisdiction in the trial court. See Coble Wall Trust Co. v. Palmer, 848 S.W.2d 696 (Tex. App.-San Antonio 1991, writ granted). Although that decision was itself reversed by the Texas Supreme Court, see Palmer v. Coble Wall Trust Co., 851 S.W.2d 178 (Tex. 1992), on remand the appellate court found a further reason to reverse the verdict that was apparently less offensive. See Coble 2 a steep toll of 10 percent in the form of the supersedeas bond necessary to forestall execution. Short of funds and in need of a cul de sac in which to safely park his troubled vehicle for a while, Cluck turned to the refuge of the bankruptcy court, as many a similarly threatened sojourner had done before him. Unlike these other voyagers, however, Cluck apparently concluded that his resources would need more protection than the bankruptcy court could provide until his appellate travels had reached their final destination. Thus, before invoking the power of Title 11, he perceived that it might be useful to keep some Jaguars in reserve, some money within easy access, and, maybe, just for good measure, a few of his favorite things beyond the reach of his creditors and the bankruptcy court. To this end, on March 26, 1990, Cluck returned a note for $50,000 to its grantor, Perfect Union Lodge. Perfect Union was one of Cluck’s clients, and the note had been originally tendered in payment of certain legal services. Three days later, on March 29, Cluck pawned three Jaguars, a 1983 Chevrolet truck, his airplane, a Lone Star boat, and a Winnebago camper shell (“the Jaguars, etc.”) to a used car Wall Trust Co. v. Palmer, 859 S.W.2d 475 (Tex. App.-San Antonio 1993, writ denied) (acknowledging subject matter jurisdiction, but finding suit nonetheless barred by res judicata and for other reasons). 3 dealer for $32,000,4 retaining for himself and his designee a right to reacquire at a set price5 within thirty to ninety days of the sale. B His affairs now in preliminary order, on March 30, Cluck filed his petition for Chapter 7 liquidation in the United States Bankruptcy Court for the Western District of Texas. As part of the standard Chapter 7 procedure, Cluck was required to file a Schedule of Assets and a Statement of Financial Affairs. These documents required, among other things, disclosure of all accounts receivable, rights of acquisition, and asset transfers during the prior year. On his forms, Cluck made no mention of the assets recently pawned to the used car dealer or of his right to reacquire. He also did not disclose his return of the $50,000 note or the corresponding account receivable from Perfect Union Lodge. In addition, Cluck failed to list a transfer of 351 acres of land in McMullen County, Texas, that he had made on June 21, 1989. Finally, and significantly for this appeal, Cluck also neglected to include a further $150,000 in pre-petition accounts receivable from another of his clients, the O.D. Dooley Estate. 4 A price that was, needless to say, significantly below the assets’ fair market value. 5 About $38,000. 4 On July 31, Cluck’s bankruptcy came to its first purported close, and the bankruptcy court entered an order discharging him from all dischargeable debts. Thinking his plan to have succeeded, on November 9, Cluck collected $48,000 from the O.D. Dooley Estate in partial payment of that client’s aforementioned pre-petition account receivable. On November 16, the remaining $102,000 followed. About seven months later, on June 28, 1991, Cluck collected $35,000 from Perfect Union in settlement of its still- outstanding $50,000 account receivable. Of these funds, a portion was deposited into the account of First Capitol Mortgage, a Nevada corporation owned by Cluck’s wife, Kristine. By this time, First Capitol had also reacquired all of the assets that had been pawned to the used car dealer. As might be suspected, neither the receipt of the money nor the reacquisition of the assets was revealed to the bankruptcy trustee. As the dog days of summer 1991 wore on, the bankruptcy trustee finally got scent of Cluck’s machinations. After gathering his evidence, on October 9, the trustee initiated an adversary proceeding against Cluck, his wife, First Capitol Mortgage, and the used car dealer, all pursuant to 11 U.S.C. § 548, alleging fraudulent concealment of assets and requesting that Cluck’s discharge be revoked. After a one-day trial, the bankruptcy court agreed, finding that Cluck had engaged in the pattern of fraudulent 5 concealment and deception outlined above, and that First Capitol Mortgage was his alter ego. The court revoked Cluck’s discharge, and, on December 31, 1992, ordered him: (1) to turn over to the trustee the assets that had been pawned to the used car dealer; (2) to pay $195,0006 to the trustee for the concealed accounts receivable; and (3) to pay an additional $13,000 to the trustee for a fourth Jaguar automobile that had been otherwise concealed and could no longer be located. II The bankruptcy court’s finding of intentional concealment apparently aroused the interest of the U.S. Attorney, and on March 27, 1995, Cluck was charged with eight counts of bankruptcy fraud in violation of 18 U.S.C. § 152(1) & (3). The counts were essentially as follows: Count One: Making a false statement in violation of § 152(3) for failing to include the Perfect Union and O.D. Dooley accounts receivable on his Statement of Financial Affairs. Count Two: Fraudulent concealment in violation of § 152(1) for failing to reveal the return of the $50,000 Perfect Union note, the sale of 351 acres of land in McMullen County, Texas, and the pawning of the Jaguars, etc., all of which were 6 It is unclear from the record before us why this sum was $195,000, and not $185,000, as the simple addition of the O.D. Dooley and Perfect Union (settlement) figures would suggest. 6 transfers that occurred within one year of his bankruptcy petition. Count Three: Fraudulent concealment in violation of § 152(1) for failing to reveal his post- petition receipt of the $35,000 payment from Perfect Union Lodge on a pre- petition account receivable. Count Four: Making a false statement in violation of § 152(3) for failing to include the return of the $50,000 Perfect Union note, the sale of 351 acres of land in McMullen County, Texas, and the pawning of the Jaguars, etc., on his Statement of Financial Affairs. Count Five: Fraudulent concealment in violation of § 152(1) for failing to reveal his post- petition receipt of the $102,000 payment from the O.D. Dooley Estate on a pre-petition account receivable. Count Six: Fraudulent concealment in violation of § 152(1) for failing to reveal his post- petition receipt of the $48,000 payment from the O.D. Dooley Estate on a pre- petition account receivable. Count Seven: Fraudulent concealment in violation of § 152(1) for failing to reveal his right to reacquire the Jaguars, etc. Count Eight: Making a false statement in violation of § 152(3) for failing to include his right to reacquire the Jaguars, etc. on his Statement of Financial Affairs. On January 16, 1997, a jury found Cluck guilty on counts one, three, four, five, six, seven, and eight, and not guilty on count two. On May 22, 1997, Cluck was sentenced to concurrent terms of twenty-four months imprisonment on each count, and ordered to pay 7 restitution in the amount of $185,000. Cluck appeals his conviction, sentence, and restitution order on multiple grounds. III Cluck makes four distinct arguments on appeal, none of which has merit. A First, Cluck argues that his original indictment was insufficient for purposes of the Sixth Amendment in that it did not specifically allege that the property concealed was property of the bankruptcy estate, or that the concealment and false statements arose in connection with a case under Title 11, both of which he contends are essential elements of § 152(1) and/or (3). We review the sufficiency of an indictment de novo. United States v. Asibor, 109 F.3d 1023 , 1037 (5th Cir. 1997). “To be sufficient, an indictment needs only to allege each essential element of the offense charged so as to enable the accused to prepare his defense and to allow the accused to invoke the double jeopardy clause in any subsequent proceeding.” United States v. Webb, 747 F.2d 278 , 284 (5th Cir. 1984). The test of the validity of an indictment is “not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards.” Id. Under this liberal review, we look to a practical, non-technical reading of the indictment as 8 a whole, and an indictment will be held sufficient unless “no reasonable construction of the indictment would charge the offense for which the defendant has been convicted.” McKay v. Collins, 12 F.3d 66 , 69 (5th Cir. 1994). With respect to Cluck’s first complaint, we note that § 152(1) only requires that the property concealed “belong[] to the estate of the debtor,” not to the “bankruptcy estate.” Cf. United States v. Arge, 418 F.2d 721 , 724 (10th Cir. 1969) (referencing “bankruptcy estate” under a prior version of the statute). Unsurprisingly, our review of the indictment’s language indicates that it was more than sufficient to put Cluck on notice that he was being charged with concealing his own property. There is therefore no merit to his argument on this point. With respect to Cluck’s second complaint, it is true that the relevant portions of § 152(1) & (3) require that the concealment or false statement be made “in connection with a case under title 11,” or “in or in relation to a[] case under title 11,” respectively. Our review of the indictment reveals, however, that it clearly indicated that all charges arose in connection with Cluck’s specifically named and cited bankruptcy proceeding. Obviously, this reference was more than sufficient to put Cluck on notice that he was being charged with concealment “in connection with a case 9 under title 11,” and making false statements “in or in relation to a[] case under title 11,” so there is no merit here either. B Cluck next contends that he was subjected to a multiplicitous indictment in that he was charged for the same conduct under both § 152(1) & (3) in counts one and two, three and four, and seven and eight, and, second, in that counts five and six both referenced payment on a single account receivable. The first part of Cluck’s argument appears to be a matter of first impression in this circuit. We review issues of multiplicity de novo. United States v. Dupre, 117 F.3d 810 , 818 (5th Cir. 1997). In general, “multiplicity” is the charging of a single offense under more than one count of an indictment. United States v. Nguyen, 28 F.3d 477 , 482 (5th Cir. 1994). “The chief danger raised by a multiplicitous indictment is the possibility that the defendant will receive more than one sentence for a single offense.” United States v. Swaim, 757 F.2d 1530 , 1537 (5th Cir. 1985). Where the question of multiplicity arises because of overlapping statutory provisions, “[t]he test for determining whether the same act or transaction constitutes two offenses or only one is whether conviction under each statutory provision requires proof of an additional fact which the other does not.” Nguyen, 28 F.3d at 482 (citing United States 10 v. Free, 574 F.2d 1221 , 1224 (5th Cir. 1978)); see also Dupre, 117 F.3d at 818 (citing Blockburger v. United States, 284 U.S. 299 , 304 (1932)). Where, on the other hand, the question of multiplicity arises because of a multipart transaction, the question becomes “‘whether separate and distinct prohibited acts, made punishable by law, have been committed.’” United States v. Shaid, 730 F.2d 225 , 231 (5th Cir. 1984) (quoting Bins v. United States, 331 F.2d 390 , 393 (5th Cir. 1964)). In the bankruptcy fraud context, “[m]ultiple violations of § 152 occur, and multiple indictments lie, when each fraudulent transfer is a ‘separate act, taken at a discrete time, with the requisite intent.’” United States v. McClennan, 868 F.2d 210 , 213 (7th Cir. 1989) (quoting United States v. Moss, 562 F.2d 155 , 160 (2d Cir. 1977)). With respect to Cluck’s first complaint, there can be no doubt that charging the same conduct under both § 152(1) & (3) does not render an indictment multiplicitous. By its very terms, § 152(1) requires that property be concealed “from creditors or the United States Trustee” before a violation occurs. Section 152(3) incorporates no such element. Correspondingly, § 152(3) requires that the accused make a “false declaration, certificate, verification or statement under penalty of perjury” before liability attaches, whereas § 152(1) contains no such prerequisite. Because each statutory provision “requires proof of an additional 11 fact which the other does not,” charging the same conduct under both sections does not give rise to a multiplicity problem.7 Cluck’s second complaint is similarly lacking in merit. Counts five and six charged concealment based on Cluck’s pocketing of two payments from the O.D. Dooley Estate. Our review of the record reveals no dispute that two checks, one in the amount of $102,000 and one for $48,000, were received and deposited on two separate occasions separated by some seven days. These separate acts, taken at discrete times, implicated two distinct opportunities for Cluck to formulate and effect his criminal intent. Because counts five and six were predicated on these distinct prohibited acts, they were not duplicitous. C Cluck next attempts to persuade us that the evidence was insufficient on all the counts of his indictment with respect to 7 We note in passing that our decision on the multiplicity of a combined § 152(1) & (3) indictment appears to conflict with that of the only other circuit to have expressly considered the matter. See United States v. Montilla Ambrosiani, 610 F.2d 65 , 69 (1st Cir. 1979). With regard to the larger multiplicity question of charging a single act under more than one of the many subsections of § 152, however, we note relatively mixed authorities tending in both directions. Compare, e.g., United States v. Gordon, 379 F.2d 788 , 790 (2d Cir. 1967), and United States v. Shireson, 116 F.2d 881 , 884 (3d Cir. 1940) (no multiplicity problem), with United States v. McIntosh, 124 F.3d 1330 , 1336-37 (10th Cir. 1997), and Montilla Ambrosiani (tending to find a problem), and with United States v. Christner, 66 F.3d 922 , 926-30 (8th Cir. 1995) (ambivalent). See also United States v. UCO Oil Co., 546 F.2d 833 , 835-38 (9th Cir. 1976) (finding a multiplicity problem in a similar context). 12 intent. Under § 152(1) & (3), the prosecution must show that the concealment or false statement was made “knowingly and fraudulently.” Cluck argues, essentially, that the evidence showed only that he was careless in providing information to his bankruptcy attorney, not that he committed intentional fraud. In assessing sufficiency, we review the evidence in the light most favorable to the jury verdict. United States v. Willey, 57 F.3d 1374 , 1380 (5th Cir. 1995). All credibility determinations and reasonable inferences will be resolved in favor of the verdict, and the evidence will be found sufficient unless it was not such as could lead a rational fact-finder to conclude that the essential elements of the crime had been proved beyond a reasonable doubt. Nguyen, 28 F.3d at 480 . In applying this requirement, “[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.” United States v. Bell, 678 F.2d 547 , 549 (5th Cir. 1982) (en banc), aff'd on other grounds, 462 U.S. 356 (1983). In particular, the court must keep firmly in mind that “what the fact finder ‘is permitted to infer from the evidence in a particular case is governed by a rule of reason.’” United States v. Henry, 849 F.2d 1534 , 1537 (5th Cir. 1988) (quoting United States v. Cruz-Valdez, 773 F.2d 1541 , 1546 (11th Cir. 1985) (en banc)). Fact-finders may 13 properly “‘use their common sense’” and “‘evaluate the facts in light of their common knowledge of the natural tendencies and inclinations of human beings.’” Id. Furthermore, it is well established that “‘[c]ircumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof.’” United States v. Ayala, 887 F.2d 62 , 67 (5th Cir. 1989) (quoting The Slavers (Reindeer), 69 U.S. (2 Wall.) 383, 401 (1865)). In this case, it is manifestly clear that Cluck’s repeated omissions and history of coincidental and questionable transfers formed just the sort of “circumstances” that the Supreme Court had in mind in the Reindeer case. Based on our review of the record, we are convinced that a rational jury could have inferred the existence of an intentional plan to defraud from the bare facts of Cluck’s systematic concealment and false statements. We therefore find no merit to his argument that the evidence was insufficient on this point. D Finally, Cluck pleads that, even if his conviction is allowed to stand, his sentence and restitution order must be revisited because the district court clearly erred in its calculation of the loss caused by his conduct. He argues, essentially, that the 14 district court did not properly give him credit for the fact that several concealed assets, including those pawned to the used car dealer, had already been recovered by the trustee. We give considerable deference to a district court’s factual findings at sentencing, and will reverse only if they are clearly erroneous. United States v. Krenning, 93 F.3d 1257 , 1269 (5th Cir. 1996). A factual finding is not clearly erroneous as long as it is plausible in the light of the record read as a whole. Id. In this case, a close reading of the record reveals that the district court based both Cluck’s sentence and his restitution order on a finding that his conduct caused an actual loss of $185,000 to the bankruptcy trustee. Cf. United States v. Saacks, 131 F.3d 540 , 543 (5th Cir. 1997) (“victims,” for purposes of bankruptcy fraud, includes both creditors and the trustee). This finding, in turn, was predicated solely on the $185,0008 in concealed accounts receivable. Because the concealment of these funds was certainly a loss to the bankruptcy trustee, and because Cluck points us towards no evidence that they had been otherwise recovered, we can find no clear error in the district court’s calculation.9 8 Valuing the Perfect Union account, again, at its $35,000 settlement value. 9 We do note, however, that the $185,000 restitution order is somewhat duplicitous with the bankruptcy court’s civil judgment of December 31, 1992. Both orders are predicated, at least in part, on the $185,000 in concealed accounts receivable for Perfect Union 15 VI Having found no merit in any of Cluck’s numerous points of error, for the foregoing reasons, the judgment of the district court is A F F I R M E D. Lodge and the O.D. Dooley Estate, and both require Cluck to turn over these funds to the bankruptcy trustee. Obviously, the trustee may not recover on both orders. Because Cluck had not (and has not, for that matter) shown that he actually paid any portion of the 1992 order, there was no reason for the district court to take that order into account at the time it calculated his restitution. See United States v. Sheinbaum, 136 F.3d 443 , 449-50 (5th Cir. 1998) (district court must reduce restitution order by any amount that defendant can show was received by victim as part of a civil settlement). For future reference, however, we note that the restitution order must be construed as no more than an additional enforcement mechanism for $185,000 of the 1992 judgment, and not as an independent and additional obligation. Cf. United States v. Landay, 513 F.2d 306 , 308 (5th Cir. 1975) (describing a similar arrangement). Any payment that Cluck makes on the 1992 order must be credited towards fulfillment of his restitution obligation, and vice versa. 16 | opinion_html_with_citations | 3,739 | 2010-04-25 06:39:51+00 | 010combined | f | f | 14,885 | null | null | C | f | Published | 0 | United States v. Cluck | Cluck | null | null | null | null | null | null | null | null | null | null | 5,877 | 16-70005 | 10 | ca5 | F | t | Fifth Circuit | Court of Appeals for the Fifth Circuit |
3,738,388 | This is a suit by appellee, William H. Schwan, as executor of the last will and testament of George Meinert, deceased, for the construction of that will. Appellants, Sophia Meinert and others, are beneficiaries under the will, and from the decision of the Court of Common Pleas they have appealed to this court on questions of law. Appellee was nominated in the fourth and final clause of the will as both executor and trustee thereof, and the part concerning which he asked the instruction of the court was the following, immediately after the customary first provision as to payment of just debts and funeral expenses: "Item 2. I give, devise and bequeath to my sisters Mary Meinert and Sophia Meinert equally share and share alike the full use and enjoyment and income from all my property real and personal of every kind and description so long as each of my said sisters may live, giving each of them full right and privilege to use, enjoy, mortgage or sell any part or all of my property, real or personal, should either of my sisters wish, desire or elect to do so during their lifetime for their comfort or support. The rights herein given to my sisters to continue to the survivor in the event of the death of either sister. I further direct and authorize my executor hereinafter appointed, whom I also name as my trustee, to carry out the above terms of my will to pay all doctor and hospital bills, medicines, nurses, funeral expenses required for either of my sisters Mary and Sophia and charge the same to and pay same from my estate. "I further order, direct and authorize my trustee *Page 338 and executor hereinafter appointed to purchase and cause to be erected at my grave and that of my two sisters Mary and Sophia one family or large monument and a separate marker for each grave, said trustee and executor to use his own judgment and discretion in the purchases thereof. "Item 3. After the death of my sisters Mary and Sophia, I give, devise and bequeath the remainder or residue of my property, real and personal, to my brother Willis Meinert and my nephew Daniel Blankemeier each the undivided one-half thereof and to their heirs forever. "Item 4. I hereby nominate W.H. Schwan of Luckey, Ohio, to be the executor and trustee of this my last will and testament hereby authorizing and empowering my executor and trustee to carry out the terms of my will, to adjust and settle all claims and debts which may be due from or to my estate, giving my said executor full authority to sell at public or private sale my property, real or personal, and make necessary deeds and instruments of conveyance the same as I might or could do if living." The questions as to which the appellee, as executor, asked the instruction of the court were the following: 1. As to the estate, title and interest that the said Sophia and Mary Meinert take in the property, both real and personal; that is, whether they take the property in fee or only a life estate therein. 2. As to the rights and duties of the trustee named in said will, and as to the commencement of and the duration of time which said trusteeship shall be continued. 3. As to the rights and duties of the executor named in the will, especially as to the distribution of the property of said estate and of the rights of the remaindermen named in the residuum of the will. *Page 339 The decree of the Court of Common Pleas, omitting certain formal findings and parts, was: "The court finds that it was the intention of the testator, George Meinert, to create a trust and that a trust is created by the terms of his said last will and testament; that by the terms of his will the defendants Mary Meinert and Sophia Meinert are given and devised a life estate in all of his property, real and personal, and that after their deaths, and each of them, the remainder or residue of the property, real and personal, is given and devised one-half thereof to Willis Meinert, and the other undivided one-half thereof to Helen Blankemeier and Esther Blankemeier and to their heirs forever. * * * "It is therefore ordered and decreed by the court that a trust is created by the terms of the will of George Meinert, deceased; that a life estate is given and devised to Mary Meinert and Sophia Meinert in all the property, real and personal, belonging to said George Meinert at the time of his decease, and that after the deaths of the said Mary Meinert and Sophia Meinert, and each of them, then that the remainder of the property, real and personal, is given and devised one-half thereof to Willis Meinert, and the other undivided one-half thereof to Helen Blankemeier and Esther Blankemeier, and to their heirs forever. "The court further orders that the executor of the said George Meinert, deceased, proceed and administer his estate through the Probate Court of Wood county, Ohio, and that the same be closed within a reasonable time, and that upon the settlement of said administration said executor deliver over to the trustee named in the will of the said George Meinert, deceased, all the assets and property of said estate in his hands as executor, said trustee to be appointed and qualified in the Probate Court of Wood county, Ohio, after which said estate and property shall be held and *Page 340 administered by said trustee so appointed, all in accordance with the terms of the said last will and testament of George Meinert, deceased." At the outset it will be observed that the foregoing decree contains an inconsistency in that it determines that a trust is created by this will, which the court does not define as to the corpus thereof, while at the same time the decree finds that the appellants have a life estate in all of the property of testator, both real and personal. If a trust was created by this will, then as to the property included within such trust, the trustee holds the legal title, while the beneficiaries hold the equitable title. But a life estate vests both legal and equitable title in the same person. Therefore, a trust and a life estate cannot exist in the same property at the same time. Furthermore, the Court of Common Pleas did not find or decree that appellants, regardless of the nature of their interest in this property, were given a definite power to use, mortgage or sell any or all of the principal, during their respective lifetimes, should they elect so to do for their comfort or support. In the construction of a will, two cardinal rules are to be observed: First, that the intention of the testator is to be sought from an examination of the entire instrument, and, second, that the will shall be construed, if possible, so as to give effect to every part of it, if it be possible by so doing to reconcile provisions which are in apparent conflict. An examination of this will discloses at the outset that no express words are used conveying the title of either the real or personal property left by testator to his sisters. The language is: "I give, devise and bequeath * * * the full use and enjoyment and income from all my property real and *Page 341 personal of every kind and description so long as each of my said sisters may live." On the other hand, neither did the testator use any apt words conveying the legal title to any of this estate to his trustee. And yet it cannot be doubted that the testator intended to convey the legal title to some part of his estate to the trustee, from which funds could be derived for the purpose of paying not only doctor and hospital bills and for medicine and nurses for his sisters during their life, but also their funeral expenses and the expense of a separate marker for each of their graves after their respective deaths. The question is, therefore, where does the title to this real and personal property vest during the lifetime of the appellants? It cannot be held in abeyance during that period, but in the absence of any clearly dispositive words in the will, it must vest by implication either in the trustee or the appellants. As we have said, the legal title cannot be both in the trustee and the appellants at the same time. If it be held that the appellants take title during their lives to all of testator's property, then nothing remains for the corpus of the trust, and all the provisions of the will concerning the appointment of a trustee and his duties are nullified. On the other hand, if a trust was created, then an estate for life, vesting the legal title as well as the equitable during that period, cannot exist. With these principles in mind, we have reached the following conclusions: We find that the intention of the testator was to make the fullest possible provision from his estate for the care, maintenance and support of his two unmarried sisters, who had lived with him for many years, during their lives; that at the time of making this will on September 13, 1932, he unquestionably had in mind that one of these sisters, Mary Meinert, was at least *Page 342 72 years of age and the other sister was then not less than 68 years of age; and that in order to carry out this intention testator named and appointed a trustee in his will who should take and hold his entire property in trust during the lifetimes of these two sisters for the purpose of insuring that they should be cared for. As evidencing this purpose, we observe that Item 2 of the will gave to these sisters not a specific estate for life in all his property but "the full use and enjoyment and income" from it. While it is true that the gift of the full income from property during the lifetime of a beneficiary has been held to imply a gift of a life estate in that property, yet this implication can only arise when no intention is apparent on the part of the testator to create a trust and separate the beneficial or equitable right to receive the income from the legal title to the corpus of the trust. Furthermore, in the present will the testator explicitly directed that his trustee, in order to insure the comfort and support of his sisters and to make adequate provision for them, should pay all doctor and hospital bills, medical, nurse and funeral expenses required for them. Therefore, in order to carry out the intentions and desires of the testator as we gather them from this will, and to give effect to all of its provisions, we find that the decree of the Court of Common Pleas should be modified in the following respects, and this court, coming now to render the judgment which the Court of Common Pleas should have rendered, finds and decrees as follows: 1. That a trust was created by the will of George Meinert, deceased, in all of the property, real and personal, comprising his estate, and that appellee, W.H. Schwan, was duly named and appointed by the testator as the trustee thereof. That the trust shall continue during the lifetime of appellants and terminate after the death of the survivor of them when the *Page 343 trustee shall have performed the final duties imposed upon him by the will as to the payment of the expenses of the last sickness and burial of each of the appellants and a placing of a marker at the grave of each. 2. That appellants are the beneficiaries of the trust and entitled, share and share alike, to the full use, enjoyment and income from all of the property so held in trust during their respective lives, with full right of survivorship. 3. That appellants and beneficiaries are each further given by this will a continuing and absolute power to use, enjoy, mortgage or sell any part of the estate, both real and personal, as they or either of them may desire or elect for their comfort and support during their respective lifetimes. Upon notice given by them or either of them that they elect or desire the use, sale, or mortgage of any or all of such real or personal property and the payment of such funds or the proceeds of such mortgage or sale to them for their comfort or support, it shall be the duty of the trustee at once to comply therewith paying each one-half, if both are living, or the entire amount to the survivor if one is then deceased. 4. The duty of the executor is to end his administration of the estate so soon as is practicable, to at once pay to appellants all accumulated income now in his hands not necessary for the payment of debts and costs of administration, and turn over all the remaining property of the estate in his possession or control to the trustee appointed under the will, who shall hold, manage and control the same until the decease of the survivor of the two appellants, paying the net income therefrom to them, or the survivor, at such periods as may be directed by the Probate Court to whom this testamentary trustee must make his reports. The duties imposed upon the trustee as hereinbefore set *Page 344 forth are likewise binding upon the executor until such time as his administration is terminated. 5. Upon the death of each appellant the trustee shall pay all unpaid bills for expenses, including funeral expenses, and also erect a marker at the grave of such deceased beneficiary, and having performed the duties enjoined upon him in such respects by the will, the trust shall then terminate on the death of the surviving beneficiary, unless previously terminated by the exhaustion of the trust estate by the exercise of the powers above referred to in finding No. 3, and such portion of the trust estate as then remains be distributed by the trustee to the persons then entitled to receive it under the provisions of Item 3 of the will. The judgment of the Court of Common Pleas is therefore affirmed as herein modified and this cause is remanded to the Court of Common Pleas for execution. Judgment modified and affirmed as modified. LLOYD and CARPENTER, JJ., concur. | opinion_html_columbia | 2,457 | 2016-07-06 07:03:13.688504+00 | 020lead | f | f | 3,985,921 | Carpenter, Lloyd, Taylor | null | ZU | f | Published | 3 | Schwan, Exr. v. Meinert | Meinert | Schwan, Exr. v. Meinert | null | null | <parties id="b43-2">
SCHWAN v MEINERT et
</parties><br><court id="b43-3">
Ohio Appeals, 6th Dist, Wood Co
</court><br><decisiondate id="b43-4">
Decided Feb 1, 1937
</decisiondate><br><attorneys id="b43-13">
Bowman & Hanna, Bowling Green, for appellee.
</attorneys><br><attorneys id="b43-14">
Arthur A. Swartz, Toledo, for appellants.
</attorneys> | null | APPEAL: Court of Appeals for Wood county. | null | null | null | null | 3,858,063 | null | 0 | ohioctapp | SA | t | Ohio Court of Appeals | Ohio Court of Appeals |
5,458,786 | Bacon, J. The grounds on which the plaintiffs ask the relief to which they suppose themselves entitled are two fold. First, they allege that the proceedings of the defendants are calculated to do incalculable injury to the farms of the plaintiffs, by cutting off and drying up their springs, and destroying the growth of their young timber, and that these proceedings are conducted in bad faith and with the intent to injure the plaintiffs, and benefit the lands of other parties not contributing to the expense of the work; and secondly, they insist that the act under which the defendants are assuming to perform the work in question is unconstitutional and void, as depriving the plaintiffs of their property, not for any public use, and without providing them a just compensation therefor. I shall spend no time upon the first branch of the plaintiffs’ case, because there is no evidence whatever before me tending to show that the defendants are acting in bad faith; and although there is some diversity of opinion whether the mode adopted by the defendants is the one best calculated to secure the result at which they are aiming, and whether the manner of its execution is the most judicious, yet this may be deemed at best a balanced question, on the evidence. Even if they err in judgment, a court would hardly be justified in interfering by the summary process of injunction to restrain their proceedings. Unless the defendants are violating the plain and manifiest intent and object of the statute under which they are acting, or are proceeding in bad faith, the court should not interpose its a,u*168thority to suspend the work. In either aspect, I see no sufficient ground, as disclosed by the evidence, to entitle the plaintiff to the relief they ask under the first head of their complaint. The more important question, as it was the one most elaborately and ably argued by the counsel on both sides, respects the inquiry whether the act of April 16th, 1854, under which the defendants are carrying on the work of draining, the Rome swamp, is not a violation of the constitution, and therefore void. The plaintiffs’ counsel insists that the act is a violation of the constitutional inhibition against taking private property, because, (1.) It is not taken for a public use; and (2.) Because no just compensation is provided for the parties whose property is taken. I. That the property of A. cannot be taken and appropriated to the use of B., however beneficial the change may bej and that the land of private citizens cannot be occupied by the government or any subordinate functionary clothed with legislative authority, under the pretense or the claim of improving it for the benefit of the occupant or his neighbors, requires no argument to demonstrate. It is by no means easy, however, to define the precise boundaries which limit the right to appropriate private property for public use; or, in other words, to determine when the use shall be deemed public, and when not. It is insisted by the counsel for the plaintiffs that the purposes for which the property is taken in this case are not public, because the benefit is limited to,-and the expense assessed upon, a few individuals. But how are we to determine the number to whom the benefit will be confined ? In the case of draining an extensive swamp, we can readily conceive that the public health may be favorably affedted, throughout a wide region, within and bordering upon the district where the work is carried on, and it surely is for the public benefit that a large tract of land should be reclaimed from the condition of a useless morass, and added to the agricultural resources of the state. But the question returns upon us, who is to judge of the degree of necessity which exists, and which alone will warrant the action of the legislative authority in determining that private property may *169be taken for public uses ? It is now well settled, if there ever has been any well founded doubt upon the proposition, that the right of “ eminent domain” remains in the government, or in the aggregate body of the people in their sovereign capacity, and they have the right to resume the possession in the manner directed by the organic and the statute laws of the state, whenever the public interest requires it. The answer to the question I have proposed, is perhaps no where better given than by the late chancéllor of this state in the leading case of Beekman v. The Saratoga & Schenectady Rail Road Co. (3 Paige, 73.) “ If the public interest can in any way be promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals for that purpose.” He adds, “ upon this principle, not only the agents of government, but also individuals and corporate bodies, have been authorized to take private property for the purpose of making public highways, turnpike roads and canals, of erecting and constructing wharves and basins, of establishing ferries, of draining sioamps and marshes, and of bringing water to cities and villages. In all such cases the object of the legislative 'grant of power is the public benefit derived from the contemplated improvement.” The use and benefit is not required to be universal, nor, in the largest sense, even general. If it is confined to a specific district, it may still be public. If some parties are more benefited than others, this forms no objection to the use, if the public interest and convenience are thereby subserved. Isolated and individual action will rarely secure the public and general result which the legislative power is invoked to accomplish; and, in view of all the facts in this case, it is to be assumed that the legislature adjudged that the public necessity or utility justified the exercise of the right of resumption, and that the exigency existed which authorized the act in question. I do not say that a case may not exist of such palpable and gross invasion of private rights, unjustified by any semblance of pub-*170lie necessity, that it would he the duty of the courts to interfere for the protection of such rights, by pronouncing the act a violation of the salutary principle which was designed to hold the legislative authority in check. But the case must be very clear to warrant this interference. On this part of the case, it is pertinent also to remark, that for the last fifty years, at least, the legislature has exercised the power in question here, by passing laws from time to time, authorizing, in various forms, the draining of swamps and marshes, and the reclaiming of submerged lands. More than twenty such acts will be found in the session laws of the state, commencing as early as 1804, and continuing at various intervals down to the very last session of the legislature, when the act in question was passed. This course of legislation is by no means conclusive when a constitutional question arises, which may never have been agitated in the courts, -under any of those acts. And we have been admonished by more than one decision that no length of time, in which a course of legislation has been continued, will protect any law from the condemnation of the judicial tribunals, when its conflict with the constitution is brought distinctly to the test. (See opinion of Bronson, J. in Taylor v. Porter, 4 Hill, 140.) While, therefore, it is not affirmed that. these acts may be appealed to as decisive of the power of the legislature to pass them, and that they are not within the constitutional objection we have been considering, they nevertheless do lend some strength to the argument that a power so long exercised, in such diversified forms and various localities, may be deemed settled, as applied to the subject we are now considering. Looking then at the principle which lies at the foundation of the right of the government to take private property for public use by an appropriate act of legislation, and the end which in this case may be fairly deemed the object and intent of the act, I shall-find no difficulty in maintaining it as the lawful exercise of the right of eminent domain, and holding that the taking of the lands of these plaintiffs, so far as it was necessary to enter upon and appropriate them for the purpose intended in this case, was and is a lawful taking of the same for a public use. • *171II. But there is an important condition connected with the exercise of this power on the part of the government to take private property for the public use; and that is, the necessity of providing a just compensation to the parties whose property shall be thus appropriated. This condition is fundamental and imperative, and can only be satisfied by making such a provision as shall be in truth “just,” or, in other words, adequate and compensatory. “ The principle,” says Oh. J. Savage, (Matter of Canal street, 11 Wend. 154,) “ that private property shall not be taken for public use without just compensation is found in the constitution and laws of this state, and has its foundation in those elementary principles of equity and justice which lie at the root of the social compact.” And this provision must be made cotemporaneously with, and as a part of, the act which authorizes the appropriation: For, in the language of Oh. Walworth, (18 Wend. 17,) “ Before the legislature can authorize the agents of the state and others to enter upon and occupy, or destroy or materially injure, the private property of an individual, except in case of actual necessity "which will not admit of delay, an adequate and certain remedy must be provided, whereby the owner of such property may compel the payment of his damages or compensation, and he is not bound to trust to the justice of the government to make provision for such compensation by future legislation.” And Kent, (2 Com. 389,) recognizes the same doctrine when he says, “ a provision for compensation is a necessary attendant on the due and constitutional exercise of the power given to deprive an individual of his property without his consent, and the principle is founded in natural equity, and is laid down by jurists, as an acknowledged principle of universal law.” Bearing these principles in mind, and that by the term “ just compensation,” as used in the constitution, is to be understood “ a fair equivalent in money—a quid pro quo, a recompense in value for the property taken,” (Per Mason, senator, 18 Wend. 35 ;) and remembering also that when private "property is taken for public use by right of eminent domain, it is taken not as the owner’s share of contribution to a public burthen, but as so much *172beyond bis share—let us see whether the act of the legislature, under which the proceedings of the defendants in this case have been taken, fulfills the constitutional requirement on that subject. By the 3d section of the act of April 17th, (Session Laws of 1854, p. 1000,) it is made the duty of the commissioners to assess the costs and expenses of the survey and the cutting of the ditches, and to apportion the amount among the several owners of lands to be drained, according to the number of acres respectively owned by each. This provision, it will be seen, devolves the whole expenses upon the parties owning the lands to be drained; and that not in the ratio of relative benefit, but simply upon a property basis, and by an equal assessment upon every acre throughout the swamp. The rule is highly objectionable in respect to the mode of providing for the expenses, but is probably within the scope of the legislative discretion as one form of the exercise of the taxing power. These burthens never can be very equally adjusted, and there is no glaring injustice in requiring those persons to pay the expenses, who are supposed to receive an equivalent in the enhanced value of their own adjacent property. On examining the act further, to ascertain what provision has been made for the damages or compensation to be made to the owner whose lands are entered upon and taken, we find the 11th section declares, that for any damages done to the owner or owners of such lands, (fee., the commissioners shall make just compensation; and after providing for their appraisal in the proper mode, it is declared that such damages, and the costs of assessment and the per diem> of the commissioners, shall be duly certified and “ assessed and collected as part of the expenses of the drainage authorized by this act.” The effect of the provision is to make the damages or compensation to be collected and payable precisely as the expenses are, to wit, by assessing the same upon the owners of the land, according to the number of acres owned by each. But is this the “just compensation” contemplated and required by the constitution? Most obviously, it seems to me, it is not. The taking of land necessary for the work, and the dispossession of the owner’s right and title thereto, is only to be vindicated on the ground' *173that it is required for a public use. If the improvement is required for the public benefit, upon what principle can the public benefited by the appropriation, be exempted from their proper contribution to the just indemnification of the parties whose property has been taken ? The land appropriated is not the owner’s share of a contribution to a public burthen, but is so much above and beyond his share. He should be compensated, therefore, and the compensation should be made in good part, if not entirely, by those who are benefited by the work accomplished, either in the increased salubrity of the surrounding region, or the enhanced value of the lands which lie in the immediate neighborhood. But by the operation of this section, the owner not only loses his land, but is compelled to pa.y a portion of the very damages he has sustained by such loss and the other consequential injuries he may have suffered thereby. The money which is supposed to satisfy the damages suffered by the owner may, in one sense, be said to find its way into one of the pockets of the proprietor; but to accomplish that trick of legal legerdemain, it must first be taken out of the other. Is this the “just compensation” the constitution contemplates? Does it practically do any more than “ Keep the word of promise to the ear, To break it to the hope.” Besides, the burthen will of necessity be very unequally apportioned among those who are doomed to bear it. It is incredible that every owner of land in the swamp will suffer equal injury and receive equal benefit from the work in question; and the testimony in this case shows that such is not the fact. A. is the owner of 20 acres, which is a mere morass, having no available springs upon it, and no growth of timber which the progress of the work uproots and destroys. B., on an adjoining lot, has .both springs indispensable for the uses to which he is applying his already partially reclaimed land and a growth of young timber, very valuable for farming purposes. And yet, under the law as it stands, B. pays precisely at the same rate, as a compensation towards the damages he has suffered, that A. does, who has not only suffered no injury, but has been greatly benefited by *174the appropriation of the land and the execution of the work. This clearly is no just compensation, but a most inequitable distribution of the burthens, which ought to be in some proximate proportion to the benefits. It is urged by the counsel of the defendants that the act in question follows the precedents of prior legislation on the same subject, and is formed on the model of various acts which have authorized similar works. I have looked through most of the acts on this subject in our session laws for many years, and it is true that in "a great majority of cases no provision whatever has been mad§ for ascertaining or paying the compensation required to be made. These laws have been probably acquiesced in by the parties who were interested in or affected by them, and no question has been made in the courts, as far as I am aware, respecting their constitutional validity. If there had been, I am unable to see how they could have escaped judicial condemnation. But this has not been the invariable course of legislation on this subject; for on examining the act of April, 1816, for draining the great marsh on the Caneseraga creek, I find an express provision, that in case any person shall suffer injury or damage by occasion of the canal and drainage of the land, his damages shall be ascertained by the commissioners, and assessed on the proprietor of such lands “ as would in any wise be benefited or made more valuable, by reason of the canal” to be cut for the purpose of draining the said swamp. And the same provision was made in reference to the expenses, which were to be assessed in like manner, “ having reference to the benefit to be received by each of the proprietors.” So also in the act of April, 1825, for draining the Cayuga marshes, it was made the duty of the commissioners, when the work should be completed, to prepare an assessment roll and valuation of the land reclaimed, and all other lands which in their opinion shall have been increased in value by the lowering of the waters of the marsh, and assess a tax to pay for the work, “ in an equal and just measure according to the valuation in the assessment roll,” adequate to meet the expenses of the work. And a substantially similar provision is contained in the act of *175February, 1822, for lowering Onondaga Lake, and draining the marsh lands in the town of Salina. [Oneida Special Term, December 4, 1854. Bacon, Justice.] These acts contain the proper provisions, and are, it seems to me, founded on the true principle which ought to govern legislation on the subject of appropriating private property for public uses. Nothing could have been easier than to have inserted in the act we have been considering, a section containing a provision similar to the one found in these acts, to which I have referred, and thus have secured all the benefits which are expected to, and doubtless .will, flow from a judicious discharge of the duties devolved upon these defendants, while it preserved all the constitutional guaranties which have been thrown around the rights of the private citizen. Future legislation may possibly’-, even now, remedy this omission, giving validity to what has already been done, but providing for that just indemnity and compensation to which it shall be found the parties are ultimately entitled. But whether this be so or not, the duty of the courts in a case where their interposition is invoked to stay proceedings under a law which violates a glain_ constitutional provision, is clear and imperative, and must be performed. , The plaintiffs are accordingly entitled to the relief demanded in the complaint, restraining the defendants from further proceedings under the act in question. But as the defendants have been charged with a public duty, under the apparent sanction of an act of the legislature, and have acted in entire good faith, the judgment must be without costs against them. | opinion_xml_harvard | 3,352 | 2022-01-09 19:27:28.79312+00 | 020lead | t | f | 5,614,110 | Bacon | null | U | f | Published | 0 | Hartwell v. Armstrong | Hartwell | Hartwell and others v. Armstrong and others | <p>nnHIS action was brought by several owners of land in what JL is called the Borne swamp, against the defendants as commissioners for draining the swamp, appointed by the act of April, 17,1854, (Laws of 1854, ch. 396,) to restrain their proceedings. The complaint, in addition to averring that the act was unconstitutional, because it assumed to take private property for public purposes, and also "provided no compensation to the proprietors of the land taken, alleged that the defendants were proceeding improperly in the work, and to the injury of the plaintiffs ; and some testimony was taken on that head.</p> | null | null | <p>The court will not he justified in interfering hy the summary process of injunction to restrain the proceedings of commissioners appointed by an act of the legislature, for draining swamp lands, even though the commissioners err in judgment, in respect to the manner of performing their duties.</p> <p>Unless the commissioners are violating the plain and manifest intent and object of the statute, or are proceeding in bad faith, the court will not interpose its authority, to suspend the work.</p> <p>It is now well settled that the right of eminent domain remains in the government, or in the aggregate body of the people in their sovereign capacity; and they have the right to resume the possession of lands in the manner directed by the organic and the statute law of the state, whenever the public interest requires it.</p> <p>And it is for the legislature to judge of the degree of necessity which exists for the exercise of the right of eminent domain.</p> <p>To authorize the exercise of this right, it is not requisite that the use and benefit to be derived shall be universal, nor, in the largest sense, even general.</p> <p>• Though confined to a particular district, it may still be public.</p> <p>And though some parties are more benefited than others, this forms no objection to the use, if the public interest and convenience are thereby subserved.</p> <p>An act authorizing commissioners to enter upon and appropriate the lands of individuals, for the purpose of draining a swamp, is a lawful exercise of the right of eminent domain, and the taking of such lands, so far as necesary, is a lawful taking of the same for a public use.</p> <p>But there is an important condition connected with the exercise of the power of taking private property for public use, by the government, viz. the necessity of providing a just compensation to the owner.</p> <p>This condition is fundamental and imperative, and can only he satisfied hy making such provision as shall he in truth just, or, in other words, adequate and compensatory.</p> <p>Where an act of the legislature, authorizing the drainage of a swamp, provided that the damages or compensation to be made to the owners of lapds which should be entered' upon and taken, should he collectible and payable by assessing the same upon the several owners of the land drained, according to the number of acres respectively owned by each; Held, that this was not th^just compensation contemplated and required by the constitution; and that conse-1quently the act was unconstitutional and void.</p> | null | null | null | null | null | 61,966,685 | null | 0 | nysupct | ST | t | New York Supreme Court | New York Supreme Court |
1,379,957 | 186 Ga. App. 882 (1988) 369 S.E.2d 282 CLARK v. THE STATE. 76043. Court of Appeals of Georgia. Decided April 20, 1988. Phillips D. Hamilton, W. D. Simpkins III, for appellant. J. Lane Johnston, District Attorney, for appellee. BENHAM, Judge. Appellant was convicted of rape, aggravated sodomy, and burglary. In his enumerations of error on appeal he questions the sufficiency of the evidence presented against him. *883 The victim positively identified appellant as the man who entered her home without her permission and forced her to have both vaginal and anal intercourse with him. She recognized appellant's voice immediately, due to her prior employment of him and his mother. Appellant's palmprint was found on the clothes dryer in the victim's utility room, under a window broken to gain entry into the home. A fingerprint of appellant's right middle finger was found on the window's screen. Public hair found in the victim's clothing and bed linens was microscopically similar to that of appellant, and public hair found in appellant's underclothing was microscopically similar to that of the victim. Clothing matching the description given by the victim was found in appellant's bedroom. Plaster casts of footprints leading to the broken utility room window were found to be similar in size, tread, and wear to shoes of appellant seized at the time of his arrest. The evidence was sufficient to authorize a rational trier of fact to convict appellant of rape, aggravated sodomy, and burglary. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA §§ 16-6-1 (a); 16-6-2 (a); 16-7-11 (a); Palmer v. State, 174 Ga. App. 720 (331 SE2d 77) (1985). Judgment affirmed. McMurray, P. J., and Pope, J., concur. | opinion_html_with_citations | 283 | 2013-10-30 05:52:31.237519+00 | 010combined | f | f | 1,379,957 | Benham, McMurray, Pope | null | LU | f | Published | 4 | Clark v. State | null | Clark v. the State | null | null | <docketnumber id="b926-12">
76043.
</docketnumber><parties id="Apu8">
CLARK v. THE STATE.
</parties><br><citation id="b926-13">
(369 SE2d 282)
</citation> | null | null | null | null | null | null | 1,272,731 | 76043 | 0 | gactapp | SA | t | Court of Appeals of Georgia | Court of Appeals of Georgia |
261,714 | 322 F.2d 214 Ernest Leroy WHITE, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, State of Texas, Appellee. No. 20404. United States Court of Appeals Fifth Circuit. August 27, 1963. Rehearing Denied September 23, 1963. J. G. Davis, Sam R. Wilson, Asst. Attys. Gen., Huntsville, Tex., Waggoner Carr, Atty. Gen. of Texas, Austin, Tex., Gilbert J. Pena, Asst. Atty. Gen., Austin, Tex., for appellee. Before JOSEPH C. HUTCHESON, Jr., GEWIN and GRIFFIN B. BELL, Circuit Judges. GEWIN, Circuit Judge. 1 The appellant White complains of the ruling of the U. S. District Court denying his petition for writ of habeas corpus. He had been 3 times convicted of non-capital felonies, the last one being the offense of burglary and was sentenced to life imprisonment in accordance with a Texas statute. Vernon's Ann.P.C. Art. 63. In the District Court the petitioner claimed a denial of due process of law under the 14th Amendment for 3 principal reasons: (1) he was represented at his state court trial by an attorney who was delinquent in the payment of his State Bar dues; (2) without petitioner's consent or agreement, his attorney stipulated that he was guilty of a portion of the indictment under which he was convicted; and (3) the Court of Criminal Appeals of Texas denied his petition for writ of habeas corpus which alleged that he had been denied the right of appeal. In a well written opinion, Judge Noel of the U. S. District Court for the Southern District of Texas carefully and patiently considered the contentions mentioned, made a full and complete examination of the transcripts, facts, state court files, and previous applications for writs of habeas corpus, and denied the relief sought. We are in agreement with the opinion written by the U. S. District Judge. See White v. Beto, D.C., 213 F. Supp. 592 . 2 We deem it appropriate to discuss only that aspect of the appeal in which the appellant insists that the incompetency of his own personally selected and employed trial attorney amounted to a deprivation of due process. As to the alleged incompetency of trial counsel, predicated upon the fact that he was delinquent in the payment of his State Bar dues at the time of trial, the state court trial judge signed an affidavit stating that the attorney "had been a practitioner in the courts of Dallas County [Texas] for several years prior to this trial to my knowledge.", and that he "gave the defendant good representation * * * participated in the selection of the jury in the case, cross-examined the state's witnesses in a splendid manner and called witnesses in behalf of the defendant who gave testimony in open court." Neither success in the trial or on appeal, nor errorless representation is a constitutional guarantee. The Court of Appeals for the District of Columbia in Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787 (1958), cert. den. 358 U.S. 850 , 79 S. Ct. 81 , 3 L. Ed. 2d 86 , states the applicable rule with unusual clarity in cases where a denial of due process is claimed because of the inadequacy of counsel: 3 "It is clear from these opinions that the term `effective' has been used by the Supreme Court to describe a procedural requirement, as contrasted with a standard of skill. The Court has never held that an accused is entitled to representation by a lawyer meeting a designated aptitude test. It has never used the term to refer to the quality of the service rendered by a lawyer. The Court has clearly established that an indigent accused is entitled to counsel, if he wants one, despite his inability to pay for the service; that appointed counsel must have reasonable opportunity to prepare for his task of defense; and that the lawyer so appointed must have no divergent interest. But the Court has not itself undertaken, nor has it imposed upon the inferior federal courts, the duty of appraising the quality of a defense." 1 4 This court considered the same question in Andrews v. Robertson et al., 5 Cir. 1944, 145 F.2d 101 , and concluded: 5 "The Federal Court, in habeas corpus proceedings, cannot set itself up as the admeasurer of the legal capacity of counsel of defendant's own selection in the trial of a case in the State Court to the end that the defendant may put his own counsel on trial after the end of his own trial has been reached." 6 Appellant relies heavily on McKinzie v. Ellis, 5 Cir. 1961, 287 F.2d 549 , which followed the Texas case of Martinez v. State, 167 Tex. Crim. 97 , 318 S.W.2d 66 (1958). Both McKinzie and Martinez related to the duty of the state court of Texas to appoint counsel in good standing to represent an indigent defendant in a capital case pursuant to a statute of the State of Texas. In Martinez it was held that the appointment of counsel who had not paid his dues and was not in good standing, did not constitute a compliance with the state statute. In McKinzie it was held that a failure to comply with the Texas Statute in appointing qualified counsel was a denial of due process. Of equal importance and standing with the right to have counsel at the trial, is the right of a defendant to select, employ and use counsel of his own choice. This right was exercised by the appellant in this case. If he had been denied the right to use counsel of his choice, he would have a serious complaint; but in this case, the appellant chose his counsel of his own free will and accord. Many factors such as personal relationships, confidence, acquaintance, and understanding, enter into the choice of counsel. Like the choice of a spiritual adviser or a physician, considerations of a highly personal nature may be controlling. When the court appoints counsel, personal considerations are not of dominant importance. A failure to pay bar association dues is a matter of importance to the bar association, which we would not undertake to minimize; but a failure to pay such dues does not repeal all knowledge, experience and competency of counsel. For further facts applicable in this case reference is here made to the opinion of the U. S. District Court. 7 The right to choose counsel has been emphasized by the courts. In Chandler v. Fretag, 348 U.S. 3 , 75 S. Ct. 1 , 99 L. Ed. 4 (1954), the Supreme Court stated: 8 "* * * Regardless of whether petitioner would have been entitled to the appointment of counsel, his right to be heard through his own counsel was unqualified." (Emphasis added) 9 Indeed, the denial of a defendant's choice of his own counsel has been held to be a denial of due process. In Wiman v. Argo, 5 Cir. 1962, 308 F.2d 674 , this court affirmed the judgment of the District Court, 209 F. Supp. 299 (D.C.M.D.Ala. 1962), wherein the defendant Argo was released in a habeas corpus proceeding and his conviction declared void because the trial court in effect denied the defendant Argo the right to be represented by his chosen and privately employed counsel. This conclusion was reached in spite of the fact that the state trial court had appointed competent counsel to represent the defendant in the absence of his chosen counsel. 10 Upon a full review of the record we conclude that there was not a denial of due process in this case. We are in agreement with the observation made in Mitchell, supra , as to the present trend of post-conviction attack on the attorney who served the defendant: 11 "It has been repeated so many times as to become axiomatic that convicted felons almost unanimously relish the prospect of putting to public judicial test the competence of their erstwhile defenders; that almost any judge or lawyer can point to potential mistakes in reviewing the record of a lost cause; and that even trial counsel, having lost, can almost invariably enumerate what in the hindsight of disaster appear to have been errors." 12 The judgment is affirmed. Notes: 1 For an excellent collection of citations dealing with the subject under consideration, see the opinion in Mitchell, 259 F. 2d p. 790, particularly Note 10 | opinion_html_with_citations | 1,393 | 2011-08-23 08:38:20+00 | 010combined | f | f | 261,714 | Bell, Gewin, Griffin, Hutcheson, Joseph | null | RU | f | Published | 5 | Ernest Leroy White v. Dr. George J. Beto, Director, Texas Department of Corrections, State of Texas | null | Ernest Leroy WHITE, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, State of Texas, Appellee | null | null | <parties data-order="0" data-type="parties" id="b260-7">
Ernest Leroy WHITE, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, State of Texas, Appellee.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b260-9">
No. 20404.
</docketnumber><br><court data-order="2" data-type="court" id="b260-10">
United States Court of Appeals Fifth Circuit.
</court><br><decisiondate data-order="3" data-type="decisiondate" id="b260-11">
Aug. 27, 1963.
</decisiondate><br><otherdate data-order="4" data-type="otherdate" id="b260-12">
Rehearing Denied Sept. 23, 1963.
</otherdate><br><attorneys data-order="5" data-type="attorneys" id="b260-20">
J. G. Davis, Sam R. Wilson, Asst. Attys. Gen., Huntsville, Tex., Waggoner Carr, Atty. Gen. of Texas, Austin, Tex., Gilbert J. Pena, Asst. Atty. Gen., Austin, Tex., for appellee.
</attorneys><br><p data-order="6" data-type="judges" id="b260-21">
Before JOSEPH C. HUTCHESON, Jr., GEWIN and GRIFFIN B. BELL, Circuit Judges.
</p> | null | null | null | null | null | null | 578,613 | 20404 | 1 | ca5 | F | t | Fifth Circuit | Court of Appeals for the Fifth Circuit |
770,317 | 225 F.3d 970 (8th Cir. 2000) IN RE: SDDS, INC., A SOUTH DAKOTA, CORPORATION, PETITIONER. SDDS, INC., APPELLEE/CROSS-APPELLANT, v. STATE OF SOUTH DAKOTA, APPELLANT/CROSS-APPELLEE. MARK W. BARNETT, ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA; JOYCE HAZELTINE, SECRETARY OF STATE OF SOUTH DAKOTA; GEORGE S. MICKELSON, GOVERNOR OF THE STATE OF SOUTH DAKOTA, DEFENDANTS. ACTION FOR THE ENVIRONMENT, INTERVENOR DEFENDANT. Nos. 98-3588, 99-1034, 99-1035 U.S. Court of Appeals, Eighth Circuit Submitted: May 8, 2000 Filed: September 15, 2000 Appeals and Cross-Appeal from the United States District Court for the District of South DakotaBefore McMILLIAN, John R. Gibson and Beam, Circuit Judges. McMILLIAN, Circuit Judge. 1 This matter began in 1991 with a complaint filed in the United States District Court for the District of South Dakota by SDDS, Inc. (SDDS), against the State of South Dakota (the State), seeking declaratory and injunctive relief pursuant to 42 U.S.C. § 1983. Since then, the case has come before this court on three separate occasions, see SDDS, Inc. v. State of South Dakota, 994 F.2d 486 (8th Cir. 1993) (SDDS III); id., 47 F.3d 263 (8th Cir. 1995) (SDDS VI); id., 97 F.3d 1030 (8th Cir. 1996) (SDDS VIII), and related litigation has been ongoing in the South Dakota state courts. Now, on this fourth visit to the Eighth Circuit, the parties present us with the following: (1) an appeal by the State from the district court order denying the State's motion pursuant to Fed. R. Civ. P. 60(b) to set aside prior federal court judgments; (2) an appeal by the State and cross-appeal by SDDS from an order of the district court awarding SDDS attorneys' fees and costs; and (3) a petition to recall, clarify, and supplement the mandate issued pursuant to our decision in SDDS VIII. For reasons stated below, we affirm the orders of the district court, 1 and we deny SDDS's petition to recall the mandate. 2 The background facts have been stated in our prior opinions. See SDDS VIII, 97 F.3d at 1032-34 . Briefly summarized, this litigation arises out of an unsuccessful effort by SDDS to construct and operate a multistate solid waste disposal (MSWD) facility near Edgemont, South Dakota. Opposition to the MSWD facility prompted, among other things, two ballot initiatives. The second ballot initiative, or referendum, effectively ended SDDS's plan to develop the MSWD facility. See id. at 1033 ("The electorate vetoed the MSWD facility, which 'shut down' SDDS's MSWD site."). SDDS brought the present § 1983 action against the State and numerous state officials (collectively the defendants) in federal district court alleging that the second ballot initiative violated the dormant commerce clause. SDDS also filed an action against the defendants in South Dakota state court to recover just compensation for an alleged de facto "taking," or inverse condemnation, of its property by way of the referendum. 3 For nearly ten years, the two cases - one in federal court, the other in state court - followed long, convoluted, and intertwined procedural journeys. Along the way, we twice reversed summary judgment dispositions by the district court in favor of the defendants. See SDDS III, 994 F.2d at 494 ; SDDS VI, 47 F.3d at 272 . Consistent with our decision in SDDS VI, the district court, on April 24, 1995, entered judgment in favor of SDDS and against the defendants, declaring that the second ballot initiative violated the dormant commerce clause and assessing costs to the defendants. In SDDS VIII, 97 F.3d at 1041-42 , we instructed the district court to enter an order enjoining the defendants from relitigating certain specified issues in the state court proceedings. After the mandate for SDDS VIII issued on November 15, 1996, the district court issued the required injunction on December 12, 1996. The South Dakota Supreme Court held that the state courts were bound by the district court's order granting the defendants injunctive relief, notwithstanding its disagreement with that order on the merits, and, on May 18, 1998, the United States Supreme Court denied the defendants' resulting petition for a writ of certiorari. See SDDS, Inc. v. State, 569 N.W.2d 289 , 293-95 & n.9 (S.D. 1997) (SDDS IX), cert. denied, 523 U.S. 1118 (1998) (SDDS X). 4 On June 9, 1998, the State moved pursuant to Fed. R. Civ. P. 60(b)(4) to set aside the district court's judgments of April 24, 1995, and December 12, 1996, on the ground that those prior final decisions were void because they were entered in violation of the Eleventh Amendment. On August 24, 1998, the district court denied the State's Fed. R. Civ. P. 60(b) motion. See SDDS v. State of South Dakota, No. CIV. 91-5121 (D.S.D. Aug. 24, 1998). SDDS then moved in the district court for attorneys' fees and costs incurred in opposing the State's Fed. R. Civ. P. 60(b) motion, and the State opposed SDDS's request. On November 6, 1998, the district court awarded SDDS attorneys' fees and costs, but not the full amount of attorneys' fees requested. See SDDS v. State of South Dakota, No. CIV. 91-5121 (Nov. 6, 1998). Appeal No. 98-3588 5 The State appeals from the district court's order of August 24, 1998, denying the State's Fed. R. Civ. P. 60(b) motion. Upon careful review, we hold that the district court did not err in denying the State relief pursuant to Fed. R. Civ. P. 60(b)(4) because the State did not seek review, by petition for writ of certiorari, of either SDDS VI or SDDS VIII and instead has attempted to collaterally attack those final decisions by way of a Rule 60(b) motion in the district court. Just as a Rule 60(b) motion cannot be used to relitigate the merits of a district court's prior judgment in lieu of a timely appeal, nor can it be used to collaterally attack a final court of appeals' ruling in lieu of a proper petition for review in the United States Supreme Court. Cf. Kocher v. Dow Chemical Co., 132 F.3d 1225 , 1229 (8th Cir. 1997) ("A party may not use a Rule 60(b)(4) motion as a substitute for a timely appeal. In other words, if a party fails to appeal an adverse judgment and then files a Rule 60(b)(4) motion after the time permitted for an ordinary appeal has expired, the motion will not succeed merely because the same argument would have succeeded on appeal."). Moreover, while the Eleventh Amendment provides the State with a defense, it does not automatically deprive the federal courts of original jurisdiction. See Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381 , 389 (1998) ("The Eleventh Amendment . . . does not automatically destroy original jurisdiction. Rather, the Eleventh Amendment grants the State a legal power to assert a sovereign immunity defense should it choose to do so. The State can waive the defense."). As in the present case, "[a] state may . . . waive its Eleventh Amendment immunity through its conduct. Courts have inferred a waiver when the State has made a general appearance in federal court and defended a lawsuit on the merits." Hankins v. Finnel, 964 F.2d 853 , 856 (8th Cir.) (citations omitted), cert. denied, 506 U.S. 1013 (1992). In the present case, the State for many years actively and vigorously litigated the merits of SDDS's claims in federal court, never once raising an Eleventh Amendment immunity defense until after the mandates had been issued and our decisions in SDDS VI and SDDS VIII were final. In light of the State's conduct, it would appear that the State has waived any sovereign immunity defense it may have had to the claims addressed in SDDS VI and SDDS VIII. The district court's order of August 24, 1998, is affirmed. Cross-appeals Nos. 99-1034/1035 6 The State also appeals the district court's November 6, 1998, award of attorneys' fees and costs, again relying on the argument that the underlying judgments were void on Eleventh Amendment grounds. SDDS cross-appeals, arguing that the district court abused its discretion in failing to award the full amount of attorneys' fees requested. 7 Upon review, we note that the State's appeal from the award of attorneys' fees and costs assumes success on its appeal from the district court's August 24, 1998, decision, involving the merits of the State's belated Eleventh Amendment defense. Having affirmed the August 24, 1998, order, we find no basis for reversing the district court's decision to award SDDS attorneys' fees and costs. (It would, of course, defy logic to permit the State to invoke its Eleventh Amendment argument to now preclude SDDS from recovering attorneys' fees and costs which were incurred in defeating that very argument.) 8 Furthermore, on careful review of the district court's determination of SDDS's reasonable attorneys' fees, we hold that the district court did not abuse its discretion in declining to award SDDS's entire request. The district court's order of November 6, 1998, is affirmed. Petition to recall the mandate 9 In the spring of 1999, the inverse condemnation case in South Dakota state court proceeded to trial before a jury on the issue of SDDS's damages. On April 6, 1999, the jury found that SDDS's damages amounted to $10.1 million. The State moved for judgment notwithstanding the verdict (JNOV) or a new trial, and, on January 6, 2000, the state trial court held a hearing on the motion. Ruling from the bench, the state trial court denied the State's motion for JNOV but granted a new trial on the basis of instructional error. Thereafter, on February 23, 2000, SDDS challenged that ruling by filing a petition in this court requesting that we recall, clarify, and supplement our mandate in SDDS VIII. In essence, SDDS argues that the state trial court has misconstrued the federal injunction, and we should therefore reopen and revise our earlier decision in order to compel a different ruling by the state court. SDDS describes the relief it seeks as follows: "This would necessarily consist [of] an additional direction to the district court to enjoin the Defendants and the state trial court from relitigating any of those issues expressly and by necessary implication decided by this Court in SDDS VI or SDDS VIII." SDDS's Petition to Recall, Clarify and Supplement Mandate at 12 (emphasis added). In SDDS VIIII, we directed the district court to enjoin the defendants, not the state courts, from relitigating certain issues. The district court complied with our directions, and the South Dakota Supreme Court ruled that the district court's order is binding upon the state courts. We do not, however, sit as a court of appeals over the South Dakota courts. We have neither the power nor the inclination to provide the extraordinary relief SDDS requests. The petition to recall the mandate is denied. Notes: 1 The Honorable Richard H. Battey, Chief Judge, United States District Court for the District of South Dakota. | opinion_html_with_citations | 1,807 | 2012-04-18 10:33:01+00 | 010combined | f | f | 770,317 | null | null | R | f | Published | 12 | null | null | In Re: Sdds, Inc., a South Dakota, Corporation, Sdds, Inc., Appellee/cross-Appellant v. State of South Dakota, Appellant/cross-Appellee. Mark W. Barnett, Attorney General of the State of South Dakota Joyce Hazeltine, Secretary of State of South Dakota George S. Mickelson, Governor of the State of South Dakota, Action for the Environment, Intervenor | null | null | null | null | null | null | null | null | null | 723,367 | 99-1034 | 0 | ca8 | F | t | Eighth Circuit | Court of Appeals for the Eighth Circuit |
7,579,615 | PER CURIAM. AFFIRMED. *401HERSEY, C.J., and GUNTHER, J., concur. WARNER, J., concurs specially with opinion. | opinion_xml_harvard | 15 | 2022-07-29 06:26:50.698678+00 | 020lead | t | f | 7,646,424 | Gunther, Hersey, Warner | null | U | f | Published | 0 | Gregory v. State | null | Joseph GREGORY v. STATE of Florida | null | null | null | null | null | null | null | null | null | 64,647,495 | No. 88-2703 | 0 | fladistctapp | SA | t | District Court of Appeal of Florida | District Court of Appeal of Florida |
7,565,698 | WICKER, Judge. Resor Plumbing and Heating, Inc. (RE-SOR) appeals a judgment forbidding the award of a sewerage construction contract to anyone but Donald M. Clement Contractor, Inc. (CLEMENT). The issue before this court is the interpretation of plans and specifications in connection with the award of a particular public works contract. We reverse and recall the writ of mandamus. The Parish advertised for bids for the construction of an overextended sewerage system in May of 1987. Six bids were received for the work, among them the bids of Clement and Resor. Clement’s bid was the lowest of all, and the Parish advised Clement that it was the apparent low bidder. The Parish then requested additional information from Clement, including information concerning its bonding company and bonding capacity. All the requested information was furnished except that relating to the bond.1 A Parish committee then met to consider a possible inadequacy in Clement’s bid. The specifications mandated that a bid bond accompany any bid on the project and, as interpreted by the Council, required that the bonding company have an “A” or better rating by A.M. Best. The bid bond submitted by Clement was furnished by a Louisiana surety company which was not listed or rated by A.M. Best. Consequently, the contract was awarded to Resor, the second lowest bidder for the project. Clement filed a Petition for Writ of Mandamus and/or Writ of Prohibition, asking that the Parish be prohibited from awarding the contract to any other bidder. Re-sor was not made a party to this suit, which came to trial without notice to or participation by Resor. The trial judge awarded Clement the relief it asked for, finding that There is nothing wrong with the plaintiff. At issue is an interpretation of the bonding requirements to be supplied by the contractor. The bonds are of two *88types, a bid bond and a performance bond. A reading of the specifications is mandatory (Exhibit P-3). It is the interpretation of the Parish that an A+ rating is for all bonds. It is the interpretation of the plaintiff that the A 4- rating applies to the performance bond and not to the bid bond. In the alternative, plaintiff argues that the bid bond given, even if not A+ rated, was an informal defect which it cured instantly after notice. The St. Charles Parish Council was faced with three choices: 1. Award the contract to the plaintiff; 2. Award the contract to the second lowest bidder; 3. Knock out all bids and start over— and look at a 100-day delay on an overextended sewerage system. Following judgment in favor of Clement, Resor intervened and appealed. The specifications concerning the requisite bonds follow: Each BID must be accompanied by a BID bond payable to the OWNER for five percent of the total amount of the BID. As soon as the BID prices have been compared the OWNER will return the bonds of all except the three lowest responsible BIDDERS. When the Agreement is executed the bonds of the two remaining unsuccessful BIDDERS will be returned. The BID bond of the successful BIDDER will be retained until the payment bond and performance bond have been executed and approved, after which it will be returned. A Certified check may be used in lieu of a Bid Bond. A performance bond and a payment bond, each in the amount of 100 percent of the CONTRACT PRICE, with a corporate surety approved by the OWNER, will be required for the faithful performance of the contract. The bonds submitted must be from a surety company authorized to do business in Louisiana and with a rating of “A” or better in the most current edition of the A.M. Best Insurance Report. The bonds must be countersigned by a Louisiana licensed agent authorized to represent the surety company writing the bond and that agent’s power of attorney must be attached to the bond submitted. The bond shall also indicate the current bond rating of the contractor. The Parish interprets its advertised specifications as requiring that the bid bond, as well as the payment and performance bonds, be rated A. We believe that this is a reasonable interpretation and is neither arbitrary nor capricious. The awarding of public works contracts is governed by L.S.A.-R.S. 38:2212 A(l)(a) and (b): All public work exceeding the contract limit as defined herein, including labor, materials, and all purchases of materials or supplies exceeding the sum of five thousand dollars to be paid out of public funds, to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised, and no such public work shall be done and no such purchase shall be made except as provided in this Part. The provisions and requirements of this Section and those stated in the advertisement for bids shall not be considered as informalities and shall not be waived by any public entity. The right of the public entity to “reject any and all bids for just cause” is reserved by L.S.A.-R.S. 38:2214 A(2), and the Parish also made such a reservation in its plans and specifications. Notwithstanding any such reservation, the Supreme Court has held that in some cases a disqualified bidder is entitled to written notice of his disqualification and an informal hearing, outlined in the provisions of L.S.A.-R.S. 38:2212 J. Haughton Elevator Division v. State, etc., 367 So.2d 1161 (La.1979). The issue in Haughton was “whether an awarding authority which advertises for bids must give adequate notice and a fair hearing on unfavorable charges to a bidder which the authority intends to disqualify as a non-responsible *89bidder....” That case and others2 left open the question of the rights, if any, of a bidder who has simply failed to bid “according to the contract, plans, and specifications.” 3 In the case of Williams v. Board of Sup’rs, etc., 388 So.2d 438 (La.App. 2d Cir.1980), the court considered the effect of the Haughton ruling on cases in which a bidder is sought to be disqualified for failing to bid according to plans and specifications. The court noted: ... it should be noted that, unlike Haughton which involved the disqualification of a bidder as not responsible, we are dealing with a disqualification for not bidding according to advertised specifications. Since all of the information needed by the awarding authority in our case is contained in the bid, the elaborate procedural requirements enunciated in Haughton are inapplicable. We recognize, as dictated by Haughton, that the lowest responsible bidder, bidding in conformity to specifications, does have a statutory entitlement entailing due process requirements. However, under our particular factual situation due process simply requires that the awarding authority, after a careful consideration of the written bid, act in a manner that is not arbitrary. At p. 441. See also Tide Equipment Co. v. Pointe Coupee Par. Police Jury, 312 So.2d 154 (La.App. 1st Cir.1975), writ den. 315 So.2d 38 (La.1975). Clement has argued that the lack of an “A” rated bond is a mere formality which the Parish could have waived. However, the provisions of L.S.A.-R.S. 38:2212 A(l)(b), supra, do not support this position.4 We hold that the Parish’s reasonable, good faith interpretation of its own specifications should not be disturbed by a court whose views might be different. In making this holding, we follow in substance those many prior cases which have held that Louisiana follows the general rule of vesting a public agency, in awarding a public works contract, with discretion subject to judicial review. Courts will not substitute their judgment for the good faith judgment of an administrative agency. Budd Const. Co., Inc. v. City of Alexandria, 401 So.2d 1070, 1077 (La.App. 3rd Cir.1981), writ den. 404 So.2d 1262 (La.1981). Accord: Audubon Store Inc. v. Schrimsher, 434 So.2d 1159 (La.App. 1st Cir.1983); Toye Bros. Yellow Cab Co. v. City of New Orleans, 264 So.2d 768 (La.App. 4th Cir.1972). We hold that Clement failed to follow the advertised plans and specifications, as reasonably interpreted by the Parish; that the Parish was neither arbitrary nor unreasonable in awarding the sewerage contract to Resor; and that Clement had no right to notice and a hearing on the rejection of its bid. The judgment of the trial court is reversed, and the mandamus is recalled. Clement must pay the costs of this appeal. *90REVERSED, WRIT OF MANDAMUS RECALLED. . Clement’s vice-president testified that this information was furnished along with the rest. However, the documents in evidence omit any response on this issue to the Parish’s request. . North Cent. Util. v. Walker Comm. Water Sys., 437 So.2d 922 (La.App. 2d Cir.1983), on appeal after remand 506 So.2d 1325 (La.App. 2d Cir.1987). . “The court left unresolved an important issue concerning the rights of a low bidder who is disqualified for not bidding 'according to the contract, plans, and specifications as advertised.’ Is a low bidder who is disqualified for failure to submit a responsive bid entitled to the same specified procedural safeguards as a low bidder who is disqualified as not responsible? ... Whereas the low bidder would serve as a good source of information in a determination of whether a bidder is irresponsible, its helpfulness would be minimal in determining whether the bid is responsive. All the information the authority needs is contained in the bid and is preserved in a form suitable for later judicial review.” (Footnotes omitted.) Note, "Shaping Specific Procedural Requirements for Disqualification under Louisiana’s Public Bid Law”, 40 La.L.Rev. 871, 879 (1980). .The critical importance of the proper bond is noted in Davis v. Franklin Parish School Bd., 412 So.2d 1131, 1134 (La.App. 2d Cir.1982), writ den. 415 So.2d 942 (La.1982): “The failure to give the required bond for a public work is not a mere formality or irregularity but is a substantial enervation of the Public Bid Law and rendered the contract null and void.” (Citations omitted.) | opinion_xml_harvard | 1,657 | 2022-07-29 06:05:22.212812+00 | 020lead | t | f | 7,633,408 | Chehardy, Gaudin, Wicker | null | U | f | Published | 0 | Donald M. Clement Contractor, Inc. v. St. Charles Parish | null | DONALD M. CLEMENT CONTRACTOR, INC. v. ST. CHARLES PARISH and/or St. Charles Parish Council | null | null | null | null | null | null | null | null | null | 64,634,478 | No. 87-CA-806 | 0 | lactapp | SA | t | Louisiana Court of Appeal | Louisiana Court of Appeal |
4,335,634 | TRACI A. TOMKO AND RONALD R. TOMKO, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent TOMKO v. COMMISSIONER No. 6108-04S United States Tax Court T.C. Summary Opinion 2005-139 ; 2005 Tax Ct. Summary LEXIS 5 ; September 27, 2005 , Filed *5 Traci A. Tomko and Ronald R. Tomko, pro se. James E. Schacht and Mark J. Miller , for respondent. POWELL , Special Trial Judge POWELL , Special Trial Judge POWELL , Special Trial Judge: This case was heard pursuant to the provisions of section 7463 of the Internal Revenue Code in effect at the time the petition was filed. 1 The decision to be entered is not reviewable by any other court, and this opinion should not be cited as authority. Respondent determined a deficiency of $ 13,170 in petitioners' 2001 Federal income tax. The issue is whether petitioners are entitled to deduct certain gambling losses. Petitioners resided in Oneida, Wisconsin, when the petition in this case was filed. Background The facts may be summarized as follows. During 2001, petitioners were recreational *6 gamblers who played slot machines. Petitioners had winnings of at least $ 44,464 from these activities that were reported to the Internal Revenue Service. See sec. 7.6041-1, Temporary Proced. & Admin. Regs., 42 Fed. Reg. 1471 (Jan. 7, 1977). On their joint 2001 Form 1040, U.S. Individual Income Tax Return, petitioners reported gambling income of $ 21,100 and gambling losses of the same amount on Schedule A, Itemized Deductions. Respondent determined that petitioners received gambling income of $ 44,464 and disallowed the deduction for gambling losses on the ground that petitioners failed to substantiate any losses. Petitioners do not dispute the increase in gambling income. Petitioners, however, argue that they have substantiated their losses. They claim that the funds for each trip to the local casinos is shown by cash withdrawals on credit cards or bank account debit cards. Their statements from these accounts show activities at the casinos. In addition, they reconstructed their gambling activities allegedly showing cash withdrawals for each day and the amount of individual gain or loss at the end of the day. For example, the credit card account statement shows that *7 on June 14, 2001, they withdrew $ 600, and the gambling activity records for that day show that they lost $ 600. Discussion Section 61(a) defines gross income to mean all income from whatever source derived. Winnings from slot machines and other gambling winnings are includable in gross income. See Lyszkowski v. Commissioner, T.C. Memo. 1995-235 , affd. without published opinion 79 F.3d 1138 ">79 F.3d 1138 (3d Cir. 1996). In the case of an individual, section 62(a) defines adjusted gross income as gross income less certain deductions, including deductions attributable to a trade or business carried on by the taxpayer. Sec. 62(a)(1) . If a taxpayer's gambling activity constituted a trade or business, his or her gambling losses would be deductible from gross income in arriving at adjusted gross income on Schedule C, Profit or Loss From Business. If a taxpayer's gambling activity did not constitute a trade or business, his or her gambling losses would be deductible as an itemized deduction in arriving at taxable income on Schedule A. Sec. 63(a) . Petitioners do not claim that they were in the trade or business of gambling. Regardless whether or not the activity constituted *8 a trade or business, section 165(d) provides that "Losses from wagering transactions shall be allowed only to the extent of the gains from such transactions." See also sec. 1.165-10, Income Tax Regs. Petitioners do not dispute that section 165(d) applies here. Respondent claims that petitioners' records are insufficient to establish that they incurred any losses. To be sure, petitioners' records leave something to be desired. Section 6001 and the regulations thereunder require that taxpayers keep adequate records to substantiate their income and deductions. When a taxpayer fails to keep adequate records, but a court is convinced that deductible expenses were made, the Court "should make as close an approximation as it can, bearing heavily if it chooses upon the taxpayer whose inexactitude is of his own making." Cohan v. Commissioner, 39 F.2d 540 ">39 F.2d 540 , 544 (2d Cir. 1930). In cases involving gambling losses, this Court has invoked the Cohan rule when it is satisfied that a taxpayer has incurred some gambling losses. See Drews v. Commissioner, 25 T.C. 1354 ">25 T.C. 1354 (1956). The total amount petitioners attribute to their gambling activity is $ *9 46,542 -- $ 18,080 (Chase credit card), $ 19,800 (MBNA credit card), and $ 8,662 (bank account debit card). While this amount may have cycled through the casinos and the financial institution, we are not convinced that this amount represents petitioners' gambling losses. According to their testimony, their losses were computed by the amount of cash they had at the end of their sessions of playing the slot machines, and they claim they did not not leave a casino with any of the cash they had originally withdrawn except when they hit a payout of more than $ 1,200. We are particularly bothered by this explanation. Although the odds are in a casino's favor, it does not necessarily follow that there are no days when a player comes out ahead. Given the uncertainty of petitioners' records, and the certainty that there must have been some losses, we find that petitioners did suffer total gambling losses of $ 40,000 in 2001. Reviewed and adopted as the report of the Small Tax Case Division. Decision will be entered under Rule 155 . Footnotes 1. Unless otherwise indicated, subsequent section references are to the Internal Revenue Code in effect for the year in issue, and Rule references are to the Tax Court Rules of Practice and Procedure. ↩ | opinion_html_with_citations | 960 | 2018-11-14 02:21:48.820392+00 | 010combined | f | f | 4,558,381 | POWELL | null | C | t | Unpublished | 0 | TOMKO v. COMMISSIONER | TOMKO | TRACI A. TOMKO AND RONALD R. TOMKO v. COMMISSIONER OF INTERNAL REVENUE | null | null | null | null | null | null | null | null | null | 8,179,387 | No. 6108-04S | 0 | tax | FS | t | U.S. Tax Court | United States Tax Court |
5,856,723 | In an action to recover damages for personal injuries, plaintiff appeals (1) from an order of the Supreme Court, Kings County (Beckinella, J.), dated September 29, 1980, which, inter alia, granted the defendant hospital’s motion to quash subpoenas served upon four of its employees, and (2) as limited by her brief, from so much of a further order of the same court (Leone, J.), dated May 22, 1981, as, upon reargument, adhered to its original determination. Appeal from the order dated September 29, 1980, dismissed as adacemic. Said order was superseded by the order, dated May 22, 1981, issued upon reargument. Order dated May 22; 1981, affirmed insofar as appealed from, without prejudice to a formal application by the plaintiff for the taking of additional depositions consistent herewith. Respondent is awarded one bill of $50 costs and disbursements. This action was commenced by service of a summons and verified complaint upon the defendant hospital on or about February 9, 1979. Although named as a defendant in the action, Dr. Stanley Dratler was never served. The complaint alleges that on or about December 23, 1977 the plaintiff was a patient at the defendant hospital and that defendant Dratler, a resident physician in the hospital’s employ, wrongfully and maliciously injected her with valium and proceeded to have sexual intercourse with her while she was in a drugged and helpless state. The complaint against the hospital contains two causes of action. The first asserts that Dratler’s acts were *848committed with knowledge, express or implied, of the defendant hospital and constituted a grossly negligent and willful interference with the plaintiff’s person. The second cause of action asserts a breach of the hospital’s contractual duty to the plaintiff to furnish her with competent and adequate medical care in conformity with the recognized practice in the community, and to keep her free from harm and danger while at the hospital. On March 6,1980, pursuant to court order, Edith Steinberg, the supervisor of medical correspondence in the defendant hospital’s medical records department, was deposed. She produced the plaintiff’s medical record and testified as to its completeness. Ms. Steinberg asserted, however, that she did not know Dr. Dratler and had no knowledge of either the manner in which employee personnel files are kept in the hospital or the process by which residents and interns are selected for matriculation. Upon inquiry as to who would have that knowledge, Ms. Steinberg replied that she thought that the individual departments in the hospital would have the information. Upon further questioning, Ms. Steinberg offered the names of four hospital officials: the current administrator of the hospital, the head of the personnel records department, and two physicians who were the heads of medical service. On or about April 25, 1980 plaintiff served subpoenas and notices to take deposition upon each of the four individuals named by Ms. Steinberg. Each subpoena called upon the named individual to appear at 2:00 p.m. on May 29, 1980. On May 22, 1980 the defendant hospital moved for an order quashing the subpoenas. Special Term granted the motion and subsequently adhered to its determination upon reargument. We now affirm. The liberalization of discovery procedures (see CPLR 3101 et seq.) has not altered the general rule that, in the first instance, a corporation may designate which of its officers, directors or employees shall represent it for the purposes of pretrial depositions (see Instructional Tel. Corp. v National Broadcasting Co., 63 AD2d 644; Lonigro v Baltimore & Ohio R.R. Co., 22 AD2d 918). Where additional persons are sought to be deposed, the examining party must make a formal application to the court and must carry the burden of demonstrating that the corporate representatives already deposed possessed insufficient knowledge or were otherwise inadequate (see Besen v C.P.L. Yacht Sales, 34 AD2d 789). In the instant case, it is essentially conceded that Ms. Steinberg did not possess adequate knowledge in view of the nature of the plaintiff’s causes of action. Nevertheless, plaintiff failed to make an appropriate motion for further discovery and, although the defendant hospital offered to produce one of the individuals named by Ms. Steinberg, the plaintiff proceeded to serve subpoenas on all four of the named individuals. Those individuals, each of whom is an important hospital official, were all commanded to appear on the same date and at the same time. Under these circumstances, we hold that Special Term did not abuse its discretion in granting the motion to quash (see CPLR 3103, subd [a]; Dow u Xciton Corp., 75 AD2d 972). If she is so advised, the plaintiff may make a proper application for further discovery so as to permit the court to supervise disclosure and to avoid harassment and minimize inconvenience to the hospital (see Dow v Xciton Corp., supra, at p 973). Mollen, P. J., Mangano, Brown and Rubin, JJ., concur. | opinion_xml_harvard | 805 | 2022-01-13 01:06:15.013754+00 | 020lead | t | f | 5,995,667 | null | null | U | f | Published | 0 | Rosner v. Maimonides Hospital | Rosner | Rochelle Rosner v. Maimonides Hospital | null | null | null | null | null | null | null | null | null | 62,355,568 | 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 |
1,003,203 | UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 00-4389 MICHAEL KOKOSKI, Defendant-Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Robert C. Chambers, District Judge. (CR-96-64) Submitted: November 30, 2000 Decided: December 19, 2000 Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges. Affirmed by unpublished per curiam opinion. COUNSEL Mary Lou Newberger, Acting Federal Public Defender, Edward H. Weis, First Assistant Federal Public Defender, Charleston, West Vir- ginia, for Appellant. Rebecca A. Betts, United States Attorney, John L. File, Assistant United States Attorney, Charleston, West Virginia, for Appellee. 2 UNITED STATES v. KOKOSKI Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION PER CURIAM: Michael Kokoski was convicted pursuant to his guilty plea of fel- ony escape from a federal institution. On appeal, he alleges that the district court erred in sentencing him as a career offender pursuant to USSG § 4B1.11 because his escape was not a "crime of violence."2 Kokoski also alleges that he was entitled to a downward adjustment under USSG § 2P1.1(b)(3) because his escape was non-violent. Find- ing no reversible error, we affirm. Kokoski was convicted in 1994 of using a minor to distribute drugs, and he was sentenced to serve 144 months in prison. In March 1996, Kokoski was transferred to a minimum security prison camp. Approximately one month later, Kokoski simply walked out of the camp. It is undisputed that Kokoski was not confronted during his escape, nor did he have to negotiate any physical barriers. Kokoski was arrested on unrelated charges in Montana in 1999, where he was living under a false name. A fingerprint analysis confirmed Kokoski’s identity. We review the district court’s application of the guidelines de novo and find no error. United States v. Daughtrey, 874 F.2d 213 , 217 (4th Cir. 1989). We have consistently held that felony escape is, by its very nature, a crime of violence because, even if accomplished by stealth, there is always the potential for a violent confrontation. United States v. Hairston, 71 F.3d 115 , 118 (4th Cir. 1995). Kokoski alleges that the minimal security found at federal prison camps justi- fies an exception from this general rule. The Fifth Circuit rejected this very argument in a factually similar case. See United States v. Ruiz, 180 F.3d 675 , 676-77 (5th Cir. 1999). The focus is on the crime of 1 U.S. Sentencing Guidelines Manual (1998). 2 See USSG § 4B1.2(a). UNITED STATES v. KOKOSKI 3 conviction (escape), not on an ex post analysis of whether any acts of violence actually occurred. Id. We further reject Kokoski’s assertion that he is entitled to a down- ward adjustment under USSG § 2P1.1(b)(3). To prevail, Kokoski must show that the prison camp is a non-secure facility and that the camp is similar to a community corrections center, community treat- ment center, or halfway house. United States v. Sarno, 24 F.3d 618 , 623 (4th Cir. 1994). While the prison camp here was clearly a non- secure facility, Kokoski fails to satisfy the second prong of the test. See Sarno, 24 F.3d at 623-24 & nn.4-5 (holding in dicta that federal prison camps are not similar to community treatment centers or half- way houses for purposes of the adjustment). Those circuits which have addressed this issue have reached the same conclusion. See, e.g., Ruiz, 180 F.3d at 676 ; United States v. Stalbaum, 63 F.3d 537 , 540 (7th Cir. 1995). Accordingly, we affirm Kokoski’s sentence. We dispense with oral argument because the facts and legal contentions are adequately pre- sented in the materials before the court and argument would not aid the decisional process. AFFIRMED | opinion_html_with_citations | 625 | 2013-07-04 18:22:41.170983+00 | 010combined | f | f | 1,003,203 | null | null | C | f | Unpublished | 0 | United States v. Kokoski | Kokoski | null | null | null | null | null | null | null | null | null | null | 629,596 | 00-4389 | 0 | ca4 | F | t | Fourth Circuit | Court of Appeals for the Fourth Circuit |
3,621,492 | Agree to affirm; no opinion. All concur. Judgment affirmed. *Page 658 | opinion_html_columbia | 11 | 2016-07-06 00:03:09.15063+00 | 020lead | f | f | 3,637,840 | null | null | ZU | f | Published | 0 | Thornton v. . Harris | Thornton | Maria Thornton Et Al., as Executors, Etc., Respondents, v. Isaac Harris Et Al., as Executors, Etc., Appellants | <p>Appeal from judgment'of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 14, 1886, which affirmed a judgment in favor of plaintiffs, entered u.pon a verdict.</p> | null | <parties id="b679-13">
Maria Thornton et al., as Executors, etc., Respondents, v. Isaac Harris et al., as Executors, etc., Appellants.
</parties><br><otherdate id="b679-14">
(Argued April 17, 1889;
</otherdate><decisiondate id="Ala">
decided May 3, 1889.)
</decisiondate><br><summary id="b679-15">
Appeal from judgment'of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 14, 1886, which affirmed a judgment in favor of plaintiffs, entered u.pon a verdict.
</summary><br><attorneys id="b679-16">
<em>
John McCrone
</em>
for appellants.
</attorneys><br><attorneys id="b679-17">
<em>
Anthony Barrett
</em>
for respondents.
</attorneys> | null | null | null | null | null | null | 3,509,965 | null | 0 | ny | S | t | New York Court of Appeals | New York Court of Appeals |
2,312,561 | 472 F.Supp.2d 914 (2007) Kay Angela HANIF, Muhammad Hanif, Angel Nicole Hanif, Hamid Hussain, Aamir Hussain, Abrar Hussain Hanif, and Adnan Hussain Hanif, Plaintiffs, v. DEPARTMENT OF HOMELAND SECURITY, U.S. Citizenship and Immigration Services, and District Director Carol Jennifer, Defendants. No. 06-13641. United States District Court, E.D. Michigan, Southern Division. January 16, 2007. *915 Herman S. Dhade, Steven M. Garmo, Garmo Assoc., Farmington Hills, MI, for Plaintiffs. Steven P. Croley, U.S. Attorney's Office, Detroit, MI, for Defendants. *916 OPINION AND ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION TO STAY REMOVAL LAWSON, District Judge. The plaintiffs in this case have filed suit challenging the revocation of approval of a petition by a citizen-spouse (plaintiff Kay Angela Hanif) to classify plaintiff Muhammad Hanif as the spouse of a United States citizen and permit him to remain in this country. The suit also contests the denial of a later-filed petition. The defendants have responded with a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), alleging that the Court lacks jurisdiction to review the actions by the federal agencies. The plaintiffs have filed a motion to stay Muhammad Hanif's removal. The Court heard oral argument from the parties through their respective counsel in open court on January 8, 2007, and now finds that it has no jurisdiction to review the revocation of approval of the prior petition, and the latter petition is not ripe for review because an agency appeal is still pending at the administrative level. The complaint, therefore, will be dismissed and the motion to stay removal will be denied. I. Sometime before December 2002, Kay Angela Hanif, a United States Citizen, obtained approval of a Form 1-130, Petition for Alien Relative, designating Muhammad Hanif, a citizen of Pakistan, as her spouse, with the corresponding permission to remain in the United States. The approved 1-130 had allowed Mr. Hanif to be classified as the spouse of a United States citizen under 8 U.S.C. § 1151 (b)(2)(A)(I) of the Immigration and Nationality Act (INA). This was the second such petition she had filed. On December 2, 2002, the United States Department of Homeland Security, Bureau of Customs and Immigration Service (CIS), notified Ms. Hanif that it intended to revoke its prior approval of her Form I-130. CIS planned to revoke Ms. Hanif's I-130 on the grounds that an agency investigation in April 2002 suggested she had entered into a marital relationship with Mr. Hanif for the purposes of evading the immigration laws. CIS expressed two concerns. First, the agency was not satisfied with the documents Mr. Hanif had provided establishing that he was divorced in his country of origin. Second, the agency's investigation revealed that Mr. and Ms. Hanif did not live in the same apartment but rather in adjacent apartments, each with his or her respective children, and that they held many individual but few joint assets. In its notice of intended revocation in December 2002, CIS invited Ms. Hanif to submit information to rebut the grounds for the agency's intended decision to revoke her 1-130. Ms. Hanif replied by submitting materials on December 23, 2002. CIS was unpersuaded. On April 1, 2003, CIS therefore revoked its previous approval. On July 11, 2003, Ms. Hanif submitted a new 1-130 petition (her third), again on behalf of Mr. Hanif. CIS again invited Ms. Hanif to submit rebuttal evidence establishing the bona fides of her marriage to Mr. Hanif, if she had any new evidence since the agency's April 2002 investigation. Ms. Hanif submitted additional evidence, which addressed both the records of Mr. Hanif's earlier divorce and the bona fides of Mr. Hanif's remarriage to her. Again CIS was unpersuaded. With respect to the records of Mr. Hanif's earlier divorce, the agency refused to accept the form of evidence Ms. Hanif submitted. With respect to the bona fides of Ms. Hanifs marriage to Mr. Hanif, CIS focused on a new apartment lease Ms. Hanif submitted in rebuttal that listed only herself and her daughter as the occupants of the apartment, suggesting again that neither the *917 Hanifs nor their children from previous marriages lived together. In addition, two of Ms. Hanifs sisters whom CIS contacted in May 2006 in response to affidavits Ms. Hanif submitted in rebuttal to CIS's intent to deny did not know the names of any of Mr. Hanifs children. The agency therefore concluded that Ms. Hanif did not meet her burden to establish that Mr. Hanifs prior marriage was terminated, and his marriage to her was not entered into for purpose of gaining an immigration benefit. On May 30, 2006, CIS denied this new petition. The agency explained that it was denying her new 1-130 for the same reasons it revoked her previous 1-130. CIS's decision denying Ms. Hanifs third 1-130 is now on appeal before the Bureau of Immigration Appeals (BIA). Ms. Hanif filed a notice of appeal to the BIA on June 23, 2006 and a brief in support of that appeal on July 28, 2006. Meanwhile, Mr. Hanif is subject to a final order of removal. On March 10, 2004, Mr. Hanif filed a petition seeking a writ of habeas corpus in this Court. The habeas petition alleged that he was denied due process in removal proceedings resulting from the denial of his application for adjustment of status, which was in turn premised on the relative application Ms. Hanif filed on his behalf. On June 20, 2005, this Court transferred that petition to the Court of Appeals pursuant to thenrecent amendments to the INA. On July 5, 2006, the Sixth Circuit dismissed his appeal for lack of prosecution. On August 15, 2006, Muhammad Hanif, his wife Kay Angela Hanif, and their children, Angel Nicole Hanif, Adnan Hussain Hanif, Abrar Hussain Hanif, Hamid Hussain, and Aamir Hussain, filed the present action challenging the revocation of the approval of Kay Angela's second I-130 petition and the denial of her third I-130 petition. The plaintiffs' complaint alleges that the denial of the petition is arbitrary and capricious in violation of the Administrative Procedures Act and violates the Fourteenth Amendment's Due Process Clause. On August 31, 2006, the plaintiffs filed a motion to stay the removal of Muhammad Hanif, arguing that they are likely to prevail on the merits and irreparable harm will occur if the stay is not granted. The defendants have not responded to that motion. However, on October 13, 2006, the defendants filed a motion to dismiss arguing that this Court does not have jurisdiction to review the revocation of the second I-130 because the INA gives the agency complete discretion to make such decisions. The defendants contend that the Court has no jurisdiction to review the denial of the third I-130 petition because when Congress withdrew judicial review of discretionary decisions in 8 U.S.C. § 1252 (a)(2)(B)(ii), it could not possibly have intended the Administrative Procedures Act to furnish an avenue for a rejected applicant to obtain judicial relief. The defendants argue in the alternative that the complaint does not state a claim upon which relief can be granted because the denial of the third 1-130 petition is currently on appeal to the BIA and therefore is not a final decision. The plaintiffs filed a response on October 31, 2006 disputing the government's arguments. II. The defendants argument that the Court does not have subject matter jurisdiction over the case invokes Federal Rule of Civil Procedure 12(b)(1). Lack of subject matter jurisdiction may be asserted at any time, either in a pleading or a motion. Fed.R.Civ.P. 12(b)(1); Television Reception Corp. v. Dunbar, 426 F.2d 174 , 177 (6th Cir.1970). When subject matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction in order to *918 survive the motion. Michigan Southern R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass'n., Inc., 287 F.3d 568 , 573 (6th Cir.2002); see also Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266 , 269 (6th Cir.1990). The defendants' argument that the complaint does not state a claim upon which relief may be granted is based on Federal Rule of Civil Procedure 12(b)(6). In considering such a motion, the allegations in the complaint are taken as true and are viewed favorably to the non-moving party. Miller v. Currie, 50 F.3d 373 , 377 (6th Cir.1995); Herrada v. City of Detroit, 275 F.3d 553 , 556 (6th Cir.2001). To survive a motion to dismiss, a complaint must contain "either direct or indirect allegations respecting all material elements to sustain a recovery under some viable legal theory." In re DeLorean Motor Co., 991 F.2d 1236 , 1240 (6th Cir.1993). The Court may consider only whether the allegations contained in the complaint state a claim for which relief can be granted. Roth Steel Prod. v. Sharon Steel Corp., 705 F.2d 134 , 155 (6th Cir.1983). The motion shall be granted only if "no set of facts in support of [the plaintiff's] claim [] would entitle [the plaintiff] to relief." Broyde v. Gotham Tower, Inc., 13 F.3d 994 , 996 (6th Cir.1994). The Immigration and Nationality Act states that "any citizen of the United States claiming that an alien is entitled to . . . an immediate relative status under section 1151(b)(2)(A)(I) of this title [including spouses] may file a petition with the Attorney General for such classification." 8 U.S.C. § 1154 (a)(1)(A)(i). The statutory language requires the Attorney General to grant the petition if he is satisfied that the facts are true: After an investigation of the facts in each case . . . the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative specified in section 1151(b) of this title . . . approve the petition and forward one copy thereof to the Department of State. The Secretary of State shall then authorize the consular officer concerned to grant the preference status. 8 U.S.C. § 1154 (b). Once a petition has been approved, that approval may be revoked: The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 1154 of this title. Such revocation shall be effective as of the date of approval of any such petition. 8 U.S.C. § 1155 . This provision previously conferred the revocation authority upon the "Attorney General" rather than the "Secretary of Homeland Security." The language was changed in December 2004 by the Intelligence Reform and Terrorism Prevention Act of 2004, Pub.L. No. 108-458, § 5304(c), 118 Stat. 3638 , 3736 (2004). See Jilin Pharmaceutical USA, Inc. v. Chertoff, 447 F.3d 196 , 200 n. 6 (3d Cir. 2006). The defendants argue here correctlythat Congress has stripped the courts of jurisdiction to review discretionary decisions of the Attorney General and the Secretary of Homeland Security under Title 8, Chapter 12, Subchapter II, which includes sections 1151 through 1381, encompassing the statutes governing I-130 petitions. The operative provision is section 1252(a)(2)(B)(ii), which states: (2) Matters not subject to judicial review . . . . . (B) Denials of discretionary relief Notwithstanding any other provision of law (statutory or nonstatutory), in chiding *919 section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review . . . . . (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title. 8 U.S.C. § 1252 (a)(2)(B)(ii). Several courts have read this statute as purporting to withdraw from courts jurisdiction to review executive decisions under section 1155 to revoke 1-130 petitions. El-Khader v. Monica, 366 F.3d 562 , 567 (7th Cir. 2004); Jilin Pharmaceutical, 447 F.3d at 203 . The plaintiffs, however, point to a Ninth Circuit decision in which the court concluded that the language in section 1155, "may, at any time, for what he deems to be good and sufficient cause," did not give the Attorney General unfettered discretion, and therefore judicial review was allowed to ensure that permits are revoked only for "good and sufficient cause." ANA International Inc. v. Way, 393 F.3d 886 , 891-94 (9th Cir.2004). The court reasoned: It is clear that § 1252(a)(2)(B)(ii) immunizes certain discretionary decisions of the Attorney General from judicial review. It is equally clear that not every decision of the Attorney General that involves some element of discretion is automatically shielded from review by § 1252(a)(2)(B)(ii). In general terms, if a legal standard from an appropriate source governs the determination in question, that determination is reviewable for a clarification of that legal standard. In other words, acts immunized from review by § 1252 are matters of pure discretion, rather than discretion guided by legal standards. Id. at 891 (internal quotes and citations omitted). The court found that the "good and sufficient cause" language created a legal standard that undid the immunity that section 1252(a)(2)(B)(ii) created. In considering and rejecting that reasoning, the Third Circuit determined that section 1155 conferred pure administrative discretion upon the Secretary of Homeland Security for three reasons: First, § 1155 states that the Secretary of Homeland Security (and, previously, the Attorney General) may revoke approval of a petition. . . . [S]uch language is indicative of administrative discretion for purposes of § 1252(a)(2)(B)(ii). . . . Second, § 1155 states that approval may be revoked "at any time." This too connotes a level of discretion. . . . Third, § 1155 permits revocation when the Secretary "deems" there to be good and sufficient cause. This language indicates that Congress committed to the Secretary's discretion the decision of when good and sufficient cause exists to revoke approval. Jilin Pharmaceutical, 447 F.3d at 203 . This Court believes that the Jilin court's reasoning is more persuasive, it more accurately reflects Congressional intent, and it is more consistent with Sixth Circuit precedent. The Sixth Circuit has held in another context that the word "may" indicates a decision is discretionary. Dorris v. Absher, 179 F.3d 420 , 429 (6th Cir.1999) (holding that courts have discretion to award damages under the provision of wiretap statute that uses the word "may" rather than "shall"). The Seventh Circuit has noted with respect to section 1155 petitions, "the discretionary nature of *920 the decision is apparent from the plain language of the statute." El-Khader, 366 F.3d at 567 . This Court concludes, therefore, that it does not have jurisdiction to review the revocation of a previously-approved 1-130 petition because courts do not have the authority to review any "decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified . . . to be in the discretion of the Attorney General or the Secretary of Homeland Security," 8 U.S.C. § 1252 (a)(2)(B)(ii). The plaintiffs pointed out at oral argument that section 1155 gives the Secretary of Homeland Security discretion to revoke petitions "approved by him under section 1154," 8 U.S.C. § 1155 (emphasis added), and section 1154 gives the Attorney General, not the Secretary of Homeland Security, the authority to approve petitions. However, the authority to approve or deny petitions appears to have been delegated to the Department of Homeland Security. See 8 C.F.R. § 103.1 (stating that "[d]elegations of authority to perform functions and exercise authorities under the immigration laws may be made by the Secretary of Homeland Security"). In addition, the regulations require petitions to be filed with the INS, 8 C.F.R. § 103.2 ("an application or petition should be filed with the INS office or Service Center"), which has been put under the authority of the Department of Homeland Security. 22 C.F.R. § 96.2 . ("DHS means the Department, of Homeland Security and encompasses the former Immigration and Naturalization Service (INS) or any successor entity."). The statutory realignment does not serve to undo the immunity from judicial review that Congress has created. The Court finds, therefore, that it has no jurisdiction to review the revocation of Kay Angela Hanif's second I-130 petition. As noted earlier, the defendants also insist that the Court has no jurisdiction to review the denial of the third I-130 petition. A section of the Administrative Procedures Act explicitly states that it does not apply if a statute precludes judicial review: This chapter applies, according to the provisions thereof, except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law. 5 U.S.C. § 701 (a). However, it appears that the Sixth Circuit does not share the government's view that review of an administrative denial of an I-130 petition under the APA is barred by the current immigration laws. In Bangura v. Hansen, 434 F.3d 487 (6th Cir.2006), the court considered an appeal from the district court's dismissal of several challenges to denials of multiple spousal immigration petitions. As to the APA claim, the court concluded: As the INA does not specifically provide for federal court review of denials of visa petitions, there is no other adequate remedy in court that would preclude APA review. See generally, 8 U.S.C. §§ 1151-1378 (not providing for appeals to district courts from denials of immediate relative visa petitions); 8 C.F.R. §§ 1-499 (same). Thus, Mrs. Bangura states a claim under the APA based on the INS's denial of Chisley's [I-130] petition, and the district court correctly dismissed all other APA claims. Id. at 502. However, although the Court has jurisdiction over the claim according to Bangura, it is not reviewable at this time because it is not a "final" agency decision. The following provision of the APA defines which agency decisions are reviewable by the courts: Agency action made reviewable by statute and final agency action for which *921 there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority. 5 U.S.C. § 704 . "An agency action is not final if it is only the ruling of a subordinate official,' or `tentative.'" Franklin v. Massachusetts, 505 U.S. 788 , 797, 112 S.Ct. 2767 , 120 L.Ed.2d 636 (1992). The Supreme Court applies a two-part test to determine whether an agency decision is final: As a general matter, two conditions must be satisfied for agency action to be "final": First, the action must mark the "consummation" of the agency's decisionmaking process, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103 , 113, 68 S.Ct. 431 , 92 L.Ed. 568 (1948) it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which "rights or obligations have been determined," or from which "legal consequences will flow," Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62 , 71, 91 S.Ct. 203 , 27 L.Ed.2d 203 (1970). Bennett v. Spear, 520 U.S. 154 , 177-78, 117 S.Ct. 1154 , 137 L.Ed.2d 281 (1997). In this case, as in Bangura, the plaintiffs filed an appeal from the denial of the third 1-130 petition with the Board of Immigration Appeals (BIA). "Where an intra-agency appeal is optional . . . the APA does not require a plaintiff to appeal prior to filing suit in federal court." Bangura, 434 F.3d at 498 (citing Darby v. Cisneros, 509 U.S. 137 , 147, 113 S.Ct. 2539 , 125 L.Ed.2d 113 (1993)). However, where an optional appeal has been taken, the "pending appeal renders the decision nonfinal." Id. at 500. Therefore, the denial of the spousal petition is not a final agency action because the plaintiffs appealed the decision. Regardless of whether the plaintiffs were required to appeal the decision, they have in fact done so. Judicial review under the APA is not presently available. The plaintiffs' response notes that the Court has the authority to compel agency action that is unreasonably delayed. That may be true. See 5 U.S.C. § 706 (1); Intermodal Technologies, Inc. v. Mineta, 413 F.Supp.2d 834 (E.D.Mich. 2006) (holding that in the absence of a statutory or regulatory timetable, an agency has an obligation to decide a matter within a reasonable time). However, the plaintiffs' complaint does not seek such relief. Even if it did, Ms. Hanif filed a notice of appeal to the BIA on June 23, 2006 and a brief in support of that appeal on July 28, 2006. It certainly cannot be said that a period of six months constitutes unreasonable delay in an immigration appeal to the BIA. Finally, the plaintiffs argue that the removal should be stayed because they are likely to prevail on the merits and irreparable harm will occur if a stay is not granted. The defendants have not filed a response to the stay motion. This motion must be denied as moot because the Court concludes that the complaint must be dismissed. III. The Court finds that it has no jurisdiction to review the revocation of plaintiff Kay Angela Hanif's second I-130 petition *922 to classify plaintiff Muhammad Hanif as the spouse of a United States citizen and permit him to remain in this country. The Court also concludes that although there is jurisdiction to review a final agency decision to deny the third I-130 petition, the plaintiffs have failed to state a claim upon which relief can be granted because an agency appeal is still pending at the administrative level with respect to that petition and there is no "final" agency decision. Accordingly, it is ORDERED that the defendants' motion to dismiss [dkt # 8] is GRANTED. It is further ORDERED that the complaint is DISMISSED without prejudice. It is further ORDERED that the motion to stay removal [dkt # 4] is DENIED. | opinion_html_with_citations | 3,760 | 2013-10-30 09:03:38.680396+00 | 010combined | f | f | 2,312,561 | Lawson | null | LU | f | Published | 0 | Hanif v. Department of Homeland Security | Hanif | Kay Angela HANIF, Muhammad Hanif, Angel Nicole Hanif, Hamid Hussain, Aamir Hussain, Abrar Hussain Hanif, and Adnan Hussain Hanif, Plaintiffs, v. DEPARTMENT OF HOMELAND SECURITY, U.S. Citizenship and Immigration Services, and District Director Carol Jennifer, Defendants | null | null | <parties id="b954-11">
Kay Angela HANIF, Muhammad Hanif, Angel Nicole Hanif, Hamid Hussain, Aamir Hussain, Abrar Hussain Hanif, and Adnan Hussain Hanif, Plaintiffs, v. DEPARTMENT OF HOMELAND SECURITY, U.S. Citizenship and Immigration Services, and District Director Carol Jennifer, Defendants.
</parties><br><docketnumber id="b954-14">
No. 06-13641.
</docketnumber><br><court id="b954-15">
United States District Court, E.D. Michigan, Southern Division.
</court><br><decisiondate id="b954-18">
Jan. 16, 2007.
</decisiondate><br><attorneys id="b955-28">
<span citation-index="1" class="star-pagination" label="915">
*915
</span>
Herman S. Dhade, Steven M. Garmo, Garmo Assoc., Farmington Hills, MI, for Plaintiffs.
</attorneys><br><attorneys id="b955-29">
Steven P. Croley, U.S. Attorney’s Office, Detroit, MI, for Defendants.
</attorneys> | null | null | null | null | null | null | 2,142,446 | 06-13641 | 0 | mied | FD | t | E.D. Michigan | District Court, E.D. Michigan |
3,165,003 | [J-56A and J-56B-2014] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT SAYLOR, C.J., EAKIN, BAER, TODD, AND STEVENS, JJ. COMMONWEALTH OF PENNSYLVANIA, : No. 686 CAP : Appellant : Appeal from the Order entered on : 9/13/2013 in the Court of Common Pleas, : Criminal Division of Lehigh County at No. v. : CP-39-CR-0001114-2002 : : SUBMITTED: May 29, 2014 RAYMOND SOLANO, : : Appellee : COMMONWEALTH OF PENNSYLVANIA, : No. 687 CAP : Appellee : Appeal from the Order entered on : 9/13/2013 in the Court of Common Pleas, : Criminal Division of Lehigh County at No. v. : CP-39-CR-0001114-2002 : : SUBMITTED: May 29, 2014 RAYMOND SOLANO, : : Appellant : OPINION ANNOUNCING THE JUDGMENT OF THE COURT MR. JUSTICE EAKIN DECIDED: December 21, 2015 The Commonwealth appeals from the order granting Raymond Solano relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, in the form of a new penalty phase, based on trial counsel’s ineffectiveness for failing to present sufficient mitigating evidence. Solano cross-appeals from the portion of the same order denying him guilt-phase relief.1 We affirm. In 2003, a jury convicted Solano of first-degree murder for the shooting death of victim, who was playing basketball in a crowded park. After shooting victim repeatedly, Solano fled, but then turned around and shot toward the crowded park where victim lay; several casings were recovered from adjacent streets, and one bullet entered a nearby home. Based on this evidence, the jury found the grave-risk aggravating circumstance, 42 Pa.C.S. § 9711(d)(7) (in commission of offense, defendant knowingly created grave risk of death to another person in addition to victim), was established. The jury found the catch-all mitigating circumstance, id., § 9711(e)(8) (any other evidence of mitigation concerning defendant’s character, record, and circumstances of offense), was established, based on evidence of Solano’s childhood environment and lack of nurturing. The jury determined the aggravator outweighed the mitigator, and sentenced Solano to death. See id., § 9711(c)(1)(iv). This Court affirmed on direct appeal, and the United States Supreme Court denied certiorari. Solano v. Pennsylvania, 127 S. Ct. 2247 (2007). Solano timely filed a pro se PCRA petition and received appointed counsel, who filed an amended petition raising claims of ineffective assistance of counsel, 2 1 The facts of the underlying crimes are detailed in our disposition of Solano’s direct appeal. See Commonwealth v. Solano, 906 A.2d 1180 , 1184-86 (Pa. 2006). 2 Since Solano’s direct appeal and PCRA petition were filed after Commonwealth v. Grant, 813 A.2d 726 , 738 (Pa. 2002) (overruling rule in Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977), that ineffectiveness claims had to be raised at first opportunity where defendant has new counsel, and instead holding defendant should wait to raise claims of trial counsel’s ineffectiveness on collateral review), he was not required to “layer” his claims by alleging appellate counsel’s ineffectiveness. Although Solano layered his PCRA claims to include allegations of appellate counsel’s ineffectiveness, the (continuedH) [J-56A-2014 and J-56B-2014] - 2 prosecutorial misconduct, and trial court error. Following a hearing, the PCRA court denied Solano’s guilt-phase claims but awarded him a new penalty phase, holding trial counsel was ineffective for failing to investigate, develop, and present mitigating evidence of the cognitive and psychological impact of Solano’s traumatic and abusive childhood. See PCRA Court Opinion, 12/30/11, at 35-43. The Commonwealth appealed from the grant of a new penalty phase, and Solano cross-appealed from the denial of his guilt-phase claims. Our standard of review and the prerequisites for PCRA relief are well settled: “In addressing the grant or denial of post-conviction relief, an appellate court will consider whether the PCRA court’s conclusions are supported by record evidence and are free of legal error.” Commonwealth v. Williams, 597 Pa. 109 , 950 A.2d 294 , 299 (Pa. 2008) (citations omitted). To be entitled to PCRA relief, a petitioner must establish, by a preponderance of the evidence, his conviction or sentence resulted from one or more of the errors found in 42 Pa.C.S. § 9543(a)(2), his claims have not been previously litigated or waived, id., § 9543(a)(3), and “the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.” Id., § 9543(a)(4). An issue is previously litigated if “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue ....” Id., § 9544(a)(2). An issue is waived “if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal, or in a prior state postconviction proceeding.” Id., § 9544(b). Commonwealth v. Keaton, 45 A.3d 1050 , 1060 (Pa. 2012). We will first address Solano’s issues, as most of them pertain to the guilt phase; if relief is due on any guilt-phase claim, we would not reach the Commonwealth’s penalty-phase claim. (Hcontinued) PCRA court properly based its rulings on trial counsel’s performance, and our review focuses on the same. [J-56A-2014 and J-56B-2014] - 3 Solano’s Issues Solano raises 11 issues, none of which have been previously litigated or waived. Five of these claims focus on trial counsel’s alleged ineffectiveness in conducting the guilt-phase investigation,3 failing to impeach certain witnesses or object to prejudicial testimony, and failing to challenge last-minute presentation of eyewitness testimony; another claim alleges trial counsel’s ineffectiveness in connection with the application of the (d)(7) aggravator. Solano also claims trial counsel, who was from the public defender’s office, labored under a conflict of interest because the same office simultaneously represented two of the alternative murder suspects on unrelated matters. In two issues, Solano alleges misconduct by the Commonwealth, and in another, he argues the PCRA court erred in dismissing his claim of newly discovered evidence. Finally, Solano alleges the cumulative effect of the errors in his case entitle him to a new trial. See Solano’s Brief, at 1-2. Upon review of the record, we find support for the PCRA court’s conclusions, which are free of legal error. I. Guilt-Phase Claims Most of Solano’s guilt-phase claims pertain to counsel’s alleged ineffectiveness. To be entitled to relief on an ineffectiveness claim, [Solano] must prove the underlying claim is of arguable merit, counsel’s performance lacked a reasonable basis, and counsel’s ineffectiveness caused him prejudice. Commonwealth v. Pierce, 567 Pa. 186 , 786 A.2d 203 , 213 (Pa. 2001); see also Commonwealth v. Pierce, 515 Pa. 153 , 527 A.2d 973 (Pa. 1987).4 Prejudice in the context of ineffective assistance of counsel means demonstrating there is a reasonable probability that, but for counsel’s error, the outcome of the proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299 , 724 A.2d 326 , 332 (Pa. 1999). This standard is 3 Solano was represented by different counsel at the guilt and penalty phases. 4 See Strickland v. Washington, 466 U.S. 668 , 687 (1984) (enunciating “performance and prejudice” test by which to assess counsel’s stewardship). [J-56A-2014 and J-56B-2014] - 4 the same in the PCRA context as when ineffectiveness claims are raised on direct review. Id. Failure to establish any prong of the test will defeat an ineffectiveness claim. Commonwealth v. Basemore, 560 Pa. 258 , 744 A.2d 717 , 738 n.23 (Pa. 2000) (citing Commonwealth v. Rollins, 558 Pa. 532 , 738 A.2d 435 , 441 (Pa. 1999) (ordinarily, post-conviction claim of ineffective assistance of counsel may be denied by showing petitioner’s evidence fails to meet any one of three prongs for claim)). Keaton, at 1060-61 (footnote in original; renumbered). A. Counsel’s failure to investigate/present evidence supporting defense theory of case Solano claims guilt-phase counsel was ineffective for failing to conduct a thorough investigation of evidence supporting the defense’s theory that the shooting was gang related, committed by one of victim’s rival-gang members, Alexis Concepcion. Solano contends information contained in police reports and a newspaper article, of which counsel was aware, would have alerted counsel to the fact that the shooting was in retaliation for the robbery of Concepcion by victim’s gang, and that Concepcion was charged in another shooting occurring two years earlier. Solano notes police recovered from victim’s car a blue hooded sweatshirt bearing victim’s nickname and the acronym for a local gang. He argues this information should have been used to impeach Detective Wayne Simock’s testimony that the shooting was not gang related. Solano further contends counsel should have impeached the detective with the affidavit of probable cause for Solano’s arrest, in which the detective stated there was reason to believe victim was in a gang. Solano also notes the newspaper article contained information about two potential witnesses, George Williams and Patrick Price, whose testimony would have linked Concepcion and one of his fellow gang members, Catalino Morales, to the murder; Solano argues this evidence would have cast further doubt on the Commonwealth’s case, particularly on its contention the shooting was not gang related. [J-56A-2014 and J-56B-2014] - 5 Solano also claims counsel should have used the ballistics expert he retained to analyze whether the same person fired both guns used in the shooting.5 It was the Commonwealth’s position that the same shooter fired both weapons; however, an expert Solano presented at the PCRA hearing testified the guns were not fired by the same person, given the witnesses’ accounts of where the shooter ran, where he was last seen firing shots, and where the different shell casings were found. Solano argues such testimony would have diminished the credibility of the Commonwealth’s case.6 While 5 Counsel retained a ballistics expert only to confirm the two weapons police seized when they arrested Solano were the ones used in the murder. 6 When the initial briefs in this case were filed, Solano raised a related claim concerning the applicability of the grave-risk aggravating circumstance, claiming penalty-phase counsel was ineffective for failing to investigate and present evidence that a second shooter, not Solano, was responsible for the grave risk to others. He also contended penalty-phase counsel was ineffective for failing to object or request a limiting instruction when the prosecutor presented evidence beyond the limited scope of the aggravator. We remanded the case to the PCRA court to file a supplemental opinion fully addressing certain issues not addressed in its initial opinion. On remand, the PCRA court found counsel’s failure to introduce evidence regarding a second shooter in the penalty phase prejudiced Solano and thus was an additional ground for relief. PCRA Court Supplemental Opinion, 8/23/13, at 9-10. The parties filed new appeals and supplemental briefs, in which the Commonwealth challenged the PCRA court’s finding that penalty-phase counsel was ineffective in connection with the grave-risk aggravator. Solano now contends, in light of the PCRA court’s finding that evidence regarding a second shooter may well have resulted in a different penalty-phase verdict, the potential impact of such evidence on the guilt phase must be re-examined; he contends the PCRA court’s finding he was not prejudiced in the guilt phase was flawed because it “credited” the evidence regarding two shooters in its supplemental opinion. Solano’s Supplemental Brief, at 8. However, the PCRA court did not make a credibility finding regarding such evidence; rather, it simply stated that had the jury considered testimony casting doubt on who put persons other than victim at grave risk of harm, the jury may not have found the aggravator to be established, which would have changed the sentence to life imprisonment. See PCRA Court Supplemental Opinion, 8/23/13, at 9-10. This does not equate to a finding there were two shooters, nor does it affect the result at the guilt phase, because, as the PCRA court noted, “the presence of a second shooter firing shots toward the crowded park would not have exculpated [Solano] from his role in killing (continuedH) [J-56A-2014 and J-56B-2014] - 6 acknowledging the resources available to counsel were limited, Solano argues counsel did not fully utilize his investigator and primarily relied on the Commonwealth to provide him with information about the case. The Commonwealth argues Solano’s assertions that counsel was lax in his preparation of this case are belied by the record; Solano’s case was counsel’s primary focus, and he met with his client weekly, used two investigators, and interviewed witnesses. Despite counsel’s reminders of the importance of providing information to assist in trial preparation, Solano frequently failed to give counsel complete details, and the limited information he disclosed often proved untrue. In light of the sketchy information Solano provided, the Commonwealth asserts counsel made a tactical decision to argue the shooting was gang related and Solano was not a gang member, was not present, and thus had no motive or opportunity to commit the crime. Regarding whether counsel should have presented evidence linking Concepcion to the shooting, the Commonwealth notes that to the extent Solano claims counsel should have called the witnesses whose statements in the police reports indicated Concepcion was angry with victim, these witnesses were not presented at the PCRA hearing; thus, Solano cannot prove they were willing and available to testify at trial. The Commonwealth also points out counsel, after interviewing Concepcion, made a reasonable, strategic decision not to call him to testify because he told counsel Solano was one of his best friends and had agreed to help him because Solano held a grudge against those who robbed Concepcion; according to Concepcion, these men had also (Hcontinued) [victim] on the basketball court[.]” Id., at 10. As discussed infra, numerous eyewitnesses identified Solano as the person who shot victim; therefore, any evidence of a second shooter subsequently firing into the crowd was irrelevant to Solano’s guilt for the murder. Accordingly, this claim lacks merit. [J-56A-2014 and J-56B-2014] - 7 assaulted Solano’s younger brother. The Commonwealth concludes counsel wisely decided not to try to link the murder to this potentially damaging witness. Regarding Williams and Price as potential witnesses, the Commonwealth notes counsel testified he determined Williams would not have been helpful after interviewing Concepcion, who told counsel and police that Solano admitted to killing victim;7 indeed, Williams testified at the PCRA hearing that he likely would not have spoken with counsel had he been contacted prior to trial. The Commonwealth asserts the version of events Williams gave at the PCRA hearing did not exculpate Solano but merely established Morales, Concepcion’s fellow gang member, went out with two guns 15 minutes before shots were heard; Williams did not see who fired any of the shots or, most significantly, who shot victim. The Commonwealth argues Price’s version of events conflicts with Williams’s and Morales’s, is incredible, and would not have changed the trial’s outcome. The Commonwealth contends counsel’s failure to have the ballistics expert analyze whether there were one or two shooters was not fatal to Solano’s case in light of the numerous witnesses who testified they saw Solano shoot victim and retreat in the direction he came from, firing into the crowd. The Commonwealth further notes Solano’s expert at the PCRA hearing conceded there could have been one shooter using two guns; thus, the expert’s testimony would not have altered the verdict. The Commonwealth also points out the jury heard eyewitness testimony that more than one person was thought to have fired a gun; therefore, the notion there may have been two shooters was before the jury. In light of the fact multiple witnesses identified Solano as the one who shot victim, however, the Commonwealth reasons that whether a second 7 When counsel disclosed he had interviewed Concepcion and determined he would not be helpful as a witness, Solano told him not to interview Williams because he likewise would not be helpful. Thus, counsel did not interview Williams. [J-56A-2014 and J-56B-2014] - 8 person fled with Solano and fired the additional shots was irrelevant to the issue of Solano’s guilt. The PCRA court aptly noted the question was not whether counsel lacked adequate resources to investigate and prepare for trial, but whether additional resources were required such that counsel should have requested them. PCRA Court Opinion, 12/30/11, at 30-31. The court acknowledged counsel hired a ballistics expert and a psychologist; however, additional paths counsel could have pursued were foreclosed by Solano’s lack of cooperation and refusal to disclose the “whole story” to counsel, particularly where he was at the time of the murder.8 PCRA Court Opinion, 12/30/11, at 31. Thus, the court concluded “[Solano] c[ould ]not benefit from his own obstinacy or misleading of his trial counsel.” Id. (citations omitted). The court further found counsel’s failure to interview Williams was at Solano’s behest, noting Williams testified at the PCRA hearing that he probably would not have spoken to counsel or testified even if counsel had contacted him. Id., at 11-12. The court also reasoned Williams’s account of the shooting did not exculpate Solano, as it merely indicated Morales left with two guns 15 minutes before the shots were heard; this did not preclude the possibility Morales could have furnished the guns to Solano after leaving. Id., at 12. The court found Price’s testimony — that he was on the phone with Williams at the time of the shooting and was told Morales was shooting someone — conflicted with Williams’s account, which did not include being on the phone at all. Id., at 13. Additionally, Price’s claim that he accompanied Morales and Concepcion to Indiana after the crime and Morales told him he was the shooter conflicted with Morales’s assertion that only Concepcion accompanied him. Id. Finally, the court noted in addition to being incredible, Price’s version of events 8 Solano gave conflicting information about his whereabouts at the time of the shooting, telling counsel he was in New Jersey but constantly changing the facts and details, and ultimately testified he was in Connecticut. See N.T. PCRA Hearing, 1/27/10, at 94-96. [J-56A-2014 and J-56B-2014] - 9 did not account for Solano’s whereabouts the day of the murder and thus could not exculpate him. Id. Accordingly, the PCRA court held Solano failed to show the outcome of his trial would have differed had the proffered testimony been presented, especially in light of multiple eyewitness testimony identifying Solano as the shooter. Id., at 14, 16. In ruling on Solano’s claim that counsel should have pursued additional ballistics evidence in support of the “two shooter” theory, the PCRA court stated the presence of an additional shooter, if proven, would not have exonerated Solano, as the eyewitness testimony established he shot victim. Id., at 19-20. Additionally, the court noted the expert Solano retained for the PCRA hearing conceded one shooter could have possibly fired both weapons, although his analysis posited a separate shooter had fired each gun involved in the incident. Id., at 20. Accordingly, the court held Solano was not prejudiced by counsel’s failure to further challenge the Commonwealth’s ballistics evidence. Id. Our review of the record confirms the PCRA court’s conclusions are supported by the record and free of legal error. To prevail on a claim that counsel was ineffective for failing to call witnesses, Solano must demonstrate: (1) the witnesses existed; (2) the witnesses were available to testify; (3) counsel knew, or should have known, the witnesses existed; (4) the witnesses were willing to testify; and (5) the absence of the witnesses’ testimony was so prejudicial that it denied Solano a fair trial. See Commonwealth v. Sneed, 45 A.3d 1096 , 1109 (Pa. 2012). Solano fails to make this showing. Although guilt-phase counsel admitted the defense did not “d[i]g up” any of its own witnesses, but instead used the Commonwealth’s witnesses to gain information, N.T. PCRA Hearing, 1/27/10, at 21-23, counsel stated Solano kept changing his story every [J-56A-2014 and J-56B-2014] - 10 time they spoke and was “always holding back stuff,” id., at 118; see also id., at 95-96, 100-01. The only potential witness Solano told counsel about was a cousin’s girlfriend, who had already told police Solano was not out of state, as he claimed, at the time of the murder. Id., at 94-95, 102-03. When counsel learned at the PCRA hearing of the substance of Williams’s purported testimony, he stated he would have loved to have presented it at trial, id., at 170; however, after counsel talked to Concepcion and told Solano he would not be helpful, Solano told counsel not to “bother” with Williams, so counsel “backed off,” id., at 166-67, 172. Furthermore, Williams’s PCRA hearing testimony was equivocal regarding whether he would have testified at trial, had counsel contacted him. See id., 1/29/10, at 159-61. Counsel did interview Morales and called him as a trial witness, but he asserted his Fifth Amendment privilege. Counsel hired a ballistics expert and a psychologist as part of his pre-trial investigation, and he called a police detective to testify regarding two witnesses’ accounts that there were multiple shooters at the incident. Counsel also presented the testimony of Solano, who claimed to be in Connecticut the day of the shooting and implicated Morales as the culprit. Counsel’s defense theory was Solano had no motive to commit this gang-related shooting, and — with the limited information Solano gave him — he did his best to cast doubt on the Commonwealth’s case through cross-examination. See Commonwealth v. Fears, 836 A.2d 52 , 72 (Pa. 2003) (reasonableness of counsel’s stewardship depends, in critical part, upon information supplied by defendant). Accordingly, we conclude guilt-phase counsel acted reasonably in both his pre-trial investigation and preparation, as well as at trial. “A petitioner is not entitled to relief because counsel’s trial strategy was unsuccessful; when the course chosen was reasonable, counsel cannot be faulted for failing to pursue a different path.” Commonwealth v. Fisher, 813 A.2d 761 , 767 (Pa. 2002) (citation omitted); see also Commonwealth v. Dunbar, 470 A.2d 74 , 77 (Pa. 1983) [J-56A-2014 and J-56B-2014] - 11 (test is not whether other alternatives were more reasonable, employing hindsight evaluation of record). Alternatively, we agree with the PCRA court that Solano cannot show he was prejudiced by counsel not conducting further investigation and calling additional witnesses. Regarding Solano’s claim pertaining to ballistics evidence, we note although counsel acknowledged at the PCRA hearing that he would have wanted to present independent expert testimony to cast doubt on the Commonwealth’s “one shooter, two guns” theory, see N.T. PCRA Hearing, 1/27/10, at 93-94, he testified the findings of his ballistics expert corroborated those of the Commonwealth’s expert and would actually have matched even more casings to the guns recovered, id., at 152-53; thus, he did not call his expert to testify. See Commonwealth v. Wright, 961 A.2d 119 , 155 (Pa. 2008) (where witness’s testimony would have been cumulative and not changed trial’s result, counsel not ineffective for failing to call her). We conclude this decision was reasonable and, in the alternative, agree with the PCRA court that the absence of defense expert ballistics testimony in support of the “second shooter” theory did not prejudice Solano, as he had already been identified as the primary shooter.9 B. Conflict of interest Solano asserts the public defender’s office, which represented him at trial and on direct appeal, labored under a conflict of interest because it simultaneously represented 9 Regarding Solano’s claim that counsel should have called several witnesses (i.e., Vanessa Martinez, Norman Cruz, and Ivette Gutierrez) whose statements in police reports indicated Concepcion was angry with victim and thus supported the theory the shooting was gang related, we note Solano did not present these witnesses at the PCRA hearing; thus, he failed to prove they were willing and available to testify at trial. As for the blue hooded sweatshirt bearing gang insignia that Solano claims was found in victim’s car and Solano’s arrest affidavit that stated victim was a gang member, we conclude, as further discussed in Part I, Issue D., infra, Solano has not shown, but for counsel’s failure to impeach Detective Simock with this information, he would have been found not guilty. [J-56A-2014 and J-56B-2014] - 12 Morales and Concepcion — two alternative suspects in his case — without informing him. The public defender’s office began representing Solano in 2001, and he was tried and sentenced in May, 2003. The same office represented Morales (who had been its client since 1994) from January 29, 2003, through April 23, 2003, one month before Solano’s trial. The office represented Concepcion on four cases from December 26, 2001, until two of the cases were discontinued March 19, 2003,10 less than two months before Solano’s trial; representation on the remaining two cases continued until June 23, 2003, after the conclusion of Solano’s trial. Solano argues the public defender’s office’s representation of these individuals prevented guilt-phase counsel from presenting evidence and arguing to the jury that these two were the actual perpetrators who had the motive and opportunity to commit the murder. Solano highlights counsel’s PCRA testimony that he suspected both men were involved in victim’s murder. See N.T. PCRA Hearing, 1/27/10, at 67. Solano contends this conflict of interest so adversely affected counsel’s performance that he was effectively denied counsel and a fair trial. The Commonwealth asserts the mere fact the public defender’s office represented Morales and Concepcion in addition to Solano does not establish a conflict; Solano must show an actual conflict existed. The Commonwealth further asserts Solano has not demonstrated any potential or actual prejudice resulting from the alleged conflict. The PCRA court held Solano’s conflict of interest claim was abandoned because he failed to raise it in his briefs filed after the PCRA hearing and thus did not indicate how the record supported his contention. PCRA Court Supplemental Opinion, 8/23/13, at 2-3 n.1. Solano raised this claim in his PCRA petition, see Amended PCRA Petition, 1/23/09, at 61; Corrected Amended PCRA Petition, 2/3/09, at 58-59, and avers he 10Concepcion was cooperating with authorities in petitioner’s case from September, 2001 until March, 2003. [J-56A-2014 and J-56B-2014] - 13 preserved it in his post-hearing brief. The brief only addressed claims that were the subject of the PCRA hearing, which did not include the conflict issue; however, Solano asserts he incorporated the issue by reference in a general statement: “‘Petitioner incorporates by reference all other pleadings, submissions, factual assertions, legal arguments and claims previously submitted to this [c]ourt in support of post-conviction relief. Although such other claims H are not addressed in this [b]rief, [p]etitioner reasserts each of them[.]’” Solano’s Supplemental Brief, at 21 (quoting Solano’s Corrected Post-Hearing Brief, 11/10/10, at 2).11 This Court has disapproved of advocacy that incorporates arguments by reference. See Commonwealth v. Perez, 93 A.3d 829 , 837 (Pa. 2014); Commonwealth v. Briggs, 12 A.3d 291 , 342-43 (Pa. 2011) (citations omitted) (rejecting appellant’s attempt to incorporate by reference brief authored by different counsel on post-sentence motion). Here, even if Solano had properly developed the issue in his post-PCRA-hearing brief, we conclude he has not established a meritorious issue. To establish an actual conflict of interest hampered counsel, Solano must show counsel actively represented conflicting interests and the conflict adversely affected counsel’s performance. See Commonwealth v. Padilla, 80 A.3d 1238 , 1248 (Pa. 2013) (citations omitted). Beyond bald assertions that the public defender’s office represented him, Morales, and Concepcion during overlapping time periods,12 Solano offers nothing to show an actual conflict hindered trial counsel’s performance. See Commonwealth v. Sepulveda, 55 A.3d 1108 , 1147 (Pa. 2012) (noting mere existence of overlap in representation did not prove counsel’s actions, although troubling, adversely affected his representation of defendant). Counsel interviewed both Morales and Concepcion, 11 Solano’s Corrected Post-Hearing Brief is not found in the record. 12 Obviously, the better course would have been to appoint other counsel. [J-56A-2014 and J-56B-2014] - 14 intending to call them as witnesses; however, Concepcion proved to be more potentially harmful than helpful and thus was not called, and Morales invoked his Fifth Amendment privilege. Counsel cannot be faulted because these men ultimately were not helpful to Solano’s case, and nothing in the record shows counsel’s pursuit of the theory that Solano lacked motive to commit the crime was hamstrung by his office’s representation of the others. Accordingly, this claim is meritless. C. Brady claim Solano claims the Commonwealth failed to disclose favorable evidence that was material to his guilt or sentencing, in violation of Brady v. Maryland, 373 U.S. 83 , 87 (1963) (prosecution’s suppression of evidence favorable to accused upon request violates due process where evidence is material to guilt or punishment, irrespective of good faith or bad faith of prosecution). Solano claims, with respect to eyewitness Carlos Carrasquillo, 13 the Commonwealth failed to disclose a plea agreement the witness entered into in exchange for his testimony. Carrasquillo faced gun and drug charges in federal court, to which he pled guilty the day after he testified against Solano. In the sentencing memorandum and sentencing order for Carrasquillo, both the prosecution and the federal district court referenced his cooperation in Solano’s case as the basis for imposing a lesser sentence. Solano claims guilt-phase counsel could have used this information on cross-examination of Carrasquillo to undermine his credibility. Regarding Concepcion, although guilt-phase counsel determined he would not be a good defense witness, the Commonwealth initially planned to use him to testify — according to his initial police statement — he hired Solano and Morales to kill victim in retaliation for the robbery and beating victim’s gang inflicted on Concepcion; however, 13Although Carrasquillo did not directly identify Solano as the shooter, the description he gave corroborated other eyewitnesses’ identifications, matching Solano’s physical characteristics. [J-56A-2014 and J-56B-2014] - 15 Concepcion retracted this version of the crime in a subsequent police interview, instead placing the blame solely on Solano, who he claimed killed victim in retaliation for victim’s gang assaulting Solano’s brother. The prosecutor in Concepcion’s federal case 14 testified at the PCRA hearing that the federal government had agreed to seek a lesser sentence for him in exchange for his testimony against Solano. However, the prosecutor informed the federal court by letter that, because of Concepcion’s inconsistent versions of events, he was not a reliable, useful witness against Solano and thus no lesser sentence would be recommended. Solano claims the Commonwealth should have disclosed Concepcion pled guilty in federal court four months before Solano’s trial. Solano further argues had guilt-phase counsel known about the plea agreement and the letter, he could have used this information to cast doubt on the Commonwealth’s “single shooter” theory of the case, as well as impeach Detective Simock’s testimony that the shooting was not gang related and suggest a perpetrator other than Solano.15 Thus, Solano claims, even though Concepcion did not testify, counsel’s preparation for trial was adversely impacted by not having the information about his plea and police statements. The Commonwealth asserts there was no evidence of any plea agreement with Carrasquillo and the fact he received a lesser federal sentence does not automatically prove an agreement existed. The Commonwealth further asserts, even if there was an agreement, Solano cannot establish he was prejudiced by its nondisclosure; Carrasquillo’s identification testimony was corroborated by numerous other eyewitnesses, and counsel impeached him for bias on cross-examination by referring to 14A county assistant district attorney who was specially deputized to prosecute county cases that went to federal court prosecuted Concepcion’s case. 15Solano argues had counsel known Concepcion was not going to testify, counsel would have used Concepcion’s initial police statement to suggest he, not Solano, was the shooter. [J-56A-2014 and J-56B-2014] - 16 his federal charges. Regarding Concepcion, the Commonwealth asserts there was no evidence of any plea agreement, and even had there been one, Solano cannot demonstrate it was material evidence because Concepcion did not testify. The Commonwealth again emphasizes the numerous identification witnesses who testified, pointing out any assertion that Concepcion was the perpetrator would have been flatly contradicted by these witnesses, who either directly identified Solano or gave a description of the shooter that matched Solano’s characteristics. The PCRA court held the evidence showed nothing more than federal prosecutors apparently told Carrasquillo his cooperation would be made known to the federal sentencing judge; there was nothing to prove any quid pro quo agreement between Carrasquillo and the Commonwealth that he would receive leniency in his federal sentence if he testified. PCRA Court Opinion, 12/30/11, at 22-24. The PCRA court noted there was no credible evidence establishing Carrasquillo had a plea agreement; to the contrary, the prosecutor credibly testified no agreement ever existed. Id., at 24. Finally, the PCRA court reasoned even if there had been an agreement, its nondisclosure was harmless error, as guilt-phase counsel cross-examined Carrasquillo regarding his pending federal charges, and his testimony was corroborative of other eyewitnesses who positively identified Solano. Id., at 24-25. Regarding Concepcion, the PCRA court, referencing the prosecutor’s letter to the federal court, held the Commonwealth had a duty to disclose the arrangement with Concepcion as long as he was going to testify at trial; however, once he was no longer going to testify, there was no Brady violation. Id., at 28. The court further held Concepcion’s conflicting statements to police concerning the identity of the shooter and the alleged motive would not have aided Solano’s case; rather, because such statements [J-56A-2014 and J-56B-2014] - 17 would have inculpated Solano and explained his motive for the shooting, they were not exculpatory. Id. Under Brady, “a prosecutor has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature.” Commonwealth v. Spotz, 18 A.3d 244 , 275-76 (Pa. 2011) (citation omitted). To establish a Brady violation, appellant must demonstrate: the evidence at issue was favorable to him, because it was either exculpatory or could have been used for impeachment; the prosecution either willfully or inadvertently suppressed the evidence; and prejudice ensued. Id., at 276 (citation omitted). “The evidence at issue must have been ‘material evidence that deprived the defendant of a fair trial.’ ... ‘Favorable evidence is material ... if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Id. (citations omitted). Commonwealth v. Walker, 36 A.3d 1 , 9 (Pa. 2011) (omissions in original). We find the PCRA court’s conclusions to be supported by the record. Solano did not present Carrasquillo as a witness at the PCRA hearing. At trial, Carrasquillo denied on cross-examination having been promised “a better deal” if he cooperated with Solano’s prosecution. N.T. Trial, 5/21/03, at 127. The prosecutor testified at the PCRA hearing that Carrasquillo was not offered any kind of benefit for his testimony, see N.T. PCRA Hearing, 2/4/10, at 68, 145-53, and the PCRA court found this credible, see Commonwealth v. Dennis, 17 A.3d 297 , 305 (Pa. 2011) (PCRA court’s credibility findings are to be accorded great deference, and where record supports such determinations, they are binding on reviewing court (citations omitted)). As the PCRA court noted, the fact Carrasquillo received favorable treatment in his federal sentencing after testifying against Solano does not establish there was an agreement; all Solano has demonstrated was that Carrasquillo’s cooperation was taken into consideration by the sentencing court — something any testifying witness with pending charges hopes will happen. See Commonwealth v. Chmiel, 30 A.3d 1111 , 1131 (Pa. 2011) (holding mere conjecture as to [J-56A-2014 and J-56B-2014] - 18 understanding between prosecution and witness is insufficient to establish Brady violation); Commonwealth v. Williams, 863 A.2d 505 , 515-16 (Pa. 2004) (no relief due on uncorroborated claim that witness agreed to testify in exchange for Commonwealth’s nolle prossing charges against him; other than own assertion, appellant provided no support for allegation). Furthermore, in light of the other identification witnesses who offered testimony nearly identical to Carrasquillo’s, Solano fails to prove the result at trial would have differed had counsel been able to impeach Carrasquillo with evidence of a deal. See Spotz, at 276 (favorable evidence is material if there is reasonable probability that, had it been disclosed, result of trial would have differed). Thus, Solano’s claim regarding Carrasquillo also fails. Regarding Solano’s claim that the Commonwealth’s failure to disclose Concepcion’s plea agreement hampered counsel’s trial preparation, we agree with the PCRA court that little would have been gained — much less the result at trial having differed — had counsel known of the plea agreement and had access to Concepcion’s police statements. Since Concepcion did not testify, there was no need to present the plea agreement as impeachment evidence. Additionally, any suggestion that Conception was the shooter would have been contradicted by the trial testimony of numerous eyewitnesses who identified Solano or gave descriptions matching Solano’s physical characteristics. Finally, as we observed in Commonwealth v. Williams, 105 A.3d 1234 (Pa. 2014), “The United States Supreme Court has never held Brady materiality is measured in terms of ‘effects on the defense strategy.’” Id., at 1244 (citing Commonwealth v. Weiss, 81 A.3d 767 , 810-11 (Pa. 2013) (Castille, C.J., concurring, joined by Eakin, J.)). Accordingly, Solano’s claim regarding Concepcion fails. [J-56A-2014 and J-56B-2014] - 19 D. Counsel’s failure to impeach allegedly perjured testimony by detective Solano claims Commonwealth witness Detective Simock committed perjury at trial by testifying victim was not a gang member and had no criminal history, see N.T. Trial, 5/27/03, at 135, when Detective Simock had previously offered a sworn affidavit of probable cause in support of Solano’s arrest stating victim belonged to a gang and had a juvenile record. He argues the prosecutor’s failure to correct this perjured testimony, as well as the emphasis on it in closing argument, constituted misconduct that violated his due process rights and denied him a fair trial. He further contends guilt-phase counsel was ineffective for failing to object to or impeach this testimony, which undermined the defense’s theory the shooting was gang related. Specifically, Solano points to the affidavit of probable cause for his arrest, completed by Detective Simock the day after the murder, which stated he had received information that victim belonged to a gang; he also referenced the sweatshirt bearing gang insignia and victim’s name, recovered from victim’s car, and mentioned victim’s juvenile record. Solano claims counsel had access to all of this evidence and should have used it to impeach the detective. The Commonwealth asserts Detective Simock’s and the prosecutor’s PCRA testimony provided a reasonable explanation for the detective’s trial testimony and the prosecutor’s closing argument — i.e., although victim was suspected of being in a gang, there was no actual evidence of such, and the detective’s comment regarding victim’s lack of criminal record was in reference to him as an adult. Additionally, the prosecutor testified at the PCRA hearing that he had no reason to believe the detective’s trial testimony was inaccurate; in fact, at least four other witnesses also testified victim was not a gang member. Thus, there was no perjured testimony and no prosecutorial misconduct. Alternatively, the Commonwealth asserts even if counsel had impeached the detective with the affidavit and other evidence, multiple other witnesses, including [J-56A-2014 and J-56B-2014] - 20 victim’s friends, testified he was not in a gang; thus, the result at trial would not have differed. The PCRA court credited Detective Simock’s PCRA testimony that he meant to state in the affidavit that victim associated with gang members but was not one himself, and what he meant at trial was that victim had no adult criminal record. Additionally, the court noted although earlier records indicated the prosecution had information suggesting victim was in a gang, as the investigation progressed, the prosecution’s theory and understanding of events changed; therefore, the difference in the Commonwealth’s theory of the case at trial from what its original theory had been “cannot be reasonably understood to rise to the level of misconduct so as to deprive [Solano] of a fair trial.” PCRA Court Opinion, 12/30/11, at 29. The court noted any discrepancy in an officer’s trial testimony from earlier sworn statements was a topic for cross-examination, but that here, where the issue lacked materiality, counsel’s failure to cross-examine did not prejudice Solano’s trial. Id., at 30. Our review of the record supports the PCRA court’s findings. Detective Simock provided credible explanations for his statement in the affidavit and his trial testimony; additionally, he stated there was no proof the sweatshirt or the car in which it was found belonged to victim. See N.T. PCRA Hearing, 2/2/10, 69-72, 121-24, 163-66, 211. The prosecutor also credibly testified his office’s investigation of the case did not reveal independent evidence that victim was a gang member; thus, this was not a theory the prosecution pursued. See id., 2/4/10, at 95-100. We will not disturb the PCRA court’s credibility findings. See Dennis, at 305. Based upon the foregoing testimony, it is apparent Detective Simock’s testimony was not perjured and there was no prosecutorial misconduct. Furthermore, impeaching Detective Simock with the evidence Solano mentions would not have changed the outcome of the trial, in light of the trial testimony [J-56A-2014 and J-56B-2014] - 21 from other witnesses that victim was not in a gang, see N.T. Trial, 5/21/03, at 125, 216; id., 5/22/03, at 24, and the detective’s credible PCRA hearing testimony that, had he been confronted with the affidavit, he would have offered a reasonable explanation for the inconsistency between it and his trial testimony. Thus, counsel was not ineffective for failing to impeach the detective in the manner Solano suggests. E. Counsel’s failure to challenge Commonwealth’s anticipated last-minute presentation of eyewitnesses Solano claims guilt-phase counsel was ineffective for failing to prevent Israel Aquino’s and Francisco Rosario’s identification testimony from being admitted at trial; he further claims counsel was ineffective for failing to object and request a cautionary instruction regarding the identifications. When the prosecutor met with counsel before trial, he told counsel although only Jose Aquino, Israel’s brother, had positively identified Solano at that time, he would not be surprised if other witnesses, who were presently afraid to implicate Solano, identified him at trial. This is what happened when Israel Aquino and Rosario took the stand. Solano contends, based upon this exchange with the prosecutor prior to trial, counsel should have requested a line-up, moved to preclude such identification testimony, and requested a jury instruction pursuant to Commonwealth v. Sexton, 400 A.2d 1289 , 1292-93 (Pa. 1979) (holding where defendant’s request for pre-trial identification is denied, remedy is jury instruction that defendant’s opportunity for more objective identification was denied, and subsequent in-court identification could be viewed with caution). Solano argues Israel Aquino’s and Rosario’s unreliable testimony 16 bolstered Jose Aquino’s questionable eyewitness testimony, 17 in a case 16 Solano points to Israel Aquino’s failure to select an individual from a previous photo array; Aquino selected two photos, but would not tell the detective who the individuals were. Solano further notes Rosario indicated in a police report that he was unable to identify the shooter because he did not see the shooter’s face; Rosario was never presented with a photo array or line-up. [J-56A-2014 and J-56B-2014] - 22 where eyewitness testimony was critical because no physical evidence linked Solano to the shooting. Thus, he claims counsel’s failure to challenge these witnesses’ in-trial identification of him, nearly two years after the shooting, prejudiced his case. The Commonwealth counters that, prior to trial, the prosecutor’s opining to counsel that he would not be surprised if additional witnesses identified Solano at trial did not merit a motion in limine; such motion would have been baseless and frivolous, as counsel could not presciently determine which testimony should be precluded. The PCRA court held: In the absence of any failure to disclose information under the applicable rules of procedure, let alone active concealment, by the Commonwealth, there is no basis to overturn the jury’s verdict simply because witnesses such as Israel Aquino and Francisco Rosario, who had other relevant testimony to offer, but prior thereto had not made any positive identification, broadened their testimony to implicate [Solano] once placed on the stand. PCRA Court Supplemental Opinion, 8/23/13, at 7. Thus, the court concluded counsel could not be ineffective for failing to raise a meritless claim. We agree with the PCRA court’s conclusion, which we find supported by the record. Prior to knowing which, if any, witnesses would identify Solano at trial, counsel’s attempt to preclude the introduction of such testimony or request a line-up would have been pointless. See Commonwealth v. Washington, 927 A.2d 586 , 603 (Pa. 2007) (citations omitted) (stating counsel will not be deemed ineffective for failing to raise meritless claim). Although the PCRA court did not address Solano’s claim concerning counsel’s failure to object or request a cautionary instruction once Israel Aquino and Rosario made in-court identifications, we note Solano simply asserts his case was (Hcontinued) 17 Solano argues Jose Aquino had only limited circumstances within which to view the perpetrator. He does not develop this argument in connection with this issue. [J-56A-2014 and J-56B-2014] - 23 prejudiced because identification testimony was crucial to the Commonwealth’s case, which is not enough to satisfy the third prong of Pierce, i.e., there is a reasonable probability that, but for counsel’s omission, the result at trial would have differed. See Kimball, at 332. Even without these eyewitnesses’ identification, other evidence pointed to Solano as the shooter. Jose Aquino unequivocally identified Solano both before and at trial, and several other witnesses, including Carrasquillo, gave consistent descriptions of the shooter and what he wore, which matched Solano’s characteristics. These witnesses testified the same person who shot victim also fired the shots into the crowd, thus supporting the Commonwealth’s theory of the case. Contrary to Solano’s contention that no physical evidence linked him to the crime, the ballistics evidence supported the conclusion that a single shooter fired both weapons used, and the casings and bullets recovered from the crime scene were fired from the same weapons police seized when they arrested Solano and Morales in Connecticut two weeks after the shooting. Thus, we agree counsel had a reasonable basis for not taking preemptive measures to preclude these two witnesses’ identification testimony, and Solano was not prejudiced by counsel’s failure to object or request a cautionary instruction when they testified. F. Counsel’s failure to impeach Commonwealth witnesses with prior crimen falsi convictions and potential bias or motive, and failure to request appropriate jury instructions Solano claims guilt-phase counsel should have impeached Commonwealth witnesses Carrasquillo and Julio Santiago with their prior crimen falsi convictions. He further claims counsel should have impeached Rosario and Santiago with their potential bias or motive to curry favor with the government due to their being on probation. Solano asserts counsel should have also impeached Rosario with a prior inconsistent [J-56A-2014 and J-56B-2014] - 24 statement. 18 Finally, Solano contends although Jose Aquino’s prior crimen falsi conviction for receiving stolen property was raised on direct examination by the prosecutor, guilt-phase counsel was ineffective for failing to request an appropriate jury instruction regarding this witness’s testimony. Solano argues counsel’s inactions prejudiced his case because impeachment of crucial identification witnesses was central to the defense. The Commonwealth contends that because the jury was informed of Carrasquillo’s prisoner status and Jose Aquino’s prior crimen falsi conviction, and Rosario testified he pled guilty to charges involving illegal possession of a gun, any further impeachment of these witnesses would have been cumulative. The Commonwealth also points out counsel vigorously cross-examined all witnesses, attempting to impeach them through various means; as their testimony was corroborated and the evidence of Solano’s guilt was overwhelming, counsel cannot be deemed ineffective for failing to take the measures Solano suggests. The PCRA court concluded “the omitted line of inquiry would [not] have provided more than merely a general assault upon the veracity of a witness by showing prior criminal behavior[,]” as opposed to “evidence directly relevant to the witneess’s [sic] motivation to offer false testimony on the particular fact at issue during trial.” PCRA Court Opinion, 12/30/11, at 17. Accordingly, the court held, as “there was nothing about the background of the Commonwealth’s witnesses that H would have directly refuted the 18 At trial, Rosario testified he chased after the shooter with his gun, but never fired because the gun malfunctioned; however, in his police statement, Rosario denied having a gun at the crime scene. Additionally, the Commonwealth’s ballistics expert found Rosario’s gun was operable. Solano argues counsel should have introduced this ballistics evidence to rebut Rosario’s testimony that the gun malfunctioned. Counsel attempted to impeach Rosario with his prior inconsistent statement on re-cross-examination, but the trial court precluded such questioning as being beyond the scope of redirect examination. [J-56A-2014 and J-56B-2014] - 25 Commonwealth’s theory of the case or significantly undermined the truthfulness of the version of the facts in the case at hand[,]” id., at 19, the requisite degree of prejudice was not present so as to warrant a new trial. Regarding counsel’s failure to request a jury instruction on Jose Aquino’s crimen falsi conviction, the PCRA court held counsel’s thorough cross-examination of this witness, coupled with the other overwhelming evidence of Solano’s guilt, rendered any error by counsel in failing to request an instruction harmless. PCRA Court Supplemental Opinion, 8/23/13, at 3. It is well settled “that a witness may be cross-examined as to any matter tending to show the interest or bias of that witness.” Commonwealth v. Nolen, 634 A.2d 192 , 195 (Pa. 1993). “[E]vidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of conviction H is within ten years of the trial date.” Commonwealth v. Randall, 528 A.2d 1326 , 1329 (Pa. 1987). We note, to the extent the PCRA court suggested the underlying facts of a crimen falsi conviction offered for impeachment purposes must contradict the witness’s version of the facts or the Commonwealth’s theory of the case, the Rules of Evidence do not contain such requirement. See Pa.R.E. 609(a) (for impeachment of any witness’s credibility, conviction must be admitted if it involved dishonesty or false statement). However, we agree with the PCRA court that Solano is not entitled to relief on this claim. As the Commonwealth notes, counsel attempted to impeach these witnesses by other means on cross-examination,19 and the Commonwealth had already brought to the jury’s attention 19 See, e.g., N.T. Trial, 5/21/03, at 123-24, 125-27, 130 (questioning Carrasquillo regarding inconsistencies between version of events in his police statement and his trial testimony, mentioning witness’s pending gun and drug charges, and pointing out witness previously told police he did not see shooter’s face); id., at 52-53, 55-60, 62-63, 67-69 (questioning Jose Aquino regarding conditions under which he saw Solano for first time and at time of shooting, and concerning his identification of Solano from photo array); id., (continuedH) [J-56A-2014 and J-56B-2014] - 26 the fact that Carrasquillo was incarcerated and had gun and drug charges pending in federal court, see N.T. Trial, 5/21/03, at 122, Jose Aquino had an open charge of receiving stolen property at the time of the shooting, to which he pled guilty and served a sentence, see id., 5/22/03, at 48-49, and Rosario pled guilty and served a sentence for illegally possessing a gun at the time of the shooting, id., at 182-83. Although Santiago’s prior crimen falsi conviction and probation status were not made known to the jury, we cannot say the absence of this information denied Solano a fair trial, as Santiago was merely one of several identification witnesses; thus, Solano’s guilt did not depend solely on this testimony. In light of the overall testimony of these witnesses, counsel did not act unreasonably by not impeaching them with crimen falsi convictions or introducing ballistics evidence to rebut Rosario’s testimony. We further agree with the PCRA court that counsel’s foregoing a jury instruction on Jose Aquino’s crimen falsi conviction was not prejudicial to Solano’s case, in light of the other evidence of Solano’s guilt and counsel’s competent cross-examination of this witness. G. Trial court’s refusal to permit impeachment of Commonwealth witness Jose Aquino with his probation status and counsel’s failure to object and litigate claim Solano claims the trial court erred in precluding guilt-phase counsel from impeaching Jose Aquino regarding his potential bias or motive to testify favorably for the Commonwealth because he was on probation, which he had technically violated. When counsel indicated he intended to question this witness regarding whether he was testifying in hopes he would not be held in violation, the prosecutor objected, and the trial court precluded this line of questioning. Solano argues the prosecutor compounded this error by eliciting testimony from Jose Aquino that he had finished serving his sentence, (Hcontinued) at 200-04 (questioning Rosario regarding why he lied to police about not seeing shooter at time of crime but subsequently identified Solano in court). [J-56A-2014 and J-56B-2014] - 27 suggesting he was not on probation. Solano contends that not being able to impeach Aquino in this manner violated his right to confrontation, and counsel was ineffective for failing to object to the trial court’s ruling. He further argues counsel should have attacked the veracity of Aquino’s identification with the fact that Aquino had charges pending when he identified Solano from the photo array, was serving a sentence for these charges when he identified Solano in a line-up and at the preliminary hearing, and was hoping to curry favorable treatment if he cooperated with law enforcement. The Commonwealth notes Jose Aquino was already impeached with his prior crimen falsi conviction and his testimony was cumulative of the other identification witnesses’ testimony, so Solano suffered no prejudice from not being able to impeach Aquino with his probation status. The PCRA court held any error resulting from inadequate impeachment of Jose Aquino was harmless, as his identification testimony was corroborated by other witnesses, counsel effectively cross-examined him regarding his credibility, and the jury was apprised of his criminal record. See PCRA Court Supplemental Opinion, 8/23/13, at 2-3. We find support in the record for the PCRA court’s conclusions. Counsel used Jose Aquino’s crimen falsi conviction to impeach him; therefore, further impeachment regarding bias was unnecessary. See Commonwealth v. Small, 980 A.2d 549 , 565-66 (Pa. 2009) (holding, where counsel already impeached witness regarding motive and bias, failure to introduce witness’s crimen falsi conviction was not prejudicial); Commonwealth v. Dennis, 715 A.2d 404 , 408-09 (Pa. 1998) (holding counsel not ineffective for failing to impeach witness in one particular way, where counsel impeached witness in other ways). Although Jose Aquino was the only witness to identify Solano prior to trial, eyewitnesses Israel Aquino and Rosario identified Solano at trial, other [J-56A-2014 and J-56B-2014] - 28 witnesses gave descriptions of the shooter’s characteristics that were consistent with Solano’s appearance, and there was other overwhelming evidence of guilt, such as the ballistics evidence mentioned supra , linking Solano to the crime. See Commonwealth v. Cox, 728 A.2d 923 , 933 (Pa. 1999) (holding, where evidence was overwhelming, defendant not prejudiced by counsel’s failure to impeach witnesses regarding bias stemming from open charges, probation, or parole). Thus, Solano fails to demonstrate the outcome of the guilt phase would have differed but for counsel’s inability to use Jose Aquino’s probation status to impeach him; no prejudice has been shown. H. Counsel’s failure to properly object to the admission of prior bad act testimony When Solano was arrested in Connecticut for victim’s murder, he had an open bench warrant for failing to appear in court for unrelated drug and gun charges in Pennsylvania. At trial, Solano’s uncle, Victor Alvarado, testified for the Commonwealth that Solano told him he fled to Connecticut because “[he] had to do two years incarcerated [sic] for a case he had. And he didn’t want to do the two years.” N.T. Trial, 5/22/03, at 147-48. Guilt-phase counsel filed a pre-trial motion to preclude evidence of Solano’s prior charges;20 however, at trial, counsel’s objection was based on hearsay grounds, which the trial court overruled, and counsel declined the court’s offer to instruct the jury regarding hearsay. Solano claims counsel should have objected to Alvarado’s testimony on the basis it referred to irrelevant, inadmissible prior bad acts, and that counsel should have requested a cautionary instruction limiting the use of this evidence. He argues this testimony was prejudicial because it informed the jury he was a fugitive on 20 At the hearing on counsel’s motion in limine, the prosecutor informed the court he did not intend to elicit testimony regarding Solano’s outstanding bench warrant, see N.T. Pre-Trial, 5/12/03, at 14; counsel indicated this addressed his concerns. Despite this agreement, the prosecutor’s direct examination of Alvarado elicited a response referencing the prior charges. [J-56A-2014 and J-56B-2014] - 29 additional criminal charges, leaving the jury to speculate as to the nature of the charges, and the jury was not told it could only consider the evidence for the limited purpose of explaining his reason for being in Connecticut, not for his criminal propensity. The Commonwealth argues Alvarado’s testimony regarding why Solano was in Connecticut was admissible because it explained Solano’s arrest in proximity to the murder weapon and demonstrated his consciousness of guilt by fleeing out of state; thus, it was part of the natural development of the case’s history. The Commonwealth further notes the reference to the unidentified crimes was brief and, in light of the other overwhelming evidence against Solano (including eyewitness identification), the reference did not prejudice Solano’s case. The PCRA court held the facts surrounding Solano’s apprehension in Connecticut were admissible as res gestae because they were part of the events constituting the complete story of the crime; as Solano’s alibi was that he was in Connecticut visiting his aunt at the time of the shooting, the court reasoned “[w]hy [Solano] was in Connecticut and what he was doing there was H highly probative on the issue of the veracity of [Solano’s] version of events.” PCRA Court Supplemental Opinion, 8/23/13, at 5. Thus, the court found Solano’s claim lacked arguable merit. It further concluded counsel had a reasonable basis “for making a decision not to highlight this evidence, and thereby ‘ring the bell twice,’ through a cautionary instruction[.]” Id. The PCRA court also addressed Solano’s claim that the jury was improperly apprised police had a “mugshot” of Solano before his arrest,21 which signaled he had a prior criminal record; the court held the 21 Although Solano raised this claim in his PCRA petition, he did not argue it in his initial brief to this Court, only including it in his supplemental brief after the PCRA court addressed it in its supplemental opinion. Having reviewed the trial court’s curative instruction, see N.T. Trial, 5/27/03, at 91-92, we agree no prejudice could have resulted from the “mugshot” reference. [J-56A-2014 and J-56B-2014] - 30 appropriate instruction the trial court gave the jury cured any resulting prejudice. PCRA Court Supplemental Opinion, 8/23/13, at 5-6. The Rules of Evidence provide: (b) Crimes, Wrongs or Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice. Pa.R.E. 404(b)(1)-(2). See generally Commonwealth v. Lark, 543 A.2d 491 , 497 (Pa. 1988) (evidence of other crimes, while generally not admissible solely to show criminal propensity, may be admissible in special circumstances where relevant for some other legitimate purpose; one special circumstance is “res gestae” exception, where such evidence became part of history of case and formed part of natural development of facts). Where evidence of a defendant’s prior bad acts is admitted, the defendant is entitled to a jury instruction that the evidence is admissible only for a limited purpose. Commonwealth v. Hutchinson, 811 A.2d 556 , 561 (Pa. 2002). While we do not condone the prosecutor’s foray into this topic of questioning after assuring guilt-phase counsel he would not bring up Solano’s outstanding charges at the time of arrest, we agree with the PCRA court that such evidence was relevant and admissible. Solano claimed the purpose of his trip to Connecticut was a family visit, using it as an alibi; evidence that he fled there to avoid prosecution on other charges called into question the veracity of his version of the shooting and surrounding events, including his alibi. Additionally, although Solano was entitled to a jury instruction, [J-56A-2014 and J-56B-2014] - 31 counsel’s foregoing one cannot be deemed unreasonable, as the reference was fleeting and counsel could have wished to downplay it instead of bringing it to the jury’s attention. See id., at 561-62 (where evidence of defendant’s prior bad acts is fleeting or vague reference, counsel might reasonably decline to object or to request limiting instruction to avoid drawing jury’s attention to reference). Accordingly, Solano is not entitled to relief on this claim. II. PCRA-Stage Claim PCRA court’s dismissal of Solano’s claim for relief based on newly discovered evidence Solano contends the PCRA court should have credited Morales’s PCRA hearing testimony that he and Concepcion committed the shooting, not Solano. Morales testified Concepcion wanted revenge against victim’s gang, which had robbed Concepcion. Morales claimed he and Concepcion planned the shooting together that morning; he was staying with Williams and went out to confirm the other gang, including victim, was at the park. According to Morales, he relayed this information to Concepcion, who came and picked him up; Morales took two guns with him. Morales stated they first went to Concepcion’s mother’s house, where he gave Concepcion a gun. They donned bulletproof vests and hoodies, and Concepcion put on a windbreaker over his hoodie. They went to the park, and Morales fired his weapon into the crowd after Concepcion shot victim on the basketball court; he and Concepcion then fled to Indiana. Morales claimed he later went to Connecticut to give Solano the guns in an attempt to clear himself and Concepcion because he knew Solano was a suspect in the shooting. See N.T. PCRA Hearing, 2/8/10, at 10-32. Solano asserts this testimony meets the test for newly discovered evidence, and the PCRA court should have found it credible in light of its consistency with other evidence, i.e., evidence the killing was gang related, evidence of Concepcion’s motive, [J-56A-2014 and J-56B-2014] - 32 witnesses who placed Morales and Concepcion in Indiana shortly after the shooting, Morales’s possession of both guns used in the shooting when he was arrested in Connecticut, and newspaper articles confirming Morales’s testimony that he and Concepcion previously fired numerous rounds of bullets into buildings in victim’s gang’s neighborhood. The Commonwealth asserts Morales’s testimony was unreliable and did not satisfy the test for newly discovered evidence. The Commonwealth argues although Morales’s testimony cannot be viewed as a recantation because he did not testify at trial, it should be viewed with the same skepticism because it contradicts his prior statements to police. The Commonwealth points out Morales, already serving what was essentially a life sentence, had nothing to lose by subsequently inculpating himself. The PCRA court found “Morales utterly lacked credibility as a witness and, therefore, his testimony can be accorded no weight.” PCRA Court Opinion, 12/30/11, at 8. The court noted Morales was serving a 37-year sentence in Connecticut for attempted murder arising from his shooting at the police while trying to escape with Solano, after which he would return to Pennsylvania to serve a 40- to 80-year sentence for shooting a deputy sheriff and holding hostages. Id. The court emphasized Morales’s testimony was inconsistent with his prior police statements, in which he denied going to Indiana and claimed he went to Connecticut to help Solano, not frame him for the shooting; although Morales claimed he “grew a conscience lately” in an effort to have a better relationship with his daughter, N.T. PCRA Hearing, 2/8/10, at 9-10, the PCRA court found he “offered no convincing explanation for his newfound love of truth[,]” PCRA Court Opinion, 12/30/11, at 9. The court further noted Morales said Concepcion wore a windbreaker over his hoodie when he shot victim, but numerous eyewitnesses testified the shooter wore a hoodie, not a windbreaker, and none of them placed Morales at the [J-56A-2014 and J-56B-2014] - 33 crime scene. Id., at 8. Based on the foregoing, as well as Morales’s demeanor on the stand, the PCRA court concluded: [Morales] admits to being a man of deceit at the time of the crimes at issue here and any sense of honor and righteousness on his part evidently inspired no need for candor at the time of [Solano’s] trial. In view of his history, pattern of dishonesty, and demeanor on the stand, his jailhouse conversion is wholly unpersuasive and his credibility remains more than suspect. Accordingly, his testimony is discounted and, as such, provides [Solano] no basis for relief. Id., at 9. Thus, the PCRA court rejected Solano’s newly discovered evidence claim. The PCRA provides relief for a petitioner who demonstrates his conviction or sentence resulted from “[t]he unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.” 42 Pa.C.S. § 9543(a)(2)(vi). A petitioner seeking relief on this basis must establish the evidence: (1) was discovered after trial and could not have been obtained at or prior to trial through reasonable diligence; (2) is not cumulative; (3) is not being used solely to impeach credibility; and (4) would likely compel a different verdict. Washington, at 595-96. As this test is conjunctive, failure to establish one prong obviates the need to analyze the remaining ones. See Commonwealth v. Pagan, 950 A.2d 270 , 292-93 (Pa. 2008). Keeping in mind the deference owed the PCRA court’s credibility determinations, see Dennis, at 305, we find support in the record for the PCRA court’s conclusion that Morales’s testimony would not have altered the outcome of Solano’s trial. Although Morales did not testify at trial, and thus his PCRA testimony cannot be considered a true recantation, his testimony “contradicts his pre-trial statement to police and is a confession to the crime for which [Solano] was convicted and sentenced.” Washington, at 597. Therefore, we view it with the same “jaundiced eye” because such “evidence of this nature ‘is notoriously unreliable, particularly where the witness claims to have committed [J-56A-2014 and J-56B-2014] - 34 perjury[.]’” Id. (quoting Commonwealth v. D’Amato, 856 A.2d 806 , 825 (Pa. 2004)); see id. (holding although witness’s confession was not technically recantation, as he did not testify at defendant’s trial, it would be analyzed as recantation because it contradicted prior statement to police and was confession to crime of which defendant was convicted). In light of the other evidence presented at trial that contradicted Morales’s version of events surrounding the shooting, the circumstances under which Morales suddenly decided to come forward with this new version, and the PCRA court’s assessment of his demeanor on the stand, we agree that his testimony would not have likely compelled a different verdict. Accordingly, analysis of the remaining prongs of the newly discovered evidence test is unnecessary, see Pagan, at 292-93, and Solano is not entitled to relief on this claim. III. Cumulation Claim Solano contends he is entitled to a new guilt phase because the cumulative effect of the errors in his case undermines confidence in the verdict.22 Although the general rule is that “no number of failed claims may collectively warrant relief i[f] they fail to do so individually[,]” Commonwealth v. Rainey, 928 A.2d 215 , 245 (Pa. 2007), where “multiple instances of deficient performance are found, the assessment of prejudice properly may be premised upon cumulation,” Commonwealth v. Johnson, 966 A.2d 523 , 532 (Pa. 2009) (citation omitted). We cited lack of prejudice as a basis for denying relief on Solano’s claims of guilt-phase counsel’s alleged ineffectiveness for: failing to impeach Detective Simock with certain evidence, failing to object to or request a cautionary instruction regarding 22 Solano also contends that because the PCRA court subsequently credited the evidence regarding two shooters, the cumulative effect of counsel’s alleged errors during the guilt phase should be re-examined. As discussed in n.6, supra , the PCRA court did not credit this evidence, and we need not address this argument further. [J-56A-2014 and J-56B-2014] - 35 Israel Aquino’s and Francisco Rosario’s identification testimony, failing to request an instruction regarding Jose Aquino’s crimen falsi conviction, failing to impeach Santiago with his prior crimen falsi convictions and probation status, and failing to object to the trial court’s ruling precluding impeachment of Jose Aquino with his probation status.23 We do not find, even when these instances are viewed cumulatively, that the outcome of the guilt phase would have been different had counsel impeached these witnesses or sought additional instructions regarding their testimony. Although credibility was a significant factor in this case, there was also ballistics evidence and testimony from other witnesses linking Solano to the crime, and counsel’s performance cannot be said to have undermined the outcome of the guilt phase such that a new trial is warranted. Regarding penalty-phase counsel’s performance in connection with the grave-risk aggravator, we need not consider the cumulative effect of the errors from separate phases of the trial, see Sepulveda, at 1151, and thus we do not include this claim in our cumulation analysis. We conclude the record supports the PCRA court’s denial of guilt-phase relief. Commonwealth’s Issues A. Penalty-phase counsel’s performance in connection with 42 Pa.C.S. § 9711(d)(7)’s grave-risk aggravating circumstance As noted in n.6, supra , on remand for the preparation of its supplemental opinion, the PCRA court concluded, based on penalty-phase counsel’s PCRA testimony, counsel could not have had a reasonable basis for the manner in which she approached the issue of the (d)(7) aggravator and her failure to adequately challenge the testimony in support of this aggravator was not harmless error. PCRA Court Supplemental Opinion, 8/23/13, at 9-10. Accordingly, the court held Solano was entitled to a new penalty phase on this 23 Lack of prejudice was an alternative holding in our rejecting Solano’s claim that guilt-phase counsel inadequately investigated and presented evidence supporting the defense theory of the case. [J-56A-2014 and J-56B-2014] - 36 basis, as well as on the basis of counsel’s ineffectiveness in connection with the presentation of mitigating evidence. Id. In light of our conclusion, infra, that the award of a new penalty phase was proper on the basis of penalty-phase counsel’s ineffectiveness for failing to present sufficient mitigating evidence, we need not address this claim. B. Penalty-phase counsel’s failure to investigate and present life-history mitigating evidence The Commonwealth claims the PCRA court erred in awarding a new penalty phase based on penalty-phase counsel’s failure to investigate and present mitigating evidence regarding Solano’s traumatic, abusive childhood and its neuropsychological impact on him. Counsel called four penalty-phase witnesses to testify regarding Solano’s childhood. Jorge Negron, the Children and Youth Services (CYS) caseworker assigned to Solano’s family, testified Solano and his two brothers were placed in foster care when Solano was nine years old, and they remained there until he was 12; they were then reunited with their mother. N.T. Penalty Phase, 5/30/03, at 11. Negron recalled Solano as being cooperative, a “clown,” doing well in school, and behaving appropriately with other children. Id., at 10-11. He admitted Solano had some of the usual behavioral issues that foster children have, but that overall, he was with a good family and accepted discipline from his foster parents without any problem. Id., at 8-9, 11. Negron explained Solano’s mother was in a drug and alcohol in-patient facility during that time, and Solano and his brothers behaved normally during their supervised visits with her. Id., at 12-14. Negron stated Solano’s mother successfully completed the requirements for her sons to be returned to her, and he did not recall any problems during their transition to living with her again. Id., at 15-17. [J-56A-2014 and J-56B-2014] - 37 Carmen Urdaz, Solano’s foster mother, testified Solano lived with her for four years and was the last of his siblings to leave her care. Id., at 25. Urdaz stated the boys were placed in her care because of their mother’s neglect and drug use. Id., at 31. She referred to Solano as her “baby,” who was always kidding around — a playful, happy child who enjoyed playing jokes on her. Id., at 28-29. She recalled Solano never spoke about his mother or family, but got along well with her husband and other children. Id., at 30. Urdaz said Solano was “not H the brightest” in school, but was average and had no unusual behavioral problems there, other than occasionally picking fights. Id., at 31, 41. She remembered him participating in karate and wrestling, as well as playing outside a lot. Id. She characterized him as “the most calm, quiet one[,]” who would smile and laugh nervously if he was disciplined. Id., at 32. Urdaz admitted she and Solano did not keep in touch after he left her care, and although it had been seven or eight years since she had seen him, she still loved him. Id., at 24, 26-27, 42. According to Urdaz, all of her problems were with Solano’s older brother, who she eventually had removed from her home. Id., at 39-40, 44. Jose Urdaz, Solano’s foster father, testified Solano was “a nice kid” with whom he got along “pretty good[,]” and who had no particular behavioral problems. Id., at 47. Urdaz said he took Solano to wrestling matches and other sports events, they had a good bond, and he loved Solano. Id., at 48. He recalled Solano got along well with their other children and had no problems in school. Id. He said he had not seen Solano for at least ten years, as they had not kept in touch when Solano left his care. Id., at 46. Solano’s mother, Yvette Solano, testified Solano, the middle of her three sons, was her “baby,” and his two brothers were in prison. Id., at 51. She had never married Solano’s father, and Solano’s relationship with his father ended as a teenager because his father was never around. Id., at 53. She stated she began using drugs at age 13, [J-56A-2014 and J-56B-2014] - 38 began using heroin at 15, and had Solano at 18. Id., at 54. She admitted her heroin addiction kept her from being a good mother, and she moved her family around a lot and often left her sons in others’ care while she searched for drugs. Id., at 55, 58. Eventually, she committed robbery for drugs and went to prison; this was when Solano and his brothers went to foster care for four years. Id., at 56, 59. When she finished serving her sentence and completed rehabilitation, Solano and his brothers were returned to her, and she said Solano began getting in trouble at school for clowning around in class. Id., at 61. She recalled Solano was a funny, chubby child who clowned around a lot, sometimes to the point where it “work[ed] on [her] nerves,” but other than that, she had no problems with him; he got along well with his brothers. Id., at 55, 62. She said Solano dropped out of school in 11th grade and told her she would not be seeing him anymore, as he was ready to be on his own; he left her home and moved to a home around the corner from her, but they maintained their relationship. Id., at 63-64. Finally, she recounted Solano had worked two different jobs, but was fired from at least one of them, and she admitted on cross-examination that Solano had been adjudicated delinquent for offenses such as stealing a wig from a department store mannequin, carrying a firearm without a license, and several instances of aggravated assault. Id., at 64, 66, 71-74. Based on the above testimony, penalty-phase counsel argued for the jury to find the age-of-defendant and catch-all mitigators, 42 Pa.C.S. § 9711(e)(4), (8). The jury found the catch-all mitigator was established, but determined the grave-risk aggravator outweighed it. At the PCRA hearing, Solano presented additional mitigating evidence, which he claims would have persuaded the jury to give more weight to the catch-all mitigator, resulting in a life sentence instead of the death sentence it imposed. He presented [J-56A-2014 and J-56B-2014] - 39 testimony from penalty-phase counsel, two mental health experts, four family members, three teachers, a mitigation specialist, and a CYS caseworker.24 Penalty-phase counsel testified that at the time she represented Solano, she had no prior experience with homicide cases and no training in handling a penalty phase, having only graduated from law school two years earlier. N.T. PCRA Hearing, 1/27/10, at 194-95; id., 1/28/10, at 79. Counsel said she spoke with a more experienced criminal defense attorney for a couple of hours and consulted manuals containing checklists of things defense counsel needed to do in preparation for the penalty phase. Id., 1/28/10, at 80-83. Although the public defender’s office where she was employed had two investigators, they only worked on cases at the request of an attorney; counsel did not utilize them in her case, instead doing the mitigation investigation herself. Id., 1/27/10, at 196-98. Counsel met with lead counsel, who was handling the guilt phase, “very little,” and they communicated about their respective tasks “[o]nly in passing.” Id., at 199. Counsel stated, “[T]here was no one overseeing me at all. No one had any idea what I was doing.” Id., 1/28/10, at 121. Counsel’s strategy was to try to humanize Solano before the jury by conveying his horrible upbringing through his mother’s and caseworker’s testimony, and showing he was likeable through his foster parents’ testimony. Id., at 92, 110-12. Counsel stated she met with Solano about five times prior to trial. Id., 1/27/10, at 201. She characterized him as being “very closed and very guarded” with her, id., at 205, and she had difficulty obtaining detailed responses from him, id., 1/28/10, at 45; however, she did nothing to foster a rapport with him in an effort to enable him to be more open with her, id., 1/27/10, at 205-06. Instead, she decided to go “around him,” obtaining his social and 24 The only witness the Commonwealth presented at the PCRA hearing was the prosecutor, whose testimony was not relevant to the issue of penalty-phase counsel’s performance. [J-56A-2014 and J-56B-2014] - 40 family history from other sources. Id., at 204, 206. Counsel mailed Solano a questionnaire, but failed to follow up when he responded with sparse, one- or two-word answers. Id., at 203-04; id., 1/28/10, at 87-88, 126-27. Despite being aware of his parents’ drug use when he was a child and having the names and locations of his extended family, id., at 125-26, 127-28, counsel only contacted Solano’s mother and brother;25 she dismissed his father as a potential witness because of his criminal record and estrangement from the family, not realizing he could serve as a resource for locating other family members who might be helpful, id., 1/27/10, at 202-03, 206-08; id., 1/28/10, at 105-06, 129-31. Counsel admitted she would have wanted the information Solano’s uncle could have provided about Solano’s father’s drug dealing and the impact it had on his family, and said she had no tactical reason for failing to obtain the father’s records. Id., 1/27/10, at 209-11; id., 1/28/10, at 131-33. Likewise, counsel admitted she had no strategic basis for not obtaining Solano’s mother’s records or interviewing her relatives; counsel explained she told Solano’s mother about the need for credible penalty-phase witnesses and then waited for her to “bring whoever she thought might be appropriate[.]” Id., 1/27/10, at 212, 215-16. Counsel stated she would have wanted to present the details of the mother’s troubled childhood and drug use, as recounted by her relatives and criminal records. Id., at 213-15. Counsel admitted she did not meet with caseworker 25 Counsel interviewed Solano’s brother, who was incarcerated, by video conference; she stated he was “extremely guarded, and really didn’t have very much to say at all to me. H He just kind of gave me one[-]word answers.” Id., at 118-19. Based on this brief contact, counsel decided Solano’s brother would not be credible and dismissed him as a potential witness. Id., at 130. Counsel admitted she was scared and reluctant to talk to Solano’s mother about the effect her prostitution and drug use had on Solano as a child; according to counsel, “she was very delicate, and vulnerable at any kind of insinuation that she was to blame for the predicament that [Solano] was in. H I didn’t know how to have that conversation with her. I was afraid I would lose her entirely.” Id., at 135-36. Thus, counsel side-stepped discussing anything that was in the CYS records with the mother. Id., at 135. [J-56A-2014 and J-56B-2014] - 41 Negron before he testified; she spoke with him on the telephone a few times, but never went over the information in the CYS records with him. Id., 1/28/10, at 50-52. Counsel testified she obtained Solano’s probation records, a pre-sentence investigation report from a prior criminal matter, and his CYS records, but she did not discuss the specific information in them with Solano or his mother; she did not want Solano’s mother to feel she was being accused of something. Id., at 43-46. Although counsel had Solano’s school records, she did not recall his many absences and did not discuss these records with him, deeming them irrelevant. Id., at 47-48, 108-09. Counsel explained she did not introduce the CYS records into evidence, so the jury never heard specific details of Solano’s mother’s drug use and neglect of her children; these were facts counsel would have wanted the jury to know. Id., at 48-50. Counsel admitted she had no tactical reason for not introducing this evidence, id., at 53-54; she explained she “was stumbling over how to get evidence that I had, into evidence[,]” id., at 54, and she had very little experience in having evidence admitted at trial, id., at 57-58, 112-14. Thus, because she did not know how to introduce records, she tried to have witnesses testify regarding their personal knowledge of the information the records contained. Id., at 115-16. Counsel stated she decided not to call Dr. Dattilio as a witness because she felt his anti-social personality diagnosis would cast Solano in a bad light before the jury, id., at 63-64, 95-99;26 however, she admitted she made this decision “with really not much 26 Counsel explained Dr. Dattilio’s report contained the following description of Solano: Mr. Solano presented himself as a slightly arrogant individual who was completely concerned with his own misfortune. He demonstrated no remorse for the victim, and claims he simply didn’t know him. In fact, he views himself as the victim, and presented himself in a very narcissistic, externalized, manner. H He tends to be a very shallow individual who is almost hollow at times with respect to emotion. (continuedH) [J-56A-2014 and J-56B-2014] - 42 consultation with anyone else,” id., at 64, and without discussing the diagnosis with Dr. Dattilio, id., at 64-66. Counsel stated she had no tactical reason for doing so, id., at 66, and she presently recognized she should have had this expert testify at the penalty phase, id., at 69-71. In counsel’s words, “My lack of experience of how to get evidence into evidence, including all of this mitigation, [was] part of the problem. I didn’t really understand that I could probably bring a lot of that out; elicit it through Dr. Dattilio.” Id., at 70. Counsel summarized that she “was trying [her] best with a lot of limitations on [her]. Id., at 122. Christina Solano, a cousin who lives in Connecticut, testified Solano was visiting his family there and lived in her home shortly before he was arrested for the homicide; Christina was 12 years old at the time. Id., at 8-12, 14. She related she had grown close to Solano during the few weeks he spent with her family, and he helped her with homework, serving as a mentor and father figure. Id., at 31-32. Dr. David Schretlen, a neuropsychologist who examined Solano for the PCRA proceedings, testified Solano performed in the average range on intelligence tests and demonstrated average mastery of basic academic skills, id., at 191; however, he performed below average in the area of non-verbal processing, leading the expert to conclude Solano had a fairly mild, circumscribed cognitive disorder, which had been present for a long time — possibly since birth, id., at 192-94. Dr. Schretlen explained why his diagnosis differed from Dr. Dattilio’s prior conclusion that Solano had no signs of neurological impairment; the intelligence test Dr. Dattilio administered was not as complete or formal, and Solano had a cast on his dominant hand, so he used his other (Hcontinued) Id., at 96-98. Counsel felt this description would go against her strategy of humanizing Solano. Id., at 99. [J-56A-2014 and J-56B-2014] - 43 hand to complete the drawing ability test, which Dr. Dattilio interpreted with much latitude. Id., at 196-97. Dr. Schretlen testified Solano gave him extensive information about his background; Solano “grew up in an extremely dysfunctional family, and under circumstances that were really quite chaotic, and characterized by deprivation, and neglect, and mistreatment.” Id., at 200. Solano told Dr. Schretlen about his mother’s tragic childhood, which prevented her from being able to parent him. Id., at 201. Dr. Schretlen related Solano’s mother was born to alcoholic, immigrant parents, who lived in extreme poverty. The father sexually and physically abused his daughters, and the mother died when Solano’s mother was nine years old, causing her to be sent to an orphanage. When she was 12, she went to live with her older sister, whose boyfriend molested her, and she witnessed a young man being fatally shot in close proximity to her during a police raid. She went back to the orphanage, met Solano’s father, started abusing alcohol and drugs (which escalated to heroin addiction), and became pregnant at age 15. Id., at 202-04, 206-07. Dr. Schretlen explained this history was significant because it provided an understanding of Solano’s world view, which was shaped by the circumstances and family dynamics into which he was born. Id., at 206. Dr. Schretlen testified that, in this environment, Solano learned betrayal and witnessed drug use, prostitution, and police raids. Id., at 206-08. Solano also witnessed violence between his parents and saw his mother stab his father. Id., at 210-11. Dr. Schretlen described Solano’s struggle to save his mother from her drug addiction and take care of his younger brother. Id., at 222-24. Dr. Schretlen reviewed Solano’s CYS records, which further detailed the extreme poverty and neglect Solano experienced, and explained its negative impact on his school attendance and, consequently, his academic performance. Id., at 212-17. Dr. [J-56A-2014 and J-56B-2014] - 44 Schretlen stated although Solano’s school records characterized him as learning disabled, Solano’s frequent absences were the reason for his functioning below normal level. Id., at 218-19. Dr. Schretlen noted, according to the records, Solano’s mother asked for help from CYS because her drug addiction was preventing her from taking care of her children; she ended up being incarcerated for drug-related offenses, and Solano and his siblings went into foster care. Id., at 226-27. Dr. Schretlen testified Solano functioned well in his foster home’s stable environment, and his school attendance and performance improved. Id., at 228-29. However, after his mother was released and eventually reunited with her children, Solano had several juvenile arrests. Id., at 231-32. Dr. Schretlen opined although Solano exhibited anti-social behavior, he did not have anti-social personality disorder. Id., at 232-37, 248-50. Although Dr. Schretlen did not disagree with Dr. Dattilio’s 2002 diagnosis of major depressive disorder, he did not find Solano to be depressed when he examined him in 2008. Id., at 238-39. Dr. Schretlen concluded Solano was of average intelligence, with no significant mental or learning disorders; however, he did have mild circumscribed cognitive defects, which affected his ability to navigate personal relationships and read cues in personal interactions. Id., at 239-40, 244-45, 257. Dr. Schretlen opined Solano “could have been a much more successful person if he had been raised in different circumstances[,]” id., at 239, noting he performed well in structured environments such as foster care and prison, id., at 228, 250-53, and observing he “had calmed down considerably, and H matured” since his initial evaluation before trial, id., at 240, 258. Dr. Schretlen believed this information about Solano would have been helpful to the jury in determining whether to sentence Solano to life imprisonment or death. Id., at 261-62. Finally, he stated all of the information he obtained from Solano was consistent with the affidavits from family members and teachers, which he reviewed. Id., at 263-64. [J-56A-2014 and J-56B-2014] - 45 Lenore Kohl, the former principal at the school where Solano attended first grade, reviewed Solano’s permanent records from kindergarten through when he left school. Id., 1/29/10, at 7. She testified he was ranked in the bottom quarter of his kindergarten class and was significantly below average in several areas of study. Id., at 9-11. Kohl recalled Solano’s attendance record, specifying he missed 44 days in first grade and 55 days in second grade. Id., at 11-14. She indicated he spent time in a “learning disabilities program, special education,” had “poor number conceptualization,” and “[could not] relate numbers to objects,” which resulted in his being recommended for learning support. Id., at 18-21. She opined academic limitations, such as those exhibited by Solano, could be for a variety of reasons, but believed Solano’s limitations were due to “intellectual H deficiencies, not coming from the environment or the culture” in which he was growing up. Id., at 31, 33. Kohl testified no lawyer or investigator contacted her regarding Solano at the time of trial, but she would have provided the same information had she been contacted then. Id., at 25-26. Karen Short, Solano’s third-grade teacher, testified although she had been teaching for 22 years, Solano specifically stuck out to her because his case was “unique.” Id., at 38. She explained she remembered very few students, but Solano stood out due to his significant academic struggles. Id., at 51. Noting Solano was in foster care during his time in her classroom, Short stated he was not a behavioral problem and was very quiet. Id., at 41. She further testified Solano, who was in her class for part of the day and in special education part of the day, “worked very hard[,]” and “wanted to succeed” and “do well.” Id., at 39, 41. Short specified she believed Solano’s learning disabilities were a result of “not having the learning experiences other children had.” Id., at 43-44. She indicated she believed Solano’s parents were in jail, and she was told he and his brother were seen eating out of trash cans. Id., at 38. 52. She stated she and another [J-56A-2014 and J-56B-2014] - 46 teacher once purchased clothes for Solano because “he wore the same thing all the time H so we [] thought he might need a couple of extra things.” Id., at 42. Finally, she testified no one contacted her about Solano at the time of trial, but she would have testified had she been contacted. Id., at 44. Kathleen Kaib, a mitigation specialist for the Philadelphia Federal Community Defender Office, testified about the social history report she prepared for Solano’s PCRA hearing. Id., at 61-62, 67-71. She testified the report was compiled to look for mitigating factors such as “any indication of child abuse, H neglect, drug usage, alcohol usage[,] H truancy issues[,] ... proper housing, proper clothing, [or] proper food[.]” Id., at 73. In preparing the report, she reviewed records for Solano and his parents, as well as affidavits of family members, and interviewed Solano, his mother, two aunts, and an uncle. Id., at 68-70, 105. Kaib noted Solano’s mother had a “very horrific upbringing.” Id., at 74. She further stated his mother had two alcoholic parents who were violent to each other and to the children, including one occasion when the father “shot at one of the children.” Id. Kaib indicated Solano’s mother was abused physically and sexually, had no food or clothes, and did not attend school. Id., at 75. Kaib clarified his mother’s upbringing was important in the context of Solano because “it shows she was ill[-]equipped to parent her own children” and “[her] drug usage [led to neglect of her children] in this case.” Id., at 76. Kaib also testified about Solano’s childhood, stating both parents had a “severe drug problem” and Solano’s mother was unable to properly care for her children. Id., at 69-70, 77. Both parents, even while the mother was pregnant, used alcohol, marijuana, heroin, cocaine, and pills. Id., at 76-77 She described one event in which police executed a drug raid on then-four-year-old Solano’s home and arrested both his parents [J-56A-2014 and J-56B-2014] - 47 in front of him. Id., at 77-78. She further described Solano frequently moving from place to place, including a shelter in Allentown. Id., at 80. Kaib characterized Solano’s childhood as “[coming] from a background with two drug addicted parents, who were alcoholics, who both abandoned him several times[.]” Id., at 88. Kaib testified to Solano’s progress after being placed in a foster home, stating Solano’s grades and attendance subsequently began to improve, and crediting the “stable environment” as the reason for his improvement. Id., at 84. However, Kaib explained, when Solano was reunited with his mother around age 13, his grades went down again. Id., at 86-87. Finally, Kaib indicated she did not testify at Solano’s trial, but all of the information she presented at the PCRA hearing would have been available at trial. Id., at 88. Jorge Negron, the CYS caseworker who testified at Solano’s penalty phase, testified he specifically remembered Solano. Id., at 110. He recounted Solano’s childhood and upbringing, stating Solano and his brothers “had no father.” Id., at 132. Negron indicated he had not met, been interviewed by, or talked to Solano’s counsel prior to the day he was to testify at the penalty phase. Id., at 123-25. He also noted he did not review, nor had he been asked to review, any of Solano’s CYS records prior to testifying. Id. Negron also confirmed Solano’s significant progress while in foster care. Id., at 133-34. Anne Hibshman, Solano’s first- and second-grade special education teacher, recalled Solano’s poor attendance and academic struggles. Id., 2/1/10, at 9, 12. She said Solano “always had a good attitude toward his work,” but had difficulty retaining things. Id., at 14. She remembered Solano as “very quiet, very sad, didn’t seem to have many friends[,]” and not being well groomed or appropriately dressed, which caused his classmates to shun him. Id., at 10-11, 15. She recalled buying him clothes. Id., at [J-56A-2014 and J-56B-2014] - 48 10, 13. She stated although no one contacted her about testifying at Solano’s trial, she would have done so if asked. Id., at 11. Lisa Pinter, Solano’s second-grade teacher, testified he was “a very low-achieving academic, nice boy” who “didn’t give any problems in the classroom” and “was friendly, but not well taken care of.” Id., at 18. Pinter recalled a class field trip during the winter when she had to borrow socks for him because he was inadequately dressed, and his clothes were not always as clean as they should have been. Id., at 19. She stated his attendance was very poor, which did not help his academic performance. Id. She said no one contacted her about testifying at Solano’s trial, but had they done so, she would have. Id., at 21. Victor Alvaredo, Sr., Solano’s paternal uncle, testified about Solano’s parents’ use of marijuana, cocaine, and heroin, confirming Solano’s mother was often high when she was with her children. Id., 2/2/10, at 7-10. He further testified no one contacted him about testifying at Solano’s trial, and he would have done so if asked. Id., at 10. Miguel Alvaredo, another paternal uncle, also testified about Solano’s parents’ cocaine and heroin addiction and daily drug use while their children were living with them. Id., at 16-17, 22. He stated no one contacted him about testifying at Solano’s trial; however, he would have, had he been asked. Id., at 20. Robert Solano, Solano’s maternal uncle, testified about the daily abuse Solano’s mother endured during her childhood at the hands of an alcoholic father, who also sexually molested her. Id., at 28-29. This was followed by time spent in an orphanage, where there was “a lot of physical discipline by the nuns.” Id., at 30. Solano’s uncle described Solano’s mother’s drug use around her children, as well as the drug sales and police raids the children witnessed. Id., at 33-35. He stated no one contacted him [J-56A-2014 and J-56B-2014] - 49 about testifying at Solano’s trial, but that he would have been willing to do so. Id., at 37-38. Dr. Frank Dattilio, a clinical and forensic psychologist who evaluated Solano twice prior to trial and once prior to the PCRA hearing, testified the public defender’s office provided him with Solano’s school, prison, probation, and CYS records, as well as a prior pre-sentence investigation report before trial. Id., 2/3/10, at 16. However, he was not provided with any records pertaining to Solano’s parents, nor was he given information from Solano’s teachers, the CYS caseworker, or other relatives; he stated this information would have been tremendously helpful, as it would have shed more light on Solano’s entire situation. Id., at 15-20, 32-33. Dr. Dattilio confirmed he could have offered substantial mitigating evidence on Solano’s behalf and he communicated this to counsel. Id., at 20-21. Dr. Dattilio testified his pre-trial reports concluded Solano’s childhood was marked by neglect, poverty, and parental abandonment, and he also had a history of drugs and criminal behavior. Id., at 21-22. He diagnosed Solano with major depression, citing him as withdrawn and closed off, but also noting there was evidence of acting out in angry, abusive ways. Id., at 22, 33-34. He further diagnosed Solano with anti-social personality disorder, narcissistic personality disorder, and borderline personality disorder. Id., at 37, 40, 42, 57, 61-62. Dr. Dattilio explained Solano’s “extensive family history of dysfunction H created a psychological conundrum that any child would find impossible to navigate[,]” and that there was “no way out until H he H became involved with [CYS.]” Id., at 25-26. Dr. Dattilio explained in detail the long-term psychological effects of being raised in an environment that was chaotic “to the Nth degree[,]” id., at 27, 28-31, 43-44, and further noted this was a case of “transgenerational exchange,” where the tumultuousness of Solano’s mother’s childhood continued into her children’s upbringing, [J-56A-2014 and J-56B-2014] - 50 id., at 30. He also testified regarding the psychological impact of Solano’s mother’s emotional and physical unavailability; Solano lacked the ability to form healthy attachments to people, and although he had a strong bond with his mother despite her shortcomings, he was a parental figure to her because of her addiction. Id., at 44-47, 49. Dr. Dattilio testified the information in the school records that he was not given for his pre-trial evaluation revealed Solano’s excessive absences, which he said were a “red flag” for further investigation into Solano’s family background and also indicated Solano was exposed to more of the drug use and chaos at home because he was not in school. Id., at 31-32. Turning to Solano’s foster-care experience, Dr. Dattilio noted the CYS records were replete with instances of abuse and neglect during Solano’s time with his mother, but he responded positively to his foster-care situation; he did well in a structured, stable environment. Id., at 35-37. Dr. Dattilio explained this information was critical regarding the anti-social personality disorder diagnosis because it showed Solano was able to change and his disorder was largely environmentally induced, as opposed to being genetic. Id., at 38-40. Dr. Dattilio testified the same was true regarding Solano’s narcissistic personality disorder; it was a survival mechanism developed in tandem with the anti-social personality disorder, as he would disregard others’ rights in an attempt to protect himself and get his own needs met. Id., at 40-42. Dr. Dattilio clarified the existence of Solano’s psychological disorders did not make him hesitant to testify on Solano’s behalf; rather, these were mitigating factors explaining how his environment contributed to his actions. Id., at 42-43. Dr. Dattilio stated counsel never sat down with him to review his findings; there were fleeting conversations by telephone and happenstance meetings, but it was not until he called to inquire about his status as a witness that counsel said he would not be [J-56A-2014 and J-56B-2014] - 51 testifying. Id., at 50-51, 53-54. He commented he was shocked by this decision, as it was the only time he had ever been involved with a capital case and was not called as an expert witness. Id., at 51. He admitted he had not met with Solano at the time of his evaluation for the PCRA proceedings, which was made solely on the basis of his past reports and the records provided by PCRA counsel. Id., at 67. He explained a possible reason for the difference in his and Dr. Schretlen’s conclusions regarding Solano’s intelligence 27 was that Dr. Schretlen’s test was more comprehensive; he also noted Solano’s being in institutional confinement for a long period of time was potentially why Dr. Schretlen did not find him to have anti-social personality disorder, and Dr. Schretlen’s test was not designed to measure such disorders. N.T. PCRA Hearing, 2/3/10, at 69-71. Dr. Dattilio believed his evaluations conducted at the time of trial would have been more accurate than those administered for the PCRA proceedings. Id., at 70. Finally, Dr. Dattilio testified he had reviewed the affidavit of Kathleen Kaib, the mitigation specialist, and her work product would have been “[e]xtremely” helpful to him in performing his evaluation. Id., at 77-78. He added he currently will not participate in a capital case without a mitigation expert. Id., at 79. He confirmed his more recent evaluation of Solano did not differ from the two he did prior to trial, but was more detailed and bolstered his previous conclusions. Id., at 84-85. He noted, had the data he was given for the PCRA proceedings been made available to him at the time of trial, his earlier report would have been much lengthier and stronger. Id., at 85. 27 Dr. Dattilio’s report placed Solano in the borderline range of intelligence, see Psychological Evaluation by Dr. Frank Dattilio, 11/18/02, at 6-7, Appendix to Amended PCRA Petition, 5/4/12, Vol. I, Ex. 2, whereas Dr. Schretlen’s report placed him in the lower half of the average range, see Report of David J. Schretlen, Ph.D., 1/20/09, at 10-11, Appendix to Amended PCRA Petition, 5/4/12, Vol. I, Ex. 7. [J-56A-2014 and J-56B-2014] - 52 The Commonwealth argues the additional life-history mitigation evidence Solano presented at the PCRA hearing was merely cumulative of that presented at the penalty phase, and, given the strength of the evidence supporting the grave-risk aggravator, it cannot be said the additional cumulative evidence is enough to undermine confidence in the jury’s verdict. The Commonwealth contends the PCRA court minimized the actions penalty-phase counsel took in her investigation and preparation, overlooking the fact counsel presented witnesses who conveyed to the jury what counsel believed was important: Solano’s traumatic upbringing with a drug-addicted mother, his time in foster care, and his being a funny, likeable child who performed well in a structured environment. The Commonwealth notes counsel’s strategy was to humanize Solano, and the evidence counsel allegedly overlooked was of the same nature as what she actually presented. The Commonwealth contends the PCRA court focused excessively on counsel’s PCRA testimony, during which she “[fell] on her proverbial sword” and asserted she lacked a reasonable basis for not calling additional life-history-mitigation witnesses. Commonwealth’s Brief, No. 647 CAP, at 23. The Commonwealth posits that, as courts are to view counsel’s self-accusations of ineffectiveness with disfavor, the PCRA court improperly emphasized penalty-phase counsel’s PCRA testimony, allowing a subjective evaluation of counsel’s performance to replace an objective inquiry. Regarding penalty-phase counsel’s failure to present mental-health mitigating evidence, the Commonwealth argues counsel made a reasonable, strategic decision not to have Dr. Dattilio testify, as his reports contained possibly inflammatory information that could have sabotaged counsel’s strategy of humanizing Solano. The Commonwealth further notes, although Dr. Dattilio’s reports contained life-history facts about Solano’s traumatic childhood and his mother’s drug addiction, these facts were made known to the jury through the other witnesses counsel called to testify. Finally, the Commonwealth [J-56A-2014 and J-56B-2014] - 53 contends counsel had no reason to believe Solano had mental-health issues; he does not contend he told counsel of any problems, Dr. Dattilio’s evaluation did not reveal any issues and indicated Solano denied having any, and Solano told Dr. Schretlen he did not want psychological evidence used in his appeal. The Commonwealth points to Dr. Schretlen’s conclusion that Solano had a “fairly mild and circumscribed cognitive disorder,” id., at 32 (quoting N.T. PCRA Hearing, 1/28/10, at 192-93), arguing this conclusion would not have been enough to establish the extreme-mental-or-emotional-disturbance mitigator, 42 Pa.C.S. § 9711(e)(2), and at best, would have only contributed to the catch-all mitigator that was already established. Therefore, the Commonwealth concludes counsel had a reasonable basis for not having a neuropsychologist evaluate Solano and testify at the penalty phase. Solano responds that penalty-phase counsel’s inexperience and lack of training adversely impacted her performance in her interviews with life-mitigation witnesses, her procurement of records, and her interaction with mental-health experts in preparing for the penalty phase. First, Solano contends counsel did not know how to conduct social-history interviews or prepare witnesses to testify, and her use of a questionnaire to seek sensitive information concerning physical or sexual abuse was inadequate. He points to the fact the interview with his mother took place in the presence of his girlfriend, which may have affected his mother’s candor about her own turbulent past, and the questions asked of his foster parents were superficial, producing very little tangible mitigation evidence. Solano notes although counsel interviewed and presented the testimony of Negron, the CYS caseworker assigned to Solano’s family, Negron actually had no one-on-one contact with Solano and thus his testimony was speculative. As for other potential witnesses, Solano points out counsel only conducted brief telephone interviews with them, and the only family members she interviewed were his mother and [J-56A-2014 and J-56B-2014] - 54 brother, despite being given contact information for other relatives. Solano states counsel, upon receiving only one- or two-word responses to her questionnaire, never followed up to gain more information. Solano argues counsel could have discovered more about his mother’s tragic upbringing and her own history of poverty, neglect, and abuse; this background could have been used to demonstrate her inability to nurture and provide structure for him. Solano claims he told counsel of his mother’s drug abuse, gave her his family contact information, and answered her questionnaire to the best of his ability, given the questions’ sensitive nature and his academic impairment. Solano argues even if he could be viewed as having been uncooperative, counsel still had enough basic information from which to conduct an independent investigation, but failed to do so. Solano further contends counsel’s investigation into available records was inadequate because she did not understand the scope and breadth of the records needed to present a compelling case for a life sentence. He notes she only obtained records bearing his name, arguing had she looked into his drug-using relatives’ institutional records, she would have learned more about his dysfunctional background, particularly his mother’s story. Although counsel had his school records, Solano asserts she did not follow up on information they contained concerning his poor academic performance, which could have implicated his mental health; furthermore, counsel failed to introduce these records at the penalty phase because she did not understand the evidentiary rules regarding introducing documents into evidence. Solano also contends counsel should have contacted and interviewed his teachers. He points out, although counsel presented his caseworker’s testimony, she did not introduce the CYS records, which contained background information concerning his family situation. [J-56A-2014 and J-56B-2014] - 55 Additionally, Solano contends counsel’s lack of understanding regarding his mental-health diagnoses and how to present the jury with such information led her to make the fatal decision not to present mental-health expert testimony at the penalty phase. Solano notes counsel decided not to call Dr. Dattilio, who had examined him twice prior to trial, because she was concerned this expert’s report contained the diagnosis of anti-social personality disorder, which the jury might find inflammatory. Solano argues counsel should have consulted Dr. Dattilio for edification concerning his diagnosis before deciding not to use him; Solano points to the numerous records PCRA counsel was able to provide this expert, which enabled him to explain his diagnosis would not have made him hesitant to testify, as such disorders are typically environmentally induced. Penalty-phase counsel, however, failed to provide Dr. Dattilio with any records and did not consult with him prior to deciding not to call him as a witness. Solano also contends there were notations in Dr. Dattilio’s July, 2002 report that should have alerted counsel of the need to retain a neuropsychologist, yet counsel failed to do so; the report mentioned significant aspects of depression, borderline intellectual functioning, and permanent disability with cognitive functioning. Solano notes Dr. Schretlen, the neuropsychiatrist retained by PCRA counsel, diagnosed him with organic brain damage resulting from his traumatic childhood and major depressive disorder, both of which were factors the jury should have been able to consider. Although the Commonwealth asserts Dr. Schretlen found merely a “fairly mild” cognitive disorder, Solano argues this expert stated even mild brain damage indicates clinically significant impairments. Finally, Solano disputes the Commonwealth’s contention that the PCRA court afforded too much weight to penalty-phase counsel’s testimony regarding her ineffectiveness. Solano argues, unlike the cases the Commonwealth cites (involving instances where counsel deliberately built in error aimed at securing the client a favorable [J-56A-2014 and J-56B-2014] - 56 position on appeal), counsel in his case was simply inexperienced and unknowledgeable, which prevented her from presenting a coherent case for a life sentence. Solano further argues, contrary to the Commonwealth’s contention, none of the mitigation evidence presented at the PCRA hearing was cumulative, as the jury heard almost nothing about his extensive history of poverty, neglect, and family dysfunction. The PCRA court held “the abject failure of [Solano’s] trial counsel at the penalty phase necessitates a new trial limited to the question of whether the death penalty is warranted in this case.” PCRA Court Opinion, 12/30/11, at 4. The court initially noted penalty-phase counsel’s general lack of experience: she was a part-time member of the public defender’s office with no prior experience in homicide cases, let alone capital ones, and no training in how to handle the penalty phase of a capital case. Id., at 37. Lead counsel did not assist her and was often unavailable to consult about her progress on the case. Id. The court further noted the public defender’s office did not employ a mitigation specialist, and counsel did not know such positions existed. Id. The office had no social workers but employed two investigators, who took their direction from the attorneys; however, due to her inexperience, counsel did not know where to begin her preparation and did not utilize the investigators. Id. Regarding counsel’s failure to present more life-mitigation witnesses, the PCRA court mentioned counsel’s hindsight belief “that she did not take the time or make the effort necessary to develop a relationship with [Solano] or to glean pertinent information about him from other sources.” Id., at 38. The court cited counsel’s admitted fear of having a frank discussion with Solano’s mother regarding her parenting deficiencies and noted counsel’s rationale for not contacting other family members was that they would not be credible witnesses, and “‘since I am probably not going to call them as a witness, why do I need to even go find them.’” Id., at 39 (quoting N.T. PCRA Hearing, 1/28/10, at 106). [J-56A-2014 and J-56B-2014] - 57 Counsel did not understand she did not have to call every person she interviewed to testify, but could instead use them simply to gain more leads for information regarding Solano’s social history. Id., at 43 (quoting N.T. PCRA Hearing, 1/28/10, at 132). The court reasoned, had counsel contacted relatives such as Solano’s uncle and extended family on his mother’s side, she would have learned that Solano’s father was a drug dealer, that Solano regularly witnessed drug sales and abuse, and that his mother suffered physical and sexual abuse as a child and was sent to an orphanage at age nine. Id., at 40. Instead, counsel “‘sort of rested back and H let [Solano’s mother] bring whoever she thought might be appropriate, to me. And she didn’t really do that, and I didn’t follow up, and try it on my own.’” Id., at 40-41 (quoting N.T. PCRA Hearing, 1/27/10, at 212). The PCRA court also reviewed counsel’s failure to introduce Solano’s records into evidence at the penalty phase, citing counsel’s admitted unfamiliarity with the admission of documents into evidence. Id., at 41 (“‘My lack of experience of how to get evidence into evidence, including all this mitigation, is part of the problem.’” (quoting N.T. PCRA Hearing, 1/28/10, at 70)). The court noted Solano’s school records revealed his excessive absences, but counsel deemed the records irrelevant. Id. (quoting N.T. PCRA Hearing, 1/28/10, at 108-09). Finally, the PCRA court condemned counsel’s decision not to call a mental-health expert witness without having consulted with one. The court again cited counsel’s lack of experience, her lack of understanding regarding Solano’s diagnoses, and her failure to prepare a social history or obtain records for Dr. Dattilio to review. Id., at 42. The court noted Dr. Dattilio’s shock upon learning he would not be called to testify, and further concluded counsel should have consulted a neuropsychologist based on the information she had. Id., at 43 . Again, the court emphasized counsel’s testimony that “no one [J-56A-2014 and J-56B-2014] - 58 supervised her or had any idea what she was doing. As evidenced by her own work, as well as her own admissions, neither did she.” Id. Accordingly, the PCRA court concluded there was a reasonable probability, “had counsel’s conduct approached anything resembling the professional standards applicable to a competent mitigation defense,” id. (citation omitted), the jury would have given more weight to the mitigating factor and returned a life sentence. Thus, the court awarded Solano a new penalty phase. Our standard of review regarding a PCRA court’s grant of penalty-phase relief based on counsel’s failure to present mitigating evidence is well settled: Generally, the question of whether the PCRA court erred in its determination that trial counsel was ineffective for failing to investigate and present sufficient mitigating evidence depends upon a myriad of factors, including the reasonableness of counsel’s investigation, the mitigation evidence that was actually presented, and the mitigation evidence that could have been presented. None of these factors, by itself, is dispositive of the question presented, because even if the investigation conducted by counsel was unreasonable, such fact alone will not result in relief if the defendant cannot demonstrate that he was prejudiced by counsel’s conduct. Commonwealth v. Ligons, 971 A.2d 1125 , 1149 (Pa. 2009) (citations omitted). Although the jury found the catch-all mitigator was established, Solano can still demonstrate prejudice by showing the jury may have given this mitigator more weight had counsel presented additional life-history mitigating evidence. See Commonwealth v. Tharp, 101 A.3d 736 (Pa. 2014) (majority of Court reasoned weighing of mitigating circumstances is qualitative, not quantitative; therefore, jury’s finding catch-all mitigator was established does not per se preclude this Court from deeming counsel ineffective because jury may have given that factor more weight had counsel proffered additional mitigation evidence); id., at 775-77 (Castille, C.J., concurring); id., at 777 (Saylor, J., concurring); id., at 778 (Eakin, J., concurring); see also Commonwealth v. Rivera, 108 A.3d 779 , 807 n.18 (Pa. [J-56A-2014 and J-56B-2014] - 59 2014) (applying Tharp); Commonwealth v. Daniels, 104 A.3d 267 , 303-04 (Pa. 2014) (same). Thus, we must determine whether there is a reasonable probability the entirety of the mitigation evidence presented at the PCRA hearing, along with that already presented at the penalty phase, may have made a difference to at least one juror’s assessment of the weight to be afforded the mitigating and aggravating circumstances. See Wiggins v. Smith, 539 U.S. 510 , 537 (2003); Commonwealth v. Malloy, 856 A.2d 767 , 789 (Pa. 2004). Furthermore, as previously noted, we are required to affirm the PCRA court’s order if there is record support for its factual findings and its legal conclusions are free from error. See Keaton, at 1060; Commonwealth v. Johnson, 966 A.2d 523 , 532 (Pa. 2009). While this inquiry involves a mixed question of law and fact, for which the standard of review is de novo, see Commonwealth v. Rios, 920 A.2d 790 , 810 (Pa. 2007), we continue to adhere to the principle that “the trial court is in the best position to review claims related to trial counsel’s error in the first instance as that is the court that observed firsthand counsel’s allegedly deficient performance,” Grant, at 737. Accordingly, where, as here, the same judge presided at the trial and the PCRA proceedings, we give great deference to the PCRA court’s findings. See Commonwealth v. Martin, 5 A.3d 177 , 197 (Pa. 2010) (citing Williams v. Taylor, 529 U.S. 362 , 396 (2000)). Here, counsel admittedly lacked experience trying homicide cases and had never tried a capital case. Lack of experience, by itself, however, does not amount to ineffectiveness. See id., at 193 (noting lawyer’s inexperience in capital cases does not render him presumptively ineffective; “inexperience alone is not equivalent to ineffectiveness[,]” and appellant still must make out elements of ineffectiveness claim (quoting Commonwealth v. Blystone, 725 A.2d 1197 , 1205 (Pa. 1999))). Counsel testified her strategy was to humanize Solano in the jury’s eyes, showing he was basically a likeable young man who had a rough childhood. Such strategy is plausible; if counsel [J-56A-2014 and J-56B-2014] - 60 can arouse the jury’s sympathy by painting a picture of the defendant’s life history, the jury may choose a life sentence instead of the death penalty. See Keaton, at 1092 (“Evidence about a defendant’s background and character is relevant because of the societal belief that defendants who commit crimes attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than those without such excuses.” (citation omitted)). Counsel, however, despite her good intentions of garnering the jury’s compassion for Solano, did not employ the means necessary to achieve this end. Solano, although closed and guarded in his interactions with counsel, was not uncooperative; however, counsel gave up on trying to elicit more detailed information from him, deciding to “go around” him by using family members for her research into his background. She used a questionnaire to attempt to elicit sensitive information from a defendant with whom she already had failed to build a good rapport, and whose academic ability was sub-par. She only interviewed two family members, and the conversation with Solano’s mother, who potentially would have had the most to tell her regarding the sordid details of Solano’s upbringing, was conducted in the presence of Solano’s girlfriend, which counsel admitted probably had a chilling effect on the mother. Additionally, counsel treated the mother with kid gloves, being afraid to upset her by probing for information concerning her tragic childhood and drug addiction; counsel inferred the mother felt guilty and ashamed about her parental shortcomings and their impact on Solano. Counsel did not attempt to expand on what little she learned from Solano’s mother by researching the mother’s records or talking to other family members to fill in the details of the mother’s story, i.e., how her drug addiction caused Solano to be subjected to extreme violence, neglect, and poverty. Counsel did not understand she did not have to call every witness she [J-56A-2014 and J-56B-2014] - 61 interviewed; therefore, she dismissed several family members from her pool of resources for information. Although counsel had Solano’s CYS records, she did not go over them with Negron before he testified; thus, his testimony concerning Solano’s childhood circumstances was general and vague. Counsel did not know how to get documents admitted into evidence, so the details in Solano’s records were lost; the witnesses counsel had hoped would share their personal knowledge about these details did little to fill in the blanks regarding the degree of neglect, trauma, and instability Solano experienced. Additionally, although Solano’s school records indicated frequent absences, counsel did not attempt to contact any school personnel to ascertain the reason for the absences; Solano’s teachers’ testimony would have corroborated the fact of his poverty and neglect, as well as emphasized he did not have behavioral issues. Rather, his teachers described a boy whose academic struggles stemmed from intellectual deficiencies. Had counsel pursued these leads, she might have been able to give the jury a more complete picture of Solano’s struggles as a child. See Daniels, at 302 (noting question might be close if only alleged deficiency was counsel’s failure to call several witnesses and question one witness more fully concerning various hardships in defendant’s childhood; however, “that unexplained lapse was heightened by counsel’s failure to pursue the leads in the school records (assuming counsel even reviewed those records). The records revealed that [the defendant] had struggled in school and eventually was placed in classes for socially and emotionally disturbed children when he was fourteen; these facts would have supported and corroborated the family accounts.”). This lack of detailed life history was compounded by counsel’s decision not to call Dr. Dattilio, who could have provided a detailed analysis of how Solano was impacted by [J-56A-2014 and J-56B-2014] - 62 the circumstances of his upbringing and opined Solano was a product of his environment, i.e., he was not a bad person and someone worth saving. Regarding the psychological angle of Solano’s case (including the diagnosis of anti-social personality disorder), counsel “didn’t know what she didn’t know,” and did not seek clarification from the available expert before nixing him as a witness. Had she sought this expert’s advice, she might have retained another mental-health expert, such as Dr. Schretlen, for further evaluation of the neuropsychological impact Solano’s childhood had on him. We conclude the combination of counsel’s lack of experience, failure to research the readily available background information possessed by family and contained in records, and lack of oversight or guidance from co-counsel resulted in counsel’s failure to present a coherent case for mitigation. See Wiggins, at 524 (noting “investigations into mitigating evidence ‘should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor[,]’” and counsel cannot meet this requirement by “abandon[ing] their investigation of [the defendant]’s background after having acquired only rudimentary knowledge of his history from a narrow set of sources” (citation omitted; emphasis in original)). The life-history and mental-health evidence presented at the PCRA hearing was not merely cumulative — it provided significant details concerning Solano’s background that were not mentioned at the penalty phase. Having determined counsel lacked a reasonable basis for not further investigating and presenting additional mitigating evidence, we must determine whether her inaction prejudiced Solano’s case, which requires us to reweigh all of the mitigating evidence before us against the aggravating factor proven by the Commonwealth. “The task of reweighing is not an exact science: we must evaluate the relative strength of the evidence in aggravation and mitigation, as well as the parties’ arguments in light of the full hybrid [J-56A-2014 and J-56B-2014] - 63 record produced at trial and upon collateral attack.” Daniels, at 304. As we recently observed: Noting again the relative paucity of the case in mitigation actually forwarded at trial, we believe that, at a minimum, there is a reasonable probability that at least one juror would have found a stronger case for mitigation under the catchall mitigator. Similarly, if counsel had presented a fuller account of [the defendant]’s life history, there is a reasonable probability that a reasonable juror would have given more weight to [the defendant]’s life history factors in assessing the catchall mitigator. Id., at 304-05. Similarly, had the evidence presented at Solano’s PCRA hearing been heard by the jury, it may have evoked sympathy for Solano, resulting in a life sentence, particularly in light of the relative strength of the sole aggravator.28 We acknowledge this is a close case, and we do not wish to exaggerate the power of undiscovered mitigation evidence; however, the PCRA court judge, who also presided at trial, was in the best position to assess the witnesses’ testimony, and there is record support for the court’s conclusion that no one, including counsel, had any idea what counsel was doing.29 See 28 The grave-risk aggravator, unlike others such as the multiple-murder or history-of-violent-felonies aggravators, 42 Pa.C.S. § 9711(d)(9), (11), could be viewed by the jury as a one-time incident, as opposed to a lifetime history of violent behavior. See Daniels, at 303 (noting although mitigation evidence counsel presented was sparse, jury still found two mitigators, and one was unanimous; jury’s finding suggested it did not view aggravators as being of such quality, as in case involving multiple murders, as to make jury unreceptive to comparative case in mitigation (citing Commonwealth v. Lesko, 15 A.3d 345 , 383-85 (Pa. 2011) (multiple murders case))). 29 We do not believe the PCRA court inappropriately focused singularly on counsel’s testimony; as the court noted, counsel was candid regarding her ineptitude at the time of trial. Furthermore, the court’s assessment of counsel’s performance was not conducted with the benefit of hindsight; counsel admittedly did not follow through on avenues of information readily available to her or seek help beyond a brief, initial meeting with a fellow member of the defense bar. See Commonwealth v. Eichinger, 108 A.3d 821 , 848 (Pa. 2014) (reasonableness of attorney’s strategy may not be evaluated with benefit of hindsight; reviewing court must determine whether trial counsel’s chosen course of action (continuedH) [J-56A-2014 and J-56B-2014] - 64 PCRA Court Opinion, 12/30/11, at 43. Accordingly, as the record supports the PCRA court’s findings, we are required to uphold the grant of a new penalty phase. The order denying guilt-phase relief and granting penalty-phase relief is hereby affirmed; jurisdiction relinquished. Mr. Justice Baer joins the lead opinion. Mr. Chief Justice Saylor files a concurring opinion. Madame Justice Todd concurs in the result. Mr. Justice Stevens files a dissenting opinion. (Hcontinued) had some reasonable basis designed to effectuate client’s best interests, and if so, counsel is deemed effective). [J-56A-2014 and J-56B-2014] - 65 | opinion_html_with_citations | 21,186 | 2015-12-23 00:06:12.713911+00 | 010combined | f | f | 3,165,003 | Eakin, J. Michael | null | C | f | Published | 0 | Commonwealth v. Solano, R., Aplt | Commonwealth | null | null | null | null | null | null | null | null | null | null | 3,023,509 | 687 CAP | 0 | pa | S | t | Supreme Court of Pennsylvania | Supreme Court of Pennsylvania |
2,121,095 | 49 Cal. App. 3d 739 (1975) 122 Cal. Rptr. 841 THE PEOPLE, Plaintiff and Respondent, v. RAFAEL VALDEZ RUIZ, Defendant and Appellant. Docket No. 12723. Court of Appeals of California, First District, Division Two. July 7, 1975. *741 COUNSEL Martin E. Henner, under appointment by the Court of Appeal, for Defendant and Appellant. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Gloria F. DeHart and Ina L. Gyemant, Deputy Attorneys General, for Plaintiff and Respondent. OPINION BRAY, J. [*] Defendant appeals from judgment of the Lake County Superior Court, after jury verdict, of conviction of violation of Health and Safety Code section 11357. QUESTIONS PRESENTED 1) The first and second prior convictions were admissible. 2) Trial counsel was not incompetent. 3) The parole consideration limitation is unconstitutional. RECORD Defendant was charged by information with, and convicted by jury verdict of violation of section 11357 of the Health and Safety Code (possession of marijuana). He was also charged with, and admitted three prior convictions, the first two of which are hereinafter described. The third was a conviction in the San Diego County Superior Court (burglary). Inasmuch as no claim is made that the evidence does not support the verdict, it is unnecessary to discuss the evidence, other than to state that it amply supports the verdict. 1) The prior convictions. [1] *742 The first prior conviction was a violation of 21 United States Code section 174 (transportation of heroin). The second was a violation of 18 United States Code section 545 (importation of marijuana). (1) At the time of the first conviction 21 United States Code section 174 provided in part, "Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury." Defendant contends that because in Leary v. United States (1969) 395 U.S. 6 [ 23 L. Ed. 2d 57 , 89 S. Ct. 1532 ], the Supreme Court held unconstitutional a similar presumption provided in 21 United States Code section 176a, the presumption in the statute under which he was convicted must necessarily be unconstitutional also. 21 United States Code section 176a prohibited the importation of marijuana or the receiving, selling, buying, transporting or concealing marijuana knowing it to have been brought into the United States contrary to law. The statute stated further, "Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury." The decision in Leary is not applicable to the statute with which we are concerned in the first conviction. The court in Leary, in determining whether the presumption denied petitioner due process, applied the standard "that a criminal statutory presumption must be regarded as `irrational' or `arbitrary,' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." ( Leary v. United States, supra , 395 U.S. 6 at p. 36 [ 23 L. Ed. 2d 57 at p. 82].) The court stated, "We therefore must consider in detail whether the available evidence supports the conclusion that the `knowledge' part of the § 176a presumption is constitutional under the standard established ... that is, whether it can be said with substantial assurance that one in possession of marihuana is more likely than not to know that his marihuana was illegally imported." ( Leary v. United States, supra , 395 U.S. 6 at pp. 45-46 [ 23 L. Ed. 2d 57 at p. 87].) After considering the available evidence the court concluded, "In short, it would be no more *743 than speculation were we to say that even as much as a majority of possessors `knew' the source of their marihuana." ( Leary v. United States, supra , at p. 53 [23 L.Ed.2d at p. 91].) The court found unconstitutional that part of the presumption which related to a defendant's knowledge that the marijuana was illegally imported. However, that the court considered the presumption in 21 United States Code section 174 (the section which defendant in the instant case attacks) might call for a different conclusion was indicated in a footnote stating: "... we intimate no opinion whatever about the continued validity of the presumption relating to `hard' narcotics, which was sustained in Yee Hem and is now found in 21 U.S.C. § 174. As will appear, our holding that the § 176a `knowledge' presumption is unconstitutional rests entirely upon a detailed inquiry into the available facts about the state of mind of marihuana users. The facts regarding `hard' narcotics may well be significantly different." ( Leary v. United States, supra , 395 U.S. 6 at p. 45 [ 23 L. Ed. 57 at p. 87].) The Yee Hem decision referred to in the footnote upheld a presumption that possession of smoking opium was sufficient evidence to authorize conviction of concealing such opium knowing it to have been illegally imported, unless the defendant could explain the possession to the satisfaction of the jury. ( Yee Hem v. The United States (1925) 268 U.S. 178 [ 69 L. Ed. 904 , 45 S. Ct. 470 ].) And, in Turner v. United States (1970) 396 U.S. 398 [ 24 L. Ed. 2d 610 , 90 S. Ct. 642 ], the Supreme Court granted a writ of certiorari to reconsider in light of the Leary decision whether the presumption authorized by 21 United States Code section 174 was constitutionally permissible when applied to possession of heroin. In Turner one of the charges against the petitioner was a violation of 21 United States Code section 174 by knowingly receiving, concealing, and facilitating the transportation and concealment of heroin while knowing that the heroin had been unlawfully imported into the United States. At trial the government presented evidence of the seizure of a package containing heroin from under the front seat of the car in which petitioner had been. No evidence was presented of the origin of the heroin possessed by petitioner, and he did not testify. The jury was instructed in accord with 21 United States Code section 174 that it could infer from petitioner's unexplained possession of the heroin that he knew that the heroin had been unlawfully imported. The petitioner was convicted. *744 The Supreme Court affirmed the conviction and stated: "... the inference authorized by the section, although frequently challenged, has been upheld in this Court and in countless cases in the district courts and courts of appeals, these cases implicitly reflecting the prevailing judicial view that heroin is not made in this country but rather is imported from abroad.... [¶] This view is supported by other official sources." ( Turner, supra , at pp. 409-410 [24 L.Ed.2d at p. 620].) The court said further, "`Common sense' ( Leary v. United States, supra , at 46) tells us that those who traffic in heroin will inevitably become aware that the product they deal in is smuggled, unless they practice a studied ignorance to which they are not entitled." ( Turner, supra , at p. 417 [24 L.Ed.2d at p. 624].) It is clear under the Turner decision that defendant's contention as regards the presumption applicable to the first prior conviction must fail. (2) Defendant's attack on the second prior conviction as not being an offense, the minimum elements of which meet the California definition of a comparable narcotics offense defined in division 10 of the Health and Safety Code, is wholly without merit. Defendant relies upon People v. Murgia (1967) 254 Cal. App. 2d 386 [ 62 Cal. Rptr. 131 ], as authority, and asserts that his own prior conviction was of 18 United States Code, section 545, the same offense discussed in Murgia. The cited case is of no aid to defendant. Therein the information charged defendant Murgia with the prior conviction of a federal offense "of the crime of Smuggling Narcotics, a felony." The court found that no comparable offense was defined in division 10 of the Health and Safety Code because "smuggling" within the meaning of the federal statute, 18 United States Code section 545, referred to the act of a defendant in surreptitiously and by concealment or fraud, avoiding customs and introducing goods into the United States. In Murgia only the term "smuggling" was considered and the court obviously turned to the definition of that term contained in the first paragraph of the federal statute. However, in the instant case the amended information charged defendant Ruiz with "importation of marijuana." The offense is described in the second paragraph of 18 United States Code section 545 as: "Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law ..." Such an offense if committed in this state clearly would be a violation of *745 section 11531 contained in division 10 of the Health and Safety Code. [2] Therefore, the prior conviction was admissible as an offense comparable to one contained in division 10 of the Health and Safety Code. 2) Trial counsel. Defendant's only charge of incompetency of counsel is that he should have explored the effect of Leary v. United States, supra , 395 U.S. 6 , and should have known that the second prior was not similar to those punishable in California. As we have shown, neither point has merit, so defense counsel cannot be charged with dereliction in not urging unfounded contentions. 3) The parole consideration limitation is unconstitutional. (3) Defendant contends that the provision in section 11357 of the Health and Safety Code (the section under which defendant was convicted) to the effect that a person convicted of possession of marijuana who has previously been convicted twice of narcotic violations such as shown in defendant's prior convictions, shall not be eligible for parole for a period of five years is unconstitutional as constituting cruel and unusual punishment. Defendant relies on In re Foss (1974) 10 Cal. 3d 910 [ 112 Cal. Rptr. 649 , 519 P.2d 1073 ], which held that the provision of former section 11501 (now § 11357) of the Health and Safety Code prohibiting the possibility of parole for 10 years of a defendant with a prior conviction was unconstitutional under California Constitution, article I, section 6, proscribing cruel and unusual punishment. In that case the defendant was convicted of five counts of furnishing heroin. He admitted being convicted some 14 years before the current charges of possession of heroin. In Foss the court (p. 923) pointed out that the purpose of the California indeterminate sentence provisions was "to mitigate the punishment which would otherwise be imposed upon the offender." The *746 court then quoted from In re Lee (1918) 177 Cal. 690 , 692-693 [ 171 P. 958 ]: "`These laws place emphasis upon the reformation of the offender. They seek to make the punishment fit the criminal rather than the crime. They endeavor to put before the prisoner great incentive to well-doing in order that his will to do well should be strengthened and confirmed by the habit of well-doing. Instead of trying to break the will of the offender and make him submissive, the purpose is to strengthen his will to do right and lessen his temptation to do wrong.'" The Foss court then stated: "These principles are especially applicable in the case of a drug dependent addict with whom the period of incarceration can potentially be used to lessen the psychological and physiological compulsion exerted upon him by the addicting substance. These lofty ideals are thwarted, however, by the provision of section 11501 precluding parole consideration for a minimum of 10 years. Thus, even though the offender may have suffered a second conviction because of his addiction, once he has been able to overcome that addiction or show a real promise of rehabilitation and of being able to remain free of further narcotic usage he may not be tried under parole supervision but must still remain in prison until the expiration of the mandatory 10-year period. This hardly serves as an impetus towards `well-doing' on the part of the prisoner." ( In re Foss, supra , at pp. 923-924.) The court refers to the recommendations of the President's Commission on Law Enforcement and Administration of Justice against the imposition of mandatory minimum sentences, and to the general opinion of experts on penology and criminal corrections to the effect that the goal of rehabilitating offenders with maximum effectiveness can best be reached with short sentences of less than five years' imprisonment. The court at some length reviews the California laws providing limitations on parole consideration and states that, "it also appears that the provision in question for second offenders provided by section 11501 is unusual in its severity when compared with punishments imposed in California upon perpetrators of more serious crimes, including second offenders." ( In re Foss, supra , at p. 925.) The court (pp. 928-929) considers the matter of parole limitations in other jurisdictions and concludes that the preclusion from parole consideration for 10 years imposed upon an offender with a prior drug conviction is unusually severe and in violation of the California Constitution. *747 In Foss (p. 919) the court stated that in In re Lynch (1972) 8 Cal. 3d 410 , 420-424 [ 105 Cal. Rptr. 217 , 503 P.2d 921 ], it had ascertained three distinct techniques used in determining whether a punishment is disproportionate to the offense and applied that test in determining that the 10-year limitation for consideration for parole contained in section 11501 was unconstitutional. "The first such technique involves an examination of the nature of the offense and/or the offender, with particular regard to the degree of danger both present to the society." ( In re Foss, supra , at p. 919.) In the instant case defendant was initially arrested for a violation of section 23102 of the Vehicle Code (driving while under the influence of alcohol or alcohol and drugs). Subsequently 17.58 grams of marijuana were found in his possession. His prior convictions occurred 18 and 20 years respectively prior to the present conviction. As was said in Foss (p. 920), "the nature of the offense and the offender with which we are concerned do not warrant the imposition of a prison term which absolutely precludes parole consideration for a minimum period" in the case at bench of five years. Although the minimum term for parole consideration here is 5 years while it was 10 in Foss, the type of narcotic there, heroin, was much more dangerous to society than is marijuana and if as Foss indicates there can be no absolute minimum parole consideration date for the offense there committed, it reasonably must be held that for the same reasons given in Foss there should be no minimum date here. "Applying the second prong of the analysis described in In re Lynch, supra , 8 Cal. 3d 410 , 426-427, it also appears that the provision in question for second offenders provided by section 11501 is unusual in its severity when compared with punishments imposed in California upon perpetrators of more serious crimes, including second offenders." ( In re Foss, supra , 10 Cal. 3d 910 at p. 925.) That conclusion is well supported by the Supreme Court's comparison of California statutes and need not be repeated here. It is clear that under this second test, the minimum parole consideration date provided in 11357 may not stand. The third analysis set forth in In re Lynch, supra , 8 Cal. 3d 410 , is to compare the California penalty to penalties in other jurisdictions for the same offense. The Supreme Court did that and concluded that the California provision was "unusually severe." The reasoning of the court with reference to the parole provision of then section 11501 fully applies to the parole provision of the section with which we are dealing. Additionally it is interesting to note that in the following states: Massachusetts, Illinois, Michigan, New Jersey, New York, Pennsylvania, *748 South Carolina, Texas, Wisconsin, and Colorado, there is no statutory minimum parole consideration time for any violation dealing with marijuana. We paraphrase the court's statement in Foss (p. 929) substituting section 11357 for section 11501 therein stated: "In summary, we have concluded that the provision of section [11357] precluding parole consideration for a minimum period of [5] years imposed upon an offender with a prior drug conviction, without regard to the existence of such possible mitigating circumstances as the addict status of the offender, the quantity of narcotics involved, [or] the nature of the purchaser ... is in violation of article I, section 6, of the California Constitution." It may very well be that in this case, in view of defendant's priors and his record as shown in the report of the Bureau of Criminal Identification and Investigation and his past parole behavior, the parole board may determine that defendant does not justify admission to parole for a considerably long time in the future, but the absolute restriction of that consideration for five years is violative of defendant's constitutional rights. In Foss, pursuant to section 11501, the defendant was sentenced to state prison for a term of 10 years to life. Upholding the validity of the statute providing for such punishment the Supreme Court said (p. 919): "The fact that a defendant imprisoned under an indeterminate sentence might be released by the Adult Authority prior to the expiration of the maximum term prescribed by law does not, therefore, affect the question whether that term constitutes cruel or unusual punishment." Likewise, for the same reason defendant's sentence in the case at bench under section 11357 of from five years to life is not unconstitutional. The provision of 11357 of the Health and Safety Code precluding parole consideration for defendant for a minimum of five years is invalid under article I, section 6, California Constitution and is therefore set aside. The Adult Authority is directed to grant parole consideration to defendant at such time as is otherwise appropriate under the laws of the state. Defendant is not entitled to release, however, until such time as the Adult Authority duly determines that he is eligible for parole under the five years to life validly imposed by section 11357. *749 The judgment is affirmed. Taylor, P.J., concurred. ROUSE, J. Although I concur in the determination that the judgment be affirmed, I do not agree that, in those cases where a defendant stands convicted of a felony narcotics offense for at least the third time, a provision in the Health and Safety Code which precludes parole consideration for such person for a minimum of five years is so disproportionate that it "shocks the conscience and offends fundamental notions of human dignity" so as to constitute cruel or unusual punishment within the contemplation of our United States and California Constitutions. ( In re Lynch (1972) 8 Cal. 3d 410 [ 105 Cal. Rptr. 217 , 503 P.2d 921 ].) I am satisfied, however, that for reasons set forth by my colleague, Mr. Justice Bray, in his opinion, the Supreme Court decision in the case of In re Foss (1974) 10 Cal. 3d 910 [ 112 Cal. Rptr. 649 , 519 P.2d 1073 ], requires that we so hold. A petition for a rehearing was denied August 6, 1975. NOTES [*] Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council. [1] Defendant does not challenge the third prior conviction (burglary) so the references hereinafter to prior convictions, unless otherwise stated, refer to the first and second convictions. [2] Section 11531 reads in part: "Every person who transports, imports into this State, sells, furnishes, administers or gives away, or offers to transport, import into this State, sell, furnish, administer, or give away, or attempts to import into this State or transport any marijuana shall be punished by imprisonment in the state prison from five years to life and shall not be eligible for release upon completion of sentence, or on parole, or on any other basis until he has served not less than three years." Section 11531 has been replaced by section 11360. | opinion_html_with_citations | 3,458 | 2013-10-30 08:22:48.129593+00 | 010combined | f | f | 2,121,095 | Bray, Rouse | null | LU | f | Published | 2 | People v. Ruiz | Ruiz | The PEOPLE, Plaintiff and Respondent, v. RAFAEL VALDEZ RUIZ, Defendant and Appellant | null | null | <docketnumber data-order="0" data-type="docketnumber" id="b609-4">
[Crim. No. 12723.
</docketnumber><court data-order="1" data-type="court" id="A5h">
First Dist., Div. Two.
</court><decisiondate data-order="2" data-type="decisiondate" id="ArH">
July 7, 1975.]
</decisiondate><br><parties data-order="3" data-type="parties" id="b609-5">
THE PEOPLE, Plaintiff and Respondent, v. RAFAEL VALDEZ RUIZ, Defendant and Appellant.
</parties><br><p data-order="4" data-type="attorneys" id="b611-4">
<span citation-index="1" class="star-pagination" label="741">
*741
</span>
Counsel
</p><br><p data-order="5" data-type="attorneys" id="b611-5">
Martin E. Henner, under appointment by the Court of. Appeal, for Defendant and Appellant.
</p><br><p data-order="6" data-type="attorneys" id="b611-6">
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O’Brien, Assistant Attorney General, Gloria F. DeHart and Ina L. Gyemant, Deputy Attorneys General, for Plaintiff and Respondent.
</p> | null | null | null | null | null | null | 1,971,503 | Crim. 12723 | 0 | calctapp | SA | t | California Court of Appeal | California Court of Appeal |
8,045,072 | Rose, J., dissenting, with whom Springer, J., agrees: The appellants were on trial in Nevada for aiding and abetting and conspiring in the making of a false insurance claim on the loss of an airplane. Once the plane was to be taken from Las Vegas, there was some indication that it was to be used for drug smuggling in Arizona and Mexico. The district court permitted the receipt of the suspected drug smuggling investigation and the arrest of the appellants in Arizona on this charge. This is obviously evidence of collateral bad acts committed by the appellants. Since I do not find their admission permitted by NRS 48.035(3) (Nevada’s res gestae statute) or the exceptions stated in NRS 48.045(2) (to establish motive, intent, knowledge and the like), the evidence was improperly received and had to prejudice the appellants. For this reason, I dissent. A confidential informant told Arizona law enforcement authorities that the appellants and others were planning to take a plane from Las Vegas with the owner’s consent. They were to use the plane for two or three days before it would be destroyed. The owner would then make a false report that the plane had been stolen. Before the plane was destroyed, the appellants would fly to Mexico and bring back a load of marijuana to an airstrip in Chandler, Arizona. Arizona law enforcement officers told Las Vegas police authorities of the plan and Las Vegas Metropolitan police officers surveilled the appellants when they arrived in Las Vegas and flew the plane from Las Vegas. Arizona officers observed the appellants arrive with the airplane in Chandler and then leave the next day. The appellants returned with the plane to Chandler, Arizona, several days later and they were arrested on Arizona charges of drug smuggling and possession of stolen property. Arizona law enforcement authorities searched the plane and no narcotics or narcotic residue was found anywhere in the airplane or on the appellants. Since there was no evidence to support the Arizona charges, the appellants were released a few hours later without posting any bail and these charges were never pursued. *877Shortly after the Arizona arrests, appellant Kirkland was offered immunity from the federal authorities if he would help law enforcement identify all others involved. He refused this offer. In Nevada, the owner reported the plane stolen three days after the appellants had taken it. The Clark County grand jury indicted both appellants on the charges of aiding and abetting the owner in making a false insurance claim and conspiracy with the owner to make a false insurance claim. No Nevada charges were made against the appellants concerning the possession or transportation of narcotics. At trial, the State established through several witnesses that the owner had purchased a policy of insurance covering a theft of the Nevada-based airplane and that the owner reported it stolen several days after appellants flew the plane from Las Vegas. The State then called Michael Stevens (Officer Stevens), an officer with the Arizona Department of Public Safety, who had been working with the confidential informant. He indicated that he called Las Vegas law enforcement authorities and told them that the appellants had travelled to Las Vegas and where they could be located. In response to a direct question concerning what he did as a result of the information from the confidential informant, he testified that he arrested the appellants in Arizona, but did not specify on what charges. He further testified that he had observed the appellants fly the plane into Arizona several days earlier and leave the next day. Before the plane took off, presumably on its trip to Mexico, Officer Stevens indicated that he placed a transponder, a locating beacon, on the aircraft. No objections were lodged to this testimony. On cross-examination of Officer Stevens, the appellants’ attorneys brought out that formal charges against the appellants were never pursued after their Arizona arrests and that some sort of federal immunity was offered to appellant Kirkland shortly after his arrest. At this stage of the trial, the jury was excused and the district court heard arguments concerning the scope of redirect examination that the prosecutor would be permitted. It was the State’s position that by inquiring into the failure to charge and prosecute after the Arizona arrest and the questions concerning immunity, the defense had opened the facts of the arrest and the grant of immunity to full development on redirect examination. The appellants strenuously objected to this because it would bring out evidence of other bad acts in violation of NRS 48.045(2). The district court ruled that since the appellants had made further inquiry into the facts subsequent to arrest and particularly because the question concerning a grant of immunity had been *878raised, the State would be permitted to inquire into the entire facts and circumstances concerning the investigation of drug smuggling and the offer of immunity. This was pursuant to NRS 48.035(3), Nevada’s res gestae statute and the exceptions stated in NRS 48.045(2), which permits introduction into evidence of prior bad acts to establish motive, intent, preparation, plan, knowledge, identity, absence of mistake, or accident. On redirect examination before the jury, Officer Stevens testified that he arrested the appellants at the Chandler airport because he had been informed that the appellants had gone south to pick up a load of marijuana and he thought that the marijuana would be aboard when the plane landed. This was part of a drug smuggling investigation that the Arizona authorities were actively pursuing. He then stated that both appellants were placed under arrest for. conspiracy to import marijuana and possession of a stolen aircraft. Officer Stevens also testified that the day after the arrests, Mr. Kirkland was offered immunity from the charges filed against him if he would cooperate, but he never accepted it. On recross-examination, the attorneys for the appellants established that no marijuana whatsoever was found on the plane and a number of facts provided by the confidential informant turned out to be false. When the district court met outside the presence of the jury, evidence had been presented that appellants had been arrested in Chandler, Arizona, that the charges on which they were arrested had never been pursued, and that some sort of immunity had been offered to appellant Kirkland. The fact of the Arizona arrests had been brought out by the prosecution, the issue of immunity established by the appellants. Rather than open the redirect examination to the entire facts surrounding the drug smuggling investigation and arrests, another avenue was available to the district court. This was to permit the State to establish that the Arizona arrests were not for the charges for which appellant was on trial in Nevada and that the immunity offered involved those other charges. This would have permitted the State to show that the arrests that were not pursued and the immunity offer related to other charges, but it would also have kept out the fact that the appellants were involved in some sort of major drug smuggling operation and then arrested for drug smuggling. While members of the jury may have had an idea that the appellants were using the plane for an illegal purpose, they would never have known for certain of the investigation and arrest. Evidence of drug smuggling was not admissible under any of the exceptions stated in NRS 48.045(2); and such facts were not *879established by clear and convincing evidence as is required for the admission of such collateral bad acts. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985). Additionally, the admission of evidence of drug smuggling was clearly outweighed by its prejudicial effect. Admitting the evidence pursuant to NRS 48.035(3) is equally flawed. Participation in the submission of a false insurance claim and drug smuggling are two distinct crimes that were alleged to have happened at different times. One crime could be described without reference to the other. In fact, the confidential informant testified of his knowledge of the plan to take the plane to Mexico and to submit a false insurance report without referring to narcotics or drug smuggling. There was a reasonable way to let the jury know that the arrest and immunity offer involved other charges unrelated to the Nevada prosecution without going into the other bad act of drug smuggling. I believe the district court erred by permitting the prosecution to bring before the jury collateral facts of the drug smuggling investigation and that both appellants were arrested in Arizona on that charge. The fact of the appellants’ Arizona arrest was brought out by the prosecution, and the appellants’ attorneys merely established that those charges were not pursued. This did not open any new area for redirect examination. The issue of immunity was brought out by the appellants and the State should have been permitted to establish that the immunity offer was unrelated to the Nevada charges. The fact that the appellants may have opened the door for additional examination on the immunity issue does not mean that the door should have been thrown wide open on redirect examination and all facts concerning the drug investigation and arrest presented to the jury. For the reasons stated, evidence of collateral bad acts was admitted in violation of NRS 48.045(2), and I would reverse this case and remand it to the district court for a new trial. I, therefore, dissent from the majority opinion affirming the appellants’ convictions. | opinion_xml_harvard | 1,574 | 2022-09-09 03:52:04.314579+00 | 040dissent | t | f | 8,085,309 | Mowbray, Rose, Springer, Steffen, Young | null | U | f | Published | 0 | James v. State | James | LOWELL JAMES and SIDNEY KIRKLAND v. THE STATE OF NEVADA | null | null | null | null | null | null | null | null | null | 65,180,918 | No. 19603 | 0 | nev | S | t | Nevada Supreme Court | Nevada Supreme Court |
7,260,131 | Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit denied. *849Same case below, 390 Fed. Appx. 652. | opinion_xml_harvard | 24 | 2022-07-25 06:46:11.499965+00 | 020lead | t | f | 7,342,202 | null | null | U | f | Published | 0 | Rodriguez v. United States | Rodriguez | Oscar Guerra Rodriguez, Jose Murillo, and Tommy Moreno v. United States | null | null | null | null | null | null | null | null | null | 64,330,694 | No. 10-7921 | 0 | scotus | F | t | Supreme Court | Supreme Court of the United States |
5,348,852 | Motion for leave to appeal to the Court of Appeals or for a reargument and for a stay denied, with ten dollars costs. Present — Martin, P. J., McAvoy, O’Malley, Untermyer and Cohn, JJ. | opinion_xml_harvard | 34 | 2022-01-08 06:30:25.393016+00 | 020lead | t | f | 5,508,933 | null | null | U | f | Published | 0 | Diloff v. Burk | Diloff | Julius Diloff v. Samuel B. Burk, Impleaded, etc. | null | null | null | null | null | null | null | null | null | 61,861,296 | null | 0 | nyappdiv | SA | t | Appellate Division of the Supreme Court of New York | Appellate Division of the Supreme Court of the State of New York |
3,299,818 | This appeal is from a judgment of conviction of the defendant upon a charge of murder and from an order denying his motion for a new trial. Upon the arraignment of the defendant upon such charge, had upon March 28, 1928, he waived time to plead and entered his pleas as follows: "(a) Not guilty as charged in the information; (b) Not guilty as charged in the information by reason of insanity." The cause came on for trial upon *Page 66 April 17, 1928, whereupon his counsel moved the court to permit the defendant to place the defense of insanity before the jury upon the trial of the defendant upon his plea of "not guilty." This motion the trial court denied. The request of the defendant to have his plea of "not guilty by reason of insanity" presented to the jury at the inception of the trial upon the defendant's plea of "not guilty" was also denied. The trial of the cause upon the defendant's plea of "not guilty" was then proceeded with before the court and jury, during the course of which all of the facts and circumstances surrounding and for a considerable period of time preceding and also succeeding the commission of the homicide were exhaustively, and without any objection from either side, made the subject of inquiry, during the course of which the defendant himself volunteered to take the witness-stand and testify fully as to his relations with the husband, family and friends of the murdered woman, during the giving of which testimony he denied the commission of the crime. At the conclusion of the testimony upon the defendant's plea of "not guilty" his counsel requested permission of the court to argue the question of the defendant's insanity to the jury, which request was refused by the trial court. Thereupon the cause, having been otherwise argued, was submitted to the jury, which, after instructions by the court, retired and presently returned a verdict finding the defendant guilty of murder in the first degree without recommendation. Thereupon the trial court proposed to proceed with the further hearing of the cause upon the defendant's plea of "not guilty by reason of insanity," to which the defendant objected, and in support of such objection offered the plea of "once in jeopardy." The trial court overruled such objection and denied said plea, and in so doing informed counsel for the defendant that the burden of supporting the plea of insanity rested upon the defendant, and inquired whether the defendant desired to offer any such evidence, to which his counsel responded that he did not, declaring it to be the defendant's intent to stand strictly upon his constitutional rights at the time. In this state of the case the prosecution stated that it also had no evidence to offer; and thereupon, and under certain instructions of the trial court touching the plea of insanity, which are not herein assailed, *Page 67 the cause was resubmitted to the same jury upon the defendant's plea of "not guilty by reason of insanity"; whereupon the jury retired and presently returned a verdict finding that the defendant was sane at the time the offense charged in the information was committed. Upon the defendant's motion for a new trial it was made to affirmatively appear that while the jury at the outset of the trial was sworn to well and truly try the cause in conformity with the provisions of section 1046 of the Penal Code, the jury was not resworn at the time the trial upon the defendant's plea of "not guilty by reason of insanity" was entered upon. The court denied the defendant's motion for a new trial upon this as well as upon the other grounds urged, and the judgment and sentence followed, from which this appeal has been taken. We are thus brought to a consideration of the nature, interpretation and effect of those amendments to the Penal Code which were enacted by the legislature in 1927 (Stats. 1927, pp. 1148, 1149), and are embraced in sections 1016, 1017, 1020 and 1026 of said code. In order to proceed logically with such consideration it is necessary to refer briefly to the state of the law regulating the procedure of criminal trials prior to the enactment of these amendments to the Penal Code. By the provisions of section 1016 of said code as it read prior to its said amendment, four pleas were permitted to a defendant at the time of his arraignment. These were "guilty," "not guilty," "former conviction or acquittal" and "once in jeopardy." Upon entering a plea of "not guilty" the defendant put in issue every material allegation of the indictment or information. (Pen. Code, sec. 1019.) Upon such plea and during the ensuing trial the defendant, in all crimes to which the existence of a criminal intent was essential, was presumed to be sane until the contrary was established by a preponderance of evidence. ( People v. Williams, 184 Cal. 590 , 593 [ 194 P. 1019 ].) Upon such plea and trial the defendant was presumed to be innocent until the contrary was proved. (Pen. Code, sec. 1096.) While this presumption of innocence prevailed over many of the other disputable presumptions, such as those referred to in Hunter v. Hunter, 111 Cal. 261 [ 52 Am. St. Rep. 180 , 31 L.R.A. 411 , 43 P. 756 ], it did not prevail over such conclusive presumptions *Page 68 as are referred to in sections 1961 and 1962 of the Code of Civil Procedure; nor did the presumption of innocence prevail over the presumption that every person is sane, since under the provisions of section 1105 of the Penal Code in trials for murder the commission of the homicide by the defendant being proved, the burden of proving insanity as an excuse for the homicide devolved upon the defendant, and such evidence must have been sufficient to overcome this presumption in order to enable the defendant to rely upon the presumption of innocence for an acquittal based thereon. ( People v. Harris, 169 Cal. 53 , 69 [ 145 P. 520 ].) Upon a trial for murder, which consisted in the unlawful killing of a human being with malice aforethought (Pen. Code, sec. 187) and which required proof of a deliberate intention unlawfully to take away the life of a fellow creature (Pen. Code, sec. 188), such intention was to be manifested by the circumstances connected with the offense (Pen. Code, sec. 21) and the prosecution was not only entitled to show all of such circumstances for the purpose of proving such intent, but the defendant was also entitled to have admitted in evidence all of the facts and circumstances attending the commission of the homicide for the purpose not only of disproving intent but also, in all cases wherein murder of the first degree was charged, for the purpose of mitigation. (Pen. Code, sec. 1105.) The term "mitigation" as used in the above section of the Penal Code has a well defined meaning. It means "reduction, diminution, lessening of the amount of a penalty or punishment." (2 Bouvier's Law Dictionary, Rawle's third rev., "Mitigation.") Or, as more fully stated in Black's Law Dictionary, second edition: "Mitigatng circumstances are such as do not constitute a justification or excuse of the offense in question, but which in fairness and mercy may be considered as extenuating or reducing the degree of moral culpability." (See, also, "Words and Phrases," second series, "Mitigation.") In all cases of first degree murder it was and still is provided by section 190 of the Penal Code, "that every person guilty of murder in the first degree shall suffer death or confinement in the state prison for life at the discretion of the jury trying the same." In commenting upon this provision of the Penal Code in the case of People v. Perry, 195 Cal. 623 , 635 [ 234 P. 890 , 897], this court *Page 69 declared that, "It is the jury's right and duty to consider and weigh all of the facts and circumstances attending the commission of the offense and from these and such reasons as may appear to it upon a consideration of the whole situation, determine whether or not in the exercise of its discretion life imprisonment should be imposed rather than the infliction of the death penalty." The foregoing statement of the law was quoted and expressly approved in People v. Hall, 199 Cal. 451 , 456 [ 249 P. 859 ], and it amounts to no more than a restatement of the settled law in this state as announced in the early case of People v. Jamarillo, 57 Cal. 111 , 114. In the case of People v. Witt, 170 Cal. 104 , 111 [ 148 P. 928 ], the following limitation was placed upon the extent of the application of the foregoing rule in a case wherein the defense of insanity was not presented or relied upon by the defendant and wherein the evidence offered and refused admission did not consist of any of the facts and circumstances connected with the commission of the offense charged, but consisted wholly of evidence relating to the character and previous habits of the defendant. This court held that such evidence was not admissible for the sole purpose of enabling the jury to assess the punishment, in the event of conviction, at death or life imprisonment. This conclusion was adopted by the district court of appeal in People v. Golsh, 63 Cal.App. 612 , 613 [ 219 P. 456 ], wherein the defense of insanity had been expressly disclaimed by the defendant. It will thus be seen that the rule as stated in the two foregoing cases while in no way impinging upon the doctrine laid down in People v. Perry, supra, may have an important bearing upon cases to which the recent amendments to section 1016 et seq. of the Penal Code may be given application. The foregoing statement of the law as it previously existed governing the trial of cases wherein the defendant was charged with murder in the first degree has also an important bearing upon the question as to what changes in principle or procedure have been effected by the foregoing recent amendments of the Penal Code. It is to be noted that these amendments and changes in said code do not expressly purport to amend or repeal any other of the provisions of the Penal Code than those thus immediately amended or changed. In view of the well-settled and very *Page 70 salutary rule that the amendment or repeal of sections of our codes, and especially of our Penal Code, by implication is not to be favored and is only to be tolerated where no reasonable basis for harmonizing the new with the older enactments can be found, it becomes our duty to endeavor so far as is reasonably possible to reconcile these new changes in our Penal Code with those older procedural provisions which are not expressly affected thereby. [1] In such endeavor and in the entire absence of any expressed intent on the part of the legislature in the enactment of these recent changes in the procedure of criminal trials to essay or to accomplish any other, greater or more radical change in our long-established criminal procedure than that to which these amendments expressly relate, we are constrained to hold that the cause at issue between the People of the State and the defendant as presented by the indictment or information and by the defendant's several allowable pleas thereto, in so far as the same is affected by these amendments, remains a single cause and the trial thereof a single trial. We are enforced in this conclusion not only by the aforesaid principle which frowns upon repeals by implication but also by a consideration of the plea of insanity as a defense in criminal causes involving intent and deliberation. It is a canon of the law of crimes existing from antiquity and having its foundation in judicial experience that all persons charged with the commission of offenses against the law are presumed to be sane to the extent of intending the ordinary consequences of their voluntary acts. This presumption, which has been embodied in our law by virtue of the provisions of subdivisions 2 and 3 of section 1963 of the Code of Civil Procedure, is made a form of evidence by the terms of sections 1957, 1959 and 1961 of the same code; and under the latter section this presumption, unless controverted by other evidence, is made conclusive upon the jury trying such a cause. By the terms of section 1105 of the Penal Code it is provided that upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances which excuse it devolves upon the defendant. The defense of insanity existing in the defendant at the time of the commission of the homicide is a defense which does not in most cases have its foundation in the facts and *Page 71 circumstances attending its commission but depends, as a rule, upon the proof of antecedent facts and conditions which serve to show such a mental state as would make the defendant incapable of exercising that degree of criminal intent which would render his homicidal act a crime. To quote the apt words of Danforth, J., in the leading case of State v. Lawrence, 57 Me. 574 , 583, in dealing with the plea and proof of insanity: "Here as everywhere in the law sanity is assumed and treated as an essential attribute of humanity. The indictment follows the statute, setting out all of the acts deemed essential to the crime, but omitting all reference to the capacity of the accused. Of all that is set out in the indictment he is presumed innocent and that must be proved and nothing else unless he interposes some defense other than a sane denial of the allegations against him. A simple plea of not guilty puts in issue the allegations and only the allegations in the indictment, and as to them the prosecution has the affirmative. But if the accused would put in issue any other allegation, any question of his capacity or responsibility, he must do it by an affirmative statement. If he puts in the plea of insanity he assumes the affirmative, he changes the issue. It is true it may be resorted to in connection with the plea of not guilty, but it is not and cannot be a part of it. The plea of insanity is and of necessity must be a plea of confession and avoidance." The foregoing language of Judge Danforth is quoted with approval in Wigmore on Evidence in dealing with the affirmative nature of the plea of insanity and of the burden of its proof. (5 Wigmore on Evidence, 2d ed., p. 484.) [2] It is thus made clear that the presentation and proof of insanity in the person committing the homicide do not in any degree diminish the quality of the homicide as an unlawful act. The homicide in question may have every attribute of beastliness. It may have been conceived, attended and executed with the craftiness and cunning of the fox, the bloodthirstiness and lying-in-wait of the tiger, the cruelty and cowardliness of the hyena, the cold ferocity of the most secretive and deadly of serpents; it may exhibit in its attendant facts and circumstances not a single redeeming incident entitling the defendant to offer any plea for mercy, and yet, if he or those who would save him from punishment are able affirmatively *Page 72 to prove by preponderating evidence a state of mind in the defendant amounting to a lack of capacity to form a criminal intent at the time of the commission of the homicide, which is the test of sanity, he cannot lawfully be found guilty of murder. The proofs of a state of mind in the defendant at the time of the homicide amounting to legal insanity lie in most instances peculiarly within the knowledge of those who by ties of blood or of past association are most familiar with the defendant's mental qualities and deficiencies, and it is for this reason that by the long-established law the burden of affirmatively establishing the plea of insanity has devolved upon the defendant after a time in the progress of the cause when his plea or pleas have been presented, when the presumption of sanity has attached and when the prosecution has shown the commission of the homicide by the defendant. (Pen. Code, sec. 1105.) [3] It has thus been established as a result of long judicial experience that the plea and proofs of insanity are not only such as the defendant must affirmatively offer, but that they are also such as, in the nature of things, and as a rule, are separable from the facts and circumstances attending the commission of the homicide. The plea of insanity as well as the proofs which support it more nearly resembles the plea and proofs of "once in jeopardy," or of "prior conviction or acquittal," than they do, for instance, the plea and proofs of self-defense, in the twofold aspect that, first, the former pleas and the proof thereof do not tend in any degree to diminish the unlawfulness of the homicide, nor, second, do they relate to the facts and circumstances of its commission; while the plea and proofs of self-defense are inextricably interwoven with the facts and circumstances of the homicide, and, if sufficiently established, destroy utterly its unlawful attribute. The legislature of this, as of most other states, has for the foregoing reason provided that the pleas of "once in jeopardy" and of "former conviction or acquittal" must, if relied upon by the defendant, be made separately, and are not provable under the plea of "not guilty." (Pen. Code, secs. 1016, 1017.) In the state of New York, from which these sections of our Penal Code have been bodily taken, and in the case of People v. Connor, 142 N.Y. 130 [ 36 N.E. 807 ], it has been held that when the defendant tendered *Page 73 the plea of "not guilty" and also the separate plea of "former conviction" it was within the discretion of the trial court, even in the absence of an express statute, to order the trial first upon the special plea, and after the hearing and finding of the jury upon that plea, to proceed before the same jury upon the defendant's plea of "not guilty," the court holding that the proceedings upon both issues constituted but one continuous trial; and further holding that the application of the defendant, after the finding and verdict of the jury against him upon his special plea, for permission to re-examine the members of the jury before proceeding upon his plea of "not guilty" as to their qualifications to further act as jurors in view of their determination against him upon his special plea, was properly denied. The court said: "There was but one indictment and one charge, and the defendant's pleas constituted his answer and defense to the accusation. He was entitled to but one trial and could demand but one jury. The order in which the issues should be disposed of was a matter in the discretion of the court, which had power to direct them to be tried separately or together; and whatever course was adopted the trial must be one continuous proceeding, and the rights of the defendant with respect to the examination of the jury were the same as if the plea of `not guilty' alone appeared upon the record. He had no more right to stop the trial while in progress in order to ascertain the effect which the evidence given had upon the minds of the jury than he would have had if there was only a plea of the general issue." In a recent case decided in the state of Wisconsin, and which involves a direct application of the foregoing principles to the plea of insanity, the supreme court of that state was called upon to interpret and apply an act of its legislature which provided that a defendant in a criminal action who claimed that he was insane at the time of the commission of the alleged crime should be required to plead his insanity separately but with the plea of "not guilty," and which further provided that the issue upon the plea of insanity should be first tried by the jury impaneled to try the cause and that the verdict of the jury upon that plea should be taken before the case was tried upon the plea of not guilty, and that if the verdict of the jury upon such former plea was that the defendant was *Page 74 not insane at the time of the commission of the defense, the finding of the jury to that effect should be final and conclusive upon the question of the insanity of the defendant upon his trial upon the plea of "not guilty." Upon an appeal by the defendant upon a charge of murder from a judgment of conviction arrived at in pursuance of the procedure provided for in said statute practically every question which is presented in the instant case was considered and decided by said court in its decision of the case of Bennett v. State of Wisconsin, 57 Wis. 69 [ 46 Am. Rep. 26 , 14 N.W. 912 ], to which we shall later and more particularly refer. We have thus far been considering the state of the law as contained in our Penal Code and interpreted by the courts of this and other jurisdictions prior to the recent changes effected by the amendment or enactment of sections 1016 , 1017 , 1020 and 1026 of the Penal Code. The substance of these amendments and changes is to provide for the addition of a new and special plea to those already enumerated in sections 1016 and 1017 of the Penal Code, viz., the plea of "not guilty by reason of insanity." In so far at least it could hardly be seriously contended, in view of the principles and course of judicial decision above referred to, that in so providing the legislature has to any extent invaded the constitutional rights of any defendant in a cause wherein he may be entitled to avail himself of such special plea. The defendant herein made no such contention when required at his trial to present such special plea and he urges no such contention upon this appeal. It was, however, further provided by the addition of section 1026 to the Penal Code that "When a defendant pleads `not guilty by reason of insanity' and also joins with it another plea or pleas he shall first be tried as if he had entered such other plea or pleas." [4] Thus far also we are unable to discover any vital or constitutional defect in the changed order of procedure provided for in the portion of the new section 1026 above quoted, since, if our foregoing reasoning in this opinion is correct in the conclusion that but a single cause and but a single trial was before the trial court for its full determination and that the body of our criminal law in this respect has not been changed by these recent enactments, and if our conclusions are also correct to the effect *Page 75 that the plea of insanity is a separable plea; that the burden of making the proofs in support of such plea is a burden affirmatively cast upon the defendant presenting it, and that in the ordinary and usual course of judicial experience the proofs to be proffered in support of such plea are such as exist antecedently to the commission of the homicide and are thus disconnected with the facts and circumstances which immediately precede, attend and follow its commission; and if we are further correct in our foregoing conclusion that the plea and proof of insanity existing in the state of the defendant at the time of his commission of a homicide, even if fully established, in no degree operates to diminish the unlawful quality of the homicidal act, then it seems to us to logically follow that it would be competent in the legislature to provide for separate hearings in the course of the single trial of a single cause involving such separate pleas, issues and proofs, and that the order of such separated hearings would be a matter lying entirely within the discretion of the legislature, invested as it is with the power to provide by law for the procedural courses of criminal trials within the limits of the constitutional rights of persons accused of crime. We are unable to perceive that the constitutional right of trial by jury has been invaded by the procedural changes in the code thus far considered, our more extended views upon this branch of the question being expressed in the case of People v. Troche, ante, p. 35 [ 273 P. 767 ]. We desire, however, at this point to express our full approval of the decision of the supreme court of Wisconsin in the case of Bennett v. State, supra, as to the singleness of the cause and trial and as to the point that the jury to which has been submitted one of the separable pleas and issues which arise in the course of a criminal trial, and which renders a verdict thereon, is not thereby, under proper instructions as to their legal and limited duty, disqualified to hear and determine successfully the issues presented by the defendant's other and separate pleas. We have already quoted to the same effect the decision of the New York court of appeals in the case of People v. Connor, supra. [5] We come now to consider the further provision of the recent amendments to the Penal Code embodied in section 1026 thereof, to the effect that upon the trial of a defendant *Page 76 upon his plea of "not guilty," who has pleaded "not guilty by reason of insanity," he shall be conclusively presumed to have been sane at the time the offense is alleged to have been committed. As we have already seen, the presumption of sanity is inherent in criminal trials, and while at the outset of such trials under our procedure, in the course thereof, prior to the recent changes therein, it was a disputable presumption, it could only be disputed by the defendant upon his affirmative assumption of the burden of disproving it under his general plea of "not guilty"; and if he either repudiated such plea or refused to assume such burden the presumption of his sanity became conclusive upon the jury trying the cause. (Code Civ. Proc., sec. 1961 ) When, therefore, the legislature saw fit to limit the defendant's plea of "not guilty," so that it no longer included the defense of insanity and hence the right of the defendant in the absence of such special plea to offer under the limited plea of "not guilty" his proof of such defense, and when the legislature further provided that the right of the defendant to make such defense should be preserved to him in the form of a special plea and that his proofs in support of such defense should be heard in a separate hearing before a jury, the effect of such changed procedure would logically be to render the presumption of sanity conclusive even in the absence of the provision in the new section 1026 making it so, for the very reason that proof to rebut it was no longer presentable under the recently limited plea of "not guilty," and we are thus brought back to the original question as to the power of the legislature to provide for a separation of the plea of insanity from the plea of not guilty and for a separate trial of such separated issue; and we have already held that the legislature possessed such power. It follows irresistibly that when the defendant in the instant case demanded of the trial court the right to offer evidence upon his plea of insanity during the trial upon his limited plea of "not guilty" he was doing nothing more than demanding the right to present evidence upon an issue which his plea of "not guilty" had not presented and which was not at that stage of the trial before the court or jury; and the same reasoning applies to the demand of the defendant of the right to present argument before the jury upon the issue of insanity during the *Page 77 hearing upon the issue of "not guilty"; and this is peculiarly true by reason of the fact that no evidence of any kind had up to that time been presented upon which such an argument could have been predicated. The defendant had been permitted, and properly permitted, to offer and have received in evidence all of the facts and circumstances relating to, attending and succeeding the commission of the homicide, and he was entitled to present and was not prevented from presenting to the jury those facts and circumstances with every inference or argument which might be drawn therefrom touching whatever defenses are now available to a defendant upon the plea of not guilty and also as were formerly and are still presentable in mitigation of punishment. The trial court, therefore, assuming our previous conclusions to be sound, committed no error in denying the foregoing two requests on the part of counsel for the defendant. [6] The defendant's next contention was that he had a right to plead "once in jeopardy" at the conclusion of the hearing and return of the verdict upon his plea of not guilty and at the inception of the further hearing upon his plea of insanity. We have recently held that there is no merit in this contention for the reasons stated in People v. Coen, 205 Cal. 596 [ 271 P. 1074 ]. [7] The defendant's next and final contention is that the jury was not resworn to try the issue of insanity. At the inception of the cause the members of the jury, after having been duly impaneled, were administered the usual oath in the form prescribed by section 604 of the Code of Civil Procedure. This oath expressly covered the cause or matter at issue between the People and the defendant, and hence necessarily covered each and all of the various issues thereof to be successively presented to the consideration of the jury. The cause being single, the administration of no further oath during its progress was required. We deem it timely to restate in conclusion certain of our foregoing deductions for the purpose of clarifying the procedural courses of jury trials under the changed scope and order of the issues presentable in view of the aforesaid recent amendments to the Penal Code. [8] Under the present plea of "not guilty" and upon the hearing thereon the consideration of the jury is expressly limited to the determination *Page 78 as to whether the defendant committed the homicide in question and as to whether he is to be held responsible therefor if sane at the time of its commission and as to the mitigation, if any, of his punishment in the event of a finding of guilty upon such plea. It would be the duty of the trial court, either at the inception of the hearing upon that issue, or at the conclusion of the evidence and argument thereon, as was done in the instant case, to fully instruct the jury as to their limited functions upon such plea. We must assume that a fair and impartial jury of intelligent men and women would obey such instructions and would therefore hold in reserve their ultimate finding upon the issue of the defendant's sanity until that separate issue and the evidence supporting it had, in the prescribed order of the trial, been committed to it for determination. We are not to assume that such a jury will cease to be fair and impartial as the cause progresses upon its successive issues, but, on the contrary, we must assume, in the absence of any other showing, that the jury has retained its attitude of fairness and impartiality under the changed procedure as before until the whole cause, submitted to it successively for its consideration, has been determined. There is no showing that such was not the precise situation in the instant case, nor was there any evidence presented or, so far as the record before us discloses, presentable, tending in any degree to show that this defendant at the time of his commission of this brutal and atrociously cruel murder was other than entirely sane and responsible. There may be other problems which are yet to present themselves under this changed procedure, but these are not presentable upon the record in the present case. The judgment is affirmed. Waste, C.J., Shenk, J., Langdon, J., Curtis, J., and Seawell, J., concurred. | opinion_html_with_citations | 5,534 | 2016-07-05 17:16:27.178237+00 | 020lead | f | f | 3,300,797 | Preston, Richards | null | ZU | f | Published | 104 | People v. Leong Fook | null | The PEOPLE, Respondent, v. LEONG FOOK, Etc., Appellant | null | null | <docketnumber id="b102-4">
[Crim. No. 3143.
</docketnumber><court id="ATz">
In Bank.
</court><decisiondate id="A_J">
December 27, 1928.]
</decisiondate><br><parties id="b102-5">
THE PEOPLE, Respondent, v. LEONG FOOK, etc., Appellant.
</parties><br><attorneys id="b103-9">
<span citation-index="1" class="star-pagination" label="65">
*65
</span>
Russell & Heid, Glenn L. Moran and Calvin L. Russell for Appellant.
</attorneys><br><attorneys id="b103-10">
U. S. Webb, Attorney-General, John L. Flynn, Deputy Attorney-General, Leroy McCormick and Leslie A. Cleary for Respondent.
</attorneys> | null | APPEAL from a judgment of the Superior Court of Tulare County. Frank Lamberson, Judge. Affirmed.
The facts are stated in the opinion of the court. | null | null | null | null | 3,172,918 | Docket No. Crim. 3143. | 0 | cal | S | t | California Supreme Court | California Supreme Court |
7,539,825 | OVERTON, Justice. The Supreme Court of Florida does not have common law certiorari jurisdiction. Art. V, § 3, Fla. Const. The “Petition for Writ of Certiorari” will, therefore, be treated as a petition for discretionary review and/or appeal. See Fla.R.App.P. 9.040(c). Because no jurisdictional basis has been alleged to support the petition for discretionary review or the appeal, this case is hereby dismissed. See St. Paul Title Insurance Corp. v. Davis, 392 So.2d 1304 (Fla.1980); Jenkins v. State, 385 So.2d 1356 (Fla.1980). The appeal is subject to reinstatement if jurisdiction is established on proper motion filed within fifteen days from the date of this order. See Art. V, § 3(b)(1), Fla. Const. No motion for rehearing or for clarification may be filed in the Court addressed to the denial of the petition for discretionary review. See Fla.R.App.P. 9.330(d). It is so ordered. BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur. | opinion_xml_harvard | 154 | 2022-07-29 05:24:35.064381+00 | 020lead | t | f | 7,609,247 | Adkins, Alderman, Boyd, Ehrlich, McDonald, Overton, Shaw | null | U | f | Published | 0 | Vetrick v. Hollander | Vetrick | Joseph VETRICK v. Susan Lee HOLLANDER | null | null | null | null | null | null | null | null | null | 64,610,315 | No. 66358 | 0 | fla | S | t | Supreme Court of Florida | Supreme Court of Florida |
6,155,711 | Max J. Wolff, Referee. The defendant, a foreign corporation, engaged in the manufacture and sale of fire brick and clay, appears specially herein and objects to the jurisdiction of the court, contending that it is not doing business within the State and is not subject to the process of this court in an action brought against it by a resident of New York. Defendant’s home office is in Cleveland, Ohio, and it maintains factories in various parts of the United States, but none in New York. There is to be found, however, in the office building at 50 Church street, within the city of New York, a small office which bears defendant’s name, and no other, upon the entrance door thereof. Defendant’s name is also posted upon the bulletin board in the lobby of that building. The New York City Telephone Directory lists the defendant at the 50 Church street address. Letterheads of the defendant in use at the New York office carry defendant’s Cleveland address, but contain in addition thereto the following notation, conspicuously printed in red letters: “ Address reply to 50 Church Street, phone Cortlandt 7-3963, New York, N. Y.” The lease of the office in question is in the name of an employee of the defendant, one H. B. Titus. Mr. Titus testified that he is the acting district sales manager of the defendant within the State of New York, and also that he signs various communications as district representative. He testified that the defendant employs one other salesman in New York who is his subordinate, and that the two men make their headquarters at the office leased by Titus. This office is devoted entirely to defendant’s business. The rent therefor is paid with funds supplied by the defendant to Titus for that purpose and for other expenditures incidental to the conduct of the office and of defendant’s business. The funds are kept by Titus in a local bank in an account entitled, “ H. B. Titus, Special;” the average amount on deposit is $400. The furniture in the office, of slight value, is owned by the defendant. It must be conceded that defendant’s property within the State is negligible. *766The salaries of Titus and the other salesman are paid by the defendant’s home office. Titus and his associate salesman are employed on a salary basis and devote all their time to the business of the defendant. Titus employs a young woman stenographer and pays her out of the aforementioned “ H. B. Titus, Special ” account. Defendant has no other employees in New York. Titus and his associate are constantly and systematically engaged within the State of New York in soliciting business for the defendant. Their activities result in the continuous shipment by the defendant of its product into and outside of the State of New York. It was testified by Titus that the shipments into this State attain a monthly average of approximately $14,000. Shipments are made in every case from factories without the State “ f. o. b. plant.” Orders received by Titus from new customers are transmitted to the home office in Cleveland and are there accepted or rejected, presumably after due investigation of the customer’s credit standing. In the case of orders received from approved accounts, that is to say, from customers who have previously done business with the defendant and whose credit standing has been found satisfactory by the defendant’s home office, and who have thus established a permanent relationship with defendant’s New York office, Titus promptly transmits the order to the factory, by means of a teletype machine which the defendant caused to be installed in the 50 Church street office for the use of Titus. This practice is always followed in the case of a rush order from an approved account if the amount of the order is not unusually large; and the testimony affords some reason to suppose that it is followed in the case of every normal-sized order from such an account. As a general rule, prices are established by the Cleveland office, but Titus was sometimes authorized to quote varying prices in order to meet competition. Orders received on the basis of prices thus quoted by Titus required the approval of the home office, but were, as a matter of fact, in no instance rejected. Defendant’s customers in New York make payment directly to the Cleveland office, but when instructed to do so, Titus undertakes the collection of delinquent accounts. The facts here outlined resemble closely those present in Tauza v. Susquehanna Coal Co. (220 N. Y. 259). The principles of that case and of Cochran Box & Mfg. Co., Inc., v. Monroe Binder Board Co. (197 App. Div. 221; affd., 232 N. Y. 503) are controlling. The presence of a solicitor or of an agent within the State does not subject the corporation which employs him to the jurisdiction of the State where he operates. The position of Titus, however, is of considerably greater import than that of a mere solicitor or agent *767and the extended activities in which he and his associate are engaged are sufficient to subject the defendant to the processes of the courts of this State. The controlling force of Tauza v. Susquehanna Coal Co. (supra) has been questioned to some extent (e. g., Day & Co. v. Schiff, Lang & Co., 278 Fed. 533; Halpern v. Pennsylvania Lumber Industries, 137 Misc. 688). It was conceived that the State courts, in determining whether a corporation is doing business within the State, are invariably bound to follow the Federal decisions. This conception was supported in a measure by the following dictum found in Chipman, Ltd., v. Jeffery Co. (251 U. S. 373, at p. 379): “ we do not wish to be understood that the validity of such service as here involved would not be of federal cognizance whatever the decision of a state court.” However, in Kansas City Structural Steel Co. v. Arkansas (269 U. S. 148, at p. 150) it was said: “ We accept the decision of the Supreme Court of Arkansas as to what constitutes the doing of business in that State within the meaning of its own laws.” In the light of Kansas City Structural Steel Co. v. Arkansas (supra), it is clear that each State may determine for itself whether a foreign corporation is doing business within the State within the meaning of its own laws unless assumption by the State courts of jurisdiction over the foreign corporation is so unreasonable as to come into conflict with the due process requirements of the Federal Constitution. In the instant case the extent and nature of defendant’s activities within the State are such that it is actually brought here and is properly subjected to the jurisdiction of this court. Since the due process provisions of the Federal Constitution are not involved and since there is nothing to show that the service effected upon the defendant constitutes an undue burden upon interstate commerce, no Federal question is presented and the decisions of the courts of this State should be followed. The defendant places reliance upon. Pennrich & Co., Inc., v. Juniata Hosiery Mills, Inc. (247 N. Y. 592). Examination of the record discloses that the foreign corporation in that case operated through an agent who acted on a commission basis and who sold goods, also on a commission basis, for one other manufacturer. Such an agent is not an employee of the foreign corporation but is independent thereof and his presence and activities do not bring the corporation into the State. The entrance door of the office occupied by the sales agent carried the name of the agent and of both companies he represented, and was maintained for the transaction of the business of the agent, to be distinguished from *768that of the corporation, which did not, so far as appears, pay the rent or office expenses. Davega, Inc., v. Lincoln Furniture Mfg. Co., Inc. (29 F. [2d] 164), relied upon by the defendant, resembles Pennrich & Co., Inc., v. Juniata Hosiery Mills, Inc. (supra) in the respect that the agent of the foreign corporation in the former case, as well as in the latter, “ received no salary, but was only paid a commission based upon the contracts which originated through him, and not upon the amount realized.” While the agent in Davega, Inc., v. Lincoln Furniture Mfg. Co., Inc. (supra), like Titus, collected delinquent accounts, his collection work seems to have been voluntary or gratuitous. Titus’ collection work is in the line of his regular duties as defendant’s salaried employee. Hand, C. J., writing for the court in Davega, Inc., v. Lincoln Furniture Mfg. Co., Inc. (supra), said: “ This is a very close case.” The additional factors present in the instant case require a different conclusion than that reached in the Davega Case (supra). Even if a choice must be here made between the Federal and State court decisions, the latter will be deemed determinative. (Kansas City Structural Steel Co. v. Arkansas, supra.) In view of the activities of defendant hereinbefore narrated, it is impossible to arrive at the conclusion that the defendant is not “ doing business ” within the State without wholly losing sight of the meaning ordinarily attributed to that phrase by men engaged in business. While the common understanding of the phrase is not controlling and is frequently of necessity disregarded, nevertheless, common sense suggests that it be accorded some consideration. Not only are the defendant’s employees engaged in constant activity within the State with the result that large quantities of defendant’s goods are continually shipped into the State, not only are orders received here from customers who maintain a permanent relationship with defendant sent directly to the factories without the prior approval of the home office, not only are collections of delinquent accounts frequently made here by a salaried employee of the defendant, but the defendant actually has a place of business within the State. The office occupied by defendant’s employees, for the exclusive use of defendant’s business, maintained out of defendant’s funds, must be regarded as defendant’s place of business. Because of the attendant circumstances, the legalistic device of leasing the office in the name of defendant’s employee is ineffective. Accordingly, I find that the defendant is doing business within the State. *769Schimmel, J. This motion to vacate service was referred to Max J. Wolff to hear and report upon the issue as to whether the defendant, a foreign corporation, is doing business within the State. In his opinion attached to his report, the referee has accurately stated the relevant facts established at the hearing had before him. It clearly appears that the nature and extent of defendant’s activities within the State are such that the service effected here upon its managing agent is without doubt valid under the applicable State and Federal decisions. (Tauza v. Susquehanna Coal Co., 220 N. Y. 259; Cochran Box & Mfg. Co., Inc., v. Monroe Binder Board Co., 197 App. Div. 221; affd., 232 N. Y. 503; International Harvester Co. v. Kentucky, 234 U. S. 579.) The cases, both State and Federal, cited in opposition to the confirmation of the report disclose in every instance a condition of affairs much different from that which is present here; in each of those cases the activities of the foreign corporation were not sufficiently comprehensive to bring it within the jurisdiction of the particular State; those cases are found to be not comparable to the present situation with respect either to the corporate activities or the duties and authorities of the corporate employees. In confirming the referee’s report the court adopts his opinion. | opinion_xml_harvard | 1,947 | 2022-02-05 16:18:57.634159+00 | 020lead | t | f | 6,287,604 | Wolff | null | U | f | Published | 0 | Halpin v. North American Refractories Co. | Halpin | James H. Halpin v. North American Refractories Company | null | null | null | null | null | null | null | null | null | 62,918,710 | null | 0 | nynyccityct | ST | f | City of New York Municipal Court | City of New York Municipal Court |
8,116,012 | CONCURRING OPINION Nichols, Judge: I concur in the result. | opinion_xml_harvard | 9 | 2022-09-09 14:45:58.083595+00 | 030concurrence | t | f | 8,154,471 | Nichols, Oliver, Olivéis, Wilson | null | U | f | Published | 0 | B. Levy & Sons v. United States | null | B. Levy & Sons v. United States | null | null | null | null | null | null | null | null | null | 65,250,492 | C.D. 2625 | 0 | cusc | FS | t | U.S. Customs Court | United States Customs Court |
3,640,245 | * * * * * * * * * * * Upon review of the competent evidence of record, with reference to the errors assigned, and finding no good grounds to receive further evidence, or to rehear the parties or their *Page 2 representatives, the Full Commission, upon reconsideration of the evidence, affirms the Opinion and Award of the Deputy Commissioner, and enters the following Opinion and Award. * * * * * * * * * * * The Full Commission finds as fact and concludes as matters of law the following, which the parties entered into in their Pre-trial Agreement and at the hearing as: STIPULATIONS 1. The employee at issue in these proceedings is Cheryl T. Jarmon. 2. The employer at issue in these proceedings is Grady's Wholesale Florist. 3. North Carolina Insurance Guaranty Association (hereinafter referred to as "Defendant-Carrier") provided workers' compensation insurance coverage at all times relevant to these proceedings. 4. The parties are subject to and are bound by the North Carolina Workers' Compensation Act. 5. The North Carolina Industrial Commission has jurisdiction of the parties and of the subject matter of these proceedings, and all parties are properly named in these proceedings. 6. Plaintiff received $331.25 as payment of total disability benefits, at the rate of $220.84 since November 9, 1999. 7. The parties stipulated to the following documents being admitted into evidence as stipulated exhibits: a. Stipulated Exhibit one (1) — Medical records; b. Stipulated Exhibit two (2) — North Carolina Industrial Commission forms and filings, discovery, and correspondence; *Page 3 c. Defendants' Exhibit one (1) — Correspondence and surveillance report dated April 17, 2007; d. Defendants' Exhibit two (2) — Videotape of Plaintiff's physical activity on April 13, 2007 and on April 14, 2007. * * * * * * * * * * * ISSUES The issues for determination are: 1. Whether Plaintiff proved that she remains permanently and totally disabled? 2. Whether Plaintiff requires additional medical treatment? 3. Whether any of Plaintiff's current medical conditions remain causally related to her November 9, 1999 work injury? 4. Whether Mr. Joseph Rochelle, Dr. Daniel Francis Zinicola, Dr. Walter Anthony Dietzgen, and Dr. Duard Frances Fleming, Jr., should be removed as treating health care providers? 5. Whether Defendants should be ordered to pay attorney's fees under § 97-88.1 of the North Carolina General Statutes? * * * * * * * * * * * Based upon the competent and the credible evidence of record, as well as any reasonable inferences that may be drawn therefrom, the Full Commission makes the following: FINDINGS OF FACT 1. Plaintiff is a 44-year-old woman who suffered an admittedly compensable work injury that occurred on November 9, 1999. On November 9, 1999, Plaintiff was working for Defendant-Employer as a floral delivery truck driver. As Plaintiff was exiting Defendant-Employer's *Page 4 delivery truck, Plaintiff did not notice that the truck was touching a live electrical wire, and when she placed her hand on the delivery truck to get out of it, she suffered an electric shock injury and fell onto the pavement. Plaintiff remained unconscious for a short amount of time. Plaintiff's co-employees soon came to help her, and to call for emergency medical personnel. 2. Plaintiff did not immediately go to the hospital, but later that day, as she continued to be in pain and began to experience tingling and swelling, she went to the Cape Fear Hospital emergency department complaining of pain in the left knee, left hip, left ankle, and left shoulder, as well as numbness and tingling in her left forearm. The medical staff at Cape Fear Hospital ultimately admitted Plaintiff to the hospital due to her electric shock injury, and discharged Plaintiff on November 11, 1999. 3. During the next six (6) months, Dr. David Stanley Bachman treated Plaintiff, and also referred Plaintiff to Dr. Afshin Tamadon for an evaluation. Dr. Bachman also performed heart monitoring on Plaintiff, because of her heart palpitations, and requested magnetic resonance imaging (MRI) of the cervical spine to be performed. The MRI revealed that Plaintiff had a right-sided disc bulge. Dr. Bachman also recommended a neuropsychological consultation with Dr. Antonio E. Puente. 4. Dr. Puente began seeing Plaintiff in 2000. Dr. Puente treated Plaintiff for post-traumatic stress disorder, for depression, and for a mood disorder. Dr. Puente noted that Plaintiff was having blackouts, motor and sensory problems, as well as cardiovascular problems. Dr. Puente performed extensive cognitive testing, and based on the results, Dr. Puente recommended psychotropic medications, psychotherapy, and biofeedback. Dr. Puente continued this treatment *Page 5 plan on a regular basis in connection with the post-traumatic stress disorder, the pain, and the memory deficits related to Plaintiff's November 9, 1999 work injury. 5. Between the middle of 2000 through February 2002, Dr. Puente continued to treat Plaintiff for the problems related to her November 9, 1999 work injury. During this time, Dr. Puente noted that Plaintiff had blackouts, depression, post-traumatic stress disorder, chronic pain, panic attacks, and migraine headaches. 6. In early 2001, Plaintiff began having individual therapy sessions with Mr. Joseph Rochelle. The therapy helped Plaintiff to deal with a range of problems, such as anger management, depression, suicidal ideations, and anxiety. Mr. Rochelle continues to treat Plaintiff, and Defendants continue to pay for this treatment. 7. On November 8, 2001, Plaintiff started seeing Dr. Walter Anthony Dietzgen. Dr. Dietzgen initially saw Plaintiff for her neurological injury, for her post-traumatic stress disorder with possible seizures, and for her depression, all resulting from her November 9, 1999 work injury. Dr. Dietzgen also referred Plaintiff to Dr. Duard Frances Fleming, in order to have Plaintiff's seizures and chronic pain syndrome evaluated and treated. Dr. Dietzgen opined that the post-traumatic stress disorder, the depression, the anxiety, and the panic attacks from which Plaintiff suffers are all secondary to her November 9, 1999 work injury. Dr. Dietzgen opined that when Plaintiff is functioning well, she could probably do some part-time work out of her home, but that Plaintiff could not sustain employment on a regular basis, due to the severity of her medical and psychiatric conditions. Dr. Dietzgen further opined that changing or stopping Plaintiff's psychiatric treatment would be dangerous, because she might become a danger to herself or others. Dr. Dietzgen continues to treat Plaintiff, and Defendants continue to pay for this treatment. *Page 6 8. Plaintiff began seeing Dr. Fleming on January 9, 2002. Plaintiff initially saw Dr. Fleming for her chronic pain syndrome, for her seizure issues, for her continued neck pain related to her cervical disk bulge, and for her medication needs, all related to her November 9, 1999 work injury. On October 6, 2003, Dr. Fleming noted that Plaintiff had a diagnosis of chronic post-electrocution pain syndrome involving her left leg. Dr. Fleming stated that he is making much progress with Plaintiff's treatment, and that currently, Plaintiff is having fewer seizures, is functioning better, and is more comfortable than she used to be. Dr. Fleming believes that the medications and the treatment that he provides to Plaintiff for her seizures and for her pain are both reasonable and necessary. Dr. Fleming opined that taking everything into consideration, he did not think that Plaintiff would be able to return to a full-time job as a result of her November 9, 1999 work injury. Dr. Fleming further opined that Plaintiff is unable to work because the electric shock injury that she sustained produced a physical trauma in Plaintiff that went through her nervous system and that he would give Plaintiff the benefit of the doubt with respect to both her psychiatric and her neurologic complaints. Consequently, Dr. Fleming does not believe that Plaintiff is malingering. Finally, Dr. Fleming opined that he did not doubt that Plaintiff has some psychological overture or embellishment to her pain syndrome, but that Plaintiff is, in fact, both "organically impaired" and injured as a result of the November 9, 1999 work injury. Dr. Fleming continues to treat Plaintiff, and Defendants continue to pay for this treatment. 9. Plaintiff began seeing Dr. Daniel Francis Zinicola in January 2003. Dr. Zinicola noted that Plaintiff was being seen for seizure disorder, for migraine headaches, and for major depression. Dr. Zinicola continued Plaintiff's prescriptions that originated from Dr. Fleming and from Dr. Dietzgen. Dr. Zinicola opined that Plaintiff could not work as a result of her November *Page 7 9, 1999 work injury. Dr. Zinicola continues to treat Plaintiff, and Defendants continue to pay for this treatment. 10. Since Plaintiff's November 9, 1999 work injury, Plaintiff has also been seeking treatment from a urologist for bladder issues that occurred as a result of the November 9, 1999 injury. Defendants continue to pay for this treatment, as well. 11. On February 4, 2005 and on August 29, 2006, Plaintiff saw Dr. Anna Peacock Bettendorf. Dr. Bettendorf could not determine why Plaintiff's gait was so abnormal. Dr. Bettendorf suspected that Plaintiff had a conversion disorder. Dr. Bettendorf opined that Plaintiff "absolutely needs psychiatric and psychological treatment." Dr. Bettendorf further opined that it is possible that Plaintiff's conversion disorder could be related to Plaintiff's post-traumatic stress disorder. Finally, Dr. Bettendorf stated that it is reasonable for Plaintiff to continue treatment with a psychiatrist. 12. On October 13, 2005, on October 17, 2005, and on October 26, 2005, Plaintiff saw Dr. Christy L. Jones for psychological testing. Dr. Jones determined that the results of Plaintiff's psychological testing were inconclusive, due of lack of effort. Dr. Jones opined that electric shock injures can cause mental deficits and memory problems, but because there was little effort, Dr. Jones could not say that Plaintiff did not have any mental deficits or any memory problems. 13. On February 14, 2007, Plaintiff saw Dr. James Thaddeus Coin in order to review Plaintiff's neurological records. Dr. Coin noted that Plaintiff had some altered consciousness as a result of the November 9, 1999 work injury, followed by what he termed as "spells." Dr. Coin opined that the seizures were most likely non-epileptic, and that the seizures could be psychiatric. Dr. Coin could not determine a physiological etiology for Plaintiff's left-sided issues, but Dr. Coin did think that these left-sided *Page 8 issues could be consistent with a conversion disorder. Dr. Coin did not review any medical records from Dr. Dietzgen or from Dr. Puente, and Dr. Coin deferred any diagnosis of a conversion disorder, or of any other psychiatric disorder, to a psychiatrist. Dr. Coin stated that based upon Plaintiff's current treatment regime, he would continue to treat Plaintiff for epileptic seizures. Dr. Coin also opined that Plaintiff's epileptic symptoms, as well as her left-sided issues, prevent her from gainful employment. 14. Defendants also retained the services of Dr. Robert LeRoy Rollins, Jr., in order to review Plaintiff's medical/psychiatric records to render an opinion regarding the causation of her medical/psychiatric conditions. Dr. Rollins did not ever examine or treat Plaintiff. Dr. Rollins opined that Plaintiff is suffering from a conversion disorder, and that Plaintiff did not sustain any physical injury at all from her November 9, 1999 work injury. Dr. Rollins does not believe that Plaintiff suffered an electric shock injury, and Dr. Rollins does not believe that Plaintiff lost consciousness as a result of the November 9, 1999 work injury. Further, Dr. Rollins opined that Plaintiff did not have an experience that would meet the criteria for post-traumatic stress disorder. Dr. Rollins agrees that Plaintiff has depression, anxiety with panic attacks, and a mood disorder, and Dr. Rollins opined that he did not think that Plaintiff would ever return to work because of the chronic nature of these conditions. Moreover, Dr. Rollins agreed that Plaintiff's current course of treatment is helpful, necessary, and appropriate. Ultimately, Dr. Rollins opined that the November 9, 1999 work injury triggered or precipitated Plaintiff's conversion disorder, and that if he had the chance to interview Plaintiff and to review all of Plaintiff's medical records, that he could make a better, more accurate assessment about her overall condition. 15. Defendants also retained the services of Mr. Anthony Wayne Enoch, a vocational rehabilitation counselor, in order to prepare a labor market survey report for Plaintiff in this case. *Page 9 Mr. Enoch prepared a report dated July 2, 2007, consisting of employment opportunities for Plaintiff at a sedentary level of restriction. Mr. Enoch never met with Plaintiff, Mr. Enoch had no information about Plaintiff's motivation level to pursue employment, and Mr. Enoch had not read any medical/psychiatric records regarding Plaintiff's various conditions. 16. The Full Commission finds, based upon the greater weight of the evidence, that greater weight should be given to the opinions of the health care providers that have been treating Plaintiff for many years, and who continue to treat Plaintiff, including, Mr. Rochelle, Dr. Dietzgen, Dr. Fleming, and Dr. Zinicola. The Full Commission further finds based on the greater weight of the evidence, that the physical and psychological conditions for which Dr. Dietzgen, Dr. Fleming and Dr. Zinicola have treated Plaintiff are causally related to her November 9, 1999 injury by accident. 17. The Full Commission also finds, based upon the greater weight of the evidence, that Plaintiff continues to be unable to work, based upon her current injuries, all of which are due to her November 9, 1999 work injury. 18. Defendants did not defend this claim without reasonable grounds, and as such, the assessment of attorney's fees under § 97-88.1 of the North Carolina General Statutes is neither proper nor justified. * * * * * * * * * * * Based upon the foregoing stipulations and findings of fact, the Full Commission makes the following: CONCLUSIONS OF LAW *Page 10 1. Plaintiff suffered a compensable injury by accident arising out of and in the course and in the scope of her employment with Defendant-Employer on November 9, 1999. N.C. Gen. Stat. § 97-2 (6) (2007). 2. Plaintiff's current medical treatment is causally related to Plaintiff's November 9, 1999 work injury. 3. Plaintiff continues to be temporarily and totally disabled as a result of her November 9, 1999 work injury. N.C. Gen. Stat. § 97-29 (2007). 4. Plaintiff is entitled to have Defendants pay for medical/psychiatric expenses incurred or to be incurred as a result of her November 9, 1999 work injury, as may be required to effect a cure, to give relief, and/or to lessen Plaintiff's period of disability. N.C. Gen. Stat. § 97-25 (2007). 5. The medical/psychiatric treatment Plaintiff is entitled to have Defendants pay for should include, but not be limited to, medical treatment related to Plaintiff's psychiatric issues, including, but not limited to, Plaintiff's: post-traumatic stress disorder; depression; anxiety; chronic pain; left-sided issues; and seizure disorder. 6. Plaintiff's medical/psychiatric treatment should continue to be provided by Plaintiff's current treating health care providers, including, but not limited to: Dr. Daniel Francis Zinicola; Dr. Walter Anthony Dietzgen; Dr. Duard Frances Fleming, Jr.; and Mr. Joseph Rochelle. 7. Defendants failed to prove, by the greater weight of the evidence, that Plaintiff's current medical/psychiatric problems are not related to her November 9, 1999 work injury. Perez v. American Airlines , 174 N.C. App. 128 , 620 S.E.2d 288 (2005). *Page 11 8. Defendants did not defend this claim without reasonable grounds, and as such, the assessment of attorney's fees under § 97-88.1 of the North Carolina General Statutes is neither proper nor justified. * * * * * * * * * * * Based upon the foregoing stipulations, findings of fact, and conclusions of law, the Full Commission makes the following: AWARD 1. Subject to a reasonable attorney's fee herein approved, Defendants shall pay temporary total disability compensation to Plaintiff at the rate of $331.25 per week for the period from November 9, 1999 and continuing until further Order of the North Carolina Industrial Commission. Defendant is given credit for compensation already paid. 2. A reasonable attorney's fee of 25 percent of the compensation awarded to Plaintiff in paragraph one (1), above, is hereby approved and shall be paid directly to Plaintiff's counsel. Every fourth (4th) payment due Plaintiff shall be deducted and paid directly to Plaintiff's counsel. 3. Plaintiff is entitled to have Defendants pay for medical/psychiatric expenses incurred or to be incurred as a result of her November 9, 1999 work injury, as may be required to effect a cure, to give relief, and/or to lessen Plaintiff's period of disability. Plaintiff's medical/psychiatric treatment should continue to be provided by Plaintiff's current treating health care providers, including, but not limited to: Dr. Daniel Francis Zinicola; Dr. Walter Anthony Dietzgen; Dr. Duard Frances Fleming, Jr.; and Mr. Joseph Rochelle. 4. Defendant shall pay the costs of these proceedings. This the day of September 2008. *Page 12 S/ BERNADINE S. BALLANCE COMMISSIONER CONCURRING: S/ DANNY LEE McDONALD COMMISSIONER S/ CHRISTOPHER SCOTT COMMISSIONER *Page 1 | opinion_html_with_citations | 2,800 | 2016-07-06 05:58:10.346692+00 | 020lead | f | f | 3,894,426 | <center> OPINION AND AWARD for the Full Commission by BERNADINE S. BALLANCE, Commissioner, N.C. Industrial Commission.</center> | null | Z | f | Published | 0 | Jarmon v. Grady's Wholesale Flowers | Jarmon | Cheryl Jarmon, Employee v. Grady's Wholesale Flowers, Employer, N.C. Insurance Guaranty Association, Carrier | null | null | null | null | The Full Commission reviewed this matter on August 12, 2008, upon appeal of Grady's Wholesale Flowers and N.C. Insurance Guaranty Association (hereinafter referred to as "Defendants"), from an Opinion and Award by Deputy Commissioner Adrian A. Phillips, filed January 18, 2008, awarding workers' compensation benefits to Cheryl Jarmon (hereinafter referred to as "Plaintiff"). Following the hearing before the Deputy Commissioner, the parties took the depositions of Joseph Rochelle, M.A., N.C.C., L.P.C.; James Thaddeus Coin, Ph.D., M.D.; Christy L. Jones, Ph.D, A.B.P.N.; Anna Peacock Bettendorf, M.D.; Daniel Francis Zinicola, M.D.; Walter Anthony Dietzgen, M.D.; and Duard Frances Fleming, Jr., M.D., all of whom are Plaintiff's treating health care providers. In addition, the parties took the depositions of Anthony Wayne Enoch, M.P.A., C.D.M.S., Q.R.P., who prepared a labor market survey report concerning Plaintiff in this case, and of Robert LeRoy Rollins, Jr., M.D., who reviewed the medical/psychiatric records of Plaintiff in this case. These depositions are in evidence. | null | null | null | null | 3,766,568 | I.C. NO. 985041. | 0 | ncworkcompcom | SS | t | North Carolina Industrial Commission | North Carolina Industrial Commission |
8,762,529 | MEMORANDUM OF DECISION TEMPLAR, District Judge. This case is before the Court on remand from the decision of the Tenth Circuit Court of Appeals, having been heard by that Court and decided under the caption, “Employers Mutual Casualty Company v. MFA Mutual Insurance Company et al.,” 384 F.2d 111, decided by that Court, October 12, 1967. This Court had determined that as between the two liability insurance carriers affording coverage on a loaned vehicle, driven by one Anderson, against whom a judgment had been rendered in a personal injury action defended by MFA, each insurer should share equally the judgment against Anderson. Anderson had a policy issued to him by MFA covering his 1964 Dodge automobile and containing a “Drive Other Cars-Broad Form” endorsement and providing that it should be “excess insurance over any other valid and collectible in*327surance for bodily injury or for property damage liability available to the insured.” The owner of the loaned 1965 Dodge, driven by Anderson at the time of the accident, was insured under a policy issued by Employers Mutual which limited its liability (as the Court of Appeals has determined) to $5,000 coverage for Anderson because by its specific provision, the limits of liability as to a driver operating a vehicle owned by the assured (Shortman Motor Company) and loaned to another would not exceed the minimum limit specified by the financial responsibility law of the state in which the automobile is principally garaged. The vehicle was principally garaged in Kansas and the Kansas financial responsibility law at that time required a minimum coverage of $5,000 because of bodily injury to one person. The Employers Mutual policy held by Shortman on the loaned vehicle driven by Anderson also provided that it should not apply to any loss where the insured has other valid, collectible insurance unless the total amount of loss exceeds the sum of limits of other policies affording insurance in which event it shall be liable only for the excess and to the extent limited by the applicable financial responsibility law of the state. The Court of Appeals cited in its opinion the decisions of several courts and authorities which have considered the proper interpretation and application of these repugnant provisions in the two policies of insurance. This Court will not undertake to make an analysis of these decisions, for Judge Lewis, in the decision of the Court of Appeals has done this. At the time Judge Lewis prepared the decision for the Court of Appeals, the record did not disclose that the Kansas Court had ruled on the question here presented and the Court of Appeals suggested that it is the responsibility of the trial court to anticipate what the Kansas Court might decide when confronted with the issue at hand, whether it would adopt the view that the loss should be prorated according to the policy limits, or according to the maximum loss that each company could have sustained in the particular case, absent the other’s coverage which is $10,000 for MFA and $5,000 for Employers Mutual. It was this Court’s initial view that because of equitable considerations noted in the memorandum and judgment originally entered, which will not again be stated, that the two insurance companies should bear equally the loss and expenses involved in the defense of the action incurred by MFA. It has now come to this Court’s attention that on July 12, 1967, in the ease of Maryland Casualty Company v. American Family Insurance Group, reported in 199 Kan. 373, 429 P.2d 931, the Supreme Court of Kansas has made the determination of the Kansas rule to be applied in cases wherein the issue of insurer’s liability is involved, when, as here, two insurers have liability coverage on the same motor vehicle which is involved in an accident. In the Maryland ease, supra, American had issued a policy to Shaw, who owned a Plymouth automobile; Maryland had issued a policy to Willis, who owned a Volkswagen. After determining that a trade negotiated by the parties had not in fact resulted in a change of ownership of the vehicles, and a finding that while Willis was driving the Plymouth with Shaw’s permission, he was involved in a wreck out of which grew the litigation, the Kansas Court adopted the rule which this Court now believes controls. In the case before the Kansas Court, both Willis and Shaw were sued as a result of the accident in which Willis was driving Shaw’s Plymouth. In that action both Willis and Shaw were sued and each was represented by his insurer, i. e., Willis by Maryland and Shaw by American. Maryland negotiated a settlement with the injured party and requested American to pay the settlement. American refused, Maryland paid it and sued American to recover the amount of the settlement, the costs and attorney’s fees. The state trial court entered judgment in favor of Maryland for the amount of the settlement and costs but denied allowance of attorney’s *328fees. An appeal and cross appeal followed. The Kansas Supreme Court affirmed the trial court’s decision and held that: “Where an owner’s policy provides for pro rata coverage with other insurance against a loss, and the policy of the driver who is involved in a collision while driving the automobile with the permission of the owner contains a similar provision, and additionally an ‘excess insurance’ clause with respect to a ‘non-owned automobile,’ the owner’s insurer is primarily liable within the limits of its policy for such loss.” Thus, under Kansas law the owner’s insurance, Employers Mutual in this case, has the primary coverage and is liable to the extent of coverage afforded under its “other insurance” provision as limited by the omnibus endorsement and MFA may recover from Employers the amount of the primary coverage afforded in this case. Under the holding of the Kansas Supreme Court, it was also determined: “A secondary insurer of a driver has a contractual duty with its insured to defend a lawsuit instituted by an injured party, and such duty is personal and distinct from indemnification; hence, such insurer has no right to recover from the primary insurer its attorneys' fees and expenses in making such defense.” Thus, no attorney’s fees or expenses or any part thereof involved in making the defense may be collected by MFA from Employers in this case. The Court does not believe that the Kansas Statute, K.S.A. 40-256, applies in a situation of this kind. In any event, no bad faith has been established since until now the applicable law in Kansas was uncertain. Nor does the Court believe that the rule announced in the case of Connecticut Fire Insurance Company v. Reliance Insurance Company, D.C., 208 F.Supp. 20, permitting recovery of attorneys’ fees by an insured under certain circumstances, applied to a situation of the kind now before the Court. Plaintiff’s counsel will prepare, circulate and submit to the Court for approval and entry, a form of judgment consistent with the determination made by the Court in this memorandum. | opinion_xml_harvard | 1,170 | 2022-11-26 12:12:34.13651+00 | 020lead | t | f | 8,778,844 | Templar | null | U | f | Published | 0 | MFA Mutual Insurance v. Employers Mutual Casualty Co. | null | MFA MUTUAL INSURANCE COMPANY, a corporation v. EMPLOYERS MUTUAL CASUALTY COMPANY, a corporation, Peggy Offill and William E. Anderson | null | null | null | null | null | null | null | null | null | 66,044,959 | No. T-3901 | 0 | ksd | FD | t | D. Kansas | District Court, D. Kansas |
8,836,719 | Shipman, J. This is a bill in equity, based upon the alleged infringement of two letters patent, Nos. 296,623 and 296,624, which were granted April 8, 1884, to Frederick Richardson; one of said patents being for a die for securing heel-plates to rubber shoes, and the other being for a machine for the same purpose. A motion under this bill for a preliminary injunction was refused as to the machine patent, and was granted as to the die patent, but that injunction was afterwards dissolved. The opinion upon the motion stated the important facts, which had then been disclosed, in regard to each patent, each invention, and the alleged infringing devices. 33 Fed. Rep. 281, 838. Nothing is required to be added in regard to the questions which are at issue upon the machine patent. *690The plaintiff insists, inasmuch as there had been previously no machine for securing metallic heel-plates to rubber shoes, that a liberal construction should be given to the patent, and that machines performing the same functions by analogous means should be regarded as infringing devices. The peculiarity of the Richardson machine consists in the mechanism by which the shoe and the heel-plate, which is placed upon the “holder,” are held and guided. In the Richards machine there is no equivalent, and no analogous mechanism, for holding and guiding. The holding and guiding devices in the two machines are entirely different. The other patent is the less important one, but, it having received from the experts and from counsel more careful .investigation than it had upon the hearing of the motion, I have also examined it with more attention, and do not now think that it is being infringed. The prongs of the Richardson heel-plate w'ere studs, which had enlarged bases, serving as plugs, and flattened clinching ends. The first operation of the die was, in the language of the specification, “to curve the ends of the pins or nails without bending the portion in the material of the heel.” Continuation of the pressure clinched the pins, and compressed the rubber around their shanks, so that water could not enter the shoe. The die was so constructed that the ends of the pins only could be bent. The specification says that to insure the bending of the lower part of the pins, without affecting the upper part of the frame, and also to insure the close fitting of the pins in the rubber, the die was provided with radially placed inclined planes, the incline of which was placed in opposite directions, so as to bend the ends of the pins in opposite directions. These planes were depressions in the surface of the die, so that the entire planes were below the upper surface of the die, and consequently the ends only of the pins were bent, and the plugs were intentionally not bent. Continued pressure compressed the rubber around the entire plug. By virtue of the radially placed planes, the clinching surfaces of the die bend and clinch the ends of the pins in a line parallel with the edge of the die block, whereby, it is thought, the rubber is especially compressed between the bent portions and the inner surface of the heel-plate. By a disclaimer, which was recently filed, the owner of the patent disclaimed a heel-die whose inclines are not “faced in opposite directions.” These words, the disclaimer explains, mean that some of the inclined clinching surfaces are faced or inclined in a direction substantially opposite to that or those in -which other of the inclined clinching surfaces are inclined or faced. This feature is said to be important, so- that the clinching strains may be balanced, and the plate may be evenly imbedded in and evenly secured to the heel. The operative part of the defendant’s die consists of projections above its surface, whereby the prongs, which are slender throughout their length, aré set in the rubber by one stroke of the plunger. One side, which is the working face, of each projection is concave. The die of ordinary size has five projections, three of which are not radially placed. The highest elevations of the. two end projections are on radial lines, centering at the same point. The first operation of the defendant’s die is to curve *691the ends of the prong, but the entire slender prong is intentionally bent. The die has no system of similarly arranged planes. The defendant construes the patent to be for a set of radially placed inclines, having their faces in opposite directions; the inclines being arranged either in two equal sets, bending the prongs away from each other in each set, or in pairs which bend the adjoining prongs towards each other. If a die contained, in connection with non-radially placed inclines, a single pair of radially placed inclines, which in fact performed the office which the Richardson die performs, I should be disposed to regard such a die as an infringer, although it did not have a complete set of Richardson inclines. But if a die, having irregularly placed inclines, contains also two radially placed inclines, which are or are not isolated from each other, but which do not perform the office which the Richardson die was designated. to perform and does perform, I do not think that such a die, although containing radially placed planes, is an infringing die. These inclines cannot do the work of the Richardson die upon the Richardson plate or upon the Richards plate, because they bend the entire shank. If the shank or plug of the Richardson prong should be bent, the heel-plate would be injured or destroyed. The Richards die is designed to bend the entire prong, and is therefore a different thing from the Richardson die. The bill is dismissed. | opinion_xml_harvard | 963 | 2022-11-26 16:26:55.971525+00 | 020lead | t | f | 8,851,331 | Shipman | null | U | f | Published | 0 | Huntington v. Hartford Heel-Plate Co. | Huntington | Huntington v. Hartford Heel-Plate Co. | <p>In Equity. On final hearing of bill.</p> <p>Bill by William H. Huntington to restrain the Hartford Heel-Plate Company from the infringement of two patents, granted to Frederick Richardson, for a machine and die for attaching heel-plates to rubber shoes. A preliminary injunction was granted as to the patent for the die, but refused as to the machine. 83 Fed. Rep. 281. Afterwards the injunction was dissolved on the ground that the die patent had been anticipated by a prior English patent. Id. 838.</p> | null | null | <p>1. Patents foji Inventions — Infringement—Heel-Plates for Rubbers.</p> <p>Letters patent No. 296,623, issued April 8, 1884, to Frederick Richardson, for a die to attach heel-plates to rubber shoes, describe a die having radially placed planes, inclining in opposite directions, their use being to clinch the prongs of the plate through the heel, also in opposite directions. These planes are depressions in and entirely below the upper surface of the die; their object being to bend and clinch the ends only of the prongs, without bending their heavy bases or plugs, which pass through the heel, as that would tear the material, and admit water. The opposite direction of the prongs, when clinched, was claimed to balance the clinching strain, and imbed the plate firmly and evenly. Letters patent No. 369,554, September 6, 1887, issued to Francis H. Richards, for a machine for attaching heel-plates, describe a die with elevations, only two being radially placed, and without any system of regularly arranged planes. The whole prong, which is slender, without any heavy base, is intentionally bent. Held that, as the latter invention would not, and was not intended to, perform the important feature of the former, viz., of bending only the end of the prong, it was no infringement, although two of the planes were radially placed.</p> <p>2. Same — Machine for Attaching Heel-Plates.</p> <p>Letters patent No. 296,624, of April 8, 1884, to Frederick Richardson, for a •machine for attaching heel-plates to rubber shoes, are not infringed by letters patent JS' o. 369,554, of September 6,1887, to Francis H. Richards, for a machine for the same purpose; the peculiar parts of the former being the holder or guide, and the mechanism connected therewith, and neither the plates, clamp, nor spring in the Richards machine, nor the three in combination, being equivalent thereto.</p> | null | null | null | null | null | 66,117,475 | null | 0 | circtdct | F | f | U.S. Circuit Court for the District of Connecticut | U.S. Circuit Court for the District of Connecticut |
1,274,776 | 239 S.C. 305 (1961) 123 S.E.2d 33 Barbara D. FORD, Respondent, v. Herman A. FORD, Appellant. 17850 Supreme Court of South Carolina. November 15, 1961. Messrs. Leatherwood, Walker, Todd & Mann , of Greenville, and Denny, Valentine & Davenport , of Richmond, *306 Virginia, for Appellant . Messrs. Carter & Hill and Haynsworth, Perry, Bryant, Marion & Johnstone , of Greenville, for Respondent . Messrs. Carter & Hill and Haynsworth, Perry, Bryant, Marion & Johnstone , of Greenville, for Appellant . Messrs. Leatherwood, Walker, Todd & Mann , of Greenville, and Denny, Valentine & Davenport , of Richmond, Virginia, for Respondent . *307 November 15, 1961. MOSS, Justice. Barbara D. Ford, the respondent herein, and Herman A. Ford, the appellant herein, were married on March 16, 1952, in Richmond, Virginia. Three children were born of this marriage and they were at the time of the institution of this action seven, five and three years of age, respectively. The respondent did, on August 10, 1960, commence this action in the Greenville County Juvenile and Domestic Relations Court seeking custody of the three minor children of the marriage. The complaint alleged that the children were residing with the respondent in Greenville County, South Carolina, and that it was for the best interest of the said minor children that their custody be awarded to her. It is further alleged that the appellant had been guilty of misconduct and was an unfit person to have custody of the said children. The answer of the appellant alleges that the appellant and respondent are living separate and apart on account of the misconduct of the respondent. It is further alleged that the respondent is not a fit or proper person to have the custody of the said minor children by reason of her misconduct. The answer further alleges that the appellant is entitled to the custody of the said minor children of the marriage, he being a fit and proper person to have such custody and is financially able to provide for the education, maintenance and support of the said children in a comfortable and desirable home in Sanford, North Carolina. The answer further alleges that the appellant and respondent separated on August 25, 1959, and the respondent went to the home of her mother in Richmond, Virginia, the children remaining in North Carolina in the custody of the appellant. It is further alleged that on August 27, 1959, that the respondent took the children of the marriage from the State of North Carolina to the home of her mother in Richmond, Virginia. It is further alleged that on August 28, 1959, the appellant did, in the Law and Equity Court of the *308 City of Richmond, Virginia, file a petition for a Writ of Habeas Corpus directing the respondent to produce the bodies of the three children before the Court at a time and place to be specified and to do and receive what shall then and there be considered by the Court concerning said children, and that the care, custody and possession of the said children be awarded to the appellant. An Order awarding a Writ of Habeas Corpus was issued by the Law and Equity Court of Richmond, Virginia, on August 28, 1959, directing the respondent to have and produce the bodies of the said children before the Court on September 2, 1959, and to abide the direction of the Court as to the custody of said children. The respondent filed a Return to the Writ of Habeas Corpus alleging that she was a fit and proper person to have the custody of the said infant children. She asked that the Writ be discharged as having been improvidently issued without probable cause. The answer of the appellant further alleged that during the pendency of the Habeas Corpus proceeding in the Law and Equity Court of the City of Richmond, Virginia, both parties being represented by competent legal counsel, an agreement was reached concerning the children of the marriage. Under the terms of the agreement, the appellant was given custody of the three children with the right to the respondent to have custody of the three children during the summer vacation from school and certain holiday periods. Upon the consummation of the aforesaid agreement reached between the parties, a "Consent Dismissal" was had of the Habeas Corpus proceeding instituted by the appellant. The Order of Dismissal by the Law and Equity Court of the City of Richmond, Virginia, filed November 18, 1959, was as follows: "It being represented to the court by counsel that the parties hereto have agreed concerning the custody of the infant children, it is ordered that this case be dismissed." The instant case was tried before the Honorable J. Wilbur Hicks, Judge of the Greenville County Juvenile and *309 Domestic Relations Court, and on December 8, 1960, he issued his order awarding the custody of the children to the respondent, with the provision that the appellant "shall have reasonable visitation rights and these shall include some holidays and school vacation periods and are to be agreed upon by the parties." The appellant duly excepted to the order of the Judge of the Juvenile and Domestic Relations Court and alleged error, inter alia , (1) That the Judge erred in failing to hold that the agreement previously made between the parties, through their respective counsel, at a time when an action was pending in the Law and Equity Court of the City of Richmond, Virginia, determined the question of custody and was binding upon the parties. It was asserted that the respondent admitted the making of such agreement and acknowledged that she was represented in such proceeding by able and competent counsel. It was further alleged as error that the court failed to hold that the agreed Order of Dismissal of the Law and Equity Court of the City of Richmond, Virginia, was res judicata as to the issue of custody before this Court. (2) That the Judge erred in failing to hold that the said agreement between the parties and the aforesaid agreed Order of Dismissal was binding and res judicata. It was further submitted that the Juvenile and Domestic Relations Court of Greenville County must recognize, in accordance with the full faith and credit clause of the Constitution of the United States, the agreed Order of Dismissal of the Virginia Court and that such was res judicata , unless there was evidence of subsequent misconduct on the part of the appellant or a change of conditions warranting a change of the custody of the children. (3) That the Judge erred in awarding the custody of the children to the respondent and giving the appellant only visitation rights to be agreed upon by the parties. The appeal from the order of the Judge of the Juvenile and Domestic Relations Court of Greenville County was heard by the Honorable John Grimball, presiding Judge, on January 9, 1961, at a special Equity term of the Court of Common Pleas for Greenville County, South Carolina. *310 By an order dated February 25, 1961, the presiding Judge overruled the provision of the order of the Juvenile and Domestic Relations Court to the extent that he awarded the custody of the three minor children jointly to the respondent and the appellant, placing the custody of the said children in the respondent during the normal school year, commencing in September and ending in the early part of June of each year. He awarded custody of the three minor children to the appellant during the normal school holiday months, commencing in the early part of June and ending in the early part of September of each year. This order provided further that the appellant should have the custody and control of the children during the normal Christmas holidays of each school year. It was further provided that during the time that either the respondent or appellant had custody, the other party should be permitted to see or visit with the children at reasonable times and places. The presiding Judge refused to hold as res judicata the custody agreement reached by and between the parties, as a result of which the Habeas Corpus proceeding instituted by the appellant in the Law and Equity Court of the City of Richmond, Virginia, for the purpose of obtaining custody of the minor children of the parties, was dismissed. He likewise refused to give full faith and credit to the agreed dismissal order of the Virginia Court. Within due time the appellant gave notice of intention to appeal to this Court from the order of the lower Court. The appellant asserts that the trial Judge erred in refusing to hold as res judicata the "Consent Dismissed" order of the Law and Equity Court of the City of Richmond, Virginia, which was made after the parties to this action had reached an agreement concerning the custody of the infant children here involved. It is provided in Article IV, Section 1, of the Constitution of the United States, that: "Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe *311 the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." In the case of Hamilton v. Patterson , 236 S.C. 487 , 115 S.E. (2d) 68, 70, this Court said: "* * * Where a judgment rendered by a court having jurisdiction of the cause and the parties is challenged in another State, `the full faith and credit clause of the Constitution precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based.' Milliken v. Meyer , 311 U.S. 457 , 61 S. Ct. 339 , 342, 85 L. Ed. 278 . `Because there is a full faith and credit clause a defendant may not a second time challenge the validity of the plaintiff's right which has ripened into a judgment.' Magnolia Petroleum Co. v. Hunt , 320 U.S. 430 , 64 S. Ct. 208 , 214, 88 L. Ed. 149 , 150 A.L.R. 413 . "This clause of the Federal Constitution U.S. Const. art. 4, § 1 and the Act of Congress which implements it `require the judgments of the courts of one State to be given the same faith and credit in another State as they have by law or usage in the courts of the State rendering them.' Morris v. Jones , 329 U.S. 545 , 67 S. Ct. 451 , 454, 91 L. Ed. 488 , 168 A.L.R. 656 ." In order to make out the defense of res judicata , the following elements must be shown: (1) The parties must be the same or their privies; (2) The subject matter must be the same; and (3) While generally the precise point must be ruled, yet where the parties are the same or are in privity, the judgment is an absolute bar not only of what was decided but what might have been decided. Mackey v. Frazier , 234 S.C. 81 , 106 S.E. (2d) 895. What was the effect of the agreed order under the Virginia Law and which came about as a result of a custody agreement reached between the parties with the advice and consent of their counsel? Does an agreed order of dismissal under the Virginia practice put an end to a pending suit *312 and bar any subsequent suit on the same cause of action between the same parties? In the case of Bardach Iron & Steel Co., Inc. v. Tenenbaum , 136 Va. 163 , 118 S.E. 502 , 504, the effect of an order "dismissed agreed" is fully discussed. The order there involved was "on motion of the plaintiff and with the consent of the defendant, this cause is dismissed agreed." The Virginia Court in discussing the effect of such order, said: "Ordinarily, the records of a court of record remain in the breast of the court, and subject to change or alteration by the court during the term at which they are made, but an order `dismissed agreed' is an exception to the general rule. The court has no power to make such a record except by consent of the parties, and, having obtained such consent and made the entry, it is equally without power to set it aside without the consent of both parties, except upon some ground that would warrant the setting aside of other contracts of like nature. It is a contract of record that the court is without power to disturb except as stated. The court may correct its own errors, but cannot change the contracts of parties without their consent. Deaver v. Jones , 114 N.C. 649 , 19 S.E. 637 ; Hammond v. Place , Har. (Mich.) 438. If the trial court was without power to set aside the order `dismissed agreed' made on December 8, 1921, that was an end of the case. Such an order not only puts an end to the pending suit, but is a bar to any subsequent suit on the same cause of action, between the same parties, as fully as a retraxit would be. "`It is a declaration of record sanctioned by the judgment of the court, that the cause of action has been adjusted by the parties themselves, in their own way.' Hoover v. Mitchell , 25 Grat. (66 Va.) 387, 388; Wohlford v. Compton , 79 Va. 333 ; Siron v. Ruleman , 32 Grat. (73 Va.) 215, 223; Jarboe v. Smith , 10 B. Mon. (Ky.) 257, 52 Am. Dec. 541; U.S. v. Parker , 120 U.S. 89 , 7 S. Ct. 454 , 30 L. Ed. 601 ; Simmons v. Yoho [ 92 W. Va. 703 ] (W. Va.), 115 S.E. 851 , 857; 1 Freeman on Judgments, § 262; 2 Black on Judgments, § 706. *313 "In Jarboe v. Smith , 10 B. Mon. (Ky.) 257, 52 Am. Dec. 541, it is said to be a bar between the parties on the original cause of action, unless there is an express stipulation that another suit may be brought. In the judgment entered in Hoover v. Mitchell, supra , it is said that the dismissal of a suit agreed, without any explanation or qualification showing a contrary intention, is at least a prima facie determination of the matter controverted in that suit, but the opinion in the case holds that `dismissed agreed' `is equivalent to a retraxit. But to have this effect there must have first been an unqualified agreement that the suit should be `dismissed agreed.'" In the case of Murden v. Wilbert et al. , 189 Va. 358 , 53 S.E. (2d) 42, it was held that the judgment of a court of compenent jurisdiction dismissing a suit agreed, upon the ground that it had been agreed by the parties, is a final determination, as to those parties, of the matters litigated in that suit. It was further held that an order "dismissed agreed" is a contract of record that the court is without power to disturb except with consent of the parties. In the case of Hinton v. Norfolk & W. Ry. Co. , 137 Va. 605 , 120 S.E. 135 , 136, it appears that there was a mutual agreement to settle an action brought by an infant, by his next friend, by payment of the demand in full and was reported to the court and a motion was made by plaintiff to dismiss such action. The order stated that the action was "dismissed settled". The Court said: "* * * Every distinguishing feature of a case `dismissed agreed' appears, for there is the mutual agreement to terminate the case, which is reported to the court, and the consequent motion by the plaintiff to dismiss it. The consequences of such a dismissal are well understood and constitute a bar to a subsequent action between the same parties for the same cause. "It is sufficient to cite the recent case of Bardach I. & S. Co., Inc. v. Tenenbaum , 136 Va. 163 , 118 S.E. 502 ." *314 In the case of Virginia Concrete Co. v. Board of Supervisors , 197 Va. 821 , 91 S.E. (2d) 415, 419, 56 A.L.R. (2d) 1283, the Virginia Court said: "A retraxit is a voluntary renunciation by the plaintiff in open court of his suit and the cause thereof, and by it he forever loses his action. 6 Mich. Jur., Dismissal, etc., § 35, p. 244; Burks Pl. & Pr., 4 ed., § 337, p. 646. "An order `dismissed agreed' not only puts an end to the pending suit, but is a bar to any subsequent suit on the same cause of action by the same parties `as fully as a retraxit would be.' Bardach Iron & Steel Co. v. Tenenbaum , 136 Va. 163 , 171, 118 S.E. 502 , 505." In this same Virginia Concrete Co. case it was further held that a dismissal order, even in general terms, which does not contain any reservation of right of either party to sue thereafter, is res judicata with respect to all matters covered by the pleadings of the case. The Court said: "In Wilcher v. Robertson , 78 Va. 602 , 618, it is likewise said that `An order simply dismissing the suit is not a determination on the merits, and so is not a bar to the maintenance of a second suit for the same cause of action.' But in the earlier case of Taylor v. Yarbrough , 13 Grat. 183, 194, 54 Va. 183 , 194, it was held that a decree which dismissed a bill in general terms and without any specification of grounds therefor, or reservation of a right to sue thereafter, must be taken to rest upon all the issues presented by the pleadings and regarded as a final judgment of the entire right asserted. Much depends on the stage of the proceedings at which the order was entered and the reason for its entry. It is well, therefore, to heed the admonition in Lile's Equity Pl. & Pr., 3d ed., § 273, p. 157, that where the plaintiff voluntarily dismisses his suit or when it is dismissed involuntarily for reasons not affecting the merits of the case, the order should recite that the dismissal is `without prejudice to plaintiff's right to institute such further suits concerning the same matter as he may be advised.' in order to *315 avoid a plea of res judicata in future litigation. See also Newberry v. Ruffin , 102 Va. 73 , 76, 45 S.E. 733 ." The North Carolina case of Steele v. Beaty et al. , 215 N. C. 680, 2 S.E. (2d) 854, 856, was an action to recover damages for personal injuries alleged to have been caused by an assault by the defendants. The defendants pleaded settlement and a judgment in a former action based on the same cause of action. It appears that when the settlement was made that the order provided "Upon motion and by consent it is agreed that said action be, and the same is hereby dismissed." A judgment was rendered for the plaintiff and an appeal was prosecuted by the defendants. In reversing the judgment of the lower Court, the Supreme Court of North Carolina held that a "judgment of dismissal" entered by agreement of the parties pursuant to a compromise and settlement of the controversy is a judgment on the merits barring any other action for the same cause. It was further held that a "judgment in retraxit" is usually based upon and follows a settlement out of court, and like a judgment on the merits is a bar and estops plaintiff from again proceeding in another suit on the same cause of action. It was also held that the legal effect of an order dismissing a suit agreed is to bar any other suit between the same parties on the original cause of action, thus adjusted by them and merged in the judgment of the court, rendered at their instance, and in consequence of the agreement. We quote the following from this case: "To hold that a judgment of dismissal by consent is not a bar would deny any effect whatever to the agreement of the parties and would treat the judgment of dismissal merely as a voluntary act of the plaintiff. Doan v. Bush , 130 Ark. 566 , 198 S.W. 261 , L.R.A. 1918B, 523. The legal deduction to be drawn from a judgment dismissing a suit by agreement of the parties is that the parties had by their agreement adjusted the subject matter of the conroversy in that suit; and the legal effect of such a judgment is, therefore, that it will operate as a bar to any other suit between *316 the same parties on the identical cause of action then adjusted by them and merged in the judgment therein rendered at their instance and in consequence of their agreement." In the case of Yancey v. Yancey , 230 N.C. 719 , 55 S.E. (2d) 468, 470, the husband brought an action against his wife to establish a resulting trust in realty. A previous action for the same cause had been dismissed and judgment entered "that the matters and things in controversy have been settled between the parties," and that, therefore, it was "adjudged and decreed that the plaintiff be nonsuited." The lower Court held that the previous judgment for the same cause, nonsuiting the plaintiff and reciting that the matters involved had been settled between the parties, was a bar to this action, citing the case of Steele v. Beaty et al., supra . The Supreme Court of North Carolina affirmed the judgment of the lower Court. In the opinion, it is stated that the plaintiff admits the previous order above quoted. It is further stated that the plaintiff did not allege fraud, nor did he attack the judgment nor seek to vacate it. The Court said: "* * * Hence standing upon the docket it is a judgment of retraxit , and it bars a new action. Before he can prosecute another action for the same cause he must in some proper way remove this judgment from his pathway. Moody v. Wike , 170 N.C. 541 , 87 S.E. 350 ; Fowler v. Fowler , 190 N.C. 536 , 130 S.E. 315 ; McIntosh Prac. & Pro. 745." In the West Virginia case of In re McIntosh's Estate , 109 S.E. (2d) 153, 158, the Supreme Court of Appeals of the State, said: "* * * A judgment recording a compromise settlement and dismissing the action `settled and agreed' is sufficient on which to found a res dudicata plea. Central Trust Co. v. Harless , 108 W. Va. 618 , 152 S.E. 209 ; Murden v. Wilbert , 189 Va. 358 , 53 S.E. (2d) 42; 50 C.J.S., Judgments, § 634." *317 A review of the cases decided in Virginia convinces us that the Order of Dismissal by the Law and Equity Court of the City of Richmond, Virginia, was a "dismissed agreed" one because it appears upon the face of the order that there was a settlement between the parties concerning the custody of the infant children and there was a mutual agreement to terminate the case. Such a judgment of dismissal entered by agreement of the parties, pursuant to a compromise or settlement of the controversy, is a judgment on the merits, barring another action for the same cause and is equivalent to a judgment of retraxit. If the respondent here had instituted in the Courts of Virginia the action commenced by her in the Courts of this State, the appellant could have successfully interposed a plea of res judicata as a defense to said action. Since the judgment entered in the Virginia Court by agreement or consent is res judicata in that State, it is res judicata and entitled to full faith and credit in this State. We are required under Art. IV, Sec. 1 of the Constitution of the United States to give the same faith and credit in this State to the "dismissed agreed" order or judgment as "by law or usage" the Courts of Virginia would give to such order or judgment. It is undisputed that the parties in the Virginia proceeding are the same as the parties here. The issue before the Court in Virginia and in the Court here was which of the parties should have the custody of the three minor children. There is, therefore, an identity of parties and subject matter. We should point out that we have held in a number of cases that changed circumstances may authorize the change of custody of minor children. We have held that the Court may at any time on the application of any interested party, or even on its own motion, upon sufficient showing, make further disposition of the custody of a child, if new facts and circumstances make it necessary or desirable for the child's welfare. A judicial award of the custody of a child is never final. Ex parte Atkinson , 238 S.C. 521 , 121 S.E. (2d) 4. Applying this rule to the instant *318 case and after examining the pleadings and the entire record we find neither allegation nor proof of any changed circumstances authorizing a change of the custody of the minor children of the parties to this action. Since we have reached the conclusion that the "dismissed agreed" order of the Law and Equity Court of the City of Richmond, Virginia, is a bar to this action between the same parties for the same cause, in the absence of any allegation or proof of any changed circumstances requiring a change of the custody of the children here involved, the agreement reached by the parties prior to the order of the Virginia Court is still of full force and effect. The exceptions of the appellant raise other issues which we find unnecessary to decide in view of the conclusion heretofore reached. It is likewise unnecessary for us to consider the exception of the respondent to the order of the Honorable J. Robert Martin, Jr., granting the motion of the appellant to stay the execution of the order of the Juvenile and Domestic Relations Court of Greenville County. Reversed. TAYLOR, C.J., and LEGGE and LEWIS, JJ., concur. OXNER, J., dissents. OXNER, JUSTICE (dissenting). The Court holds that the consent order of the Virginia Court dismissing the habeas corpus proceedings instituted there after appellant and respondent had reached an agreement as to the custody of their children is a judgment which, under the Full Faith and Credit Clause of the Federal Constitution, precludes the courts of this State, in the absence of any change in conditions, from inquiring into and determining what is for the welfare and best interests of these children. At the time this agreement was made the marital domicile of the parties was in North Carolina. Appellant *319 continues to be a resident of that State. Under the view taken by the majority of the Court, not only would this order constitute, in the absence of a change in conditions, an adjudication binding on the courts of this State but also on those of North Carolina. I do not agree that it has such effect. It is generally held that the judgment of a Court of one State as to custody of children must, in the absence of fraud or want of jurisdiction, be given full effect in every other State as to the facts before the Court at the time such judgment was rendered. Hartley v. Blease , 99 S.C. 92 , 82 S.E. 991 ; Annotation 116 A.L.R. 1299 . The underlying reason for this was stated by Mr. Justice Frankfurter in a concurring opinion in People of State of New York ex rel. Halvey v. Halvey , 330 U.S. 610 , 67 S. Ct. 903 , 907, 91 L. Ed. 1133 , as follows: "The constitutional policy formulated by the Full Faith and Credit Clause cannot be fitted into tight little categories or too abstract generalities. That policy was the nationwide restriction of litigiousness, to the extent that States, autonomous for certain purposes, should not be exploited to permit repetitive litigation. In substance, the Framers deemed it against the national welfare for a controversy that was truly litigated in one State to be relitigated in another. Such limitation does not foreclose inquiry into what was litigated and what was adjudicated." In this proceeding respondent is not seeking to relitigate an issue which has been litigated in Virginia. The merits of the present controversy were never considered nor passed upon in that State. In fact, the agreement made between the parties was never exhibited to the Court. It follows that the order entered by the Virginia Court was not pronounced in the exercise of its judicial function. Such order, referred to in the Virginia decisions as an order "dismissed agreed", is apparently there regarded as binding on the parties because the courts "cannot change the contract of the parties without their consent." Bardach Iron and Steel Co. Inc., v. Tenenbaum , 136 Va. 163 , 118 S.E. 502 . This is in accord with *320 the general rule that a judgment or decree, though entered by consent of the parties, is res judicata to the same extent as if entered after contest. Norton v. Planters Fertilizer & Phosphate Co. , 206 S.C. 119 , 33 S.E. (2d) 247; Annotation 2 A.L.R. (2d) 514. I do not question the soundness of this principle when applied to an ordinary civil action. If this were purely a personal contest between the parties over a legal right, there would exist a basis for holding that the Virginia order is binding. But I do not think it is binding in another State in a proceeding relating to the custody of children. Such a proceeding is not to be judged, nor the results measured, altogether by technical rules that have to do with property rights. Like marriage, the custody of young children is of importance to the State. It is not a property right of the parents. It is stated in 17A Am. Jur., page 31: "If the original award was made casually, pursuant to an agreement of the parties and without a true judicial consideration of the facts, it is proper to consider the facts as they existed at the time the decree was entered in determining whether the order should be modified." The reasons advanced in the Virginia decisions for the binding effect of an order "dismissed agreed" have no application here. While these parties were at liberty to contract with each other with respect to the custody of their children, such a contract is not binding on the courts. It is always open to judicial inquiry as to whether such agreement is for the best interests of the children. "Parents have no `property rights,' in the ordinary sense of that term, in or to their minor children, and accordingly a parent's right of control or custody of a minor child is not a property right which may be bargained, sold, or otherwise disposed of." 67 C. J.S., Parent and Child, § 11, page 636. As stated by Mr. Justice Jackson in his dissenting opinion in May v. Anderson , 345 U.S. 528 , 73 S. Ct. 840 , 847, 97 L. Ed. 1221 : "Custody is viewed not with the idea of adjudicating rights in the children, as if they were chattels, but rather with the idea of making the best disposition possible for the welfare of the children." *321 In a case of this kind the rights of the parents are subordinate to the welfare of the children. Graydon v. Graydon , 150 S.C. 117 , 147 S.E. 749 . While their rights will be duly regarded, the paramount consideration is the best interests of the children. Koon v. Koon , 203 S.C. 556 , 28 S.E. (2d) 89; West v. West , 208 S.C. 1 , 36 S.E. (2d) 856; Dillon v. Dillon , 219 S.C. 255 , 64 S.E. (2d) 649. This paramount consideration is for determination by the courts and not by the parents. The contract between these parties entered into in Virginia does not under my view preclude the courts of this State from determining the question of custody or as to how custody should be divided between these parties. The children are lawfully in this State and, in my opinion, the question as to whether the agreement made by the parents is for their best welfare is open for judicial determination. | opinion_html_with_citations | 5,481 | 2013-10-30 05:19:12.610082+00 | 010combined | f | f | 1,274,776 | Legge, Lewis, Moss, Oxner, Taylor | null | LU | f | Published | 1 | Ford v. Ford | Ford | Barbara D. FORD, Respondent, v. Herman A. FORD, Appellant | null | null | <docketnumber id="b321-5">
17850
</docketnumber><br><parties id="b321-6">
Barbara D. FORD, Respondent, v. Herman A. FORD, Appellant
</parties><citation id="AdQA">
(123 S. E. (2d) 33)
</citation><br><attorneys id="b321-13">
<em>
Messrs. Leatherwood, Walker, Todd & Mann,
</em>
of Green-ville, and
<em>
Denny, Valentine & Davenport,
</em>
of Richmond,
<span citation-index="1" class="star-pagination" label="306">
*306
</span>
Virginia;
<em>
for Appellant,
</em>
</attorneys><br><attorneys id="b322-4">
<em>
Messrs. Carter & Hill
</em>
and
<em>
Haynsworth, Perry, Bryant, Marion & Johnstone,
</em>
of Greenville,
<em>
for Respondent,
</em>
</attorneys><br><attorneys id="b322-5">
<em>
Messrs. Carter •& Hill
</em>
and
<em>
Haynsworth, Perry, Bryant, Marion & Johnstone,
</em>
of Greenville,
<em>
for Appellant,
</em>
</attorneys><br><attorneys id="b322-6">
<em>
Messrs. Leatherwood, Walker, Todd & Mann,
</em>
of Green-ville, and
<em>
Denny, Valentine & Davenport,
</em>
of Richmond, Virginia,
<em>
for Respondent,
</em>
</attorneys><br><decisiondate id="b323-3">
<span citation-index="1" class="star-pagination" label="307">
*307
</span>
November 15, 1961.
</decisiondate> | null | null | null | null | null | null | 2,520,545 | 17850 | 0 | sc | S | t | Supreme Court of South Carolina | Supreme Court of South Carolina |
7,257,818 | Application for an injunction, presented to Justice Kennedy, and by him referred to the Court, denied. Applicants are correct to note that relief was granted in McComish v. Bennett, 560 U.S. 961, 130 S. Ct. 3408, 177 L. Ed. 2d 320 (2010), which concerned a constitutional challenge to an Arizona law similar to the Maine law challenged by applicants here. The McComish applicants, however, requested a stay of an appeals court decision, whereas applicants here are asking for an injunction against enforcement of a presumptively constitutional state legislative act. Such a request “demands a significantly higher justification” than a request for a stay, because unlike a stay, an injunction “does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.” Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U.S. 1312, 1313, 107 S. Ct. 682, 93 L. Ed. 2d 692 (1986) (Scalia, J., in chambers). In light of these considerations, and given the difficulties in fashioning relief so close to the election, applicants’ request for extraordinary relief is denied. Justice Scalia and Justice Alito would grant the application for an injunction as to the matching fund provisions. | opinion_xml_harvard | 198 | 2022-07-25 06:40:21.482929+00 | 020lead | t | f | 7,339,896 | Application, Grant, Injunction, Provisions, Scalia | null | U | f | Published | 0 | Respect Maine PAC v. McKee | McKee | Respect Maine PAC, Applicants v. Walter F. McKee, in his official capacity as a member of the Commission on Governmental Ethics and Election Practices | null | null | null | null | null | null | null | null | null | 64,328,388 | No. 10A362 | 0 | scotus | F | t | Supreme Court | Supreme Court of the United States |
8,019,719 | WALKER, P. J. Relief by habeas corpus is invoked by petitioners in this court to effect their discharge from an alleged unauthorized judgment of commitment for contempt rendered against them by the judge of the circuit court of Cole County. The writ was granted as prayed and made returnable on a day certain. The sheriff of Cole County, who held petitioners in custody, made return to the writ, to which petitioners filed their reply. The facts as set out in the judgment of commitment with which the return is in accord, having been put in issue by the reply of petitioners, the court appointed Yirgil Y. Huff, Esq., as a special commissioner, to take testimony concerning the disputed facts and report his findings of fact and conclusions of law in relation thereto. The commissioner having heard the testimony, filed herein a transcript of same, together with his .findings and conclusions in conformity with the order of his appointment. To this report the sheriff filed his formal exceptions. The issue has, been presented in extenso. Counsel for the respective parties have argued the matter orally and have filed printed briefs and arguments herein. The facts out of which this proceeding arose are as follows: In November, 1917, there was pending in the circuit court of Cole County, in which Hon. John G. Slate presides as judge, a criminal case entitled the State v. John W. Scott, in which the defendant was charged with the larceny and embezzlement of coal belonging to the State. The Attorney-General had been directed by the Governor to appear and assist the prosecuting attorney in the trial of this ease. Petitioners, representing the Attorney-General and at his behest, appeared in the circuit court and tendered their service to assist the prosecuting attorney. The latter, refused to par-, *104ticipate in the prosecution, whereupon the court announced that the case would be conducted for the-State by the petitioners. The latter having secured a formal entry permitting the endorsement of the names of certain witnesses on the indictment, announced ready for trial, but requested, in addition, that the State be not restricted in the selection of triers of the fact to the regular panel of jurors, for the reason that during that term of court and a few days prior thereto, a trial panel had been chosen from these jurors, the members of which had sat in the trial and had rendered a verdict of acquittal in a criminal .case charging a like offense, similar in all of its material features to the one then before the court, and against this same defendant. The court overruled petitioners’ suggestion, announcing that the jury was not disqualified for the reason stated by petitioners. Furthermore, the court announced in response to an inquiry of petitioners, that the ruling made during the trial of the former case of like character to that before the court and alsoi against said Scott, in regard to testimony of similar transactions by him at or near the time of the -act charged in the pending indictment, would be adhered to in the trial of this case; and that testimony of this character would not be admitted to show intent or for any other purpose. Petitioners then withdrew their announcement of ready for trial and stated that they desired time to file an application for a change of venue on account of the prejudice of the judge against the State. Upon the petitioners having signed and made oath to said application before the clerk of the court, the judge ordereá it not to be filed until he had read it. After reading it the court granted petitioners leave to file same. This was done and at once overruled by the court. Counsel for defendant then announced ready' for trial. Mr. Ewing, one of the petitioners, then asked for time within which to apply to the Supreme Court for a writ of prohibition against the judge, on the ground of a lack of jurisdiction after the filing of the application for a charge of, venue. The court refused to grant *105time for that purpose, his language being, “That will be refused. You must proceed with this case.” To which Mr. Ewing replied: “I decline to proceed on account of the attitude of the judge. ” ■ To which the latter replied: “I permitted you to file this application for a change of venue although I thought it was a frivolous proceeding. If, however, the representatives of the Attorney-General’s office want to parade their ignorance before this court and the attorneys present, I guess , I can stand it, but I want to warn you that I am getting tired of your frivolity and that you won’t tamper any longer with the court,adding: “Proceed with the trial of this case. Either continue, dismiss or go on with the trial. The witnesses are present, the jurors are on hand and the defendant has answered ready and he is entitled to a trial at this time. I want to know what you are going to do?” To which Mr. Ewing said: “You are evidently about to fine us for contempt, but before you do so 1 want to say that we never filed a pleading with greater earnestness than when we filed this application for a change of venue.” The judge, after again ordering them to proceed, said: “In view of the fact that you have filed in this court a motion which, to say the least, is frivolous, and because you refuse as representatives of the Attorney-General’s office to proceed with this case, I will adjudge you guilty of contempt and fine you fifty dollars each, and I want satisfactory proof that these fines are paid out of your own pockets and not .out of the Attorney-General’s contingent fund.” “We decline to jpay the fines,” said Mr. Ewing. “In that event,” said the judge, “you are ordered committed to jail until the fines are paid or you are discharged by due course of law.” Addressing the sheriff, the judge said: “Mr. Richter, take charge of these attorneys.” Mr. Ewing then said to the court: “If it is necessary for somebody to go to jail in order that the State may get justice in this case, I am ready to go.” “Be careful,” said the judge, “or I will fine you again.” Prom time to time during this scene petitioners askecl that the court require the official stenog*106rapher to make a note of the proceedings in the order of their occurrence. The stenographer took a position in front of the court’s bench preparatory to taking notes of the proceeding when the court interrupted him saying: “Never mind about that. This is a matter between the attorneys and the court.” The stenographer thus admonished did not take the notes. The variance between the facts, as disclosed in the testimony and as they appear in the findings of the trial court’s judgment, renders a full transcript of the latter necessary to a correct understanding of the case. Omitting the caption, certificate of the clerk as to the correctness of the transcript of the judgment, and incorporating only the body of the application for a change of venue, the judgment and order of commitment are as follows: “Whereas, Lee B. Ewing and S. P. Howell, duly licensed and practicing attorneys-at-law, were adjudged guilty of contempt of court, and each of them, by the 'circuit court of Cole County, Missouri, for contempt committed in the immediate view, presence and hearing of the court, by its judgment then and there pronounced, ana entered of record among proceedings of said court on the 27th day of November, 1917, which said judgment was in words and figures as follows: “It is ordered and adjudged by the court that Lee B. Ewing and S. P. Howell, attorneys, practicing in this court, and each of them, be fined $50 for contempt of court committed in the immediate view, presence and hearing of the court, on the 27th day of November, 1917, while the circuit court of ■ Cole County, State of Missouri, was in regular session and during the sitting of said court for the transaction of business that might lawfully be brought before it for consideration, in this: That the said Lee B. Ewing and S. P. Howell, and each of them, did wilfully, knowingly and contemptuously file in this court, for and upon behalf of the State of Missouri in a certain cause lawfully pending in said court, what purported to be an application for a change of venue in said cause, which application for a change *107of venue is in writing and in words and figures as follows: “ ‘Comes now the State of Missouri, plaintiff in the above entitled canse, and files its application herein, and says that the Hon. John G. Slate, judge of this court, is prejudiced in this cause against the State, and that by reason of such prejudice, the said judge, by the terms of section 5198, Revised Statutes 1909, is disqualified and prohibited from sitting as judge of this court upon the trial of this cause. “ ‘Wherefore, the State says this court is disqualified to proceed further in this cause,- than in accordance to the provisions of Section 5201, Revised Statutes 1909, and therefore prays that he make an order accordingly granting the State a change of venue herein.’ “Which said foregoing motion and application for a charge of venue was by the court overruled and denied. “That thereafter and thereupon, and while the case of the State of Missouri v. John Scott was then and there pending before the court, wherein the said John Scott is charged with the crime of embezzlement and grand larceny, and while said Scott was present in person in court, and by counsel, and demanding a trial, within his constitutional rights, upon said charge, and the said Lee B. Ewing was present in court as special counsel for the State of Missouri, and the said S. P. Howell was present in court as Assistant Attorney-General, both of whom were in charge of said cause and prosecuting for and upon behalf of the State of Missouri, and appearing for and in the place and stead of the prosecuting attorney of Cole County, Missouri, in said cause; and the court having then and there inquired of them as to whether or not the State of Missouri was ready for trial in said cause, and that thereupon -the said Lee B. Ewing and the said S. P. Howell In the immediate view, presence and hearing of the court, and the regular panel of the petit jury then and there assembled, wilfully and contemptuously refused to make answer, although often requested so to do by the *108court, and the said Lee B. Ewing and the said S. P. Howell did then and there state to the court that the State of Missouri could not have a fair and impartial trial before the court then sitting in said cause, and that said court was without jurisdiction to hear and determine said cause, which said statement was made in the immediate view, presence and hearing of the court and the said jurors - then assembled for the trial of said-cause, and the said Lee B. Ewing and the said S. P. Howell then and there refused to proceed further, or to «take any further action in said cause; that thereupon the said Lee B. Ewing and S. P. Howell were admonished by the court that they must either answer ready for trial, or ask for a continuance, or take some other proper action in said cause; whereupon the said Lee B. Ewing and S. P. Howell in the immediate view, presence and hearing of the court and jnry, stated that they refused to do either — answer ready for trial, ask for a continuance, or take any further action in the said cause — and after being fully and duly warned by the court that their refusal to take any action whatsoever in said cause would be treated as wilful contempt by them, and each of them, of the court; the said Ewing and Howell again stated in the immediate view, presence and hearing of the court and the jnry, wilfully, knowing-ly and contemptuously, that they were willing to be adjudged in contempt of the court and go to jail in order to get justice in said cause, thereby wilfully, knowingly and contemptuously accusing the court, in the immediate view, presence and hearing of the court, the jury, and a large number of persons there assembled, of being partial towards the defendant, and unduly prejudiced against the State of Missouri in said cause; and that thereafter the said Ewing and Howell refused to further answer, but wilfully and contemptuously stood mute and refused to take* any action whatever in said cause; that the said Lee B. Ewing and the said S. P. Howell did then and there, in the immediate view, presence and hearing of the court, by their words, act and gestures, offer and commit wilful *109contempt in the immediate view, presence and hearing of the court. “Wherefore, the court doth, by reason of the premises aforesaid, adjudge the said Lee B. Ewing and S. P. Howell, and each of them, in wilful contempt of the court and doth assess the ‘punishment of the said Lee B. Ewing and the said S. P. Howell, and each of them, at a fine of $50 and that the said Lee B. Ew'ing and the said S. P. Howell, and each of them, stand committed to the common jail of Cole County, Missouri, until said fines of each of them shall be paid, or until they shall be discharged by due course of law; and whereas the said Lee B. Ewing and the said S. P. Howell, and each of them, doth refuse to pay said fines so assessed against them, it is therefore ordered and adjudged that the said Ewing and the said Howell, and each of them stand committed to the common jail of Cole County, Missouri, until said fines of each of them shall be paid, or until they shall be otherwise discharged by due course of law. “These are, Therefore, to command you, the said sheriff of Cole County, Missouri, forthwith to convey and deliver into the custody of the keeper of the county jail of said county the body of the said Lee B. Ewing and S. P. Howell, and each of them, so as aforesaid found guilty of contempt and adudged by the said circuit court to be imprisoned therefor in the county jail until further order of this court, or until they be otherwise discharged by due process of law; and you, the said keeper of the said jail, are hereby required to receive the said Lee B. Ewing and S. P. Howell, and each of them, into your custody and them confine in the jail of said county until the further order of this court, or until they be otherwise legally discharged by due process of law; and for so doing this shall be your warrant. ’ ’ *110contempt: of Judgment. I. The judgment herein from which petitioners seek relief relies for its potential force upon a finding of direct contempt alleged to have been committed in the face of the court. It is urged preclusively rather than affirmatively, that the findings of this judgment are conclusive, and that no ulterior inquiry can be made into the facts, the effect of which may be to question its validity; the contention being in brief, as is the general rule, that the judgment imports absolute verity — its face constituting not only a certificate of the legitimacy of its origin but of its present good character. "While the older authorities in other jurisdictions, from which the textwriters deduce statements of principles, unqualifiedly apply the general rule of immunity from collateral attack to judgments of the character here in question, we hold otherwise. Here one convicted of direct contempt in seeking relief through habeas corpus is not limited to an inquiry as to the convicting court’s jurisdiction, but, if the truth of the findings upon which the judgment is based is denied in the petitioner’s reply to the return, inquiry may be made in regard thereto. To this extent we have, as has been done elsewhere (Counselman v. Hitchcock, 142 U. S. 547; Ex parte Fisk, 113 U. S. 715; Ex parte Irvine, 74 Fed. l. c. 959), brushed aside the hard-and-fast rule which theretofore hedged about judgments for direct or criminal contempt rendering them immune from attack; and have authorized an inquiry to test the truth of their findings. [Ex parte Creasy, 243 Mo. l. c. 688, 694.] The wisdom and wholesomeness of this modification of the general rule is supported by reason and justice. There is no appeal or right to a writ of error from a judgment for direct or criminal contempt; no provision having been made therefor by statute, the right does not exist. [In re Clark, 208 Mo. l. c. 146.] Absent the right of appeal no opportunity for a full.review of the proceedings is afforded except by habeas corpus. Resort to the writ of certiorari some*111times employed in other jurisdictions will not afford relief, because, as is not infrequently the case, the proceedings concurrent with and provocative of the judgment for contempt, are not preserved in the record and hence cannot be brought up for review. By invoking the aid. of habeas corpus, however, which is always construed in favor of the liberty of the citizen, an opportunity is afforded in a case of the character here under consideration, to look beyond the commitment and its recitals into the evidence and circumstances upon which the court below acted, and determine therefrom, although jurisdiction of the person' and subject-matter be conceded, whether the court had authority to render the judgment; or generally whether the third essential to the court’s right of action existed. This manner of exercise of the right of supervision and control of inferior tribunals whether it rests in the Constitution or arises out of the common law, as one of the attributes of a .court of superior jurisdiction, is held to be authorized notwithstanding the provisions of the Statute (Sec. 2475, R. S. 1909) prohibiting an inquiry into the legality or justice of any process, judgment, decree or order of any court legally constituted or the justice or propriety of any commitment for contempt made by any court, body or officer and plainly charged in such commitment. It being held that although such commitment may recite the existence of the necessary jurisdictional facts to sustain it, the authority of a court or officer cannot be acquired merely by asserting it or by falsely alleging its existence, and hence the evidence may be inquired into to determine the truth. [Ex parte Creasy, 243 Mo. l. c. 695; Ex parte O’Brien, 127 Mo. l. c. 489.] Elsewhere similar statutes have received a like construction (People ex rel. v. Liscomb, 60 N. Y. 559; People v. Cassels, 5 Hill, 164; Ex parte Duncan, 62 S. W. (Tex.) 758; Ex parte Juneman, 28 Tex. App. l. c. 488.] Yiewed from every vantage the reasons for the exemption of judgments for direct contempt from the ordinary rule of immunity from collateral attack, become more apparent. In other *112proceedings the judge stands indifferent between the parties; the procedure is along a beaten pathway found from experience most promotive of justice; and the judgments resulting therefrom are not only entered under the supervision of the court, but are subject, before becoming conclusive, to the scrutiny and criticism of opposing counsel. Thus rendered, the possibility of their findings incorrectly stating the facts cn which they are based are remote if not impossible. Under such circumstances it is not difficult to account for the origin and permanence in our jurisprudence of the rule ordinarily applicable that the findings of a judgment shall import verity and that its conclusion shall be 'inviolable. The characteristics of such a judgment are entirely different from those which distinguish a judgment for direct contempt. The latter is summary and in a sense ex parte in that the court is the only active factor in its rendition. Whatever part the contemner may have contributed to it was completed before the action of he court commenced. With the announcement of the punishment inflicted the judgment became final except for its formal entry upon the record. When so entered its only resemblance to an ordinary judgment is in its form. The court’s adjudication is a conviction and its commitment in consequence an execution. [Ex parte Kearney, 7 Wheat (U. S.), l. c. 43.] The judicial poise, therefore, which enables the upright judge to hold the balance of justice evenly and fairly in an ordinary case is difficult to maintain in a proceeding for' direct contempt. This is due more perhaps to the limitations of nature than purpose on the part of the judge. Being human, his impulses and passions are subject to the same influences which actuate other men; and while a contempt of court is, as its words clearly indicate, a manifestation of disrespect towards a tribunal in which justice is administered, the judge in whose presence and hearing the offense is committed maintains indeed the true judicial attitude, if in passing judgment on the offender, he assesses the punishment free from any feeling of personal affront. The *113danger of this not being done constitutes an all-sufficient reason why a court of review should in a case of this character carefully .consider all of the facts leading up to the judgment to determine if justice has been fairly administered and not content itself with the conclusiveness of the face of same as in ordinary cases. A contrary ruling involves, not only in its essence but in its application, the absurd conclusion that the judge, although his fiat determines a question of personal liberty, is incapable of acting intemperately or unwisely, even where he may regard himself, through a mistaken idea of what contempt consists, as personally concerned; or that the courts are surrounded by a sacred aura which precludes inquiry into their actions lest their dignity be lowered, their efficacy lessened or their existence endangered. Fortunately, however, for the rights of the individual — paramount to all else in a free country— form, ceremony and a blind adherence to precedent are no longer, if they ever were, dominating influences in judicial action. Year by year the rulings of courts of last resort exemplify this fact. Techflicalities are being swept away; and precedents are followed if reason supports their application, but not otherwise. What the courts require and, demand in the wise and wholesome administration of justice is that the facts in any given case may be fully known. Justice, it is true, is typified as being blind, but only as indicative of her impartiality. Deafness has never been designated as one of her attributes. Deprived of this sense, the suitors at her shrine would receive but haphazard consideration. For these reasons, therefore, and others not necessary, in a proper conservation of time and space, to be added, we give our unqualified approval to the rule announced in the Creasy (243 Mo. 679) and O’Brien (127 Mo. 477) cases and impliedly endorsed in the Clark case (208 Mo. 121), to the effect that in a proceeding by habeas corpus to secure the release of one from a commitment for a direct contempt, we will look beyond the findings of the judgment where the truth of same as set forth in the *114return is- denied by the contemner, to ascertain the full facts from which the right to the writ may be determined. insufficient Facts. II. The right of review not being confined to the findings of the commitment, let us inquire whether these findings are sufficiently in accord with the facts to sustain the judgment. If not, and the variance is in-a^ver^erL^ R is unexcusable; If wilful, it is worse. A more specific characterization is unnecessary because it is not conceivable, either in this or any other case, that a judge charged with the administration of justice and having a purpose only to preserve the dignity of the court in which he presides, will countenance or even tacitly consent to the making of a falsified record to sustain judicial action. Summarized, the findings upon which the- judgment is based are as follows: filing the.application for a change of venue; declining to proceed with the trial; saying to the court that the State could not have a fair and impartial trial in that tribunal; that the court was without jurisdiction; before the judgment of conviction was announced that petitioners were willing to go to jail in order to get justice; and in accusing the court, in its presence and hearing and in that of a large number of persons there assembled, of partiality to the defendant and prejudice against the State. The uncontradicted testimony of the witnesses sustains only three of these findings, viz: (1) filing the application for a change of venue; (2) declining to proceed with the trial; and (3) stating that the court was without jurisdiction. This last may properly be considered in connection with the declination to proceed with the trial, because it is shown to have been stated as a reason for not so proceeding. The statute (Sec. 3881, R. S. 1909) so far as its terms are applicable to the facts here, defines a direct contempt to be any disorderly, contemptuous or insolent behavior committed during the session of the court in its immediate view and presence and directly tending to interrupt its proceeding or to impair the respect due to its authority. Comprehensive as is this defini*115tion it is not to be construed as a limitation upon the right of the courts to punish for contempt, this power being, as we held in State ex inf. v. Shepherd, 177 Mo. 205, and in Ex parte Crenshaw, 80 Mo. l. c. 453, inherent, is, in the absence of constitutional inhibition, free from the definitive action of the Legislature. In this general declaration as to the power of the courts we are not unmindful of the modification of the rule in the Shepard case in Ex parte Creasy, 243 Mo. 680, 708, which, however, under the facts, does not affect the matter at issue. The manifestations of contempt being as varied as the actions of the human mind (6 R. C. L. 491, sec. 4), it remains to be determined, regardless of the statute, whether either or all of the three findings sustained by the facts are sufficient to establish the contumacy of the petitioners. A few general observations, although trite, may serve to clear the atmosphere for the concrete consideration of the question. Primarily courts are constituted to settle controversies. The nature of the matter in dispute is immaterial. It may involve the right of that intangible thing we call the State, to punish an offender for an’infraction of the law, or the settlement of differences between private individuals. In short, a court is, in a sense, a clearing house for errors. Its purpose is to determine the right conclusion to be reached in a given ease. If the question involved be not controverted, it is not for its consideration. The course pursued, therefore, by counsel in the conduct of a case, if deferential, can constitute no ground of offense. In a somewhat careful review of the authorities we have been unable to find any case in which it is held that the respectful filing of any pleading or motion, which may reasonably be termed pertinent and not in its terms offensive will be regarded as contemptuous. In Johnson v. State, 87 Ark. 45, it is affirmatively ruled that the _ repeated filing of motions suggesting the disqualifications of a judge, if done in a respectful manner, will not, although deemed by the trial court to be for vexation and delay, constitute *116contempt. A bolding to the contrary would in our opinion tend to limit the right- of counsel to the detriment of' litigants. If this latitude be denied, the full purpose of a court’s creation will cease and the reason for its existence will be at an end. If the power of the courts to thus limit counsel in the courteous presentation of wbat they may deem errors in a case be conceded, a condition of judicial tyranny will be rendered possible, which- will sooner or later make the administration of justice a farce and the impartial attitude of courts a by-word. If tbis conclusion is in accord with reason, then the challenge to the fairness of the judge made by counsel for the State and styled in the record a motion for a change of venue, did not, in itself, constitute such a mark of disrespect or a matter of offense as to merit punishment. Tbe burden of the motion was not to assail the integrity of the court, but that it had prejudged the case. We must look therefore to the manner in which the motion was made to determine if the action of the court can be sustained, for a contempt like a crime, must be measured by the intent with which it is committed. [People ex rel. v. La Fetra, 171 N. Y. App. Div. 269; Wells v. Commonwealth, 21 Graft. (Va.) 500; Ex parte Biggs, 64 N. C. l. c. 217.] Counsel asked leave to file the motion, stating the reason therefor, and citing the statute under which it was claimed to be authorized. The court, while questioning, the application of the statute, except when invoked by a defendant, granted the request. Tbe motion was prepared, examined by the court and permitted to be filed. It was then overruled and counsel directed to proceed with the trial. If, up to tbis point, there was any semblance of contempt in the conduct of counsel, the record does not indicate it, nor is it established by the testimony of witnesses present during the entire transaction. Tbe judge himself did not so regard it. Ever alert, as be should be, to preserve the dignity of bis tribunal, be found thus far, at least, no cause for affront; but, after having examined the motion, which is brief, clear and easy of comprehension, be gave bis assent to its becoming a part of the files and in the orderly course of *117procedure overruled it. If he had deemed it otherwise than the exercise of a right accorded to counsel under the recognized rules of precedure, he would have refused to permit it to he filed, and if. this had been inadvertently done, he would have ordered it stricken from the files. Familiar, therefore, with all of the facts and circumstances connected with the filing of the motion, the court gave its assent thereto, which it would not have done if the act had been accompanied by an insult of any character. An act which indicates no insult, even to the scrutinizing eye of the court, cannot reasonably be considered subject to censure, much less condign punishment. We must conclude, therefore, not only from the record, the testimony of the witnesses which we have set forth in detail in the statement of facts, and the conduct of the court, that there was neither in the act of counsel nor in the manner in which it was preformed a manifestation of disrespect. We might well conclude here and order the discharge of the petitioners, if the sum of their offending was limited to the alleged improper filing of the application for a change of venue. There are others, however, as we have noted: (1) declining to proceed with the trial and (2) denying the court’s jurisdiction. They may be considered together, because, under the facts in this case, they are inseparable. In declining to proceed on account of the court’s alleged unfairness, the question of its lack of jurisdiction was necessarily involved and hence not inconsistently asserted. We do not understand, and it is not contended, that either of these acts was committed in a contemptuous maner. If so, there is no evidence to sustain such a contention. The affirmative attitude of counsel, as indicated by Mr. Ewing, when directed to proceed with the trial, was to the contrary. He said, in substance, that he had filed the motion for a change of venue in good faith and with as much earnestness as he had ever filed a paper in court. The charge of contempt, therefore, if sustained by either of these findings must consist in the acts themselves. The only tenable ground upon which this contention can be based is that counsels’ conduct interrupted the pro*118ceedings of the court and thus hindered the administration of justice. That a refusal of an officer charged with the control of the prosecution of a State case to proceed with a trial, may or may not, under a proper state of facts, constitute' contempt, we are not .called upon to determine in this case. Counsel here seeking release were not so charged. Their duty as representatives of the Attorney-General acting under the direction of the Governor was to assist the prosecuting attorney. The statute (Sec. 967, R. S. 1909) in relation thereto is definite in its terms and unmistakable in its meaning. Neither upon their own assumption nor under the orders of the court were counsel authorized to exercise any greater prerogative in the absence of the disqualification of the prosecuting attorney. A condition might, of course, arise due to the incapacity of the latter which would render it necessary for the court to direct assisting counsel to assume control of the trial of a case. No such condition existed here. The record affirmativély declares that the prosecuting attorney had declined, no reason being stated, to participate in this prosecution. No such authority is conferred on this official; and, in the absence of any fact which would have disqualified him, his sworn duty required him to at least participate in, if he did not direct, the proceeding. The statute defining his duties is mandatory. [Sec. 1007, R. S. 1909.] The announcement of the court, therefore, that the prosecuting attorney would not prosecute but that assisting counsel would conduct the proceeding conferred no such unqualified controlling power upon the latter in the disposition of the case as to' render their presence alone necessary to the continuance of the prosecution. Construed otherwise the statute would authorize the Governor to override by his direction the will of the people, whether exercised wisely or not, in their selection of an officer to prosecute offenders against the law. The province of this statute is to afford assistance to the prosecuting attorney, and not to usurp his power. Rightly construed, it is a wise provision; given unusual scope, it. cannot but prove pernicious in its operation. *119When, therefore, counsel declined to proceed, the court, conscious of the duty devolving on the prosecuting attorney, could have called him in and directed him to conduct the trial to a conclusion. There is no merit,. therefore, in the claim that the failure or refusal of counsel to proceed with the trial constituted any practical harrier to the court’s progress in the discharge of its duties. Following the declination of counsel to proceed and the refusal of the court to grant them time in which to apply to the Supreme Court for a writ of prohibition, the court declared their conduct to be contemptuous and despite their repeated asseverations that they had filed the motion and declined to proceed, believing their conduct to be authorized under Section 5198, Revised Statutes 1909, they were fined. Upon their .refusal to pay same they were ordered committed to jail. An unfortunate incident followed the assessment of the punishment of counsel in the remark of the judge that it would be necessary to satisfy him-that the fines were not paid out of the public funds. We refer -to this reluctantly, only to say that the remark did not constitute an illuminating illustration of that cool judicial equipoise which should characterize the conduct of a judge assessing punishment against counsel for an infraction of the court’s dignity. 5198 0n III. Holding as we do that the acts of counsel were neither in themselves nor on account of the demeanor which characterized their commission, contemptuous, it is not necessary to determine whether the mo^on which constituted a challenge to the fairness of the court was authorized under that subdivision of Section 5198, Revised statutes 1909, which provides that a judge shall be incompetent to hear and try a case when in anywise interested or prejudiced. The origin and history of this section has been chronologically presented in the briefs, where it may be readily examined, and it is, therefore, unnecessary to set it out *120herein. It will be time enough to construe the statute when confronted with that duty. TV. Whatever may be said in the above behalf, however, since it does not constitute a( ruling necessary to the determination of the case, may properly be regarded as the personal observations of the writer. The application of the statute other than when invoked by a defendant, although that seems to have been its usual construction, is not unreasonable. A condition of the public mind may exist in a locality which would impel a public prosecutor, in an honest effort to discharge his duty, to at least call the trial judge’s attention to circumstances indicating that he had, although without corrupt intent, prejudged the case and that it should be tried by another. This would involve no question of personal integrity, afford at least a fair opportunity for tthe State to conduct the prosecution free from any possible ulterior influence, and in no wise interfere with any right accorded to the defendant. Let us suppose, although the illustration may be remote, a condition of the public mind where the doctrine of meum and tuum, so far as it applies to the sacredness of public property, has come to be lightly regarded, and while a proper sensitiveness as to the rights of private individuals may prevail, as to the rights of the public, “the good old rule sufficeth them, the simple plan, that they should take who have the power and they should keep who can.” Where this standard of right prevails its influence may possibly extend to a greater or less degree to the instrumentalities employed in the administration of justice. Judges themselves, although unconscious of same,"may be subject to this influence. Where it exists justice cannot be fairly administered by those subject thereto. The remedy is simple. Upon the suggestion of prejudice being made under Section 5198, the judge, prompted by that sense of delicacy and duty which renders him averse to judicial action upon an intimation of his interest in the matter at issue, will retire and call in another to try the case. Section 5201, Re*121vised Statutes 1909, reasonably construed, will authorize this course. Such a course' would indicate a high sense of official duty, as well as a dispassionate purpose on the part of the judge, to free the case from even an intimation that he could not fairly conduct it. The reasoning of this court in awarding a writ of prohibition against a circuit judge in State ex rel. v. Wear, 129 Mo. 619, gives favorable color to the correctness of the foregoing conclusion. While the facts in that case are somewhat different from those in the case at bar, the construction given to Section 5198 (then Section 4174) is strongly persuasive of what constitutes a proper application of that section. In the Wear ease the ground of disqualification which the judge himself had recognized, was relationship to the accused. The judge, recognizing this relationship and its consequent disqualifying effect, had called in a judge from an adjoining circuit, hut when he appeared to try the case Judge Wear refused to surrender the court room to him or otherwise permit him to proceed. Thereupon the prosecuting attorney of the county where the case was pending applied for and was granted a writ, of prohibition. This court in granting the writ cited the Constitution (Sec. 29, Art. 6), which provides in the event of a vacancy in the office of a judge or his inability for any cause to hold a term or part of a term, the same may be held by a judge of any other circuit; and at the request of a judge of any circuit, any term or part of a term, in the circuit of the judge unable to hold the court, may he held by the judge of any other circuit. The Legislature is authorized to make such provisions for the holding of court as is found necessary. “In obedience to this command of the Constitution” says the court, “the Legislature enacted Section 4174, Revised Statutes 1889.” The section is then set forth in full and is identical in its terms with what is now Section 5198. As a method to render this section operative, Section 4178, Revised Statutes 1889 (now Section 5201), was enacted which provides how and under what circumstances, when the incompetency of a judge *122is alleged, another may be called in. In discussing these constitutional and statutory provisions the court said: “It is plain that Judge "Wear by his relation to his son, the defendant, was disqualified, and knowing this, it was his imperative duty to either order the election of a special judge or to call in the judge of another circuit to sit in the trial of the said indictment.” As a logical conclusion flowing from this reasoning it would seem that the duty of the judge, whose right to sit was challenged, would be equally imperative, regardless of the ground of disqualification urged if within the terms of the statute. For the reasons stated, we are of the opinion that the judgment against the petitioners should be set aside and that they should be discharged. It is so ordered. Faris, J., concurs; Williams, J. concurs in paragraphs 1, 2, 3 and the result, but expresses no opinion as to matter discussed in paragraph é. | opinion_xml_harvard | 7,067 | 2022-09-09 02:09:11.269726+00 | 020lead | t | f | 8,062,068 | Discussed, Expresses, Faris, Paragraph, Paragraphs, Walker, Williams | null | U | f | Published | 0 | In re Howell | In re Howell | In re SHRADER P. HOWELL and LEE B. EWING | <p>Habeas Corpus.</p> <p>(1) In habeas corpus, when the petitioners seek release from punishment for an alleged criminal contempt, this court will go behind the return, commitment and judgment, and ascertain the facts, and determine whether or not the facts warrant the judgment.' Ex parte Creasy, 243 Mo. 679; Ex parte O’Brien, 127 Mo. 477. (2) Direct criminal contempt of court is defined to be “disorderly or insolent behavior committed during the session and in the immediate view and presence of the'Court, directly tending to interrupt its proceedings or impair respect due its authority . . . or wilful disobedience of any process or order lawfully-issued or made;” or “wilful disregard of the authority of the court rightfully exercised;” or “wilful disregard of the authority of courts.” R. S. 1909, sec. 3881; Powell v. State, 48 Ala. 156; Black’s Law Dictionary (2 Ed.), p. 257; Anderson’s Law Dictionary, p, 242; 2 .Words & Phrases, p. 1489; Bouvier’s Law Dictionary, (a) That which is done by permission of the court cannot he done in defiance of the court or in contempt of the court. That which is done respectfully, cannot he done insolently or contumaciously. “He is not to be heard, who alleges things contradictory of each other.” Broom’s Legal Maxims, 135. (b) There can be no criminal contempt of court where the act is done in good faith, and in the honest belief that it is authorized by the facts and the law. Therefore, petitioners cannot be guilty of contempt, if they filed the affidavit in question in good faith, believing that the judge was prejudiced and that the law authorized the procedure. This is true, notwithstanding petitioners might have been mistaken, both as to the law and the facts. Broom, Leg. Max. 256; Rapalje, Contempt, sec. 121; Oswald, Contempt, 56, 57, 51, 52; Willis v. Comm., 21 G-ratt. (Ya.) 500; In re Wooley, 74 Ky. 95; Ex parte Biggs, 64 N. C. 202; People v. LaFetra, 171 App. Div. (N. Y.) 275; Clair v. State, 40 Neb. 534; Hawes v. State, 46 Neb. 149; State v. Jasper, 88 S. E. (W. Va.) 1096; Thomas v.People, 14 Colo. 257; Ex parte Curtis, 3 Minn. 274; Mullins v. People, 15 Colo. 441. (c) If, after filing the affidavit of prejudice against the judge, petitioners refused to proceed because they in good faith believed the judge was without' any further jurisdiction, to try the cause, then petitioners were not guilty of any contempt. Authorities above. (3) In filing the affidavit, charging Judge Slate with prejudice, and in refusing to further proceed with the cause, and asking leave to apply to the Supreme Court for a writ of prohibition, did the petitioners act in good faith? Upon the nncontroverted facts, this question must be answered in the affirmative. . (a) Because petitioners asked and obtained leave to file the application and affidavit before it was filed. ’ (b) Because the petitioners were respectful and courteous in manner and conduct, when filing the affidavit and while refusing to proceed and asking to be allowed time to apply for a writ of prohibition, (c) Because the judge had stated that he expected to rule in the case then about to be tried (State v. John W.. Scott), as he had ruled in the former Scott case. In the latter case the paramount issue was the intent with which the act was done, and the State had offered testimony of like transactions by the accused for the purpose of showing intent. This testimony was excluded. This ruling was wrong and very prejudicial to the State. The statement of Judge Slate that he would adhere to this rule in the cause pending, which' was the same character of a case, the same charge, larceny and embezzlement, the same prosecuting party, and many witnesses the same, clearly showed prejudice, to-wit, prejudgment. Such character of testimony was clearly admissible. State v. Patterson, 196 S. W. (Mo.) 3; State v. Schnettler, 181 Mo.. 189, 190; State v. Williams, 136 Mo. 294, 297, 308; State v. Myers, 82 Mo. 558; .Kelley’s Crim. Law and Practice, 247; Wharton’s Crim. Evidence (10 Ed.), 1665. (d) Because Judge Slate had said that he did not see how the regular panel of jurors that had tried the former case of State v. Scott, would be disqualified to try the pending case of State v. Scott. The charges in the indictment in each case were alike, to-wit, larceny and embazzlement of coal belonging to the State; the prosecuting party was the same, the defendant was the same, many of the witnesses were the same, and of necessity much of the testimony would have been the same. The State and the defendant were alike entitled to a jury that was free from any opinion or bias as to any of the facts in the case. R. S. 1909, secs. 5219, 5220; Stephens y. State, 53 N. J.'L. 245; Curtis v. State, 118 Ala. .125; Baker v. Harris, 60 N. C. 271. (e) Because the rulings of the judge and his statements and acts were ample to justify the belief in his prejudice by petitioners. Mullins v. People, 15 Colo. 441. (f) Because the sworn statements of petitioners are that they were acting in good faith, and they so stated at the very time of the alleged contempt, (g) Because, under the law the State has the right to file an affidavit against a judge who is prejudiced, charging that fact, and thereby secure a trial before a fair-minded and unprejudiced judge. See authorities under next point. (4) When a judge is prejudiced against it, and in favor of the defendant, the State, in a criminal cause, has the right to present an affidavit charging that fact and thereby obtain a trial before an unprejudiced judge. Art. 6, sec. 29, Mo. Constitution; Sec. 5198, R. S. 1909; Sec. 2594, R. S. 1899; Laws 1895, p. 162, 164; Sec. 4174, R. S. 1889; Sec. 1877, R. S. 1879; Laws 1877, p. 357; Yol. 2, chap. Ill, art. 5, sec. 15, Wag. Stat.; Chap. 212, sec. 15, G. S. 1865; Chap. 127, art. 5, sec. 16, R. S. 1855; Chap. 138, art. 5, sec. 16, R. S. 1845; Sec. 16, p. 486, R. S. 1835; Yol. 1, p. 276, sec. 23, R. S. 1825; Laws 1804 to 1824, p. 117, sec. 32 (Ty. Laws 1807); Laws 1804 to 1824, p. 617, sec. 5 (Ty. Laws 1818); Laws 1804 to 1824, p. 687, sec. 20 (Ty. Laws 1820); Sec. 3867, R. S. 1909; Sec. 1602, R. S. 1899-; Sec. 3247, R. S. 1889; Sec. 1041, R. S. 1879; Sec. 21, p. 539, G. S. 1865; Sec. 41, p. 539, R. S. 1855; Secs. 39 and 40, p. 335, R. S. 1845; Secs. 38 and 39, p. 159, R. S. 1835; Sec. 23, p. 276, vol. 1, R. S. 1825; Broom’s Legal Max., 125; Jim v. State, 3 Mo. 147; State ex rel. v. YGriford, 111 Mo. 526; State ex rel.'v. Wear, 129 Mo. 619; People v. Connor, 142 N. Y. 130; Coal Co. v. Doolittle, 54 W. Va. 227; Commonwealth v. Davidson, 91 Ky. 162. (a) Notwithstanding that at the common law and under the Constitution of this apd many other States the accused is entitled to a trial by an impartial jury of the vicinage, or county, yet, if an impartial jury cannot be obtained, the venue may be changed on the application of the State. Com. v. Davidson, 91 Ky. 162; Chitty’s Crim. Law & Prac. (Ed. 1847), p. 201; Rex v. Cowle, 2 Burr, 859-860; Rex. v. Harris, 3 Burr, 1333; State ex rel. v. Durfiinger, 73 Ohio St. 154; Hewitt v. State 43 Fla. 194; Barry v. Truax, 13 N. D. 131; People v. Baker, 3 Park Cr. (N. Y.) 181; 1 Bishop’s Crim. Proc., sec. 73, 113; State v. Gates, 20 Mo. 404. (b) Upon the filing of the affidavit charging prejudice against Judge Slate, he had no power to try the question of his own prejudice, and was wholly without jurisdiction to compel any further steps in the cause. Broom’s Leg. Max., p. 94; State v. Spivey, 191 Mo. 99-105; State v. O’Rourke, 55 Mo. 440; Sec. 5198, R. S. 1909; Sec. 19, p. 845, G. S. 1865; Sec. 1927, R. S. 1909; Sec. 1930, R. S. 1909; Guy v. Railroad, 197 Mo. 180; 2 Bailey on Habeas Corpus, p. 1393. (c) If the court was without jurisdiction, any order it made was void, and there could be no contempt for failure to obey the same. Railway Co. v. Wear, 135 Mo. 265. (5) The judgment and commitment in this cause, after striking therefrom the alleged statement of the petitioner Ewing that “if it is necessary for some one to go to jail in order that the State may obtain justice in this case, I will go,” is void upon its face, because it fails to set forth the facts constituting the alleged contempt. The statement of petitioner Ewing was not made until after the judgment and commitment was rendered, and constituted no part of the alleged contempt. See. 3884, R. S. 1909; Ex parte Creasy, 243 Mo. 702-8; Ex parte Stone, 183 S. W. (Mo.) 1058; People v. LaFetra, .171 App. Div. (N. Y.) 272. (6) A judgment for contempt cannot be upheld if it falsely recites the facts, or is imposed for some personal motive, or to gratify some personal resentment of the judge. If the judge refuses to permit the official stenographer to take down and record the proceedings, stating in effect, that it is only a matter between him and petitioners, the judgment should not be permitted to stand, and petitioners should be discharged. Ex parte Creasy, 243 Mo. 696; Ex parte O’Brien, 127 Mo. 489. A contempt of court is a public wrong, and not an injury to the person or functionary to whom it is offered. Van Orden v. Sauvinet, 24 La. Ann. 1191; Ex parte Hickey, 12 Miss. 783; Ex parte Nelson,- 251 Mo. 97.</p> | null | null | <p>1. CONTEMPT: Judgment: Statement of Facts: Collateral Attack. There being no appeal or writ of error from a judgment for direct or criminal contempt, the findings stated in the judgment may, upon writ of habeas corpus, be shown to be untrue.</p> <p>2. -: -: ■— -■: -: Jurisdiction: Sec. 2475. Notwithstanding the rule that the judgment of a court of general jurisdiction imports verity, and despite Sec. 2475, R. S. 1909, prohibiting an inquiry into the legality or justice of a judgment for contempt rendered by any such court, jurisdiction cannot be obtained by the mere assertion in the judgment of facts necessary to sustain it, and such assertion may, upon habeas corpus, be shown by evidence to be false.</p> <p>3. -: -: Mere Recital of Prior Adjudication and Execution. With the announcement of the punishment for contempt committed in the presence of the court the judgment becomes final except for its formal entry upon the record, which when so entered resembles an ordinary judgment only in form, since the court’s adjudication is a conviction, and its consequent commitment an execution.</p> <p>4. -: -: Forms Yield to Facts. The rights of the individual being paramount to all others, form, ceremony and blind adherence to precedent are not dominating influences in judicial action; the wise and wholesome administration of justice requires that the facts of a given case be fully known.</p> <p>5. -: Grounds: Extra-Statutory. The manifestations of contempt being as varied as human actions, the power of the court to punish for contempts is not limited by Section 3881, Revised Statutes 1909, defining a direct contempt to be any disorderly, contemptuous or insolent behavior committed during the session of the court in its immediate view and presence and directly tending to interrupt its proceedings or to impair the respect due to its authority, comprehensive as those terms are; but the power, being inherent, is, in the absence of constitutional inhibition, free from definitive action by the Legislature.</p> <p>6. -: Attorneys. The course pursued by counsel in the conduct of a case, if deferential, cannot constitute direct contempt.</p> <p>7. -: -: Filing Pleading or Motion. The respectful filing of a pleading or motion which may reasonably be termed pertinent and not in its terms offensive, is not contemptuous.</p> <p>8. -; -: -; Suggesting Disqualification of Judge. The repeated filing of motions suggesting the disqualification of- the judge, if done in a respectful manner, although deemed by him to be for vexation and delay, does not constitute contempt. •</p> <p>9. -: -: Judicial Tyranny. If the power of courts to limit counsel in the courteous presentation of what they may deem errors in a case be conceded, a condition of judicial tyranny will be rendered possible, which sooner or later will defeat the purposes for which courts were created, namely, the impartial adjudication of controversies.</p> <p>10. -: -: Application for Change of Venue: Prejudice of Judge: Refusal to Proceed With Trial. A filing of an application for a change of venue by special counsel for the State and the Assistant Attorney-General on the ground of the prejudice of the judge, and, upon its being overruled, a declining to proceed with the trial, though ordered so to do, and a stating in connection therewith, that the court is without jurisdiction, unaccompanied by any manifestation of disrespect, do not constitute direct contempt, whether or not the statute permits the State to disqualify ' the judge.</p> <p>11. -: Attorney-General: Refusal to Proceed With State Case. The duty of the Attorney-General and his representatives, acting under the direction of the Governor, is to assist the prosecuting attorney in the trial of a criminal case; and where the latter officer, without valid reason, has refused to participate in the prosecution, and the court therefore can direct him to conduct the trial to a conclusion, the conduct of the former officers, after their application for a change of venue has been denied, in declining to proceed with the trial, is not such an interruption of the proceedings of the court and the administration, of justice as amounts to contempt.</p> <p>12. -: -: Duty of Prosecuting Attorney. In the absence of any fact disqualifying the prosecuting attorney, his sworn duty requires him to participate in the trial of a criminal case, in which the Attorney-General or his representatives have been directed by the Governor to assist him. The statute (Sec. 1007, R. S. 1909) defining his duty is mandatory.</p> <p>13. -: Disqualifying Judge: Prejudice: Statute. The acts of the petitioners being contemptuous neither in themselves nor on account of the manner in which they were performed, it is not necessary to determine whether a motion on the part of the State in a criminal case which constituted a challenge of the judge’s qualification was authorized under that subdivision of Section 5198, Revised Statutes 1909, which provides that a judge shall be incompetent to hear and try a case wthen in anywise interested or prejudiced.</p> <p>14. -; Disqualification of Judge: Suggested by State’s Attorney: Voluntary Retirement. A condition of the public mind may exist in a locality which would impel a public prosecutor, in an honest effort to discharge his duty, to call the regular judge’s attention to circumstances indicating that he had, without corrupt intent, prejudged the case; and as this would involve no question of personal integrity, upon the suggestion of prejudice under Section 5198, Revised Statutes 1909, the judge, prompted by that sense of delicacy and duty which renders him averse to judicial action upon an intimation of his interest in the matter at issue, will retire and call in another to try the case, and that course is authorized by Section 5201.</p> | null | null | null | Petitioners discharged. | null | 65,157,630 | null | 0 | mo | S | t | Supreme Court of Missouri | Supreme Court of Missouri |
8,142,320 | *665Dismissed with costs. No further opinion will be delivered. Mr. A. A. Godard and Mr. F. B. Dawes for appellees. | opinion_xml_harvard | 20 | 2022-09-09 20:14:45.078858+00 | 020lead | t | f | 8,180,401 | null | null | U | f | Published | 0 | Merrimack River Savings Bank v. City of Clay Center | null | The Merrimack River Savings Bank v. The City of Clay Center, Kansas | <p>Appeal from the Circuit Court of the United States for the District of Kansas.</p> | null | null | null | null | null | null | null | null | 65,277,987 | No. 604 | 0 | scotus | F | t | Supreme Court | Supreme Court of the United States |
386,513 | 639 F.2d 776 U. S. v. Moscato 80-1358 UNITED STATES COURT OF APPEALS Third Circuit 10/8/80 1 D.N.J. AFFIRMED | opinion_html_with_citations | 19 | 2011-08-23 09:16:24+00 | 010combined | f | f | 386,513 | null | null | R | f | Published | 0 | United States v. Moscato | Moscato | null | null | null | null | null | null | null | null | null | null | 2,084,733 | 80-1358 | 0 | ca3 | F | t | Third Circuit | Court of Appeals for the Third Circuit |
8,534,097 | Mr. Chief Justice Del Toro delivered the opinion of the Court. This is a writ of review filed by the Manager of the State Insurance Fund against an order of the Industrial Commission rendered on an appeal taken by the minor beneficiary, Santos Jiménez, in the case concerning the death of the workman Isidro Jiménez. The case was adjudged to be compensable by an order of the Commission, affirmed by judgment of this Court rendered on July 18, 1940, 57 P.R.R.. The case was returned to the Manager, who on August 7, 1940, held said minor to be a beneficiary and set the compensation at $1,975, payable in monthly installments of $40, retroactive to the date of the death of the workman which took place on March 25, 1939, and held that said payment should be made until December 17, 1940, when the minor would reach the age of eighteen years. On the following 6th of September, the beneficiary through his attorney, appealed to the Commission stating that he agreed that the monthly payments should cease on the date stated by the Manager but not that the latter should retain the balance of the compensation. The Commission decided this pleading as follows: “The case deals with the minor Santos Jiménez, beneficiary of Isidro Jimenez, his father, a workman who died in an accident in the course of his employment and who will reach the age of eighteen years on or about next December. The compensation awarded for the death of his father amounts to $1975, which is being paid to said beneficiary by the Manager of the State Insurance Fund in monthly installments of '$40. It appears that this beneficiary requested the Manager of the State Insurance Fund, basing Ms request on the provisions of the fourth paragraph of part 5 of Section 3 of the Workmen’s Compensation Act in force, that he be paid the complete amount of the compensation at once in order to make an investment which would be to his benefit. The Manager opposed this request and insisted on the partial payments. It is obvious that if these are continued as at present, when the beneficiaiy reaches the age of eighteen years next December, the State Insurance Fund *421will be benefited by the rest of the compensation which will not have been as yet paid to him. The workman (sic), through his Attorney, Mr. Y. Brunet, appealed from this order to the Industrial Commission by petition dated last September 6th. “The part of. the law to which we have just referred reads as follows: “ ‘Section 3. — . . . ... “ ‘The compensation awarded to beneficiaries entitled to receive it shall be paid in monthly installments; and in cases where the Manager so decides, the compensation shall be paid in full in one sole payment, subject to the approval of the Industrial Commission by the unanimous vote of its members, provided it is proved from the facts investigated by the Manager or the Industrial Commission that there is no danger in making such payment and that the disbursement will be advantageous to the beneficiaries and to the purposes pursued by this Act. In such cases the Manager and the Industrial Commission shall state in their resolutions the result of the facts investigated and their reasons for granting full payment at one sole time. íí ¡ > “Did the legislator mean to say that the Manager of the State Insurance Fund is the absolute authority to decide the manner in which the payment of a compensation is to be made to the beneficiaries of a workman who died in an accident during the course of his employment, or must his decision be made by keeping in mind that there be no danger in making the payment at once and that the investment made with the amount of the compensation paid in whole be of benefit to the beneficiary? We doubt that it was the intention of the legislator to give the Manager of the Fund such an absolute power .... “At all events, this question has not been decided until now . . . and we consider it necessary to hear the Manager of the State Fund and the beneficiary before deciding it definitely. In consequence, we order a public and oral hearing to be held which ... is set. . .” The hearing was held as ordered. The Manager as well as the beneficiary had an opportunity of stating their reasons and they did so at length. The Commission ratified its opinion and held: “Therefore, our conclusion is that, according to the provisions of law above copied, if the beneficiary should make a proposal for the *422investment of his compensation as a wliole to the Manager of the State Insurance Fund or to the Industrial Commission and from the investigation which is made by either of these two entities, it should be proven that there is no danger in making the payment in this manner and that the investment will be profitable to the beneficiary in accordance with the provisions of this Act, the Manager of the State Fund is bound to pay the total amount of the compensation and the Industrial Commission to unanimously approve it. . . “In the present case, the beneficiary, Santos Jiménez, proposed in time to the Manager of the State Fund to invest the rest of the compensation which was as yet not paid in the purchase of a house. This investment prima facie appeared to be beneficial to Jiménez and in accordance with the provisions of the Act. The State Fund or the Industrial Commission should have investigated this investment and if it had considered that it was beneficial for the petitioner, the Manager of the State Insurance Fund, with the unanimous approval of the Industrial Commission, should have acceded to the petition of the beneficiary. And it does not matter that this proposition of the beneficiary was made two months or one month before arriving at the age of eighteen years,.since his right to propose such investment was in force until the day on which said right ceased; and therefore, he could claim it until the last moment, that is, until he reached the age of eighteen years, as provided for by the Act. “For the foregoing reasons we hold that the Manager of the State Insurance Fund is bound to pay the total compensation which corresponds to the beneficiary, Santos Jiménez, to be invested by him in the purchase of the house which he says, if from the investigation which the Manager of the State Insurance Fund or the Industrial Commission makes of the facts, it is proven that there is no danger whatsoever in making this payment and that the proposed investment will be profitable to the beneficiary Santos Jiménez, and in keeping with the purposes of the Act.” The Manager requested a reconsideration and it ivas denied. He then appealed to this Court alleging that the Commission committed three errors in hearing an appeal not authorized by the Act, in invading the discretional authority of the Manager, and in contravening the provisions of Section 3, part 5, paragraph 5 of Act No. 45 of 1935 ((1) page 250). *423In arguing the assignments of error in Ms brief, the .Manager does not follow the order established by himself, but he uses pages and pages to discuss the question of whether the right to compensation is or is not a vested right. He cites a good number of decisions which are not really applicable to the exact solution of the problem herein involved. We will limit our study to the just limits of the ease. Let us see whether the Commission had authority to hear and decide the appeal brought before it. The statute to be interpreted was copied in the first decision of the Commission and is Section 3, Part 5, Par. 4 of Act No. 45 of 1935, page 266. There is no doubt that according to this statute it is the Manager who should act in the first instance, but there is no doubt either that according to it and to the system created by the Act in general, the Commission may and should intervene in the matter when there is a discrepancy between the workman or his beneficiaries and the Manager. Rules exist also by virtue of which the workman or his beneficiaries are given a period of thirty days to appeal to the Commission from any decision of the Manager. The fact is that witMn the system, both entities — the Fund and the Commission — are interrelated and complement each other to insure the due administration of the Act for the benefit of all persons and of all the interested parties involved. Among other cases see Montaner v. Industrial Commission, 52 P.R.R. 891 and Montaner, Mgr., v. Industrial Commission, 53 P.R.R. 174. In this case the Manager acted first by refusing to deliver to the beneficiary the balance of the compensation fixed by himself and the beneficiary appealed to the Commission. The general rule established by the Act and its Regulations was therefore followed. There was no error. Did the Commission invade the discretional authority of the Manager? In our opinion it did not. It acted in the exercise of its own authority. *424As we know, on August 7, 1940, the Manager set the compensation at $1,975 and he also held that the minor beneficiary should be paid $40 a month with retroactive effect to the date of the death of the workman which occurred on March 25, 1939, and that said installments should be discontinued on December 17, 1940, on which date the minor beneficiary would reach the age of eighteen years. A simple arithmetical operation shows that $40 a month paid from March, 1939, until December, 1940, do not cover the amount of $1,975. We agree that the best policy to be followed-in most of these cases is the division of the compensation in partial monthly payments and that $40 a month was an amount correctly decided upon. But we cannot agree that the rest should disappear for the beneficiary. This is not an ordinary case. It is usual that there are various beneficiaries and then the compensation to be distributed is hardly sufficient to satisfy their more peremptory necessities, but due to the fact that only one beneficiary exists, he should not be deprived of the payment of the compensation which according to the facts and the law belongs to him and which was so adjudicated. The Fund substitutes, in so far as possible, what the minor would have received from the workman if the latter had continued to live and work. This protection, when the protected is only one, would have also been much greater than if there had been several and it does not seem reasonable that because there was only one dependent on the workman the latter should lessen the help, calculating it on the basis of what would have corresponded to him if he had three, five or eight persons to support. Let us allow the minor who is_in this wise fortunate in the midst of his misfortune, in this case to receive the corresponding benefit complete. This was what the Commission decided after weighing the facts and the law. *425Besides, the Commission limited its decision to the basic fact of the payment of the rest of the compensation, allowing the Manager to act in first instance in the investigation of the proper investment of the same. In regard to the argument that the beneficiary accepted the decision of the Manager of August 7, 1940, in its entirety and that he is therefore estopped from attacking it, it is sufficient to say that we have read the pleading involved and that it does not have in our opinion the scope which it is alleged to have. The beneficiary, through his attorney, communicated to the Manager that he agreed with his decision “only in regard to the amount of the compensation and in regard to the amount of the monthly payments,” and this does not mean that he waived his right. His petition, following immediately thereafter, that the rest be invested in the purchase of a small house, is congruent with the acceptance. We do not believe either that the third and last error was committed. In our opinion the decision of the Commission does not contravene the legal provisions contained in the 5th Par., Part 5 of Section 3 of the statute, to wit: “Upon the remarriage of the widow or widower, the part payments awarded for his or her benefit shall cease. They shall, likewise cease on the death of any other beneficiary to whom such part payments are being made, and in the case of minors, such payments shall also cease when such minors reach the age of eighteen (18) years, unless they are disabled for work.” As we have stated before, this case involves a small compensation but it was relatively large in regard to its distribution because there was only one beneficiary. To pay it, the best method was adopted, that is, monthly payments, but acting with prudence those payments were not made too large and the total amount of the same until the time when the law orders that said payments cease, did not use up all the compensation. Before this time a request was made *426that the rest should he invested according to the law. The Manager refused to do so. An appeal was taken to the Commission who believed that the petition should be acceded to. In doing this, it did not contravene the Act. It interpreted it in its true sense, insuring that the minor, through an adequate proceeding to be carried out by the Manager, could have all the benefit that the law and the facts granted to him. The appeal should be dismissed and the record returned in order that the Manager carry out the order of the Commission. | opinion_xml_harvard | 2,337 | 2022-11-23 11:04:32.583093+00 | 020lead | t | f | 8,561,059 | Toro | null | U | f | Published | 0 | Montaner v. Industrial Commission | Montaner | Ramón Montaner, Manager of the State Insurance Fund v. Industrial Commission of Puerto Rico, Etc., and Santos Jiménez, a minor represented by his mother with patria potestas, Andrea Gautier Félix, before the Commission | null | null | null | null | null | null | null | null | null | 65,823,514 | No. 220 | 0 | prsupreme | TS | f | Supreme Court of Puerto Rico | Supreme Court of Puerto Rico |
2,851,006 | [J-6-2015] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ. RONALD GREEN AS THE EXECUTOR : No. 36 EAP 2014 OF THE ESTATE OF JOSEPH FUSCO, : : Appeal from the Judgment of the Superior Appellant : Court entered on January 30, 2014 at No. : 2858 EDA 2012, affirming the Order of the : Court of Common Pleas of Philadelphia v. : County, Civil Division, entered on August : 21, 2012 at No. 4093 June Term, 2009 : PENNSYLVANIA HOSPITAL AND : ARGUED: March 10, 2015 CONTRIBUTORS TO PENNSYLVANIA : HOSPITAL AND STELLA BARBER, RN : AND SYLVIA AQUINO, RN AND LORI : YAKISH, RN AND KELLY A. CARR, RRT : AND JAMES KEARNEY, MD AND : STEVEN A. GLASSER, MD AND JOHN : D. SPRANDIO, JR., MD AND BORA LIM, : MD AND EUGENE M. LUGANO, MD : AND ANTHONY GIORGIO : : Appellees : OPINION MADAME JUSTICE TODD DECIDED: September 3, 2015 In this negligence action, Ronald Green, Executor of the Estate of Joseph Fusco (hereinafter “Appellant”), appeals the order of the Superior Court affirming the trial court’s grant of a nonsuit in favor of Appellees Pennsylvania Hospital (the “Hospital”), Contributors to Pennsylvania Hospital, Stella Barber, R.N., Sylvia Aquino, R.N., Lori Yakish (formerly Lori Rhoades), R.N., Kelly A. Carr, R.R.T., James Kearney, M.D., Steven A. Glasser, M.D., John D. Sprandio, Jr., M.D., Bora Lim, M.D., Eugene M. Lugano, M.D., and Anthony Giorgio. For the reasons that follow, we reverse and remand for further proceedings. I. Factual and Procedural Background On December 30, 2008, Joseph Fusco (hereinafter “Decedent”) arrived at the emergency department of the Hospital, complaining of shortness of breath, rapid breathing, and wheezing. He was admitted to the Intensive Care Unit (“ICU”) and given medication, which failed to alleviate his symptoms. As a result, Decedent, who suffered from a number of pre-existing conditions, including chronic obstructive pulmonary disease, was intubated and placed on a ventilator in order to assist with his breathing. Decedent remained on a ventilator in critical condition for ten days. On January 9, 2009, in an attempt to wean Decedent from the ventilator, a physician at the Hospital performed a tracheotomy, a surgical procedure in which an opening is made through the neck into the trachea,1 and a tube is inserted through the opening in order to provide an airway. Because Decedent was going to be placed back on a ventilator after the tracheotomy, a tracheotomy cuff, which is an inflatable device that secures the tracheotomy tube to the sides of a patient’s trachea, was placed around the tube and inflated. On January 10, 2009, Decedent was seen by his pulmonary physician, Dr. Eugene Lugano, who documented a plan to wean Decedent off the ventilator and use a “trach collar,” which would allow Decedent to receive oxygen through an aerosol mask instead of a mechanical ventilator. The plan was implemented that day at approximately 12:30 p.m., at which time the tracheotomy cuff was deflated. At approximately 4:30 p.m. that afternoon, Nurse Lori Yakish noticed a moderate to large 1 The trachea is also referred to as the windpipe. [J-6-2015] - 2 amount of blood coming from the site of Decedent’s tracheotomy2 and reported this to the attending physician, Dr. John Sprandio. Dr. Sprandio advised Nurse Yakish to monitor the situation. Approximately one-half hour later, Nurse Yakish rolled Decedent over so she could clean his back, at which time a large amount of fresh blood began to squirt from the tracheotomy site. A team of medical personnel, including anesthesiologist Dr. Stephen Glasser, immediately responded to Decedent’s room, and determined that Decedent’s tracheotomy tube had become blocked, depriving Decedent of an airway. Dr. Glasser testified that, when he arrived, other medical professionals were attending to Decedent’s tracheotomy site, and Decedent appeared stable. At approximately 5:00 p.m., Dr. Nora Malaisrie, an ear, nose, and throat (“ENT”) physician, arrived in Decedent’s room. At this time, Dr. Glasser received another page, requiring him to leave the room, but he asked two of the nurse anesthesiologists to remain. Dr. Malaisrie attempted to ascertain the location of Decedent’s blockage using a bronchoscope. She observed clotted blood near the bottom of the tracheotomy tube, and attempted to clear it using a saline lavage. Unable to clear the blockage, Dr. Malaisrie inserted a tube into Decedent’s mouth and used an “ambu bag” to try and force air through the tube into Decedent’s lungs. When those measures failed to remedy Decedent’s inability to breathe, Dr. Malaisrie removed the tube from Decedent’s mouth and attempted to reinsert another tube through the existing site in Decedent’s neck; however, the tube went into Decedent’s thorax, rather than into his trachea, as intended. As a result, when medical personnel began to force air through the improperly-placed tube, the air accumulated outside of Decedent’s lungs, causing his lungs and trachea to collapse. At this point, Dr. Glasser returned to Decedent’s room, 2 A small amount of blood around the site of the incision post-surgery is normal. [J-6-2015] - 3 and determined that Decedent was not getting air into his lungs. Dr. Glasser instructed that the improperly-placed tube be removed, and that Decedent again be intubated through his mouth. Once properly intubated, Decedent began to receive air into his lungs; however, by this time, Decedent had suffered cardiac arrest, and he was pronounced dead at 6:36 p.m. Appellant, as executor of Decedent’s estate, commenced a negligence action against the Hospital and several individual defendants, including Nurse Yakish, in June 2009. Appellant alleged that Nurse Yakish was negligent and deviated from the appropriate standard of care by failing to properly care for and treat Decedent following his tracheotomy procedure; by moving Decedent too soon after his tracheotomy procedure; and by failing to properly monitor, observe, and oversee Decedent following his tracheotomy procedure. See Fourth Amended Complaint, at Count IV. Appellant further alleged that the Hospital was vicariously liable, inter alia, for the negligence of Dr. Malaisrie.3 Id. at Count XIII. Relevant to the instant appeal, the Hospital filed a motion in limine challenging, inter alia, the testimony of Appellant’s expert, Nurse William K. Pierce, to the extent Nurse Pierce intended to offer any opinion that Nurse Yakish’s negligent acts caused Decedent’s pain, suffering, or ultimate death.4 The trial court prohibited Nurse Pierce from offering an opinion as to whether Nurse Yakish’s actions were the cause of 3 In his brief, Appellant asserts that medical experts did not identify Dr. Malaisrie’s negligence as the cause of Decedent’s injuries until after the statute of limitations on medical claims against Dr. Malaisrie had expired, which is the reason Dr. Malaisrie was not named individually as a defendant. Appellant’s Brief at 8. 4 As Decedent did not have any next of kin, but was in a same-sex relationship for which Pennsylvania, at the time, did not afford legal status, the damages claim was limited to recovery for the pain and suffering Decedent experienced during the 2 to 3 hour period preceding his death. For purposes of this opinion, we will use the term “injuries” to describe Decedent’s pain and suffering. [J-6-2015] - 4 Decedent’s injuries, but did allow Nurse Pierce to offer an opinion as to whether certain actions of Nurse Yakish were negligent. At the close of Appellant’s case, the Hospital moved for a nonsuit as to all defendants, with the exception of Nurse Yakish. The following day, the trial judge granted a nonsuit as to all defendants, including Nurse Yakish. With regard to Dr. Malaisrie, the trial court acknowledged that Appellant presented expert testimony that Dr. Malaisrie had deviated from the standard of care, but concluded Appellant failed to establish that Dr. Malaisrie was an ostensible agent of the Hospital, as required under the Medical Care Availability and Reduction of Error Act, 40 P.S. §§ 1303.101-1303.910 (“MCARE Act”). Specifically, the trial court determined that Appellant failed to offer any evidence that a reasonably prudent person in Decedent’s position would have been justified in the belief that the care in question was rendered by the Hospital or its agents. Id. § 1303.516(a)(1). The trial court highlighted that Appellant did not present any witnesses to testify regarding “how the agency structure of the hospital was set up regarding ENT physicians . . . in the Hospital’s facilities,” nor did Appellant present the testimony of Appellant’s brother “as to how Dr. Malaisrie presented herself as to agency, or whether a reasonable patient would believe she was an agent of the hospital.” Trial Court Opinion, 4/15/13, at 3-4. With regard to Nurse Yakish, the trial court opined that Appellant “failed to demonstrate that any action taken by or attributable to Nurse Yakish was the cause of Decedent’s death.” Id. at 5. Appellant’s subsequent motion to remove the nonsuit and his request for other post-trial relief were denied. On appeal to the Superior Court, Appellant argued that the trial court erred in removing the question of the ostensible agency of Dr. Malaisrie from the jury, and, additionally, erred in precluding Nurse Pierce from offering an opinion as [J-6-2015] - 5 to whether Nurse Yakish’s negligence was a medical cause of Decedent’s death. A split three-judge panel of the Superior Court affirmed the trial court’s order. Judge Platt, writing the lead opinion, agreed with the trial court’s conclusion that Appellant failed to present any evidence which would suggest that a “reasonably prudent person in Decedent’s position would have been justified in believing that Dr. Malaisrie’s care was being rendered by the hospital or its agents.” Green v. Pennsylvania Hosp., 2858 EDA 2012, unpublished memorandum at 7 (Pa. Super. filed Jan. 30, 2014). Specifically, Judge Platt concluded that Appellant failed to offer any evidence “as to the extent of Dr. Malaisrie’s duties or responsibilities at Pennsylvania Hospital, let alone the manner in which she presented herself to Decedent while treating him.” Id. at 8-9. Acknowledging Appellant’s argument that Decedent sought care from the Hospital, rather than from a specific physician, Judge Platt noted that Appellant “fails to acknowledge that, throughout the litigation, the Hospital denied that Dr. Malaisrie was its agent, nor did Appellant present evidence to establish the extent of Dr. Malaisrie’s relationship with Pennsylvania Hospital.” Id. at 9. Judge Platt further rejected Appellant’s contention that the trial court erred in precluding Nurse Pierce from testifying that Nurse Yakish’s actions were a cause of Decedent’s injuries, noting that the case on which Appellant relied in support of his argument, Freed v. Geisinger Med. Ctr., 971 A.2d 1202 (Pa. 2009), gives a trial court discretion to allow a nurse to testify as an expert on matters other than the standard of care if the court determines that the expert is otherwise competent to do so, but does not require it do to so. Judge Platt further observed that the trial court specifically found that Nurse Pierce could not testify “outside the area of his expertise,” a determination Appellant failed to acknowledge. Green, 2858 EDA 2012, at 15. President Judge Gantman concurred in the result. [J-6-2015] - 6 Judge Shogan also concurred in the result with respect to the proffered testimony of Nurse Pierce. However, regarding the ostensible agency issue, Judge Shogan dissented, concluding that the facts, when viewed in the light most favorable to Appellant, indicated that Dr. Malaisrie was involved in Decedent’s care as part of the emergency team that responded to the Hospital’s page when blood began to discharge from Decedent’s tracheotomy site, and that, because Dr. Malaisrie attended Decedent at the request of the Hospital, not Decedent himself, the question of whether a prudent person in Decedent’s position would have been justified in the belief that the care he received was rendered by the Hospital or its agents should have been decided by the jury. Appellant filed a petition for allowance of appeal with this Court, and we granted review to consider: (1) whether the question of the Hospital’s liability for the negligence of its treating physician, Dr. Malaisrie, under a theory of ostensible agency should have been presented to the jury; and (2) whether this Court’s decision in Freed, supra , allows a nurse to provide expert testimony as to causation on a claim against another nurse, in an action where the plaintiff raised additional claims against doctors based on their alleged acts of negligence. II. Analysis A. Vicarious Liability for a Physician’s Negligence In order to state a cause of action for negligence, a plaintiff must allege facts which prove the breach of a legally recognized duty or obligation of the defendant that is causally related to actual damages suffered by the plaintiff. Scampone v. Highland Park Care Ctr., LLC., 57 A.3d 582 , 596 (Pa. 2012). To prove the elements of a duty and the breach thereof, a plaintiff must show that the defendant’s act or omission fell below the standard of care, and, therefore, increased the risk of harm to the plaintiff. Id. The [J-6-2015] - 7 plaintiff then must demonstrate “the causal connection between the breach of a duty of care and the harm alleged: that the increased risk was a substantial factor in bringing about the resultant harm.” Id. A plaintiff may pursue a negligence action against a defendant on the theory of direct liability or vicarious liability. Under a direct liability theory, a plaintiff “seeks to hold the defendant responsible for harm the defendant caused by the breach of a duty owing directly to the plaintiff.” Id. at 597. Vicarious liability, on the other hand, is a policy-based allocation of risk. Crowell v. City of Philadelphia, 531 Pa. 400 , 613 A.2d 1178 , 1181 (1992). “Vicarious liability, sometimes referred to as imputed negligence, means in its simplest form that, by reason of some relation existing between A and B, the negligence of A is to be charged against B although B has played no part in it, has done nothing whatever to aid or encourage it, or indeed has done all that he possibly can to prevent it.” Id. (quoting Prosser and Keeton on Torts § 69, at 499 (5th Ed. 1984)). Once the requisite relationship (i.e., employment, agency) is demonstrated, “the innocent victim has recourse against the principal,” even if “the ultimately responsible agent is unavailable or lacks the ability to pay.” Mamalis v. Atlas Van Lines, Inc., 522 Pa. 214 , 560 A.2d 1380 , 1383 (1989); accord Crowell, 613 A.2d at 1182 (vicarious liability is policy response to “specific need” of how to fully compensate victim). Id. At one time, hospitals enjoyed absolute immunity from tort liability. The basis of that immunity was the perception that hospitals functioned as charitable organizations. Thompson v. Nason Hosp., 591 A.2d 703 , 706 (Pa. 1991). As we recognized in Thompson, however, “hospitals have evolved into highly sophisticated corporations operating primarily on a fee-for-service basis. The corporate hospital of today has assumed the role of a comprehensive health center with responsibility for arranging and coordinating the total health care of its patients.” Id. (footnote omitted). [J-6-2015] - 8 Thus, in 1965, this Court abolished the doctrine of charitable immunity for hospitals in Flagiello v. Pennsylvania Hosp., 208 A.2d 193 (Pa. 1965). Thereafter, [t]he concept of hospital liability in Pennsylvania further evolved in Tonsic v. Wagner, [ 329 A.2d 497 (Pa. 1974),] when we held that the hospital was not as a matter of law immunized from any liability for negligence of its personnel during an operation, thereby recognizing respondeat superior as a basis for hospital liability. Subsequently, Superior Court in Capan v. Divine Providence Hospital, [ 430 A.2d 647 (Pa. Super. 1980),] adopted the theory of ostensible agency, when it held that the trial court erred in failing to instruct the jury that it could find the hospital vicariously liable for negligence of a physician, despite the fact the physician was an independent contractor. See also Simmons v. St. Clair [Memorial] Hospital, [ 481 A.2d 870 (Pa. Super. 1984)]. Thompson, 591 A.2d at 707 . We also went on to recognize that a hospital could be held liable under the doctrine of corporate negligence, if the hospital fails to uphold the proper standard of care owed to a patient. Id. at 707. The ostensible agency theory adopted in Capan, supra , is based on Section 429 of the Restatement (Second) of Torts, which provides: One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants. Restatement (Second) of Torts § 429. Under the theory of ostensible agency, a hospital could be held liable for the negligence of an independent contractor physician where (1) the patient looked to the institution, rather than the individual physician, for care, or (2) the hospital “held out” the physician as its employee. Capan, 430 A.2d at 650 ; Simmons, 481 A.2d at 875 . [J-6-2015] - 9 In 2002, the Pennsylvania legislature enacted the MCARE Act, codifying the vicarious liability of hospitals under the doctrine of ostensible agency: (a) Vicarious liability.−A hospital may be held vicariously liable for the acts of another health care provider through principles of ostensible agency only if the evidence shows that: (1) a reasonably prudent person in the patient’s position would be justified in the belief that the care in question was being rendered by the hospital or its agents; or (2) the care in question was advertised or otherwise represented to the patient as care being rendered by the hospital or its agents. (b) Staff privileges.−Evidence that a physician holds staff privileges at a hospital shall be insufficient to establish vicarious liability through principles of ostensible agency unless the claimant meets the requirements of subsection (a)(1) or (2). 40 P.S. § 1303.516. As noted above, in the instant case, the trial court granted a compulsory nonsuit based on its finding that Appellant failed to establish that Dr. Malaisrie was the ostensible agent of the Hospital because he did not demonstrate under Section 1303.516(a)(1) that a reasonably prudent person in Decedent’s position would have been justified in the belief that the care in question was rendered by the Hospital or its agents.5 A trial court may enter a compulsory nonsuit on any and all causes of action: if, at the close of the plaintiff’s case against all defendants on liability, the court finds that the plaintiff has failed to establish a right to relief. Absent such finding, the trial court shall deny the application for a nonsuit. On appeal, entry of a 5 The parties do not dispute that subsection (a)(1) of Section 1303.516 is the only subsection at issue in the case. [J-6-2015] - 10 compulsory nonsuit is affirmed only if no liability exists based on the relevant facts and circumstances, with appellant receiving “the benefit of every reasonable inference and resolving all evidentiary conflicts in [appellant’s] favor.” The compulsory nonsuit is otherwise properly removed and the matter remanded for a new trial. Scampone, 57 A.3d at 595-96 (citing, inter alia, Pa.R.C.P. No. 230.1). On appeal, Appellant maintains that the question of what a reasonably prudent person in Decedent’s position would have been justified in believing is best determined by a jury. Further, relying on Capan and Simmons, wherein the Superior Court determined that the evidence presented was sufficient to raise a jury question as to whether the doctors were ostensible agents of the respective hospitals, Appellant offers the following facts as evidence which would support a jury finding that a reasonably prudent person in Decedent’s position would have been justified in believing that Dr. Malaisrie’s care was being rendered by the hospital or its agents: (1) Dr. Malaisrie first became involved in treating Decedent as part of an emergency response team at the hospital; (2) Dr. Malaisrie had no prior doctor/patient relationship with Decedent; and (3) Dr. Malaisrie rendered emergency treatment to Decedent at the request of the hospital, and not at the request of Decedent or Decedent’s family. Appellant’s Brief at 18-19. The Hospital responds that the “facts” now offered by Appellant are “new” in that they were not established at trial, Appellees’ Brief at 17-18, and, to the extent Appellant relies on statements made during Appellant’s counsel’s opening statement, the Hospital avers that statements by counsel are not evidence. According to the Hospital, the totality of evidence established at trial relevant to the issue of whether Dr. Malaisrie was an ostensible agent of the Hospital was: (1) after Nurse Yakish observed increased bleeding from Decedent’s tracheotomy site, “she paged anesthesia”; (2) “ENT was also contacted”; (3) Dr. Glasser, the anesthesiologist, arrived first; (4) Dr. Malaisrie, the ENT physician, arrived approximately ten minutes after Dr. Glasser; and (5) Dr. Glasser [J-6-2015] - 11 testified at trial that he was an independent contractor, not an agent of the hospital. Id. at 19-20. Additionally, the Hospital asserts: “The patient had been ‘awake and cooperative’, and remained awake when Dr. Glasser arrived, and when Dr. Malaisrie arrived. The patient was ‘stable’ and continued to be conscious until ‘sometime in the middle’ of the subsequent procedure.” Id. at 20 (record citations omitted). Based on this summary of the evidence, the Hospital contends that Appellant failed to offer any evidence upon which a jury could conclude that a reasonably prudent person in Decedent’s position would be justified in the belief that Dr. Malaisrie rendered care as the Hospital’s agent. The Hospital further maintains that the cases upon which Appellant relies, including Capan and Simmons, do not support Appellant’s position because they are factually distinguishable and predate the enactment of the MCARE Act. The Hospital contends: Permitting a jury to impose liability on this record would effectively nullify the legislature’s enactment of section 516 (and would violate the public policy concerns underlying it) because any hospital could potentially be subject to “ostensible agent” liability for any provider, based on no evidence other than the barest fact of emergency treatment by a doctor authorized to practice in the hospital - exactly what section 516(b) prohibits. The ostensible agency “exception” would become the rule, and section 516(a)(1) would be rendered meaningless. Appellees’ Brief at 28-29.6 6 The Pennsylvania Medical Society and the Pennsylvania Defense Institute filed a joint amicus brief, and the Hospital & Healthsystem Association of Pennsylvania filed a separate amicus brief, in support of the Hospital. The Pennsylvania Association for Justice filed an amicus brief in support of Appellant. [J-6-2015] - 12 Initially, we cannot agree with the Hospital’s argument that allowing a jury to determine whether Decedent was justified in believing that Dr. Malaisrie was acting as an agent of the Hospital when she treated Decedent will undermine and/or obviate Section 516 of the MCARE Act by subjecting a hospital to ostensible agent liability “based on no evidence other than the barest fact of emergency treatment by a doctor authorized to practice in the hospital.” Appellees’ Brief at 29. As noted above, Section 1303.516(b) provides that evidence that a physician holds staff privileges at a hospital “shall be insufficient to establish vicarious liability through principles of ostensible agency unless the claimant meets the requirements of subsection (a)(1) or (2).” 40 P.S. § 1303.516(b) (emphasis added). In order for a hospital to be held vicariously liable under Section 1303.516(a)(1), a plaintiff must establish that “a reasonably prudent person in the patient’s position would be justified in the belief that the care in question was being rendered by the hospital or its agents.” 40 P.S. § 1303.516(a)(1). We fail to see how allowing a jury to determine whether Appellant has demonstrated that a reasonably prudent person in Decedent’s position would be justified in the belief that the care in question was being rendered by the hospital − a basis for liability specifically contemplated by the MCARE Act itself − undermines or obviates the Act, as the Hospital suggests. Turning to the underlying question of whether a reasonably prudent person in Decedent’s position would be justified in the belief that the care in question was being rendered by the Hospital or its agents pursuant to 40 P.S. § 1303.516(a)(1), as noted above, Appellant cites the Superior Court’s decisions in Capan and Simmons. In Capan, the decedent was admitted to the hospital via the emergency room for treatment of a severe nosebleed. While in the hospital, the decedent developed delirium tremens and became violent. The nursing staff summoned the doctor who was on-call to answer [J-6-2015] - 13 emergencies, and the on-call doctor administered a series of drugs to the decedent in an effort to calm him. After the on-call doctor left the hospital that evening, the decedent suffered cardiac arrest and died. The decedent’s estate filed a wrongful death and survival action against the hospital and several physicians, and the trial court, inter alia, granted a nonsuit as to the survival action in favor of the hospital. On appeal, the Superior Court held that the trial court erred in failing to instruct the jury that it could find the hospital vicariously liable for the negligence of the on-call doctor based on ostensible agency, despite the fact that the on-call doctor was an independent contractor. The Superior Court reasoned: The conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer reflects the fact. Present-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and interns, as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Thus, a patient today frequently enters the hospital seeking a wide range of hospital services rather than personal treatment by a particular physician. It would be absurd to require such a patient to be familiar with the law of respondeat superior and so to inquire of each person who treated him whether he is an employee of the hospital or an independent contractor. Similarly, it would be unfair to allow the “secret limitations” on liability contained in a doctor’s contract with the hospital to bind the unknowing patient. 430 A.2d at 649 (citations omitted). The Superior Court concluded that, as the decedent had entered the hospital through the emergency room and the on-call doctor had treated the decedent in his capacity as house physician, not as the decedent’s [J-6-2015] - 14 personal physician, “the jury could have concluded that [the decedent] relied upon the hospital rather than the [on-call doctor] himself for treatment. Additionally, the jury could have found that [the hospital] held out [the on-call doctor] as its employee by providing his services for dealing with emergencies within the hospital.” Id. at 650. In Simmons, the decedent was admitted to the hospital after he was taken to the emergency room following a suicide attempt. Hospital personnel contacted Dr. Alan Wright, the on-call psychiatrist, and Dr. Wright arranged for the decedent’s admission to the psychiatric unit. The decedent remained in the hospital for approximately 18 days, during which time he was treated by Dr. Wright. The decedent was readmitted to the hospital by Dr. Wright after another suicide attempt approximately five months later and placed in the “general observation” level of the psychiatric unit, where patients are observed every 30 minutes. Several days after he was admitted, the decedent used ties from hospital robes to hang himself from the plumbing fixtures in the bathroom adjoining his assigned room. The decedent’s father filed suit against the hospital, and at trial attempted to introduce evidence to prove that Dr. Wright was an actual or ostensible agent of the hospital. The trial court instructed the jury that Dr. Wright was not an employee, agent, or servant of the hospital and that the hospital was not responsible for his actions. The jury returned a verdict in favor of the hospital. Following argument on post-trial motions, an en banc panel of the trial court granted a new trial, determining, inter alia, that the trial court erred in withdrawing the question of Dr. Wright’s agency from the jury. The hospital appealed. The Superior Court affirmed, concluding “there was evidence of record from which the jury may have determined that Dr. Wright was either an actual or ostensible agent” of the hospital. 481 A.2d at 873 . Citing Capan, the Superior Court noted: Decedent herein was first admitted to [the hospital] through the emergency room and decedent first came in contact with [J-6-2015] - 15 Dr. Wright at that time because he was the “on call” emergency physician. Decedent’s parents were told that Dr. Wright was the head of the psychiatry department at the hospital and that he was “qualified”. Dr. Wright was the admitting physician when decedent entered the hospital the second time. Under these circumstances, we find that the jury could have concluded that decedent looked to the hospital for care and that the hospital “held out” the doctor as its employee. Thus, we find that the court en banc properly determined that it was error to withdraw the issue of ostensible agency from the jury. Id. at 874-75. The high courts of several of our sister states have taken a similar approach. For example, in Jackson v. Power, 743 P.2d 1376 (Ak. 1987), the Alaska Supreme Court held that a hospital has a non-delegable duty to provide non-negligent emergency care physicians on a 24-hour basis, and cannot “shield itself from liability by claiming it is not responsible for the results of negligently performed health care when the law imposes a duty on the hospital to provide that health care.” Id. at 1385. The court limited its holding “to those situations where a patient comes to the hospital, as an institution, seeking emergency room services and is treated by a physician provided by the hospital,” and declined to extend its holding “to situations where the patient is treated by his or her own doctor in an emergency room provided for the convenience of the doctor. Such situations are beyond the scope of the duty assumed by an acute care hospital.” Id. In Gatlin v. Methodist Med. Ctr. Inc., 772 So. 2d 1023 (Miss. 2000), the Mississippi Supreme Court reversed the trial court’s directed verdict in favor of the hospital, holding that the question of whether the hospital was vicariously liable for the negligence of an anesthesiologist, who failed to make sure there was sufficient blood available for surgery on a patient who arrived at the hospital’s emergency room with several gunshot wounds, was for the jury. In doing so, the Court emphasized that the [J-6-2015] - 16 appropriate focus in determining whether a hospital may be held vicariously liable for the negligence of an independent contractor physician is the relationship between the patient and the health care provider, not the relationship between the hospital and its physicians: Where a hospital holds itself out to the public as providing a given service, in this instance, emergency services, and where the hospital enters into a contractual arrangement with one or more physicians to direct and provide the service, and where the patient engages the services of the hospital without regard to the identity of a particular physician and where as a matter of fact the patient is relying upon the hospital to deliver the desired health care and treatment, the doctrine of respondeat superior applies and the hospital is vicariously liable for damages proximately resulting from the neglect, if any, of such physicians. By way of contrast and distinction, where a patient engages the services of a particular physician who then admits the patient to a hospital where the physician is on staff, the hospital is not vicariously liable for the neglect or defaults of the physician. 772 So. 2d at 1027 (quoting Hardy v. Brantly, 471 So. 2d 358 , 369 (Miss. 1985)). The Gatlin Court observed that, although there may be exceptions, a patient’s non-selection of his physician is often the rule in the case of anesthesiologists, radiologists, and emergency room physicians. 772 So. 2d . at 1028; see also Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255 , 256-57 (Ky. 1985) (noting expansion of ostensible agency theory from anesthesiologists to other physicians who are not employed by the hospital but are furnished through the institutional process, such as pathologists, radiologists, and emergency room physicians). In Simmons v. Tuomey Reg’l Med. Ctr., 533 S.E.2d 312 (S.C. 2000), the South Carolina Supreme Court, adopting Section 429 of the Restatement (Second) of Torts, held “a hospital owes a nondelegable duty to render competent service to its emergency [J-6-2015] - 17 room patients.” Id. at 322. Although the Tuomey case involved emergency room physicians, the court did not limit its holding to the emergency room setting, but instead restricted it: to those situations in which a patient seeks services at the hospital as an institution, and is treated by a physician who reasonably appears to be a hospital employee. Our holding does not extend to situations in which the patient is treated in an emergency room by the patient’s own physician after arranging to meet the physician there. Nor does our holding encompass situations in which a patient is admitted to a hospital by a private, independent physician whose only connection to a particular hospital is that he or she has staff privileges to admit patients to the hospital. Such patients could not reasonably believe his or her physician is a hospital employee. Id. at 323. We recognize, as the Hospital points out, that the Superior Court decisions in both Capan and Simmons predate the enactment of the MCARE Act. However, the language of the MCARE Act specifically provides that “[a] hospital may be held vicariously liable for the acts of another health care provider through principles of ostensible agency.” 40 P.S. § 1303.516(a) (emphasis added). In our view, the requirement for establishing ostensible agency under Section 1303.516(a)(1) − where the evidence must show that a reasonably prudent person in the patient’s position would be justified in the belief that the care in question was being rendered by the hospital or its agents − is substantially the same as the requirement for establishing ostensible agency under Section 429 of the Restatement (Second) of Torts − where the recipient of services must demonstrate a reasonable belief that the services were rendered by the employer or by his servants. Accordingly, Capan, Simmons, and the cases from our sister states are instructive on the underlying question of whether, and under what circumstances, a reasonably prudent person in Decedent’s position would [J-6-2015] - 18 be justified in believing the care in question was being rendered by the Hospital or its agents. Guided by these cases, and based on our review of the record, we conclude there was sufficient evidence to create a jury question concerning whether a reasonably prudent person in Decedent’s position would be justified in the belief that Dr. Malaisrie was acting as the Hospital’s agent when she rendered care to Decedent. It is undisputed that Decedent first entered the Hospital through the emergency room, and ultimately was admitted to the ICU. The Hospital does not dispute that, after Nurse Yakish observed blood “squirting” from Decedent’s tracheotomy site, anesthesiology and ENT services were paged. See N.T., 6/5/12, at 60 (Dr. Salgo testifying that “the ENT service and anesthesiology services were asked to help. Anesthesiology showed up and so did ENT after anesthesiology.”); N.T., 6/6/12, at 7 (Dr. Glasser testifying that at approximately 4:30 p.m. on January 10, 2009, “there was a page for anesthesia services to come to the Intensive Care Unit. The page we get on our beeper or an overhead page.”). Dr. Glasser testified that he remained in Decedent’s room “until the ENT physician arrived, and whose patient it primarily was.” Id. at 11. He estimated that Dr. Malaisrie arrived in Decedent’s room ten minutes after he did. Id. at 12. Dr. Glasser further testified that, shortly after Dr. Malaisrie arrived, he received another page and left the room. Id. at 42 (“I was paged to go to the other area. I wouldn’t have gone to the other area, but the Doctor had arrived and she was the primary service for that patient for the tracheotomy so I did leave, yes.”). When Dr. Glasser returned approximately 15 minutes later, he observed that Decedent was “stable,” but coughing and “breathing on his own, possibly intermittently. They were assisting him with the bag, but it wasn’t at all times. And he was stable at that time, but he was still having the coughing and bleeding a little bit.” Id. at 12. [J-6-2015] - 19 In this Court’s view, when a hospital patient experiences an acute medical emergency, such as that experienced by Decedent in the instant case, and an attending nurse or other medical staff issues an emergency request or page for additional help, it is more than reasonable for the patient, who is in the throes of medical distress, to believe that such emergency care is being rendered by the hospital or its agents. Accordingly, we hold that the trial court’s grant of a nonsuit under Section 1303.516(a) was erroneous in the instant case, and that the question of whether a reasonably prudent person in Decedent’s position would be justified in his belief that the care rendered by Dr. Malaisrie was rendered by her as an agent of the Hospital should have proceeded to the jury. We, therefore, reverse the Superior Court’s decision affirming the trial court’s grant of a nonsuit in favor of the Hospital on this issue, and remand the matter for further proceedings. B. Preclusion of Expert Testimony In his second issue, Appellant concedes that the trial court’s entry of a nonsuit in favor of Nurse Yakish based on a lack of causation evidence tying Nurse Yakish’s alleged negligence to Decedent’s injuries was “undeniably correct,” but contends that the absence of such evidence was the result of the trial court erroneously granting the Hospital’s motion in limine precluding the causation testimony of Appellant’s expert witness, Nurse Pierce. Appellant’s Brief at 25-26. The trial court permitted Nurse Pierce to offer testimony regarding the quality of care offered by the nurses that treated Decedent, but prohibited Nurse Pierce from opining as to whether Nurse Yakish’s actions were a cause of Decedent’s injuries, reasoning: [B]ecause this was a medical professional liability action[] against a physician and Pierce did not possess an unrestricted physician’s license, he was properly precluded [from offering causation testimony] under the MCARE Act’s requirements under § 1303.512(b)(1). If this had been a [J-6-2015] - 20 case, such as Freed, [supra,] involving the causation of bedsores and whether poor nursing was a (sic) the cause of the bedsores[,] Pierce would have been free [to] testify as an expert as to causation. However, since it involved liability against multiple physicians and nurses, it would have created an anomalous result to allow Pierce to testify as to causation as to the nurses, but claim he was incompetent to testify against the physicians for care that was in many places indivisible as to who was providing it. As this was the case, Pierce was properly allowed to testify regarding his expert opinion of the quality of care provided by the Defendant nurses but not as to causation of Decedent’s death. Trial Court Opinion, 4/15/13, at 9. In arguing that the trial court erred in precluding Nurse Pierce from offering causation testimony against Nurse Yakish, Appellant suggests that the trial court based its decision on a “legally erroneous understanding of an inapplicable provision of the MCARE statute,” specifically Section 1303.512. Appellant’s Brief at 26. We find Appellant’s argument to be without merit. Section 512 sets forth the requisite qualifications for an expert witness testifying in a medical malpractice action against a physician: (a) General rule.—No person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable. (b) Medical testimony.—An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, must meet the following qualifications: (1) Possess an unrestricted physician's license to practice medicine in any state or the District of Columbia. [J-6-2015] - 21 (2) Be engaged in or retired within the previous five years from active clinical practice or teaching. Provided, however, the court may waive the requirements of this subsection for an expert on a matter other than the standard of care if the court determines that the expert is otherwise competent to testify about medical or scientific issues by virtue of education, training, or experience. (c) Standard of care.—In addition to the requirements set forth in subsections (a) and (b), an expert testifying as to a physician's standard of care also must meet the following qualifications: (1) Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care. (2) Practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue, except as provided in subsection (d) or (e). (3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board, except as provided in subsection (e). *** (e) Otherwise adequate training, experience and knowledge.—A court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five-year time period. 40 P.S. § 1303.512. Appellant maintains that the MCARE Act does not preclude Nurse Pierce from offering causation testimony against Nurse Yakish, and, in support of his argument, [J-6-2015] - 22 cites a portion of a footnote in this Court’s decision in Freed. Therein, we acknowledged that our holding that the Professional Nursing Law did not prohibit an otherwise competent and properly qualified nurse from giving expert testimony regarding medical causation based on substandard nursing procedures might have limited impact in light of the legislature’s enactment of the MCARE Act, but noted: there are certainly situations in which it is questionable whether the MCARE Act will apply and thus we conclude our decision today retains its vitality. For example, the MCARE Act, by its terms, appears to apply only to medical professional liability actions against physicians, and not to other professional liability actions, or to actions against non- physician health care providers. Freed, 971 A.2d at 1212 n.8 (emphasis added). Regardless of the requirements for expert witnesses in medical malpractice actions against physicians under the MCARE Act, or the language of Freed, the MCARE Act does not mandate the admission of a given expert’s testimony. Rather, decisions regarding the admission of expert testimony are left to the trial court’s discretion, and will not be disturbed absent an abuse of discretion. Commonwealth v. Towles, 106 A.3d 591 , 605 (Pa. 2014). Further, and critically herein, a trial court may exclude expert opinion testimony if the probative value of the testimony is outweighed by the potential to cause confusion or prejudice. Houdeshell v. Rice, 939 A.2d 981 , 986 (Pa. Super. 2007); Pa.R.E. 403 (court may exclude relevant evidence if its probative value is outweighed by a danger, inter alia, of confusing the issues or misleading the jury). As the trial court noted, the instant case involved negligence claims against both nurses and physicians. The trial court determined that allowing Nurse Pierce to offer causation testimony as to Nurse Yakish, but not the physicians (which he was not qualified to do), might confuse the jury, and the Superior Court affirmed the trial court’s [J-6-2015] - 23 ruling, rejecting Appellant’s suggestion that, pursuant to Freed, supra , the trial court was required to allow Nurse Pierce to offer expert causation testimony. Appellant fails to argue, let alone establish, that the trial court abused its discretion in this regard. Indeed, in his expert report, Nurse Pierce opined that Nurse Yakish “failed to adequately assess/follow up bleeding from [Decedent’s tracheotomy],” and that “[t]he team attending to [Decedent] during his crisis failed to react promptly to the need for the [tracheotomy] cuff to be inflated and failed to adequately assess airway placement. As a result of this negligence, Mr. Fusco suffered a cardiopulmonary arrest and died.” Expert Report of William K. Pierce, 6/1/11, at 5 (R.R. at 303a). Thus, based on the expert report, the proffered expert causation testimony of Nurse Pierce was based on a course of conduct by nurses and physicians, and, as the trial court observed, had the potential to confuse the jury. Accordingly, we hold that Appellant is not entitled to relief on this issue. III. Conclusion For the reasons set forth above, we affirm the Superior Court’s decision to the extent it affirmed the trial court’s grant of a nonsuit in favor of Nurse Yakish. However, we reverse the Superior Court’s order affirming the trial court’s grant of a nonsuit in favor of the Hospital, and remand the matter to the Superior Court, for remand to the trial court, for further proceedings consistent with this opinion. Order affirmed in part and reversed in part. Case remanded. Mr. Chief Justice Saylor, Messrs. Justice Eakin, Baer and Stevens join the opinion. [J-6-2015] - 24 | opinion_html_with_citations | 7,656 | 2015-09-04 00:08:27.347211+00 | 010combined | f | f | 2,851,006 | Todd, Debra | null | CU | f | Published | 0 | Green, R., Aplt. v. Pennsylvania Hospital. | null | Ronald GREEN as the Executor of the Estate of Joseph Fusco, Appellant v. PENNSYLVANIA HOSPITAL and Contributors to Pennsylvania Hospital and Stella Barber, RN and Sylvia Aquino, RN and Lori Yakish, RN and Kelly A. Carr, RRT and James Kearney, MD and Steven A. Glasser, MD and John D. Sprandio, Jr., MD and Bora Lim, MD and Eugene M. Lugano, MD and Anthony Giorgio, Appellees | null | null | <citation id="b72-7">
123 A.3d 310
</citation><br><parties id="b72-8">
Ronald GREEN as the Executor of the Estate of Joseph Fusco, Appellant v. PENNSYLVANIA HOSPITAL and Contributors to Pennsylvania Hospital and Stella Barber, RN and Sylvia Aquino, RN and Lori Yakish, RN and Kelly A. Carr, RRT and James Kearney, MD and Steven A. Glasser, MD and John D. Sprandio, Jr., MD and Bora Lim, MD and Eugene M. Lugano, MD and Anthony Giorgio, Appellees.
</parties><br><court id="b72-11">
Supreme Court of Pennsylvania.
</court><br><otherdate id="b72-12">
Argued March 10, 2015.
</otherdate><br><decisiondate id="b72-13">
Decided Sept. 3, 2015.
</decisiondate><br><attorneys id="b75-10">
<span citation-index="1" class="star-pagination" label="21">
*21
</span>
Howard Jonathan Bashman, Esq., Willow Grove, James W. Sutton III, Esq., Vlasac & Shmaruk, L.L.C., for Ronald Green.
</attorneys><br><attorneys id="b75-11">
George Gerasimos Rassias, Esq., Media, for Pennsylvania Association for Justice.
</attorneys><br><attorneys id="b75-12">
Kathleen Chancier, Esq., Teresa Ficken Sachs, Esq., Philadelphia, Post <& Schell, P.C., for Pennsylvania Hospital, et al.
</attorneys><br><attorneys id="b75-13">
Robert B. Hoffman, Esq., Eckert Seamans Cherin
<em>
&
</em>
Mel-lott, LLC, Louis C. Long, Esq., Pittsburgh, for PA Medical Society and PA Defense Institute, Amicus Curiae.
</attorneys><br><attorneys id="b75-14">
J. Scott Kramer, Esq., David Edwin Loder, Esq., Melissa Sobel Snyder, Esq., Duane Morris, L.L.P., Philadelphia, for The Hospital & Healthsystem Association of Pennsylvania, Amicus Curiae.
</attorneys><br><judges id="b75-15">
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
</judges> | null | null | null | null | null | null | 2,708,028 | 36 EAP 2014 | 0 | pa | S | t | Supreme Court of Pennsylvania | Supreme Court of Pennsylvania |
5,624,603 | Guerry, J., concurring specially. In order to give plaintiff a right of action in this ease, it took three concurrent acts—first, that of the Coca-Cola Company in signing the stock certificate. This was done. Second, the transfer signature of the Trust Company of Georgia by its regularly constituted agent. This too was done, for it is alleged that Shropshire was so empowered to sign, and this is true even when the certificate was issued to Shropshire. All bona fide signatures necessary to a valid transfer were present thus far. A third signature was also necessary and a condition precedent to the valid transfer of the stock certificate to the plaintiff; that of the Atlanta and Lowry National Bank. This signature was forged by the agent of the Trust Company of Georgia, and the transferee claiming thereunder gains no title as against the true owner. | opinion_xml_harvard | 144 | 2022-01-11 04:48:34.00666+00 | 030concurrence | t | f | 5,771,454 | Broyles, Guerry, MacIntyre | null | U | f | Published | 0 | Citizens & Southern National Bank v. Trust Co. | null | CITIZENS & SOUTHERN NATIONAL BANK v. TRUST COMPANY OF GEORGIA | null | null | null | null | null | null | null | null | null | 62,126,386 | 24155 | 0 | gactapp | SA | t | Court of Appeals of Georgia | Court of Appeals of Georgia |
1,504,183 | 703 S.W.2d 257 (1985) Yolanda DONNEL, Appellant, v. Joseph LARA, et al., Appellees. No. 04-84-00306-CV. Court of Appeals of Texas, San Antonio. November 27, 1985. Rehearing Denied December 27, 1985. Writ Filed January 23, 1986. *258 James R. Bass, Charles E. Hardy, San Antonio, for appellant. Douglas S. Daniel, San Antonio, for appellees. Before ESQUIVEL, CANTU and DIAL, JJ. OPINION CANTU, Justice. Joseph Lara and his wife, Diana R. Lara, acting individually and as next friend for Daniel R. Lara and Michael J. Lara, minors, brought suit against Yolanda Donnel alleging that on several occasions Donnel, appellant herein, had willfully and without consent and knowledge of the plaintiffs made repeated intrusions into their (plaintiffs'/appellees') privacy by placing repeated phone calls to their residence at unreasonable hours and in such manner as would highly offend a reasonable person of ordinary sensibilities. Appellees claimed a loss of privacy, loss of the exclusive use of their telephones, loss of sleep and rest and other related misfortunes. Also claimed were monetary losses. In addition to actual losses, appellees sought to recover exemplary damages for the alleged willful and malicious conduct of appellant. Injunctive relief was also sought. The cause was tried to a jury which answered special issues favorable to appellees. Based upon the jury findings, the trial court entered its judgment awarding each adult appellee actual damages of one dollar ($1.00) each and combined exemplary damages of $4,500.00. The trial court further *259 granted a permanent injunction against appellant. On appeal appellant complains of trial court error in numerous particulars, viz: (1) in failing to direct a verdict in her favor (2) in submitting special issues to the jury on liability (3) in failing to disregard jury findings (4) in rendering judgment on the jury's verdict (5) in failing to grant her motion for judgment non obstante veredicto Appellant further complains that the trial court should not have rendered judgment for exemplary damages in a ratio of 2250 to 1 and in not ordering a remittitur. With the exception of the last two contentions, all of appellant's contentions are predicated upon the premise that the cause of action pleaded by appellees does not exist in Texas. [1] Appellant's argument avers that a telephone call cannot be the basis of a cause of action based on the tort of invasion of privacy. Appellant cites to us the cases of Gill v. Snow, 644 S.W.2d 222 (Tex.App.Fort Worth 1982, no writ) and Gonzales v. Southwestern Bell Telephone Company, 555 S.W.2d 219 (Tex.Civ.App. Corpus Christi 1977, no writ). Gonzales v. Southwestern Bell Telephone Co., supra , was an action in the form of trespass upon property of another. In recognizing that invasion of privacy exists in what may be labeled four separate categories, the appellate court simply held that the trial court erred in entering a judgment non obstante veredicto because the evidence raised a factual issue as to whether the plaintiffs had brought their case within one of the enumerated categories. Gonzales does not hold that invasion of privacy cannot occur as a result of telephone harassment. Gill v. Snow, supra , is another invasion of privacy case arising from the act of printing an advertisement in a community newspaper which allegedly placed the plaintiff in a false light before the public. This case also recognizes four separate and distinct categories encompassing the tort of invasion of privacy. See RESTATEMENT (SECOND) OF TORTS, § 652A (1977). [2] In reversing the judgment entered upon jury findings the appellate court concluded that there was no evidence to support an award of damages for invasion of privacy under any of the theories pleaded by the plaintiff. Appellant grasps upon the following language appearing in both Gonzales and Gill : This type of invasion of privacy [intrusion upon the seclusion, solitude and private affairs of an individual] is generally associated with either a physical invasion of a person's property or by eavesdropping on another's conversation with the aid of wiretaps, microphones or spying. It is argued that telephone calls are not within the included classes of intrusions. We do not read the quoted language as purporting to be all inclusive. To the contrary, the language recognizes that the enumerated intrusions comprise the more common acts constituting an invasion of privacy. We reject appellant's argument that telephone harassment cannot, as a matter of law, constitute the tort of invasion of privacy. We further reject appellant's contention that appellees have failed to allege a cause of action simply because the allegations contained in their petition do not fall within the confines of the more *260 familiar fact situations involving the tort of intrusion. [3] Simply because no reported Texas case exists which has recognized the type of intrusion pleaded by appellees as an actionable tort for invasion of privacy is no reason to reject it outright. Other jurisdictions have had occasion to consider similar pleadings as those now before us and have found no reason to reject them as not alleging a cause of action. See i.e., Housh v. Peth, 165 Ohio St. 35 , 133 N.E.2d 340 (1956) (creditor collection telephone harassment); Carey v. Statewide Finance Co., 3 Conn. Cir. 716, 223 A.2d 405 (Conn.Cir.Ct.1966) (creditor collection telephone harassment). We overrule appellant's first six points of error. The next three points of error complain of the awarding of exemplary damages in the absence of actual damages. Argument is made that the award of two dollars to appellees as actual damages constitutes only nominal damages and that nominal damages cannot support the award of exemplary or punitive damages. Special Issues Nos. 6 and 8 together with the jury's answers read: SPECIAL ISSUE NO. 6 If you find by a preponderance of the evidence that on occasions in the past telephone calls were repeatedly made to Plaintiff's residence at unreasonable hours, and you further find by a preponderance of the evidence that some of the telephone calls were made by Yolanda Donnel, and you further find by a preponderance of the evidence that Joseph Lara suffered actual damages as a proximate result of Defendant's conduct, what sum of money, if any, do you find by a preponderance of the evidence that Plaintiff Joseph Lara should be awarded against Yolanda Donnel to compensate him for the loss of his privacy? Answer in dollars and cents, if any. ANSWER; $1.00 SPECIAL ISSUE NO. 8 If you find by a preponderance of the evidence that on occasions in the past telephone calls were repeatedly made to Plaintiff's residence at unreasonable hours, and you further find by a preponderance of the evidence that some of the telephone calls were made by Yolanda Donnel, and you further find by a preponderance of the evidence that Diana R. Lara suffered actual damages as a proximate result of Defendant's conduct, what sum of money, if any, do you find by a preponderance of the evidence that Plaintiff Diana R. Lara should be awarded against Yolanda Donnel to compensate her for the loss of her privacy? Answer in dollars and cents, if any. ANSWER: $1.00 The judgment in pertinent part recites: It is, therefore, Ordered, Adjudged and Decreed by the Court that Plaintiffs Joseph Lara and Diana R. Lara, Individually, each have and recover from Defendant, Yolanda Donnel, actual damages in the amount of One Dollar and No/100 (1.00) and jointly recover exemplary damages in the amount of Four Thousand Five Hundred Dollars and no/100 ($4,500.00). Therefore, the judgment which tracks the jury findings awards a compensatory amount representing actual monetary losses to appellees. *261 It has been said that nominal damages are damages in name only and not in fact, and are allowed not as an equivalent for a wrong inflicted, but simply in recognition of the existence of a technical injury. Thus it follows that the violation of a legal right gives rise to a presumption of damage even if actual or compensatory damages are not shown. Fouraker v. Kidd Springs Boating & Fishing Club, 65 S.W.2d 796 (Tex. Civ.App.Dallas 1933, no writ); Flouroy v. Story, 37 S.W.2d 272 (Tex.Civ.App. Fort Worth 1930, no writ). An award of nominal damages is not sufficient to sustain a recovery of exemplary damages where no actual damages can be shown to have been incurred. Harrell v. F.H. Vahlsing, Inc., 248 S.W.2d 762 (Tex.Civ.App.San Antonio 1952, writ ref'd n.r.e.). There is no specific sum that can be defined as nominal damages. However, one dollar is the usual sum allowed. Press v. Davis, 118 S.W.2d 982 (Tex.Civ.App. Fort Worth 1938), modified on other grounds, 135 Tex. 60 , 140 S.W.2d 438 (1940). The testimony of appellees discloses that actual damages incurred by them exceeded fifty dollars. The award of two dollars is within the proof adduced and does not represent damages in name only or damages in an arbitrary amount awarded in recognition of the existence of a technical injury. Appellees' petition alleged that actual damages suffered by them as a result of appellant's wrongful acts exceeded the minimum jurisdictional limits of the court and prayed for recovery accordingly. Appellant did not except to the allegation as not pleading an exact amount nor did she object to the evidence offered in support of the allegations which supports the amount found by the jury. The amount prayed for was more than the total sum found by the jury. There being no pleading for any specific amount the jury was authorized to find such amount as the evidence would warrant so long as it did not exceed the total amount sued for. Butane Wholesale Company v. Buehring, 325 S.W.2d 173 (Tex.Civ.App.San Antonio 1959, writ dism'd). We reject appellant's characterization of the damages found by the jury as being nominal damages incapable of supporting an award of exemplary damages. Appellant does not challenge the existence of or the sufficiency of the evidence to support the award of exemplary damages. Having determined that there are actual damages found to have been sustained by appellees we hold that the award of exemplary damages was proper. King v. Keystone-Fleming Transport, Inc., 299 S.W.2d 747 (Tex.Civ.App.Amarillo 1957, writ ref'd n.r.e.). Appellant's seventh, eighth and ninth points of error are overruled. The final two points complain of the trial court's rendering of a judgment in which the ratio of exemplary damages to actual damages is 2,250 to 1 and in refusing to order a remittitur and entering a judgment in which the exemplary damages are reasonably proportioned to the actual damages. [4] Whether an award of exemplary damages is excessive depends on the facts of the particular case. Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687 (Tex.Civ.App. Fort Worth 1964, writ ref'd n.r.e.). There is no fixed ratio between exemplary and actual damages, but the amount of exemplary damages should be reasonably proportioned to the actual damages sustained. Briggs v. Rodriguez, 236 S.W.2d 510 (Tex.Civ.App.San Antonio 1951, writ ref'd n.r.e.). Since the ratio in a particular case depends on the facts much is necessarily left to the discretion of the jury. Burke v. Bean, 363 S.W.2d 366 (Tex. Civ.App.Beaumont 1962, no writ). Factors to consider in determining whether an award of exemplary damages is reasonable include (1) the nature of the wrong, (2) *262 the character of the conduct involved, (3) the degree of culpability of the wrongdoer, (4) the situation and sensibilities of the parties concerned, and (5) the extent to which such conduct offends a public sense of justice and propriety. Alamo National Bank v. Kraus, 616 S.W.2d 908 (Tex.1981). Unless the award is so large as to indicate that it is a result of passion, prejudice, or that the evidence has been disregarded, the verdict of the jury is conclusive and will not be set aside as excessive, either by the trial court or on appeal. Tynberg v. Cohen, 76 Tex. 409 , 13 S.W. 315 (1890); Kraus v. Alamo National Bank of San Antonio, 586 S.W.2d 202 (Tex.Civ. App.Waco 1979), aff'd, 616 S.W.2d 908 (Tex.1981). Appellant argues that the amount awarded as exemplary damages is disproportional to the actual damages and is therefore excessive. We do not agree that a disproportionate award alone renders it excessive and subject to remittitur. Nor are we convinced that the award is necessarily a large one. We understand the rule to require, in cases where the actual damages are small and the exemplary damages large, only that we consider such occasion as a fact to be examined in determining whether passion rather than reason dictated the verdict. Tynberg v. Cohen, 76 Tex. 409 , 13 S.W. 315 (1890). The invasion of privacy in this case was in large measure, inflicted upon the mental state of each appellee occasioned by frequent phone calls at unreasonable hours of the night. The record discloses active and intentional conduct on the part of appellant to disrupt appellees' lives in the face of repeated efforts to prevent such conduct, even to the point of monetary expenditures. The conduct pursued by appellant continued for several months, terminating only after filing of the instant lawsuit. Moreover, the record reflects that appellees had obligated themselves to pay reasonable attorney fees as a necessary prerequisite for obtaining relief through the courts. The amount of attorney fees owed by appellees through trial amounted to $4,462.52. We believe the jury was justified in considering the legal expenses incurred by appellees in arriving at exemplary damages. Under the circumstances we cannot say that the amount of $4,500.00 assessed as exemplary damages for the appellees reflects that it is the product of passion, prejudice or that the evidence has been disregarded. We believe the award to be totally in keeping with the evidence and hold that it is not excessive under the circumstances of this case. To the contrary, we hold that the amount exemplified an accurate application of the purposes for exemplary damagesto punish and deter similar wrongs in the future. See Cotton v. Cooper, 209 S.W. 135 (Tex.Comm'n App. 1919, jdgmt adopted). The trial court did not err in rendering judgment nor in not requiring a remittitur. Appellant's final two points of error are overruled. The judgment of the trial court is affirmed. NOTES [1] Appellant does not challenge the sufficiency of the evidence to support the pleadings. Rather her assault is directed solely at the sufficiency of the pleadings to state a cause of action. [2] RESTATEMENT (SECOND) OF TORTS, § 652A (1977) provides: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; (d) publicity that unreasonably places the other in a false light before the public. [3] Dean Prosser answers appellant's contention thusly: An obviously different form of invasion consists of an unreasonable and highly offensive intrusion upon the seclusion of another. This is said to consist of intentional interference with another's interest in solitude or seclusion, either as to his person or to his private affairs or concerns. One form of invasion consists of intrusion upon the plaintiff's physical solitude or seclusion, as by invading his home or other quarters, or an illegal search of his shopping bag in a store. The principle has, however, been carried beyond such physical intrusion, and extended to eavesdropping upon private conversations by means of wiretapping and microphones; and there are decisions indicating that it is to be applied to peering into the windows of a home, as well as persistent and unwanted telephone calls. W. PROSSER, W. PAGE KEETON, PROSSER AND KEETON ON TORTS § 117, pp. 854-855 (5th ed. 1984). [4] The record does not reflect that the trial court was ever requested to order remittitur or that the trial court declined to do so. Appellees do not challenge appellant's point on this basis and we, therefore, assume the court refused to do so and address the contention on the merits. | opinion_html_with_citations | 2,637 | 2013-10-30 06:30:27.374987+00 | 010combined | f | f | 1,504,183 | Esquivel, Cantu and Dial | null | LU | f | Published | 18 | Donnel v. Lara | Donnel | Yolanda DONNEL, Appellant, v. Joseph LARA, Et Al., Appellees | null | null | <parties id="b293-17">
Yolanda DONNEL, Appellant, v. Joseph LARA, et al., Appellees.
</parties><br><docketnumber id="b293-20">
No. 04-84-00306-CV.
</docketnumber><br><court id="b293-21">
Court of Appeals of Texas, San Antonio.
</court><br><decisiondate id="b293-23">
Nov. 27, 1985.
</decisiondate><br><otherdate id="b293-24">
Rehearing Denied Dec. 27, 1985.
</otherdate><br><otherdate id="b293-25">
Writ Filed Jan. 23, 1986.
</otherdate><br><attorneys id="b294-17">
<span citation-index="1" class="star-pagination" label="258">
*258
</span>
James R. Bass, Charles E. Hardy, San Antonio, for appellant.
</attorneys><br><attorneys id="b294-18">
Douglas S. Daniel, San Antonio, for ap-pellees.
</attorneys><br><judges id="b294-19">
Before ESQUIVEL, CANTU and DIAL, JJ.
</judges> | null | null | null | null | null | null | 994,606 | 04-84-00306-CV | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
5,439,545 | In bank, Thornton, J.: A motion is made herein to dismiss this appeal for a failure to file the transcript within the time prescribed under Rules 3 and 4 of this Court, on the certificate of the Clerk of the Court a quo. The certificate is in accordance with the requirements of Rule 4. Notice of this motion was given on the 16th day of May, 1879, and the transcript was filed on the 24th of December following. The respondent is entitled to a dismissal of the appeal, unless there is some circumstance which should induce the Court to waive the rule. Rules of Court are but a means to accomplish the ends of justice, “ and it is always in the power of the court to suspend its own rules or to except a particular case from their operation, whenever the purposes of justice require it.” (United States v. Breitling, 20 How. S. E. Rep. 252-254; People v. Williams, 32 Cal. 280-288.) Four of the judges of the late Supreme Court were defendants in this action, and respondents here. They were disqualified to hear and decide the cause. Nor was there a court competent for that purpose until the fifth of January, 1880. The transcript was filed before there was a court competent to hear it. And under these circumstances we think the rules of this Court, which would, if construed according to their terms, deprive the appellant of an opportunity to present his cause to a court competent to hear and decide it, should be suspended. The motion must therefore be denied. Morrison, C. J., Ross, J., .McKee, J., Myrick, J., and Sharpstein, J., concurred. Mr. Justice McKinstry being disqualified, did not participate in the decision of this case. | opinion_xml_harvard | 291 | 2022-01-08 17:59:37.343968+00 | 020lead | t | f | 5,596,693 | Bank, Thornton | null | U | f | Published | 0 | Pickett v. Wallace | Pickett | PICKETT v. WALLACE | <p>Appeal from Third District Court, County of Alameda.</p> <p>The facts are stated in the opinion.</p> | null | null | null | null | null | null | null | <p>Rules of Court. — Rules of Court are but a means to accomplish the ends of justice; and it is always in the power of a court to suspend its own rules; or to except a particular case from their operation, whenever the purposes of justice require it.</p> | 61,949,109 | No. 6,618 | 0 | cal | S | t | California Supreme Court | California Supreme Court |
7,358,980 | No opinion. Motion granted, upon payment of $10 costs and disbursements to respondent. Order filed. | opinion_xml_harvard | 15 | 2022-07-26 05:36:52.583064+00 | 020lead | t | f | 7,438,953 | null | null | U | f | Published | 0 | McCausland v. Mathews | McCausland | McCAUSLAND v. MATHEWS | <p>Action by Charles H. McCausland against Christopher A. Mathews, impleaded with others.</p> | null | null | null | null | null | null | null | null | 64,430,261 | null | 0 | nyappdiv | SA | t | Appellate Division of the Supreme Court of New York | Appellate Division of the Supreme Court of the State of New York |
3,700,651 | OPINION {¶ 1} Defendant-appellant, Marmaxx Operating Corporation, appeals from a Mahoning County Common Pleas Court judgment granting summary judgment in favor of plaintiff-appellee, Century III Associates. {¶ 2} Appellant is a Delaware corporation that owns and operates T.J. Maxx stores. Appellee is a Pennsylvania general partnership that operates a mall located in West Mifflin, Pennsylvania. Appellant entered into a contract with appellee to lease retail space in the mall (the lease). The lease was entered into after negotiations between appellant's representatives and representatives of The Edward J. DeBartolo Corporation, which was the manager of the mall at that time. The lease ran from August 13, 1992 until January 31, 2003. {¶ 3} The lease includes a section regarding taxes. It specifies how appellant's share of the real estate taxes is to be computed. According to the lease, appellant's share of the real estate taxes is to be calculated by multiplying the total amount of the real estate taxes each year by a fraction. The fraction is determined in the following manner: the numerator is the floor area of the demised premises and the denominator is the total square feet of all building space leased in appellee's parcel. The lease further provides that the total square feet of all building space leased in appellee's parcel "shall be deemed to be not less than ninety-five percent (95%) of the total square feet of all building space leasable" in appellee's parcel. {¶ 4} The mall houses four department stores. Each of the department stores owns their building but leases the land their building sits on from appellee. These are known as "ground leases." The question in this case is whether the department stores' building space should be excluded from the denominator in the real estate tax formula. The answer to this question depends on whether the department store space is "leasable" under the terms of the lease. Appellant contends that the space is leasable, while appellee asserts that it is not. {¶ 5} Appellee filed a complaint against appellant in 1999, seeking a declaratory judgment upholding its method of calculating appellant's share of the real estate taxes. Specifically, appellee asked the trial court to declare that (1) the building space owned by the department stores is not "building space leased" within the meaning of the lease and is properly excluded from the denominator for calculation of real estate taxes, and (2) appellant is not entitled to a refund for any real estate taxes paid to appellee. Appellant requested, and the trial court granted, a stay of the lawsuit pending the resolution of a parallel suit in Massachusetts. The trial court lifted the stay in January 2001, when it learned that the Massachusetts case was dismissed on the grounds of forum non conveniens. Appellant then filed a counterclaim alleging that appellee breached the lease and that it was entitled to damages equal to the difference between what it actually paid appellee for real estate taxes and the amount it alleged it should have paid. {¶ 6} Appellant next filed a motion for summary judgment on count two and prayer one in count one of appellee's complaint. Appellee filed a motion for summary judgment on count one of its complaint and on appellant's counterclaims. {¶ 7} The matter was submitted to a magistrate. The magistrate found that appellee's evidence, consisting of three affidavits, was uncontroverted. The magistrate relied particularly on Woodrow Stone's affidavit in reaching his decision. Stone has been responsible for drafting and processing leases, including the one at issue, for over 25 years. The magistrate found that the department stores own their own buildings. He further found that the terms "leased" and "leasable" mean those areas leasable by appellee. Additionally, he found that the department stores pay their proportionate share of the total real estate taxes assessed against the land and buildings in the mall. Thus, the magistrate concluded that the building space owned by the department stores is not "building space leased" within the meaning of the lease and is properly excluded from the denominator for the calculation of the real estate taxes. He also concluded that appellant was not entitled to a refund for any taxes paid to appellee. {¶ 8} Appellant filed objections to the magistrate's decision. The trial court overruled appellant's objections and affirmed the magistrate's decision. It granted appellee judgment on count one of its complaint and dismissed appellant's counterclaims. Appellant filed a timely notice of appeal on September 3, 2004. {¶ 9} Appellant raises two assignments of error, the first of which states: {¶ 10} "THE TRIAL COURT ERRED WHEN, INSTEAD OF GRANTING MARMAXX'S MOTION FOR SUMMARY JUDGMENT, IT INTERPRETED THE CLEAR AND UNAMBIGUOUS LANGUAGE IN A FULLY INTEGRATED LEASE AGREEMENT BETWEEN MARMAXX AND CENTURY III IN A MANNER THAT SIGNIFICANTLY DEPARTS FROM THE LANGUAGE'S PLAIN AND ORDINARY MEANING; AND ITS HOLDING WAS CONTRARY TO LAW TO THE EXTENT THAT IT DEPENDED UPON INADMISSIBLE AND IRRELEVANT EXTRINSIC EVIDENCE, VIZ. THE AFFIDAVIT OF WOODROW STONE." {¶ 11} In reviewing an award of summary judgment, appellate courts must apply a de novo standard of review. Cole v. American Indus. Resources Corp. (1998), 128 Ohio App.3d 546 , 552 , 715 N.E.2d 1179 . Thus, we shall apply the same test as the trial court in determining whether summary judgment was proper. Civ.R. 56(C) provides that the trial court shall render summary judgment if no genuine issue of material fact exists and when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. State ex rel. Parsons v. Flemming (1994), 68 Ohio St.3d 509 , 511 , 628 N.E.2d 1377 . A "material fact" depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon Assoc., Inc. (1995), 104 Ohio App.3d 598 , 603 , 662 N.E.2d 1088 , citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242 , 247-248 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 . {¶ 12} Appellant first argues that, in interpreting the lease, we must give the words their everyday, dictionary meaning. It contends that "leasable" simply means "capable of being leased." Therefore, appellant argues that the department store space is leasable under the terms of the lease. Appellant asserts that there is nothing in the lease that gives one any reason to think that "leasable" should be given any other definition. Appellant further contends that the department store space meets this definition of "leasable" because under the terms of the ground leases, the department stores are not prohibited from leasing their spaces. Furthermore, appellant contends that appellee is attempting to re-write the lease by interpreting "leasable" to mean "leasable only by it." Appellant argues that had appellee meant "leasable" to have such a meaning, it should have included language to that effect in the lease. {¶ 13} Next, appellant argues that to give "leasable" appellee's definition would lead to an absurd result. It points to an example as follows. If appellee reached an agreement with all of the other mall tenants to replace their ordinary leases with ground leases, under appellee's definition of "leasable" appellant would become responsible for 100 percent of the real estate taxes assessed on the mall. However, under the common definition of "leasable," appellant argues, it was able to calculate its maximum proportionate share of the real estate taxes before signing the lease. {¶ 14} Both parties agree that Pennsylvania substantive law governs this case under the Ohio choice of law principles. A lease is a contract. Thus, we will interpret it according to the principles of contract law. Hutchinson v. Sunbeam Coal Co. (1986), 513 Pa. 192 , 519 A.2d 385 , 389 . The goal of contract interpretation is to determine the parties' intent when they entered into the contract. Id. {¶ 15} Contract language is ambiguous if it is reasonably susceptible to more than one interpretation. Id. at 390. When no apparent ambiguity exists, courts should not "distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity." Madison Constr. Co. v. Harleysville Mut. Ins. Co. (1999), 557 Pa. 595 , 735 A.2d 100 , 106 . When the contract words are unambiguous, the parties' intent should be found only in the express terms of the agreement. Shovel Transfer and Storage, Inc. v. Pennsylvania Liquor Control Bd. (1999), 559 Pa. 56 , 739 A.2d 133 , 138 . However, when contract language is ambiguous, courts may resort to extrinsic evidence to determine the meaning of the ambiguous language. Hutchinson, 735 A.2d at 390 . {¶ 16} Article IV of the lease is titled "Real Estate and Other Taxes." Section 1 provides in relevant part: {¶ 17} "Lessee's proportionate share [of the real estate taxes] shall be computed by multiplying the total amount of the real estate taxes each year by a fraction, the numerator of which shall be the Floor Area of the Demised Premises and the denominator of which shall be the total square feet of all building space leased in Lessor's Parcel as of the beginning of the calendar year in which such taxes are paid. * * * For the purposes of determining Lessee's proportionate share of real estate taxes, the total square feet of all building space leased in Lessor's Parcel shall be deemed to be not less than ninety-five percent (95%) of the total square feet of all building space leasable in Lessor's Parcel." {¶ 18} Appellant contends that we should give "leasable" its common, ordinary meaning. "Leasable" is the adjective form of "lease" meaning "to grant by lease" or "to hold under a lease." Merriam-Webster's Collegiate Dictionary (10 Ed. 1998) 663. In other words, the common definition of "leasable" is, as appellant puts forth, capable of being leased. {¶ 19} However, we cannot consider the term "leasable" in isolation. The entire contract must be taken into account when the meaning of an individual clause is at issue. Neal D. Ivey Co. v. Franklin Assocs., Inc. (1952), 370 Pa. 225 , 87 A.2d 236 , 239 . We will not give an interpretation to one part of a contract that will annul another part of the contract. Id. {¶ 20} As appellee notes, the term "lessor," as used in the lease, refers only to it. (Lease, p. 1). Furthermore, the evidence is uncontroverted that the department stores own their buildings and lease only the ground from appellee. (Stone Aff., Exhs. E-H). Additionally, the lease is a contract only between appellee (lessor) and appellant (lessee). Thus, it is reasonable that "leasable" means capable of being leased by appellee since appellee is the only lessor and does not own the department store buildings. {¶ 21} Appellant further points this court's attention to Exhibit B of the lease. Exhibit B is a map of appellee's parcel and the surrounding area. The map includes a section under the heading "Statistical Data" that gives the total square footage of the building space that is "leasable" and the total square footage that is "non-leasable." Appellant argues that the map provides a clear definition of "leasable" by specifying the "leasable" square footage is 1,315,325 square feet. This amount, appellant states, includes the 741,062 square feet of department store space. Thus, because the lease provides a clear definition of "leasable," appellant asserts we must apply this definition throughout the lease. {¶ 22} Exhibit B to the lease provides a map for the purpose of describing a no-building area. The only reference to Exhibit B in the lease is in Article XI, which provides in part: "Lessor shall not, except as shown on Exhibit `B' attached hereto and made a part hereof, and except as hereinafter provided, authorize or permit in the area designated `No Build Area' on said Exhibit `B', (a) the erection or placement of any buildings * * * or (b) any [promotions, signs, etc.] * * * without Lessee's prior consent[.]" Thus, Exhibit B's purpose is strictly to provide a graphic illustration of the no-building areas. {¶ 23} Generally, a word used by the parties to a contract in one sense should be interpreted in the same sense throughout the contract in the absence of countervailing reasons. Northern Liberties Gas Co. v. United Gas Imp. Co. (1944), 348 Pa. 433 , 35 A.2d 284 , 287 . Exhibit B was not meant to provide a definition of leasable space in the mall, but instead to simply provide a description of where appellee could and could not build on the premises. The lease includes a separate definitions section that does not include "leasable." This is reason to give "leasable" a different definition in the real estate tax provision of the lease than in Exhibit B. In the real estate tax provision, "leasable" is a very important term. But in Exhibit B, it is merely used to reference certain areas. {¶ 24} Appellant additionally asserts that the court should not have considered Stone's affidavit, which appellee submitted in support of its definition of "leasable." It contends that because the plain meaning of "leasable" was ascertainable from the lease, the court should not have considered the affidavit as it is parol evidence. Furthermore, it argues that Stone's definition of "leasable" is merely his opinion. And while Stone stated that his definition was one of custom and usage, appellant argues that Stone failed to provide any factual evidence that "leasable" has a particular custom or usage. {¶ 25} Generally, parol evidence is inadmissible to demonstrate the meaning of an unambiguous term. However, evidence regarding industry custom and usage can be admitted to explain the meaning of a term even when the agreement is not ambiguous. Resolution Trust Corp. v. Urban Redevelopment Auth. of Pittsburgh (1994), 536 Pa. 219 , 638 A.2d 972 , 975 . Put another way, "[t]he parol evidence rule does not apply in its ordinary strictness where the existence of a custom or usage to explain the meaning of words in a writing is concerned." Id., citing Electric Reduction Co. v. Colonial Steel Co. (1923) 276 Pa. 181 , 120 A.116, 118. The Pennsylvania Supreme Court has even stated: {¶ 26} "In the law of contracts, custom in the industry or usage in the trade is always relevant and admissible in construing commercial contracts and does not depend on any obvious ambiguity in the words of the contract. If words have a special meaning or usage in a particular industry, then members of that industry are presumed to use the words in that special way, whatever the words mean in common usage and regardless of whether there appears to be any ambiguity in the words." Sunbeam Corp. v. Liberty Mut. Ins. Co. (2001), 566 Pa. 494 , 781 A.2d 1189 , 1193 . {¶ 27} Additionally, when contract language is ambiguous, courts may resort to extrinsic evidence to determine the meaning of the ambiguous language. Hutchinson, 735 A.2d at 390 . {¶ 28} Given this law, the trial court properly considered Stone's affidavit in determining the meaning of "leasable." The term is ambiguous. In fact, this entire lawsuit centers on its meaning. Furthermore, even if the term was not ambiguous, parol evidence was nonetheless admissible based on the custom and usage exception. {¶ 29} Stone stated the following in his affidavit concerning the definition of "leasable." Stone was the vice president of The DeBartolo Corporation at the time the lease was negotiated. He has been in charge of lease coordination, including the preparation and processing of all leases for space in the mall. Furthermore, for over 25 years he was responsible for drafting and processing all of the leases in the DeBartolo malls and now holds the same position with Simon Property Group. As to the lease at issue, Stone stated that appellee is the only party that can lease space in the mall. Furthermore, as used in the lease, the term "leased" means the space for which appellee has signed leases. The term "leasable" means the space within the mall that appellee has the capacity to lease, but which may not have leased at a particular time. The department stores' space cannot be considered leasable because appellee does not own the department stores and, therefore, cannot lease that space. {¶ 30} Stone's affidavit supports appellee's definition of "leasable." And appellant did not submit any evidence to contradict the custom and usage for the term. {¶ 31} Furthermore, we should note appellee submitted the affidavit of David Carson, the director of lease accounting for the Simon Property Group. In his affidavit, Carson described the procedure used in calculating appellant's share of the real estate taxes. He stated that first appellee takes the total real estate taxes assessed against the entire shopping mall and deducts the payments received from the department stores. The net real estate tax is then multiplied by the fraction set out above where the numerator is the floor area of the leased store and the denominator is the total square feet of leasable space. Thus, the department stores pay their proportionate share of the total tax bill assessed against the mall. {¶ 32} Based on the above, the trial court properly determined that appellee's definition of "leasable" was correct and properly granted summary judgment in favor of appellee. Thus, appellant's first assignment of error is without merit. {¶ 33} Appellant's second assignment of error states: {¶ 34} "THE TRIAL COURT ERRED IN NOT GRANTING MARMAXX'S RULE 56(F) REQUEST FOR AN OPPORTUNITY TO TAKE DISCOVERY RELATIVE TO THE ISSUES RAISED IN THE AFFIDAVITS THAT CENTURY III SUBMITTED IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT." {¶ 35} Appellant argues that if this court agrees with appellee's definition of "leasable," we should still reverse this case and remand it to the trial court so that it can proceed with the discovery it requested pursuant to Civ.R. 56(F). Appellant alleges that given the three-year stay in this case, due to a similar case between the parties in Massachusetts, it did not have time to conduct discovery. Appellant claims that if it had access to the department store ground leases, it could likely show that the department stores had the authority to lease their building spaces. Thus, it could contradict Stone's affidavit. Appellant also claims that it should be given the opportunity to depose Stone and other witnesses whose affidavits appeared for the first time in appellee's motion for cross-summary judgment. And appellant claims that neither the magistrate nor the trial court even addressed its Civ.R. 56(F) motion. {¶ 36} The decision as to whether to allow additional time to permit a party opposing summary judgment to conduct discovery is within the trial court's sound discretion. Kristian v. Youngstown Orthopedic Assoc., 7th Dist. No. 03-MA-189, 2004-Ohio-7064 , at ¶ 18 . Thus, we will not reverse the trial court's decision absent an abuse of its discretion. Abuse of discretion connotes more than an error of law or judgment; it implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217 , 219 , 450 N.E.2d 1140 . {¶ 37} Civ.R. 56(F) provides: {¶ 38} "Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just." {¶ 39} Appellant did not file a separate motion asking for additional time for discovery pursuant to Civ.R. 56(F). Instead, it made this request within its brief in opposition to summary judgment. Appellant requested that if the court was inclined to grant appellee's motion for summary judgment, it should at least defer ruling on the motion until it had a chance to investigate the evidence appellee put forth in its affidavits. In support, appellant attached Douglas Meal's affidavit. Meal is one of the attorneys representing appellant. He stated in his affidavit that the complete documents on which appellee relied, namely the ground leases, are within appellee's sole control and appellant could not test the validity of the statements appellee made regarding the ground leases without discovery of the entire documents and the circumstances surrounding their preparation. He further stated that appellant could not test the validity of the statements made in appellee's affidavits without deposing the men who gave their affidavits. {¶ 40} Appellant did not outright ask the trial court to grant its motion. It only asked for additional time for discovery if the court decided to grant appellee's summary judgment motion. Thus, it only thought discovery was necessary if it was not going to prevail. {¶ 41} Furthermore, appellant is the party who filed its motion for summary judgment just days after the pleadings were entered and before either party had a chance to conduct discovery. If appellant believed discovery was necessary, it should not have asked for summary judgment so early in the proceedings. {¶ 42} Additionally, appellee attached copies of parts of the ground leases to its complaint. If appellant thought copies of the entire ground leases were pertinent, it could have easily requested them from appellee before filing its summary judgment motion. {¶ 43} Based on the history of this case, we cannot conclude that the trial court abused its discretion in denying appellant's Civ.R. 56(F) motion. Accordingly, appellant's second assignment of error is without merit. {¶ 44} Although raised only in a footnote, appellant makes one other argument that we will address briefly. Appellant contends that if this court does not agree that the trial court's judgment should be reversed for the reasons set out in its assignments of error, we should still reverse the summary judgment on count two of its counterclaim. Count two alleged that if the department store space is excluded from the denominator for the calculation of real estate taxes, then the portion of the taxes attributable to the department stores must likewise be excluded from the multiplicand of the Article IV formula that determines appellant's proportionate share of the taxes assessed on the mall. Appellant claims that it made this argument in the trial court, but neither the magistrate nor the court addressed it. It contends that we must remand this case for consideration of count two. {¶ 45} Appellant is incorrect in its assertion that the magistrate and trial court failed to rule on count two. Both the magistrate and the trial court determined that the dismissal of appellant's counterclaims, including count two, was appropriate. The trial court also specifically noted that the magistrate found that in calculating appellant's proportionate share of the real estate taxes, appellee first deducted the contribution received from the department stores from the total taxes. Furthermore, the magistrate's decision states that the Carson affidavit specifically provided that appellee has excluded contributions made by the department stores from the total taxes when calculating appellant's share of the taxes. He also found that appellant failed to provide any evidence to the contrary. Thus, there is no need to remand this case for the trial court to rule on count two of appellant's counterclaim, as appellant alleges, since both the magistrate and trial court already ruled on it. {¶ 46} For the reasons stated above, the trial court's decision is hereby affirmed. Waite, J., concurs. DeGenaro, J., concurs. | opinion_html_with_citations | 3,912 | 2016-07-06 06:39:26.137464+00 | 020lead | f | f | 3,951,688 | DONOFRIO, J. | null | Z | t | Unpublished | 0 | Century III Assoc. v. Marmaxx Operating, Unpublished Decision (12-27-2005) | null | Century III Associates v. Marmaxx Operating Corp. | null | null | null | null | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
Civil Appeal from Common Pleas Court Case No. 99-CV-1548.
Affirmed. | null | null | null | null | 3,823,830 | No. 04-MA-201. | 0 | ohioctapp | SA | t | Ohio Court of Appeals | Ohio Court of Appeals |
2,912,029 | IN THE COURT OF APPEALS OF IOWA No. 15-0076 Filed September 10, 2015 IN THE INTEREST OF A.E. AND D.E., Minor Children, A.E., Father, Appellant, D.C., Mother, Appellant. Appeal from the Iowa District Court for Webster County, Angela L. Doyle, District Associate Judge. The mother and father separately appeal the termination of their parental rights to their children, A.E. and D.E. AFFIRMED ON BOTH APPEALS. Derek Johnson of Johnson & Bonzer, P.L.C., Fort Dodge, for appellant father. Darren Driscoll of Johnson, Kramer, Good, Mulholland, Cochrane & Driscoll, P.L.C., Fort Dodge, for appellant mother. Thomas J. Miller, Attorney General, Janet Hoffman, Assistant Attorney General, Jennifer Benson, County Attorney, and Jordan Brackey, Assistant County Attorney, for appellee State. Kurt Pittner, Fort Dodge, attorney and guardian ad litem for minor children. Considered by Danilson, C.J., and Vogel and Tabor, JJ. 2 VOGEL, J. The mother and father separately appeal the juvenile court’s termination of their parental rights to their children, A.E. and D.E. They both assert the State failed to prove by clear and convincing evidence their rights should be terminated pursuant to Iowa Code section 232.116(1)(e), (f), and (h) (2013). They further assert termination is not in the children’s best interests because they share a bond with the children and, furthermore, that they should have been granted an additional six months to work towards reunification. The father also claims the court erred in admitting the report of a psychiatrist because a proper foundation was not laid. We conclude the juvenile court properly terminated both parents’ rights under paragraphs (f) and (h), that termination is in the children’s best interests, and the parent-child bond is not an impediment to termination. Moreover, granting the parents an additional six months would not correct the situation; furthermore, the father did not preserve error with regard to his evidentiary claim. Consequently, we affirm the order of the juvenile court terminating the parental rights of the mother and father to their children. I. Factual and Procedural Background A.E., born February 2010, and D.E., born January 2011,1 came to the attention of the Iowa Department of Human Services (DHS) due to an incident of domestic violence. The mother has an older child, J.M., born May 2000, who is 1 D.E. was born testing positive for marijuana in his system. 3 fathered by another man.2 On June 24, 2013, the father assaulted the mother, D.E., and J.M. The juvenile court’s recitation of the event is as follows: On June 24, 2013, law enforcement was called by a neighbor reporting that [the father] chased [the mother] down the street, pulled her back into the family’s home and physically assaulted [D.E.] and [J.M.]. During the altercation, [J.M.] texted [the father’s] father, [M.E], that [the father] was assaulting [the mother]. When [the father] discovered that [J.M.] had texted [M.E.] [the father] wrapped his arm around [J.M.’s] neck and choked him. [J.M.] suffered bruising and abrasions to his neck and a rug burn to his knee and complained of jaw pain. After law enforcement arrived, [the mother] denied that [the father] assaulted her, the children or [J.M.] and was not willing to speak with law enforcement. [J.M.] reported to law enforcement that [the father] chased [the mother] down the street and told her he would hurt one of the children if she did not return to the family home. [The father] reportedly grabbed [D.E.], then age two years, by the back of the neck and threw him into the house. [D.E.] had multiple scratches on his neck. [J.M.] reported that he could see [the father] yelling at [the mother], spitting in her face and hitting her. [The mother] took [J.M.] aside and talked with him in private away from law enforcement. [J.M.] then approached an officer, crying, and said everything he had reported was a lie. [J.M.] and [M.E.] later confirmed that [the mother] had told [J.M.] to lie. The father was arrested and charged with two counts of child endangerment causing bodily injury, and a no-contact order was entered in favor of D.E. and J.M. The children were removed from the home and placed in foster care, where they remained at the time of the termination hearing.3 A.E., D.E.,— as well as J.M.—were adjudicated in need of assistance (CINA) on January 29, 2014. All children stated to various adults that they witnessed or were the subject of physical abuse by the father. 2 The mother and J.M.’s father share physical custody. J.M. is not a subject of the current termination proceedings. 3 There were two foster home placements. The first placement was unable to handle the children’s behavioral issues. They were then moved to their current foster home, where the parents have indicated they wish to adopt the children if parental rights are terminated. 4 The father pled guilty to the two counts of child endangerment and was sentenced to two years on each count, with the term of incarceration suspended. He was ordered to enter a residential correctional facility but later escaped, and in January 2014, he was charged with disorderly conduct and escape from a residential facility; he was then moved to another residential facility, and he resided there from March until the end of August, 2014.4 The father’s prior convictions include several assault charges, harassment, probation violations, criminal mischief, theft, interference with official acts, disorderly conduct, and driving under the influence, among others; several of these offenses were felonies. These convictions spanned from 2002 until 2014. According to the district court, the mother’s criminal history includes convictions for domestic abuse assault, theft, possession of drug paraphernalia, interference with official acts, as well as driving-related offenses. The June 2013 removal was the second time the children were removed from the parents’ care. The previous incident was in March 2011, and also involved allegations of domestic violence and drug use. Following the children’s removal, the mother tested positive for methamphetamine and marijuana, and the father was positive for methamphetamine. While they were initially uncooperative with services, eventually the parents received treatment for their substance abuse and mental health issues, and the children were returned to their care on February 10, 2012. The underlying CINA case was closed in March 2013. 4 Following his stay in the residential facility, the DHS worker noted: “[T]here was a noticeable difference in [the father’s] demeanor and behavior. His attitude was much improved and he was very reasonable.” 5 Following the children’s June 2013 removal, the parents were uncooperative with services until approximately three months before the termination hearing. The mother cancelled several family team meetings, and the parents only attended approximately three meetings throughout the pendency of these proceedings. They also failed to attend consistently the supervised visitation, and the DHS worker noted they appeared to be under the influence of narcotics during several visits, displaying twitching, sweating, slurred words, lack of coordination, sores, scabs, and an unkempt appearance. Additionally, the DHS worker had concerns regarding the parenting of the children during visitation, specifically with regard to the inappropriate discipline of the children. The children have demonstrated maladaptive behaviors—including self-harm, outbursts, and other behavioral issues—that grew worse after visits with the parents, though these behaviors have reduced since the children have been out of the parents’ care. The parents also failed to attend many appointments for the court- requested drug screenings and did not submit samples for testing until September 27, 2014; while the mother attended appointments during May 2014, she was a no-show for the rest of the scheduled testing. All drug screenings that were submitted by the mother were negative for narcotics, though the September 27, 2013 test of the father returned positive for methamphetamine. The parents maintain they have been drug-free since 2011. The mother attended substance abuse treatment from May until July, 2014, and the father underwent treatment while in the residential treatment facility. The father also received mental health treatment there. 6 As of the time of the termination hearing, the mother and father had been in a relationship for six years. During the pendency of these proceedings, the parents had a third child together, born September 2014. He is residing with the parents, and as of the termination hearing, he had not been the subject of removal proceedings. The following services were provided to the family during the pendency of these proceedings: gamily team meetings; drug testing; foster care; supervised visitation; transportation; parenting skills; family safety, risk, and permanency (FSRP) services; parenting assessments; substance abuse evaluations; mental health evaluations; behavioral assessments for the children; child well-being assessments; therapy for the children; behavioral health intervention services; and medication management. The State filed a petition to terminate the mother’s and father’s parental rights, and a contested hearing was held on October 1, 15, and 17, 2014, in which the parents testified. The State introduced as one of its exhibits a DHS report that had, as one of its attachments, the child-emotional-well-being assessment performed by Resmiye Oral, M.D., to which the father objected on hearsay grounds. On December 31, 2014, the juvenile court ordered the termination of the parental rights of the mother and the father pursuant to Iowa Code section 232.116(1)(e) as to both children, paragraph (f) as to A.E., and paragraph (h) as to D.E. The mother and father appeal. II. Standard of Review We review termination proceedings de novo. In re S.R., 600 N.W.2d 63 , 64 (Iowa Ct. App. 1999). The grounds for termination must be proved by clear 7 and convincing evidence. Id. Our primary concern is the child’s best interest. Id. When the juvenile court terminates parental rights on more than one statutory ground, we only need to find grounds to terminate under one of the sections cited by the juvenile court to affirm. Id. To the extent we are reviewing evidentiary claims, our review is for an abuse of discretion. In re N.N., 692 N.W.2d 51 , 54 (Iowa Ct. App. 2004). III. Termination The parents both assert the juvenile court erred in terminating their rights because the children could be returned home. Each argues evidence of drug use or violence has not been present in the home since January 2014, and that the evidence of previous violence was not credible; additionally, their third child is residing with them and is not the subject of removal proceedings. They further state they have regularly attended visits and have cooperated with all DHS requirements. To terminate parental rights pursuant to Iowa Code section 232.116(1)(h), the State must establish the child is three years old or younger, adjudicated CINA, removed from the home for six of the last twelve months, and cannot be returned home at the present time. Iowa Code § 232.116 (1)(h)(1)–(4). To terminate rights under paragraph (f), the child must be four years of age or older, adjudicated CINA, removed from the physical custody of the parents for at least twelve of the last eighteen months or for the last twelve consecutive months, and there is clear and convincing evidence that at the present time the child cannot be returned to the custody of the parents. Id. § 232.116(1)(f)(1)–(4). 8 The record establishes the juvenile court properly concluded A.E. and D.E. cannot be returned to the parents’ care, as defined in paragraphs (f) and (h), respectively. Neither parent has shown much progress since their most recent involvement with DHS in June 2013. As the juvenile court noted, the parents: [D]id not attempt to meet any of their case plan goals or appear motivated to cooperate with services until termination of their parental rights was recommended, despite completion of the parenting assessments, mental health evaluations and substance abuse evaluations. [The mother] did not make any progress from the removal of the children in June 2013 until late April 2014, when she began substance abuse treatment and drug testing (even though she claimed sobriety for three years). [The mother] began mental health therapy with Lincoln Mental Health in July 2014. She attended four appointments before moving to Marshalltown. [The father] was able to obtain sobriety when he was sentenced to the residential correctional facility in January 2014. He was released from the residential correctional facility on August 27, 2014. He and [the mother] reside in Marshalltown, Iowa, with their new baby, born [in September] 2014. [The father] has been more cooperative over the past few months, attends visits once each week and is now on medication for mental health. He has not engaged in any substance abuse treatment, domestic violence counseling, anger management or batterer’s education class. His parenting skills during visits have only marginally improved. We agree with the court that neither parent has made progress to the point where the children can be returned to either parent’s care. Both parents show a disturbing lack of awareness with regard to the danger the father poses to the children—each deny that physical abuse of the mother and children occurred, and they continue to assert that J.M. was lying about the abuse he suffered or witnessed. They also deny drug use in the home since 2011, though both have missed the majority of the drug screenings requested by DHS. The professionals who evaluated the children, including Dr. Oral and the case workers, noted that, without an acknowledgment of the domestic abuse and 9 substance abuse issues, the parents could not adequately or safely parent the children. The record supports this assessment, particularly given the father’s continued domestic abuse and the mother’s denial that the abuse occurs. In determining the future actions of the parent, their past conduct is instructive. In re J.E., 723 N.W.2d 793 , 798 (Iowa 2006). The mother and father both deny any harm to the children resulted from the father’s perpetration of domestic violence. This is contrary to the well-being of the children, who would be subject to imminent harm—either physical abuse or drug use in the home—if returned to the care of the parents. The children demonstrated significant behavioral problems upon removal, and only after they were separated from the parents has there been an improvement in the children’s behavior. It is also a testament to the parents’ inadequate parenting skills that both refused to engage in services until shortly before the time of the termination hearing. Therefore, we agree with the juvenile court the children cannot be returned home at the present time, and the State satisfied its burden showing both parents’ rights should be terminated under Iowa Code section 232.116(1)(f), as to A.E., and paragraph (h), as to D.E. IV. Best Interests and Additional Time The parents also argue termination is not in the children’s best interests. They rely on the parent-child bond, and the father asserts the children should not be separated from their sibling. They argue the considerations of Iowa Code sections 232.111(2)(b)5 and 232.116(3)(a), preclude termination. They further 5 Iowa Code section 232.111 pertains to the filing of the petition rather than grounds to be proved. 10 assert the juvenile court improperly declined to grant them an additional six months to work towards reunification. With respect to the parent-child bond consideration under 232.116(3)(a), we agree with the juvenile court any bond is not enough to render termination of parental rights not in the children’s best interests. Both children have exhibited maladaptive behaviors indicating the parents have exposed the children to violence in the home with an overlay of drug use. Additionally, neither parent has progressed beyond fully-supervised visitation, and the DHS workers were concerned with behaviors exhibited by the parents during visits. While we agree that it is important for A.E. and D.E. to have a relationship with their full sibling, it is not enough to preclude the termination of parental rights. Moreover, we do not agree with either parent’s assertion more time would correct the situation. They have been involved with services since 2011, and yet, substance abuse and physical violence continue to occur while the children are present. Dr. Oral reported, and the DHS worker agreed, that the parents would need an additional two years of services before the children could be returned to the parents’ care. “We have repeatedly followed the principle that the statutory time line must be followed and children should not be forced to wait for their parent to grow up.” In re N.F., 579 N.W.2d 338 , 341 (Iowa Ct. App. 1998); see also Iowa Code § 232.116 (2). The parents have had ample time to address their issues, and an additional six months would not remedy the situation; consequently, we agree with the juvenile court it is in the children’s best interests the parental rights of the mother and father be terminated. See Iowa Code § 232.116 (2). 11 V. Expert Testimony The father’s final argument claims the juvenile court erred in admitting Dr. Oral’s report. He asserts the report was not authenticated, because Dr. Oral did not testify, nor did the FSRP worker state she saw Dr. Oral sign the report. The father asserts this is contrary to the mandates set forth in Rumley v. Mason City, 320 N.W.2d 648 , 651 (Iowa Ct. App. 1982). The father did not preserve error on this argument. Though he objected to the admission of the report on hearsay grounds, he does not present that argument on appeal; moreover, the foundational issue he does raise was not presented with respect to Dr. Oral’s report, and the juvenile court did not address this specific claim. Consequently, error was not preserved, and we decline to address the merits of the father’s foundation argument. See Lamasters v. State, 821 N.W.2d 862 , 864 (Iowa 2012). For the foregoing reasons, we affirm the juvenile court’s termination of the mother’s and father’s parental rights to their children, A.E. and D.E. AFFIRMED ON BOTH APPEALS. | opinion_html_with_citations | 2,946 | 2015-09-10 15:05:59.278958+00 | 010combined | f | f | 2,912,029 | null | null | C | t | Published | 0 | In the Interest of A.E. and D.E., Minor Children, A.E., Father, D.C., Mother | null | null | null | null | null | null | null | null | null | null | null | 2,769,082 | 15-0076 | 0 | iowactapp | SA | t | Court of Appeals of Iowa | Court of Appeals of Iowa |
6,211,579 | OPINION OF THE COURT Ralph A. Beisner, J. This action was tried before the court over four days, from May 13, 1996 to May 16, 1996. The plaintiff is seeking a declaratory judgment rescinding a lease with the defendant and attendant damages. The plaintiff alleges that the defendant failed to reveal the nature of the business that it intended to operate from the plaintiff’s rental property. The defendant *144counterclaims for damages as a result of the plaintiffs breach of the lease. The plaintiff called Colleen Quinn and David Sorbaro as witnesses and read portions of the examination before trial of Dennis Lesieur. The defendant called Dennis Lesieur, Anthony Nota and Daniel Geribo. Plaintiff recalled Mr. Sorbaro and Charles Murdock in rebuttal and the defendant read portions of the deposition of Mr. Lesieur in surrebuttal. Both parties have submitted memoranda of law and proposed findings of fact and conclusions of law for the court’s consideration. The following constitutes the decision of the court. FINDINGS OF FACT Plaintiff is a New York general partnership with an office at 186 North Bedford Road, Mount Kisco, New York. Defendant is a Rhode Island corporation with an office at 1800 Mineral Springs Road, Providence, Rhode Island. Plaintiff is the owner of the Westside Plaza, a commercial building located at South Road, Poughkeepsie, New York. In September 1992 plaintiff was offering a vacant store in that property for rent. On September 1, 1992, the defendant’s general manager, Dennis Lesieur, telephoned Colleen Quinn who was a licensed real estate salesperson working with CB Commercial Real Estate, a real estate broker who had been retained by the plaintiff to offer the vacant store for rent. Mr. Lesieur indicated that the defendant was interested in renting the vacant store. In response to a request from Ms. Quinn for information, about the defendant’s business enterprises, Mr. Lesieur advised Ms. Quinn that the defendant was a Rhode Island corporation that operated video stores in Rhode Island, Maine, Massachusetts and Connecticut. He stated to Ms. Quinn that the defendant did not have any stores in New York and was interested in entering the New York market. At the time that these representations were made by Mr. Lesieur, the defendant operated two stores in New York, one on River Street in Troy and the other on Hamilton Street in Poughkeepsie. Mr. Lesieur knew that such stores were being operated by the defendant at that time. On September 17, 1992, Mr. Lesieur met Ms. Quinn at the plaintiffs store on South Road. During that meeting, Ms. Quinn made reference to the competition that the defendant would experience from a nearby Blockbuster Video store and a nearby *145Video Treats store. In response to that reference, Mr. Lesieur stated that the defendant did not compete with Blockbuster Video or Video Treats because the defendant sold videos and did not rent them as did Blockbuster Video and Video Treats. Ms. Quinn then asked Mr. Lesieur if his company was like Sun Coast Video, a video store chain which sold videos and which catered to the children’s market, and Mr. Lesieur said yes. Mr. Lesieur’s acknowledgment that there was a similarity between defendant’s stores and Sun Coast Video was false because there was no similarity in the products sold by defendant and the products sold by Sun Coast and Mr. Lesieur knew that any such comparison was inaccurate. On September 22, 1992, Mr. Lesieur sent a written proposal to Ms. Quinn in which defendant offered to rent the vacant store from the plaintiff. The written proposal stated that the defendant operated 22 video stores but did not specify the States in which it operated or further identify the nature of the videos marketed by the defendant or indicate that defendant marketed any other merchandise. On that same date defendant sent Ms. Quinn its financial statement. In a note in the financial statement the defendant’s business was described as "the retail sale of videos and magazines to the general public”. Prior to and during the time that Mr. Lesieur was negotiating with Ms. Quinn for rental of the store, only a small part of defendant’s business consisted of sales of periodicals and videos intended for the general public. The bulk of defendant’s business consisted of the sale of videos that could be described variously as x-rated, adult, or pornographic; the sale of sexual aids and paraphernalia; the sale of x-rated, adult, or pornographic magazines; and the operation of video booths showing x-rated, adult, or pornographic videos. Minors were not permitted to enter any of defendant’s stores at that time. Thus, during the course of the negotiations between Mr. Lesieur and Ms. Quinn, when Mr. Lesieur described the defendant’s business as the operation of video stores, that characterization was false and Mr. Lesieur knew it to be false. At no time prior to the execution of the lease between the defendant and the plaintiff did Ms. Quinn or David Sorbaro or anyone else on behalf of the plaintiff conduct any investigation of the defendant other than the review of the defendant’s financial statement. They relied solely upon the oral statements made by Mr. Lesieur and the defendant’s financial statement that was presented to them by Mr. Lesieur in determin*146ing the nature of defendant’s business and executing the lease with the defendant. In the course of numerous other lease negotiations prior to the negotiation with the defendant, neither Ms. Quinn nor Mr. Sorbaro had ever conducted any investigations to confirm the nature of the business being done by any other prospective tenants, other than the review of financial statements presented to them by such other prospective tenants. Dennis Lesieur had limited experience in negotiating leases for the defendant between 1989 and 1992. He had negotiated approximately four leases in that time. On several occasions he had specified the products that defendant sold and the leases were never signed. Thereafter it was Mr. Lesieur’s policy not to disclose the specific nature of the defendant’s business. This was his policy in the negotiations with the plaintiff. At the time that the defendant was negotiating with the plaintiff to lease plaintiff’s store and continuously thereafter, defendant intended to operate video booths in the plaintiff’s store but intentionally failed to disclose this fact to the plaintiff. During mid-October 1992, a written lease prepared by the plaintiff’s attorney pertaining to the vacant store was executed by the defendant and the plaintiff. The lease permitted the defendant to use the plaintiff’s premises for retail purposes. The lease required the defendant to comply with all local ordinances and laws. The lease also required the defendant to perform interior construction to make the store ready for its occupancy. The defendant gave the plaintiff two months’ rent of $7,975 as a security deposit and the first month’s rent of $3,987.50. Defendant’s employees commenced construction of lighting soffits for the interior of the store and retained a contractor to install an interior partition wall in the store. In early December 1992, the defendant’s construction employees and its independent contractor worked at the store. During this time period the defendant’s independent contractor erected the interior partition wall and the defendant’s employees began installing the soffits that had been constructed at the defendant’s workshop and installed some lighting fixtures. During the same period of time, December 1, 1992, through December 7, 1992, a separate contractor, Charles Murdock, was working for the plaintiff and remodeling the bathroom in the premises to make it handicapped equipped. While Mr. Mur*147dock was working in the premises, he had discussions with one or more of the defendant’s employees. One of them advised him that after the premises were opened for business the defendant intended to install video viewing booths which customers would use to view erotic or x-rated videos and that this was a major portion of the defendant’s business. The same employee of the defendant also advised Mr. Murdock that the defendant already operated a store in Poughkeepsie, called the Hamilton Book and Video Store, which sold x-rated videos and magazines and also had x-rated video booths. When Mr. Murdock received the foregoing information he relayed it to David Sorbaro, the plaintiffs managing partner. Mr. Sorbaro then called his attorney, George Barnett, and Mr. Barnett telephoned Mr. Lesieur. During the course of the telephone conversation between Mr. Barnett and Mr. Lesieur, Mr. Barnett asked Mr. Lesieur if the defendant intended to install x-rated video booths in the plaintiffs store and Mr. Lesieur stated that it did not so intend. Mr. Barnett also asked ■ Mr. Lesieur whether the defendant owned the Hamilton Book and Video Store in Poughkeepsie and Mr. Lesieur declined to answer. At the end of business on December 7, 1992, pursuant to the instructions of David Sorbaro, Mr. Murdock changed the locks on plaintiffs store and wired the front door of the store shut. At the time that the defendant’s construction employees left the plaintiffs store at the end of business on December 7, 1992, they removed all of their tools from the premises, but left the partially installed soffits in place and also left some sheets of wall board, some ceiling tiles and some electric lights. Defendant was permitted to reenter the plaintiffs store on March 15, 1994, after plaintiff rented one half of the store to another tenant. On that date, the defendant was permitted to remove the soffits and the materials that had been left behind by the defendant and all of such materials were removed by the defendant. In 1992 the defendant operated 22 stores, two of which were in New York State. Each store derived at least two thirds of its income from the sale of pornographic products. At least 10% of sales were in pornographic paraphernalia. Many of the stores contained viewing booths which allowed customers to enter a private booth for the purpose of viewing pornographic, erotic and sexually explicit videos. It is agreed that the premises are no longer suitable for the defendant’s business purposes. *148CONCLUSIONS OF LAW The initial issue for resolution by this court is whether on the facts of this case the defendant tenant fraudulently misrepresented by affirmative statement and silence the nature of the business it intended to conduct on the plaintiff landlord’s premises. To sustain a cause of action for fraud, there must be a representation of fact which is either untrue and known to be untrue or recklessly made, and which is offered to deceive the other party and to induce them to act upon it, causing injury (Jo Ann Homes at Bellmore v Dworetz, 25 NY2d 112, 119; Brown v Lockwood, 76 AD2d 721, 730-731). The defendant’s agent, Dennis Lesieur, had a policy of not telling prospective landlords the specific nature of the defendant’s business since on previous occasions the prospective landlords had refused to consummate leaseholds. This state of mind, coupled with the facts that Lesieur had disclosed, such as the comparison to Sun Coast Video and the description of its business as the retail sale of videos and magazines to the general public, and the facts that Lesieur had not disclosed, such as the sale of sexually explicit paraphernalia, require the court to conclude that the defendant did intentionally misrepresent material facts which induced the plaintiff to enter into this lease. The law is clear that fraud in the inducement is grounds for rescission of the agreement (e.g., Taylor & Jennings v Bellino Bros. Constr. Co., 106 AD2d 779, 780). Fraud in the inducement must be proven by a standard of clear and convincing evidence rather than only a fair preponderance of the credible evidence (see, Mix v Neff, 99 AD2d 180, 183). The court finds that the plaintiff has sustained its burden of proof and is entitled to rescission of this lease. While it is not necessary to the determination herein, this court further finds that the sexually explicit nature of a pornographic video and paraphernalia retail store creates an affirmative duty on the part of the tenant to disclose the specific nature of the proposed use to the prospective landlord. It is recognized that sexually explicit material enjoys the protection of constitutional free speech (US Const 1st, 14th Amends; NY Const, art I, § 8; see, People ex rel. Arcara v Cloud Books, 68 NY2d 553). It must also be recognized that many individuals consider pornography and sexually explicit material to be personally abhorrent, offensive, demeaning, and violative of their personal, social or religious values. It should also *149be recognized that a store such as that operated by this defendant may have an adverse economic impact on adjacent properties to that owned by the landlord (see generally, Matter of Town of lslip v Caviglia, 73 NY2d 544, 551). It is established law that a municipality may not legislate a blanket prohibition based on content of the material to be sold (Matter of Town of Islip v Caviglia, supra, at 554), but the issues in this litigation deal with the respective rights of private citizens. This is the distinction which makes this a ruling of first impression. There is no discernable public interest which would require the courts to foist on a landlord a pornographic use of his or her private property by virtue of the silence of the prospective tenant. Prospective landlords, therefore, should have the right to make an informed decision regarding such a use of his or her property, whether that decision is motivated by personal values, societal values or economics. Clearly this requirement of disclosure may have application to other objectionable, albeit legal, uses between a landlord and tenant. The sale of Nazi memorabilia, gun stores and unorthodox houses of worship are some examples of uses which could reasonably be expected to violate the personal or societal values of a property owner and impose an equitable duty on a prospective tenant of complete and forthright disclosure. For the reasons stated this court finds that a tenant who intends to use a rental space for the sale of sexually explicit material has an affirmative duty to disclose such a use to the landlord. Failure to do so entitles the landlord to rescission of the lease. DAMAGES The plaintiff’s claims for punitive or compensable damages are denied. There has been an insufficient showing that the plaintiff has suffered any compensatory damages as a result of the defendant’s fraud. Punitive damages are not warranted because it does not appear that the fraud was upon the general public (Diker v Cathray Constr. Corp., 158 AD2d 657, 658). The proof has shown that defendant paid to the plaintiff two months’ rent as security and one month’s rent totaling $11,962.50. The defendant is awarded this amount as actual damages. *150The defendant’s claim for conversion of tools and building materials after it was denied access to the premises is denied. The proof adduced at the trial is insufficient to support an award of damages for conversion. | opinion_xml_harvard | 2,477 | 2022-02-05 21:07:56.196838+00 | 020lead | t | f | 6,342,956 | Beisner | null | U | f | Published | 0 | Sorbaro Co. v. Capital Video Corp. | null | Sorbaro Company v. Capital Video Corporation | null | null | null | null | null | null | null | null | null | 62,974,138 | null | 0 | nysupct | ST | t | New York Supreme Court | New York Supreme Court |
1,444,649 | 424 F.Supp. 631 (1976) UNITED STATES of America, Plaintiff, v. Stamm F. JOHNSON, Defendant. No. CR 75-265. United States District Court, D. Oregon. October 12, 1976. Sidney I. Lezak, U. S. Atty., Charles H. Turner, Asst. U. S. Atty., D. Or., Portland, Or., for plaintiff. Phil M. Kelley of Steiner & Kelley, Laurence L. Janke, Portland, Or., for defendant. OPINION SKOPIL, District Judge: BACKGROUND This is a prosecution under 26 U.S.C. § 7212 (b) for forcible rescue of property seized by the Internal Revenue Service ("IRS"). Defendant, Stamm F. Johnson, concedes that he violated the statute. He asserts as his defense the unconstitutionality of the underlying IRS seizure, which was accomplished pursuant to 26 U.S.C. § 6331 . The defendant is a member of the Oregon State Bar. He specializes in the area of creditors' remedies and is active in the Oregon State Bar Committee on Debtor-Creditor Rights. He participated in the drafting of Oregon legislation on creditors' rights and civil procedure. I am satisfied that Mr. *632 Johnson committed the acts in issue in good faith and for the sole purpose of testing the validity of IRS summary seizure powers. As he has conceded, his obvious sincerity is not properly a factor which I may consider in ruling on his constitutional defense. By stipulation of the parties, this case was tried to the court on proposed witness statements and exhibits. Each side had the opportunity to object to the proposed testimony and to cross-examine witnesses. The defendant filed his objections to parts of the government's proposed testimony and to some of its exhibits. In view of Mr. Johnson's repeated and voluntary admissions that he committed the acts alleged in the indictment, it was not necessary for me to consider the evidence to which Mr. Johnson objects in order to find that he committed each of the elements of a violation of 26 U.S.C. § 7121 (b). I sustain the objections. FACTS The following facts led up to the indictment. In 1975 Mr. Johnson and his wife were the sole shareholders of National Credit Bureau, Inc. ("NCB"), a Portland collection agency. While a director and officer of the corporation, Mr. Johnson did not take active part in the day-to-day management of the business. On April 4, 1975, because of unpaid taxes owed by the corporation, agents of the IRS levied upon business equipment, including desks and typewriters located at the NCB office. The agents accomplished this levy or seizure by installing locks on the office entrances and by attaching warning notices [1] to the windows. No tags or warnings were attached to the individual items of personal property inside the office. The agents did not intend to seize the real estate. Mr. Johnson learned of the levy late in the afternoon of April 4, a Friday. The next day he went to the NCB office and observed the warning notice and locks. He proceeded to remove the locks, gain entrance to the premises, and remove the notices. He had a locksmith install new locks on the building. About ten days later NCB's tax arrearage was paid in full, and the IRS formally released its levy. As stated in defendant's brief, "Now charged with violation of 26 U.S.C. § 7212 (b) [2] , Mr. Johnson freely acknowledges that he violated the letter of that statute with full knowledge of the possible consequences." CONSTITUTIONALITY OF SUMMARY SEIZURE The defense is that the statutory authority for the seizure of the NCB property, 26 U.S.C. § 6331 [3] , violates due process in that *633 it permits the IRS to levy upon property of delinquent taxpayers without prior notice and hearing. The Supreme Court upheld the summary seizure power of the IRS in Phillips v. Commissioner, 283 U.S. 589 , 51 S.Ct. 82 , 75 L.Ed. 738 (1931). The Court has never questioned the continued vitality of that decision. Defendant argues, however, that principles of due process announced in recent cases limiting the availability of prejudgment attachment and garnishment by private creditors should be extended to the tax collector. Sniadach v. Family Finance, 395 U.S. 337 , 89 S.Ct. 1820 , 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67 , 92 S.Ct. 1983 , 32 L.Ed.2d 556 (1972); North Georgia Finishing Company v. Di-Chem, 419 U.S. 601 , 95 S.Ct. 719 , 42 L.Ed.2d 751 (1975); Cf. Mitchell v. W. T. Grant, 416 U.S. 600 , 94 S.Ct. 1895 , 40 L.Ed.2d 406 (1974). The defendant acknowledges that Fuentes specifically approves the "summary seizure of property to collect the internal revenue of the United States". 407 U.S. at 91-92 , 92 S.Ct. at 2000 . He argues that the over-all policy of the cases cited invalidates the IRS seizure involved here. I disagree. I decline to accept defendant's invitation to act against the overwhelming authority which upholds summary execution on the property of delinquent taxpayers. It is undisputed that due process requires notice and opportunity for a hearing before a person is deprived of a property right "except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event." Boddie v. Connecticut, 401 U.S. 371 , 379, 91 S.Ct. 780 , 786, 28 L.Ed.2d 113 (1971). Notwithstanding defendant's detailed analysis of the cases, the courts unanimously agree that collection of the revenues upon which our government depends is such an "extraordinary situation". Phillips v. Commissioner, supra ; Fuentes v. Shevin, supra ; Tavares v. United States, 491 F.2d 725 (9th Cir. 1974); United States v. Heck, 499 F.2d 778 (9th Cir. 1974). In his closing argument, Mr. Johnson stated that the remedy of distraint did not extend at common law to the collection of income taxes. He asserted that 26 U.S.C. § 6331 was originally enacted during Reconstruction, when the federal government presumably had an exceptionally strong interest in tax collection. While these points are of interest from an historical point of view, they have no bearing on the issue which is presently before me. I recognize Mr. Johnson's sincerity, good faith, and favorable reputation as a member of the bar. I have no choice but to find him guilty as charged in the indictment. This opinion constitutes special findings of fact in accordance with Fed.R.Crim.P. 23(c). NOTES [1] The warning notices read as follows: " WARNING "UNITED STATES GOVERNMENT SEIZURE This property has been seized for nonpayment of internal revenue taxes, by virtue of levy issued by the District Director of Internal Revenue. All persons are warned not to remove or tamper with the property, in any manner, under severe penalty of the law." [2] 26 U.S.C. § 7212 (b) provides in part: "Any person who forcibly rescues or causes to be rescued any property after it shall have been seized under this title, or shall attempt or endeavor so to do, shall [suffer the penalties provided]." [3] 26 U.S.C. § 6331 provides in part: "(a) If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary or his delegate to collect such tax ... by levy upon all property ... belonging to such person . . .. If the Secretary or his delegate makes a finding that the collection of such tax is in jeopardy, notice and demand for immediate payment of such tax may be made by the Secretary or his delegate and, upon failure or refusal to pay such tax, collection thereof by levy shall be lawful without regard to the 10-day period provided in this section. "(b) The term `levy' as used in this title includes the power of distraint and seizure by any means...." On March 3, 1975, the IRS mailed notices showing the taxes due to NCB. Mr. Johnson suggests that an employee of NCB intentionally failed to notify him of the tax liability. Under this statute, of course, NCB is the corporate "person" entitled to notice and demand. | opinion_html_with_citations | 1,331 | 2013-10-30 06:11:30.586673+00 | 010combined | f | f | 1,444,649 | Skopil | null | LU | f | Published | 1 | United States v. Johnson | null | UNITED STATES of America, Plaintiff, v. Stamm F. JOHNSON, Defendant | null | null | <parties id="b717-13">
UNITED STATES of America, Plaintiff, v. Stamm F. JOHNSON, Defendant.
</parties><br><docketnumber id="b717-15">
No. CR 75-265.
</docketnumber><br><court id="b717-16">
United States District Court, D. Oregon.
</court><br><decisiondate id="b717-18">
Oct. 12, 1976.
</decisiondate><br><attorneys id="b717-26">
Sidney I. Lezak, U. S. Atty., Charles H. Turner, Asst. U. S. Atty., D. Or., Portland, Or., for plaintiff.
</attorneys><br><attorneys id="b717-27">
Phil M. Kelley of Steiner & Kelley, Laurence L. Janke, Portland, Or., for defendant.
</attorneys> | null | null | null | null | null | null | 1,002,538 | CR 75-265 | 1 | ord | FD | t | D. Oregon | District Court, D. Oregon |
5,671,539 | *129Order, Supreme Court, New York County (Edward Lehner, J.), entered December 17, 2002, which granted defendant’s motion for summary judgment dismissing the complaint, and denied plaintiffs cross motion for summary judgment, unanimously affirmed, without costs. Notwithstanding the litany of allegations of negligence in this legal malpractice action, plaintiff has produced no evidence of the sine qua non of his fraudulent conveyance case, namely, that his wife purchased the subject property in 1973 with money plaintiff had received only months earlier in settlement of a personal injury action. According to plaintiff, his wife withdrew that money from their joint account and used it to acquire the property from her brother. Sixteen years later, his wife conveyed the property to her brother’s wife. Plaintiff claims that defendant negligently failed to expose his former wife’s use of marital funds to acquire the property in the first place. But this claim is undermined by plaintiffs own inability, even now, to offer any documentary evidence that she used marital funds to acquire that property in 1973. What we have is mere speculation of a loss resulting from an attorney’s alleged omissions, which is insufficient to sustain a claim for legal malpractice (Luniewski v Zeitlin, 188 AD2d 642, 643 [1992]). As to the claim for breach of the retainer agreement, even though plaintiff received only minimal notice of his attorney’s application for withdrawal, which followed plaintiffs threat to sue for malpractice, as the court found, plaintiff explicitly consented to the withdrawal. At the time of that acquiescence, plaintiff expressed interest in settling the divorce action, which he did six months later. Thus, even if defendant had breached the retainer agreement, plaintiff has failed to demonstrate that he incurred any damages as a result. Although the court did not address plaintiffs Judiciary Law § 487 claim for deceit, it is apparent, from a search of the record, that defendant’s alleged violation of the statute did not amount to a chronic or extreme pattern of legal delinquency warranting civil relief and the imposition of treble damages (see Schindler v Issler & Schrage, 262 AD2d 226, 228 [1999], lv dismissed 94 NY2d 791 [1999]). Even if damages were an appropriate recourse for violation of the Code of Professional Responsibility, plaintiff has nonetheless failed to demonstrate that he incurred any damages from his attorney’s alleged deceit. We have considered plaintiffs remaining claims and find them to be without merit. Concur—Mazzarelli, J.P., Saxe, Ellerin and Williams, JJ. | opinion_xml_harvard | 406 | 2022-01-12 14:14:20.821795+00 | 020lead | t | f | 5,816,003 | null | null | U | f | Published | 0 | Markard v. Bloom | Markard | Rudy Markard, Also Known as Rudolf Markard v. Lawrence H. Bloom | null | null | null | null | null | null | null | null | null | 62,173,688 | 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 |
8,309,687 | Gresham, D. J. The petitioner, Henry I. Bruning, by this proceeding seeks to recover damages for injuries sustained in coupling, cars at North Vernon, Indiana, while in the service of the receiver. The petitioner and others, on the fifth day of January, 1880, were making up a freight train at this point to go south over the Louisville branch of the Ohio, etc., Railroad Company. He was assisting as brakeman in switching and coupling, and finally ran along with the train as it backed up to a coal car, and hurriedly stepped in between this car and the rear car of the train, when they were three or four feet apart, to make the coupling. Instead of meeting or bumping together, as they should have done, the draw-bars passed each other, and allowed the ends of the cars to come together, or so near together as to seriously injure the petitioner. The strip which supported the draw-bar of the coal car and hold it up had become unbolted at one end, the nut being missing, and the draw-bar was thus allowed to drop far enough below its proper position to miss the draw-bar of the forward car and pass under it. There was some evidence tending to show that the “dead-wood,” which is a block bolted on the end of the car, above the *278draw-bar, to assist in keeping the ears from coming together, was imperfect, it being worn away as much as a few inches. If the coal car had not been out of repair the draw-bars would have met or bumped instead of passing, and the coupling would have been made without injury to the petitioner. This coal car, which belonged to the company and had been in use for nine years, was, it appears from the evidence, brought from Washington, Indiana, loaded with coal, the evening or the night before the accident. The car inspector at Washington testified that he had inspected all cars on leaving that place the day before the accident, and none of them, so far as he observed, were out of repair. And three of the four car inspectors at Seymour testified that they had inspected all trains passing there from the west the same day and the night of that day, two performing the labor together during the day, and the third alone at night, and that the cars all seemed to be in proper condition. ■ There were no car inspectors at North Yernon at this time, but one appears to have been appointed for that place some months later. This appointment was made, however, it is claimed for the receiver, on account of the great increase of business at this point after the accident. There is no evidence that the coal car, or any other ears, were inspected at North Yernon. The petitioner testified that he did not notice the condition of the coal car until he ran in and took hold of the link to make the coupling, and that he did not discover his peril until it was too late to escape. He was caught between the ends of the cars when they came together, and seriously injured in his right side and chest. The physician who was called in after the accident, and who treated the petitioner for some time afterwards, testified that he found a depression of at least two inches on the right side, the ribs from the fifth down, on that side, being forced in that far; that he did not succeed by,manipulation and bandaging in entirely removing this depression; that the right lung and the membrane surrounding it were seriously injured; that some months after the accident he thought, on examination, that he found an accumulation of pus in the lower part of the right lung, corresponding to the place of injury, and tubercular deposits in the top of this lung; that the petitioner was not able to work, and the chances were that he never would be. During the year prior to the accident the petitioner had an attack of lung fever, from which he seemed to recover, and again went to work. He was a man of average health and strength, and there was *279no evidence that he inherited any tendency to lung disease. Nine or ten weeks after receiving the injury he undertook to resume work on the road, but owing to his feeble condition he was compelled to rest at frequent intervals, sometimes for a week or longer. At the time his testimony was taken, which was two years or more after the accident, he was unable to work. It is not denied that his injuries were serious, very painful, and, perhaps, permanent. It is urged for the receiver that the testimony failed to show want of proper care on his part, or that of his managing agents; that if any carelessness was shown it was the carelessness of the car inspectors, who should have discovered the damaged condition of the car before the accident, and ordered it into the shops for repairs; that the petitioner was compensated by his wages for his services, and all risks incident to his employment, including the carelessness of the car inspectors, who were liis fellow-servants; and, finally, that the petitioner, by his own negligence, contributed to his injury by running in between the cars to make the coupling without using his eyes and discovering in time the dangerous condition of the coal car. It is 100 miles from Washington, where the coal car was loaded, to North Vernon, and from Seymour to the same place the distance is only 15 miles. It is not denied that the coal car was out of repair and unfit for use at the time of the accident, and in view of its then condition it is probable that the defects already described existed when the car passed Seymour, and even when it was loaded at Washington. These defects, when tiie car was detached, were plainly visible on examination, but when it was coupled up in a train and the draw-bar thus somewhat held in position, they were more liable to escape observation. But whatever the condition of this car may have been at Washington and Seymour, trains were made up at North Vernon, where the defective car was switched off on a side track to go south over the Louisville branch, and if proper care had been used at this point its damaged condition would have been discovered, and it would have been condemned for repairs instead of having been ordered into the train as it was. It is not the law in the federal courts, nor is it believed to be the law in all of the state courts, that the master is relieved from responsibility in all cases in which a servant is injured by the negligence of a fellow-servant. The master’s immunity is limited to cases where the servants are engaged in the same common employment; that is to say, in the same department of duty. Such immunity does *280not extend to cases where the servants are engaged in departments essentially foreign to each other. A servant cannot be held to have contemplated, in the adjustment of his wages, those dangers which arise from the carelessness of fellow-servants, without any reference whatever to the nature of their employment or duties. Hough v. Texas, etc., R. Co. 100 U. S. 213; Indianapolis, etc., R. Co. v. Morganstein, 15 Chi. Leg. News. But, without further discussion of the question of the master’s immunity, I prefer forest the decision on other ground. It is his duty to furnish his employes with proper machinery or instrumentalities for their use in the work assigned them, and to see to it that the same are kept in a reasonably-safe condition, or in reasonable repair. He may intrust this duty to others, but he cannot by so doing escape the responsibility for its negligent non-performance. The acts of his agents in this regard are his acts; their negligence is his negligence. This rule applies to individuals, and there is no good reason for exempting railroad and other corporations from its operation. It is true that corporations can act only by their agents, but that is no reason for not holding them to the same personal responsibility as natural persons. Conduct which Amounts to personal negligence as against an individual should and does amount to the same thing against a corporation acting by its proper officers or agents. Railroad companies are bound to use due care in seeing that their cars and other rolling stock are maintained in a reasonably-safe condition; and when an.employe, — a brakeman, for instance, — in the proper discharge of his duty, is injured from a failure on the part of the company to perform this personal duty, it is liable. Houghs. Texas, etc., R. Co. supra; Railroad Co. v. Fort, 17 Wall. 557; Dillon v. Union Pac. R. Co. 3 Dill. 319; Ford v. Railroad Co. 110 Mass. 241; Gibson v. Pac. R. Co. 46 Mo. 163. The master is bound to protect the servant, not against all risks, but against risks which could be avoided by the exercise of reasonable care on the part of the master. The brakeman’s employment exposes him to constant peril under the most favorable conditions. He is expected and required to act with dispatch in coupling and uncoupling cars, and when he is negligently required by the proper officers or agents to handle ears out of repair, unfit for use and dangerous, and in doing so is injured, perhaps for life, without fault on his part, he should, in justice, have a remedy against his employer. This road and all its possessions were in the hands of a receiver, who was operating it at the time of the accident. He, of course, sus-*281famed to the petitioner the relation of master, and the neglect of his proper agent or agents to condemn the coal car and keep it out of use until repaired was his neglect, for which he is liable. It does not appear from the evidence that the petitioner knew the coal car was out of repair when he ran in, as he was accustomed to do, and as brakemen usually do, to make the coupling, or that, without stopping and looking before running in, he might have seen that it was unfit for use. He testified that he discovered for the first time when he was between the cars, and when it 'was too late to escape, that the draw-bars would not meet. Knowing that promptness in the discharge of his duties not only recommended him to his employer, but that it was required of him, the petitioner had a right to assume, without inspection, as he no doubt did, that the cars he was required to couple were in a proper state of repair for handling. It cannot be said from the evidence that the petitioner acted recklessly, or that he failed to use due care for his own preservation, and thus contributed to the injury. Ho earned $45 a month at his business before the accident; he is now 31 years old, and he seems to have been industrious. His injuries were such that he is not expected to recover. It is fair to assume that he will never be able to perform active labor. I allow him damages in the sum of §4,000, including medicines, medical and board bills, and expenses of nursing. See McMahon v. Henning, 3 Fed. Rep. 353; Ross v. Chicago, M. & St. P. R. Co. 8 Fed. Rep. 544; Gravelle v. Minneapolis & St. L. R. Co. 11 Fed. Rep. 569; Miller v. Union Pac. R. Co. 12 Fed. Rep. 600; Dunmead v. Amer. M. & S. Co. 12 Fed. Rep. 847. | opinion_xml_harvard | 1,973 | 2022-10-17 13:46:38.710632+00 | 020lead | t | f | 8,341,280 | Gresham | null | U | f | Published | 0 | King v. Ohio, etc., R. Co. | King | King v. Ohio, Etc., R. Co. | null | null | null | <p>1. Master and Servant — Negligence oe Fellow-Servant.</p> <p>A master is not relieved from responsibility in all cases when a servant is injured by the negligence of a fellow-servant, but only where the servants are engaged in the same common employment; that is, in the same department of duty, not in departments essentially foreign to each other.</p> <p>2. Same — Liability for Injury Resulting prom Defect in Oar.</p> <p>Railroad companies are bound to use due oarc in seeing that their cars and other rolling stock are maintained in a reasonably-safe condition ; and when an employe, — a brakeman, for instance, — in the proper discharge of his duty, is injured from a failure on the part of the company to perform, this personal duty, it is liable.</p> | null | null | null | null | null | 65,519,754 | null | 0 | circtdin | F | f | U.S. Circuit Court for the District of Indiana | U.S. Circuit Court for the District of Indiana |
3,769,534 | The Ohio Unemployment Compensation Board of Review ("board") has appealed from a decision of the Summit County Court of Common Pleas in which Leslie B. Benson was found to be entitled to unemployment compensation benefits. The board has argued that the court of common pleas incorrectly reversed the board's decision to deny benefits to Benson. This court reverses the judgment of the court of common pleas because it abused its discretion by holding that Benson was entitled to benefits. I A Benson formerly served as sales manager for a new and used truck dealership in Richfield, Ohio. He was discharged from that position on April 9, 1992. On April 16, 1992, he applied for unemployment compensation benefits. The Administrator denied his application and reaffirmed that denial following a request for reconsideration. Benson appealed to the board, and a hearing was held before a referee. The referee affirmed the decision of the Administrator, and Benson applied for further appeal. On January 5, 1993, the board disallowed Benson's application for further appeal. Benson timely appealed that decision to the Summit County Court of Common Pleas. On August 31, 1993, the court of common pleas entered judgment reversing the denial of Benson's claim and holding that he was entitled to benefits. The board timely appealed to this court. B Benson was hired by the truck dealership on December 9, 1990. According to Mr. Benson, an important factor in his decision to leave his previous employment to accept the position with the truck dealership was the fact that Ken Soltesz, *Page 34 who had previously served as the controller of the dealership's parent company, was in the process of buying the dealership and had just become its president. As president, he was Benson's immediate superior. In an evaluation conducted on June 26, 1991, Benson's performance was generally rated as "good" and, during January 1992, he received an $8,000 raise in his annual base salary. By April 1992, however, the transaction by which Soltesz was buying the dealership had fallen through. Soltesz was returned to his previous position and, on April 6, 1992, Arthur Gibbs was hired to serve as general manager of the dealership. As general manager, Gibbs was Benson's immediate supervisor. Benson and Gibbs did not get along as well as Benson and Soltesz apparently had. Conflict immediately arose between them, and, four days after Gibbs began his employment, he fired Benson. In testifying before the referee, Gibbs explained that his first problem with Benson occurred on his first day on the job. He told Benson that, "as a matter of policy[,] I did not want to finance any used truck buyers in the case where our company would have 100 percent recourse in the event of a repossession." According to Gibbs, Benson responded by saying that he (Mr. Benson) "may as well leave the job right now." Later that same day, Gibbs told Benson that the dealership's used trucks should be merchandized differently depending upon whether they were going to be sold wholesale or retail. Trucks that were going to be sold retail should be made "front row ready, meaning detailed, cleaned, painted, and mechanically inspected as necessary." According to Gibbs, Benson "responded negatively," saying that he never knew whether a particular truck would be sold wholesale or retail. Gibbs testified that, on his second day of employment, Benson "challenged my business judgment and authority in front of the sales staff and in front of the man whose position I was taking." According to Gibbs, at a sales meeting, Benson told him he was wrong to "only process credit applications if the salesman had a customer deposit and a signed buyer's order." For the remainder of the sales meeting, Benson was totally inattentive, appearing to be napping. Later that day, Benson asked Gibbs whether he would be interested in taking over the lease on his apartment, apparently implying that he knew he would soon be discharged and would no longer be living in the area. Gibbs testified that, on the third day of his employment, he, Benson, and Soltesz flew together to Washington, D.C. to attend a seminar. He stated that he overheard Benson tell Soltesz a story on the plane about someone who had sold trucks to a company owned by "Jews from New York." Gibbs, who was both Jewish and from New York, was offended. He further testified that Benson avoided him and Soltesz during the seminar. *Page 35 Gibbs testified that, on the fourth day of his employment, he overhead part of a loud argument between Benson and Soltesz. Soltesz informed Gibbs that Benson had been questioning Gibbs's "professional background." Later that day, Gibbs fired Benson. Upon being fired, Benson called Gibbs a number of names and accused him of being afraid that Benson would reveal things that he had learned about Gibbs's prior employment. The following day, Gibbs prepared a written statement in which he listed five reasons that he had fired Benson: "Number one — Not a team player. "Number two — He vociferously resisted taking direction from management. "Number three — He resisted and rejected new policies and procedures being installed by the new general manager. "Number four — He had an uncompliant personality. And "Number five — He was disruptive relative to the morale of the Sales Department." In his testimony before the referee, Benson acknowledged that most of the incidents described by Gibbs had occurred. He did, however, cast those incidents in a slightly different light. He maintained that much of the friction between the two men was caused by Gibbs attempting to give directions before he was oriented to his new position: "Well he uh, initially was supposed to observe for 30 days, and [Mr. Soltesz] brought him around to introduce him to everyone, and he immediately began giving critique and direction and just, as if he'd been there for a long time, and I immediately made the comment, and politely so, this is as one professional to another, `Why don't you just kind of learn your way around and the phone system and we'll talk later about where I've been for the last 17 months?' And then later on that day he interrupted conversations with my salesmen and myself and other department managers, making decisions when he didn't even know which hallway to turn down yet, so yes, sir, there was friction from day one." According to Benson, his disagreement with Gibbs in front of the sales staff regarding the processing of credit applications had occurred at a type of meeting in which free exchanges of ideas had traditionally occurred: "I objected. I don't feel it was a challenge. Umm, he made the statement and I said `Wrong,' and I said, you know, no, but I expressed my opinion. This meeting is an open air meeting. We have an open-door policy, and you know, there, it's not a meeting to chew out or to praise. It's a meeting to grow, to, to discover what we're doing well and wrong and to bring it up, and I said I did challenge it, as I did, as he has told the truth. I did challenge him on several points." *Page 36 When asked if his challenges had irritated Gibbs, Benson replied: "Uh, he didn't explain at that time." Benson stated that he did not recall telling Soltesz a story involving "Jews from New York." He acknowledged, however, that he was familiar with the story to which Gibbs referred and that he did not know if he had "made a reference" to it and that, "to be fair, maybe I did and maybe I didn't." He claimed, however, that, at the time he allegedly told the story, he did not know that Gibbs was Jewish. He denied that he purposely avoided Gibbs and Soltesz at the seminar. C As stated previously, the referee before whom Benson and Gibbs testified affirmed the decision of the Administrator to deny Benson unemployment benefits. In doing so, he found that Benson had been discharged for just cause: "The claimant had performed his duties as truck sales manager to the satisfaction of the employer for over a year and he resented taking directions and instructions from a new supervisor. It is considered the duty of an employee to accept and carry out directions and instructions from supervision. As a result of the claimant's failure to comply with directions and instructions from his supervisor, his further employment was not in the best interest of his employer." In reversing the decision of the Administrator, the court of common pleas stated that the referee's finding was not supported by the record: "The Referee found [Benson] was terminated with just [cause] `because of his failure to follow the directions and instructions from the general manager in the performance of his assigned work.' A review of the record does not support this conclusion. [Benson's] actions did not demonstrate an unreasonable disregard for his employer's interest. Nor does the record indicate [Benson] failed to follow any specific directions or instructions from the general manager." II The board's sole assignment of error is that the court of common pleas incorrectly reversed the board's decision to deny benefits to Benson. The standard to be applied by a common pleas court in an appeal from a decision of the board and the manners in which it may dispose of such an appeal are set forth in R.C. 4141.28 (O)(1): "If the court finds that the decision was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse and vacate such decision or it may modify such decision and enter final judgment in accordance with such modification; otherwise such court shall affirm such decision." *Page 37 An appellate court's review of a common pleas court's disposition of an appeal from the board is more limited. An appellate court may only reverse a decision of a common pleas court in such a case if the common pleas court abused its discretion. Angelkovski v. Buckeye Potato Chips Co. (1983), 11 Ohio App.3d 159 , 161 , 11 OBR 242, 243-244, 463 N.E.2d 1280 , 1282-1283 . R.C. 4141.29 (D) provides, in part, that an individual may not receive unemployment compensation benefits if he has been discharged from a position for "just cause": "(D) * * * [N]o individual may serve a waiting period or be paid benefits under the following conditions: "* * * "(2) For the duration of his unemployment if the administrator finds that: "* * * "(a) He * * * has been discharged for just cause in connection with his work * * *." In this case, the referee concluded that Benson had been discharged for just cause. The court of common pleas determined that the record before the referee did not support that conclusion. This court, however, cannot agree with the assessment of the record by the court of common pleas. A determination of the existence of just cause must be made on a case by case basis: "The term `just cause' has not been clearly defined in our case law. We are in agreement with one of our appellate courts that `[t]here is, of course, not a slide-rule definition of just cause. Essentially, each case must be considered upon its particular merits. Traditionally, just cause, in the statutory sense, is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act.'" Irvine v. Unemp. Comp. Bd. of Review (1985), 19 Ohio St.3d 15 , 17 , 19 OBR 12, 14, 482 N.E.2d 587 , 589 , quoting Peyton v. Sun T.V. (1975), 44 Ohio App.2d 10 , 12 , 73 O.O.2d 8 , 9, 335 N.E.2d 751 , 752 . That determination is primarily to be made by the trier of fact: "The determination of whether just cause exists necessarily depends upon the unique factual considerations of the particular case. Determination of purely factual questions is primarily within the province of the referee and the board." Id. Contrary to the apparent belief of the court of common pleas, a refusal to follow a direct instruction of a supervisor is not always a prerequisite to a finding of just cause. *Page 38 In this case, the referee, as trier of fact, determined that Benson had been discharged for just cause. There was evidence in the record that Benson had criticized Gibbs in front of other employees, had expressed the idea that he would soon be discharged as a fait accompli, and had taken actions that were apparently aimed at having his employer reconsider its decision to hire Gibbs. The determination by the board that Benson's employer had just cause to discharge him based upon that evidence was not "unlawful, unreasonable, or against the manifest weight of the evidence." The court of common pleas abused its discretion by substituting its judgment in place of the judgment of the board. Accordingly, the board's assignment of error is sustained. III The board's assignment of error is sustained. The judgment of the Summit County Court of Common Pleas is reversed, and the decision of the board denying benefits to Benson is reinstated. Judgment reversed. REECE, P.J., and QUILLIN, J., concur. | opinion_html_with_citations | 2,200 | 2016-07-06 07:22:37.71838+00 | 020lead | f | f | 4,014,253 | Dickinson, Quillin, Reece | null | ZU | f | Published | 0 | Benson v. Unemployment Compensation Board of Review | Benson | BENSON, Appellee, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellant | null | null | <parties data-order="0" data-type="parties" id="b64-4">
BENSON, Appellee, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellant.
</parties><br><p data-order="1" data-type="citation" id="b64-6">
[Cite as
<em>
Benson v. Unemp. Comp. Bd. of Review
</em>
(1995), 101 Ohio App.3d 32.]
</p><br><court data-order="2" data-type="court" id="b64-7">
Court of Appeals of Ohio, Ninth District, Summit County.
</court><br><docketnumber data-order="3" data-type="docketnumber" id="b64-9">
No. 16478.
</docketnumber><br><decisiondate data-order="4" data-type="decisiondate" id="b64-10">
Decided Feb. 8, 1995.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b65-5">
<span citation-index="1" class="star-pagination" label="33">
*33
</span>
<em>
Steven B. Chester,
</em>
for appellee.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b65-6">
<em>
Betty D. Montgomery,
</em>
Attorney General, and
<em>
James A. Barnes,
</em>
Assistant Attorney General, for appellant.
</attorneys> | null | Appeal from the Court of Common Pleas, Summit County. | null | null | null | null | 3,886,395 | No. 16478. | 0 | ohioctapp | SA | t | Ohio Court of Appeals | Ohio Court of Appeals |
5,686,161 | *304Judgment, Supreme Court, New York County (Carol Berk-man, J., at hearing; Leslie Crocker Snyder, J., at jury trial and sentence), rendered September 18, 2002, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4x/2 to 9 years, unanimously affirmed. The court properly denied defendant’s suppression motion. At the hearing, the arresting officer stated the very specific description that he had received by radio from the undercover officer, and testified that no one but defendant met that description. This was sufficient to enable the court to make a finding of probable cause, even though the witness never gave an express description of defendant’s appearance at the time of his arrest (see e.g. People v Soto, 260 AD2d 235 [1999], lv denied 93 NY2d 979 [1999]). The court properly denied defendant’s challenge for cause to a panelist who initially expressed an opinion that defendant should present a case. The court responded with an extensive charge on defendant’s freedom from any burden of proof, and the panelist gave his unequivocal assurance that he would follow that charge (see People v Johnson, 94 NY2d 600, 614 [2000]). The court’s use of an expanded jury box for voir dire did not violate CPL 270.15 (1) (a) or adversely affect defendant’s ability to select a jury (People v Association of Trade Waste Removers of Greater N.Y., 267 AD2d 137, 140 [1999], lv denied 94 NY2d 916 [2000]; People v Campbell, 259 AD2d 447 [1999], lv denied 93 NY2d 1015 [1999]; People v Camacho, 230 AD2d 604 [1996], affd 90 NY2d 558 [1997]). There is no evidence in the record to suggest that defendant was mentally incompetent to stand trial. We have considered and rejected the remaining claims raised in defendant’s pro se supplemental brief. Concur—Saxe, J.P., Nardelli, Williams, Gonzalez and Catterson, JJ. | opinion_xml_harvard | 316 | 2022-01-12 15:12:27.846666+00 | 020lead | t | f | 5,830,456 | null | null | U | f | Published | 0 | People v. Serrano | Serrano | The People of the State of New York v. Juan Serrano | null | null | null | null | null | null | null | null | null | 62,188,241 | 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 |
625,707 | [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 20, 2012 No. 11-10247 Non-Argument Calendar JOHN LEY CLERK D.C. Docket No. 0:09-cv-61159-WPD BEN-SHALOM YISRAEL, a.k.a. Donnie Jackson, llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant, versus SARGEANT GIL, SGT. JACKSON, DEPUTY RYAN, DEPUTY CAMPBELL, MEDICAL STAFF, et al., lllllllllllllllllllllllllllllllllllllll l Defendants - Appellees. Appeal from the United States District Court for the Southern District of Florida (March 20, 2012) Before CARNES, BARKETT and ANDERSON, Circuit Judges. PER CURIAM: Ben-Shalom Yisrael, proceeding pro se, appeals the district court’s grant of summary judgment in favor of the defendants on his 42 U.S.C. § 1983 claims. The district court concluded that Yisrael had not exhausted his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). I. Yisrael, a Florida state prisoner, filed a second amended complaint alleging constitutional violations under § 1983 by three correctional officers at the Broward County Jail.1 He asserted that one of the officers had ordered the other two to “assault and batter” him, which resulted in damage to his teeth and permanent disfigurement. The defendants answered, denied liability, and asserted as an affirmative defense that Yisrael had not exhausted his administrative remedies. The defendants then filed a motion for summary judgment. They asserted 1 The complaint also alleged constitutional violations by unknown medical and food service personnel. After review under 28 U.S.C. § 1915 , a magistrate judge recommended dismissal of claims against those defendants and the district court adopted that recommendation. Yisrael’s notice of appeal does not include that order. In any event, he does not argue those claims against those defendants, so they are abandoned. See Timson v. Sampson, 518 F.3d 870 , 874 (11th Cir. 2008) (holding that issues not briefed on appeal by a pro se litigant are deemed abandoned). 2 that the PLRA required Yisrael to exhaust all available administrative remedies or else his action was barred and must be dismissed. A magistrate judge issued a report recommending the district court grant the defendants’ motion for summary judgment based on lack of exhaustion of administrative remedies. Yisrael filed no objections to the report, and the district court adopted the report and after de novo review granted the defendants’ motion for summary judgment. This is Yisrael’s appeal. II. We review de novo a district court’s grant of summary judgment, drawing all inferences and reviewing all evidence in the light most favorable to the nonmoving party. Craig v. Floyd Cnty., Ga., 643 F.3d 1306 , 1309 (11th Cir. 2011). We also review de novo the district court’s interpretation and application of the PLRA. Johnson v. Meadows, 418 F.3d 1152 , 1155 (11th Cir. 2005). The PLRA provides that “[n]o action shall be brought with respect to conditions under [ 42 U.S.C. § 1983 ], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Failure to exhaust is fatal to the underlying claim, Johnson, 418 F.3d at 1158–59, and we have no discretion to waive the exhaustion requirement, Bryant v. Rich, 530 F.3d 3 1368, 1373 (11th Cir. 2008). The district court granted summary judgment to the defendants because it concluded that Yisrael had not exhausted his available administrative remedies as required by the PLRA when he filed his § 1983 claim. Even construing his pro se brief liberally, Yisrael does not argue that he did exhaust his remedies and has therefore abandoned that argument. See Timson v. Sampson, 518 F.3d 870 , 874 (11th Cir. 2008). The closest he gets to arguing this issue is a conclusory statement in his brief that the grievance records custodian lied in his affidavit when he said Yisrael had not filed a grievance. But conclusory allegations, particularly when they are unsworn, do not create genuine issues of material fact. See Ellis v. England, 432 F.3d 1321 , 1326 (11th Cir. 2005). The district court did not err in granting summary judgment to the defendants. AFFIRMED 4 | opinion_html_with_citations | 682 | 2012-03-20 14:08:28+00 | 010combined | f | f | 625,707 | Anderson, Barkett, Carnes, Per Curiam | null | CU | f | Unpublished | 0 | Ben-Shalom Yisrael v. Sargeant Gil | null | Ben-Shalom YISRAEL, A.K.A. Donnie Jackson, Plaintiff-Appellant, v. Sargeant GIL, Sgt. Jackson, Deputy Ryan, Deputy Campbell, Medical Staff, Et Al., Defendants-Appellees | <p>Non-Argument Calendar.</p> | null | <parties data-order="0" data-type="parties" id="b935-13">
Ben-Shalom YISRAEL, a.k.a. Donnie Jackson, Plaintiff-Appellant, v. Sargeant GIL, Sgt. Jackson, Deputy Ryan, Deputy Campbell, Medical Staff, et al., Defendants-Appellees.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b935-18">
No. 11-10247
</docketnumber><p data-order="2" data-type="summary" id="A2S">
Non-Argument Calendar.
</p><br><court data-order="3" data-type="court" id="b935-19">
United States Court of Appeals, Eleventh Circuit.
</court><br><decisiondate data-order="4" data-type="decisiondate" id="b935-20">
March 20, 2012.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b935-21">
Santa Rosa Cl Warden, Santa Rosa-Inmate Trust Fund, Milton, FL, for Plaintiff-Appellant.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b935-22">
Ben-Shalom Yisrael, Milton, FL, pro se.
</attorneys><br><attorneys data-order="7" data-type="attorneys" id="b935-23">
Pam Bondi, Office of the Attorney General, Robert D. Yates, Robert D. Yates, PA, Fort Lauderdale, FL, for Defendants-Appellees.
</attorneys><br><judges data-order="8" data-type="judges" id="b935-25">
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
</judges> | null | null | null | null | null | null | 846,638 | 11-10247 | 0 | ca11 | F | t | Eleventh Circuit | Court of Appeals for the Eleventh Circuit |
4,821,753 | PER CURIAM. Affirmed as to both of the orders on review: (1) the order of April 17, 2015, prohibiting the appellant from filing any further pro se proceedings, and (2) the order denying appellant’s motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800. | opinion_xml_harvard | 46 | 2021-08-22 07:17:19.014139+00 | 020lead | t | f | 5,009,536 | Fernandez, Logue, Salter | null | U | f | Published | 0 | Gonzalez-Diaz v. State | Gonzalez-Diaz | Juan GONZALEZ-DIAZ v. The STATE of Florida | null | null | null | null | null | null | null | null | null | 60,250,198 | No. 3D15-1212 | 0 | fladistctapp | SA | t | District Court of Appeal of Florida | District Court of Appeal of Florida |
5,702,250 | Halpern, J. This is an appeal from a decree of the Surrogate’s Court of Genesee County in a will construction proceeding which held that the surviving husband of the testatrix, Sarah M. Carlin, “ is the sole distributee of Sarah M. Carlin, deceased, and thereby entitled not only to the life use of the entire property of said deceased, but also to the gift and bequest of the remainder interest as well ’’. The will is very short. The donative provisions are as follows: ‘‘ First. After the payment of all my just debts, funeral and testamentary expenses, I give, devise and bequeath the use of all my property, real and personal, to my husband, Walter T. Carlin and give him the privilege in case of necessity to use so much of the principal as may be necessary for his care and support. “ Upon the death of my husband, I give, devise and bequeath such of my property as shall then remain to my distributees under the laws of the State of New York.” Analyzing these provisions, we find a clearly expressed testamentary scheme. The testatrix intended (1) to give her husband the income from her estate for life; (2) to give him a limited right to invade the principal “ in case of necessity ” to *283provide for his care and support; (3) to give so much of the principal as remained upon his death to the testatrix’ distributees. The will was executed on March 9, 1935. The testatrix died on October 13,1944. Both at the time of the execution of the will and at the time of the death of the testatrix, the testatrix’ husband was her closest relative under the statutory table of distribution and he would be her sole distributee, if her distributees were determined as of that time. The testatrix also left her surviving an uncle and cousins, the survivors of whom would be her distributees, if her distributees were determined as of the time of the death of her husband. The testatrix had never had any children and, at the time of the execution of the will, there was no reason to believe that she would have any before her death*; she had never had brothers or sisters and her parents were dead. Therefore, there was no possibility of anyone other than her husband being her distributee, if her distributees were determined as of the time of her death, provided only that he survived her. In this situation, the inference is inescapable that the testatrix must have intended that the remainder should go to the persons who would be her distributees at the time of the death of her husband rather than at her own death. In making a gift ‘ ‘ to my distributees ’ ’ of what remained ‘ ‘ upon the death of my husband ’ ’, she must have meant the persons who would be her nearest relatives as of that time. This is the only construction which is consistent with the testamentary scheme expressed in the will. If the will were construed as requiring the determination of the distributees as of the time of the death of the testatrix, the result produced Avould be a Avholly incongruous one. The testatrix’ husband would then be the sole distributee and he would take the remainder as well as the life estate. The life estate Avould merge with the remainder in fee and the husband would acquire at once a present fee simple absolute, notwithstanding the clearly expressed intention of the testatrix to limit his legal interest to that of a life tenant. Every aspect of the testamentary scheme would be frustrated if the will were construed as giving the husband a fee simple *284absolute. The provision giving the' husband a. limited power to use .the principal in case of necessity would be rendered meaningless by this construction. As the owner of .the fee, the husband could, of course,. expend the principal as he pleased. There would be then no need for a provision giving him a “ privilege ” to use the principal. Neither would the limitation on the privilege be effective. As the sole owner of the estate, the.husband would be in.a position to expend or dissipate the principal at once, without regard to the amount currently needed for his support, even though this left him without any income during the rest of his life. The salutary purpose of the testatrix to protect her husband against his own improvidence would thus be defeated. Furthermore, under the construction vesting the whole fee in the husband, he would be able to give or bequeath the property to relatives of his own or to strangers, thus defeating the testatrix’ expressed intention that whatever remained on his death should go to “ my distributees ’’. Presumably, by this term she meant her own relatives. It is significant that while the husband was given the power to invade the principal during his lifetime, to the extent necessary for his care and support, he was not given any power to appoint the principal by will or, in any other manner, to dispose of the unconsumed balance of the principal on his death. This restriction would likewise be nullified by construing the will as giving the husband the whole fee. • The gift of the remainder to the testatrix’ distributees is stated in the will in terms of á gift of whatever balance remains upon the husband’s death after he has used as much of the principal as . necessary. This formulation necessarily implies that the balance is to be paid over to some one other than the husband. Whether, there will.be any balance and, if so, how much, cannot be determined until the husband’s death. It is therefore reasonable to infer that, under the testamentary scheme, the distributees are also to be determined as of that time. .On the other hand, it is wholly unreasonable to attribute to the testatrix an intention to give to her husband a fee by the circuitous method of giving him a life estate by name and then giving him the remainder by describing him as her “ distributees ”. If the testatrix, had intended to, give her husband the whole fee, she could readily have so provided in a few simple words. There was no possible reason for the circumlocution. *285It is hornbook law that the touchstone in all will construction cases is the intention of the testator, as ascertained from the language of the will, read as a whole in the light of the circumstances existing at the time of its execution (Spencer v. Childs, 1 N Y 2d 103, 107). The testator’s intent “ must be gleaned * * * from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed ” (Matter of Fabbri, 2 N Y 2d 236, 240). “ The intention of the testatrix, so long as it is not contrary to some statute or to public policy, must govern ’ ’ (Salter v. Browne, 205 F. Y. 204, 212). Since the intention of the testatrix in this case is self-evident, the only question which need concern us is whether there is any rule of law Avhich prevents us from carrying out her intention. We can find no such rule in the authorities. It is true that there is a general rule to the effect that a testator’s distributees are ordinarily to be determined as of the time of his death but this rule ‘ ‘ is not a rule of substantive law, but a rule of interpretation, which has been adopted by the courts as one means of ascertaining the intention of the testator as expressed in the will; and it never should be used to defeat what, from the whole will, appears with reasonable certainty to have been his intention ” (57 Am. Jur., Wills, § 1279, p. 848). When a gift is made to persons “to be determined by a statute governing the intestate succession of property, then the statute is applied as of the death of the designated ancestor, unless an intent of the conveyor to have the statute applied as of some other date is found from additional language or circumstances ” (Bestatement, Property, § 308). In our case, the intent of the testatrix to postpone the determination of her distributees to the time of the death of the life tenant is readily inferable from the “ additional language ” of the will in this case and from the “ circumstances ” at the time of its execution. In a comment to the section quoted, the American Law Institute takes the view that where, a testator gives a life estate to a person who is presumptively his sole heir and then gives the remainder in terms to his “heirs ”, the incongruity which would result from determining the heirs as of the time of the testator’s death is of itself sufficient to warrant an inference of an intention to postpone the time of the determination of the testator’s heirs to the death of the life tenant. ‘‘ When A, by will, conveys property ‘ to B for life then to my heirs’ and B is the sole *286heir of A * * * the fact that * * * B is the sole heir of A at the death of A tends to establish that A intended his heirs to be ascertained as of the death of B, so that B is prevented from sharing in the limitation to the heirs of A” (Restatement, Property, § 308, comment k). To the same effect, see American Law of Property (vol. 5, § 22.60, pp. 441-443). As we have seen, in our case there is a much greater incongruity than that resulting from a construction which gives the remainder in fee to a sole heir who had theretofore been given a life estate. There is the additional incongruity which grows out of the fact that the testatrix had expressly given the life tenant a limited power to invade the principal to the extent necessary for his care and support; this provision is wholly incongruous with a construction which gives the remainder in fee to the life tenant. This basic incongruity can be escaped only by postponing the time of the determination of the testatrix’ heirs to the time of the death of the life tenant. In its recent decision in Matter of Sayre (1 A D 2d 475, affd. 2 N Y 2d 929), this court stressed incongruity as one of the “ sound reasons for determining the class of heirs of the testator, not at his death, but at the death of the life tenant ’’ (p. 479). The incongruity in our case is greater than that in the Sayre case. The court pointed out in the Sayre case that if the heirs were determined in that case at the death of the testator, the estate of one of the testator’s sisters would be allowed to “ qualify for a share as an heir ” even though by an earlier provision a gift to the sister in fee had failed because of her predecease, of the life tenant. Under this construction, the sister’s estate would only take a one-sixth share as an heir but even this incongruity was held to be sufficient to militate against the construction which produced it. The court went on to say that ‘‘ for all the testator knew when he drew his will, she could have been his only heir at his death, in which case she would have received a vested remainder in fee ”. “ Such an incongruity ’ ’, the court concluded, ‘ ‘ is evidence that the testator did not intend his heirs to be determined at the time of his death ” (p. 480). In our case, the testatrix knew at the time she drew her will that her husband was certain to be her sole distributee as of the time of her death, if he survived her and took the life estate. A wholly incongruous result would be produced by construing the will as giving him the remainder in fee, to take effect upon his death, as well as the life estate. This incongruity is much stronger evidence than the incongruity in the Sayre case that the “ testator [testatrix] did not intend *287his heirs [her distributees] to be determined at the time of his [her] death ” (p. 480). It is true that the decision in the Sayre case rested not only upon the element of incongruity but also upon the fact that the remainder to the heirs was “ secondary, contingent, and substitutional ” (p. 480). But it is evident from the portion of the opinion discussed above that the court recognized that complete incongruity of the type here present would of itself be sufficient to warrant an inference of an intention to postpone the time of the determination of the testator’s heirs to the time of the death of the life tenant. The substitutional nature of the gift was held to be significant in the Sayre case, along with the element of incongruity, only because it furnished a clue to the intention of the testator. The ascertainment of the testator’s intention was the objective of the court’s inquiry in that case, as it is in all will construction cases. The factors mentioned were relied upon only as evidence of intention. If the intention to postpone the time of the determination of distributees is found, upon a reading of the whole will, it will be given effect, even if the gift to the distributees is primary and not substitutional (Matter of Sayre, supra, p. 479, citing Matter of Wilson, 294 N. Y. 903, affg. 269 App. Div. 665, which, as to this point, reverses 11 Mise 2d 579). The significance of the substitutional and contingent nature of the gift to the testator’s heirs in the Sayre case was that it had the effect of postponing to the time of the life tenant’s death, the determination of whether the heirs would take at all. This, the court held, tended to support the view that the determination of the identity of the heirs should also be postponed to that time. The provision for the invasion of the principal for the husband’s benefit in the will in our case, leaving to the remaindermen only the balance of the principal remaining unexpended on the husband’s death, has a similar effect. It is uncertain whether anything will be left on the husband’s death. The gift of the remainder is therefore contingent in the sense that, as a practical matter, the effectiveness of the gift depends upon the husband’s not using up all the principal for his support during his lifetime. Therefore, under the reasoning of the Sayre case, the determination of the distributees who are to take should also await the end of the life estate. The fact that the gift of the remainder is, in form, a primary gift and not a substitutional gift is immaterial. Indeed, in a case such as ours, where the avoidance of an obvious incongruity is the most important consideration, the fact that the gift to the distributees is a primary gift, instead *288of a substitutional one, cuts against the respondent’s position rather than in his favor. If the gift to distributees had been a substitutional one, it might have been argued that there was in fact no incongruity because the testator may well have intended that the life tenant should take the remainder in- fee, in the event that his first choice, the gift to the primary remainderman, failed. ‘‘ If the gift were made ‘ to A for life, and, if B survives A, to B in fee, but if B does not survive A, then to the testator’s heirs ’ [it] is quite conceivable that the testator might have intended to give the remainder to A if B did not survive A, and therefore the fact that A is the sole heir of the testator at testator’s death does not require postponing the determination of heirs to a later date. If the limitations are simply ‘ to A for life, remainder to the testator’s heirs,’ it would be much more difficult to assume that the testator intended A to take the remainder ” (2 Simes & Smith on Law of Future Interests [2d ed.], § 735, p. 210; cf. Safford v. Kowalik, 278 App. Div. 604). Furthermore, in the case of some types of substitutional gifts, it is arguable that the testator expected that in all probability the intervening primary gift would take effect and thus avoid any incongruous result and he may not have cared much that in the remote event of the substitutional gift taking effect, there might be some incongruity. But, in our case, the gift of the remainder to distributees being a primary gift, there was no possibility of the incongruity being avoided by the taking effect of an intervening gift. The incongruity was plainly foreseeable and was certain to occur if the distributees were determined as of the death of the testator. There is much stronger reason for postponing the time of the determination of the distributees in such a case than there is in a case in which the occurrence of the incongruity is a mere possibility or a matter of chance (Restatement, Property, § 308, comment k, pp. 1716-1717). Further support for the conclusion here reached is found in Salter v. Drowne (205 N. Y. 204, 212); Stewart v. Giblett (235 App. Div. 589); Matter of Bishop (126 Misc. 722, affd. 219 App. Div. 711). Matter of Bump (234 N. Y. 60), principally relied upon by the respondent, will be- found, upon analysis, to support the appellants’ view rather than the respondent’s. While the court in that case reiterated the general rule that the testator’s heirs are ordinarily to be determined as of the date of his death, it recognized that that rule is not applicable “when a contrary intention appears” (p. 65). In the Bump case, there was a *289gift of a life estate to the testator’s wife with a remainder in fee to his daughter or her issue, if any, surviving the wife; if none, then a life estate to his sisters or the survivor of them, with a remainder in fee to the testator’s heirs. The daughter predeceased the wife, leaving no issue. The question was who was entitled to the remainder in fee. The court found no basis in the will in that case for inferring a contrary intent and hence applied the general rule. The estate of the daughter was held to be entitled to the remainder in fee. The court pointed out, however, that this. was not a completely incongruous result, since the daughter did not take as an heir the whole fee, which she would have taken if she had survived and had taken as a named devisee. “ There is first carved from it the life estate of the sisters and only when that is exhausted does the remainder take effect ” (p. 64). In another part of its opinion, the court indicated even more strongly that if the application of the general rule would have produced a complete incongruity of the type here involved, the court would have found that of itself a sufficient basis for inferring an intention contrary to the general rule. The Surrogate had chosen an intermediate course among the possible constructions of the will and had decided that the testator’s heirs should be determined as of the death of the testator’s wife, the primary life tenant. As of that time, the sisters were the testator’s heirs but the testator had already provided for a life estate for them and it would obviously be incongruous to give them the whole fee in the face of the testator’s express limitation of their interest to that of life tenants. The court therefore rejected the Surrogate’s construction. “Is it possible that he intended to designate them by the use of that word [heirs]; that in two succeeding clauses he first carefully provides for a life estate in their favor and then in addition gives them the fee? We think not ” (p. 64). The court thus indicated in the Bump case that it would not adopt a construction of the term ‘ ‘ heirs ’ ’ which would produce the incongruous result of giving the whole remainder to a person whom the testator had specifically limited to a life estate. Of course, as the incongruity is lessened in degree, the force of the reason for avoiding it diminishes (Restatement, Property, § 308, comment k, p. 1716). Thus, for example, if a life estate is devised to one of several heirs of the testator and the remainder is devised to the testator’s heirs generally, there is little reason to attribute to the testator an intention to postpone the determination of the class to the time of the life tenant’s death. There is little incongruity in allowing the life *290tenant to take a share of the remainder as one of the heirs of the testator, along with his life estate (United States Trust Co. v. Taylor, 193 App. Div. 153, affd. 232 N. Y. 609; 5 American Law of Property, § 22.60, p. 445). Similarly, even in a case dealing with a sole heir, if the life interest given to him is not an alienable legal life estate but is a life use under a spendthrift trust, it is arguable that there is not sufficient incongruity to require rejection of a construction giving him the remainder in fee. There is no merger of the equitable life use and the remainder; the life beneficiary cannot terminate the trust, even if he is the sole remainderman ; the trust will still serve its intended purpose. “ [T]he purpose of the testator to prevent B [the life beneficiary] from having control over the property during his lifetime is not defeated even if B is given the remainder interest ” (5 American Law of Property, § 22.60, p. 444; Matter of Roth, 234 App. Div. 474). In many of the cases dealing with a gift to heirs, next of kin or distributees, the provision is an end limitation, a sort of catch-all, following a complicated set of dispositions. In that type of case, it may be said that the testator had exhausted his primary purpose and was willing to let the law take its course, if all the preceding dispositions should fail (Matter of Bump, 234 N. Y. 60, 66, supra). If an incongruity should then result from the determination of the distributees as of the time of the testator’s death, it might well be held that the incongruity should be disregarded on the ground that the testator had had no particular intent in mind at all with respect to the end limitation. But, in this case, the will was a simple one. The gift of the remainder to the testatrix’ distributees was a part of her primary plan; it was not a catch-all expression adopted out of exhaustion of purpose or indifference, but a primary gift reflecting a specific intent in the mind of the testatrix as to the disposition of whatever remained of the principal on her husband’s death. In this situation, it must be presumed that the testatrix intended to make a logically consistent disposition of her estate and not an incongruous one. All incongruity disappears if the will is construed as providing for the determination of the testatrix’ distributees as of the time of the death of the life tenant. It must be concluded that that is what the testatrix intended. The decree of the Surrogate should be reversed and the will should be construed as giving the remainder to such persons as may answer the description of distributees of the testatrix at the time of the death of her husband. *291All concur, except McCurn, P. J., and Kimball, J., who dissent and vote for affirmance in the following memorandum: We all recognize that in construing a will the intent of the testator is the primary object of search. The majority in this case agree that the general rule is that distributees are to be determined as of the date of death of the testator. Here there is nothing, as we view it, which impels a departure from the general rule. The conclusion that the testatrix did not intend that her husband who survived her should take the remainder interest but that such remainder should go to relatives of the half blood, ascertainable upon her husband’s death, is a pure assumption and surmise as to what the testatrix intended. She used words of a present gift of the remainder which became vested upon her death, subject only to the life use of the husband. There are, in the will, no words of a future gift as to the remainder. The gift of the remainder was direct and primary. It was not substitutional. It was not contingent upon some future event. The only uncertainty was the amount. The vesting of estates is favored by the law. The general rule ‘ ‘ is not affected by the fact that a life estate precedes the gift of the remainder; and, a life tenant may be the recipient of the remainder ” (Safford, v. Kowalik, 278 App. Div. 604, and cases there cited). We find nothing in the will which justifies the finding of fact as to the intent of the testatrix necessary to sustain the position taken by the majority. We prefer to adhere to the established rules which the courts of this State have established. (Matter of Bump, 234 N. Y. 60; Matter of White, 213 App. Div. 82.) The case of Matter of Sayre in this court (1 A D 2d 475) is readily distinguishable on the facts. Present—McCubn, P. J., Kimball, Williams, Bastow and Halperm, JJ. Decree reversed on the law and facts and matter remitted to the Surrogate’s Court for entry of a decree in accordance with the opinion. The petition for the probate of the will, which is referred to in the opinion below but is not printed in the record, shows that the testatrix was 61 years of age at the time of her death in 1944, so she was 52 years of age at the time of the execution of the will. | opinion_xml_harvard | 4,434 | 2022-01-12 15:42:16.327345+00 | 020lead | t | f | 5,846,237 | Halpern | null | U | f | Published | 0 | In re Construction of the Will of Carlin | null | In the Matter of Construction of the Will of Sarah M. Carlin, Roy Long, Appellants Walter T. Carlin | null | null | null | null | null | null | null | null | null | 62,204,107 | null | 0 | nyappdiv | SA | t | Appellate Division of the Supreme Court of New York | Appellate Division of the Supreme Court of the State of New York |
3,370,258 | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The parties, who have not been married, are the parents of a nine-year old child. The State has filed a petition seeking child support from the defendant, and he has filed a motion seeking an order of joint legal and physical custody with the plaintiff of their minor child, William. On April 1, 1996 this court entered an order of joint legal custody of William. On May 20, 1996 this court heard evidence regarding William's physical custody and the defendant's child support obligation. The State's present support petition was not filed until December 28, 1995. The court, however, perceives no problem in CT Page 5149-HH entering an order of child support retroactive to an earlier date. See § 46b-215 (a), C.G.S.; Favrow v. Vargas, 222 Conn. 699 , 717 (1992). The court declines to issue any child support order for the year 1994, the first year during which the parties lived apart, because of an absence in the record of any reliable evidence as to the defendant's income during that year. In addition, the evidence indicates that the defendant in various ways contributed to William's support in 1994. The court will enter child support orders covering calendar year 1995 and 1996 to date. In entering that order the court will consider that the plaintiff has an established earning capacity of $35,000 annually. The evidence showed that the plaintiff is a registered nurse and, although her employment had been interrupted due to illness in 1993, she returned to work thereafter and voluntarily terminated her employment in August 1994. She has not worked since that time. William is of a sufficient age to allow the plaintiff to work at least on a part-time basis. The law is well established that a court, in setting child support obligations, may consider a party's earning capacity. See, e.g., Logan v. Logan, 13 Conn. App. 298 (1988). The court's child support order for 1995 will be based on the defendant's testimony that his income in that year was $38,000 and on the plaintiff's established earning capacity of $35,000. For 1996 the defendant's child support obligation will be based on his financial affidavit of February 6, 1996, which shows a gross weekly income of $768; again, the plaintiff's earning capacity of $35,000 will be taken into account. The court finds, further, that the plaintiff and the defendant have shared custody of William. While the evidence is not entirely clear on this point, the court concludes that this arrangement has been in effect since at least January 1, 1995, and that the percentage of the parties' respective shares has changed from 1995 to 1996. Based on the testimony adduced on May 20, 1996, the court concludes that during 1995 the parties shared custody with the plaintiff being responsible for 70% of William's care; the defendant, 30%. Based on the present sharing arrangement, the court concludes that the parties have shared custody of William from January 1, 1996 to the present on a 60%-40% basis, with the plaintiff being responsible for the larger share of William's care and custody. In 1996, although in the course of a 14-day period William spends seven nights at each party's residence, the evidence showed that the plaintiff is CT Page 5149-II responsible for a larger portion of William's day and is also responsible for his care during vacation periods and when he is sick or otherwise absent from school. Based on the court's findings as to the shared custody arrangement, a deviation from the child support guidelines is called for, pursuant to § 46b-215a-3 (b)(6)(A) of the guidelines regulations. During calendar year 1995 the defendant's child support obligation is set at 40% of the guidelines figure, computed as indicated above. During calendar year 1996 to date the defendant's child support obligation is set at 20% of the guidelines figure as computed above. Within two weeks of the date of this memorandum the assistant attorney general shall prepare guideline worksheets for 1995 and 1996, computed as above, and provide copies of those worksheets to the court and to counsel for the defendant. Thereafter, the court will enter the appropriate child support orders, taking into account the deviation called for by the shared custody arrangement, find an arrearage for 1995 and 1996 to date and enter an appropriate order of payment toward that arrearage. The court will withhold the entering of those orders until one week after the defendant's attorney receives her copies of the guidelines worksheets so that she may raise any questions concerning the State's computation of the defendant's guidelines support obligation. SHORTALL, J. | opinion_html_with_citations | 776 | 2016-07-05 18:10:13.062714+00 | 020lead | f | f | 3,374,714 | SHORTALL, J. | null | Z | t | Unpublished | 0 | Kimble v. Jens, No. 0127177 (Jul. 25, 1996) | Kimble | June L. Kimble v. William Jens | null | null | null | null | null | null | null | null | null | 3,246,835 | No. 0127177 | 0 | connsuperct | SA | t | Connecticut Superior Court | Connecticut Superior Court |
5,065,082 | OPINION DORSEY, Justice. This is an accelerated appeal from the revocation of probation of a juvenile. Appellant, who had been adjudicated a delinquent, was found to have violated the terms of her probation and her probation was revoked and she was committed to the custody of the Texas Youth Commission. We affirm. On February 15, 1985, appellant was adjudicated a delinquent. At the subsequent disposition hearing, appellant was placed on probation for a period of one year. As a condition of probation appellant was placed with the Coastal Bend Youth City and was ordered to abide by the rules and regulations of that facility. On March 4, 1985, a petition was filed by the State of Texas against appellant alleging she had violated the terms of her probation by failing to abide by the rules and regulations of the Coastal Bend Youth City. On March 4, 1985, a hearing was conducted at the conclusion of which appellant’s probation was revoked and she was ordered into the custody of the Texas Youth Commission. In her first point of error, appellant complains that the trial court erred in not adequately determining whether appellant had knowingly and intelligently waived her right to a jury trial. In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the United States Supreme Court held that the United States Constitution requires the States to make jury trials available in all criminal prosecutions in which the potential punishment exceeds six months imprisonment. However, in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), the United States Supreme Court held that the United States Constitution does not require states to provide jury trials in any juvenile cases, but they are free to do so under state law if they wish. TEX.FAM.CODE ANN. Sec. 54.-03(c) (Vernon Supp.1985) provides for jury trials in Texas juvenile cases as follows: “trial shall be by jury unless jury is waived in accordance with Sec. 51.09 of this code.” This language applies only to adjudication hearings. Sec. 54.03(c) adopts the criminal rule as to the right to a jury trial in juvenile cases by providing that the trial will be to a jury unless the jury is waived in compliance with Sec. 51.09. In this respect, it should be noted that the child, as well as the attorney, must waive the right to trial by jury. See V.C.H. v. State, 630 S.W.2d 787 (Tex.App.-Houston [1st Dist] 1982, no writ). Prior to the enactment of the present Family Code, the law in Texas governing waiver of rights by juveniles was developed by the Courts on a case-by-case basis. Although lawyers made the argument that a juvenile lacks legal capacity to waive rights, the position was rejected by the courts. Instead, courts decided whether a particular waiver of rights was valid on an individualized basis taking all circumstances into account. Garza v. State, 469 S.W.2d 169 (Tex.Crim.App.1971). When the bill containing title 3 was introduced in 1973, it provided in Sec. 51.09 that a juvenile could waive legal rights if the waiver was concurred in by a parent, *828guardian, guardian ad litem, or attorney of the child. The legislature eliminated references to all but the child’s attorney, thus requiring the concurrence of an attorney to waive rights. TEX.FAM.CODE ANN. Sec. 51.09(a) (Vernon Supp.1985) in its present form, provides as follows: Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this State or the United States may be waived in proceedings under this title if: (1) the waiver is made by the child and the attorney for the child; (2) the child and the attorney waiving the rights are informed of and understand the right and the possible consequences of waiving it; (3) the waiver is voluntary; (4) the waiver is made in writing or in court proceedings that are recorded. Turning now to the record in this case we find that the appellant and her attorney executed a written waiver of jury trial. Additionally, we find that the trial court questioned appellant concerning her written waiver of jury trial and that appellant again in open court affirmatively acknowledged that she did not want a jury trial. It is conclusively established by the record before this Court that the appellant and her attorney waived the right to a jury trial in writing; that the child and the attorney were informed of and understood the consequences of the waiver of a jury trial; that the waiver was voluntarily made by the appellant and her attorney; and that such waivers appear both in writing and in the record of the hearing. Appellant’s first point of error is without merit and is overruled. In her second point of error appellant complains that the trial court erred in committing appellant to the Texas Youth Commission. It is appellant’s argument that based on the evidence offered at the hearing on disposition of the child the trial court abused its discretion in committing the child to the Texas Youth Commission. TEX.FAM. CODE ANN. SEC. 54.04(d)(2) (Vernon Supp.1985) specifically provides that upon a finding by the court at the adjudication hearing that the child engaged in delinquent conduct, the court may commit the child to the Texas Youth Commission. As a general rule, juvenile courts are granted broad powers and discretion in the disposition of juveniles who have been adjudicated delinquents. In the Matter of E.F., 535 S.W.2d 213 (Tex.Civ.App.-Corpus Christi 1976, no writ); In the Matter of P.A.O., 530 S.W.2d 902 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ). There was adequate evidence in the record to support the trial court’s findings that she had violated several of the rules of Coastal Bend Youth City, including her attacking another juvenile resident and then threatening her with a sharp instrument. The testimony of the child’s probation officer clearly indicated that the probation officer’s professional opinion was that the appellant needed the requisite strict environment to be found at the Texas Youth Commission. We cannot say that the trial court abused its discretion in committing the child to the Texas Youth Commission. Appellant’s second point of error is overruled. The judgment of the trial court is AFFIRMED. | opinion_xml_harvard | 1,044 | 2021-10-01 09:48:03.568645+00 | 020lead | t | f | 5,239,573 | Dorsey, Kennedy, Nye | null | U | f | Published | 0 | In re R.B. | In re R.B. | In the Matter of R.B. | null | null | null | null | null | null | null | null | null | 60,569,896 | No. 13-85-184-CV | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
5,488,236 | *908Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. | opinion_xml_harvard | 29 | 2022-01-10 02:20:15.379604+00 | 020lead | t | f | 5,642,345 | null | null | U | f | Published | 0 | Martin v. Tate | Martin | In the Matter of Kevin Martin v. Teresa Tate | null | null | null | null | null | null | null | null | null | 61,994,995 | null | 0 | ny | S | t | New York Court of Appeals | New York Court of Appeals |
9,387,161 | Filed 4/14/23 P. v. Aikens 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, B319872 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA355108) v. KENYON AIKENS, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Michael D. Carter, Judge. Reversed with directions. Law Office of Stein and Markus, Andrew M. Stein, Joseph A. Markus; and Brentford Ferreira for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent. Defendant and appellant Kenyon Aikens (defendant) appeals from the order denying his petition for vacatur of his murder conviction and resentencing, filed pursuant to Penal Code former section 1170.95 (now § 1172.6).1 Defendant contends the trial court erred in finding his petition failed to make a prima facie showing of eligibility under the statute. Both parties assert that the matter must be remanded for an evidentiary hearing pursuant to section 1172.6, subdivision (d). We agree and reverse with directions. BACKGROUND The 2014 judgment In 2014, a jury convicted defendant and a codefendant of first degree murder, attempted robbery, and first degree burglary. The jury found true the special circumstance alleged pursuant to section 190.2, subdivision (a)(17), that defendants committed the murder in the commission or attempted commission of burglary and robbery. The jury also found true the allegation as to both defendants that a principal was armed in the commission of the offenses (§ 12022, subd. (a)(1)). Defendant was sentenced to life in prison without the possibility of parole. 1 Effective June 30, 2022, Penal Code former section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the section by its new number. All further unattributed code sections are to the Penal Code unless otherwise stated. 2 We affirmed the judgment against defendant in People v. Aikens et al. (Nov. 2, 2017, B270559) [nonpub. opn.]. Senate Bill No. 1437 Effective January 1, 2019, the Legislature passed Senate Bill No. 1437, amending the laws pertaining to felony murder and murder under the natural and probable consequences doctrine, “to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The Legislature also added section 1172.6, which provided a procedure for those convicted of murder to seek retroactive relief if they could not be convicted under sections 188 and 189 as amended effective January 1, 2019. (See People v. Lewis (2021) 11 Cal.5th 952 , 957 (Lewis).) As relevant here, a section 1172.6 petition must set forth three conditions to be eligible for resentencing: (1) the petitioner was charged with murder under a theory of felony murder, (2) the petitioner was convicted of murder and (3) could not presently be convicted of murder because of changes to section 189, effective January 1, 2019. (See § 1172.6, subd. (a).) Where a petition alleges the statutory conditions to eligibility, the trial court must appoint counsel, entertain briefing by both parties, and then “proceed[] to subdivision (c) to assess whether the petitioner has made ‘a prima facie showing’ for relief. (§ [1172.6], subd. (c).)” (Lewis, supra, 11 Cal.5th at p. 960; see id. at p. 962.) If the court determines that a prima facie showing has been made, it must issue an order to show cause and then hold an evidentiary hearing pursuant to section 1172.6, subdivision (d) to determine 3 whether to vacate the conviction and resentence the petitioner. (§ 1172.6, subd. (c); Lewis, supra, at p. 960.) Defendant’s first section 1172.6 petition In April 2019, prior to the publication of Lewis, supra, 11 Cal.5th 952 , defendant filed a petition pursuant to section 1172.6, which alleged all three conditions required by section 1172.6, subd. (a), as follows: Defendant had been charged with murder by information that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine2; defendant was convicted of murder at trial; defendant was not the actual killer, nor did he aid and abet the actual killer with intent to kill; defendant was not a major participant in the felony or act with reckless indifference to human life; the victim was not a police officer; and defendant could not now be convicted of murder because of the changes made to sections 188 and 189, effective January 1, 2019. Defendant also requested that counsel be appointed. The trial court appointed counsel, entertained briefing from both sides, and heard argument. On January 14, 2020, the trial court denied the petition at the prima facie stage without issuing an order to show cause or calling an evidentiary hearing. The court relied on the finding in the appellate opinion in People v. Aikens et al., supra, B270559, that substantial evidence supported a finding that defendant was the actual killer.3 2 In response to the petition, the prosecution acknowledged that the theory advanced at trial was felony murder. 3 Though the jury did not make that finding, it instead found that a principal used a firearm. The appellate court inferred that defendant was the shooter since although both defendant and codefendant were in the room with the victim, substantial 4 The Lewis decision and Senate Bill No. 775 Before the California Supreme Court issued Lewis, supra, 11 Cal.5th 952 , there had been a split of authority in the courts of appeal regarding whether the prima facie determination could be made based on a substantial evidence review of the record of conviction to support the conclusion the petitioner could still be convicted of murder following the amendments to sections 188 and 189. (See People v. Aleo (2021) 64 Cal.App.5th 865 , 871–872, and cases cited therein.) Lewis held that the courts may look to the record of conviction at the prima facie stage, but cautioned that the “ ‘prima facie bar was intentionally and correctly set very low,’ ” and that “[i]n reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Lewis, supra, 11 Cal.5th at p. 972.) At the prima facie stage the court must accept the petitioner’s factual allegations as true and make a preliminary assessment of entitlement to relief if the allegations were proved. Only where the record of conviction contains established facts showing that petitioner is ineligible for resentencing as a matter of law may the court find no prima facie showing has been made. (Id. at p. 971; see People v. Duchine (2021) 60 Cal.App.5th 798 , 815.)4 evidence showed that defendant was armed during the robbery and pointed a gun at the victim, that only one gun was fired, and there was insufficient evidence that the codefendant was also armed. 4 “[A]s a matter of law” means that the record of conviction conclusively refutes the allegations of the petition without resort to factfinding, weighing of evidence, or credibility determinations. (People v. Lopez (2022) 78 Cal.App.5th 1 , 14.) For example, 5 The Legislature thereafter passed Senate Bill No. 775 (2021-2022 Reg. Sess.), effective January 1, 2022. Senate Bill No. 775 which was intended to clarify the discussion in Lewis, supra, 11 Cal.5th at pages 970-972, regarding the evidence a court may consider at a resentencing hearing; and it codified the holding in Lewis at pages 961-970 regarding the right to counsel and the standard for determining the existence of a prima facie case. (Stats. 2021, ch. 551, § 1, subds. (b), (d).) The amendment also reaffirmed that the proper burden of proof for a resentencing hearing is beyond a reasonable doubt. (Id. at § 1, subd. (c).) Defendant’s second petition In January 2022, defendant filed a second resentencing petition, which was heard by a different judge.5 The prosecution filed opposition asserting that the petition should be denied as an improper successive petition. The trial court agreed but also reached the merits of the petition. The court conducted a review of the of the record of conviction, including the appellate opinion in People v. Aikens et al., supra, B270559, and found the evidence supported its own conclusion that defendant was the actual shooter, as well as the appellate court’s conclusion that substantial evidence supported a finding that defendant was the actual shooter. In addition, upon reviewing the factors outlined in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark where the record of conviction shows no jury instructions were given regarding felony murder or the natural and probable consequences doctrine, a petitioner is ineligible for relief as a matter of law. (People v. Daniel (2020) 57 Cal.App.5th 666 , 677.) 5 The first petition was heard and denied by the Honorable Lisa B. Lench. The second petition was heard and denied by the Honorable Michael D. Carter. 6 (2016) 63 Cal.4th 522 , the court found the facts supported the jury’s finding that defendant was a major participant in the crime who displayed a reckless indifference to human life. Based on these findings, the trial court concluded that defendant had failed to make a prima facie showing of eligibility for relief, and on February 14, 2022, the court denied the second petition. Defendant filed a timely notice of appeal from the order. DISCUSSION Defendant and the People agree that due to the change in law after the first petition was denied, the second petition was not barred. In denying the first petition, the trial court reviewed the facts summarized in People v. Aikens et al., supra, B270559, and found “that the evidence weighs in significant favor to the finding by the court of appeal that there was substantial evidence that [defendant] was the actual killer in this matter.” After that ruling, the California Supreme Court limited the use of facts set forth in appellate opinions and held that the court may not weigh evidence or engage in factfinding at the prima facie stage. (Lewis, supra, 11 Cal.5th 971 –972.) The Legislature then codified the Lewis holding. (See Stats. 2021, ch. 551, § 1, subds. (b), (d).) To bar a second petition on the basis of procedure held to be improper by the Supreme Court and the Legislature “would thwart Senate Bill No. 1437’s overall purpose of ensuring that ‘a person’s sentence is commensurate with his or her individual criminal culpability’ [citations], and that ‘all those entitled to resentencing are able to obtain relief.’ ” (People v. Farfan (2021) 71 Cal.App.5th 942 , 950, citing and quoting Lewis, supra, 11 Cal.5th at pp. 968, 971, and People v. Gentile (2020) 10 Cal.5th 830 , 842–843.) 7 The trial court here did not find the decision in Lewis, supra, changed the law or that it held the court could not make factual findings. Regardless of whether Lewis made new law or that it did not, it significantly clarified the procedure to be followed at the prima facie stage. As our high court recently explained, a judicial opinion clarifying existing law can amount to “the sort of significant change that has traditionally been thought to warrant reexamination of an earlier-litigated issue.” (People v. Strong (2022) 13 Cal.5th 698 , 717 (Strong).) As recognized by the Legislature in Senate Bill No. 775, Lewis was such an opinion, and we thus agree with the parties that the trial court erred in denying the petition as successive. We also agree with both parties that the Strong decision, published not long after the trial court denied the second petition, requires remand so the trial court can issue an order to show cause and conduct an evidentiary hearing pursuant to section 1172.6, subdivision (d). As stated in Strong, “ ‘[a] finding that there is substantial evidence to support a conviction for murder . . . is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing’ . . . .” (Strong, supra, 13 Cal.5th at p. 720.) The court explained that “[t]he Legislature has made explicit in a recent amendment to the predecessor to section 1172.6, [that] a court determination that substantial evidence supports a homicide conviction is not a basis for denying resentencing after an evidentiary hearing. (Former § 1170.95, subd. (d)(3), as amended by Stats. 2021, ch. 551, § 2.) Nor, then, is it a basis for denying a petitioner the opportunity to have an evidentiary hearing in the first place.” (Strong, supra, at p. 720, italics added.) 8 Thus the trial court erred in denying defendant’s sufficiently pleaded petition at the prima facie stage based upon its finding that substantial evidence supported a murder conviction, either as the actual killer or as a major participant in an underlying felony who acted with reckless disregard for human life. In Banks, supra, 61 Cal.4th 788 , and Clark, supra, 63 Cal.4th 522 , our Supreme Court enunciated factors for determining whether a participant played a major role and acted with reckless disregard for human life, making Banks and Clark comparable to the kind of significant change in law traditionally found to warrant a reexamination of earlier litigated decisions. (Strong, supra, 13 Cal.5th at pp. 719–720.) As defendant was convicted in 2014, prior to the publication of Banks and Clark, the jury’s true finding under the felony-murder special circumstance of section 190.2, subdivision (a)(17), was based on outdated standards and did not authorize the denial of the petition. (See Strong, supra, at pp. 717–720.) Furthermore, the trial court was not authorized to make its own determination by weighing the facts in relation to the clarified Banks and Clark factors as factfinding is prohibited at the prima facie stage. By doing just that the court denied defendant a determination beyond a reasonable doubt that the correct standards were met. (See Strong, supra, at pp. at p. 720, citing Lewis, supra, 11 Cal.5th at p. 972.) Thus we remand the matter for the issuance of an order to show cause and further proceedings in accordance with section 1172.6, subdivision (d). 9 DISPOSITION The denial of the section 1172.6 petition is reversed. The matter is remanded with directions to issue an order to show cause pursuant to section 1172.6, subdivision (c) and for further proceedings in accordance with subdivision (d). NOT TO BE PUBLISHED. CHAVEZ, J. We concur: LUI, P. J. ASHMANN-GERST, J. 10 | opinion_html_with_citations | 2,491 | 2023-04-15 00:02:09.650429+00 | 010combined | f | f | 9,391,685 | null | null | C | t | Unpublished | 0 | People v. Aikens CA2/2 | null | null | null | null | null | null | null | null | null | null | null | 67,194,148 | B319872 | 0 | calctapp | SA | t | California Court of Appeal | California Court of Appeal |
6,237,195 | Mr. Justice Merque delivered the opinion of the court, October 4th 1882. This is a suit by the coroner against the county, for his fees and costs in holding an inquest on the body of one John Philip Ilahn. In holding an inquest, the coroner acts in a judicial capacity. If he has jurisdiction in the particular case, and makes a sufficient record of the inquest, the regularity of the finding cannot be impeached in a collateral proceeding. We see no such defect in this record, nor in the manner in which it was kept as to prevent its being admitted in evidence. It is the duty of a coroner to hold an inquest super visum corporis, where he has cause to suspect the deceased was feloniously destroyed: County of Northampton v. Innes, 2 Casey 156; or when his death was caused by violence: Commonwealth v. Harman, 4 Barr 269. Whenever he holds *627one the presumption is that he acted in good faith, and on sufficient cause. The question now presented is, whether in a suit by him for his services, that presumption is conclusive against the county, or may it be overthrown by evidence? Here the offers were to prove by several witnesses, in substance, that in holding this inquest, the coroner did not act in good faith; but knowingly acted without any sufficient cause or reason; that Hahn was nearly fourscore years old; that he had been ill for some days and attended by Dr. Atlee, a regular practicing physician of the city of Lancaster; that he died a natural death in his own house surrounded by his family; that his death was a natural one; that there was nothing suspicious, sudden, or extraordinary connected with it, and that all these facts were communicated to the coroner before he summoned the inquest. The learned judge thought, inasmuch as the office of coroner is a judicial office, and the holding of an inquest a judicial inquiry, therefore this evidence was inadmissible. The duty of a coroner to hold an inquest rests on sound reason, on that reason which is the life of the law. It is not a power to be exercised capriciously and arbitrarily against all reason. The object of an inquest is to seek information, and obtain and secure evidence, in case of death by violence or other undue means. If there be reasonable ground to suspect it was so caused, it becomes the duty of the coroner to act. If he has no ground for suspecting that the death was not a natural one, it is a perversion of the whole spirit of the law to compel the county to pay him for such services. In this case the inquest found the decedent came to his death “ from a paraletic stroke.” Nay, more, if under the facts offered in evidence a coroner may hold an inquest, he may in his discretion at the expense of the county order a post mortem examination, whereby those bound to the deceased by the nearest and most tender ties may have their feeling lacerated, in every case of natural death. The idea is preposterous and abhorrent to all the finer emotions of human nature. It was error to reject the evidence. If he had sufficient cause to justify his action, he may still show' it. If he had not, there is no good reason why the county should pay for unnecessary and meddlesome services. The county wras no party to the inquest, and this is the first opportunity it has had of being heard. The other specifications are not sustained. Judgment reversed and a venire facias de novo awarded. | opinion_xml_harvard | 610 | 2022-02-17 20:35:23.189998+00 | 020lead | t | f | 6,368,329 | Gordon, Green, Mercdr, Merque, Paxson, Sharswood, Sterrett, Tronkey | null | U | f | Published | 2 | County of Lancaster v. Mishler | Mishler | County of Lancaster versus Mishler | <p>Error to the Court of Common Pleas of Lancaster county: Of January Term 1882, No. 139.</p> <p>Assumpsit, by Isaac Mishler, coroner, against the county of Lancaster, to recover his foes as coroner and costs incurred on an inquest held by him in his official capacity upon the body of one John Philip Hahn. Plea, non assumpsit.</p> <p>On the trial, before Patterson, J., plaintiff offered in evidence his inquisition upon the body of the said Hahn, signed by the coroner’s physician, and sealed by the coroner and his jury of six. Objected to, on the ground that it did not appear that the paper had ever been returned to any court, or marked filed, or recorded in any book or record kept by the coroner for that purpose. Objection' overruled, and the paper admitted. Exception. The finding of the inquest was “that the said John Philip Ilahn came to his death from a jpareletiok stroke.”</p> <p>The defendant offered to prove, by the son-in-law of deceased, by his attending physician, and by numerous other witnesses, that at the time of his death the said Ilahn was seventy-eight years of age, that he had been sick and attended by his regular physician for some days immediately preceding his death; that he died in his own house, surrounded by members of his family; that his death was a natural one; that there was nothing suspicious, sudden or extraordinary; and that all these facts were communicated to'the coroner before he summoned his inquest. Offers objected to; objections sustained, and offers excluded ; exceptions.</p> <p>The county commissioners, to whom the plaintiff presented his bill for holding said inquest, refused to pay the same, where upon this suit was begun before a justice of the peace, and was subsequently, after judgment for plaintiff, removed to the Common Pleas by appeal.</p> <p>The court charged the jury, inter alia, as follows :</p> <p>“The defence contended that the coroner’s inquisition is defective and incomplete in form, and could not be admitted in evidence; but if the holding the inquest was a judicial act, can that officer’s record be attacked collaterally, or can the incorrect or informal manner in which he may have performed this judicial act be questioned in this suit? "We instruct you that that cannot be done; his record nor the manner or motive in which the plaintiff performed that judicial act cannot be even inquired into collaterally..... The defendant maintained that, from information received, there was no need or necessity for the holding of an inquest in the present instance ; that the circumstances attending the sickness and decease of the subject were not of a violent character, and therefore the officer -was not warranted in holding an inquisition at all. The question then arises, is a defence of that character permissible in the present action? We instruct you that it is not.....But we do intend to say, and so instruct you, that the office of coroner is a judicial office; that the holding of an inquest is a judicial inquiry, authorized by the laws of the state ; and that, therefore, in the suit now trying, the defence pleaded cannot be admitted in evidence and cannot avail the defendant.....The evidence offered by the defendant and which we have ruled out, could not be received and go to you, the jury — we say it would not be relevant and was not relevant, the question determining this issue being almost a pure question of law.</p> <p>“ Under the law then, as we have presented it, you will see that the defendant, the county of Lancaster, in this suit had an ample remedy, provided the plaintiff, as is alleged, improperly held this inquest, and took the inquisition not in due form, had it employed the writ of certiorari — the proper process in the premises. The law of the case, then being, we think, as presented in our charge, we must instruct you to render your verdict for the plaintiff.”</p> <p>Verdict and judgment for the plaintiff, for $10.49, whereupon the defendant took this writ of error, assigning for error the admission in evidence of the said inquest, the rejection of the defendant’s offers of evidence, and the portions of the charge above quoted.</p> | null | null | <p>1. In an action by a coroner against a county to recover his fees for the making of an inquest, his inquisition upon the body of the deceased, signed by his physician and signed and sealed by himself and his jury of six, is admissible in evidence, even though the paper has never been returned to any court, and is not marked filed, or recorded in any book kept by the coroner for that purpose.</p> <p>2. Where a coroner makes an inquest, the presumption is that he has acted in good faith and on sufficient cause. In a suit by him against the county, however, to recover his fees, this presumption is not conclusive. Evidence is admissible to show that he acted in bad faith and knowingly without sufficient cause or reason.</p> | null | null | null | null | null | 63,023,207 | null | 0 | pa | S | t | Supreme Court of Pennsylvania | Supreme Court of Pennsylvania |
2,401,622 | 699 S.W.2d 346 (1985) Jerry Lou MULLINS, Appellant, v. The STATE of Texas, Appellee. No. 13-84-440-CR. Court of Appeals of Texas, Corpus Christi. October 17, 1985. *347 Thomas G. White, Corpus Christi, for appellant. Grant Jones, Dist. Atty., Corpus Christi, for appellee. Before NYE, C.J., and BENAVIDES and DORSEY, JJ. OPINION NYE, Chief Justice. Appellant pled guilty to aggravated sexual assault and was sentenced by a jury to eighty-five years in the Texas Department of Corrections. On appeal, he challenges the photographic lineup, the evidence of his prior convictions admitted at trial, the testimony of the victim's psychologist, and the refusal of the trial court to allow one of the victim's attorneys to testify. We find no reversible error and affirm. On May 21, 1984, the complainant left her office in the First City Bank Tower at about 3:30 p.m. and took an elevator alone headed for the parking garage. The elevator stopped on the first floor, appellant entered, punched the "stop" switch, pointed *348 a knife at her and forced her to have sexual intercourse with him. He then fled the scene. At the punishment stage, the state called a psychologist who testified that the victim suffered from exaggerated fearfulness, withdrawal, hypervigilance, sleep disturbances, nightmares and depression, which are symptoms of a post-traumatic stress disorder she was experiencing. She testified that the victim would probably suffer permanent damage to her sense of personal security. In appellant's seventh, eighth and ninth grounds of error, he asserts that the trial court erred in allowing the testimony of the victim's psychologist because: 1) her testimony bolstered the victim's uncontroverted testimony; 2) was highly speculative; and 3) was improper because he was not afforded an opportunity to have the victim analyzed by an independent psychologist of his own choosing. Appellant argues that Dr. Walter's testimony served only to bolster the victim's own testimony. Bolstering occurs when a party is allowed to introduce prior consistent statements of an unimpeached witness to enhance the witness' credibility. Lopez v. State, 643 S.W.2d 431 (Tex.App. Corpus Christi 1982, no pet.). The record shows that Dr. Walter's testimony covered different areas than the victim's. Dr. Walter testified as an expert. She gave her professional opinion of the victim's disorder, the symptoms, the treatment and her prognosis. The victim testified that she quit her job and, at the time of trial, was still unable to enter an elevator alone. She testified that the rape had affected her family life. The victim believed it would take her a long time to recover. The psychologist's testimony served as a means to independently prove the nature and extent of the injuries suffered by the victim. Appellant also complains that Dr. Walter's testimony should not have been admitted because it was speculative. Evidence is introduced at the punishment phase to enable the jury to intelligently exercise its discretion in determining an appropriate punishment. Williams v. State, 674 S.W.2d 315 (Tex.Crim.App.1984); York v. State, 566 S.W.2d 936 (Tex.Crim. App.1978). The trial court's decision to admit or exclude opinion testimony will not be distrubed unless there is shown a clear abuse of discretion. Steve v. State, 614 S.W.2d 137 (Tex.Crim.App.1981). All of the facts and circumstances surrounding the commission of the offense are admissible before the jury on the question of guilt and may be considered in determining the punishment to be assessed. Williams v. State, 535 S.W.2d 637 (Tex.Crim.App.1976). A jury hearing a rape case may be unaware of the severe psychological damage done to a rape victim. Even if the victim has not been physically harmed or brutalized by her assailant, she may nevertheless be severely and permanently scarred by experiencing such an invasive and violent attack. Here, the evidence suggests that the "psychological wounds" suffered by the victim were every bit as painful as if they had been physically inflicted by the appellant. The fields of psychology and psychiatry are not always as precise as those of physical medicine. However, the professionals in those fields are well able to discern symptoms and make exacting diagnoses. Here, while Dr. Walter could not state with absolute certainty the long-range effect that the rape experience had on the victim, her testimony was specific with regard to the victim's manifest problems and, to the degree possible, her prognosis for the future. We find that the trial court did not abuse its discretion in allowing Dr. Walter to testify. In appellant's ninth ground of error, he further asserts that the trial court erred because he was not afforded an opportunity to have the victim analyzed by an independent psychologist. The record reflects that appellant knew that Dr. Walter might testify through his Motion for Discovery and Inspection a list of witnesses. He does not complain that the testimony of Dr. Walter was a surprise. We find nothing in the *349 record to show that he ever requested an independent psychological examination. See Id. at 425. Appellant's seventh, eighth and ninth grounds of error are overruled. In appellant's first ground of error he argues that the trial court erred in overruling his motion to suppress the identification testimony of the victim. He urges that an impermissibly suggestive photographic "spread" was shown to her which tainted a later line-up and the victim's in-court identification of appellant. First, we note that appellant pled guilty without entering into any type of plea bargain arrangement with the State. The Court of Criminal Appeals in Christal v. State, 692 S.W.2d 656 (Tex.Crim.App.1985) (opinion on motion for rehearing) reiterated the Helms [1] rule which states that where a plea of guilty is voluntarily and understandingly made, all non jurisdictional defects including claimed deprivation of federal due process are waived. An error in a pretrial identification procedure is not a jurisdictional defect. Ex Parte McWilliams, 634 S.W.2d 815 (Tex.Crim.App.1982). We hold that appellant has waived this ground of error, if there was any, by entering into a non-negotiated plea of guilty. Appellant's first ground of error is overruled. In appellant's second ground of error he claims that the trial court erred by permitting the State to introduce evidence of his prior convictions. The judgment on the prior conviction showed convictions on both counts of a multi-count indictment for attempted rape and aggravated assault, arising out of the same transaction in Aransas County. The judgment and order of probation were before the jury only after the trial court deleted any reference to the second count for aggravated assault. Appellant argues that the judgment was either void or voidable and should not have gone before the jury. We agree with appellant's argument that the judgment convicting appellant of more than one count in one indictment for a non-property offense was erroneous. However, such judgment is not void. Drake v. State, 686 S.W.2d 935 (Tex.Crim.App.1985). We find nothing to indicate that the Aransas County judgment was ever attacked. We hold only that any possible error in admitting the prior conviction was cured by the deletion of the conviction for aggravated assault. The second ground of error is overruled. In appellant's third ground of error he contends that the trial court erred in admitting a prior federal conviction into evidence. He claims that the proper predicate was not laid because it was not properly authenticated. The State offered a document entitled "Judgment and Probation/Commitment Order," which showed that appellant had been convicted for escape from federal custody. The certification of the Clerk of the district court in which appellant was convicted was attached to the judgment. Appellant argues that the documents should have been evidenced by an official publication attested to by the custodian of the records. Authentication of documents, such as the one at bar, was formerly governed by TEX.REV.CIV.STAT. ANN. art. 3731a. See Todd v. State, 598 S.W.2d 286 (Tex.Crim.App.1980). This statute, as it relates to civil cases, was repealed when the Texas Supreme Court adopted the new Texas Rules of Evidence. It is unclear whether these rules are applicable in criminal cases. TEX.CODE CRIM. PROC. ANN. art. 38.02 provides: The rules of evidence prescribed in the statute law of this State in civil suits shall, so far as applicable, govern also in criminal actions when not in conflict with the provisions of this Code or of the Penal Code. Neither the Code of Criminal Procedure nor the Penal Code provides guidance for the admission of documentary evidence. It is logical, therefore, that the "statute law of this State in civil suits," which is now the Texas Rules of Evidence, should apply here, and we so hold. *350 TEX.R.EVID. 901(b)(7), pertaining to authentication of public records or reports states: Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation in any form, is from the public office where items of this nature are kept. TEX.R.EVID. 902, dealing with self-authentication, provides that extrinsic evidence of authenticity is not required as a condition precedent to admissibility under TEX.R.EVID. 902(1) when the document bears the seal "of the United States, or of any State, district, Commonwealth, ... or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution." TEX.R.EVID. 902(4) further provides that a "copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2) or (3) of this rule or complying with any statute or other rule prescribed by the Supreme Court pursuant to statutory authority." The State's exhibits bear the seal of the federal district clerk's office, her attestation that the document was a certified copy of the original and her signature. We hold that this is sufficient authentication under either TEX.R.EVID. 901 (b)(7) or 902 (1) or (4). [2] Appellant's third ground of error is overruled. Appellant argues in his fourth ground of error that the trial court erred in admitting evidence concerning his federal escape charge because the exhibit had no formal sentence attached to it. Exhibit 2(c)-1 entitled Judgment and Probation/Commitment Order contains a section entitled "Sentence or Probation Order" which reads: The court asked whether defendant had anything to say why judgment should not be pronounced. Because no sufficient cause to the contrary was shown, or appeared to the court, the court adjudged the defendant guilty as charged and convicted and ordered that: The defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of THREE (3) YEARS. The exhibit shows that appellant was sentenced to three years' imprisonment. The document shows on its face that there was a final conviction, and it was properly admissible. Appellant's fourth ground of error is overruled. Appellant, in his fifth ground of error argues that the identity proof inadequately links him to the federal escape conviction. In order to use a prior criminal offense at trial, the State must prove that the defendant is the person charged with the offense and found guilty. Rios v. State, 557 S.W.2d 87 (Tex.Crim.App.1977). In this case, the State attempted to prove appellant's identity through the testimony of Dick Leonard, appellant's probation officer. Leonard testified that appellant reported to him from November 9, 1981 until March 7, 1982. He identified appellant as the individual who had reported to him as a parolee on the escape charge. Leonard also testified that he was not in the courtroom when appellant was sentenced. In Daniel v. State, 585 S.W.2d 688 (Tex.Crim.App.1979), the Court of Criminal Appeals specified means whereby the prosecution could prove convictions constituting a prior criminal record to include: (1) testimony of a witness who personally knows the defendant and the fact of his prior conviction and identified him; (2) a stipulation or judicial admission of the defendant that he has been convicted; (3) introduction of certified copies of the judgment and sentence, including fingerprints of the accused supported by expert testimony identifying them with fingerprints of the defendant *351 or comparison of the record of conviction containing photographs and a detailed physical description of the person in those records, with the appearance of the person in count. Daniel, 585 S.W.2d at 690, 691. The testimony of Leonard satisfies the requirements in Daniel because Leonard personally knew the defendant, the facts of his conviction, and he identified him. Similar proof was held sufficient to show identity in Bautista v. State, 642 S.W.2d 233 (Tex.App.Houston [14th Dist] 1982, pet. ref'd). Appellant's fifth ground of error is overruled. In appellant's sixth ground of error he urges that the trial court erred by refusing his request to allow the testimony of an attorney whom the victim had hired to represent her in a related civil lawsuit. Appellant claims that his testimony would have established bias and motive on the part of the victim to embellish the injuries she received during the assault. The right of the accused to confront witnesses against him and, through reasonable cross examination, place the witness in his proper setting and test the weight and credibility of his testimony has long been held essential to a fair trial. Davis v. Alaska, 415 U.S. 308 , 94 S. Ct. 1105 , 39 L. Ed. 2d 347 (1974); Spain v. State, 585 S.W.2d 705 (Tex.Crim.App.1979); Zuniga v. State, 664 S.W.2d 366 (Tex.App. Corpus Christi 1983, no pet.). An accused should be allowed wide latitude in showing any fact which would tend to establish bias or interest on the part of any witness testifying against him. Harris v. State, 642 S.W.2d 471 (Tex.Crim.App.1982); Zuniga v. State, 664 S.W.2d at 369. Appellant argued that there was a discrepancy in the victim's written statement to police after the indictment and her testimony at trial. The victim said in her written statement that appellant had pointed a knife at her. At trial she testified that appellant had put a knife to her throat. Appellant apparently theorizes that this was a "change" in her testimony, and it was motivated by her civil lawsuit in order to make her damages appear worse than they actually were. Appellant was allowed to cross-examine the complainant on this point. She testified that she had filed a lawsuit. She said that the attorney who was representing her in that suit was present in the courtroom. The trial court heard the testimony of the victim's attorney outside the presence of the jury, by way of a bill of exception. He testified that he had discussed with the victim the type of damages Texas law allows for her type of injury, including punitive damages and damages for pain and suffering but not the amount of damages. The trial court denied appellant's motion to place this testimony before the jury. We see no meaningful discrepancy between the victim's written statement and her testimony at trial. She consistently maintained that appellant was armed with a knife which he pointed at her. Whether it was pointed at her throat, or some other part of her body is irrelevant. Appellant was allowed to place his theory of bias before the jury on cross examination. If the victim had denied filing a civil lawsuit arising out of the assault, it then might have been proper to allow the attorney to testify. We find that appellant was allowed to adequately attempt to prove bias, motive or prejudice. We hold that the trial court did not abuse its discretion in refusing to permit the tendered testimony. Appellant's sixth ground of error is overruled. The judgment of conviction is affirmed. NOTES [1] Helms v. State, 484 S.W.2d 925 (Tex.Crim.App.1972). [2] See 48 Tex.B.J. 928 (1985). | opinion_html_with_citations | 2,640 | 2013-10-30 09:22:01.632954+00 | 010combined | f | f | 2,401,622 | Nye, C.J., and Benavides and Dorsey | null | LU | f | Published | 6 | Mullins v. State | Mullins | Jerry Lou MULLINS, Appellant, v. the STATE of Texas, Appellee | null | null | <parties id="b376-10">
Jerry Lou MULLINS, Appellant, v. The STATE of Texas, Appellee.
</parties><docketnumber id="ALJs">
No. 13-84-440-CR.
</docketnumber><court id="APkn">
Court of Appeals of Texas, Corpus Christi.
</court><decisiondate id="ApoK">
Oct. 17, 1985.
</decisiondate><br><attorneys id="b377-22">
<span citation-index="1" class="star-pagination" label="347">
*347
</span>
Thomas G. White, Corpus Christi, for appellant.
</attorneys><br><attorneys id="b377-23">
Grant Jones, Dist. Atty., Corpus Christi, for appellee.
</attorneys><br><judges id="b377-24">
Before NYE, C.J., and BENAVIDES and DORSEY, JJ.
</judges> | null | null | null | null | null | null | 2,247,036 | 13-84-440-CR | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
4,460,401 | J-S60035-19 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN CHRISTOPHER KIGER : : Appellant : No. 343 MDA 2019 Appeal from the Judgment of Sentence Entered January 23, 2019 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005625-2016 BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.* MEMORANDUM BY PELLEGRINI, J.: FILED DECEMBER 02, 2019 John Christopher Kiger (Kiger) appeals from the judgment of sentence imposed by the Court of Common Pleas of Dauphin County (trial court) after a jury convicted him of robbery and conspiracy. He argues on direct appeal that the trial court erred in (1) denying his motion in limine to admit victim character evidence and (2) precluding him from calling the victim’s wife as an impeachment witness. We affirm. I. In the summer of 2016, Kiger was married to Josephine Kiger but had moved out of their house and was in the process of divorcing her. While the * Retired Senior Judge assigned to the Superior Court. J-S60035-19 two were separated, Josephine Kiger met Jon Paul Young (Young) through an online dating website and let him move in with her.1 Their relationship, however, deteriorated when Young did not financially contribute to the household and was asked to leave. When he did, Young still owed $400. In the following days, Young and Josephine Kiger exchanged a multitude of vituperative text messages in which Young, among other things, stated that he had no intention of paying the $400. However, on September 9, 2016, Josephine Kiger texted Young that she wanted to work things out and invited him to her house. When he arrived, she let him in and took him into the kitchen. Unbeknownst to him, Kiger was waiting to confront him along with another woman, Talisha Brandao (Brandao). In the kitchen, Josephine Kiger and Young’s conversation was cordial until she said she was going to “get back” at him. She then yelled “Now” and Kiger and Brandao emerged out of the basement with Kiger brandishing a wooden baseball bat. Brandao rummaged through Young’s pockets, taking his car keys, wallet and iPhone; Kiger meanwhile stood in front of him with the baseball bat and yelled how dare he steal from his family. Young had only $100 on him so the group decided to drive him to a nearby Sheetz to get more money out of an ATM. However, when they got to 1Kiger was aware that Young was living with his wife but had no interaction with him when he would go to the house to pick up his daughters. -2- J-S60035-19 the Sheetz, Young jumped out of the car and ran inside to tell the cashier to call the police. Kiger briefly chased him but quickly gave up and left with the others before the police arrived. A few days later, Kiger gave the police a statement admitting that he held a baseball bat during the incident. He denied, however, that he threatened Young and claimed instead that he armed himself with the baseball bat out of fear. Despite this claim, Kiger was charged with various offenses for his role in the incident. Kiger eventually proceeded to an October 2018 jury trial that ended in him being convicted of robbery (threatens serious bodily injury) and conspiracy to commit robbery.2 He was later sentenced to serve 24 to 48 months’ imprisonment followed by 60 months’ probation for robbery and a concurrent 18 to 36 months for conspiracy. As noted above, Kiger now challenges two of the trial court’s evidentiary rulings.3 2 18 Pa.C.S. § 3701(a)(1)(ii), § 903(a). 3 The trial court has discretion over the admissibility of evidence, and we will not disturb such rulings on appeal absent evidence the court abused its discretion. See Commonwealth v. Ballard, 622 Pa. 177 , 80 A.3d 380 , 392 (2013). An abuse of discretion is not a mere error in judgment. See Commonwealth v. Ross, 57 A.3d 85 , 91 (Pa. Super. 2012) (en banc). Rather, “discretion is abused when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record.” Id. (citations and internal quotation marks omitted). -3- J-S60035-19 II. A. Kiger first argues that the trial court erred in denying a pretrial motion in limine he filed to admit evidence about Young previously being subject to a protection from abuse (PFA) order. In the motion, Kiger averred that before the September 9, 2016 incident, he learned about the PFA through a public records search and that it would help explain to the jury why he had the baseball bat. After the trial court denied the motion, Kiger filed a motion for reconsideration. This time, Kiger attached the actual PFA order showing that it was entered in May 2010 in Ohio after Young sent threatening messages to his spouse. Kiger argued, among other reasons, that the PFA was admissible victim character evidence under Pa.R.E. 404(a)(2).4 According to Kiger, the 4 Pennsylvania Rule of Evidence 404 provides in relevant part: Rule 404. Character Evidence; Crimes or Other Acts (a) Character Evidence. (1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: *** -4- J-S60035-19 PFA established the reasonableness of his belief that Young was dangerous and that he needed the baseball bat when he confronted him about the money owed to his wife. The trial court declined to reconsider its denial of the motion in limine. Our Supreme Court has explained when victim character evidence may be admitted: [T]his Court has held that when self-defense is properly at issue, evidence of the victim’s prior convictions involving aggression may be admitted, if probative, either (1) to corroborate the defendant’s alleged knowledge of the victim’s violent character, to prove that the defendant was in reasonable fear of danger, or (2) as character/propensity evidence, as indirect evidence that the victim was in fact the aggressor. Commonwealth v. Beck, 485 Pa. 475 , 402 A.2d 1371 , 1373 (1979) (plurality) (citing and applying Commonwealth v. Amos, 445 Pa. 297 , 284 A.2d 748 , 750–51 (1971)). Only those past crimes of the victim that are similar in nature and not too distant in time will be deemed probative, with the determination as to similar nature and remoteness resting within the sound discretion of the trial judge. Amos, 284 A.2d at 752. Commonwealth v. Mouzon, 53 A.3d 738 , 741 (Pa. 2012). (B) subject to limitations imposed by statute a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendant’s same trait[.] Pa.R.E. 404(a). -5- J-S60035-19 Kiger sought to admit Young’s PFA to corroborate his belief about Young’s violent character and prove that he possessed the baseball bat out of fear of Young, not to threaten him.5 However, victim character evidence is relevant only when self-defense is properly at issue, which it was not in this case. A claim of self-defense requires: (a) that the defendant reasonably believed that he was in imminent danger of death or serious bodily injury and that it was necessary to use deadly force against the victim to prevent such harm; (b) that the defendant was free from fault in provoking the difficulty which culminated in the slaying; and (c) that the defendant did not violate any duty to retreat. Although the defendant has no burden to prove self-defense, ... before the defense is properly in issue, there must be some evidence, from whatever source, to justify such a finding. Id. at 740 (citations, quotation marks, footnote and brackets omitted). In his initial motion in limine, Kiger did not claim that he would be asserting a claim of self-defense at trial; instead, he averred only that Young’s PFA “would be offered to explain why the defendant held a baseball bat during the incident.” Motion In Limine, 2/9/18, at ¶ 10. Likewise, Kiger’s motion for reconsideration contained no averments that he intended to claim at trial that 5 Kiger’s brief contains a stray assertion that the PFA was relevant to prove Young’s “pertinent trait” under Pa.R.E. 404(a)(2)(B). Kiger’s Brief at 27. However, Kiger did not raise this theory for admission in his motion in limine and, in fact, specifically averred in his motion for reconsideration that it was not being offered as character evidence of a pertinent trait of Young. See Motion for Reconsideration, 7/20/1, at ¶¶ 13-17. In any event, Kiger does not develop this stray assertion in his brief with citation of any relevant case law. -6- J-S60035-19 he acted in self-defense. In the absence of Kiger properly pleading that he intended to raise a self-defense claim at trial, the trial court properly found that Young’s PFA would not be properly admissible as victim character evidence of aggression. Moreover, for victim character evidence to be admissible under Pa.R.E. 404(a)(2)(B), it must be similar in nature and not too distant in time from the alleged offense. Young’s PFA stemmed from threats he apparently made to his spouse over six years before the September 2016 incident that lead to this case. The trial court concluded that both the nature and timing of the putative evidence was too attenuated from Kiger’s offense to be properly admissible under Pa.R.E. 404(a)(2)(B). This is certainly a reasonable conclusion and not one that we will disturb on appeal. Kiger’s first issue thus fails.6 B. Kiger next argues that the trial court erred in precluding him from calling Young’s estranged wife, Jessica Young, as a witness for the purpose of impeaching Young with certain statements he made to her. At trial, defense counsel cross-examined Young about what he told his wife about the incident a few days after it happened. Defense counsel attempted to get Young to admit that told her via text message that he (1) was hospitalized due to 6 Kiger also argues that the trial court’s ruling violated his constitutional right to present a complete defense. Kiger’s Brief at 28. Beyond this bald statement, however, he presents no supporting argument or legal analysis. -7- J-S60035-19 injuries he suffered during the incident and (2) he intended to sue the police department that initially responded to the Sheetz. Young, however, denied ever making any such statements to his wife. Defense counsel tried to impeach Young by showing him the text messages but Young denied that he ever sent the texts. When the Commonwealth objected for lack of authentication, the trial court sustained the objection and precluded the text messages from being admitted. N.T. Jury Trial, 10/25/18, at 87-90.7 After the Commonwealth rested, Kiger intended to call Jessica Young as its first witness. When asked for an offer of proof, defense counsel responded: Your Honor, I’m bringing her in strictly as an impeachment witness. She is able to impeach Mr. Young in two respects, one, he called her the night of the incident and gave her a very different account of what had happened than what he said here today. And two, whenever I asked him if he had any type of financial gain from this, he expressed that to her. I also believe that she can authenticate the text messages from earlier today that I confronted him with. Id. at 119-20. The Commonwealth argued that Kiger was seeking to impeach Young on collateral matters with extrinsic evidence. The trial court agreed and precluded Jessica Young from testifying. Kiger now argues that her testimony was relevant impeachment evidence for showing Young’s bias and partiality and provable through extrinsic evidence. 7 Besides the text messages, Kiger also claimed that Young made the same statements in a phone call to Jessica Young several days after the incident. N.T. Jury Trial, 10/25/18, at 126. -8- J-S60035-19 Under Pennsylvania Rule of Evidence 607, “[t]he credibility of a witness may be impeached by any evidence relevant to that issue[.]” Pa.R.E. 607(b) (emphasis added). The Comment to Rule 607 notes that any evidence offered to impeach the credibility of a witness must meet the threshold for relevancy under Rule 401. Pa.R.E. 607 cmt. Pennsylvania courts have consistently recognized that evidence of bias or partiality is relevant to impeach the credibility of a witness. The United States Supreme Court has defined bias as “the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party.” United States v. Abel, 469 U.S. 45 , 52 (1984). In Commonwealth v. Abu-Jamal, 555 A.2d 846 (Pa. 1989), our Supreme Court adopted the reasoning of the United States Supreme Court in Abel that “[p]roof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’[s] testimony.” Abu-Jamal, 555 A.2d at 853 (emphasis omitted). If the impeachment evidence is relevant as to bias, then it is not collateral and subject to proof by extrinsic evidence. However, if the evidence is not relevant to bias but instead merely truthfulness, then it is collateral and not provable through extrinsic evidence. See Pa.R.E. 608(b)(1) (“[T]he character of a witness for truthfulness may not be attacked or supported by cross-examination or extrinsic evidence concerning specific instances of the -9- J-S60035-19 witness’ conduct[.]”); see also Commonwealth v. Guilford, 861 A.2d 365 , 369 (Pa. Super. 2004) (noting a party may not impeach a witness on collateral matters or matters that have no relationship to the case at trial). We agree with the trial court that Kiger was seeking to impeach Young’s truthfulness through extrinsic evidence rather than show partiality or bias. As noted above, Jessica Young would testify that (1) Young told her he was injured during the robbery and (2) intended to sue the police. As for the injuries, Kiger does not explain how Young lying about injuries he did not sustain during the robbery shows his bias. As the trial court recognized, there was no factual dispute that Young was not injured or harmed during the robbery. As a result, his later statement to Jessica Young would be relevant only to show that he lied about a collateral matter which cannot be proven through extrinsic evidence. As for his statement that he intended to sue the police, we likewise fail to discern its relevance to the robbery. Of course, evidence that a witness has financial gain or interest in the outcome of a connected civil suit would be relevant impeachment material. See, e.g., Commonwealth v. Butler, 601 A.2d 268 (Pa. 1991) (error not to permit defendant to cross examine detective who had interest in civil suit that would be affected by outcome of criminal trial). In this case, however, there was no civil suit; Young never filed an action against the initial responding police department. That he was merely upset with the first officers that arrived would not be relevant to the robbery - 10 - J-S60035-19 and, like his statements about injuries he never suffered, be a collateral matter not provable through extrinsic evidence. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/02/2019 - 11 - | opinion_html_with_citations | 2,591 | 2019-12-02 17:17:37.97929+00 | 010combined | f | f | 4,683,148 | null | null | C | t | Published | 0 | Com. v. Kiger, J. | Com. | null | null | null | null | null | null | null | null | null | null | 16,533,175 | 343 MDA 2019 | 0 | pasuperct | SA | t | Superior Court of Pennsylvania | Superior Court of Pennsylvania |
4,908,810 | Opinion by Will-son, J. § 106. Attorney’s fee; liability for, of husband for defense of his suit against the wife; jurisdiction of district court to allow such fee; res adjudicata as to such fee; case stated. Appellee August Kleinecke instituted a suit *133in the district court of Galveston county against his wife, Julia E. Kleinecke, for divorce, charging her with abandonment, and with being unchaste. Julia E. Kleinecke employed appellant Branch, an attomey-at-law, to represent her in the defense of said suit, and agreed to pay him for said services $150. After said employment, she made application to said court, by her said attorney, for the appointment of an attorney to defend said suit for her, accompanying said application with her affidavit that she was too poor to pay an attorney. The court thereupon appointed said Branch her attorney to defend said suit, and he represented her in the defense thereof to its termination. When a decision of the suit was reached, said attorney applied to the court for an order allowing him a fee for his services, the same to be taxed against the husband, the plaintiff in said suit. The court refused the application. This suit was then brought by appellant in justice’s court to recover of appellee $150 for said services. In justice’s court judgment was rendered for the defendant, and a like judgment was rendered in the county court upon an appeal prosecuted by appellant. Held: There was no express contract by August Kleinecke whereby he became liable to Branch for said services. The only express contract in relation to said services was made between Branch and Julia E. Kleinecke. Therefore, it would be only upon an implied contract on the part of appellee that he could be held liable to pay for said services, if he could be held liable at all. Such an implied contract could be made to rest only upon the principle that the husband is responsible for necessaries furnished the wife. We do not decide whether the services rendered by Branch in the divorce suit are embraced within the meaning of “necessaries ” for which the husband would be liable upon an implied contract. That question has not been directly determined in this state, and it is not essential to a disposition of this case that it should now be determined. In Iowa it has been held that in a divorce suit, where the wife is *134charged with adultery, the services of an attorney in the defense of the suit are necessary, and that the husband is liable therefor at the suit of the attorney. [Porter v. Moir & Briggs, 38 Iowa, 166.] In other states, however, a contrary doctrine has been held. [Wing v. Hurlbut, 13 Vt. 607; Coffin v. Durham, 8 Cush. 404; McCullough v. Robinson, 2 Ind. 630.] But, even if it be conceded that the husband is liable upon an implied contract, it must be also conceded that the district court in which the divorce suit was pending had full power and jurisdiction as a court of equity to adjudicate the right of the attorney to a fee, and the amount thereof, to be taxed against the husband. This power has never been questioned in this state, that we are aware of, and it is a power which the ecclesiastical courts in England, and the chancery courts in this country, have almost uniformly recognized and exercised. It is founded upon the rule that, implies a promise by the husband to pay the fees of an attorney, where the services of an attorney are necessary to the protection of the interests of the wife. In this case, this jurisdiction of the district court was properly invoked by appellant. At the proper time he applied to that court for an allowance for his fee, to be taxed against the husband. His application was based solely upon the implied obligation of the husband to pay for necessaries furnished the wife. The court entertained the application but refused to make any allowance. We regard this as res adjudicata in so far as any liability upon an implied obligation may have existed. Appellant having invoked the jurisdiction of the district court to determine the matter, he thereby, for all the purposes of disposing of that question, became a party to the divorce proceeding, and must be held bound by the judgment rendered adversely to his right to the fee claimed. The district court did not undertake to adjudicate upon any. express promise on the part of appellee to pay for said services. • If there exists such express contract, it has not been impaired or in any manner affected by said * *135decision of the district court, but the evidence shows that no such contract ever existed. February 13, 1886. Affirmed. | opinion_xml_harvard | 799 | 2021-09-07 23:34:09.255822+00 | 020lead | t | f | 5,091,429 | Son, Will | null | U | f | Published | 0 | Branch v. Kleinecke | Branch | Wharton Branch v. August Kleinecke | <p>Appeal from Galveston County.</p> | null | null | null | null | null | null | null | null | 60,367,418 | No. 1897 | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
1,036,186 | FILED NOT FOR PUBLICATION AUG 01 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ROBERTO ANTONIO JOVEL SANTOS, No. 12-70199 Petitioner, Agency No. A094-299-258 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 24, 2013 ** Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges. Roberto Antonio Jovel Santos, a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judges’ (“IJ”) decision denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). of discretion the denial of a motion to reopen, and review de novo claims of due process violations. Mohammed v. Gonzales, 400 F.3d 785 , 791-92 (9th Cir. 2005). We deny the petition for review. The BIA did not abuse its discretion in denying Santos’ motion to reopen where Santos did not submit any supporting materials with his motion to reopen. See 8 C.F.R. § 1003.23(b)(3) (“Any motion to reopen for the purpose of acting on an application for relief must be accompanied by the appropriate application for relief and all supporting documentation.”). The BIA did not abuse its discretion in denying Santos’ motion to reopen alleging ineffective assistance by the attorney who represented him before the IJ, where he failed to comply with the threshold requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and the alleged ineffective assistance was not “plain on the face of the administrative record.” See Castillo-Perez v. INS, 212 F.3d 518 , 525 (9th Cir. 2000). In light of our disposition, we need not reach Santos’ remaining contentions. PETITION FOR REVIEW DENIED. 2 12-70199 | opinion_html_with_citations | 348 | 2013-08-01 21:11:57.251721+00 | 010combined | f | f | 1,036,186 | Alarcon, Callahan, Circuit'Judges, Clifton | Agency | CU | t | Unpublished | 0 | Roberto Jovel Santos v. Eric Holder, Jr. | null | Roberto Antonio Jovel SANTOS, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent | null | null | <parties id="b642-20">
Roberto Antonio Jovel SANTOS, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
</parties><br><docketnumber id="b642-23">
No. 12-70199.
</docketnumber><br><court id="b642-24">
United States Court of Appeals, Ninth Circuit.
</court><br><otherdate id="b643-4">
<span citation-index="1" class="star-pagination" label="619">
*619
</span>
Submitted July 24, 2018.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
</otherdate><br><decisiondate id="b643-5">
Filed Aug. 1, 2013.
</decisiondate><br><attorneys id="b643-6">
Zulu Ali, Zulu Abdullah Ali, Riverside, CA, for Petitioner.
</attorneys><br><attorneys id="b643-7">
OIL, Nancy Ellen Friedman, Trial, U.S. Department of Justice, Washington, DC, ICE, Office of the Chief Counsel Department of Homeland Security, San Francisco, CA, for Respondent.
</attorneys><br><judges id="b643-9">
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit'Judges.
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b643-13">
The panel unanimously concludes this case is suitable for decision without oral argument.
<em>
See
</em>
Fed. R.App. P. 34(a)(2).
</p>
</div></div> | null | null | null | null | null | null | 1,507,500 | 12-70199 | 0 | ca9 | F | t | Ninth Circuit | Court of Appeals for the Ninth Circuit |
548,256 | 914 F.2d 268 De Murillo v. U.S. *** NO. 89-6076 United States Court of Appeals, Eleventh Circuit. AUG 21, 1990 1 Appeal From: S.D.Fla. 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3 ** Local Rule 36 case | opinion_html_with_citations | 37 | 2011-08-23 10:07:21+00 | 010combined | f | f | 548,256 | null | null | R | f | Published | 0 | De Murillo v. United States | null | null | null | null | null | null | null | null | null | null | null | 2,110,319 | 89-6076 | 0 | ca11 | F | t | Eleventh Circuit | Court of Appeals for the Eleventh Circuit |
7,172,617 | On Application for Rehearing. By Division B, composed of Justices O’NIELL, LAND, and BAKER. PER CURIAM. [13] The two grandchildren of the deceased ask for a rehearing on the claim against Otto Berger for rent of the house on Napoleon avenue. They direct our attention to the fact that the sheriff was ordered to seize the property under a writ of judicial sequestration. Our opinion is that that fact does not make Otto Berger liable for the rent of the whole house. He only occupied half of it, and the two grandchildren of the deceased occupied the other half. As soon as the writ issued, the grandchildren surrendered the key to the sheriff and abandoned the premises. Otto Berger continued to occupy half of the house, and was not molested by the sheriff. Perhaps the grandchildren would not have been molested by the sheriff if they had continued to occupy the other half of the house. A rehearing on that claim is denied. [14] Otto Berger, in an application for a rehearing or, in the alternative, for a correction of the decree, directs our attention to the statement or intimation in the original opinion of this court that the claims and counterclaims, of $900 and $500, respectively, for alleged enhanced value of the properties received by donations, which claims are to be adjusted in the collation proceedings, are governed by the provisions of article 1256 of the Civil Code. It is said that the deductions and reimbursements claimed are governed by the provisions of article 1269 of the Code. As there is nothing in the decree, remanding the case, that restricts the judge of the district court to the' provisions of article 1256 of the Code, there is no necessity either for an amendment of the decree or for the granting of a rehearing. What was said by the author of the opinion, regarding the application of article 1256, was not essentia! to the decree remanding the case for a determination of that issue. [15] All parties hereto, in their applications for rehearing, call our attention to the fact that the members of Section A of the court overlooked the opposition to the fees allowed the notary public for making the partition of the estate and for making an inventory of the contents of a trunk. The notary did not demand any particular amount for his services, but deferred to the judgment of the civil district court. No evidence was offered regarding the value of the services. The judge allowed the notary a fee of $800 for making the act of partition and a fee of $25 for making the inventory of the contents of the trunk. The complaint of the. heirs of the deceased is that the judge should have been governed by the fee bill, in fixing the notary’s fees,. The complaint is well founded. The decree of this court is therefore amended by setting aside the decree fixing the fees of the notary, and by directing the judge of the civil district court to fix the fees according to the fee bill. The applications for rehearing are therefore denied. | opinion_xml_harvard | 522 | 2022-07-24 16:28:02.509642+00 | 070rehearing | t | f | 7,258,457 | Baker, Land, Leche, Niell, Overton, Provosty | null | U | f | Published | 0 | Succession of Czarnowski | Succession of Czarnowski | Succession of CZARNOWSKI | <p>Appeal from Civil District Court, Parish •of Orleans; Ered. D. King, Judge.</p> <p>Proceedings to partition property of the succession of Mrs. Anna Caroline Czarnowski, .widow of Peter St. Amand. Prom the .judgment, the parties appeal.</p> | null | null | null | null | null | null | Judgment set aside and case remanded in part, and amended and affirmed in part. | <p>
(Syllabus by Editorial Staff.)
</p> <p>1. Partition &wkey;>89 — Evidence held to show heirs’ occupancy of only part of house.</p> <p>In a proceeding between heirs to partition property, the preponderance of the evidence held to show, relative to liability for rent, that one of the heirs did not occupy the whole, but only half, of a house suitable for occupancy by two families.</p> <p>2. Partition &wkey;j73- — Judgment held not to bar claim for expanses on property collated.</p> <p>In a partition proceeding between heirs, who collated land received from the decedent by donation by taking less, a judgment decreeing partition, reciting that the parties collated by taking less, and' ordering that the properties donated be appraised as of the date of decedent’s death, was not res judicata as to the right of the heirs to claim from their coheirs, under Civ. Code, art. 1256, expenses in improving the lands donated in proportion to the increase of value, .and this claim could be made before the notary making the partition.</p> <p>3. Partition <&wkey;73 — Recital in judgment as to collation not an adjudication.</p> <p>In a partition proceeding between heirs, a recitation in the judgment that .the parties chose to collate properties donated to them by taking less was not an adjudication of any issue.</p> <p>4. Partition &wkey;>30 — Properties collated to be appraised as of date of decedent’s death.</p> <p>In a partition proceeding between heirs, where the parties elected to collate real estate donated them by taking less, the properties would be appraised as of the date of the decedent’s death.</p> <p>5. Partition t&wkey;l2(l), 78 — Cemetery lot held to be divided by line from front to back.</p> <p>A cemetery lot owned by a succession should not be sealed, but divided between the heirs, and where it was composed of four burying lots, each three by six feet, a division from front to back giving a frontage to each, rather than from side to side, should be made.</p> <p>6. Partition &wkey;>86 — Heir held bound to bear expense of repairs on property occupied free from rent.</p> <p>An heir who occupied a house of the succession for two years free of rent should bear the expense of repairing the furnace and wires.</p> <p>7. Partition <&wkey;87 — Repiairs for joint account of heirs should be jointly paid.</p> <p>Expenses for light and water and for repairs to a stove during the joint occupancy of property by heirs, being for the joint account, should be jointly paid.</p> <p>8. Partition <&wkey;II4(3) — Auctioneer allowed compensation for warehouse rent, keeper’s charges, plans, etc.</p> <p>The auctioneer selling property in a partition proceeding between heirs was entitled to be compensated for warehouse rent, keeper’s charges, watchman’s services, labor in arranging, letting, selling, and delivering movables at.the sheriff’s warehouse, and for plans, all of which were necessary and inured to the benefit of the estate.</p> <p>9. Partition <&wkey;>II4(i) — Succession entitled to benefit of discount allowed auctioneer.</p> <p>Where the auctioneer in a partition proceeding between heirs was allowed a discount by the newspaper in which the property was advertised, the deduction should go to the benefit of the succession.</p> <p>10. Partition &wkey;>35 — Sheriff held entitled only to commission of 2¡/2 per cent, under new statute.</p> <p>Code Prac. art. 283, providing that the sheriff sequestering and administering property shall receive a just compensation to be determined by the court, is superseded by Act No. 136 of 1880, § 23, under which the civil sheriff for the parish of Orleans sequestering property in a partition proceeding was entitled to receive only 2% per cent, on any moneys collected by him as his commission.</p> <p>11. Partition <&wkey;>ll4(4) — Ex parte order authorizing sheriff to employ counsel not binding.</p> <p>An ex parte order, rendered in a partition suit, authorizing the sheriff administering the property under a writ of sequestration to employ counsel, was not binding on the parties interested.</p> <p>12. Partition &wkey;> 114(4) — Sheriff not entitled to compensation for counsel.</p> <p>A sheriff administering property judicially sequestered in a partition suit was not entitled to retain counsel, especially where the services were rendered by the counsel under a contract with the sheriff by which compensation was to be paid out of the emoluments of the office.</p> <p>On Application for Rehearing.</p> <p>13. Partition <&wkey;86 — Heir occupying house sequestered not liable for rent.</p> <p>Where, in a partition proceeding between heirs, the sheriff was ordered to seize the property under a writ of sequestration, whereupon the grandchildren, occupying part of the premises, abandoned them and surrendered the key to the sheriff, and a son occupying another part of the premises continued such occupancy without molestation from the sheriff, he did not thereby become liable for the rent of the house.</p> <p>14. Appeal and error <&wkey;832(l), 1185 — Court’s reference to wrong statute not ground for rehearing or amendment.</p> <p>Where a partition proceeding was remanded, for adjustment of claims for alleged enhanced value of properties collated, the court’s reference to the wrong article of the Code as gov-erning such claims does not require an amendment of the decree or the grant of a rehearing.</p> <p>15. Partition <&wkey;l 14(3) — Notary’s fees governed by fee bill.</p> <p>In a partition proceeding, the judge in allowing a fee to the notary public for making the partition and making an inventory of the contents of a trunk should have been governed by the fee bill.</p> | 64,246,836 | No. 24717 | 0 | la | S | t | Supreme Court of Louisiana | Supreme Court of Louisiana |
4,391,500 | THE THIRTEENTH COURT OF APPEALS 13-17-00501-CV Texas Department of Public Safety v. Herminio Pasillas On appeal from the County Court at Law No. 3 of Cameron County, Texas Trial Cause No. 2017 CCL 00118 JUDGMENT THE THIRTEENTH COURT OF APPEALS, having considered this cause on appeal, concludes the judgment of the trial court should be reversed and rendered. The Court orders the judgment of the trial court REVERSED and RENDERED. Costs of the appeal are adjudged against appellee. We further order this decision certified below for observance. April 25, 2019 | opinion_plain_text | 90 | 2019-04-27 03:43:53.186584+00 | 010combined | f | f | 4,614,247 | null | null | C | f | Published | 0 | Texas Department of Public Safety v. Herminio Pasillas | null | null | null | null | null | null | null | null | null | null | null | 15,011,197 | 13-17-00501-CV | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
8,382,473 | Motion of the Solicitor General to dispense with printing the joint appendix granted. | opinion_xml_harvard | 13 | 2022-10-24 20:07:39.803931+00 | 020lead | t | f | 8,412,129 | null | null | U | f | Published | 0 | Mayorkas v. De Osorio | Mayorkas | Alejandro MAYORKAS, Director, United States Citizenship and Immigration Services v. Rosalina Cuellar DE OSORIO | null | null | null | null | null | null | null | null | null | 65,607,791 | No. 12–930. | 0 | scotus | F | t | Supreme Court | Supreme Court of the United States |
5,291,417 | H. T. Kellogg, J. The plaintiff is the executrix of the estate of William H. Dailey, who was at the time of his death the senior member of the firm of W. H. Dailey & Son. The defendant, Lewis G. Dailey, a son of W. H. Dailey, is the surviving member of the partnership. The action was brought to obtain an accounting of the affairs of the partnership. The defendant filed with the referee, appointed to take and state the accounts, a statement of account showing a balance of partnership assets over liabilities of $3,576.76. The referee surcharged the defendant with various items totalling $872.49, and credited him with $12,337, for the value of sand and gravel furnished to the partnership from certain lands, known as the Wilbur lots, to which the defendant had title. The referee’s report was confirmed and an interlocutory judgment, based upon the report, was entered. The plaintiff then appealed. The sole question raised is whether or not the defendant was entitled to the credit of $12,337 allowed to him by the referee. William H. Dailey and his son, the defendant Lewis G. Dailey, were engaged as partners in a sand and gravel business. The business consisted of excavating sand and gravel from vacant land and marketing the same. William H. Dailey had been in the business for several years. Lewis G. Dailey had been doing railroad work. In July, 1919, the father persuaded the son to come and work with him. Articles of copartnership were not signed until September 27, 1919, but according to the testimony of Lewis G. Dailey, the two were “ working together in this same business ” before that time. Early in July the father, William" H. Dailey, negotiated for the purchase of the so-called Wilbur lots. On July 12, 1919, he purchased the same for $2,500. The father gave his check to the seller for $1,000. The premises were deeded to Lewis G. Dailey who gave back a bond of $1,500, secured by a mortgage on the lots, to secure the balance of the purchase price. Thereafter, until the death of William H. Dailey in November, 1921, sand and gravel were excavated from the lots and marketed by the partner*320ship. Twelve thousand, three hundred and thirty-seven cubic yards were so excavated. The material, before excavation, was of the value of one dollar per cubic yard. The sand and gravel thus excavated by the firm are the basis of the credit allowed to Lewis G. Dailey. There was no evidence of any express contract entered info by the firm with Lewis G. Dailey for the purchase of the material. The referee based his allowance of the credit upon the simple fact that the title to the lands from which the excavations were made was in Lewis G. Dailey. He held that there was no trust interest in the lands held by William H. Dailey because of the consideration in part paid by him. While this is undoubtedly true it does not conclude the matter. The plaintiff is not seeking an interest in the Wilbur lots. She is merely defending against a claim that gravel and sand, excavated from the lots and marketed by the firm, had been sold, the firm by Lewis G. Dailey. The proof requires no such inference. On the contrary, it sanctions, with greater propriety, the inference that the sand and gravel were furnished free of charge. William H. Dailey and Lewis G. Dailey were father and son. They were partners in a sand' and gravel business. Lewis G. Dailey had the legal title to the Wilbur gravel and sand lots. However, the only cash furnished for the purchase of the lots was provided by William H. Dailey. It is a natural assumption that the partners excavated the lots, to provide material for their business, as if the lands were jointly owned, without thought of a credit to the partner having legál title. This assumption is borne out by several significant items of proof. No account of the excavated material was kept either by the firm or by Lewis G. Dailey. No credit was given on the firm books to Lewis G. Dailey for the material taken. No charge therefor was made upon any books of account kept by Lewis G. Dailey and no bill for the material was ever rendered to the firm. The plaintiff in her complaint alleged that, at the death of William H. Dailey, the firm had assets amounting to $6,101.50, and “ that as against said assets the said firm had liabilities, which to the best of plaintiff’s knowledge and belief did not exceed $934.50.” These allegations were not denied by the defendant in his answer. On the contrary, he filed with the referee a statement of account showing a balance of partnership assets over liabilities of $3,576.76. Had the firm purchased the gravel and sand from the Wilbur lots its liabilities would have exceeded its assets by more than $8,000. Moreover, in the account so filed, the defendant, instead of crediting himself with the sand and gravel furnished, actually debits himself as owing the firm the sum of $138. It seems to us that his subsequent claim, made *321in the course of the hearings before the referee, that he was a creditor of the firm for a sum greater than $12,000, was entirely an afterthought. We think it was not made at an earlier stage in the proceedings for the reason that he had always considered the fact to be that sand and gravel furnished from the Wilbur lots were supplied free of charge, precisely as if the lots had been partnership property. We think the evidence conclusive that such was indeed the fact and that Lewis G. Dailey was not entitled to the credit allowed. The judgment should be modified by eliminating the credit to the defendant of $12,337, and as modified affirmed, with costs to the appellant. Interlocutory judgment modified by eliminating the credit to the defendant of $12,337, and as modified unanimously affirmed, with costs to the appellant. The court disapproves of findings third, fourth and seventh of the judgment in so far as they find that the defendant contributed to the firm material of the value of $12,337, and of all the calculations made in the various findings based upon a credit to the defendant for such an amount. It affirmatively finds that the material furnished from lands to which the defendant has title was supplied free of charge according to the mutual understanding of the partners. | opinion_xml_harvard | 1,089 | 2022-01-08 02:29:13.711097+00 | 020lead | t | f | 5,452,522 | Kellogg | null | U | f | Published | 0 | Strong v. Dailey | Strong | Vera F. Strong, as etc., of William H. Dailey v. Lewis G. Dailey, Surviving Partner of the Firm of W. H. Dailey & Son | null | null | null | null | null | null | null | null | null | 61,804,821 | null | 0 | nyappdiv | SA | t | Appellate Division of the Supreme Court of New York | Appellate Division of the Supreme Court of the State of New York |
3,722,858 | OPINION {¶ 1} Ronald W. Brocar was found guilty by a jury in the Montgomery County Court of Common Pleas of two counts of aggravated robbery, each with a firearm specification. He was sentenced to a four-year term of incarceration on each of the robberies and to three years on each of the firearm specifications, all to be served consecutively, for an aggregate sentence of fourteen years. Brocar appeals from his conviction and sentence. {¶ 2} The state's evidence established the following facts. {¶ 3} On August 16, 2001, a thin white male wearing a hat and sunglasses robbed the Mr. Prescription pharmacy in West Carrollton of six bottles of Oxycontin by threatening the employees with a gun. The pharmacist and another employee later identified Brocar as the perpetrator from a photo array. {¶ 4} On September 10, 2001, the Mr. Prescription pharmacy in New Lebanon was robbed by a thin man wearing sunglasses and a hat who demanded Oxycontin at gunpoint. Although none of the employees involved in this robbery was able to identify the robber, a customer did identify Brocar as the man she had seen entering the store immediately before the robbery occurred and exiting the store as she entered. {¶ 5} Brocar was indicted on two counts of aggravated robbery, with firearm specifications, and on one count of breaking and entering. The state decided not to pursue the latter count. Following a three day trial, Brocar was found guilty by a jury of both counts of aggravated robbery and the firearms specifications. He was sentenced as described supra. {¶ 6} Brocar raises two assignments of error on appeal. Brocar's first assignment raises several issues, including the ineffective assistance of trial counsel in failing to seek suppression of the identification testimony, of Brocar's statement to a police officer, and of testimony about other crimes. Brocar also argues that his conviction is against the manifest weight of the evidence. Although a sentencing issue is also raised under the first assignment, we will discuss that issue under the second assignment of error. {¶ 7} We review the alleged instances of ineffective assistance of trial counsel under the two prong analysis set forth in Strickland v. Washington (1984), 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 , and adopted by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136 , 538 N.E.2d 373 . Pursuant to those cases, trial counsel is entitled to a strong presumption that his conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S. at 688 . To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel's conduct fell below an objective standard of reasonableness and that his errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Id. A debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel. State v. Cook (1992), 65 Ohio St.3d 516 , 5245-25, 605 N.E.2d 70 . {¶ 8} First, we turn to the statement Brocar made to the police. He contends that trial counsel should have sought to suppress this statement. {¶ 9} Detective Mark Allison transported Brocar to court for his preliminary hearing, at which pharmacist Harold Neal identified him as the robber of the Mr. Prescription store in West Carrollton. According to Allison's testimony at trial, when they were in the car on the way back to the jail, Brocar was agitated and spontaneously stated: "I don't know how that guy recognized me wearing sunglasses and a hat." Allison stated that he did not respond to Brocar's statement. Brocar, on the other hand, testified that his comment had been more general, questioning how Neal could positively identify anyone who had been wearing sunglasses and a hat. {¶ 10} Brocar has not suggested any specific basis upon which his alleged statement could have been suppressed. Both men recounted that Brocar's comment was not made in response to a question by Allison. Accordingly, there is no basis to conclude that the statement was involuntary, and trial counsel was not ineffective in failing to file a motion to suppress the alleged statement. Rather, Brocar's argument turns on the credibility of the witnesses' testimony, which is within the province of the jury. {¶ 11} Second, we turn to Brocar's argument that trial counsel should have filed a pre-trial motion to suppress testimony that he had been identified from a photo array in order to "[be] put on notice of how the State intended to portray this array to the jury." Brocar also contends that trial counsel should have followed the motion to suppress with a motion in limine to keep the state "on a tight leash." In our view, however, competent representation did not require such filings. A motion to suppress is not a discovery tool, and Brocar has not pointed to any proper basis for the suppression of Detective Allison's testimony about the creation of the photo array. Counsel acted reasonably and effectively in addressing the reliability of the photo array at trial rather than through a motion in limine. {¶ 12} Third, Brocar claims that counsel was ineffective in failing to prevent the admission of evidence that linked him to other crimes. This argument is a bit cryptic, as Brocar makes no specific argument and employs no references to the record. As such, he has failed to comply with App.R. 16(A). However, there appear to be two exchanges upon which this argument could be based. {¶ 13} In the first instance, Detective Allison briefly mentioned his investigation of other crimes in response to questioning about his investigation of the pharmacy robberies. Trial counsel objected before Allison stated that this investigation had led him to Brocar because Brocar had been a suspect in other thefts. In response to the objection, the trial court instructed Allison to state only that his investigation had led him to Brocar, without offering any specifics about the investigation of other crimes. Allison complied with this instruction. {¶ 14} In the second instance, Brocar was testifying on his own behalf, and defense counsel had elicited testimony on direct examination acknowledging Brocar's prior felony convictions. Brocar stated that he had entered into plea agreements in those cases because he had been guilty, implying that he was not guilty of the instant offenses. On cross-examination, the state questioned him further about the prior convictions, including the specific nature of the crimes and their effect on his parole. Defense counsel objected to these questions, but the trial court overruled the objection, reasoning that Brocar had "opened the door" to the questioning. {¶ 15} Insofar as trial counsel objected to each instance in which reference was made to Brocar's other convictions, he was not ineffective. Moreover, Brocar has not argued — and we see no basis to conclude — that the outcome of the trial was affected by this information. {¶ 16} Finally, Brocar argues that "[i]dentification was at the heart of the State's case" and the weight of the evidence did not support his conviction. For example, Brocar contends that the baseball hat and reflective glasses worn by the robber made identification difficult in the absence of fingerprints, and he notes that he presented numerous alibi witnesses. However, the fact that stronger evidence might have been presented does not make the jury's verdict against the manifest weight of the evidence. The jury could have reasonably concluded that the alibi evidence from Brocar, his girlfriend, and her mother was less credible than the identification testimony from those present at the crimes. As such, Brocar's conviction was not against the manifest weight of the evidence. {¶ 17} The first assignment of error is overruled. {¶ 18} In his second assignment of error, Brocar challenges the imposition of consecutive sentences based on findings made by the judge, rather than the jury. The state concedes that, in light of the supreme court's recent decision in State v. Foster, 109 Ohio St.3d 1 , 2006-Ohio-856 , 245 N.E.2d 470 , Brocar's argument has merit. Foster held that parts of Ohio's felony sentencing scheme are unconstitutional, including R.C. 2929.14 (E)(4), which required judicial factfinding before imposition of consecutive sentences. Id., following Blakely v. Washington (2004), 542 U.S. 296 , 124 S.Ct. 2531 , and Apprendi v. New Jersey (2000), 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 . Because Foster held the statutes under which Brocar's sentence was imposed to be unconstitutional and severed them from the sentencing provisions of the Revised Code, we must reverse his sentence and remand this case for a new sentencing hearing. Foster, at ¶ 104-105. {¶ 19} The second assignment of error is sustained. {¶ 20} Except with respect to the sentence, the judgment of the trial court will be affirmed. The matter will be remanded for resentencing in accordance with Foster. . Donovan, J. and Milligan, J., concur. (Hon. John R. Milligan, retired from the Fifth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio). | opinion_html_with_citations | 1,526 | 2016-07-06 06:53:17.349769+00 | 020lead | f | f | 3,971,791 | WOLFF, J. | null | Z | f | Unpublished | 0 | State v. Brocar, Unpublished Decision (10-20-2006) | null | State of Ohio v. Ronald W. Brocar | null | null | null | null | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
Criminal Appeal from Common Pleas Court, T.C. No. 2001 CR 3016. | null | null | null | null | 3,843,933 | C.A. No. 21002. | 0 | ohioctapp | SA | t | Ohio Court of Appeals | Ohio Court of Appeals |
4,062,664 | ACCEPTED 12-15-00160-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 12/7/2015 2:30:15 PM Pam Estes CLERK NO. 12-15-00160-CR ON APPEAL FROM THE 217rn JUDICIAL DISTRICT COURT FILED IN 12th COURT OF APPEALS ANGELINA COUNTY, TEXAS TYLER, TEXAS CAUSE NO. 2011-0160 12/7/2015 2:30:15 PM PAM ESTES BRADLEY GENE GRAHAM § IN THE 12 TH COURT OF APPEALS Clerk § § OF vs. § § STATE OF TEXAS § TYLER, TEXAS MOTION TO EXTEND TIME TO FILE APPEALANT'S BRIEF TO THE HONORABLE JUSTICES OF SAID COURT: Now comes Bradley Gene Graham, Appellant in the above styled and numbered cause, and moves this Court to grant an extension of time to file his appellant's brief, pursuant to TEX. R. APP. P. 10.5 (b) and for good cause shows the following: 1. This case is on appeal from the 217TH Court of Angelina County, Texas. 2. The case below was styled the STATE OF TEXAS vs. BRADLEY GRAHAM, and numbered 2011-0160. 3. Appellant was convicted of Theft. 4. Appellant was assessed a sentence of eighteen (18) years imprisonment in the Texas Department of Corrections - Institutional Division. 5. Pursuant to TEX. R. APP. P. 26.2, notice of appeal filed on June 5, 2015. 6. Defendant is incarcerated in TDCJ. 7. The appellate brief is due on December 14, 2015. There have been no extensions previously requested in this cause. 8. The State does not oppose an extension in this cause. 9. Appellant requests an extension of time of 30 days from the present date or until January 14, 2016. 10. Appellant relies on the following facts as good cause for the requested extension: During the first thirty day period Appellant's Counsel was involved in a jury trial, State v. Taylor, 2014-0049 from November 16-19, Counsel will be picking jury in case 2015- 0106 and trial on December 16, 2015. Counsel also will be in an oral argument in an Angelina County misdemeanor case on December 15, 2015 with the 12'h Court of Appeals in Tyler, Texas. The undersigned counsel believes that he can complete the brief during the next thirty (30) days if an extension is granted. WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court grant this Motion To Extend Time to File Notice of Appeal, and for such other and further relief as the Court may deem appropriate. Respectfully submitted, ~Charanza Law Office, P.C. P.O. Box 1825 Lufkin, Texas 75902 936/634-8568 936/634-0306 (fax) State Bar No. 00783820 [email protected] ATTORNEY FOR THE APPELLANT CERTIFICATE OF SERVICE The undersigned attorney certifies that a true and correct copy of the foregoing MOTION TO EXTEND TIME TO FILE APPEALANT'S was served upon the District Attorney's Office, Angelina County, Texas, 215 East Lufkin Avenue, Lufkin, Texas 75901 on December 7, 2015 via efile. NO. 12-15-00160-CR ON APPEAL FROM THE 217rn JUDICIAL DISTRICT COURT ANGELINA COUNTY, TEXAS CAUSE NO. 2011-0160 STATE OF TEXAS § § COUNTY OF ANGELINA § AFFIDAVIT BEFORE ME, the undersigned authority, on this day personally appeared Albert J. Charanza, Jr., who after being duly sworn stated: "I am the attorney for the appellant in the above numbered and entitled cause. I have read the foregoing Motion To Extend Time to File Appellant's Brief and swears that all of the allegations of fact contained therein are true and correct." SUBSCRIBED AND SWORN TO BEFORE ME on December 7, 2015 to certify which witness my hand and seal of office. ,,,:~~tfiz,,,, LUCIA GONZALEZ J {~).. ··~"1 Notary Public, State of Texas ·'. -'· /J(.=,J My Commission Expires '"<:·";-:.~:? . ' •u,11\\\, May 01. 2018 | opinion_html_with_citations | 585 | 2016-09-29 20:34:25.238546+00 | 010combined | f | f | 4,285,403 | null | null | C | f | Published | 0 | Bradley Graham v. State | null | null | null | null | null | null | null | null | null | null | null | 4,451,968 | 12-15-00160-CR | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
2,388,591 | 847 S.W.2d 93 (1992) Ronald BANDY, Appellant, v. STATE of Missouri, Respondent. No. WD 45359. Missouri Court of Appeals, Western District. September 8, 1992. *94 John Klosterman, St. Louis, for appellant. Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent. Before ULRICH, P.J., and SHANGLER and FENNER, JJ. PER CURIAM. For the second time, Ronald Bandy appeals the denial of Rule 24.035 relief on the same conviction. At issue is the propriety of appellate review of the substantive claims presented in what appears to be a successive motion. In 1986 Bandy pleaded guilty to first degree robbery and armed criminal action, and was sentenced to prison terms totaling ten years to be served consecutively to a prior Kansas sentence. While serving his Kansas sentence, Bandy filed his first Rule 24.035 motion on July 11, 1988. The motion court summarily denied the proceeding. In the appeal that ensued, Bandy challenged the constitutionality of the time provisions of Rule 24.035(Z) which required persons sentenced before 1988 to file by June 30, 1988. We affirmed the denial of the first motion in Bandy v. State, 780 S.W.2d 719 (Mo.App.1989). Within ninety days after his transfer from Kansas to Missouri custody in 1991, Bandy filed his second Rule 24.035 motion. Appointed counsel filed an amended motion, and the court granted an evidentiary hearing at which Bandy testified. The court concluded that the first motion had been untimely filed and acknowledged the affirmance of its denial on appeal. Nevertheless, the court issued findings and conclusions on the substantive claims presented in Bandy's second motion before denying postconviction relief. Our initial concern is whether Bandy's second motion is a successive motion. Rule 24.035(k) explicitly prohibits the circuit court from entertaining successive motions. Therefore, substantive claims presented in successive motions cannot be considered in the motion court or on appeal. The state argues that Bandy presents nothing amenable to appellate review because his first Rule 24.035 motion was denied, and because that denial was affirmed on appeal. According to the argument, all matters relating to Bandy's right to post-conviction relief were conclusively decided and rejected in the first appeal. Bandy insists that recent case law requires review of his substantive claims. The doctrine of the law of the case governs successive appeals involving substantially the same issues and facts. State v. Phillips, 324 S.W.2d 693 , 694 (Mo. 1959). Under the doctrine, the appellate decision becomes the law of the case in subsequent proceedings of the same cause. Davis v. J.C. Nichols Co., 761 S.W.2d 735 , 738 (Mo.App.1988). Its operation normally precludes re-examination of issues decided in the original appeal. Laclede Inv. Corp. v. Kaiser, 596 S.W.2d 36 , 40 (Mo.App. 1980). The doctrine is nevertheless a rule of policy and convenience, a concept that involves discretion. Pathway Financial v. Schade, 793 S.W.2d 464 , 469 (Mo.App.1990). Thus, an appellate court has discretion to refuse to apply the doctrine where the first opinion arose from mistake or resulted in manifest injustice, Williams v. Ford Motor Co., 454 S.W.2d 611 , 614 (Mo.App.1970), or *95 where a change in the law intervened between the appeals Enyeart v. Shelter Mut. Ins. Co., 784 S.W.2d 205 , 209 (Mo.App.1989). A just refusal of an appellate court to apply the doctrine of the law of the case in a criminal appeal is illustrated in Holt v. State, 433 S.W.2d 265 , 268 (Mo. 1968). The successive appeals involved in Holt were the appeal from judgment of conviction and the appeal from denial of post-conviction relief on the same conviction. In the direct appeal, the Court refused to consider the merits of a claim of error because of the untimely filing of the motion for new trial. In the post-conviction appeal, when presented with the same substantive claim, the court recognized it had erred in finding the motion for new trial untimely, and determined the merits of the substantive claim presented in the first appeal. Id. In Bandy's case, clarifications in the law between his two appeals raise questions about the correctness of the first appeal and the fairness of applying the doctrine of the law of the case to preclude review of the second appeal. Bandy's first appeal rests on the express determination that his Rule 24.035 motion filed on July 11, 1988, was untimely. That determination rested on the explicit language of Rule 24.035(l) that persons sentenced before 1988 waived any right to proceed under the rule, unless they filed their motions by June 30, 1988. Also significant in that appellate determination is the absence in Rule 24.035(Z) of any reference to delivery to custody. However, the Missouri Supreme Court clarified the sense of Rule 24.035(l) in Thomas v. State, 808 S.W.2d 364 (Mo. banc 1991), decided after Bandy's first appeal. Thomas declared that the transition provisions of Rule 24.035(Z) were not intended to terminate the opportunity for post-conviction review of those persons who were sentenced before 1988 and who had not been delivered to the actual physical custody of the Missouri Department of Corrections. Id. at 365-66. Under Thomas , persons in that class have until ninety days after their physical delivery to custody to file their Rule 24.035 motions. Id. at 366. Although Thomas involved a movant whose probation was revoked, its holding controlled in a case where the movant was not initially placed in Missouri custody. In McCampbell v. State, 816 S.W.2d 681 , 682 (Mo.App.1991), the movant, who was sentenced in 1986 on a Missouri conviction, first completed a Florida sentence, then was transferred to the Missouri Department of Corrections in 1990. After reconsideration in light of Thomas , the Eastern District found McCampbell's Rule 24.035 motion timely because he filed it within ninety days after his delivery to Missouri custody. McCampbell, 816 S.W.2d at 682. From this point of vantage after Thomas and McCampbell , we now discern that Bandy timely filed his second Rule 24.035 within ninety days after his delivery to Missouri custody in 1991. Thus, strict application of the doctrine of the law of the case would result in injustice to Bandy. Unlike the movants in Thomas and McCampbell , Bandy would be penalized for filing his first motion before his delivery to Missouri custody and for attempting to comply with the literal terms of Rule 24.035(Z), which were later clarified by case law. A just refusal to apply the doctrine of the law of the case allows us to give effect to the subsequent judicial clarifications of Rule 24.035(Z) to Bandy's circumstances. For Rule 24.035 movants not in Missouri custody, the timeliness of filing is determined by the date of their physical delivery to Missouri custody, not by the date of their sentencing. Thomas, 808 S.W.2d at 365-66; McCampbell, 816 S.W.2d at 682. We conclude accordingly that Bandy's first Rule 24.035 motion filed while in Kansas custody was not untimely, but was prematurely filed. Because of its prematurity, Bandy's first Rule 24.035 motion should have been dismissed without prejudice. Hopkins v. State, 802 S.W.2d 956 , 958 (Mo.App.1991). A premature motion fails to evoke the prohibition against successive motions of Rule 24.035(k). We proceed to review Bandy's substantive claims presented in his second Rule 24.035 motion now on appeal. *96 In the Rule 24.035 proceedings, Bandy asserted that his guilty plea was involuntary because his defense counsel had misinformed him that the Missouri Board of Probation and Parole would run his Kansas and Missouri sentences concurrently upon application, and because Bandy's use of prescribed medication had impaired his judgment at the guilty plea hearing. At his evidentiary hearing on the Rule 24.035 claims, Bandy relied on his own testimony. In denying relief, the motion court found that Bandy's testimony on defense counsel's misinformation was not believable, and that Bandy's use of the medication had no influence on his ability to make a knowing and intelligent decision. We reject Bandy's contention that the motion court clearly erred in denying post-conviction relief. As trier of fact, the motion court was entitled to determine the credibility of Bandy's testimony; and on that determination, the motion court could reject Bandy's claim that counsel misadvised him. McClure v. State, 801 S.W.2d 801 , 802 (Mo.App.1991). Other evidence contradicted Bandy's claim of reliance on erroneous advice. At his evidentiary hearing, Bandy recognized admissions made when entering his guilty plea: (1) that the plea agreement provided for consecutive sentences and (2) that he had received no other promises regarding the length or order of his sentences. Bandy's Rule 24.035 testimony also refutes his claim that his use of prescribed medication tainted the voluntariness of his guilty plea. At his evidentiary hearing, Bandy recognized his disclosure, made at the plea proceeding, of his use of Elavil; he further acknowledged his statement that the drug had had no effect on his mental capabilities. That testimony provides a sufficient basis for the motion court's denial of the claim. Recent drug ingestion fails to invalidate a guilty plea where the individual remains able to understand and to assent freely to his conviction. Tyler v. State, 787 S.W.2d 778 , 780 (Mo. App.1990). We conclude that the motion court's denial of Bandy's substantive claims was not clearly erroneous. Rule 24.035(j). The judgment is affirmed. | opinion_html_with_citations | 1,533 | 2013-10-30 09:19:52.178541+00 | 010combined | f | f | 2,388,591 | Ulrich, P.J., and Shangler and Fenner | null | LU | f | Published | 8 | Bandy v. State | Bandy | Ronald BANDY, Appellant, v. STATE of Missouri, Respondent | null | null | <parties id="b133-4">
Ronald BANDY, Appellant, v. STATE of Missouri, Respondent.
</parties><br><docketnumber id="b133-7">
No. WD 45359.
</docketnumber><br><court id="b133-8">
Missouri Court of Appeals, Western District.
</court><br><decisiondate id="b133-9">
Sept. 8, 1992.
</decisiondate><br><attorneys id="b134-10">
<span citation-index="1" class="star-pagination" label="94">
*94
</span>
John Klosterman, St. Louis, for appellant.
</attorneys><br><attorneys id="b134-11">
Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
</attorneys><br><judges id="b134-12">
Before ULRICH, P.J., and SHANGLER and FENNER, JJ.
</judges> | null | null | null | null | null | null | 2,233,804 | WD 45359 | 0 | moctapp | SA | t | Missouri Court of Appeals | Missouri Court of Appeals |
6,285,501 | Dissenting Opinion by Hoffman, J.: I dissent for two reasons: I The Commonwealth, over objection, introduced into evidence a statement given by appellant when first taken into police custody. In this statement appellant purportedly denied any knowledge of the burglary and declared that he had received the stolen wigs from a boy in Harrisburg. The only warning given to appellant prior to the taking of the statement was: “You are now advised to, rights for an attorney to be present and no attorney being present, are you willing to give us a voulantary [sic] statement without threats promises and also knowing that this may be used against you in the event this comes to trial?” *399I cannot agree with the lower court that, “Implicit in the foregoing, is the warning that the Defendant had the right to remain silent.” The above direction might convey the impression that an accused has the right to remain silent only so long as counsel is absent, not that he has an absolute right to remain silent; that ultimately, when counsel appears, he will have to speak. The instructions given by the police, therefore, were inadequate to assure that appellant was voluntarily waiving his right to remain silent. Waivers of constitutional guarantees should not depend on unstated inferences which a defendant is required to draw from a purely formal inquiry. The lower court suggests further that the admission into evidence of this statement did not prejudice appellant, since the statement was entirely self-serving. I cannot agree. Appellant did not take the stand or present other evidence in his defense. At no point did he admit that he had possession of these or any other wigs. The use of this statement was prejudicial, therefore, in that it conveyed to the jury the impression that appellant had been in possession of the stolen wigs at some time. As the District Attorney himself stated: “I have a statement here. He doesn’t admit he took the wigs but I think it’s a statement that the jury should consider, certainly, on the question of receiving stolen goods.” (N.T. 43). The Supreme Court noted in Miranda v. Arizona, 384 U.S. 436, 477 (1966): “[N]o distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution----In Escobedo itself [Escobedo v. Illinois, 378 U.S. 478 (1964)], the defendant fully intended his accusation of another as the' slayer to be exculpatory as to himself.” *400In summary, the statement clearly incriminated appellant by establishing that he had been in possession of the stolen wigs at one time. Since the police secured the statement without affording appellant the requisite constitutional safeguards, it should not have been admitted into evidence. On this ground, therefore, I would vacate the judgment of sentence and order a new trial. II The judgment of sentence should be reversed, in my opinion, because the Commonwealth’s evidence did not sufficiently establish that the wigs produced at trial were in fact the same wigs which had been stolen. The manager of the wig store testified that she recognized the wigs produced at trial. On cross-examination, however, she testified that there were many wigs which were exactly the same as the exhibits, and that these wigs were not unique. She testified further that there were no identifying marks on the wigs, that similar wigs were available, and that a wig could be restyled after it left the shop. Finally, the Court asked the following questions: “The Court: Q. Without any identifying marks on those wigs, how can you tell whether they came from your shop or from Camp Hill or any place? How can you possibly tell that? A. I’m familiar with all the wigs, especially the ones that were on display, the pieces are rather worn in some of them. Q. The pieces are worn? A. In other words, they aren’t completely new looking. Q. Wouldn’t this be true of other wigs in other shops? *401A. Yes. Q. How can you tell then—suppose someone purchased them from a shop in Camp Hill. How could you possibly know? A. There’s no—I don’t know. Don’t you ever just know something?” A jury may not be permitted to reach its verdict on the basis of speculation or conjecture. In this case the testimony of the store manager was insufficient to establish the identity of the stolen goods. The wigs were not unique, nor were there any identifying marks or characteristics by which they could be distinguished from many other wigs. In the absence of such identification, the jury should not have been permitted to consider whether the wigs which appellant had allegedly sold to individuals were the wigs originally stolen. | opinion_xml_harvard | 795 | 2022-02-18 16:44:22.643752+00 | 040dissent | t | f | 6,414,648 | Cueiam, Ervin, Hoeeman, Hoffman, Jacobs, Montgomery, Spaulding, Watkins, Wright | null | U | f | Published | 1 | Commonwealth v. Bonaparte | Commonwealth | Commonwealth v. Bonaparte | null | null | null | null | null | null | null | null | null | 63,071,291 | Appeal, No. 120 | 0 | pasuperct | SA | t | Superior Court of Pennsylvania | Superior Court of Pennsylvania |
449,339 | 757 F.2d 198 UNITED STATES of America, Appellee, v. Bruce Taeru KADOTA, Appellant. No. 84-1667. United States Court of Appeals, Eighth Circuit. Submitted Feb. 13, 1985. Decided March 14, 1985. Rehearing Denied April 17, 1985. Emil Trott, Jr., Des Moines, Iowa, for appellant. Christopher Hagen, Des Moines, Iowa, for appellee. Before LAY, Chief Judge, and HEANEY and FAGG, Circuit Judges. LAY, Chief Judge. 1 Bruce Kadota appeals the district court's 1 denial of his motion for reduction of sentence under Fed.R.Crim.P. 35(b). Kadota contends the district court based its denial of the motion on Kadota's failure to personally present at trial or sentencing his self-incriminating version of the crime. In doing so, Kadota claims the district court violated his fifth amendment right not to testify against himself. We find no abuse of discretion by the district court in denying Kadota's rule 35 motion, and therefore affirm the judgment below. 2 In a trial to the court on stipulated facts, Kadota was found guilty of conspiracy to deliver cocaine and two counts of distribution of cocaine. At Kadota's sentencing hearing, the district court had a presentence report before it and questioned Kadota's attorney as to the accuracy of the report. Counsel for Kadota stated that the report was accurate. He also addressed the court regarding Kadota's role in the conspiracy and pleaded for a shorter sentence. Kadota was characterized as a "middle man." Counsel referred to statements in the presentence report that Kadota was a man of modest means, which allegedly rebutted the notion that Kadota was a cocaine dealer on a regular basis. The court offered Kadota the opportunity to speak but Kadota declined, stating that his counsel had covered the matter. The district court acknowledged the evidence of Kadota's role in the conspiracy: "there certainly is some circumstantial evidence that would tend to support [the] view, that Mr. Kadota, while certainly something more than a mule, was perhaps not at the top proprietary level here. He obviously was at a management level, but not a top proprietary level." On December 16, 1983, Kadota was sentenced to three terms of imprisonment for a period of eight years, the terms to run concurrently. Kadota was made eligible for parole after serving one-third of his sentence. Kadota did not appeal his conviction. 3 In a letter dated March 28, 1984, Kadota cited rule 35 and asked for a reduction or modification of his sentence. The district court treated the letter as a rule 35 motion to reduce sentence. Upon Kadota's motion and the government's resistance thereto, the court denied the rule 35 motion in an April 18, 1984 order, stating: 4 Defendant Kadota's motion is based on his version of the facts concerning his involvement in the crime. He presents these facts for the first time, having passed up the opportunity to do so during the trial and during the sentencing hearing. He does not present any new evidence that was not available to him at the time of trial and at the time of sentencing. 5 On appeal, Kadota contends the quoted language indicates that the district court based its decision to deny the motion upon Kadota's failure to present his version of the facts at trial or sentencing. Kadota alleges no error by the district court in sentencing. He alleges only that the court did not properly consider his rule 35 motion. 6 We find somewhat disconcerting the district court's suggestion that because Kadota failed to testify at trial or sentencing, he was precluded from seeking a reduction of sentence under rule 35. A reduction of sentence under rule 35 is not conditional on the defendant testifying at trial or sentencing. Whether to grant a rule 35 motion is within the informed discretion of the district court. United States v. Eddy, 677 F.2d 656 , 657 (8th Cir.1982). "The rule gives the court a second chance, an opportunity to temper its original judgment with mercy, if it thinks such action appropriate for reasons of compassion or other relevant considerations." Id. Despite the district court's statement that Kadota "forfeited" his opportunity to present his version of the facts, the court denied the motion on another ground--that Kadota offered no new facts that were not previously considered by the district court and that the sentence was correct. At oral argument, counsel for Kadota conceded that all the facts concerning Kadota's involvement in the crime were before the district court at the time of sentencing. It is thus clear that Kadota does not argue that if another hearing were held, he would present new facts regarding his involvement in the conspiracy. Under these circumstances, we hold that the district court's denial of Kadota's rule 35 motion on this ground was not an abuse of discretion. We also hold that the district court's failure to order an evidentiary hearing on Kadota's motion was not an abuse of discretion. See United States v. Collins Spencer Catch the Bear, 727 F.2d 759 , 762 (8th Cir.1984); United States v. Nerren, 613 F.2d 572 , 573 (5th Cir.1980) ("Rule 35 motions may be denied summarily when the facts alleged by a defendant do not indicate 'an illegal sentence or that the trial court grossly abused its discretion in imposing the sentence.' "). 7 Accordingly, we affirm the judgment of the district court. 1 The Honorable Harold D. Vietor, United States District Judge for the Southern District of Iowa | opinion_html_with_citations | 901 | 2011-08-23 09:38:32+00 | 010combined | f | f | 449,339 | Fagg, Heaney, Lay | null | RU | f | Published | 13 | United States v. Bruce Taeru Kadota | null | UNITED STATES of America, Appellee, v. Bruce Taeru KADOTA, Appellant | null | null | <parties id="b306-7">
UNITED STATES of America, Appellee, v. Bruce Taeru KADOTA, Appellant.
</parties><br><docketnumber id="b306-9">
No. 84-1667.
</docketnumber><br><court id="b306-10">
United States Court of Appeals, Eighth Circuit.
</court><br><otherdate id="b306-11">
Submitted Feb. 13,1985.
</otherdate><br><decisiondate id="b306-12">
Decided March 14, 1985.
</decisiondate><br><otherdate id="b306-13">
Rehearing Denied April 17,1985.
</otherdate><br><attorneys id="b306-24">
Emil Trott, Jr., Des Moines, Iowa, for appellant.
</attorneys><br><attorneys id="b306-25">
Christopher Hagen, Des Moines, Iowa, for appellee.
</attorneys><br><judges id="b306-26">
Before LAY, Chief Judge, and HEANEY and FAGG, Circuit Judges.
</judges> | null | null | null | null | null | null | 275,383 | 84-1667 | 1 | ca8 | F | t | Eighth Circuit | Court of Appeals for the Eighth Circuit |
8,404,451 | No opinion found. | opinion_xml_harvard | 3 | 2022-10-24 23:08:24.324999+00 | 010combined | t | f | 8,434,090 | null | null | U | f | Published | 0 | Campeau v. Amrine | Campeau | Campeau v. Amrine, Warden | null | null | null | null | null | null | null | null | null | 65,630,631 | No. 986 | 0 | scotus | F | t | Supreme Court | Supreme Court of the United States |
4,863,582 | PER CURIAM. The former husband, Mario Andres Moreno, appeals from a post-dissolution order denying his motion for civil contempt against his former wife, Martha Lucia Socarras. We reverse and remand for further proceedings. Moreno and Socarras were divorced by final judgment of dissolution of marriage in July 2002. Subsequently, in February 2003, the trial court entered an agreed order for non-harassment, which stated, in part, that each party was “enjoined from harassing and making disparaging statements against the [other] to the parties’ minor children, employers and other third parties.” The agreed order also provided that “the parties understand that violation of this paragraph shall subject the offending party to sanctions being imposed upon them by the Court.” It is undisputed that in October 2009, Socarras released a book purportedly telling the “real story” of the break-up of the parties’ marriage. Between August and September of 2009, she also appeared on television shows and granted interviews to publications, all with respect to the book. As a result, Moreno filed a motion for civil contempt, seeking to have Socarras held in contempt because she had “blatantly violated the Court’s orders and has ignored this Court’s authority.” After an eviden-tiary hearing, the trial court denied the motion, and this appeal ensued. We conclude that given the mandatory language contained in the agreed order, the trial court was without discretion to deny the motion for civil contempt. Accordingly, we reverse and remand with instructions to the trial court to find Socar-ras in contempt of the agreed order, and for the imposition of sanctions.1 Reversed and remanded. . We note, however, that although the parties agreed that any violation of the order would *997result in the imposition of sanctions, the parties did not agree what form those sanctions would take. Accordingly, the trial court is free to craft any legally appropriate sanction, including, for example, the imposition of a fine in a nominal amount. | opinion_xml_harvard | 319 | 2021-08-26 02:02:04.143264+00 | 020lead | t | f | 5,049,354 | Emas, Lagoa, Rothenberg | null | U | f | Published | 0 | Moreno v. Moreno | Moreno | Mario Andres MORENO v. Martha Lucia MORENO, n/k/a Martha Lucia Socarras | null | null | null | null | null | null | null | null | null | 60,299,238 | No. 3D10-935 | 0 | fladistctapp | SA | t | District Court of Appeal of Florida | District Court of Appeal of Florida |
4,160,765 | UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) Alfa International Seafood, et al., ) ) Plaintiffs, ) ) v. ) Case No. 17-cv-00031 (APM) ) Wilbur L. Ross, Jr., et al., ) ) Defendants. ) ) MEMORANDUM OPINION AND ORDER Before the court is Defendant-Intervenor-Applicants’ (“Applicants”) Motion to Intervene. See Mot. to Intervene, ECF No. 24 [hereinafter Mot. to Intervene]. The Applicants are three environmental groups—Oceana, Inc., the Natural Resources Defense Council, Inc., and the Center for Biological Diversity—who seek to enter this case to defend against Plaintiffs’ challenge to the Seafood Import Monitoring Program, 81 Fed. Reg. 88,975 (Dec. 9, 2016), otherwise known as the “Seafood Traceability Rule.” During the telephone conference held on March 8, 2017, the court committed to ruling on the Motion before the start of summary judgment briefing. The Motion to Intervene became ripe on March 29, 2017, and Plaintiffs’ Motion for Summary Judgment is due on April 25, 2017. Because of the time limitations inherent in the current expedited briefing schedule, this written decision is not as fulsome as it otherwise might be. This Memorandum Opinion and Order nevertheless explains, in abridged form, why the court denies the Motion to Intervene. I. STANDING First, the court finds that the Applicants lack standing. In this Circuit, those whose seek to intervene as a matter of right under Rule 24(a) of the Federal Rules of Civil Procedure must establish Article III standing. See In re Endangered Species Act Section 4 Deadline, 704 F.3d 972 , 976 (D.C. Cir. 2013). As a general matter, a prospective intervenor has standing when it has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. , , 136 S. Ct. 1540 , 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555 , 560–61 (1992)). An injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (footnote, citations, and internal quotation marks omitted). The Applicants’ claimed injuries do not qualify as “concrete” within the meaning of Lujan. Each of their proposed injuries rests on the same premise: Invalidating the Seafood Traceability Rule (the “Rule”) against Illegal, Unregulated, and Unreported (“IUU”) fishing will result in the loss of protections afforded by the Rule and therefore reduce the likelihood that Applicants’ members will be able to avoid the various harms that the Rule seeks to protect against, such as uninformed consumer choices, reductions in at-risk fish populations, and degradation of marine ecosystems. Mot. to Intervene at 11–14. An uncertain lessening of risk to the ills of IUU fishing— which is already illegal—is simply too abstract to satisfy the “concrete” injury requirement. Spokeo, 136 S. Ct. at 1548 (“A ‘concrete’ injury must be . . . ‘real,’ and not ‘abstract.’”). Admittedly, actually buying illegally purchased or mislabeled at-risk fish against one’s desires, see Mot. to Intervene, Ex. 3, ECF No. 24-3 [hereinafter Kroner Decl.], ¶ 19, or the substantial likelihood of a reduced opportunity to view and study at-risk fish species, see Mot. to Intervene, Ex. 6, ECF No. 24-6 [hereinafter Steiner Decl.], ¶ 16, might qualify as a concrete injury. However, the injuries claimed here are one step removed from such injuries. The inexact prospect of 2 reducing exposure to the actual harm Applicants’ declarants wish to avoid is simply too abstract to satisfy Article III standing. Even if Applicants’ alleged injuries could be considered “concrete,” they are neither “particularized” nor “fairly traceable” to vacating the Rule. First, one of the declarants, Rachel Golden Kroner, claims that invalidating the Rule would increase the risk of her buying illegally fished or mislabeled seafood. Kroner Decl. ¶ 19. But that claimed harm is no different than that which the public at large would suffer if the Rule were to be struck down. See Prisology, Inc. v. Fed. Bureau of Prisons, No. 15-5003, 2017 WL 1228576 , at *2 (D.C. Cir. Apr. 4, 2017) (rejecting alleged injury because it failed to “differentiate [claimant’s injury] from the public at large”). The proposed Rule here affects millions of U.S.-based consumers who purchase the designated at-risk fish populations, and one person’s desire for greater information on labels or to avoid buying illegally caught fish is indistinguishable from another’s. Consequently, that alleged injury is not “particularized” within the meaning of Article III. See Lujan, 504 U.S. at 560 & n.1. Second, one of the declarants—Todd Steiner, a board member for one of the Applicants—asserts that vacating the Rule will affect his ability to study and observe designated at-risk fish populations, including yellowfin tuna and shark, during his visits to Cocos Island, which sits off the coast of Costa Rica. Steiner Decl. ¶¶ 11–12. According to Steiner, he is “aware that illegal fishing occurs within [12 nautical miles of Cocos Island], and [] regularly see[s] evidence of illegal fishing during [his] travels,” including fishing boats and discarded fishing equipment. Id. ¶ 13. While such an injury is arguably “particularized,” Steiner’s declaration falls short of establishing that his injury is “fairly traceable” to vacating the Rule. See Spokeo, 136 S. Ct. at 1547 . For instance, Steiner fails to provide any evidence that the illegal fishing that he has observed around Cocos Island is of species designated by the Rule. True, Steiner has observed two protected species around Cocos Island— 3 yellowfin tuna and shark—but his declaration fails to establish a link between those species and the illegal fishing that occurs there. Further, even if the court were to presume that Steiner witnessed the illegal fishing of yellowfin tuna and shark, he offers no evidence from which to infer that those illegally fished species are exported to the United States and, thereby, subject to the Rule. Cf. Steiner Decl. ¶ 16 (claiming that his injury will be avoided by “barring [illegal] seafood imports into the United States”). Accordingly, Steiner’s declaration does not demonstrate that affirming or repealing the Rule would affect his ability to study and observe designated at-risk fish populations on Cocos Island and, as a result, his declaration fails to demonstrate that his claimed injury is traceable to the Rule. Even if the court were to ignore the shortcomings of Applicants’ arguments thus far, their reliance on the anticipated conduct of third parties—those who engage in IUU fishing and interact with the U.S. seafood market—further undermines Applicants’ standing. When the claimed injury is directly caused by third-party conduct, the D.C. Circuit requires “substantial evidence of a causal relationship between the government policy and the third-party conduct, leaving little doubt as to causation and the likelihood of redress.” Arpaio v. Obama, 797 F.3d 11 , 20 (D.C. Cir. 2015) (quoting Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930 , 941 (D.C. Cir. 2004)). Moreover, as here, where standing is “premised on future injury, [the party] ‘must demonstrate a realistic danger of sustaining a direct injury.’” Id. at 21 (quoting United Transp. Union v. ICC, 891 F.2d 903 , 913 (D.C. Cir. 1989)). Applicants do not satisfy this more rigorous burden. They have not established a “realistic danger” that the Rule’s defeat would result in concrete, particularized harm to their declarants. Nor do their affidavits leave “little doubt” as to causation and the likelihood of redress. Although Applicants’ theories of causation “carry with them some plausibility,” id. at 25 (internal quotation marks omitted), they do not survive the “rigorous review” 4 the D.C. Circuit demands when the alleged injury is caused directly by the expected future actions of third parties. The primary cases relied upon by Applicants to support standing are inapposite. In those cases, unlike here, the proposed intervenors stood to suffer direct, tangible injury if the agency’s action was reversed. See Crossroads Grassroots Policy Strategies v. Fed. Election Comm’n, 788 F.3d 312 , 318 (D.C. Cir. 2015) (finding that proposed intervenor alleged sufficient injury based on its “significant and direct interest in the [challenged] favorable action shielding it from further litigation and liability”); Fund for Animals, Inc. v. Norton, 322 F.3d 728 , 733 (D.C. Cir. 2003) (finding the same based on proposed intervenors’ “threatened loss of tourist dollars, and the consequent reduction in funding for [its] conservation program”). The injuries that Applicants’ declarants claim would arise if this court were to strike down the Rule are both more attenuated from potential court action and dependent on the conduct of third parties than the injuries in the cases cited by Applicants. Accordingly, the court finds that Applicants lack standing. II. RULE 24’S REQUIREMENTS In addition to lacking standing, the court finds that Applicants have not satisfied the requirements of Rule 24. The first subsection of that Rule permits an individual to intervene in ongoing litigation as of right if he or she possesses an unconditional, federal statutory right to do so, or “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a). The Rule also permits a party to intervene permissively, but this is left to the court’s discretion. If a non-government actor seeks to intervene permissively, then that individual must 5 show he or she has a conditional, federal statutory right to intervene or “a claim or defense that shares with the main action a common question of law or fact.” See Fed. R. Civ. P. 24(b). Applicants do not have a right to intervene because they have not made even a “minimal” showing that the Federal Defendants “may” not adequately represent their interests in this matter. See Fund for Animals, 322 F.3d at 735 (“Rule [24(a)(2)] is satisfied if the applicant shows that representation of his interest ‘may be’ inadequate; and the burden of making that showing should be treated as minimal.” (quoting Trbovich v. United Mine Workers, 404 U.S. 528 , 538 n.10 (1972)). True, Applicants’ and the Federal Defendants’ mutual interest in having the court affirm the Rule does not preclude intervention as a matter of right, and the D.C. Circuit has “look[ed] skeptically on government entities serving as adequate advocates for private parties.” See Crossroads, 788 F.3d at 321 . Applicants, however, have not offered any valid reason for the court to find that the Federal Defendants in this case may not adequately represent their interests. Applicants offer one general and two specific reasons for why the Federal Defendants will not adequately represent their interests. As for the general reason, Applicants claim they have a “narrow focus on marine conservation and preventing seafood fraud,” whereas the federal government has a broader set of objectives, including balancing the interests of facilitating both international trade and industry’s ability to comply with the Rule. Applicants’ Reply in Supp. of Mot. to Intervene, ECF No. 39, at 13. Such a difference alone cannot be enough to satisfy Rule 24 in cases where the government is defending a rule it promulgated. Almost by definition, the government’s objectives in such cases will be broader than any one private party’s interest. After all, the federal government typically considers a number of factors and interests when adopting a regulation or rule and, in fact, often is required to do so by law. Private parties, by contrast, are not beholden to advance any interest other than their own. Thus, to say generally that the 6 government has multifarious interests, while the intervenor only has a narrow one, cannot, by itself, satisfy Rule 24. The more specific differences that Applicants perceive to exist between their interests and those of the Federal Defendants do not change the court’s conclusion. Applicants contend that (1) the new administration might adopt policies that negatively affect the force of the Rule, and (2) the Federal Defendants and Applicants disagree over the scope of the Rule and the agency’s incremental approach to implementing it. Mot. to Intervene at 19–21. Neither of these claimed differences is availing. First, Applicants’ concern that the new administration will usher in policy changes that weaken the Rule is speculative. Notably, at the court’s request, the Federal Defendants reported that the new administration supports the Rule and the “Federal Defendants . . . will continue to assert defenses to the claims and allegations made by Plaintiffs in the Complaint.” See March 22, 2017, Status Report, ECF No. 36. Thus, the mere change in administration, at least at present, does not support Applicants’ assertion that the Federal Defendants’ representation will prove inadequate. Second, as to Applicants’ disagreement with the Federal Defendants over the Rule’s scope and the timing of its implementation, those questions are not at issue in this case. Plaintiffs here challenge the Federal Defendants’ authority to adopt the Rule and the process by which they adopted it. See Compl., ECF No. 1, ¶¶ 67–94. Those claims portend no obvious divergence in the course of litigation, and Applicants have identified none. See Fund for Animals, 322 F.3d at 736 . Accordingly, Applicants fail to overcome even the low bar of showing that the Federal Defendants may not adequately represent their interests in this litigation. The two cases upon which Applicants rely—Crossroads Grassroots Policy Strategies v. Federal Election Commission and Fund for Animals, Inc. v. Norton—do not compel a different 7 result. Applicants are correct that, in both cases, the D.C. Circuit found that the federal defendants’ and proposed intervenors’ common interest in defending the challenged regulation did not foreclose intervention as a matter of right. See Crossroads, 788 F.3d at 321 ; Fund for Animals, 322 F.3d at 736 –37. However, the parties in those cases, unlike here, had clearly divergent interests. In Fund for Animals, the proposed intervenor represented the interests of “Mongolia’s people and natural resources,” and the court found that, as a result, it was “not hard to imagine how the interests of the [proposed intervenors] and those of the [federal defendant] might diverge during the course of the litigation,” given that the federal defendant had no duty to vindicate the rights of the Mongolian people. 322 F.3d at 736 . The same is true for Crossroads. There, the Federal Election Commission (“FEC”) issued an enforcement ruling in favor of intervenors, who sought to defend the ruling in an action brought against the FEC. The court found that the federal defendant could not adequately represent the proposed intervenors’ interests because, among other things, the FEC might engage in future adversarial proceedings against the intervenor should its decision be reversed. Crossroads, 788 F.3d at 321 . Put simply, the parties in both Fund for Animals and Crossroads had clearly defined, differing interests. A similar divergence in interests is lacking in this case. Finally, the court declines to allow Applicants to intervene permissively. Applicants do not cite a conditional right to intervene by federal statute. See Fed. R. Civ. P. 24(b)(1)(A). Moreover, although Applicants may have a claim or defense that shares a common question of law or fact with the main contention in the case, it is not clear on the present record what additional perspective Applicants would offer on the disputed issues. Cf. Fed. R. Civ. P. 24(b)(1)(B). Plaintiffs challenge the Federal Defendants’ authority to adopt the Rule and the process by which they did so. As Plaintiffs put it: “Those deficiencies are best known to and defended by the federal 8 defendants themselves.” Pls.’ Opp’n to Mot. to Intervene, ECF No. 37, at 19. Thus, it seems, Applicants’ participation as parties in this matter would result in duplicative pleadings and arguments. Accordingly, the court declines to permit Applicants to intervene permissively in this case.1 III. CONCLUSION AND ORDER Thus, for the reasons stated, Defendant-Intervenor-Applicants’ Motion to Intervene is denied. Dated: April 17, 2017 Amit P. Mehta United States District Judge 1 The court takes no position on whether Applicants may participate as amicus curiae, as there is no motion before the court from Applicants seeking to participate in that capacity. 9 | opinion_html_with_citations | 2,695 | 2017-04-17 19:01:13.362928+00 | 010combined | f | f | 4,383,512 | Judge Amit P. Mehta | Civil | CU | f | Published | 0 | Alfa International Seafood, Inc. v. Pritzker | Pritzker | ALFA INTERNATIONAL SEAFOOD, Et Al., Plaintiffs, v. Wilbur L. ROSS, Jr., Et Al., Defendants | null | null | <parties id="b53-7">
ALFA INTERNATIONAL SEAFOOD, et al., Plaintiffs, v. Wilbur L. ROSS, Jr., et al., Defendants.
</parties><br><docketnumber id="b53-10">
Case No. 17-cv-00031 (APM)
</docketnumber><br><court id="b53-11">
United States District Court, District of Columbia.
</court><br><decisiondate id="b53-13">
Signed 04/17/2017
</decisiondate><br><attorneys id="b54-7">
<span citation-index="1" class="star-pagination" label="6">
*6
</span>
Laura Metcoff Klaus, Robert Phillip Char-row, Greenberg Traurig, LLP, Washington, DC, for Plaintiffs.
</attorneys><br><attorneys id="b54-8">
Frederick Harter Turner, Devon Lea Da-miano, U.S. Department of Justice, Washington, DC, for Defendants.
</attorneys> | null | null | null | null | null | null | 4,685,473 | Civil Action No. 2017-0031 | 0 | dcd | FD | t | District of Columbia | District Court, District of Columbia |
2,057,319 | 151 A.2d 258 (1959) William A. GRAVES, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee. No. 2313. Municipal Court of Appeals for the District of Columbia. Submitted January 19, 1959. Decided May 20, 1959. *260 William A. Smith, Washington, D. C., for appellant. William T. Clague, Allan C. Swingle, Washington, D. C., and Stephen L. Jennings, Bethesda, Md., for appellee. Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges. ROVER, Chief Judge. Appellant, having secured a judgment against one Ledbetter, issued a garnishment against the appellee insurance company. The latter answered denying any indebtedness to Ledbetter. More than eleven months later, appellant traversed the answer to the garnishment and after a hearing, judgment was entered for the insurance company pursuant to Rule 69(e) of the Municipal Court Civil Rules. No appeal was taken, but eleven days thereafter, appellant filed a motion "to alter or in the alternative to set aside the judgment." The motion was denied after a hearing before a judge other than the one who preside at the traverse hearing and this appeal was taken from that ruling. The character of appellant's motion presents some confusion. Since the nature of a motion must be determined by the relief it seeks, a brief review of the prior proceedings is of some assistance. At the traverse hearing, the insurance company claimed that its compliance with Rule 69(e) entitled it to judgment. That rule provides: "After the filing of the answer of a garnishee, he may give notice thereof to the party at whose instance the garnishment was issued, and if such party shall not join issue thereon within 5 days after such notice, the garnishee shall be entitled as of course to judgment in accordance with his answer, unless the time shall be extended by the court." In accordance with this rule, the insurance company asserted that notice of its answer had been given counsel and appellant's traverse had not been filed within the five-day requirement. Appellant did not attempt to rebut the representations as to notice, but in his subsequent motion claimed surprise at the insurance company's reliance on this rule and further asked that the judgment be set aside on the ground that notice of the garnishee's answer had not been received. It is apparent from the arguments made in support of the motion that appellant's attack is not on the judgment, but on *261 the court's implicit finding that notice had been given. If this is the case, a motion to alter the judgment under Rule 59(g) is clearly inapplicable. That motion is available only to amend or modify a judgment that fails to conform to the verdict or finding. It does not attack error made in arriving at the verdict or finding. [1] Although Rule 60(b) was cited by appellant in the motions court, no specific reference to that rule has been made in his argument before us other than a brief allusion to his contention of "surprise." Subsection (1) of 60(b) provides that the court may relieve a party from a final judgment on the grounds of mistake, inadvertence, surprise, or excusable neglect. As used in this rule "surprise" denotes some condition or situation in which a party is unexpectedly placed to his injury without any negligence on his part and which ordinary prudence could not have guarded against. [2] The relief provided for in 60(b) (1) is of little assistance in this case. Appellant is charged with a knowledge of the trial court's rules and knew or should have known that the insurance company might reasonably rely on Rule 69(e). If counsel was surprised at the hearing, he made no attempt to make it known. No evidence was offered to rebut the representation that notice had been given him and no request was made for a continuance to obtain such countervailing evidence as might be available. Certainly the receipt of notice was a matter peculiarly within the knowledge of counsel. Having discounted these, it would seem that the relief actually sought in appellant's motion was a rehearing of the traverse proceeding on the issue of notice. A motion for rehearing is in all respects the same as a motion for a new trial. [3] An order denying such a motion is not an appealable order; however, where the motion for rehearing is seasonably filed, the running of time for appeal is suspended until its disposition and the appeal is regarded as having been taken from the judgment in the case. [4] Treating the motion as one for rehearing, we are of the view that this appeal should be dismissed for either of two reasons. First, because under Rule 59(b) the motion must be filed after findings have been made and before judgment is rendered. In this case, judgment was entered the day of the hearing and appellant's motion followed several days later. Even assuming that an exception to the above rule might be made in traverse hearings to permit the filing of a motion for rehearing after judgment, Rule 59(b) imposes the requirement that the motion be made within four days. One extra day will be added where, as here, the ruling is made out of the presence of the parties or counsel and notice is given by mail. [5] Appellant's motion was filed eleven days after the court's ruling and therefore was not timely. While the motion should have been addressed to the judge who presided at the traverse hearing, in view of the above we do not think appellant was prejudiced by the ruling of the second judge in motions court. Accordingly the appeal will be Dismissed. NOTES [1] Cohen v. Holmes, D.C.Mun.App., 106 A.2d 147 . [2] See McGuire v. Drew, 83 Cal. 225 , 23 P. 312 , construing the California Code from which the language in 60(b) (1) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and Municipal Court Civil Rules was taken. [3] Safeway Stores v. Coe, 78 U.S.App.D.C. 19, 136 F.2d 771 , 148 A.L.R. 782 . [4] Safeway Stores v. Coe, supra; Diatz v. Washington Technical School, D.C.Mun. App., 73 A.2d 227 , affirmed sub nom. Sobel v. Diatz, 88 U.S.App.D.C. 329, 189 F.2d 26 . [5] United Retail Cleaners and Tailors Ass'n of D. C. v. Denahan, D.C.Mun.App., 44 A.2d 69 . | opinion_html_with_citations | 1,048 | 2013-10-30 08:12:07.000488+00 | 010combined | f | f | 2,057,319 | Rover, Chief Judge, and Hood and Quinn, Associate Judges | null | LU | f | Published | 8 | Graves v. Nationwide Mutual Insurance Company | Graves | William A. GRAVES, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee | null | null | <parties id="b290-11">
William A. GRAVES, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee.
</parties><br><docketnumber id="b290-14">
No. 2313.
</docketnumber><br><court id="b290-15">
Municipal Court of Appeals for the District of Columbia.
</court><br><otherdate id="b290-16">
Submitted Jan. 19, 1959.
</otherdate><br><decisiondate id="b290-17">
Decided May 20, 1959.
</decisiondate><br><attorneys id="b292-9">
<span citation-index="1" class="star-pagination" label="260">
*260
</span>
William A. Smith, Washington, D. C., for appellant.
</attorneys><br><attorneys id="b292-10">
William T. Clague, Allan C. Swingle, Washington, D. C., and Stephen L. Jennings, Bethesda, Md., for appellee.
</attorneys><br><judges id="b292-11">
Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.
</judges> | null | null | null | null | null | null | 1,900,435 | 2313 | 0 | dc | S | t | District of Columbia Court of Appeals | District of Columbia Court of Appeals |
3,932,202 | This appeal is from an order of the trial court refusing to grant a motion filed and presented in said court by W. V. Lauraine, administrator of the estate of Margaret E. Allen, deceased, to vacate an order appointing a receiver of all the property belonging to Margaret E. Allen and A. C. Allen, and to terminate said receivership and discharge the receiver. The receivership was granted and a receiver appointed on December 26, 1908, in a suit brought by appellee First National Bank of Whitney against Margaret E. and A. C. Allen. The grounds upon which appellant sought to have the receivership vacated, and the substance of appellees' answer to the motion, are sufficiently stated in appellant's brief as follows: "(1) That the original order appointing the receiver was improvidently made. "(2) Said receivership having existed for more than eight years, it was the duty of the court to terminate the same without further unnecessary delay. "(3) That no necessity exists for the further continuation of the receivership. "On the 13th day of July, 1917, the defendant A. C. Allen filed his reply to the motion, in which he pleaded to the jurisdiction of the court, and alleged his adjudication in bankruptcy on the 30th day of August, 1913, by the United States District Court for the Western District of Texas, at Waco, and alleged that that court was the only tribunal having jurisdiction over his insolvent estate. Said answer further adopted the allegations filed by W. V. Lauraine, and prayed that in the event his plea to the jurisdiction be overruled, then that the prayer of the said W. V. Lauraine for the discharge of the receiver and the termination of the receivership be granted. "On the 11th day of July, 1917, the interveners, H. Masterson and Eliza Kempner, filed their opposition to the motion, in which they alleged their ownership of practically all of the claims existing against the estate of Mrs. Margaret E. Allen and against the said A. C. Allen, and sought to prevent the discharge of the receiver upon the following grounds: "(1) That the matters at issue had been adjudicated adversely to the contention of the petitioner, W. V. Lauraine, for this: (a) That on the 23d day of July, 1913, T. N. Jones, acting as guardian of Mrs. Margaret E. Allen, a person non compos mentis, filed in said district court his application for the discharge of the receiver, which motion was by the court overruled on the 7th day of October, 1913. (b) That on November 13, 1913, S.E. Stratton, as trustee in bankruptcy for A. C. Allen, filed his independent suit in the trial court by which he sought to compel the delivery to him as such trustee by the receiver of all the property belonging to the estate of A. C. Allen, which cause was heard on the 14th day of November, 1914, and the relief prayed for by the trustee in bankruptcy refused. (c) That on the 7th day of June, 1915, W. V. Lauraine, acting as temporary administrator of the estate of Mrs. Margaret E. Allen, deceased, filed in said court his motion praying for substantially the same relief as is prayed for in this motion, which was duly overruled by the court on the 31st day of July, 1915; that no appeal was taken from the adverse decision on any of said occasions, but that the said W. V. Lauraine applied to the Supreme Court of Texas for a writ of mandamus to compel the judge of the district court to require his receiver to deliver over to the said W. V. Lauraine, as such administrator, the property in the hands of the receiver belonging to the estate of Mrs. Margaret E. Allen, deceased, such relief by mandamus was refused by the Supreme Court. "Interveners denied that the original order for receivership had been improvidently made, and that since the same had been made many judgments had been rendered on interventions therein, and that the court had continuously and repeatedly recognized and reaffirmed the validity of the appointment by various orders entered in such proceeding; that A. C. Allen had repeatedly acquiesced in and recognized the validity of such appointment, and had on several occasions sought the protection of the court with respect thereto, and that Mrs. Margaret E. Allen, acting through her duly appointed guardian, had likewise recognized and acquiesced in and sought the benefit of such receivership, and that by reason thereof both the administrator and the said A. C. Allen are estopped from now questioning the validity of the receivership; that if said receivership has been unduly prolonged that the same was chargeable to the defendant A. C. Allen, and to Mrs. Margaret E. Allen and her guardian and the administrator of her estate; that the claims of interveners are secured by mortgages upon the whole of the property belonging to the said A. C. Allen and the estate of Mrs. Margaret E. Allen, and that the liens created by such mortgages can only be enforced through the decree of the district court and the sale of the interest of both estates in the property described in the mortgage; that interveners were the owners, not only of the claims set up in their petition of intervention, but also the judgments theretofore entered in this cause in favor of J. J. Sweeney, H. Masterson, Jno. C. Williams, R. M. Vaughn, Kahn Bros., and H. M. Atkinson, each of which claims was secured by lien." The court, on July 13, 1917, after a full hearing upon the motion, refused to terminate the receivership. From the order refusing to grant the motion, appellant prosecutes this appeal. The record discloses the following facts: It is alleged in the petition for the appointment of a receiver that the suit "is brought on behalf of plaintiff and any and all other creditors of said defendants who may wish to join herein and bear their proportionate part of the expense." The claim upon which plaintiff based its suit was a joint and several judgment against A. C. Allen, Mrs. *Page 1024 Margaret E. Allen, and H. Masterson, who was surety for the Aliens on the note on which the judgment was rendered. A judgment lien was claimed upon all of the real estate belonging to the Aliens. There are no allegations that the Aliens or Masterson were insolvent. A list of all the property, real and personal, belonging to the Allens is attached to the petition as an exhibit, which exhibit is referred to in the petition for a description of the property. A large number of conflicting claims and liens is shown, and it is alleged that the value of the property would be greatly depreciated to the injury of both debtors and creditors, unless a receiver is appointed. A. C. Allen, for himself and his mother, Margaret E. Allen, accepted service in the suit, and the evidence discloses that as a matter of fact the receivership proceedings were begun at their instance. Many creditors have intervened in the receivership proceedings, and claims have been adjudicated therein amounting to approximately $500,000. Judgments have been rendered for many of these interveners, and these judgments have been taken up by the appellee interveners, Masterson and Kempner. In none of these litigations has any exception been made to the sufficiency of the petition upon which the receivership was granted, and the Judgments establishing the claims of the various interveners have with few exceptions not been appealed from. Appellees H. Masterson and Eliza Kempner intervened in the receivership suit in April, 1913. Their claim is based upon a contract entered into in September, 1909, less than a year after the commencement of the receivership, between H. Masterson and the Allens, having for its purpose the furnishing of money by Masterson and his associate, afterwards Mrs. Kempner, to take up the debts against the Aliens, for their living expenses, the collection of their rents, the payment of their taxes, the closing of the receivership, and the allowing of time in which they might be able to sell property in order to satisfy the claims taken up and the advances made, all in consideration of an agreed compensation. Masterson and Mrs. Kempner were secured by mortgages on all the property. Under this contract claims amounting to many thousands of dollars were taken up by Masterson and associate, and money was advanced by him to the Allens for living expenses, rents collected, taxes paid, and time allowed in which to sell, etc. Ultimately, controversies arose between Masterson and Kempner and the Allens, which are reflected in the proceedings referred to. This explains why Masterson and Kempner are the holders of all the claims, they having been substituted to the rights of original holders. None of the property of the estate has been sold, except one piece of land. In 1913, Mrs. Margaret E. Allen was adjudged insane, T. N. Jones being appointed her guardian, and A. C. Allen was adjudged a bankrupt. The trustee In bankruptcy and the guardian of Mrs. Allen each attempted to procure an order from the court below terminating the receivership and transferring Mrs. Allen's portion to the guardian and that of A. C. Allen to the trustee. These orders were refused by the court, and no appeal was taken from the judgments. After the death of Mrs. Allen and the appointment of appellant as administrator of her estate, he applied for an order terminating the receivership as to the property belonging to Mrs. Allen and transferring the administration thereof to the probate court. This application was refused by the court below, and no appeal was taken by the administrator. Subsequently the administrator applied to the Supreme Court for a writ of mandamus to compel the court below to transfer the administration of the property to the probate court. This application was refused. The opinion of the Supreme Court upholding the jurisdiction of the court below to continue to administer the property through its receiver, notwithstanding the death of Mrs. Allen and the appointment of an administrator of her estate, is reported in (Sup.) 191 S.W. 563 , the style of the case being Lauraine v. Ashe. In the spring of 1909 J. J. Sweeney intervened on notes and mortgages of the Aliens, claiming largely more than $200,000, and an agreed judgment in his favor was entered February 23, 1911, for about $163,000, and foreclosing lien. This judgment was agreed to by the Aliens. In 1913, after Jones' appointment as guardian, he attacked this judgment because of Mrs. Allen's alleged insanity, but later declined further to prosecute it, and in December, 1914, another judgment was rendered in Sweeney's favor re-establishing the former one as against Mrs. Allen. Vaughn, Atkinson, Williams, Kahn, and Masterson intervened in the receivership in 1913 upon notes and mortgages given in 1911, amounting to about $40,000, and no defense whatever being set up, judgments were rendered in their favor about the same time as the last Sweeney judgment. Lauraine was thereafter appointed administrator of Mrs. Allen's estate, upon A. C. Allen's waiver of his prior right to administer, and just before writs of error would have been barred, Lauraine prosecuted them from the judgments in favor of Sweeney and each of the others named. The writ in the Sweeney Case was dismissed by this court for delay in briefing, and the other judgments were affirmed. The opinion of this court affirming the judgment in the case of Lauraine v. Masterson is reported 19 S.W. 708 . The opinions in the Vaughn, Atkinson, Williams, and Kahn Cases were memorandum opinions based on the Masterson Case. A writ of error was denied by the Supreme Court in each of these cases. Sweeney, in 1913, prior to the bankruptcy of Allen and the adjudication of Mrs. Allen's *Page 1025 insanity, undertook to have the property included in his foreclosure sold by the sheriff under order of sale, claiming that the right to do so was secured by provisions in his original judgment. The Allens applied to the district court in the receivership for an injunction to prevent such sale, on the ground that the property was in the hands of a receiver, and could not be sold by the sheriff. Sweeney thereupon applied to the court for an order for the receiver to sell the property, and was met by further objection from the Aliens, and the order was refused. These efforts of Sweeney to sell were after the expiration of two years' stay allowed in the original judgment in his favor, in which the Aliens might sell property to pay his debt. In the receivership, receiver's certificates for nearly $8,000, have been issued and sold from time to time from December, 1916, mainly to raise money to pay taxes. These certificates are outstanding. The first assignment charges that: "The court erred in not sustaining the motion of W. V. Lauraine, administrator, to terminate the receivership herein and to discharge such receiver, there being no lawful grounds for the appointment of a receiver at the time a receiver was appointed and no subsequent conditions arising after the appointment of the receiver that would authorize the appointment of a receiver in said cause." Under this assignment it is contended: First, that "the court was without legal authority to appoint a receiver on the petition filed by the First National Bank of Whitney, for the reason that said petition disclosed no controversy or cause of action between the plaintiff and the defendants, or either of them, and sought no relief other than the receivership, except an injunction in aid of such receivership"; second, that said petition was fatally defective and insufficient to authorize the appointment of a receiver for the reason that it shows upon its face that the judgment upon which the suit was based was not only against the defendants named in the petition, but also against H. Masterson, and the insolvency of Masterson is not alleged; third, that said petition was insufficient in that it failed to allege that execution had been issued upon the judgment and returned unsatisfied; fourth, that "the receivership was improvidently granted, for the reason that no property belonging to either of the defendants was described in the petition, and the judgment of the court appoints a receiver of all of the property belonging to said defendants, real, personal, and mixed, and directs him to take possession thereof, without describing any property and without respect to whether any portion of the property is exempt from forced sale." Mere defects in the petition upon which the receiver was appointed would not render the receivership proceedings void. The allegations of the petition before set out presented a cause of action within the jurisdiction of the court, and the judgment of the court thereon, however erroneous it may have been, cannot now be set aside because of defects in the pleading, especially when such attack upon the judgment is made by parties who actively procured its rendition and subsequently acquiesced in and consented to many orders affecting the administration of the property by the receiver. After all these years, and when the Allen estate no longer needs the protection of the receivership, and when rights of creditors who were induced to intervene in the receivership by the Allens for the adjudication of claims amounting to hundreds of thousands of dollars are dependent upon the validity of those proceedings, neither A. C. Alien nor the representative of the estate of Mrs. Allen will be heard to question the validity of the proceedings upon the ground of defects in the petition which do not affect the jurisdiction of the court. Defects in the petition of a character which might have been available to defeat the receivership had an appeal been taken from the order appointing the receiver would not authorize an order terminating the receivership. If an appellate court should revise a judgment of a trial court overruling a motion to vacate an order appointing a receiver made long after the receiver was appointed, and based upon objections which should have been made at the time the appointment was made, and which do not affect the jurisdiction of the court or render the order granting the receivership void, such ruling would, in effect, abrogate the statute which provides that an appeal from an interlocutory order appointing a receiver shall be taken within 20 days after the order is entered of record. It is clear that if a motion to vacate an order appointing a receiver upon the ground that error was committed in the proceedings, when the error complained of is not such as to render the proceedings void, can be entertained at any time, the order appointing a receiver would never become final and the statute which only gives 20 days in which to appeal from such order would be rendered nugatory and idle. We cannot believe the Legislature intended any such result in enacting the statute giving the right of appeal from an order overruling a motion to vacate an order appointing a receiver. Baker v. Baker, 83 F. 3-5 , 27 C.C.A. 396. We think the failure of the Aliens to except to the petition or to appeal from the order appointing the receiver now precludes A. C. Allen and the representatives of Mrs. Allen from complaining of the refusal of the trial court to vacate the receivership on the grounds that the petition for the appointment of the receiver was defective and the order appointing a receiver was improvidently made. The second assignment of error assails the judgment on the ground that: "The evidence shows no facts now exist which render the further continuation of the receivership necessary or proper for the protection, preservation, and disposition of the property belonging to either the estate of Mrs. Margaret E. Allen, deceased, or to the said A. C. Allen." In the case of Lauraine v. Ashe (Sup.) 191 S.W. 563 , our Supreme Court, in passing upon and refusing an application for *Page 1026 mandamus to compel the court below to vacate this receivership as to the property of Mrs. Allen and to deliver the property to appellant as administrator of the estate of Mrs. Allen, uses the following language: "It is furthermore essentially true that when a court of equity in a cause of which it has jurisdiction takes possession of property through a receiver, the property is withdrawn from the jurisdiction of all other courts; and so long as its jurisdiction of the cause subsists, the court has the power, whether rightfully or wrongfully exercised, to continue the receivership. The power of the court to appoint the receiver proceeds from its jurisdiction of the cause and is an element of it. Jurisdiction of the property lawfully acquired may he maintained and exerted as a means of aiding and completing the exercise of its jurisdiction over the cause and giving effect to its judgment upon the rights involved. While the jurisdiction of the cause continues, therefore, the power of the court in respect to the receivership alike continues. Whether the receivership should be continued is to be governed by the necessities of the case as related to the rights of the parties. But so long as the court maintains its jurisdiction of the cause, that is a question of judicial discretion. It is not one of judicial power. The exercise of judicial discretion is, of course, not subject to control by mandamus." In the case of Lauraine v. Masterson, 193 S.W. 708 , this court held that the district court was authorized to continue the receivership for the purpose of directing a sale of the property by the receiver in satisfaction of the judgment rendered in Masterson's favor. A writ of error was refused by the Supreme Court in the Masterson Case. The evidence in this case shows that none of the judgments rendered in the receivership have been executed by the sale of the property upon which liens were established and foreclosed. It is also shown that judgment has not yet been rendered in the suit in intervention by appellees Masterson and Kempner, and that other matters and claims pending in the receivership are still undisposed of. We think a necessity for the continuation of the receivership is conclusively shown by the evidence, and it is not material that the receivership is no longer necessary "for the protection, preservation, and disposition of the property" of Mrs. Allen's estate or of A. C. Allen. The rights of appellees and others interested in the receivership are equally entitled to protection and preservation, and in order to fully protect the rights of appellees and other interveners in the receivership who have claims against the Allens secured by liens upon the lands jointly owned by A. C. Allen and the estate of Mrs. Allen it is necessary, as held by this court in the Masterson Case, that the receivership be continued until such claims and liens shall have been determined and the property upon which liens shall be adjudged sold by order of the district court in satisfaction of said liens. It is contended by appellant under the second assignment that the fact that this receivership has been pending nine years made it the duty of the trial court to terminate it. If article 2153, Vernon's Sayles' Civil Statutes, which provides that receiverships of corporations must be terminated in three years, unless the winding up of the affairs of the corporation is prevented by litigation, could be held to apply to a receivership of property of individuals, it would not authorize the termination of this receivership, because, as shown by the facts above set out, litigation between the owners of the property and the interveners is pending and the enforcement of judgments heretofore rendered in the receivership has been delayed by litigation prosecuted by appellants. We think the motion to terminate the receivership was properly overruled, and the judgment of the trial court must be affirmed. Affirmed. | opinion_html_with_citations | 3,676 | 2016-07-06 09:57:19.485766+00 | 020lead | f | f | 4,165,641 | Pleasants | null | ZU | f | Published | 11 | Lauraine v. First Nat. Bank of Whitney | Lauraine | LAURAINE v. FIRST NAT. BANK OF WHITNEY Et Al. | <p>Appeal from District Court, Harris County; Chas. E. Ashe, judge.</p> <p>Suit by the Eirst National Bant of Whitney against Margaret E. and A. C. Allen. On death of Margaret E. Allen, W. V. Lauraine, as her administrator, was made a party. The administrator moved to vacate order appointing receiver, to terminate receivership, and discharge the receiver, and H. Masterson and Eliza Kempner, interveners, filed their opposition thereto. From denial of the motion, the administrator appeals.</p> | null | <parties id="b1040-12">
LAURAINE v. FIRST NAT. BANK OF WHITNEY et al.
</parties><docketnumber id="ATaM">
(No. 7601.)
</docketnumber><br><court id="b1040-13">
(Court of Civil Appeals of Texas. Galveston.
</court><decisiondate id="AQm">
June 20, 1918.)
</decisiondate><br><headnotes id="b1040-14">
1. Receivers ®=o55 — Petition for Appointment — Eotteot oe Insufficiency.
</headnotes><br><headnotes id="b1040-15">
Mere defects in the petition upon which the receiver was appointed would not render the receivership proceedings void.
</headnotes><br><headnotes id="b1040-16">
2. Receivers <®=o56 — Appointment — Who may Question.
</headnotes><br><headnotes id="b1040-17">
Where petition for appointment of receiver stated a cause of action within the jurisdiction of the court, the judgment, however erroneous, cannot be set aside for defects in the pleading, especially when attacked by parties who actively procured its rendition and acquiesced in subsequent orders.
</headnotes><br><headnotes id="b1040-18">
3. Receivers <®=»56 — Appointment—Failure to Object — Effect.
</headnotes><br><headnotes id="b1040-19">
The failure of defendants to' except to the petition or appeal from the’ order appointing a receiver precludes them, on denial of later motion to vacate the order of appointment, from complaining on the ground that the petition for appointment was defective and the order improvidently made.
</headnotes><br><headnotes id="b1040-20">
4. Receivers <®=>60 — Termination of Receivership.
</headnotes><br><headnotes id="b1040-21">
Where none of the judgments have been executed, and no judgment has been rendered in a suit in intervention against the receiver, there is a necessity for continuing the receivership, although the receivership is no longer necessary for the protection, preservation, and disposition of the insolvent’s property.
</headnotes><br><headnotes id="b1040-22">
5. Receivers <⅜=60 — Termination of Receivership.
</headnotes><br><headnotes id="b1040-23">
If Vernon’s Sayles’ Ann. Giv. St. 1914, art. 2153, requiring corporation receiverships to terminate within three years in the absence of
<span citation-index="1" class="star-pagination" label="1023">
*1023
</span>
litigation pa-eventing it, could be held to apply to individual receiverships, it would not authorize termination of receivership of individual, pending litigation.
</headnotes><br><summary id="b1041-5">
Appeal from District Court, Harris County; Chas. E. Ashe, judge.
</summary><br><summary id="b1041-6">
Suit by the Eirst National Bant of Whitney against Margaret E. and A. C. Allen. On death of Margaret E. Allen, W. V. Lauraine, as her administrator, was made a party. The administrator moved to vacate order appointing receiver, to terminate receivership, and discharge the receiver, and H. Masterson and Eliza Kempner, interveners, filed their opposition thereto. From denial of the motion, the administrator appeals.
</summary><disposition id="AA1">
Affirmed.
</disposition><br><attorneys id="b1041-7">
Jno. G. Tod and Cooper & Merrill, all of Houston, for appellant. H. Masterson and Elliott Cage, both of Houston, and Williams
<em>
&
</em>
Neethe, of Galveston, for appellees.
</attorneys> | <p>1. Receivers ®=o55 — Petition for Appointment — Eotteot oe Insufficiency.</p> <p>Mere defects in the petition upon which the receiver was appointed would not render the receivership proceedings void.</p> <p>2. Receivers <®=o56 — Appointment — Who may Question.</p> <p>Where petition for appointment of receiver stated a cause of action within the jurisdiction of the court, the judgment, however erroneous, cannot be set aside for defects in the pleading, especially when attacked by parties who actively procured its rendition and acquiesced in subsequent orders.</p> <p>3. Receivers <®=»56 — Appointment—Failure to Object — Effect.</p> <p>The failure of defendants to' except to the petition or appeal from the’ order appointing a receiver precludes them, on denial of later motion to vacate the order of appointment, from complaining on the ground that the petition for appointment was defective and the order improvidently made.</p> <p>4. Receivers <®=>60 — Termination of Receivership.</p> <p>Where none of the judgments have been executed, and no judgment has been rendered in a suit in intervention against the receiver, there is a necessity for continuing the receivership, although the receivership is no longer necessary for the protection, preservation, and disposition of the insolvent’s property.</p> <p>5. Receivers <⅜=60 — Termination of Receivership.</p> <p>If Vernon’s Sayles’ Ann. Giv. St. 1914, art. 2153, requiring corporation receiverships to terminate within three years in the absence of litigation pa-eventing it, could be held to apply to individual receiverships, it would not authorize termination of receivership of individual, pending litigation.</p> | Appeal from District Court, Harris County; Chas. E. Ashe, judge.
Suit by the First National Bank of Whitney against Margaret E. and A. C. Allen. On death of Margaret E. Allen, W. V. Lauraine, as her administrator, was made a party. The administrator moved to vacate order appointing receiver, to terminate receivership, and discharge the receiver, and H. Masterson and Eliza Kempner, interveners, filed their opposition thereto. From denial of the motion, the administrator appeals. Affirmed. | null | null | Affirmed. | null | 4,037,783 | No. 7601. | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
2,782,980 | Filed 2/27/15 P. v. Crespo CA4/1 NOT TO BE PUBLISHED IN 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. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D065318 Plaintiff and Respondent, v. (Super. Ct. No. SCD251158) JUAN PABLO CRESPO, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Peter L. Gallagher, Judge. Affirmed. Michael P. Goldstein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION A jury convicted Juan Pablo Crespo of four counts of burglary (Pen. Code, § 459),1 two counts of grand theft (§ 487, subd. (a)), and one count of using multiple checks knowing he had insufficient funds in the bank for payment of the checks (§ 476a, subd. (a)). Crespo admitted he committed these crimes while he was out of custody on bail in another criminal case (§ 12022.1, subd. (b)). The court sentenced Crespo to two years and eight months in county jail. On appeal, Crespo contends the court committed prejudicial error by instructing the jury regarding the use of circumstantial evidence with CALCRIM Nos. 224 and 225. Crespo contends these form instructions are not consistent with authority stating circumstantial evidence must be inconsistent with any rational conclusion other than guilt, i.e., irreconcilable with innocence. (See People v. Bender (1945) 27 Cal.2d 164 , 175-176 (Bender), disapproved on other grounds in People v. Lasko (2000) 23 Cal.4th 101 , 110.) We conclude the instructions given correctly state the law and we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND A In August 2011 Crespo opened a savings account and a checking account at a credit union. Over the next several months, he made some deposits, but also had numerous checks returned for insufficient funds. With the exception of the first month, 1 All further statutory references are to the Penal Code unless otherwise indicated. 2 the ending balance of the checking account was overdrawn every month until the account was closed. The last deposit made in the account was on April 2, 2012, in the amount of $690.70. That same month, Crespo enrolled in an overdraft protection program to cover his overdrafts up to $500. Under the terms of this program, he was required to bring the account current within 30 days when he used the overdraft protection. By mid-April, the account was overdrawn by $1,230.84. On May 2, 2012, Crespo made two balance inquiries at an automatic teller machine. He also attempted to withdraw money from his account and was denied for insufficient funds. His account was overdrawn by more than $1,200.00. In mid-May, Crespo again made multiple attempts to withdraw funds, which were denied due to insufficient funds. The same month, multiple checks were returned for insufficient funds. Each time a check is returned for insufficient funds, the account holder is notified by letter. B On May 28, 2012, Crespo submitted two checks, one for $376 and another for $838.24, seemingly to pay for merchandise he took from Torrey Pines Pro Shop (Pro Shop) in two separate transactions. At the time of these transactions, Crespo's checking account was overdrawn by more than $1,400.00. When both checks were returned for insufficient funds, the accountant at the Pro Shop left voice mail messages and sent demand letters to Crespo. Crespo did not respond 3 to these inquiries and the letters were returned as undeliverable. The Pro Shop has never been paid for the merchandise. C The credit union closed Crespo's account in mid-June 2012. He was notified of the closure by letter. In July, Crespo took clothing from Gary's Studio (the Studio) in two separate transactions, again ostensibly paying by two checks ($1,881.62 on July 16 and $965.87 on July 17). The checks were returned as dishonored. The accountant from the Studio called Crespo. Crespo returned one call and left a message saying he was aware of the situation. He apologized and promised to call back the Studio. He did not call back, however, and he failed to respond to additional calls. A demand letter sent to Crespo by certified mail was returned as undeliverable. The Studio did not recover the $2,859.49 lost in these transactions. D A little over a year earlier, in April 2011, Crespo wrote three checks from another banking institution to obtain possession of a car from a car dealership. Crespo initially presented a $10,000 check for the vehicle before going out of town. Upon his return, he presented two additional checks for the balance of the vehicle and took possession of the vehicle. When the first check for $10,000 was returned for insufficient funds, the dealership telephoned Crespo's banking institution and learned there were insufficient funds to cover the other checks as well. The dealership attempted to contact Crespo by telephone, e-mail and in person. Crespo did not repay the dealership and did not return 4 the car. The car was eventually recovered by law enforcement officers in another part of the state. E Crespo's defense was that even though Crespo did not make good financial decisions, the evidence did not show he had the requisite intent to defraud at the time of the transactions to be convicted of the charged crimes. Defense counsel argued, "the circumstantial evidence actually points to innocence." Counsel argued Crespo's attempt to obtain discounts at the Pro Shop and his selection of sale items at the Studio, suggested he intended to pay. Defense counsel also argued his multiple balance inquiries in May 2012, before the Pro Shop transactions, suggested he was expecting money to be deposited in his account and, therefore, he could have thought money would be in his account when the checks he wrote cleared. F After deliberating for less than two hours, the jury found Crespo guilty on all counts. The court sentenced Crespo to an aggregate term of two years and eight months in county jail based on concurrent middle terms for two counts of grand theft and a consecutive two-year term for the out-on-bail enhancement. Sentencing for the remaining counts was stayed pursuant to section 654, subdivision (a). DISCUSSION Crespo contends evidence of his intent to commit the charged crimes was circumstantial and, relying on Bender, supra, 27 Cal.2d 164 , he contends "[t]he trial court committed prejudicial error by failing to instruct the jury that it could not convict unless 5 the circumstantial evidence was inconsistent with any rational conclusion other than guilt." Crespo specifically challenges the adequacy of pattern jury instructions, CALCRIM Nos. 224 and 225, regarding the use of circumstantial evidence. I Preliminarily, the People contend Crespo forfeited his claim of instructional error by failing to raise it in the trial court. As a general rule, " '[a] party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial." (People v. Livingston (2012) 53 Cal.4th 1145 , 1165.) Crespo does not dispute he did not object to the jury instructions, but contends he was not required to do so because the instructions are not correct in law. "The rule of forfeiture does not apply . . . if the instruction was an incorrect statement of the law [citation], or if the instructional error affected the defendant's substantial rights." (People v. Franco (2009) 180 Cal.App.4th 713 , 719.) " 'Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Ramos (2008) 163 Cal.App.4th 1082 , 1087.) As we explain in the section below, we conclude the instructions given correctly stated the law. Therefore, Crespo forfeited his claim of instructional error by failing to request a clarifying instruction. 6 II " 'An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law.' [Citation] ' " '[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' " ' [Citation.] Taking into account the instructions as a whole and the trial record, we 'determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.' [Citation.] We presume that jurors are intelligent and capable of correctly understanding, correlating, applying, and following the court's instructions." (People v. Acosta (2014) 226 Cal.App.4th 108 , 119.) "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." (People v. Martin (2000) 78 Cal.App.4th 1107 , 1112.) In Bender, supra, 27 Cal.2d 164 , the Supreme Court stated in cases involving the use of circumstantial evidence, a jury should be instructed with the principle that " 'to justify a conviction, the facts or circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion.' " (Id. at p. 175.) The Supreme Court also agreed " '[n]either the statement in an instruction that the guilt of the defendant may be established beyond a reasonable doubt, nor the statement that as between two opposing reasonable inferences the one which is consistent with innocence must be preferred to the one tending to show guilt, satisfies the right of the defendant to have the jury instructed that where circumstantial evidence is relied upon 7 by the People it must be irreconcilable with the theory of innocence in order to furnish a sound basis for conviction.' " (Id. at pp. 175-176, quoting People v. Hatchett (1944) 63 Cal.App.2d 144 , 155.) However, the Supreme Court concluded there was no miscarriage of justice based on instructional error because the jury was "not altogether uninstructed" (they were instructed about evidence susceptible to conflicting interpretations) and because the evidence pointed "irresistibly" to the defendant as the perpetrator of the crime. (Bender, at p. 177.) Neither CALCRIM No. 224 nor CALCRIM No. 225 contain language stating circumstantial evidence must either be "inconsistent with any . . . rational conclusion [other than guilt]" or "irreconcilable with the theory of innocence." (Bender, supra, 27 Cal.2d at pp. 175-176.) However, Crespo cites no authority requiring the use of this precise language. The precise form of the traditional instruction is not essential, as long as the doctrine is plainly stated. (People v. Navarro (1946) 74 Cal.App.2d 544 , 550 ["[w]ords of equal import may be substituted if the principle is substantially but clearly and fairly set forth"].) The Supreme Court has held courts should give "an instruction embodying the principle that to justify a conviction on circumstantial evidence the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion." (People v. Yrigoyen (1955) 45 Cal.2d 46 , 49, italics added.) In this case, the trial court instructed the jury regarding the use of circumstantial evidence with CALCRIM No. 224 as follows: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find Mr. Crespo guilty has been proved, you 8 must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find [Mr. Crespo] guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that [Mr. Crespo] is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." (Italics added) The trial court also instructed the jury regarding the use of circumstantial evidence to prove intent or mental state with CALCRIM No. 225 as follows: "The People must prove not only that [Mr. Crespo] did the act charged, but that he also acted with a particular intent or mental state. The instruction for each crime and allegation explains the intent or mental state required. [¶] An intent or mental state may be proved by circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to find [Mr. Crespo] guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that [Mr. Crespo] had the required intent or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that [Mr. Crespo] had the required intent or mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that [Mr. Crespo] did have the required intent or mental state and another 9 reasonable conclusion supports a finding that he did not, you must conclude that the required intent or mental state was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." (Italics added.) We conclude the language we italicized above from both CALCRIM Nos. 224 and 225 instructs the jury it must be convinced "the only reasonable conclusion" supported by the circumstantial evidence was guilt or the possession of the required mental state is a correct statement of the law. The language adequately conveys and embodies the principle articulated in Bender, supra, 27 Cal.2d at page 175 that circumstantial evidence must be " 'inconsistent with any . . . rational conclusion' " other than guilt. Contrary to Crespo's contention, the CALCRIM language does not merely convey circumstantial evidence must be consistent with guilt, it must be "the only reasonable conclusion" to be drawn from the circumstantial evidence. (CALCRIM Nos. 224, 225, italics added.) In this case, even if these instructions could be construed as erroneous, we conclude there was no miscarriage of justice. "[A] 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818 , 836.) The evidence in this case leads to the overwhelming conclusion Crespo knew he had insufficient funds in his credit union account when he wrote the checks to the Pro Shop and to the Studio. Numerous checks were returned for insufficient funds. He made numerous balance inquiries and withdrawal attempts in early 10 May 2012, which showed he had a negative balance before he wrote the checks to the Pro Shop. His account was closed before he wrote the checks to the Studio. The fact he asked for a discount or selected sale items in no way leads to a rational conclusion he did not intend to defraud the merchants by passing bad checks. DISPOSITION The judgment is affirmed. MCCONNELL, P. J. WE CONCUR: O'ROURKE, J. AARON, J. 11 | opinion_html_with_citations | 2,614 | 2015-02-27 20:02:22.323645+00 | 010combined | f | f | 2,782,980 | null | null | C | f | Unpublished | 0 | People v. Crespo CA4/1 | null | null | null | null | null | null | null | null | null | null | null | 2,637,977 | D065318 | 0 | calctapp | SA | t | California Court of Appeal | California Court of Appeal |
5,536,698 | Motion, insofar as it seeks leave to appeal from the July 12, 1984 order denying leave to appeal to this court, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal otherwise, denied. | opinion_xml_harvard | 50 | 2022-01-10 18:23:36.931758+00 | 020lead | t | f | 5,687,557 | null | null | U | f | Published | 0 | Vucetovic v. City of New York Police Department | Vucetovic | In the Matter of Ismet Vucetovic v. City of New York Police Department | null | null | null | null | null | null | null | null | null | 62,041,001 | null | 0 | ny | S | t | New York Court of Appeals | New York Court of Appeals |
1,276,048 | 497 F.3d 204 (2007) UNITED STATES, Plaintiff-Appellee, v. Mohammad KHAN, Akbar Khan, Muhammad Room, Montaz, Humayyum, John Patrick Donohue, as attorney for Khista Bacha, Amir Amaan, Dor Amaan, Bacha Khan, Ali Sher, Liaqat Ali, Sami Ur-Rahman, Said Ur Rahman, Gul Bacha, Bahroz Khan, Rahman Ali, Hanifa, Abdul Samad Khan, Aftab Ahmed, Sultan Zaib, Muhammad Ilyas Khan, Rashid Ahmed, Barakat Khwaja, Haroon Rasheed, Muzzafer Khan, Aftab Ud Din, Aziz Ur Rahman, also known as Azizullah, Imran Mateen, also known as Shakoor, Fazal Bacha, Rashid Iqbal, Muhammad Rahman, Nadar Shah, Muhammad Khan, Rahman Zaib, Ali Haider, Qadar Shab, Khalid Bacha, Amir Hamza, Abdul Kalam, also known as Humayyun, Arsala Khan, Muzaffar Khan, M. Khalid Farooqi, Muhammad Zahir, Ibn E. Amin, Muhammad Zaib, Shaffi Ullah, Ali Sher Khan, Bahadar Sher Khan, Ali Khan, Rafiq Ahmed, Alam Gir, Imran Matin, Samieur Rahman, M.A. Yeem, Mozafar Khan, Habib Ur Rehman, Sher Rahman, Badshah Amin, Rasheed Ahmed, Shams Ur Rahman, Muhammad Arifkhan, Noor Mohammad, Dil Aram Jan, Shafiullah, Mohammed Zeb, Ghulm Rahman, Fazal Rahman, Mohammad Room, Zahir Shah, Mohammad Amin, Sher Khan, Mohammad Shoeb, Qadar Shah, Iqbal Sayed, Claimants-Appellants, $293,316 in United States Currency, More or Less, and all Proceeds Traceable Thereto Seized From Ali Sher Khan, $187,155 in United States Currency, More or Less, and all Proceeds Traceable thereto Seized from Akbar Ali Khan, $35,112 in United States Currency, More or Less, and all Proceeds Traceable thereto Seized from Fazal Subhan, Defendants, Fazal Subhan, Haroon Khan, Mohammad Khan, Sami Ullah, Diaz Ali Shah, Amir Bahadur, Rohmai Khan, Khan Haroon, Sqbal Syed, Mian Rahim Shah, Fazal Rehman, Rehmat Ali, Ali Rehman Seth, Tajul Malook, Mohammad Ishaq, Malik Sardar, Iqbal Ahmed, Mohammad Khan, Claimants. Docket No. 05-6522-cv. United States Court of Appeals, Second Circuit. Argued: April 18, 2007. Decided: August 10, 2007. *205 David B. Smith, English & Smith (John P. Donohue, Kittredge, Donley, Elson, Fullem & Emblick, LLP, Philadelphia, PA, on the brief), Alexandria, VA, for Claimants-Appellants. Laura D. Mantell, Assistant United States Attorney for the Eastern District of New York (Roslynn R. Mauskopf, United States Attorney, Steven Kim and Kathleen A. Nandan, Assistant United States Attorneys, on the brief), Brooklyn, NY, for Plaintiff-Appellee. Before: WALKER, STRAUB and B.D. PARKER, Circuit Judges. *206 JOHN M. WALKER, JR., Circuit Judge: The expression "you can take that to the bank" connotes the certainty and reliability of the banking system. This long-running dispute arises out of the disposition of several hundred thousand dollars that nearly eighty Pakistanis (the "contributor claimants") [1] wished to transfer from New York to Pakistan. Their problems arose from their decision not to entrust their funds to the international banking system but rather to three couriers. The couriers, who were also carrying some of their own money, were apprehended by the U.S. Customs Outbound Currency Team ("Customs") as they were about to board a flight to Pakistan and were subsequently convicted under the bulk cash smuggling provision of the USA PATRIOT Act. See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub.L. No. 107-56, 115 Stat. 272. The United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge ) concluded that the government could forfeit 50% of the funds owned by the couriers (the "convicted claimants") without violating the Excessive Fines Clause of the Eighth Amendment. United States v. $293,316 in U.S. Currency, 349 F. Supp. 2d 638 (E.D.N.Y.2004). As for the contributor claimants, it took them roughly three years to recover the money they had dispatched on what they had believed would be an overnight flight. Two attorneys, John P. Donohue and David B. Smith, who represent many of the contributor claimants and, not incidentally, also two of the three convicted claimants sought attorney's fees from the United States. The district court denied their request, and they now appeal from that decision. BACKGROUND In September 2002, the convicted claimants Ali Sher Khan, Akbar Ali Khan, and Fazan Subhan were arrested while on the jetway trying to board a flight from New York to Pakistan carrying $515,583.00 in U.S. currency, concealed, among other places, in soap and toothpaste boxes. In December 2002, they were convicted of bulk cash smuggling, see 31 U.S.C. § 5332(a), as well as various offenses relating to their failure to report to government agents the amount of money they were transporting, see 31 U.S.C. § 5316(a)(1)(A), (b). On or about February 10, 2003, the government filed a civil forfeiture action in rem against the funds seized from the convicted claimants. Because this case turns, in part, on whether the government was dilatory in eventually returning money to the contributor claimants, we must recite the course of proceedings in some detail. On or about March 11, 2003, Ali Sher Khan filed his answer to the complaint in rem as well as responses to the government's interrogatories. Cf. Fed.R.Civ.P. C(6)(b) (Supplemental Rules for Certain Admiralty and Maritime Claims) ("Interrogatories may be served with the complaint in an in rem action without leave of court. Answers to the interrogatories must be served with the answer to the complaint.") [hereinafter Supplemental Rules]. He did not submit a verified claim to the seized funds. In his papers, Ali Sher Khan mentioned the names of approximately forty-five of the eighty contributor claimants, which corroborated a list the *207 government had seized from his person. Customs then sent copies of the verified complaint, as well as the government's interrogatories, to these forty-five putative claimants. Customs also sent the same documents to various other contributor claimants, identified in a letter dated July 9, 2003 from Attorney David Udell, who was representing Akbar Ali Khan and Fazal Subhan. [2] Thus, by mid-summer 2003, the government had notified nearly all of the contributor claimants that their money had been seized. The contributor claimants, who had violated no law, understandably wanted their money back. Pursuant to Supplemental Rule C(6)(a)(i)(A), those asserting a right to seized funds must file verified claims promptly. See also Supplemental Rule C(6)(a)(iv); see generally United States v. Cambio Exacto, S.A., 166 F.3d 522 , 529 (2d Cir.1999) (citing United States v. Amiel, 995 F.2d 367 , 371 (2d Cir.1993)). This, unfortunately, they did not do, in part because some had gone to Pakistan and others did not quickly retain counsel. The district court, however, has the authority to extend the time period for filing verified claims. See Supplemental Rule C(6)(a)(i)(B). And, both Judge Weinstein and Magistrate Judge Cheryl L. Pollack proved accommodating. Still, by January 30, 2004, no claimant had filed a verified claim neither the convicted claimants nor a single one of the contributor claimants. [3] Eventually, the three convicted claimants and those who had contributed money to one of them, Ali Sher Khan, filed verified claims. On August 2, 2004, the government agreed to return money to forty-one of the forty-five contributors to Ali Sher Khan. However, the aggregate amount claimed by the contributors to Ali Sher Khan exceeded by $28,000 the amount the government had seized from him and his belongings. [4] Three of the four contributors whose claims remained in dispute at that point eventually prevailed after a hearing before Magistrate Judge Pollack, although not until July 1, 2005. With respect to those who had given their money to Akbar Ali Khan (the "Akbar Ali Khan contributors"), the process was slower. By August 2, 2004, a number of the Akbar Ali Khan contributors still had failed to respond to the government's interrogatories, and many had not filed verified claims. [5] Some contributors to Akbar Ali Khan were still filing claims as late as May 2005. As verified claims trickled in, the government pressed for the forfeiture of the full amount owned by the convicted claimants. The convicted claimants argued that forfeiture in that amount was unconstitutional *208 under the Excessive Fines Clause of the Eighth Amendment and in light of United States v. Bajakajian, 524 U.S. 321 , 118 S. Ct. 2028 , 141 L. Ed. 2d 314 (1998). The district court agreed, concluding that "forfeiture of the entire amount of [convicted] claimants' currency would be grossly disproportionate to the gravity of claimants' offenses." $293,316, 349 F.Supp.2d at 640. The district court ultimately ordered the forfeiture of half of the convicted claimants' own funds, amounting to "$33,500 for Ali Sher Khan, $9,650 for Akbar Ali Khan, and $5,000 for Fazal Subhan." Id. at 651. In August 2005, the government began the process of issuing checks to both the contributor claimants and the convicted claimants. Thereupon, attorneys Donohue and Smith sought fees and expenses in the amount of $157,884.81, a little under a third of the total amount seized from the convicted claimants on the jetway. The district court denied their application, noting that although "[c]ounsel for all parties . . . acted ethically and properly. . . . [t]he Claimants' choice of a surreptitious method for sending their money . . . led to this costly litigation." The district court concluded that attorneys Donohue and Smith could not, pursuant to the Civil Asset Forfeiture Reform Act of 2000, Pub.L. No. 106-185, 117 Stat. 202 ("CAFRA"), obtain fees for their work on behalf of the contributor claimants because there "were `competing claims' [to the same property] within the meaning of section 2465(b)(2)(C)(ii)." Cf. 28 U.S.C. § 2465(b)(2). The district court also held that they could not obtain fees for their work on behalf of the convicted claimants because the government had been "substantially justified" in seeking forfeiture of the convicted claimants' money, or, in the alternative, because CAFRA preempted the Equal Access to Justice Act ("EAJA"), see 28 U.S.C. §§ 2412(b), (d)(1)(A), and because CAFRA does "not apply if the claimant is convicted of a crime for which the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law," 28 U.S.C. § 2465(b)(2)(B). This appeal followed. ANALYSIS I. The Civil Asset Forfeiture Reform Act In passing CAFRA, Congress was reacting to public outcry over the government's too-zealous pursuit of civil and criminal forfeiture. Cf. United States v. Funds Held in the Name or for the Benefit of Wetterer, 210 F.3d 96 , 110 (2d Cir. 2000) ("[W]e see aggressive but marginal claims asserted on dubious jurisdiction to seize charitable funds raised for the relief of abject orphans in an impoverished country, so that the money can be diverted for expenditure by the Department of Justice."). As part and parcel of this effort to deter government overreaching, Congress provided for the payment of "reasonable attorney fees and other litigation costs" to claimants who "substantially prevail[]" in a "civil proceeding to forfeit property." 28 U.S.C. § 2465(b)(1)(A). However, Congress had no wish to expand government liability respecting legitimate seizures of property plausibly subject to forfeiture; thus, CAFRA also provides that, [i]f there are multiple claims to the same property, the United States shall not be liable for costs and attorneys fees associated with any such claim if the United States (i) promptly recognizes such claim; (ii) promptly returns the interest of the claimant in the property to the claimant, if the property can be divided without difficulty and there are no *209 competing claims to that portion of the property; (iii) does not cause the claimant to incur additional, reasonable costs or fees; and (iv) prevails in obtaining forfeiture with respect to one or more of the other claims. 28 U.S.C. § 2465(b)(2)(C). It was this "multiple claims exception" that the district court invoked to deny Donohue and Smith's request for attorney's fees for their work on behalf of the contributor claimants. [6] Appellants argue (1) that the bulk cash seized from the convicted claimants is not the "same property" within the meaning of the multiple claims exception (because each dollar bill is a discrete parcel of property) and (2) even if it is, the government did not comply with the four predicates to the exception. [7] We disagree. Addressing Appellants' arguments seriatim, claims need not be "competing," viz. mutually exclusive, as Appellants apparently believe, in order for the claims to relate "to the same property." Indeed, were we to read the statute as Appellants do, we would nullify the second clause of § 2465(b)(2)(C), which affords the government leeway to return property more slowly if there are "competing claims." Cf. South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 , 510 n. 22, 106 S. Ct. 2039 , 90 L. Ed. 2d 490 (1986). In addition, under Appellants' reading, the multiple claims exception could apply to currency only when the claims exceed the value of the seized money. We read the statute more broadly; we see situations *210 involving several, mutually exclusive claims to the same currency as just one of the many situations covered by the multiple claims exception. That exception also applies where, as here, the "same property" is a pool of fungible currency that matches or exceeds the "multiple" but non-exclusive claims lodged against it. Appellants' second argument is that the government has not satisfied the four prerequisites to the multiple claims exception. It is equally unavailing. Appellants cannot seriously contest two of the prerequisites. They concede, as they must, that the government has "prevail[ed] in obtaining forfeiture with respect to one or more of the other claims." 28 U.S.C. § 2465(b)(2)(C)(iv). It is also clear on this record despite Appellants' attack on the government's discovery practice that the government did not cause Appellants to incur additional fees. Cf. id. § 2465(b)(2)(C)(iii). As the district court noted, "[t]he government . . . [wa]s doing its job in trying to find out whether these are the people or in fact criminals taking money out illegally . . . and therefore . . . it [wa]s perfectly sound for the government to make inquiries." Appellants principally argue that the government neither promptly recognized their claims nor promptly returned their money. Cf. id. § 2465(b)(2)(C)(i), (ii). The Supreme Court has discussed the meaning of "prompt[ness]" with respect to civil forfeiture. In United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in United States Currency, the Court explained that "the Government and the claimant have an interest in a rule that allows the Government some time to investigate the situation in order to determine whether the facts entitle the Government to forfeiture so that, if not, the Government may return the money without formal proceedings." 461 U.S. 555 , 565, 103 S. Ct. 2005 , 76 L. Ed. 2d 143 (1983). In that case, the Court considered reasonable for the purposes of due process an eighteen-month delay between the seizure of property and the institution of forfeiture proceedings, in light of "the Government's diligent efforts in processing the petition for mitigation or remission and in pursuing related criminal proceedings." Id. at 569, 103 S. Ct. 2005 ; see also United States v. Banco Cafetero Panama, 797 F.2d 1154 , 1163 (2d Cir.1986) (discussing $8,850 ). While this analysis does not control our interpretation of CAFRA, it does inform it. The government acted more quickly in this case to recognize claims than it did in $8,850 in deciding whether to pursue forfeiture. [8] The government, and the district court, gave Appellants every opportunity to file verified claims to the seized currency, as they were required to do by the Supplemental Rules. Appellants did so only belatedly; moreover, since one contributor claimant filed false claims and one convicted claimant modified the amount he claimed downward on the eve of a hearing, the government's careful pace was certainly understandable. Appellants also suggest that the government should have returned the claimed funds earlier; for instance, they argue that the government should have returned money to the forty-one contributor claimants the government recognized on August 4, 2004. But Appellants ignore that there were "competing claims to that portion of the property" that were resolved only a few months before the government had begun issuing checks. 28 U.S.C. *211 § 2465(b)(2)(C)(ii). Indeed, had the government returned money to those forty-one contributor claimants, it might ultimately have lacked sufficient funds to pay the remaining four contributor claimants. As to the Ali Akbar Khan contributors, the government was still receiving documents in May 2005, again only a few months before it ultimately distributed the seized funds. All things considered, the government acted with reasonable dispatch under these complicated circumstances. Thus, we agree with the district court that Appellants are not entitled to attorney's fees for their work on behalf of the contributor claimants. II. The Equal Access to Justice Act Attorneys Donohue and Smith also seek fees for their work on behalf of the convicted claimants under the EAJA. The EAJA provides for the recovery of attorney's fees under either the common law or "under the terms of a[] statute which specifically provides for such an award" provided that no other statute bars the fee award. 28 U.S.C. § 2412(b); see also id. § 2412(d)(1)(A) (permitting fees "[e]xcept as otherwise specifically provided by statute"). Courts have taken two basic approaches to the construction of § 2412. Some circuits view that provision as a supplement to existing fee-shifting provisions. See Gavette v. Office of Pers. Mgmt., 808 F.2d 1456 , 1463-65 (Fed.Cir.1986) (en banc); United States v. 329.73 Acres of Land, 704 F.2d 800 , 803-10 (5th Cir.1983) (en banc); United States v. 101.80 Acres of Land, 716 F.2d 714 , 724 n. 16, 726-27 (9th Cir.1983). Under this view, the EAJA is only preempted when it is in irreconcilable tension with another fee-shifting statute. Other circuits, by contrast, have construed the EAJA to apply only in the absence of any other fee-shifting mechanisms. See E.E.O.C. v. O & G Spring & Wire Forms Speciality Co., 38 F.3d 872 , 882 (7th Cir. 1994); Natural Res. Def. Council, Inc. v. United States E.P.A., 703 F.2d 700 , 704-06 (3d Cir.1983); Envtl. Def. Fund, Inc. v. E.P.A., 716 F.2d 915 , 919 (D.C.Cir.1983) (per curiam). We need not decide the question here, for the EAJA and CAFRA are irreconcilably at odds. [9] Section 2465(b)(2)(A) expressly and unequivocally provides that "[t]he United States shall not be required to . . . make any other payments to the claimant not specifically authorized by this subsection. " (emphasis added). Thus, CAFRA is exclusive of all other remedies. And, since Appellants are not entitled to fees under CAFRA for their work on behalf of the convicted claimants, see supra Part I, they cannot obtain through the backdoor of the EAJA what Congress has forbidden them to obtain through the front door of CAFRA. We thus agree with the district court that Appellants are not entitled to attorney's fees for their work on behalf of the convicted claimants. * * * * * Whether or not each dollar carried by the convicted claimants could be traced to a different contributor claimant, we will not require the district court to engage in such metaphysical slicing-and-dicing. Cf. Frazier v. Cupp, 394 U.S. 731 , 740, 89 *212 S.Ct. 1420, 22 L. Ed. 2d 684 (1969). Rather, we recognize that complications often attend transactions involving scores of persons, across many miles, and involving several hundreds of thousands of dollars. Untangling the skein of ownership in cases like this one is a difficult and complicated task. Those complications will often mean that attorney's fees are properly withheld, even from innocent contributors. While we understand that many aliens use couriers to deliver money to friends and relatives because the couriers speak their language, charge no fees, and serve areas remote from the nearest Western Union branch, and while we are equally mindful that Donohue and Smith invested considerable time in helping the contributor claimants recover their money, under CAFRA those facts cannot justify the imposition of another burden on the public fisc. CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court. NOTES [1] The convention in this case has been to refer to these individuals as "contributor claimants," a convention to which we adhere. In reality, however, they are consignors. [2] While Donohue eventually undertook the representation of Akbar Ali Khan and those who had entrusted him with their funds (the "Akbar Ali Khan contributors"), David Udell apparently continues to represent Fazal Subhan and the Fazal Subhan contributors. The rest of their story is irrelevant to this appeal. [3] In June 2003, the convicted claimants filed motions seeking leave to file their claims out of time. [4] It appears that Ali Sher Khan was responsible for some of this confusion, as he did not amend his claim downward making these four contributors' claims more plausible until October 19, 2004, on the eve of a hearing before Magistrate Judge Pollack. [5] Some of the Akbar Ali Khan contributors had filed claims on March 9, 2004; these claims, however, were unverified. And, as one of the contributors already had filed a series of false claims for more than $60,000, the government "declined to recognize or attempt to settle any of the claims . . . that [were] not notarized or verified." [6] We need not spend much time on Appellants' argument that they are entitled, under CAFRA, to fees for their work on behalf of the convicted claimants. CAFRA simply does "not apply if the claimant is convicted of a crime for which the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law." 28 U.S.C. § 2465(b)(2)(B); see United States v. U.S. Currency in Sum of Six Hundred Sixty Thousand, Two Hundred Dollars, More or less, 429 F. Supp. 2d 577 , 580-81 (E.D.N.Y.2006). The convicted claimants were, in a word, convicted. The argument that 28 U.S.C. § 2465(b)(2)(B) applies only if the government pursues criminal forfeiture, defies common sense. The plain text of CAFRA bars fee awards if the property was subject to forfeiture under federal law, not just if the property was actually forfeited. Cf. Sullivan v. Stroop, 496 U.S. 478 , 484, 110 S. Ct. 2499 , 110 L. Ed. 2d 438 (1990). [7] Were we required to reach the question, we would be inclined to agree with the district court that most, if not all, of the contributor claimants could not recover fees as "prevailing" parties. While we need not firmly decide the question, we think that the Supreme Court's decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources should inform our understanding of the term "substantially prevails" in CAFRA. In Buckhannon, the Court clarified that only "enforceable judgments on the merits and court-ordered consent decrees create the `material alteration of the legal relationship of the parties' necessary to permit an award of attorney's fees." 532 U.S. 598 , 604, 121 S. Ct. 1835 , 149 L. Ed. 2d 855 (2001) (quoting Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782 , 792-93, 109 S. Ct. 1486 , 103 L. Ed. 2d 866 (1989)); see also Sole v. Wyner, U.S. , 127 S. Ct. 2188 , 2195-97, 167 L. Ed. 2d 1069 (2007) (holding that a party who obtained a preliminary injunction but subsequently saw her case dismissed on summary judgment did not attain "prevailing party" status required to obtain fees). Indeed, we are inclined to agree with the Ninth Circuit that the text of CAFRA suggests that Congress meant the fee-shifting provision to apply only in the event a claimant won in court. See Synagogue v. United States, 482 F.3d 1058 , 1062 (9th Cir. 2007) (interpreting "`any civil proceeding to forfeit property' [to] refer [only] to a proceeding in court"); see also 28 U.S.C. § 2465(b)(2)(D) (providing for reduction in fees if the court " enters judgment in part for the claimant and in part for the Government") (emphasis added). [8] With respect to the Ali Sher Khan contributors, for instance, verified claims were filed in January 2004 and the government recognized the vast majority of those claims in August 2004, a span of eight months. [9] We note, however, that the latter view better accords with the text of the EAJA and with its legislative history. See H.R.Rep. No. 96-1418, at 18 (1980), as reprinted in 1980 U.S.C.C.A.N. 4984, 4997 (explaining that "this section is not intended to replace or supercede any existing fee-shifting statutes . . . or to alter the standards or the case law governing those Acts. It is intended to apply only to cases (other than tort cases) where fee awards against the government are not already authorized"). | opinion_html_with_citations | 4,088 | 2013-10-30 05:19:24.368337+00 | 010combined | f | f | 1,276,048 | Walker, Straub and B.D. Parker, Circuit Judges | null | LU | f | Published | 16 | United States v. Khan | Khan | UNITED STATES, Plaintiff-Appellee, v. Mohammad KHAN, Akbar Khan, Muhammad Room, Montaz, Humayyum, John Patrick Donohue, as Attorney for Khista Bacha, Amir Amaan, Dor Amaan, Bacha Khan, Ali Sher, Liaqat Ali, Sami Ur-Rahman, Said Ur Rahman, Gul Bacha, Bahroz Khan, Rahman Ali, Hanifa, Abdul Samad Khan, Aftab Ahmed, Sultan Zaib, Muhammad Ilyas Khan, Rashid Ahmed, Barakat Khwaja, Haroon Rasheed, Muzzafer Khan, Aftab Ud Din, Aziz Ur Rahman, Also Known as Azizullah, Imran Mateen, Also Known as Shakoor, Fazal Bacha, Rashid Iqbal, Muhammad Rahman, Nadar Shah, Muhammad Khan, Rahman Zaib, Ali Haider, Qadar Shab, Khalid Bacha, Amir Hamza, Abdul Kalam, Also Known as Humayyun, Arsala Khan, Muzaffar Khan, M. Khalid Farooqi, Muhammad Zahir, Ibn E. Amin, Muhammad Zaib, Shaffi Ullah, Ali Sher Khan, Bahadar Sher Khan, Ali Khan, Rafiq Ahmed, Alam Gir, Imran Matin, Samieur Rahman, M.A. Yeem, Mozafar Khan, Habib Ur Rehman, Sher Rahman, Badshah Amin, Rasheed Ahmed, Shams Ur Rahman, Muhammad Arifkhan, Noor Mohammad, Dil Aram Jan, Shafiullah, Mohammed Zeb, Ghulm Rahman, Fazal Rahman, Mohammad Room, Zahir Shah, Mohammad Amin, Sher Khan, Mohammad Shoeb, Qadar Shah, Iqbal Sayed, Claimants-Appellants, $293,316 in United States Currency, More or Less, and All Proceeds Traceable Thereto Seized From Ali Sher Khan, $187,155 in United States Currency, More or Less, and All Proceeds Traceable Thereto Seized From Akbar Ali Khan, $35,112 in United States Currency, More or Less, and All Proceeds Traceable Thereto Seized From Fazal Subhan, Defendants, Fazal Subhan, Haroon Khan, Mohammad Khan, Sami Ullah, Diaz Ali Shah, Amir Bahadur, Rohmai Khan, Khan Haroon, Sqbal Syed, Mian Rahim Shah, Fazal Rehman, Rehmat Ali, Ali Rehman Seth, Tajul Malook, Mohammad Ishaq, Malik Sardar, Iqbal Ahmed, Mohammad Khan, Claimants | null | null | <parties id="b230-6">
UNITED STATES, Plaintiff-Appellee, v. Mohammad KHAN, Akbar Khan, Muhammad Room, Montaz, Humayyum, John Patrick Donohue, as attorney for Khista Bacha, Amir Amaan, Dor Amaan, Bacha Khan, Ali Sher, Liaqat Ali, Sami Ur-Rahman, Said Ur Rahman, Gul Bacha, Bahroz Khan, Rahman Ali, Hanifa, Abdul Samad Khan, Aftab Ahmed, Sultan Zaib, Muhammad Ilyas Khan, Rashid Ahmed, Barakat Khwaja, Haroon Rasheed, Muzzafer Khan, Aftab Ud Din, Aziz Ur Rahman, also known as Azizullah, Imran Mateen, also known as Shakoor, Fazal Bacha, Rashid Iqbal, Muhammad Rahman, Nadar Shah, Muhammad Khan, Rahman Zaib, Ali Haider, Qadar Shab, Khalid Bacha, Amir Hamza, Abdul Kalam, also known as Humayyun, Arsala Khan, Muzaffar Khan, M. Khalid Farooqi, Muhammad Zahir, Ibn E. Amin, Muhammad Zaib, Shaffi Ullah, Ali Sher Khan, Bahadar Sher Khan, Ali Khan, Rafiq Ahmed, Alam Gir, Imran Matin, Samieur Rahman, M.A. Yeem, Mozafar Khan, Habib Ur Rehman, Sher Rahman, Badshah Amin, Rasheed Ahmed, Shams Ur Rahman, Muhammad Arifkhan, Noor Mohammad, Dil Aram Jan, Shafiullah, Mohammed Zeb, Ghulm Rahman, Fazal Rahman, Mohammad Room, Zahir Shah, Mohammad Amin, Sher Khan, Mohammad Shoeb, Qadar Shah, Iqbal Sayed, Claimants-Appellants, $293,316 in United States Currency, More or Less, and all Proceeds Traceable Thereto Seized From Ali Sher Khan, $187,155 in United States Currency, More or Less, and all Proceeds Traceable thereto Seized from Akbar Ali Khan, $35,112 in United States Currency, More or Less, and all Proceeds Traceable thereto Seized from Fazal Subhan, Defendants, Fazal Subhan, Haroon Khan, Mohammad Khan, Sami Ullah, Diaz Ali Shah, Amir Bahadur, Rohmai Khan, Khan Haroon, Sqbal Syed, Mian Rahim Shah, Fazal Rehman, Rehmat Ali, Ali Rehman Seth, Tajul Malook, Mohammad Ishaq, Malik Sardar, Iqbal Ahmed, Mohammad Khan, Claimants.
</parties><br><docketnumber id="b230-13">
Docket No. 05-6522-cv.
</docketnumber><br><court id="b230-14">
United States Court of Appeals, Second Circuit.
</court><br><otherdate id="b230-15">
Argued: April 18, 2007.
</otherdate><br><decisiondate id="b230-16">
Decided: Aug. 10, 2007.
</decisiondate><br><attorneys id="b231-18">
<span citation-index="1" class="star-pagination" label="205">
*205
</span>
David B. Smith, English & Smith (John P. Donohue, Kittredge, Donley, Elson, Fullem & Emblick, LLP, Philadelphia, PA, on the brief), Alexandria, VA, for Claimants-Appellants.
</attorneys><br><attorneys id="b231-19">
Laura D. Mantell, Assistant United States Attorney for the Eastern District of New York (Roslynn R. Mauskopf, United States Attorney, Steven Kim and Kathleen A. Nandan, Assistant United States Attorneys, on the brief), Brooklyn, NY, for Plaintiff-Appellee.
</attorneys><br><judges id="b231-20">
Before: WALKER, STRAUB and B.D. PARKER, Circuit Judges.
</judges> | null | null | null | null | null | null | 737,149 | Docket 05-6522-cv | 0 | ca2 | F | t | Second Circuit | Court of Appeals for the Second Circuit |
2,342,105 | 637 F. Supp. 1186 (1986) Gene Sexton CLARY, Administratrix of the Estate of Wilton W. Clary, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant. Civ. A. No. A-C-85-439. United States District Court, W.D. North Carolina, Asheville Division. July 9, 1986. *1187 Toms & Bazzle, P.A. by James H. Toms and Ervin W. Bazzle, Hendersonville, N.C., for plaintiff. Charles R. Brewer, U.S. Atty. by Clifford C. Marshall, Asst. U.S. Atty., Asheville, N.C., for defendant. MEMORANDUM OF DECISION SENTELLE, District Judge. Plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, as amended, [42 U.S.C. § 405(g)] to obtain judicial review of a final decision of the Secretary of Health and Human Services. The Secretary determined that the plaintiff's entitlement to retirement insurance benefits was properly suspended in May of 1983, that the plaintiff was overpaid $2,036.00 in retirement benefits for the period May to August, 1983, and that the plaintiff was not entitled to a waiver of recovery of said overpayment under § 204(b) of the Act, as amended [42 U.S.C. § 404(b)]. This Court finds that there is substantial evidence to support the Secretary's findings and affirms the decision. The plaintiff [1] had filed an application for retirement insurance benefits on May 8, 1978. He began receiving benefits in August of 1978. On April 27, 1981, a judgment and commitment was entered in the Superior Court of North Carolina which found the plaintiff guilty of first degree murder, a felony, and plaintiff was sentenced to a life term in prison. In June of 1983, the Department of Health and Human Services informed plaintiff that his retirement benefits entitlement ended in May of 1983, pursuant to Public Law 98-21, 42 U.S.C. § 402(x), which became effective May 1, 1983. Title 42, U.S.C., Section 402(x) provides: (1) Notwithstanding any other provision of this subchapter, no monthly benefits shall be paid under this section or under section 423 of this title to any individual for any month during which such individual *1188 is confined in a jail, prison, or other penal institution or correctional facility, pursuant to his conviction of an offense which constituted a felony under applicable law, unless such individual is actively and satisfactorily participating in a rehabilitation program which has been specifically approved for such individual by a court of law and, as determined by the Secretary, is expected to result in such individual being able to engage in substantial gainful activity upon release and within a reasonable time. The plaintiff's request for reconsideration was denied, whereupon plaintiff requested a hearing. Pursuant to plaintiff's request, a hearing was held on November 22, 1984, where this decision on appeal was entered. The Appeals Council declined review, thereby affirming the decision making it a final decision capable of this Court's review. Plaintiff is now deceased and his estate is represented by counsel. Plaintiff asserts several points of error, none of which are well taken. Plaintiff asserts that the evaluations, findings and actions of the Administrative Law Judge and the subsequent affirmation by the Appeals Council and the Secretary of Health and Human Services by declining to review the case are not based on substantial evidence and are contrary to law and fact. First, plaintiff asserts that he was actively and satisfactorily participating in a rehabilitation program within the meaning of Section 202(x) of the Social Security Act which was expected to result in his being able to engage in substantial gainful employment upon release. The Secretary contends, it appears to this Court correctly, that the § 202(x) exception is applicable only to beneficiaries of disability insurance benefits and not to beneficiaries of retirement and survivors' insurance benefits. Zipkin v. HHS, 790 F.2d 16 (2nd Cir.1986). However, even if the provision were applicable to retirement beneficiaries, plaintiff's case would not come within the exception by its terms. The Secretary's findings, supported by competent evidence, establish that plaintiff was involved in tutoring other inmates in preparation for GED diplomas and general adult educational courses. Plaintiff had been recognized for his achievements in this tutoring. While this is a very worthwhile effort, Section 202(x) clearly states that for a claimant to collect benefits under Title II of the Social Security Act while incarcerated as a felon, he must be participating in a rehabilitation program which has been specifically approved for such individual. There is no evidence that this tutoring had been a specifically approved program for plaintiff. The plaintiff then fails to comply with requirements that would entitle him to the retirement payments for the months of May to August, 1983. In addition, Section 202(x) requires that even if the claimant is participating in a specifically approved program, the Secretary must determine that the rehabilitation program is expected to result in the claimant being able to engage in substantial gainful activity upon release and within a reasonable time. The Secretary found that the possibility of a work release program in four (4) years (6 years after suspension) did not meet this requirement. Four (4) years, the Secretary found, was not a "reasonable time" for a claimant to receive these retirement benefits when the activities he participated in taught him no new vocational skills but merely provided the claimant with ways to fill his time. There is substantial evidence to support this finding. Plaintiff reported that he was a high school graduate with two (2) years of college. There is no showing that these tutoring sessions for high school GED's expanded his marketable skills, and the possibility of work release was speculative at best. Next, plaintiff asserts that Section 204(b) of the Social Security Act does not speak directly to Old Age Benefits but is designed to recoup other overpayments. If this section does apply to plaintiff, then plaintiff asserts that there is no fault on his part as required for recoupment. Section 204(a) provides: Whenever the Secretary finds that more or less than the correct amount of payment *1189 has been made to any person under this subchapter, proper adjustment or recovery shall be made, under regulations prescribed by the Secretary, ... (i) ... shall require such overpaid person or his estate to refund the amount in excess of the correct amount ... (Emphasis added.) Section 204(b) provides: In any such case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience. (Emphasis added.) Clearly, this section speaks to all payments made under the subsection which includes retirement insurance payments. There is "no reason why prisoners whose retirement benefits are suspended would have a need for replacement income while prisoners whose disability benefits are suspended do not." Zipkin, supra . As far as fault is concerned, the Secretary found that there was at least constructive fault on the part of the plaintiff as he was an educated and literate man who knew or should have known that Social Security regulations preclude payments to persons incarcerated as felons. There is substantial evidence to support this finding. The regulations are available to the general public. The plaintiff, having applied for benefits, knew that the entitlement to benefits is dependent on several factors. Plaintiff should at least have questioned whether he, in prison with all his essential needs taken care of, was entitled to the retirement funds designed to help him survive in his old age and afford necessities. Even if plaintiff were completely faultless, however, he would not then automatically be entitled to a waiver of repayment of overpayments. A waiver is simply that, a waiver. Repayment under § 204(c) is the general rule. The Secretary gives a waiver only on the fulfillment of two conditions (1) absence of fault and (2) that repayment would defeat the purpose of the section. Leaving fault aside for now, it is clear that recoupment of overpayment from the plaintiff does not defeat the purpose of the section. Plaintiff, while confined, had all his essential needs taken care of. The retirement benefits exist to provide income to those who because of age may not be able to provide for themselves. Since the state provides for incarcerated felons at public expense, this purpose is not defeated. Since the plaintiff has died, it becomes a question of whether or not recoupment from the estate will defeat the purpose of the section. By Mrs. Clary's own testimony, she has $90,000 of liquid assets and herself receives a small monthly income from Social Security. There is substantial evidence to support the finding that the purpose of the section will not be defeated by recouping this money from the estate. Mrs. Clary will not be deprived of life's essentials. Plaintiff next asserts some vague constitutional arguments. Plaintiff asserts that § 202(x) is unconstitutional as applied to him. It has been well settled that there is no equal protection violation in the rehabilitation exception of § 202(x). Greenwell v. Walters, 596 F. Supp. 693 (M.D.Tenn. 1984); Zipkin, supra at 18. This section is rationally related to preserving scarce social security resources while providing an incentive to prisoners who would otherwise be denied benefits to participate in a rehabilitation program expected to result in substantial gainful activity upon release. Id. Plaintiff asserts that the statute is unconstitutional as it deprives him of a vested property right. The Social Security participation is a noncontractual benefit under a social welfare program. Washington v. HHS, 718 F.2d 608 (3rd Cir.1983). The program is an earned one. Congress can fix levels of benefits and set conditions upon which they are to be paid. Washington, supra at 610. Plaintiff does not *1190 deny being an incarcerated felon. He simply claims that once he earns the right to receive the benefits he should continue receiving benefits. Plaintiff had an opportunity for hearing wherein it was established that he was in fact a felon, and that none of the waiver requirements were met. The suspension of retirement benefits to an incarcerated felon is no different from the termination of auxiliary benefits, pursuant to 42 U.S.C. § 402(d)(1), due to change in economic conditions such as the marriage of a dependent child or the divorce of a dependent spouse. Zipkin, supra citing Califano v. Jobst, 434 U.S. 47 , 53, 98 S. Ct. 95 , 99, 54 L. Ed. 2d 228 (1977). There are no due process violations where Congress redefines by statute who should receive welfare funds. That, along with the statute itself being rationally related to a legitimate state interest, defeats plaintiff's vaguely alleged equal protection and due process violation claims. The Secretary's decision is AFFIRMED. NOTES [1] For purposes of brevity, "plaintiff" herein refers to the deceased claimant, rather than his administratrix, unless the context clearly indicates otherwise. | opinion_html_with_citations | 1,816 | 2013-10-30 09:10:48.348197+00 | 010combined | f | f | 2,342,105 | Sentelle | null | LU | f | Published | 0 | Clary v. Bowen | Clary | Gene Sexton CLARY, Administratrix of the Estate of Wilton W. Clary, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant | null | null | <parties id="b1256-3">
Gene Sexton CLARY, Administratrix of the Estate of Wilton W. Clary, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant.
</parties><br><docketnumber id="b1256-7">
Civ. A. No. A-C-85-439.
</docketnumber><br><court id="b1256-8">
United States District Court, W.D. North Carolina, Asheville Division.
</court><br><decisiondate id="b1256-11">
July 9, 1986.
</decisiondate><br><attorneys id="b1257-18">
<span citation-index="1" class="star-pagination" label="1187">
*1187
</span>
Toms & Bazzle, P.A. by James H. Toms and Ervin W. Bazzle, Hendersonville, N.C., for plaintiff.
</attorneys><br><attorneys id="b1257-19">
Charles R. Brewer, U.S. Atty. by Clifford C. Marshall, Asst. U.S. Atty., Asheville, N.C., for defendant.
</attorneys> | null | null | null | null | null | null | 2,212,377 | Civ. A. A-C-85-439 | 0 | ncwd | FD | t | W.D. North Carolina | District Court, W.D. North Carolina |
9,636,547 | OLSZEWSKI, Judge: Appellant Patricia Kemether was involved in an automobile accident in December 1990. She alleged that she was forced off the road by a large truck approaching on her side of the road. Immediately after the accident, Patricia identified the truck as an Agway truck. After investigation, however, Patricia concluded that the vehicle was not an Agway truck, but was a “phantom” or unidentified vehicle. On this basis, Patricia and her husband notified appellee Aetna of their insurance claim under the uninsured motorist clause of their policy. Based on Patricia’s initial identification of the vehicle as an Agway truck, Aetna claimed that it was not a “phantom” vehicle, and therefore was not covered under the uninsured motorist terms of the policy. Seeking a determination of liability, Aetna filed suit for declaratory judgment against the Kemethers and Agway. The trial court dismissed the action and referred the matter to arbitration, under the specific terms of the policy, in order to determine if the truck in question was a “phantom” or unidentified vehicle. On October 18, 1993, the arbitrators issued an award in favor of Aetna, finding that the Kemethers had failed to prove that the accident was the result of a “phantom” vehicle. The Kemethers filed a petition to modify or vacate award of arbitrators, which was denied by the trial court by Order dated April 11, 1994. This appeal followed. Initially, Aetna asserts that this appeal must be quashed, as no appeal lies from an order denying a petition to vacate or modify. Aetna is correct in noting that an order *471denying a petition to vacate or modify is not an appealable order under section 7320(a). 42 Pa.C.S.A. § 7320(a). See also Dunlap by Hoffman v. State Farm Ins., 377 Pa.Super. 165, 169, 546 A.2d 1209, 1211 (1988). The proper procedure is for the court to enter an order confirming the arbitrators’ award, either simultaneously with or following the entry of the order denying the petition to vacate or modify. Id. It is from this confirming order that an appeal lies. While no such confirming order was entered in the instant case, we find that it would be inappropriate to quash the appeal. The responsibility for entering a confirming order in such a case lies with the trial judge, not the appellant. In Dunlap, this Court found that it would not be proper to quash an appeal where no confirming order was entered after the denial of a petition to vacate. 377 Pa.Super. at 169, 546 A.2d at 1211. We wrote: [Ojnce appellant’s petition to set aside i.e. vacate was denied, it was not appellant’s obligation to file an application to confirm the award denying appellant recovery, but, rather, the obligation of the trial court to enter an order confirming the award simultaneously with the order denying appellant’s petition to set aside. Id. Therefore, it is incumbent upon the trial court to enter an order confirming the award, and the Kemethers will not be punished for the trial court’s failure to enter the required order. After determining that quashal was not appropriate, the Dunlap court remanded to the trial court so that the correct order could be entered and reduced to judgment. 377 Pa.Super. at 169, 546 A.2d at 1211. We find such a remand unnecessary in the present case. In Dunlap, the order denying the petition to vacate was never reduced to judgment. Id. Without any order that was reduced to judgment, we simply could not address the appeal. Id. Unlike Dunlap, we do have a judgment in the instant appeal.1 While it is a judg*472ment on the order denying the petition to vacate or modify, it is nonetheless a final judgment. The record fails to reveal, and no party suggests, any reason why the award should not have been confirmed after the trial court denied the petition to vacate or modify. Therefore, no purpose at all would be served by a remand to confirm the award, reduce that order to judgment, and bring the appeal right back to this Court. See Popskyj v. Keystone Ins. Co., 388 Pa.Super. 429, 432 n. 1, 565 A.2d 1184,1186 n. 1 (1989) (addressing the merits of an appeal taken from the denial of a petition to vacate or modify and refusing to remand for the “ministerial act” of entering a confirming order). Thus, notwithstanding the procedural irregularity, we will address the merits of this appeal. In the proceedings below, the trial court refused to address the issues raised in the Kemethers’ petition to vacate or modify award of arbitrators. The trial court applied Pennsylvania Rule of Civil Procedure 1307(d), which provides for very limited review of arbitration awards. In the explanatory note to section (d), it states that if a party is unhappy with an award, the sole remedy is an appeal for a trial de novo. It is only in limited situations where there are obvious mathematical or language errors that the trial court can modify or vacate an award without a trial de novo. Pa.R.C.P. 1307(d). Since the Kemethers petitioned to vacate or modify rather than for a trial de novo, and their claims did not involve obvious mathematical or language errors, the trial court denied the petition without addressing the Kemethers’ claims. While the trial court correctly read Pa.R.C.P. 1307(d), it incorrectly applied that rule to this case. The Kemethers’ claim against Aetna is brought under an insurance contract, which specifically states that arbitration will be in accordance with the provisions of the Pennsylvania Uniform Arbitration Act. R.R. 53a-54a. Since this contract is in writing and expressly provides for arbitration under the provisions of the Uniform Arbitration Act, it is presumed to provide for statutory arbitration pursuant to subchapter A. See 42 Pa.C.S.A. § 7302(d); Cigna Ins. Co. v. Squires, 427 Pa.Super. 206, 208, 628 A.2d 899, 900 (1993). Under the *473provisions of this subchapter, an appealing party must petition the court to vacate or modify the award. 42 Pa.C.S.A. §§ 7314 and 7315. In contrast, Pennsylvania Rule of Civil Procedure 1307(d), which requires an appeal by a trial de novo, only applies to actions which are submitted to compulsory arbitration pursuant to subchapter C. Therefore, we find that the trial judge incorrectly applied Pa.R.C.P. 1307(d) to the present case. Under subchapter A statutory arbitration, a party may appeal an award by filing a petition to vacate or modify the award pursuant to 42 Pa.C.S.A. §§ 7314 and 7315. The Kemethers filed the correct petition in accordance with the statute. Therefore, the trial court should have addressed the issues raised in the petition to vacate or modify. Since the trial court failed to address the properly raised claims of error, we must remand to the trial court and order it to hear the facts, make findings on the record, and rule on the claims of error. Order vacated. Remanded with instructions. Jurisdiction relinquished. Dissenting opinion by JOHNSON, J. . Appellants reduced the April 11, 1994, order denying the petition to vacate or modify to judgment on June 6, 1994. | opinion_xml_harvard | 1,171 | 2023-08-22 14:32:58.145479+00 | 020lead | f | f | 1,474,215 | Olszewski, Johnson and Hester | null | LU | f | Published | 7 | Kemether v. Aetna Life & Casualty Co. | Kemether | Patricia E. KEMETHER and Fred N. Kemether, Appellants, v. AETNA LIFE & CASUALTY COMPANY | null | null | <citation id="b536-4">
656 A.2d 125
</citation><br><parties id="b536-5">
Patricia E. KEMETHER and Fred N. Kemether, Appellants, v. AETNA LIFE & CASUALTY COMPANY.
</parties><br><court id="b536-8">
Superior Court of Pennsylvania.
</court><otherdate id="AS7">
Argued Dec. 1, 1994.
</otherdate><br><decisiondate id="b536-9">
Filed March 16, 1995.
</decisiondate><br><attorneys id="b538-4">
<span citation-index="1" class="star-pagination" label="470">
*470
</span>
Noreen Kemether, Philadelphia, for appellants.
</attorneys><br><attorneys id="b538-5">
Paul Barrett, Scranton, for appellee.
</attorneys><br><judges id="b538-6">
Before OLSZEWSKI, JOHNSON and HESTER, JJ.
</judges> | null | null | null | null | null | null | 1,042,559 | null | 0 | pasuperct | SA | t | Superior Court of Pennsylvania | Superior Court of Pennsylvania |
4,318,094 | Fourth Court of Appeals San Antonio, Texas JUDGMENT No. 04-18-00550-CR Vincent CAUDILLO Jr., Appellant v. The STATE of Texas, Appellee From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR6227W Honorable Frank J. Castro, Judge Presiding BEFORE CHIEF JUSTICE MARION, JUSTICE CHAPA, AND JUSTICE RIOS In accordance with this court’s opinion of this date, this appeal is DISMISSED. SIGNED October 3, 2018. Luz Elena D. Chapa, Justice | opinion_plain_text | 70 | 2018-10-04 12:26:25.577475+00 | 010combined | f | f | 4,540,841 | null | null | C | f | Published | 0 | Vincent Caudillo Jr. v. State | null | null | null | null | null | null | null | null | null | null | null | 7,981,353 | 04-18-00550-CR | 0 | texapp | SA | t | Court of Appeals of Texas | Court of Appeals of Texas |
3,598,485 | Order affirmed, with costs; no opinion. Concur: CULLEN, Ch. J., GRAY, HAIGHT, VANN, WERNER, WILLARD BARTLETT and CHASE, JJ. | opinion_html_columbia | 19 | 2016-07-05 23:45:34.861646+00 | 020lead | f | f | 3,616,158 | null | null | Z | f | Published | 0 | People Ex Rel. Melenbacker v. . Harrison | null | The People of the State of New York Ex Rel. Jacob Melenbacker v. . William K. Harrison, Constituting the President and Board of Trustees of the Village of Salamanca | null | null | null | null | null | null | null | null | null | 3,488,283 | null | 0 | ny | S | t | New York Court of Appeals | New York Court of Appeals |
8,766,636 | FINDINGS OF FACT, CONCLUSIONS OF LAW AND OPINION SHERIDAN, Chief Judge. This negligence action was tried in part before a jury. The remaining issues are now before the court for decision. Plaintiff, Joseph Ruddy, was an employee of H. N. Gardner Company, a heating and plumbing contractor engaged to perform work in the boiler room of the Scranton State Hospital, Scranton, Pennsylvania. Defendant, The Hartford Steam Boiler Inspection and Insurance Company,1 2was the insurer of certain boilers and vessels in the boiler room under an insurance policy issued to the State. On July 31, 1964, plaintiff was working for Gardner in the boiler room of the hospital. A section of pipe leading from a coil water heater at its connection with a “T” bushing burst and' scalding hot water and steam splashed over him causing first, second and third degree burns of the body. The part which burst consisted of the insertion of a brass pipe into an iron fitting which over the years produced an electrolysis thereby causing a weakened condition. The parties agreed to have certain fact issues submitted to the jury and to have questions of law concerning the interpretation of the insurance contract and duty to inspect, together with any unresolved factual issues, decided by the court. In answer to interrogatories, the jury found there was a defect in the pipe, that a reasonable inspection during each of the years 1962, 1963 and 1964 would have disclosed it, and fixed plaintiff’s damages at $15,000. Jurisdiction is based on diversity of citizenship under 28 U.S.C.A. § 1332. The substantive law of Pennsylvania controls. Plaintiff’s main contention is that Hartford undertook the State’s duty to inspect the boilers both as required by statute and regulations issued thereunder, and under the common law, and that its negligent performance of that duty rendered it liable. Mr. Robert Jones was employed by Hartford to inspect property which it insured, including certain boilers and vessels at Scranton State Hospital. Jones and other employees of Hartford worked somewhat in a dual capacity in that they were commissioned by the State to act as State inspectors.2 Therefore, when conducting an inspection for Hartford or required by the insurance contract, an employee of Hartford also functioned as a State inspector to see that the boiler system conformed to statutory and regulatory requirements. In September 1962, Jones inspected externally three coil water heaters, described as unfired pressure vessels, in the boiler room of the hospital. There was no inspection of these heaters in 1963 or 1964. There was no inspection at any time of the pipes or bushings leading from the water heaters. The implementing regulations in effect in 1964 and prior years required inspection of the water heaters only under certain pressure and heat requirements3 which did not exist in the water heaters in the boiler room of the hospital. The regulations did not require inspection of *317the piping. The violation of a state statute or governmental regulations made pursuant thereto constitutes negligence which gives rise to liability if it is the proximate cause of the accident. Cf. Quinones v. Township of Upper Moreland, 3 Cir. 1961, 293 F.2d 237; Shafer v. Mountain States Tel. & Tel. Co., 9 Cir. 1964, 335 F.2d 932. Here, since neither the statute nor the regulations required an inspection, it follows that the failure to inspect cannot give rise to liability. Plaintiff was on the hospital premises as an employee of Gardner, an independent contractor and business invitee. Plaintiff argues that a possessor of land is liable to a business invitee and its employees for negligent breach of the duty described in § 343 of Restatement 2d, Torts;4 and that Hartford, having assumed that duty, and negligently performed it, is liable under the principle that one who undertakes a duty owed by another must not be negligent in the performance of that duty. Section 324 A (b) of Restatement 2d, Torts provides : “§ 324 A. Liability to Third Person for Negligent Performance of Undertaking “One who undertakes, gratuitously or for consideration, to render services to another which he should recogni2;e as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if ****** “(b) he has undertaken to perform a duty owed by the other to the third person, * * Section 343 imposes a duty of affirmative care to see that the premises are safe for the reception of a business invitee, or at least to ascertain the condition of the premises and to give such warning that the visitor may decide intelligently whether to accept the invitation or may protect himself against the danger if he does accept it. Section 343, Comment: b. In determining the extent of preparation which an invitee, is entitled to expect to be made for his protection, the nature of the part of the premises involved and the purposes for which it is used are of great importance. Section 343, Comment: e. One using a part of the premises where the public normally traverses is entitled to expect that special preparation will be made for his safety whereas one invited to the boiler room of a hospital is entitled to expect only such safety as he would find in a properly conducted boiler room. Ibid. Moreover, Section 343 A of Restatement 2d, Torts provides: “§ 343 A. Known or Obvious Dangers “(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. “(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.” *318Here the jury found a defect in the pipe which would have been discoverable by a reasonable inspection during 1962, 1963 and 1964. Assuming the State, as owner of the hospital, breached its duty of inspection for the safety of plaintiff,5 and that the defect would not have been known or obvious to plaintiff, the evidence does not establish an assumption and breach of that duty by Hartford. Its inspection of the water heaters in 1962 was not an assumption and commencement of such complete and exclusive control of boiler room inspection so as to warrant the finding that it failed to discharge or complete a duty assumed and commenced. Cf. Franklin v. May Department Stores Co., E.D.Mo.1938, 25 F.Supp. 735. Even if Hartford’s inspection of the water heaters were an assumption and commencement of the duty to inspect the boiler room, the failure to inspect the pipe and bushing in 1962 was not the proximate cause of plaintiff’s injuries in 1964. The evidence is uncontradicted Hartford did not make an inspection in 1963 or 1964 beyond that required by the regulations. It therefore did not undertake any duty of the State to make a general inspection of the boiler room in 1963 or 1964. The State’s failure to properly inspect in 1964, especially when it knew that the contractor and its employees were coming on the premises, would be an intervening negligent act which constitutes a superceding cause so as to insulate Hartford from liability. The failure of the State to inspect and maintain its premises in 1963 and 1964 was so extraordinary as not to have been reasonably foreseeable by Hartford. Roadman v. Bellone, 1954, 379 Pa. 483, 108 A.2d 754; Skoda v. West Penn Power Co., 1963, 411 Pa. 323, 191 A.2d 822. Plaintiff also contends that Hartford insured the piping and bushing leading from the hot water tank and therefore owed a duty to inspect them. Plaintiff has cited no authority for the proposition that an insurer has a duty to inspect the property it insures. However, even if this were true, it is clear that the piping and bushing were not covered by the policy. Schedule 2 lists the various objects of the policy, their description as set out in Endorsement B(l) and the applicable definitions in Endorsement A(l).6 The piping and fitting involved in this accident were attached to a hot water tank known as a metal unfired pressure vessel. This fact is not disputed. Item 2 on Schedule 2 refers to Code UV-la of Endorsement B(l), viz.; “Metal Unfired Pressure Vessels which are permanently located on the premises of the Assured at the above described Location and w'hieh are subject to vacuum or internal pressure other than static pressure of contents, excluding (1) any such Vessel forming an integral part of a rotating or reciprocating machine, (2) Radiators, (3) Hot or Cold Blast Heating or Cooling United and (4) Electric Steam Generators.” This description does not include attached piping. Moreover Item 2 is referenced to Section C of Endorsement A(l) which defines unfired vessels as “DEFINITION OF OBJECT. ‘Object’ shall mean any complete vessel designated and described in this Schedule; but shall not include * * (d) any piping leading to or from such vessel * * It is clear that the policy did not cover the piping and bushing involved in this accident. Judgment will be entered for defendant, The Hartford Steam Boiler Inspection and Insurance Company. *319APPENDIX . Summary judgment Was entered in favor of the other defendant, The United States Fidelity and Guaranty Company. See 40 F.R.D. 484. . See 35 P.S. §§ 1304, 1304.1, 1305. . The regulations did not require inspections of “Unfired pressure vessels con-taming liquids under pressure not exceed-250 psi, regardless of size, the temperature of which shall never exceed a value of 25° F. less than the atmospheric boiling point of the liquid.” . “§ 343. Dangerous Conditions Known to or Discoverable by Possessor “A possessor oí land is subject to liability for physical harm caused to his invitees by a. condition on the land if, but only if, he “(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and “(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and “(c) fails to exercise reasonable care to protect them against the danger.” . This opinion does not deal with the immunity of the State from liability even if the duty of care were breached. The State was not sued. Hartford has not claimed that it is clothed with the immunity of the State. The duty of the State as a possessor of land is discussed only insofar as necessary to describe the duty which plaintiff contends Hartford assumed and negligently performed; . A photocopy of Schedule 2 is set out in the Appendix to this opinion. | opinion_xml_harvard | 1,837 | 2022-11-26 12:27:37.859349+00 | 020lead | t | f | 8,782,859 | Sheridan | null | U | f | Published | 0 | Ruddy v. United States Fidelity & Guaranty Co. | Ruddy | Joseph RUDDY v. The UNITED STATES FIDELITY AND GUARANTY COMPANY and the Hartford Steam Boiler Inspection and Insurance Company | null | null | null | null | null | null | null | null | null | 66,048,974 | Civ. No. 9026 | 0 | pamd | FD | t | M.D. Pennsylvania | District Court, M.D. Pennsylvania |
2,428,359 | 108 F. Supp. 2d 1067 (2000) UNITED STATES of America, Plaintiff, v. Arthur Larry BOWENS, Defendant. No. CR 99-40165 SBA. United States District Court, N.D. California. June 29, 2000. Jonathan Schmidt, Assistant United States Attorney, U.S. Attorney's Office, Oakland, CA, for plaintiff. Anne Flower Cumings, Assistant Federal Public Defender, Federal Public Defender's Office, Oakland, CA, for defendant. *1068 ORDER ARMSTRONG, District Judge. This matter comes before the Court on defendant's Motion to Dismiss for Lack of Jurisdiction [# 40-1]. Having read and considered the papers submitted by the parties and being fully informed, the Court hereby DENIES defendant's Motion to Dismiss. I. BACKGROUND On July 6, 1999, a federal complaint was filed against defendant Arthur Larry Bowens alleging a violation of 18 U.S.C. § 922(g)(1) Felon in Possession of Firearm or Ammunition. The complaint alleges the defendant possessed a firearm manufactured outside the state of California. A federal grand jury subsequently issued a one-count indictment charging defendant with a violation of § 922(g). Defendant now moves to dismiss the indictment. He contends that the combination of three Supreme Court cases [1] United States v. Lopez, 514 U.S. 549 , 115 S. Ct. 1624 , 131 L. Ed. 2d 626 (1995), United States v. Morrison, U.S. , 120 S. Ct. 1740 , 146 L. Ed. 2d 658 (2000), and Jones v. United States, U.S. , 120 S. Ct. 1904 , 146 L. Ed. 2d 902 (2000) renders the possession prong of § 922(g) unconstitutional. Defendant alleges this Lopez trilogy has silently overruled Ninth Circuit authority upholding the constitutionality of § 922(g). II. STANDARD OF REVIEW A court should invalidate an act of Congress "only upon a plain showing that Congress has exceeded its constitutional bounds." Morrison, 120 S.Ct. at 1748. This standard ensures "due respect for the decisions of a coordinate branch of Government." Id. III. DISCUSSION Before addressing the merits of defendant's constitutional attack, an exploration of the current status of Ninth Circuit law on the constitutionality of the possession prong of § 922(g) [2] and a review of the Lopez trilogy proves necessary. A. Ninth Circuit Law Regarding § 922(g) Title 18, United States Code, Section 922(g) makes it unlawful for a felon to "possess in or affecting commerce ... any firearm." The jurisdictional requirement "in or affecting commerce" presently poses only a slight obstacle to prosecution. The Ninth Circuit applies the same standard that applied to one of § 922(g)'s predecessors, 18 U.S.C. § 1202(a). United States v. Sherbondy, 865 F.2d 996 , 1000-1 (9th Cir.1988). The commerce element in § 1202(a) only required the prosecution to prove that the firearm had been in interstate commerce at some previous time. Scarborough v. United States, 431 U.S. 563 , 575, 97 S. Ct. 1963 , 52 L. Ed. 2d 582 (1977). The Supreme Court rested that conclusion on congressional intent. See id. at 569-77, 97 S. Ct. 1963 . Because the Ninth Circuit extended Scarborough's "minimal nexus" approach to § 922(g), the prosecution need only show that the firearm possesses "a past connection with commerce" in order to satisfy the jurisdictional requirement of § 922(g). Sherbondy, 865 F.2d at 1000-1. An adequate past connection exists when an individual possesses in California a gun manufactured in another state. See id. Although often of central importance for statutory construction, congressional intent *1069 does not settle constitutional questions. Whether the commerce nexus inserted into § 922(g) is sufficient to survive judicial scrutiny under the interstate Commerce Clause ultimately is an issue requiring judicial rather than legislative resolution. See United States v. Morrison, U.S. , , 120 S. Ct. 1740 , 1752, 146 L. Ed. 2d 658 (2000). The Ninth Circuit addressed precisely that issue in United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995). Citing Sherbondy, Hanna rejected both a facial and as applied challenge to § 922(g)(1). [3] Significantly for our purposes, Hanna reached this conclusion after the Supreme Court's decision in United States v. Lopez, 514 U.S. 549 , 115 S. Ct. 1624 , 131 L. Ed. 2d 626 (1995). Lopez, discussed infra, affirmed a Court of Appeals' decision finding that 18 U.S.C. § 922(q), which made it unlawful to knowingly possess a firearm in a school zone, exceeded Congress' power to legislate under the Commerce Clause. Lopez, 514 U.S. at 552, 115 S. Ct. 1624 . Touting § 922(g)'s jurisdictional element, which was absent from § 922(q), Hanna concluded that "[s]ection 922(g)'s requirement that the firearm have been, at some time, in interstate commerce is sufficient to establish its constitutionality under the Commerce Clause." Hanna, 55 F.3d at 1462 n. 2. Hanna accurately reflects the current state of Ninth Circuit law on the issue now before the Court. The Ninth Circuit has not yet addressed the implications, if any, of the Supreme Court's recent decisions in Jones and Morrison on the holding in Hanna. Thus, Ninth Circuit case law currently holds that the "minimal" nexus required by § 922(g) is sufficient to withstand an attack under the Commerce Clause. B. The Lopez Trilogy In light of the Ninth Circuit's consistent rejection of challenges to the constitutionality of § 922(g) and the absence of any Supreme Court authority holding § 922(g) unconstitutional, defendant's only viable line of attack is to maintain that recent Supreme Court precedent, by extension, has overruled the Ninth Circuit's holding in Hanna. Relying on the Lopez trilogy of Lopez, Jones, and Morrison, defendant adopts precisely such an attack. Before tracing defendant's argument, an intimate familiarity with each of these three cases proves necessary. 1. Lopez In assessing whether § 922(q) constituted a valid exercise of Congress' Commerce Clause power, the Supreme Court outlined three categories of activity properly subject to Congress' regulation under the Commerce Clause: (1) "the use of the channels of interstate commerce;" (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities;" and (3) "activities having a substantial relation to interstate commerce, ... i.e. those activities that substantially affect interstate *1070 commerce." Lopez, 514 U.S. at 558-9, 115 S. Ct. 1624 (emphasis added). The Court expeditiously concluded that the first two categories did not apply to § 922(q), noting as to the second category that Congress was not seeking to "protect" a "thing in interstate commerce" when it outlawed the knowing possession of firearms in a school zone. [4] Id. at 559, 115 S. Ct. 1624 . The brunt of the Court's analysis focused on the third category. Four factors formed the heart of the Court's analysis of whether the activity at issue in § 922(q) "substantially" affected interstate commerce. The Court first considered whether the criminal statute was "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated" and concluded that it was not. Id. at 560-1, 115 S. Ct. 1624 . Second, the Court noted the absence of any express jurisdictional requirement in the statute that "would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. at 561, 115 S. Ct. 1624 . Third, the Court noted the absence of any legislative history regarding the effect of the firearm possession at issue on interstate commerce. Id. at 562, 115 S. Ct. 1624 . Finally, the Court considered specific arguments allegedly showing the requisite substantial effect, including the substantial costs of violent crime, the reduction in interstate travel resulting from violent crime, and adverse consequences to the nation's economy resulting from the decreased productivity associated with the handicapped educational process caused by the presence of guns in schools. The Court roundly rejected these "but for" arguments as potentially opening any activity to congressional regulation. Id. at 564, 115 S. Ct. 1624 . Finding that Congress' regulation of the possession of firearms in school zones did not fall within any of the three categories, the Court concluded that Congress exceeded its power in promulgating § 922(q). 2. Morrison Morrison involved a constitutional challenge to 42 U.S.C. § 13981, which provided a federal civil remedy for the victims of gender-motivated violence. Morrison, 120 S.Ct. at 1745. The Supreme Court reiterated the three categories of activity recognized by Lopez as subject to Congress' regulation under the Commerce Clause and recited the four factors analyzed by Lopez under the third category. Id. at 1749-51. As with Lopez, the Court's focus centered on the third category whether the regulated activity substantially affected interstate commerce. [5] Unlike with § 922(q), the congressional history for § 13981 detailed explicit findings regarding the effect of gender-motivated violence on interstate commerce. Id. at 1752. For example, Congress found that gender-motivated violence deters potential victims from traveling interstate and diminishes national productivity. Id. Likening these findings to the "but for" method of reasoning rejected as unworkable in Lopez, the Court aggressively rebuffed any suggestion that Congress "may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce." Id. *1071 at 1752 and 1754. Such an approach would open to federal regulation all violent crime, thus obliterating the Constitution's distinction between federal and state power. Id. at 1753. Finding that the petitioners had failed to demonstrate that gender-motivated violence substantially affected interstate commerce, the Court concluded that § 13981 exceeded Congress' authority under the Commerce Clause. Id. at 1754-55. 3. Jones Approximately one week later, the Supreme Court walked the periphery of the Commerce Clause in its analysis of 18 U.S.C. § 844(i), which makes it unlawful to damage or destroy by fire or explosive "any ... property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." Jones, 120 S.Ct. at 1907 (internal quotations and citation omitted). The unanimous decision focused on whether "property used in interstate or foreign commerce" encompassed an owner-occupied private residence. Id. at 1908. Conducting a textual analysis of the statute, the Court concluded that "used in" requires that the property be actively employed for commercial purposes, not merely passively or previously connected to commerce. Id. at 1910. The Commerce Clause issues that would arise under Lopez if the statute applied to owner-occupied private residences "used" as collateral to secure a mortgage or in some other similarly passive, passing, or past way reinforced the Court's textual analysis. Id. at 1911-12. C. Application of Lopez Trilogy to Ninth Circuit Precedent Defendant's burden is heavy. He must demonstrate that the Lopez trilogy overruled not only the reasoning but also the holding in Hanna. He attempts to shoulder this burden by advancing a four-step argument: (1) Hanna rested its conclusion that § 922(g) was constitutional on its finding that a "minimal nexus" was constitutionally sufficient pursuant to Scarborough; (2) the Lopez trilogy requires that activity must substantially affect interstate commerce for Congress to regulate such activity under the Commerce Clause; (3) the "minimal nexus" standard does not ensure a substantial effect; (4) therefore, the Lopez trilogy "silently overule[s]" Hanna. (Reply at 4; see also Mot. at 21). 1. The Lopez Trilogy Does Not Disturb the Approach Suggested in Pappadopoulos to the Section 922(g) Possession Analysis The second step of defendant's argument omits an essential detail. The "substantially affects" requirement arises in the context of the third Lopez category of activity subject to Congress' regulation under the Commerce Clause. [6] Thus, even if correct, defendant's four step argument only undermines Hanna and its progeny to the extent those cases rely on category three as the source of congressional authority. Following Lopez' lead, the Ninth Circuit requires an exercise of congressional Commerce Clause Power to find a base in one of the three categories of activity subject to Congress' regulation. See United States v. Pappadopoulos, 64 F.3d 522 , 525-6 *1072 (9th Cir.1995). This Circuit strongly has suggested that § 922(g) regulates "things in commerce" i.e. firearms crossing state lines such that the statute constitutes a valid exercise of Congress' power to regulate activity falling within category two of the three categories identified in Lopez. See United States v. Pappadopoulos, 64 F.3d 522 , 527 (9th Cir.1995). Pappadopoulos involved a pre- Jones constitutional challenge to the arson statute at issue in Jones. Pappadopoulos, 64 F.3d at 524. After specifying the three separate categories of activities subject to congressional regulation under the Commerce Clause, the court quickly dismissed the first two categories and engaged in an extended analysis of whether the destruction of a house that receives natural gas from outside the state (its only claimed relationship with interstate commerce) constituted a substantial effect on interstate commerce. Id. at 526. Holding that it does not, the court distinguished Hanna for its similarities with a category two activity. Pappadopoulos determined that § 922 "can rationally be seen as regulating the interstate transportation of firearms and ammunition" and, therefore, as drawing support from Congress' power to regulate goods in interstate commerce. Id. at 527. In other words, unlike the arson statute, § 922 finds some roots in Congress' category two power. [7] Pappadopoulos found further support for this conclusion in Hanna 's analysis of the as applied constitutional challenge raised in that case; Hanna spurned that challenge because the firearm at issue had previously moved in interstate commerce and not because the firearm itself affected interstate commerce. [8] Id. In distinguishing § 922(g) from the arson statute, Pappadopoulos confronted an even more difficult issue than the one now before the Court. Whereas Jones ultimately rested its decision on a textual analysis of the term "used" in the arson statute, albeit after expressing serious constitutional concerns with an expansive interpretation of that term, Pappadopoulos firmly resolved the constitutional question. The Ninth Circuit's express reinforcement of § 922(g) even after sustaining an as applied constitutional challenge to a federal criminal statute that, unlike § 922(q), has an explicit jurisdictional component, strongly indicates that the textual analysis in Jones and the accompanying implicit constitutional concerns would not upset this circuit's assessment of the constitutionality of § 922(g). Section 922(g) is a valid exercise of Congress' Commerce Clause authority to regulate category two activities. To reiterate, the Lopez trilogy only even arguably overrules the constitutional premise allegedly implicit in Scarborough 's "minimal nexus" construction of § 922(g)'s predecessor if the activity regulated in § 922(g) is category three. Coupling Hanna 's analysis of the as applied challenge with Pappadopoulos ' gloss on Hanna, the Ninth Circuit, in applying Scarborough, has strongly suggested that § 922(g) regulates category two activity. Under this approach, the constitutionality of § 922(g)'s possession prong, well-established *1073 in this circuit, remains undisturbed by the Lopez trilogy. Anticipating a possible finding that the possession prong of § 922(g) is a regulation of a good "in interstate commerce," defendant contends Hanna and Pappadopoulos conflict with other Ninth Circuit authority regarding whether an item is "in interstate commerce" forever merely because it once moved across state lines. (Mot. at 21-22). Ninth Circuit authority clearly holds that Congress possesses regulatory power over a firearm that has moved "at some time" in interstate commerce. See United States v. Casterline, 103 F.3d 76 , 77 (9th Cir.1996) (internal quotation omitted) (citing Hanna ). In affirming this principle, Casterline rejected suggestions in Lopez about a temporal proximity requirement and in Pappadopoulos about the insufficiency of a one-time movement in interstate commerce. Id. In this circuit, a firearm's one-time movement in interstate commerce is a sufficient anchor to implicate congressional Commerce Clause powers. [9] The alleged shifting in the constitutional sands effected by the Lopez trilogy leaves untouched the Ninth Circuit's § 922(g) possession prong analysis as suggested in Pappadopoulos. [10] 2. The Possession Prong of § 922(g) Is within Congressional Power to Regulate Category Three Activities The "minimal nexus" envisioned in Scarborough is a sufficient anchor to implicate congressional power to regulate category three activities. Under this third category, Congress may regulate activities that substantially affect interstate commerce. Lopez, 514 U.S. at 558-9, 115 S. Ct. 1624 . The presence of a jurisdictional component in a criminal statute is an important factor in assessing whether an activity affects commerce. Id. at 561-2, 115 S. Ct. 1624 . Unlike the provisions struck in Lopez and Morrison, § 922(g) contains a jurisdictional element. In emphasizing the absence of a jurisdictional element to § 922(q), Lopez invoked § 922(g)'s predecessor, 18 U.S.C. § 1202(a), as an example of a statute containing a jurisdictional element "which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." [11] Lopez, 514 U.S. at 561, 115 S. Ct. 1624 . Quoting this very language from Lopez, Hanna concluded that § 922(g)'s jurisdictional requirement and its accompanying case-by-case inquiry ensured its constitutionality in the post- Lopez world. Hanna, 55 F.3d at *1074 1462 n. 2. [12] By extension, Morrison, also involving a statute lacking a jurisdictional element, leaves Hanna untouched. [13] Jones does not alter Hanna 's status. As already discussed, whereas Pappadopoulos explicitly shifted the "constitutional sands," Jones ultimately couched its holding as a statutory construction. In the aftermath of the constitutional holding in Pappadopoulos, the Ninth Circuit repeatedly adhered to the holding in Hanna. See e.g. United States v. Polanco, 93 F.3d 555 , 563 (9th Cir.1996); United States v. Nguyen, 88 F.3d 812 , 820 (9th Cir.1996); United States v. Collins, 61 F.3d 1379 , 1383 (9th Cir.1995). If indeed Hanna and its progeny construe § 922(g) as validly regulating a category three activity (as opposed to a category two activity), that finding, as demonstrated by the Ninth Circuit's consistent approach post- Pappadopoulos, is not vulnerable to attack from the constitutional concerns only implicit in the holding in Jones. CONCLUSION The Ninth Circuit has strongly suggested that § 922(g) is a valid exercise of congressional power to regulate category two activities. The Lopez trilogy in no way unsettles that approach. Even if Ninth Circuit authority is found to have construed § 922(g) as regulating category three activity only, the Lopez trilogy still does not upset the constitutionality of the provision. Section 922(g)'s jurisdictional element has shielded it from constitutional attack even in the aftermath of Lopez and, particularly, of Pappadopoulos, which shifted the constitutional terrain more explicitly and, thus, more radically than did Jones. For these reasons and the reasons discussed above, defendant's Motion to Dismiss for Lack of Jurisdiction is DENIED. IT IS SO ORDERED. NOTES [1] In order to maintain consistency with defendant's papers, the Court will refer to Lopez, Morrison, and Jones as the " Lopez trilogy." [2] Title 18, United States Code, Section 922(g) also makes it unlawful to "ship or transport in interstate or foreign commerce" any firearm. That prohibition is not implicated in this motion nor in the Indictment filed July 22, 1999. [3] Hanna conflated the distinction between statutory construction and constitutional analysis. It rested its decision on Scarborough and Sherbondy, two cases, at least explicitly, dealing with statutory construction. Subsequent Ninth Circuit cases have invoked Hanna without addressing the imprecision in its approach. See e.g. United States v. Miller, 105 F.3d 552 , 555 (9th Cir.1997); United States v. Polanco, 93 F.3d 555 , 563 (9th Cir. 1996); United States v. Nguyen, 88 F.3d 812 , 820 (9th Cir.1996); United States v. Collins, 61 F.3d 1379 , 1383 (9th Cir.1995). Regardless of the apparent gap between Hanna 's holding and the authority underpinning that holding, courts in this circuit have accepted the holding. Moreover, Scarborough followed United States v. Bass, 404 U.S. 336 , 350, 92 S. Ct. 515 , 30 L. Ed. 2d 488 (1971); which concluded, as a result of the serious constitutional questions that would arise from an alternative holding, that § 1202(a) required proof of "some interstate commerce nexus" in each case. Arguably implicit in Bass is the constitutional finding that a minimal nexus is sufficient to satisfy the Commerce Clause. See United States v. Lewis, 100 F.3d 49 , 52 (7th Cir.1996). [4] When discussing category two, the Supreme Court found that Congress holds the power to "regulate and protect" things in interstate commerce, but the Court's application of category two used only the word "protect." The opinion never directly addresses whether § 922(q) "regulates" a thing in interstate commerce. Regardless, the absence of a jurisdictional requirement in that provision prevented any blanket conclusion that the firearm in any given case even would be a "thing in interstate commerce." Absent such assurance on the face of the statute, the Court's quick dismissal of category two as the basis for Congress' exercise of power is hardly surprising. [5] The petitioners did not even attempt to contend that the statute regulated either of the first two categories of activity. Morrison, 120 S.Ct. at 1749. [6] In insisting that activity must "substantially affect" commerce in order to fall within Congress' regulatory power under the Commerce Clause, defendant cites to Morrison, 120 S.Ct. at 1749-50, and Lopez, 514 U.S. at 558-59, 115 S. Ct. 1624 . (Reply at 4). These two pinpoint cites refer to sections of the opinions addressing the third category of activity subject to congressional regulation. Defendant provides no authority, nor is the Court aware of any, for his implicit conclusion that activity regulated in categories one and two must "substantially affect" commerce. The Supreme Court has recognized that these three bases of congressional authority are "analytically distinct." United States v. Pappadopoulos, 64 F.3d 522 , 526 (9th Cir.1995) (citing United States v. Robertson, 514 U.S. 669 , 115 S. Ct. 1732 , 131 L. Ed. 2d 714 (1995) (per curiam)). [7] Further supporting this distinction between the arson and felon in possession statutes, the court observed: "[u]nlike a firearm ... which can readily move in interstate commerce, a house has a particularly local rather than interstate character." Pappadopoulos, 64 F.3d at 527-8. [8] Scarborough, on which Hanna relied, provides additional indirect support that the possession prong of § 922(g) regulates category two activity. Scarborough concluded that Congress' intent was to have the jurisdictional element in § 922(g)'s predecessor require no more than "the minimal nexus that the firearm have been, at some time, in interstate commerce." Scarborough, 431 U.S. at 575, 97 S. Ct. 1963 . Thus, Congress apparently intended to regulate possession of a good "in" interstate commerce, although as discussed infra portions of the legislative history also suggest that Congress intended to regulate activity affecting interstate commerce. As here, the statutory language included both "in commerce" and "affecting commerce." Id. at 564, 97 S. Ct. 1963 . [9] As a final argument, defendant in his reply brief contends that possessing a gun that crossed state lines long ago does not amount to possession "in or affecting commerce" as required by § 922(g). (Reply at 5:9-11). Defendant provides no support for this one-sentence statutory construction argument, which is not surprising. Scarborough, when construing the analogous language "possesses ... in commerce or affecting commerce" of 18 U.S.C. § 1202(a), determined that the possessed firearm need only have "at some time" traveled in interstate commerce to satisfy this language. Scarborough, 431 U.S. at 575, 97 S. Ct. 1963 . [10] Defendant suggests dire jurisdictional consequences will stem from this approach since now "there is scarcely any item in any person's possession within this country that is not subject to regulation by Congress. Congress could regulate virtually any act of murder by enacting a statute that contained a jurisdictional element `murder by an article in interstate commerce.'" (Mot. at 23:1-5). To the extent defendant's comments are accurate, the Ninth Circuit in Hanna, armed with the concerns articulated in Lopez regarding federal intrusion into traditionally state arenas, did not deem them sufficient to undermine the constitutionality of § 922(g)'s possession prong. Neither Morrison nor Jones suggest any reason for a change in the Ninth Circuit's approach. [11] A notable omission from this quotation is the word "substantial." Lopez did not hold that the mere presence of a jurisdictional element necessarily ensures a substantial effect in each case. Morrison, which shared Lopez' interest in the presence of a jurisdictional element, noted as to § 13981 that such an element would "lend support" to the assertion of a sufficient connection to interstate commerce. Morrison, 120 S.Ct. at 1751-2. [12] Whereas the presence of a jurisdictional element counsels in favor of classifying the possession prong of § 922(g) as an authorized exercise of Congress' power to regulate category three activities, the legislative history of one of § 922(g)'s predecessors suggests Congress intended an arguably insufficient connection between firearm possession and interstate commerce. Senator Long urged Congress to find that "the possession of these weapons by the wrong kind of people is either a burden on commerce or a threat that affects the free flow of commerce." Scarborough, 431 U.S. at 572, 97 S. Ct. 1963 (citing 114 Cong.Rec. 13868 (1968)). This statement resonates with the discredited "cost of crime" and aggregate effect arguments advanced in Lopez and Morrison. Hanna, however, implicitly concluded that the presence of a jurisdictional component trumped any countervailing concerns. [13] Hanna does not clarify whether, in its view, the presence of a jurisdictional element in § 922(g) thereby satisfies the "substantially affects" test or instead dispenses with the necessity of complying with that test altogether. The Seventh Circuit has concluded that § 922(g)(1), with a Supreme Court imprimatur stretching back to Bass and Scarborough, need not meet the "substantially affects" requirement under category three. United States v. Wilson, 159 F.3d 280 , 286-7 (7th Cir.1998). The Court need not consider which tact the Ninth Circuit adopted since Hanna, whatever it means, remains viable in the wake of Jones for the reasons discussed infra. | opinion_html_with_citations | 4,259 | 2013-10-30 09:32:55.007144+00 | 010combined | f | f | 2,428,359 | Armstrong | null | LU | f | Published | 0 | United States v. Bowens | Bowens | UNITED STATES of America, Plaintiff, v. Arthur Larry BOWENS, Defendant | null | null | <parties id="b1145-12">
UNITED STATES of America, Plaintiff, v. Arthur Larry BOWENS, Defendant.
</parties><br><docketnumber id="b1145-15">
No. CR 99-40165 SBA.
</docketnumber><br><court id="b1145-16">
United States District Court, N.D. California.
</court><br><decisiondate id="b1145-18">
June 29, 2000.
</decisiondate><br><attorneys id="b1145-31">
Jonathan Schmidt, Assistant United States Attorney, U.S. Attorney’s Office, Oakland, CA, for plaintiff.
</attorneys><br><attorneys id="b1145-32">
Anne Flower Cumings, Assistant Federal Public Defender, Federal Public Defender’s Office, Oakland, CA, for defendant.
</attorneys> | null | null | null | null | null | null | 2,300,641 | CR 99-40165 SBA | 1 | cand | FD | t | N.D. California | District Court, N.D. California |
9,362,072 | Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit denied. | opinion_xml_harvard | 17 | 2023-01-13 07:04:56.117805+00 | 020lead | t | f | 9,366,596 | null | null | U | f | Published | 0 | Jaffe v. Sherman | Jaffe | Robert James JAFFE v. Brad SHERMAN, United States Congressman. | null | null | null | null | null | null | null | null | null | 66,727,982 | No. 19-1004. | 0 | scotus | F | t | Supreme Court | Supreme Court of the United States |
8,326,342 | Murtagh, Thomas R., J. INTRODUCTION The plaintiff, Alberg Oliveira (“Oliveira”), filed this action on April 3, 2009, against the defendant, Advanced Delivery Systems, Inc. (“ADS”), alleging nonpayment of wages in violation of G.L.c. 149, §148 (“§148B”) (Count I), conversion (Count II), and unjust enrichment (Counts III, IV and V). This matter is before the court on Oliveira’s Motion for Partial Summary Judgment on the issue of whether Oliveira was an independent contractor or employee of ADS. For the reasons discussed below, Oliveira’s motion is ALLOWED. BACKGROUND The undisputed facts, as well as those taken in the light most favorable to ADS as the nonmoving pariy, are as follows. ADS is in the business of providing home furniture delivery management services to furniture retailers by using a system of “Owner-Operators.” Oliveira began working with ADS on February 10, 2007, and initially worked for the first two weeks as a helper to drivers making furniture deliveries. After the first two weeks, Oliveira worked as a driver making deliveries to Bob’s Discount Furniture (“Bob’s”) customers. Oliveira reported every morning at a depot by 6:00 AM. A depot supervisor provided Oliveira a Truck Delivery Report (“TDR”), which Bob’s produced, listing each address to which Oliveira had to deliver furniture along with an expected arrival time. Oliveira wore a uniform of blue trousers and a shirt with a Bob’s logo. Before leaving the depot, Oliveira verified that furniture for his first delivery was loaded in the front of the trailer and activated a GPS device for his truck. After each delivery, Oliveira was required to call a central *403line from the customer’s house to confirm the delivery. Until March 30, 2007, ADS classified Oliveira as a “temporary helper employee” and deducted payroll taxes from his paycheck. Prior to this date, ADS provided, supervised and paid helpers for Oliveira’s furniture deliveries. ADS also obtained workers’ compensation insurance for those individuals. On or around March 27, 2007, Oliveira and ADS executed an Independent Truckman’s Contract (the “Contract”). From this point forward, ADS classified him as an independent contractor, as he was an Owner-Operator, and stopped deducting payroll taxes from his checks. Among other provisions of the Contract, the parties agreed that “[Oliveira] through his own business will deliver for an ADS retail customer, in a truck leased or purchased by [Oliveira], with the aid of a helper employed and paid by [Oliveira] on terms that may be agreed upon between [Oliveira] and the helper.” The parties also agreed that “[Oliveira] shall be solely responsible for the fueling, maintenance, tires, repairs, equipment, and insurance for his truck, and the other expenses of his business ... [and that Oliveira] shall direct the operation of his equipment in all respects and will determine the means of performance consistent with guidelines, if any, set forth in a contract between ADS and its retail customer.” Further, the parties agreed that Oliveira was to “furnish at his own expense workers’ compensation and employer’s liability insurance, and [to] be responsible for the payment of wages and social security and withholding taxes with respect to all his employees and . . . [to] furnish at his expense truck liability and general liability.” The Contract also included a non-compete provision where Oliveira was prohibited from providing delivery services to ADS customers within a year of terminating his relationship with ADS. On or around March 26, 2007, both parties executed a Truck Lease Agreement (“Lease”) wherein Oliveira leased a truck from ADS. On or around March 27, 2007, ADS issued a memorandum to Oliveira describing a series of deductions that were to be withdrawn from his account. Thereafter, ADS provided Oliveira with weekly statements itemizing his earning and deduction summaries. After Oliveira became an Owner-Operator, his job responsibilities did not significantly change. He was provided the same TDR for his delivery routes. As an Owner-Operator, however, Oliveira hired and paid for helpers to assist in making his deliveries. An agent of ADS contacted Oliveira to monitor his progress in making deliveries. He was required to send GPS transmissions from each stop, the failure to do so resulting in a fine by ADS. Upon finishing his daily deliveries, Oliveira called a central phone number to avail himself for additional assignments, otherwise known as “bail outs.”1 At the end of each day, Oliveira handed in the day’s TDR, GPS device and the keys to the truck he used. In January 2008, Oliveira voluntarily terminated his relationship with ADS. DISCUSSION Summary judgment is appropriate when there are no genuine issues of material fact and, viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law. Gray v. Giroux, 49 Mass.App.Ct. 436, 438 (2000); see Mass.R.Civ.P. 56(c). The party moving for summary judgment bears the burden of affirmatively demonstrating that there are no genuine issues of material fact. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989), and cases cited. To meet this burden, a moving party who would not bear the burden of proof at trial may either submit affirmative evidence negating an essential element of the nonmoving party’s case or show that the nonmoving party would have no reasonable expectation of proving an essential element of its case at trial. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). To withstand summary judgment, the nonmoving party must articulate specific facts establishing the existence of a genuine issue of material fact. Pederson, 404 Mass. at 17, citing O’Brien, Russell&Co. v. LeMay, 370 Mass. 243, 245 (1976). I. Preemption ADS asserts that the Federal Aviation Administration Authorization Act of 1994 (“the FAAA Act”) expressly preempts Oliveira’s G.L.c. 149, §148B (“§148B”) claim. ADS further asserts that compliance with §148B would require it to “dramatically alter” its business model, if not terminate its business in Massachusetts altogether. Since its delivery personnel are comprised of Owner-Operators, classified as independent contractors, who are compensated based upon a percentage of the retail value of the delivered furniture, ADS maintains that this system provides the Owner-Operators with stronger business incentives than employees to provide quality service. If ADS is forced to treat the Owner-Operators as employees, it argues, §148B creates the veiy impediment to motor carrier operations that Congress intended to prevent by passing the FAAA Act. The FAAA Act, in relevant part, provides that “a State . . . may not enact or enforce a law . . . related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.” 49 U.S.C. §14501(c)(l). The Supreme Court construed this to mean that “[s]tate enforcement actions having a connection with, or reference to” carrier “rates, routes, or services” are preempted. Rowe v. New Hampshire Motor Transport Ass’n, 552 U.S. 364, 370 (2008), citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992).2 Not every state law that relates to a motor carrier’s rate, route, or service is consequently preempted. State laws that only have a “tenuous, remote, or *404peripheral” relationship to the rate, route or service of a motor carrier are not preempted. Id., citing Morales, 504 U.S. at 390. Broad or general state laws have an affect too tenuous, remote, or peripheral and are, therefore, not preempted by federal law. Rowe, 552 U.S. at 375. This applies to “state regulation that broadly prohibits certain forms of conduct and affects ... truck drivers ... only in their capacity as members of the public.” Id. Preemption occurs, however, where state laws have “a ‘significant impact’ related to Congress’ deregulatory and pre-emption-related objectives.” Id., citing Morales, 504 U.S. at 390. Preemption may occur even when the impact is indirect. Id., citing Morales, 504 U.S. at 390. A question of preemption is a question of Congressional intent. DiFiore v. American Airlines, Inc., 6 F.Sup.2d 15, 19 (D.Mass. 2009), citing Morales, 504 U.S. at 383. ADS asserts that there is no implied exception to preemption for state employment laws. It cites to cases suggesting “that state police power enactments are not excluded from preemption.” Travers v. JetBlue Airways Corp., 2998 WL 2242391 at *2 (D.Mass. 2009).3 Indeed, there is no implied exception as ADS suggests. Rather, there is a presumption against preemption, which is heightened in areas traditionally regulated by state law. DiFiore, 6 F.Sup.2d at 19. State laws concerning matters traditionally regulated by states are preempted only if Congress’ intent to suppress state powers is clear and manifest. Id. The District Court continues: Congress intended to prevent states from regulating airlines specifically and thus gave the ADA (upon which the FAAA Act is based] a broad preemptive sweep. A state law is preempted when it has a significant effect on prices, routes and services. It is not clear, however, that Congress intended to exempt airlines from all state laws. In particular, it is not clear that Congress intended completely to overturn the protections for carriers’ employees traditionally provided by states to all employees. Employment laws are usually laws of general applicability, not directed to carriers, specifically, which impose bans on primary conduct and regulate carriers in their capacity as employers, not as carriers. As a result, on many occasions it has been recognized that employee’s claims affected airline prices and services only in a tenuous, remote and peripheral manner and were not preempted by the ADA. This Court concludes that, although there is no automatic exception to preemption for state employment laws of general applicability, the significant effect test ought to be applied here with sensitivity. Id. at 22. In Travers, the court concluded that the FAAA Act “preempts state police-power enactments to the extent that they are related to a carrier’s prices, routes, or services.” Travers, 2009 WL 2242391 at *2 (internal quotations and citation omitted). In the case at bar, the court cannot reach the same conclusion because the relation between §148B and ADS’ prices, routes or services is too tenuous and remote. The state law here, §148B, relates to the determination of an individual’s status as an employee or independent contractor for purposes of preserving employees’ rights. The court concludes that Congress did not intend to exempt motor carriers from all state laws, particularly from employment laws with such general applicability. ADS cites American Trucking Ass’ns, Inc. v. Los Angeles, 559 F.3d 1046 (2009) (“ATA”), to argue, however, that compliance with §148B, which would purportedly force it to abandon the use of owner-operators, will significantly impact the services it provides, rendering the statute preempted. This analogy is weak. In ATA, the Cities of Los Angeles and Long Beach implemented mandatory concession agreements on motor carriers to transition from the use of independent contractors to employees. Id. at 1049. The regulation in ATA specifically targeted motor carriers and the carriage of goods. Here, §148B is a law of general applicabiliiy aimed at employers at large, not just motor carriers.4 Any impact on the carriage of goods is indirect and is not considered to be significant.5 “The effect of [§148B] is not to prohibit companies from utilizing independent contractors . .. [it is] to protect workers who are, in fact, employees so that they can enjoy the benefits of that status.” Derochers v. Staples, Inc., SUCV2009-4845, slip op. at 5 (Mass.Super.Ct. Jun. 7, 2010) (McEvoy, J.). Therefore, this court finds no preemption by the FAAA Act. II. Application of General Laws c. 149, §148B General Laws c. 149, §148 (“§148”), requires an employer to pay an employee in full, within a week of the weekly or biweekly pay period in which the employee performed the work. Whether an employer is bound by this law depends on whether the worker is an independent contractor or an employee. A worker is presumed to be an employee, and therefore covered under §148, unless the employer establishes that: “(1) the individual is free from control and direction in connection with the performance of the service both under his contract for the performance of service and in fact; and (2) the service is performed outside the usual course of the business of the employer; and (3) the individual is customarily engaging in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.” G.L.c. 149, §148B. This is a conjunctive test where all three elements must be present for an individual to be deemed an independent contractor. Athol Daily News v. Board of Review of the Div. of Unemployment and Training, 439 Mass. 171, 175 (2003) (construing G.L.c. 151A, §2, which is virtually identical to G.L.c. 149, §148B). A. The “Direction and Control” Element In examining the first element, courts look to the common law of workers’ compensation to analyze the *405employer’s right to control and direct his workers. “[W]hether the worker is supervised ‘not only as to the results to be accomplished but also as to the means and methods that are to be utilized in the performance of the work’ is examined.’ ” American Zurich Ins. Co. v. Dept. of Indus. Accidents, 2006 WL 2205085 at *3 (Mass.Super. 2006) [21 Mass. L. Rptr. 224] (citations omitted). This “test is not so narrow as to require that a worker be entirely free from direction and control from outside forces.” Athol, 439 Mass. At 177 (citation omitted). Citing to Fucci v. Eastern Connection Operating, Inc., MICV2008-2659, slip op. (Mass.Super.Ct. Sept. 21, 2009) (Gershengom, J.) and Amero v. Townsend Oil Co., ESCV2007-1080C, slip op. (Mass.Super.Ct. Apr. 15, 2009) (Murtagh, J.), Oliveira argues that indicia of control from these cases are present here. In Fucci, a package delivery service required drivers to wear uniforms and to avail themselves by cell phone during deliveries. Fucci, MICV2008-2659, slip op. at 3. The company provided drivers with daily manifests, which required pickups and deliveries on a fixed schedule. Fucci, MICV2008-2659, slip op. at 7. On that record, the court found sufficient control and direction. Id. In Amero, an oil delivery company required its drivers to wear uniforms and to have the company logo on their trucks. Amero, ESCV2007-1080C, slip op. at 4. The drivers were instructed to deliver oil to specific customers on specific days and the company, not the drivers, determined the price of deliveries. Id, On that record, the court found sufficient control and direction. Id. There are undisputed facts that suggest some amount of control by ADS. An agent of ADS frequently contacted Oliveira to monitor his progression on deliveries. ADS required Oliveira to contact a central number upon the completion of his deliveries to make himself available for additional deliveries. That Oliveira agreed to do so in order to receive extra compensation, as ADS asserts, does not refute its indicia of control. There is, however, a dispute by ADS as to whether it exercised sufficient control and direction over Oliveira. ADS refutes Oliveira’s assertion that it required him to wear a uniform, provided him with manifests, and mandated a daily schedule. ADS claims those directives and requirements came from Bob’s.6 Oliveira argues that ADS required him to send GPS transmissions from each point of delivery, fining him if he failed to do so. ADS, however, counters that the GPS transmissions allowed Bob’s customers to check the status of their deliveries online. If taken to be true, the primary purpose of the GPS system was to offer a supplementary service to Bob’s customers, not for ADS to control or direct Oliveira’s means and method of delivery. At minimum, there exists a material issue of fact which precludes a grant of summary judgment as to this first element. B. The “Usual Course of Employer’s Business" Element The next element looks to whether the scope of the services is performed outside the usual course of the employer’s business. G.L.c. 149, §148B(2). “Generally, a worker whose services form a regular and continuing part of the employer’s business, and whose method of operation is not such an independent business that it forms in itself a separate route through which his costs of industrial accidents can be channeled, should be found to be an employee and not an independent contractor . . . On the other hand, if the worker is performing services that are part of an independent, separate, and distinct business from that of the employer, the worker is generally considered to be an independent contractor . . .” American Zurich Ins., 2006 WL 2205085 at *4 (citations omitted). Citing to Fucci, Oliveira argues that by claiming that the nature of its business is outsourcing rather than furniture delivery, ADS cannot meet the burden of proving that his work was outside the usual course of its business. In Fucci, the employer asserted that it was only “a marketing logistics corporation which outsource[d] transportation needs for customers.” Fucci, MICV2008-2659, slip op. at 9. The court, nonetheless, noted that the employer was in fact a courier business that picked up, transported and delivered packages for customers. Id. “In practice, [the employer] not only arranged for the pickup and delivery of its customers’ packages, but also compensated the plaintiffs to perform these non-logistical services and billed its customers for the same.” Id. Here, ADS’ business centers on home furniture delivery. ADS claims that it manages the retailers’ delivery function while Owner-Operators perform the actual furniture deliveries to retail furniture customers’ residences pursuant to written contracts with ADS. By claiming so, it distinguishes the “management” from the “performance” function of the furniture delivery. In practice, the court cannot find that such a distinction brings the scope of Oliveira’s services outside the usual course of ADS’ business. It is undisputed that on Oliveira’s weekly deductions, ADS deducted fuel costs, workers’ compensation payments, cargo insurance payments and charge backs for expenses paid on his behalf by ADS. Although the Lease ultimately made Oliveira responsible for the maintenance and upkeep of the truck he used, a provision allowed ADS to perform maintenance on the truck used by him. On particular occasions, ADS performed maintenance on Oliveira’s leased truck and charged him for the related costs. On the occasion that Oliveira caused damage to customers’ furniture, ADS paid such damages to Bob’s and charged corresponding costs to Oliveira. “Bail out” charges were deducted by ADS from Oliveira’s account and paid to corresponding ADS drivers. Based on these undisputed facts, the managing and performing functions of furniture delivery result in a symbiotic relationship. Without providing physical delivery of furniture, which is essential to its business, ADS’ business would not exist. Furthermore, although the court agrees that the record does not suggest that ADS hired employees to *406do the same work as Owner-Operators, the court notes that this is not countervailing evidence. In Fucci, the court held that “ [although the plaintiffs entered into their respective Agreements as sole proprietorships, the evidence indicated) that [the company] would only contract with the plaintiffs in business rather than personal capacities, not that the plaintiffs formed these business to channel workers’ compensation costs.” Fucci, MICV2008-2659, slip op. at 9. By its own admission, ADS only hired temporary employees in an effort to evaluate their futures as Owner-Operators. As in FUcci, the Owner-Operators did not become independent contractors in an effort to channel their own costs; rather they did so to become Owner-Operators for ADS. The court, therefore, finds that summary judgment is warranted under the second element. C. The “Independent Enterprise” Element Although it is not necessary to the court’s determination that Oliveira is entitled to summary judgment, the court shall briefly examine the final element. The final element, which also favors Oliveira, looks to whether the worker is “customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.” G.L.c. 149, §148B(3). “Whether the service in question could be viewed as an independent trade or business because the worker is capable of performing the service to anyone wishing to avail themselves of the services, or, conversely, whether the nature of the business compels the worker to depend on a single employer for the continuation of the services.” Athol, 439 Mass. at 181. Ultimately, the question is “whether the worker is wearing the hat of an employee of the employing company or is wearing the hat of his own independent enterprise.” Boston Bicycle Couriers, Inc. v. Deputy Director of the Div. of Employment & Training, 56 Mass.App.Ct. 473 (2002). ADS asserts that Oliveira was engaged in an independently established business because he took steps to become an independent contractor — after which he operated his business for more than a year, hiring his own employees and earning substantial amounts based on the retail value of the furniture he delivered. The undisputed facts demonstrate, to the contrary, that Oliveira was not an entrepreneur operating an independently established business. Oliveira did not have his own furniture delivery business prior to joining ADS. Oliveira never solicited his services nor did he work for anyone other than ADS during his time as an Owner-Operator. His earnings and deliveries stemmed from his account with Bob’s, which was originally supplied by ADS. Furthermore, since leaving ADS, Oliveira has not operated his own furniture-delivery business. These undisputed facts indicate that he was “wearing the hat” of ADS as an Owner-Operator. The court, therefore, finds that summary judgment is warranted under the third element. ORDER For the foregoing reasons, it is hereby ORDERED that Oliveira’s Motion for Partial Summary Judgment is ALLOWED. The court, therefore, concludes that Oliveira is ADS’ employee for purposes of G.L.c. 149, §148. “Bail outs” refer to situations where ADS sends an available driver to assist another who is unable to complete deliveries assigned by the day’s TDR. Morales dealt with the preemption provision of the Aurline Deregulation Act of 1978 (“the ADA Act”). As Congress incorporated the same preemption provision from the ADA Act into the FAAA Act, the Supreme Court used the same preemption analysis in Rowe as it did in Morales. Rowe, 552 U.S. at 370-71. ADS also cites to Brown v. United Air Lines, Inc., 656 F.Sup.2d 244, 248 (D.Mass. 2009), highlighting that “Rowe stands for the proposition that courts should not imply broad exceptions to the preemption provision for areas of traditional state concern.” Furthermore, in Rowe, the Court found significant impact because the state statutes in question “[did] not affect truckers solely in their capacity as members of the general public ... [because] [t]he state statutes aim[ed] directly at the carriage of goods ...” Rowe, 552 U.S. at 375. Here, the scope of §148B is general in nature as it applies to motor carriers just as it would to any member of the general public. ADS also cites to Central Transport v. Michigan. Public Service Commission, 223 Mich.App. 288 (1997), in supporting its argument. This analogy, too, is weak. In Central Transport, the state law in question prohibited motor carriers from hiring owner-operators. The court found significant impact, because the law was not general or broad as it was directly aimed at motor carriers. A factual distinction worth noting between Fucci and the case at bar is that in Fucci, the employees were required to wear uniforms bearing their employer’s name while Oliveira was required to wear uniforms bearing Bob’s logo, not ADS’s. | opinion_xml_harvard | 3,858 | 2022-10-17 20:23:01.825113+00 | 020lead | t | f | 8,357,557 | Murtagh, Thomas | null | U | f | Published | 0 | Oliveira v. Advanced Delivery Systems, Inc. | Oliveira | Alberg Oliveira v. Advanced Delivery Systems, Inc. | null | null | null | null | null | null | null | null | null | 65,537,560 | No. 091311 | 0 | masssuperct | SA | t | Massachusetts Superior Court | Massachusetts Superior Court |
6,091,771 | —Motion by the respondent for an order vacating the opinion and order of this Court dated April 24, 2000 (271 AD2d 46), which disbarred him on default, reinstating him as an attorney, and referring this matter back to the Grievance Committee for the Ninth Judicial District for a hearing to determine whether he has engaged in conduct which violated the Code of Professional Responsibility. By decision and order of this Court dated July 21, 1999, the respondent was suspended from the practice of law pursuant to 22 NYCRR 691.4 (l) (1) (i) upon a finding that he was guilty of professional misconduct immediately threatening the public interest based upon his failure to submit a timely written answer to a complaint of professional misconduct. The respondent now maintains that the motions for his interim suspension and for his disbarment on default, as well as the decision and order of suspension and the opinion and order of disbarment, were not properly served upon him. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on May 22, 1985, under the name Wayne John White. Upon the papers submitted in support of the motion and the papers submitted in response thereto, it is ordered that the motion is granted to the extent that both the opinion and order of disbarment, dated April 24, 2000, and the decision and order of suspension, dated July 21, 1999, are recalled and vacated; and it is further, *1157Ordered that the respondent is reinstated to the practice of law; and it is further, Ordered that this matter is referred back to the Grievance Committee for the Ninth Judicial District for whatever action is deemed appropriate. Prudenti, P.J., Ritter, Santucci, Altman and Krausman, JJ., concur. | opinion_xml_harvard | 299 | 2022-01-13 19:56:46.973642+00 | 020lead | t | f | 6,225,053 | null | null | U | f | Published | 0 | In re White | In re White | In the Matter of Wayne J. White, a Disbarred Attorney, Grievance Committee for the Ninth Judicial District | null | null | null | null | null | null | null | null | null | 62,586,365 | 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 |
Subsets and Splits